RONDALOE & RONDALOE - [2015] FamCAFC 137

FAMILY COURT OF AUSTRALIA

RONDALOE & RONDALOE

[2015] FamCAFC 137

FAMILY LAW – APPEAL – STAY OR ADJOURN HEARING – Where the husband has not complied with the orders for the filing of documents to enable the appeal to proceed – Where the husband seeks an order that the hearing of the appeal be stayed or adjourned – Where the wife opposes the application and seeks that the appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the husband says that mental and physical health difficulties have prevented him from complying with orders – Where this is the first time that the husband raised any issue with regard to his mental or physical health – Where the husband has put no evidence before the court from his doctor or treating psychologist to confirm or otherwise his health difficulties – Where the husband says he is looking for legal representation but is unable to borrow funds because of a caveat the wife has placed on his property to secure the payment of a judgment debt – Where no financial information has been presented by the husband to substantiate this claim – Where the husband has had ample time to obtain legal representation – Substituted regime put in place for the filing of documents to prepare the appeal for hearing – Matter adjourned for further consideration – Costs reserved.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) – r 22.45

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPELLANT:

Mr Rondaloe

RESPONDENT:

Ms Rondaloe

FILE NUMBER:

ADC

1076

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

6 July 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

6 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 November 2014

LOWER COURT MNC:

[2014] FCCA 2533

REPRESENTATION

THE APPELLANT:	In person
COUNSEL FOR THE RESPONDENT:	Mr Richards

SOLICITOR FOR THE RESPONDENT:

Harry Alevizos
Barrister & Solicitor

Orders

The application filed by the husband on 30 June 2015 be dismissed.
The time for the husband to obtain those parts of the transcript of the hearing before Judge Cole relied upon for the appeal and provide copies of those transcripts to the Court and to the Respondent be extended to the close of business on Friday 7 August 2015.
The time for the husband to file and serve a summary of argument and list of authorities, if any, be extended to the close of business on Friday 7 August 2015.
The time for the husband to file and serve any application to lead further evidence and any material in support thereof be extended to the close of business on Friday 7 August 2015.
There be a further directions hearing before the Honourable Justice Strickland commencing at 9:00am on Tuesday 11 August 2015.
The costs of today’s proceedings be reserved.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 91 of 2014
File Number: ADC 1076 of 2012

Mr Rondaloe

Appellant

And

Ms Rondaloe

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal filed by the husband on 12 December 2014 against orders made by Judge Cole on 14 November 2014.
On 8 January 2015 the husband filed the requisite draft appeal index in accordance with the Family Law Rules 2004 (Cth) (“the Rules”). It is unclear from the document whether that draft appeal index was filed by the husband’s then solicitors, but I note that his Notice of Appeal was filed under the hand of solicitors acting for him at that time. I also note that they were different solicitors from the solicitors who represented him before Judge Cole.
In any event the appeal first came before me on 7 April 2015, and that was intended to be the usual directions hearing to make orders to prepare and list the appeal for hearing.
Just prior to that directions hearing, the husband filed a Notice of Address for Service which indicated that he was no longer legally represented, and that he was appearing for himself. On 7 April 2015, that was what happened, namely the husband appeared without legal representation. As I noted at that time, the husband was clearly not ready for that hearing; he had not considered what was necessary for the directions hearing, or what was necessary to progress his appeal, and he sought an adjournment of two weeks. I explained to the husband what he was required to do and adjourned the directions hearing to 1 May 2015. I further note that at the hearing on 7 April 2015, the husband made no submission to me, nor presented any evidence, to indicate that he was suffering from either mental health difficulties, or physical health difficulties.
On 1 May 2015 the directions hearing proceeded. The husband appeared again without legal representation and I listed the appeal for hearing on 6 July 2015, and set up a regime for the filing of documents, including from the husband’s perspective obtaining the transcript, and filing and serving a summary of argument, and any application to lead further evidence. Those matters were to be attended to by the close of business on Friday 5 June 2015, namely a period of approximately five weeks. There were also the usual orders made for the wife to file documents in preparation for the hearing on 6 July 2015.
At the hearing on 1 May 2015, the husband again did not raise any difficulties with me with regard to his health, either mental or physical, which might impact on his ability to comply with the orders made on that day, or prevent the hearing taking place on 6 July 2015. I also have a memory of the husband telling me that he was intending to obtain legal representation and that he was hopeful of being represented at the hearing of the appeal.
The husband failed to comply with the orders made on 1 May 2015, and subsequently on 18 June 2015 he was advised in writing by the Appeal Registrar that as a result of that failure, his appeal would be listed today for dismissal pursuant to Rule 22.45 of the Rules.
Subsequent to that the husband on 30 June 2015 filed an Application in a Case, together with a supporting affidavit. In that application he sought that the appeal be stayed and/or adjourned until further order, and that the application be listed as a matter of priority. The application has been listed for hearing today.
The husband has appeared again today without legal representation, and Mr Richards appears for the wife. Mr Richards has opposed the application to either stay or adjourn the appeal, and has sought dismissal of the appeal pursuant to r 22.45 of the Rules.
Unfortunately, the affidavit in support of the application by the husband is completely inadequate. All it tells this court is this:
1.I am the Applicant in this Appeal, and I seek the Orders be made by the Honourbale [sic] Court.
2.I was previously legally represented and I advised my lawyers, and throughout my representation I advised my lawyer of my depression and back problems since in 2003.
3.I had provided my lawyer Georgina Parker with evidence of what I had to prove my back injury but I was dismissed by Ms Parker who was often late in dealing with matters.
4.I raised this again with my Barrister at the trial and he stated that there should have been evidence obtained by Ms Parker.
5.I have attended my Doctor as a result of the injury and the depression that I am feeling with the strain of the process and bad advice.
6.I have attached a prescription for sleeping pills and a referral to Dr [J] & Partners for an MRI.
7.I am in the process of obtaining my files from previous lawyers and I will be in a position to file an updated affidavit to attach the evidence that I say was given to my lawyer Ms Parker.
8.As the Respondent Wife has not had to pay for a response then the granting of the Application is not to her detriment.
I confirm that annexed to that affidavit was the prescription for the sleeping pills and the referral to Dr J & Partners for an MRI.
Today the husband has confirmed that his back problems have been longstanding since 2003. He also told me from the bar table that he has received the results of his MRI, he has spoken to his doctor about them, and his doctor has recommended that he attend a chiropractor.
In terms of his depression, the husband tells me today, again from the bar table, that he has commenced consulting a psychologist. He has seen that psychologist on two occasions already, namely 25 June 2015 and 29 June 2015, he is seeing him later today, and there are apparently seven consultations thereafter.
There is nothing before me from the psychologist, nor indeed from the husband’s doctor, to confirm or otherwise, any of that information. However, the husband told me today when I enquired of him whether he was seeking an indefinite adjournment, that he was not. He was seeking an adjournment of eight weeks to allow for his consultations with his psychologist to take place.
Significantly, I note that the husband consulted his doctor on 5 June 2015, namely the date that he was due to file his documents. Yet there was no application made by him then to extend the time for him to file the documents, or to adjourn the hearing. He did nothing whatsoever about that until 30 June 2015, and the inference is that he only saw fit to make the application once he had been advised by the Appeal Registrar that his failure to file documents had resulted in his appeal being listed today for dismissal.
In terms of the husband obtaining legal representation, he tells me that he is “looking” for a lawyer. He says he is unable to borrow money because there is a caveat on his property. I am told that that is a caveat placed on the property by the wife to secure the payment ordered by Judge Cole on 14 November 2014. However, these matters have all been put to me simply from the bar table by the husband, and there is no financial information that he has presented to confirm or otherwise his inability to obtain a lawyer. He has had of course since 27 March 2015 to obtain another lawyer, and that of course was when he filed a Notice of Address for Service indicating that he was representing himself. In my view the husband has had ample time to obtain a lawyer.
This is a busy Appeal Court, and in considering the husband’s application I have to take into account the fact that an adjournment would impact upon other cases listed. I need do no more than refer to the High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in relation to the matters that should be taken into account when considering an adjournment application such as this.
I am not prepared to stay or adjourn the appeal for a period of eight weeks. I consider that the husband has simply engaged in delaying tactics to date. However, I am prepared to give the husband one final opportunity to prepare his appeal for hearing, and I propose to put in place a substituted regime for the filing of the necessary documents. I will not list the appeal for hearing yet though, because that listing will be very dependent upon the husband complying with the orders that I propose to make.
I indicated previously that I was contemplating making a self-executing order if the husband did not comply with the orders that I am about to make, but I have decided against that. What I propose to do is, to repeat, give the husband one last chance to prepare the matter for hearing, and then have the matter back before the court. On that occasion if the husband has not complied with my orders, then I will be addressing the issue of dismissal of his appeal. If he has complied though, I will make any further orders necessary to prepare the appeal for hearing, and I will set a date for that hearing.

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 6 July 2015.

Associate:

Date: 16 July 2015