Reece and Reece

[2008] FamCAFC 56

FAMILY COURT OF AUSTRALIA

REECE & REECE [2008] FamCAFC 56

FAMILY LAW - APPEAL - APPEAL FROM DECISION OF FEDERAL MAGISTRATE - COSTS – application by applicant husband to adjourn proceedings – adjournment granted – order for costs to respondent wife.

Family Law Act 1975 (Cth)

APPLICANT: Mr Reece

RESPONDENT: Ms Reece

FILE NUMBER: ADM 1043 of 2006

APPEAL NUMBER: SA 100 of 2007

DATE DELIVERED: 14 March 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 14 March 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 4 October 2007

LOWER COURT MNC: [2007] FMCAfam 780

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Denise Rieniets & Associates

ORDERS

1. That the Notice of Appeal filed by the husband on 18 December 2007 be adjourned for mention to 10:00am on 27 March 2008.

2. That the appellant husband pay the sum of ONE THOUSAND AND FIFTY DOLLARS [$1,050.00] by way of costs to the respondent wife’s solicitors on behalf of the wife, such sum to be paid by 4:00pm on 26 March 2008.

3. That the document headed ‘Amended grounds of Appeal’ filed in the Southern Regional Appeal Registry on 11 March 2008 be uplifted from the file and returned to the appellant husband forthwith.

IT IS NOTED that publication of this judgment under the pseudonym Reece & Reece is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADM 1043 of 2006
APPEAL NUMBER: SA 100 of 2007

MR REECE

Applicant

And

MRS REECE

Respondent

EX TEMPORE REASONS

1. This case first came before me on 4 February 2008, when I adjourned it to give the applicant an opportunity to obtain legal advice and for the respondent to file an application seeking an order for security for costs.  The case then came before me on 20 February 2008 when the applicant again sought a further adjournment, which was opposed, to enable him to still obtain legal advice. The case is back before me again today, and the applicant has obtained legal advice.  He has not been able to instruct lawyers to appear for him, but the advice he obtained was as to the amendments required to his Notice of Appeal to put it into some sort of order. 

2. What he has done is to send to the Southern Regional Appeal Registry a document described as Amended Grounds of Appeal, and which he tells me was prepared for him by the solicitors that he instructed.  However, I do not understand why this document was accepted in Melbourne because it is not in the correct form.  What is required is an Amended Notice of Appeal, not just a document amending the grounds of appeal.  Thus, I propose to uplift this document and return it to the applicant.  The other comment I make about it is that the Amended Grounds of Appeal in this document include what should be in a separate application, namely an application to lead further evidence.       

3. I made some remarks about the value of the advice that the applicant tells me he has received.  I am not going to repeat that, but it concerns me that if he is right, solicitors who practise in this jurisdiction have provided him with incorrect advice, and have prepared this document, which does not comply with the Rules, and which is completely inadequate.  The difficulty I have now is that it is not the applicant’s fault.  He has sought the advice, he thought he had got it right, and he came here today to progress the matter.  Frankly, if he had done nothing, I would have been disposed to dismiss his Notice of Appeal, as is again the application quite properly made by the respondent.  However, to repeat, the applicant has made the attempt to get it right, and it is not his fault that it has not been successful. 

4. He now applies for a further adjournment, which I propose to grant over the objections of the respondent.  I repeat though, that if I do not have before me on the next occasion a properly Amended Notice of Appeal I will be proceeding with this matter on the Notice of Appeal filed on 18 December 2007.  I will receive any application from the respondent about that Notice of Appeal that the respondent may be disposed to make and I will set sufficient time aside to deal with that.

5. What I propose to do is to adjourn the matter for mention for a couple of weeks to see what the applicant has been able to do in terms of legal representation and having an Amended Notice of Appeal prepared.  I will not say anything more about that.  On that basis Mr McGinn makes an application for costs and he asks me to deal with the previous applications for costs that his client has made. 

6. I am satisfied that there are circumstances which justify an order for costs, although it does not appear prima facie to be the fault of the applicant that the matter has to be adjourned again.  The onus though is on him to ensure that he has a properly Amended Notice of Appeal before the Court, and that simply has not happened.  That is not the respondent's fault.  She has had to instruct her legal representatives to appear today and address the state of play that is presented by the applicant.  That is totally unsatisfactory.  That has been the case on the previous occasions as well and I propose to make an order for costs.

I certify that the preceding
6 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 14^th day of March 2008.

……………………………………….
Associate