ROWELL & KEOGH - [2010] FamCAFC 209

FAMILY COURT OF AUSTRALIA

ROWELL & KEOGH

[2010] FamCAFC 209

FAMILY LAW - APPEAL – Parenting – Where the trial judge ordered the mother have sole parental responsibility for the child – Application for an adjournment – Where it was submitted that the trial judge failed to afford the father procedural fairness by refusing to grant an adjournment on the first day of the hearing – Where the father had his Legal Aid funding withdrawn four days prior to the hearing – Where the father was in the process of appealing the decision of Legal Aid – Where the father was incarcerated at the time of the hearing and had no legal representation – Where English was not the father’s first language.

FAMILY LAW - APPEAL – Not unusual for litigants to be self-represented – Reasons for judgment and the transcript of the proceedings only received during the course of the application for an adjournment proceedings – These documents necessary for the father to argue his grounds of appeal – Application for an adjournment resisted by the mother due to the extended history of the matter and the effect it would have on her – Due to the father’s failures there have been two applications to reinstate the appeal – Where the father was given the option to obtained audio recordings of the proceedings and where this was not done – Where the solicitors of the mother drew the father and the Court’s attention to the deficiencies in the appeal material prior to the hearing – Where the Independent Children’s Lawyer adopted a neutral position in relation to the adjournment – Where the Independent Children’s Lawyer was “surprised” the adjournment was refused by the trial judge – Where it is necessary for a proper hearing of this appeal for there to be an adjournment – Provisions made for filing of further evidence – Adjournment granted.

FAMILY LAW - APPEAL – Where the Court’s ability to determine the appeal within a period of less than two months was influential – Where the mother may be ultimately disadvantaged should the application for an adjournment be refused and a special leave application be made to the High Court – Where a more “robust” approach will be taken in the future – Adjournment granted.

FAMILY LAW - APPEAL – Where the interests of justice require an adjournment – Where there was uncertainty in regards to the father’s pro bono representation – Where the issue of the missing material was not brought to a satisfactory conclusion prior to the appeal being heard – Adjournment granted.

FAMILY LAW - COSTS – In the circumstances of the case costs are reserved.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Rowell

RESPONDENT:

Ms Keogh

INDEPENDENT CHILDREN’S LAWYER:

Red Leaf Family Lawyers

FILE NUMBER:

SYC

447

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

15 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Murphy JJ

HEARING DATE:

15 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 May 2009

LOWER COURT MNC:

[2009] FMCAfam 395

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:

A W M Dickinson & Son

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Carr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Redleaf Family Lawyers

Orders

That the appeal be adjourned for hearing on 12 November 2010.
That the appellant file and serve all material he intends to rely upon by 4pm 20 October 2010.
That the respondent and Independent Children’s Lawyer file and serve any further material they intend to rely upon by 4pm 4 November 2010.
That costs be reserved.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 69 of 2009
File Number: SYC 447 of 2008

Mr Rowell

Appellant

And

Ms Keogh

Respondent

REASONS FOR JUDGMENT

May J

This is an appeal by the father from orders made by Federal Magistrate Orchiston on 1 May 2009. The grounds of appeal are five in number, and among those the father complains that the Federal Magistrate failed to afford him procedural fairness, by refusing to grant an adjournment on the first day of the hearing. This morning the father appears before us and asks for an adjournment of the appeal.
It seems that there are three principle reasons why he asks for the adjournment. The first is that he, for some time had legal aid, and perhaps, more recently had a lawyer who acted for him. A letter dated 30 August 2010, was sent to him from Legal Aid NSW, with the heading “Your Appeal to the Legal Aid Review Committee”. This letter stated:
We have received your appeal in the above matter.
A Legal Aid NSW officer has now carefully considered the appeal as required by section 34 of the Legal Aid Commission Act 1979. That officer agrees with the original decision made on your application for legal aid for the reasons set out in the original refusal letter. Therefore the original decision remains unchanged.
Your appeal will be forwarded to the Legal Aid Review Committee.
The Legal Aid Review Committee is a voluntary advisory committee independent of Legal Aid NSW. An appeal usually takes four to six weeks. The Legal Aid Review Committee will advise you and your solicitor directly of its decision on the appeal.
Thus it is obvious that, although it might be thought that the prospects are somewhat limited, the father, who is the appellant, may obtain some legal assistance.
The orders made by the Federal Magistrate included that the mother have sole parental responsibility for the child, O Keogh, born August 2007; that the child live with the mother; and that there be no contact between the father and the child, save and except that the father and his family be at liberty to send cards and gifts to the child on the child’s birthday and at Christmas, such items are to be sent to a post office box address. Thus, it can be seen that the effect of the order is a very serious one, both for the child and for the father.
As mentioned, the father is unrepresented today, and he submits that he would have difficultly representing himself for a range of reasons. It is not at all unusual that litigants in this court, including in the appeal division, appear for themselves.
I should add that it is rather unclear when the father sought to appeal the Legal Aid decision, and when he ceased to have the assistance of a lawyer, who has provided for the benefit of the court, the submissions on behalf of the applicant dated 29 December 2009. However, it is accepted that he has no legal representation for today’s proceedings.
Perhaps one of the greatest difficulties for the father in arguing this appeal today, especially about what might be perceived to be one of the more likely grounds of appeal, is that, in refusing the application for an adjournment, the Federal Magistrate gave reasons on 2 February 2009. For whatever reason, this document has only been able to be obtained today, together with the transcript of 2 February 2009. It is obviously necessary for Mr Rowell to have both the reasons for judgment, and the transcript, to enable him to argue those grounds of appeal.
I should say that the respondent mother, represented by Ms Rees of senior counsel, unsurprisingly, resists an application for an adjournment for a range of reasons, not the least of them being the history of the matter, and the substantial effect on the mother - who we understand is in a somewhat “fragile position” - as was described in the report which the Federal Magistrate had from Dr W. Neither of those matters are ignored.
A very good description of the history of the matter is contained in the affidavit filed by the solicitor for the mother on 20 April 2010. That affidavit was filed to support an application which asked that the appeal, as amended, be dismissed. The reason for that application was, in part, one of the difficulties that this court is presented with today, and that is the failure of the father to attend to a number of matters, including those to which I have referred relating to the events on 2 February 2009.
As Ms Rees was quite rightly insistent on us understanding the history of the matter, it can be said that due to the father’s failures, there have been two applications on his part to reinstate the appeal. On 30 September 2009, and on 29 January 2010, orders were made to reinstate the appeal, together with orders providing a further timetable for the filing of material.
It was submitted that the father failed to comply with those directions, and we were taken to various parts of Boland J’s judgment, in particular at page 77 and the orders that were made. It was said that this demonstrated that the father should have taken action well before now to attend to providing the court with the transcripts. It is difficult to entirely understand these matters, as I have already said, particularly in relation to when he was represented. But it is said by the father today that he did, as asked by Boland J, obtain a CD recording and gave it to his solicitor.
A letter was written by the solicitors for the mother to the court on 10 October 2009, complaining about these various omissions, and asking that the matter be listed for further directions. After receiving a letter from the court, the solicitor corresponded with the father, asking that a supplementary appeal book be filed. So, it can certainly be said that notice of these difficulties, and the complaint that the mother might have had, was given to the father.
Appeals are often heard in this court where appellants appear for themselves, and on some occasions are heard in the absence of a transcript. However, in this case it is at least my view, that the absence, until at least this morning, of the reasons for judgment of 2 February 2009, and the transcript of the same date, make it extremely difficult for the father, who represents himself, to provide us with any coherent argument.
The Independent Children’s Lawyer told us that she does not consent or oppose the adjournment, and mentioned that it would not create any difficulty for the child, because of the orders that are in existence. It seems that a similar position was taken by the Independent Children’s Lawyer at the trial, which might be described as a neutral one.
As to their position in relation to the appeal, it seems that it could fairly be said, the Independent Children’s Lawyer is of the view that there is some argument that the adjournment should have been granted by the Federal Magistrate. As said by her, they were “surprised” that the adjournment was not allowed.
In the summary of argument filed on 22 March 2010, the Independent Children’s Lawyer sets out five matters to which it is said we should pay attention in considering on the appeal itself, apart from this application for an adjournment. They are these:
(i)he was incarcerated at the time of the hearing for an alleged breach of an AVO. He arrived handcuffed and in prison clothing;
(ii) he had no legal representation;
(iii)four working days before the hearing, he was notified by Legal Aid that his funding for legal representation at the hearing was withdrawn; given the short notice and given his incarceration, he had little opportunity to obtain legal representation;
(iv)he alleged that he had appealed Legal Aid’s decision, by way of a hand-written letter to Legal Aid. During the hearing of the adjournment application inquiries were made, but no letter was found at Legal Aid. Given the short notice of withdrawal of funding by Legal Aid, the letter may not have arrived. In other words, an appeal may have been pending;
(v)English was not his first language.
We understand that it is uncontroversial that it was only four days before the hearing that the father was notified by Legal Aid that his funding was withdrawn.
In my view, as unfortunate as it obviously is, it is necessary for a proper hearing of this appeal for there to be an adjournment. It may well be that the father will never obtain legal representation, in which case, obviously enough, the appeal will be heard on the next occasion. However, the father does need to - as do the other parties - absorb the reasons for judgment provided on 2 February 2009, together with the transcript of proceedings. In my view, it is necessary for the father, to provide some further material, to have a proper hearing of this matter, and in particular, the appeal that relates to the refusal by the Federal Magistrate to not grant an adjournment of the trial.
So, appreciating entirely what was said by Ms Rees, in my view the appeal should be adjourned for a very short time to allow the father to see whether he can obtain legal representation, and secondly, to see if there is any further material that should be provided now that we have the material of 2 February 2009.

Coleman J

With the greatest of reluctance, and for the reasons Justice May has given, I too, would adjourn the hearing of the appeal, and make the orders proposed by her Honour.
In so concluding, the ability of the court to determine the appeal within a period of less than two months is influential, given the time the matter has been occupying the parties and the courts. Also influential in my thinking is a concern that, for the reasons Justice May has given, to adopt a more robust approach, or a seemingly more robust approach and force the appeal on today may only ultimately disadvantage the respondent mother, in that the matters which persuade us that there should be adjournment may well, if we ignored them, be matters in which the High Court, if approached, found some interest. It being not in doubt that if the appeal were determined and dismissed, the father’s only avenue of further address would be by special leave application.
On balance, realistically, as much out of concern for the position of the mother as for the father, I would accordingly do as Justice May proposes.

Murphy J

I, too, respectfully agree with the orders proposed by Justice May and her Honour’s reasons, and the reasons given by the learned presiding judge.
For my part, the procedural history of this appeal might, at first blush, make an adjournment of this appeal appear unmeritorious.
I record that I am acutely aware of the difficulties suffered by the mother outlined at some length by the Federal Magistrate. Further delay is hardly likely to assist her, let alone the additional financial burden which she will now bear.
Unfortunately, I also agree that the interests of justice require this appeal be adjourned. In that respect, I respectfully agree with each of the reasons by Justice May and the presiding judge.
I am particularly persuaded by, and give significant weight to, two matters in ultimately concluding that the balance of the interests of justice favours an adjournment.
First, is what might be described as the ambivalent or uncertain state, at least as far as the father was concerned, of his apparently pro bono representation which resulted in him, perhaps understandably, relying on others to do that which he ought otherwise have done for himself.
Secondly, consequent upon the solicitors for the mother, quite properly, raising the issue of gaps in the appeal record, the documents forming exhibit F to the affidavit of the mother’s solicitor, Mr D, do not evidence that issue being brought to a satisfactory conclusion prior to the appeal being heard. I am not satisfied that this hiatus should be visited upon the respondent father.
For those reasons, in addition to those set out by my learned colleagues, I agree in the orders proposed.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Murphy JJ) delivered on 15 September 2010.

Associate:

Date: 27 October 2010