Probert and Probert & Ors (No 2) - [2018] FamCAFC 178

FAMILY COURT OF AUSTRALIA

PROBERT & PROBERT AND ORS (NO. 2)

[2018] FamCAFC 178

FAMILY LAW – APPEAL – Application for reinstatement – The appellant seeks to reinstate an appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Where the cross-appeal is scheduled for hearing before the Full Court – Application adjourned for hearing before the Full Court.

Family Law Rules 2004 (Cth)

APPELLANT/FIRST CROSS-RESPONDENT:

Mr Probert

FIRST RESPONDENT/

SECOND CROSS-RESPONDENT:

Ms Probert

SECOND RESPONDENTS/

CROSS-APPELLANTS

Ms Whittemore & Mr Whittemore

FILE NUMBER:

PTW

872

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

14 September 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

29 March 2018

LOWER COURT MNC:

[2018] FCWA 54

REPRESENTATION

THE APPELLANT/FIRST CROSS-RESPONDENT:

In person

COUNSEL FOR THE FIRST RESPONDENT/

SECOND CROSS-RESPONDENT

Ms King

SOLICITOR FOR THE FIRST RESPONDENT/

SECOND CROSS-RESPONDENT:

Genuine Legal

THE SECOND RESPONDENTS/

CROSS-APPELLANTS:

No appearance

Orders

The Application in an Appeal filed 4 September 2018 be adjourned for hearing before the Full Court.
The time for compliance with paragraph 16 of the orders made on 16 July 2018 be extended to 10 am on 25 September 2018.
Costs be reserved to the Full Court.

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 Probert & Probert & Whittemore (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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 17 of 2018
File Number: PTW 872 of 2014

Mr Probert

Appellant/First Cross-Respondent

And

Ms Probert

First Respondent/Second Cross-Respondent:

And

Ms Whittemore & Mr Whittemore

Second Respondents/Cross-Appellants

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is that of the appellant, Mr Probert, filed on 4 September 2018 in which he seeks reinstatement of his appeal, which was filed on 24 April 2018 against orders of a Family Law Magistrate.
There is also a cross-appeal by Mr and Mr Whittemore also filed on 24 April 2018. The usual directions have been made to prepare the matter for hearing before the Full Court and both the appeal and cross-appeal are listed to be heard on 27 September 2018. Mr Probert says he has not yet received notice of the hearing date and therefore a copy of the letter advising of the date will be provided to him today.
The need for reinstatement arises as a result of Mr Probert’s failure to provide the appeal books within the prescribed time. He also failed to provide his summary of argument within time. Pursuant to the Family Law Rules 2004 (Cth), failure to provide the appeal books results in the appeal being deemed abandoned and the only way the matter can proceed is by making an order for reinstatement. Mr Probert has set out in a supporting affidavit the reasons he has had difficulty complying with his obligations.
It should be noted that when I determined the cross-appellant’s application for expedition, I indicated that it was important that all parties comply with the Appeal Registrar’s directions. The cross-appellants, up until now, have taken a generally lenient view of the difficult circumstances in which Mr Probert finds himself relating to his homelessness and absence of legal representation, but on this occasion they take a different view and, as outlined in their correspondence to which I will refer later, are firmly opposed to the application for reinstatement.
Ms King appears with limited instructions from Ms Probert, the substantive respondent to the appeal, who also opposes the application. To provide some context in relation to her position, Ms King advises of the limited nature of the instructions her firm has been receiving in relation to the appeal. Her expectation is that, should the appeal proceed, there will be a similarly limited role played by Ms Probert in the appeal which might perhaps – using my words – be described more as a “watching brief”. It is not proposed she will file a summary of argument and it is unlikely any substantive submissions will be made.
As for the cross-appellants, it is important I record there was a glitch in notification of today’s hearing. The result is that the parties received written notification that this matter was to be listed next Monday instead of today. When the error became known, the parties were advised on very short notice that the matter was to be heard today. The cross-appellants have previously informed the court of their travel plans which have caused them some difficulties in relation to the appeal. After being notified of today’s hearing, they wrote to the Registrar drawing attention to the short notice and setting out what they understand to be relevant background. They also make clear their objection to the reinstatement of the appeal and they point out that they have now filed their own appeal books and summary of argument for their cross-appeal.
I am told by Mr Probert – and I understand from the Appeals Registrar – that he too has now filed his appeal books and summary of argument, but he has not provided them to the cross-appellants or Ms Probert on the basis that he had understood that he needed to receive sealed copies back before he could do so.
In summary, therefore, looking forward to the position that would present itself to the Full Court in nearly two weeks’ time, the matter, prima facie, is ready to proceed. The appeal books have been filed by the appellant and cross-appellants, summaries of argument have been provided, although I presume there is no response yet filed to either of those documents. The matter is as close to being ready as it is ever likely to be given the difficulties attending it. The delay in filing of the appeal books and the summary of argument is not likely to have caused great inconvenience to the Full Court and the delay has not caused significant prejudice to Ms Probert given the limited part she intends to play.
As I have said today, my options are: to determine Mr Probert’s application for reinstatement today in the absence of the cross-appellants who have been unable to be reached by telephone; adjourn the application and hear it on Monday (noting the cross-appellants will still be overseas); or adjourn the application for determination by the Full Court.
Given that the Full Court hearing has to proceed regardless in order to hear the cross-appeal, I have determined that the better course is to allow the Full Court to determine whether the appeal is to be reinstated since there is, as I understand it, aside from responding submissions, no other documents needing to be filed. The cross-appellants will therefore need to proceed on the understanding that it is possible that the Full Court will allow Mr Probert’s appeal to be heard.
The other matter that needs to be put on the record is that Mr Probert has not been successful in obtaining transcript. I have explained to him today the difficulty he potentially faces in having the appeal heard without transcript. He draws attention to the fact that the cross-appellants have obtained some transcript, which he tells me is in their appeal books; however, I understand this may not be a complete transcript and presumably relates only to the cross-appeal. I simply repeat to Mr Probert that ordinarily an appeal faces great difficulties when there is no transcript, although he assures me that his appeal can proceed without transcript and I am in no position to disagree with him.
As I have stated, the only documents which are yet to be filed are responding submissions which, according to the Registrar’s directions, were to be filed at least seven days before the first day of the sittings in which the appeal and cross‑appeal are listed for hearing. As time is running short, I propose to extend the time for filing of those submissions to allow each party further time to consider what the other party has had to say in their summary of argument and to file such response as they see as being appropriate. As 24 September 2018 is a public holiday, I will give the parties until 10 am on 25 September 2018 to file responding submissions, which will allow the judges of the Full Court at least a little time in which to consider any responses prior to the hearing.
I will adjourn the question of costs to the Full Court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 14 September 2018.

Associate:

Date: 18 September 2018