Peters and Ortona (No 2)
[2016] FamCAFC 162
•10 May 2016
FAMILY COURT OF AUSTRALIA
| PETERS & ORTONA (NO 2) | [2016] FamCAFC 162 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application by the appellant to amend the grounds of appeal at a late stage – Application allowed to the extent that the proposed grounds relate to the parenting proceedings. |
| Family Law Rules 2004 (Cth) – r 22.09(1) |
| APPELLANT: | Ms Peters |
| RESPONDENT: | Mr Ortona |
| FILE NUMBER: | MLC | 8590 | of | 2012 |
| APPEAL NUMBER: | SOA | 20 | of | 2015 |
| DATE DELIVERED: | 10 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Ryan & Austin JJ |
| HEARING DATE: | 10 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 99 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appellant have leave to amend her Notice of Appeal to rely upon grounds 1 to 6 and 10 in her amended Notice of Appeal filed on 28 April 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 20 of 2015
File Number: MLC 8590 of 2012
| Ms Peters |
Appellant
And
| Mr Ortona |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
THACKRAY J
The application before us is the oral application of the appellant for leave to amend her Notice of Appeal in terms of a document filed on 28 April 2016.
As was pointed out to us in argument, it has been some 408 days since the proceedings were concluded in the court below. A Notice of Appeal was filed on 26 March 2015 in which the appellant proposed to rely upon three grounds of appeal. The first two dealt with issues relating to the two children who were the subject of the parenting proceedings. Ground 3 relates to money said to have been owed by the appellant and/or the respondent to a third party.
It is somewhat unclear what has occurred since the filing of the appeal, but the appellant recalls seeking to file an amended Notice of Appeal in December 2015 in the terms now before us in the document filed on 28 April 2016. However, examination of the court file does not reveal receipt of such a document, and although the appellant has a recollection of sending it to the respondent in December, the respondent has no recollection of receiving it. The appellant’s efforts to obtain a copy of an email that was said to have accompanied that document have not met with success.
Exhibit 1 in today’s proceedings is an email from the appellant to the Appeal Registrar dated 12 February 2016 in which the appellant confirmed her understanding that 15 February 2016 was the final date to provide various documents, including an amended Notice of Appeal. Significantly, in my view, the email makes no reference to any such document then being in existence and, more specifically, no reference to it having been provided as long ago as December 2015.
Exhibit 2 in today’s proceedings is an email in response from the Appeal Registrar in which she draws the attention of the appellant to r 22.09(1) of the Family Law Rules 2004 (Cth), which states that an amended Notice of Appeal may be filed “at any time up to … the date fixed for filing the summary of argument by the appellant”. The email goes on to explain that the date for filing of such an amended Notice of Appeal was 15 February 2016.
The appellant filed her summary of argument on 16 February 2016. The respondent filed his summary of argument on 29 April 2016. The delay in the filing of his document, as I understand the position, relates to staff absences in the registry which prevented the earlier documents being processed as quickly as the court would have liked, and hence an extension of time was given. Unsurprisingly, the respondent’s summary of argument relates only to the matters that were properly before the court in the terms of the Notice of Appeal filed in March 2015.
The next significant event is the filing of the amended Notice of Appeal very recently on 28 April 2016. The amended Notice contains 10 grounds. Some of them pick up the grounds relating to the children that were set out in the original notice of appeal, but there are further grounds directed to more specific issues concerning the children. The Notice also seeks to introduce grounds that are entirely unrelated to the matters set out in the original Notice.
In particular, Ground 7 raises issues of family violence relevant to the property settlement matter. Ground 8 seeks to attack the decision made by the trial judge in relation to the weight placed on initial contributions made by the appellant. Ground 9 seeks to introduce a rather general complaint concerning an alleged failure by the respondent to give full and frank disclosure of financial and property dealings. Ground 10 has now been clarified as a ground that, although in part directed to financial issues, does relate to issues concerning the children.
The respondent denies or has no recollection of having received the amended Notice of Appeal, but he has now read through it. As already outlined, the appellant has been unsuccessful in providing adequate proof that it was served upon him. The respondent has properly conceded that he is in the position to meet that part of the amended Notice that relates to the children’s issues, but he strongly objects to the application to amend the Notice insofar as it relates to financial issues.
In advancing his opposition to the application, the respondent refers to the fact that he obtained some advice in relation to the original Notice of Appeal, and that he filed his summary of argument on the basis that it was the document properly before the court, as he was entitled to do. He says he would be severely prejudiced if the appellant was given leave today to introduce these new matters, because he would need an opportunity to consider them and, significantly, he would need time to take legal advice in relation to them.
The purpose of the rules in relation to the amendment of documents is to ensure that justice is done to both parties by allowing the respondent the opportunity to know the case that he or she is expected to meet; to take advice in relation to those matters; and, in preparing their summary of argument, to address those issues. All of these opportunities would be denied to the respondent if we allowed the appellant to amend the Notice of Appeal at this very late stage, bearing in mind this appeal has now been on foot for more than a year.
In my view, it would not be in the interests of justice to permit the appellant to amend insofar as she seeks to introduce additional matters relating to financial issues. However, it would be in the interests of justice to allow her to introduce the additional matters relating to the children, which the respondent is able to meet. For those reasons, I would give leave to the appellant to rely upon the amended Notice of Appeal, save for proposed grounds 7, 8 and 9.
RYAN J
I agree with the reasons given by the presiding judge. The only other matter I would add is that, if leave were to be given, this appeal could not be finalised today and it would necessitate an adjournment in order to permit the respondent to attempt to come to grips with the additional grounds now contained in the amended Notice of Appeal. These parties have been involved in extraordinarily intense litigation and I am not persuaded that we would take a step today which would require an adjournment and add to the very great stresses under which this family has laboured as a consequence of the complexity of the litigation. The tenor of the orders proposed by the presiding judge are orders that I would support.
AUSTIN J
I agree with the order proposed and the reasons given by the presiding judge.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Austin JJ) delivered on 10 May 2016, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 22 August 2016
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