REDMOND & STOLZ - [2015] FamCAFC 109

FAMILY COURT OF AUSTRALIA

REDMOND & STOLZ

[2015] FamCAFC 109

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks leave to file an application for adjournment of the appeal proceedings – Basis for application his mental health, desire to obtain legal advice and transcript of proceedings before primary judge – Where the father’s application in an appeal is filed out of time – Where the Full Court was especially convened for the urgent hearing of the matter – If the appeal were to be adjourned the father may take action under s 65ZB of the Family Law Act 1975 (Cth) to frustrate the orders allowing the mother to travel with the child – Where the appellant is unable to demonstrate prejudice if he is required to argue the appeal without written submissions – Leave to file application granted – Application in an appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Redmond

RESPONDENT:	Ms Stolz
INDEPENDENT CHILDREN’S LAWYER:	Patrick Dooley
FILE NUMBER:	BRC	4493	of	2011

APPEAL NUMBER:

2015

DATE DELIVERED::

12 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy and Kent JJ

HEARING DATE:

12 June 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 May 2015

LOWER COURT MNC:

[2015] FamCA 367

REPRESENTATION

FOR THE APPELLANT:	In person
FOR THE RESPONDENT:	In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Dooley Solicitors

Orders

The appellant father have leave to file an application in an appeal and an affidavit in support of that application.
The respondent mother have leave to file an affidavit in response to the application in an appeal.
The application in an appeal be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 35 of 2015
File Number: BRC 4493 of 2011

Mr Redmond

Appellant

And

Ms Stolz

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

kent j

Today, at the outset of the hearing of his appeal, we granted the appellant leave to file an Application in an Appeal seeking, inter alia, an adjournment of the hearing of his appeal and orders for filing summaries of argument and the like upon a timetable expiring on 30 September 2015, almost four months hence. In other words, the appellant seeks an adjournment such that his appeal would not be heard for many months.
For the record, we provided the appellant with a transcript of the proceedings below and gave him an opportunity to read that transcript and, if necessary, to ask for further time to digest it for the purpose of this application. We also gave leave to the mother to file an affidavit in response to the appellant’s Application in an Appeal.
The Application in an Appeal is made outside the time limit that was prescribed by procedural orders made by the Appeals Registrar on 29 May 2015 which required, by order (11), that any such application be filed by 4 June 2015.
Each of the respondents, including the publicly funded Independent Children’s Lawyer (“the ICL”), oppose the application in circumstances including that, absent any timely notice of this application, they have each incurred the trouble and expense of themselves complying with the procedural orders referred to and have appeared today to respond to the appellant’s appeal.
It is also relevant to observe that this Full Court has been urgently and especially convened, at significant public expense, to entertain the hearing of the appellant’s appeal in circumstances where the appeal is against orders made on 19 May 2015 permitting the respondent mother and the subject child to embark on a two week holiday overseas on 21 June 2015, only nine days hence.
It follows that if the hearing of this appeal is adjourned it will not be heard prior to the departure referred to on 21 June 2015, only nine days away. It seems to me that in many respects the appeal would thus be rendered nugatory. The appellant’s application for a stay of the orders made on 19 May 2015 was refused and there is no appeal from that refusal.
Each of the respondents calls into question the appellant’s bona fides in applying for an adjournment of this appeal. Section 65X(2) of the Family Law Act 1975 (Cth) (“the Act”) provides:
For the purposes of this Subdivision, if an appeal against a decision of a court in proceedings has been instituted and is pending, the proceedings are taken to be pending and sections 65Z and 65ZB (rather than sections 65Y and 65ZA) apply.
The effect of s 65Z is to restrict a person, in pending proceedings, from taking the child concerned from Australia unless it is done with consent or in accordance with an order of the Court. The orders below were obviously directed to that restriction.
Section 65ZB casts obligations upon owners of aircraft and vessels. It enables a person to serve a declaration upon such an owner which then triggers a restriction on the owner permitting the child identified in the declaration to leave a port or place in Australia. Again, an exception to s 65ZB is provided in subsection (3) if the child leaves in accordance with an order of the Court made.
These provisions arose for discussion during the hearing of the proceedings below and I refer to the transcript of proceedings between page 36 line 20 to page 44. They are also directly relevant to what is deposed to by the respondent mother in an affidavit which we granted leave to her to file this morning. At paragraph 4 of that affidavit she deposes that:
During the procedural hearing, the [a]ppellant indicated to Registrar Kane his intention to seek an adjournment of the [a]ppeal. In response, Registrar Kane said words to the effect to the [a]ppellant that “the appeal has been allocated an urgent hearing date and if does not take place prior to 21 June 2015, then do you understand that the holiday will be going ahead.” The [a]ppellant said words to the effect in reply that “I do not agree that will be the case.”
If this appeal is adjourned there is nothing in his Honour’s orders to prevent the father from doing what s 65ZB envisages. The exchanges during the hearing below and the wife’s deposition as to what occurred at the procedural hearing pertain.
In my judgment, reference to those exchanges and that affidavit lays bare the appellant’s motives for seeking an adjournment of this appeal. If no order is made by this Court beyond an order adjourning the appeal, there is the potential for the appellant to rely upon the fact that his appeal is pending to frustrate the orders that have been made to permit the child’s travel, despite the failure of his application for a stay. He has not, for example, to this point been restrained from taking steps pursuant to s 65ZB and potentially could serve a declaration upon the relevant proposed carrier for the upcoming travel to frustrate the travel occurring.
Only as a result of repeated questioning from the Bench this morning did the father indicate before us this morning, for the first time, in unsworn statements from the bar table that he might consent to orders by us that prevented this as a condition of any adjournment. The efficacy of those orders would depend, however, on decisions and actions taken by people over whom the Court has no direct control. As has been pointed out by the respondent mother, the appellant has a previous history of consenting to orders only to subsequently seek to withdraw his consent, and reference was made specifically to the appeal decision delivered in one of the appellant’s appeals concerning these parties in August of last year where that had occurred.
To my mind it is particularly notable that in circumstances where the appellant filed a very recent Application in an Appeal and affidavit in support of it, he did not volunteer in any sense the consent he now suggests he would give to the orders. He did not in advance of this hearing and the exchanges between the Bench and him today indicate that he would not pursue in any way his appeal against the orders permitting travel.
The ordered travel is to take place only nine days hence. There must be a significant concern that the appellant is motivated to have this appeal still pending in order to frustrate the orders that have been made permitting the travel.
In his affidavit in support of his application for an adjournment the appellant asserts that he has applied for legal aid in relation to this appeal, that being one reason given for seeking an adjournment. However, his affidavit is silent as to when such application was made and more importantly offers no evidence to support the proposition that the appellant has any realistic prospects of obtaining legal aid. We note that legal aid is already funding the ICL charged to independently represent the child’s interests in these proceedings.
The appellant also refers to his health difficulties present since 28 February 2013. Whilst it can be accepted that indeed the appellant is and has suffered from those same difficulties since 28 February 2013, it is the fact that over the same period the appellant (a qualified lawyer) has instituted and prosecuted, on a self-represented basis, an extraordinary number of legal proceedings in this and other courts and tribunals, including appeals. The medical certificate of a general medical practitioner relied upon by the appellant is dated 13 May 2015 and does not address specifically the proposition that the appellant is somehow medically unfit to prosecute this appeal.
Finally, proper regard must be had to the relatively narrow compass of this appeal and, fundamentally, the competing interests of the respondents. Reference has already been made to the fact that the ICL is funded by the public purse. The respondent mother currently has ongoing responsibility for the subject child’s primary care and effectively has sole responsibility for the child’s financial support. The respondent mother is self-employed.
Whilst the appellant now suggests today for the first time that he is seeking to prosecute this appeal to pursue a challenge to the ICL’s continuing involvement in the matter, it is the fact that substantive parenting proceedings have been heard by Forrest J but are yet to be determined by orders made by Forrest J. The father has made it plain his intention to appeal those orders. Forrest J is currently reserved in delivering a decision with respect to the substantive parenting proceedings.
As it seems to me, it cannot be suggested that the appellant is somehow prejudiced in arguing today the relevant parts of his appeal concerning the discharge of the ICL, balancing all the competing considerations.
For these reasons I would refuse the application for an adjournment of the hearing of the appeal and the application in an appeal ought be dismissed.

murphy j

I agree that the application for an adjournment should be refused.
I agree with Kent J’s reasons and have nothing to add.

may j

I also agree that the application of the appellant for an adjournment should not be allowed and I would order that the application filed by leave this day be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Kent JJ) delivered on 12 June 2015.

Associate:

Date: 12 June 2015