SCVG & KLD & Anor
[2016] FamCAFC 50
•8 April 2016
FAMILY COURT OF AUSTRALIA
| SCVG & KLD AND ANOR | [2016] FamCAFC 50 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to further amend grounds of appeal – Rule 22.09 of the Family Law Rules 2004 (Cth) – Where the appeal books and summary of arguments have been filed – Where each respondent would suffer prejudice having to address new grounds of appeal – Where the appellant is self-represented – Where prejudice may be remedied by a costs order – Application allowed. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adjourn the substantive appeal hearing and “un-consolidate” the hearing of both appeals – Where there are two appeals and one is not a substantive appeal – Where the appeal books and summary of arguments have been filed – Where the appellant seeks the adjournment to obtain legal representation – Where the appellant wants the appeals heard separately because of medical issues and absence of legal representation – Where no evidence is provided of efforts to obtain legal representation and where the appellant has been able to manage many litigious matters over a number of years – Where the date for the appeals to be heard was agreed by the parties before the primary judge and where specific stay orders were made conditional upon that date – Where each respondent would suffer substantial prejudice – Where vacating dates would unnecessarily waste court resources – Applications refused. FAMILY LAW – COSTS – Where the first respondent seeks the issue of costs to be reserved to the Full Court hearings – Where the second respondent seeks costs in circumstances of the appellant’s conduct and where two applications were wholly unsuccessful – Where the appellant resists any order for costs – Where there was no evidence before the court of the parties financial circumstances – Where it is appropriate to reserve the issue of costs to the Full Court. |
| Family Law Act 1975 (Cth) Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | SCVG |
| FIRST RESPONDENT: | KLD |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 2044 | of | 2013 |
| SYC | 4380 | of | 2008 |
| APPEAL NUMBER: | EA | 75 | of | 2015 |
| EA | 156 | of | 2015 |
| DATE DELIVERED: | 8 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 April 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 April 2015 |
| 20 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 1073 |
| [2015] FamCA 687 |
REPRESENTATION
| FOR THE APPELLANT: | Mr SCVG (in person) |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Tonkin (via telephone) |
| SOLICITOR FOR THE FIRST RESPONDENT: | McPhillamy’s Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE SECOND RESPONDENT: | Sparke Helmore Lawyers |
Orders
The application of the appellant filed 14 December 2015 is allowed.
The appellant has leave to file and serve the Further Amended Notice of Appeal as attached to his affidavit filed 14 December 2015 in Appeal EA75 of 2015 on or before 4.00 pm Friday 8 April 2016.
The appellant file and serve an Amended Summary of Argument on or before 4.00 pm Friday 29 April 2016.
The first and second respondents to the appeal EA75 of 2015 be at liberty to file and serve a further summary of argument in response to that of the appellant on or before 4.00 pm Friday 13 May 2016.
The applications of the appellant filed 9 March 2016 and 1 April 2016 are dismissed.
The costs of the first and second respondents in relation to the three applications filed by the appellant on 14 December 2015, 9 March 2016 and 1 April 2016 be reserved to the Full Court hearing the appeals.
IT IS DIRECTED:
That EA75 of 2015 be heard at 10.00 am and EA156 of 2015 be heard at 2.15 pm on 27 May 2016 or at such other time as may be directed by the Full Court.
IT IS NOTED:
That appeals EA75 of 2015 and EA156 of 2015 are to be heard on 27 May 2016 but are not consolidated.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA75 of 2014 and EA156 of 2015
File Number: SYC 2044 of 2013 and SYC4380 of 2008
| Mr SCVG |
Applicant
And
| Ms KLD |
First Respondent
And
Child Support Registrar
Second Respondent
REASONS FOR JUDGMENT
By two Applications in an Appeal filed 14 December 2015 and 9 March 2016 respectively, Mr SCVG (“the appellant”) seeks an extension of time to file a Further Amended Notice of Appeal and to also vacate the date for the appeal hearing set down for 27 May 2016. This appeal relates to orders of Judge Scarlett in the Federal Circuit Court of Australia made on 30 April 2015 in relation to child support (“the child support appeal”).
The appellant also filed a Notice of Appeal on 15 September 2015 against cost orders of Cronin J made on 20 August 2015 (“the costs appeal”). The Appeals Registry advised the appellant that the costs appeal has also been set down for hearing on 27 May 2016, the same date as the child support appeal. By an Application in an Appeal filed 1 April 2016, the appellant opposes the child support appeal and the costs appeal being listed together, and also seeks an extension of the stay order of Le Poer Trench J made on 19 February 2016 and a restraint on the Child Support Registrar in enforcement proceedings. It was explained that the Full Court could not interfere with the orders of Le Poer Trench J in the absence of an appeal being filed.
Background and Reasons of the Primary Judge
The appellant and Ms KLD (“the first respondent”) have two children together. The parties married in 2001 and separated just over three years later, they have litigated ever since. For the purposes of these reasons, the focus will be on the two matters now the subject of appeals.
The child support appeal
Various child support assessments had been determined for the period from 1 January 2006 to 31 December 2012. On 19 March 2012 the appellant applied to the Child Support Registrar for a departure from these assessments on the following grounds:
6.…
a)The costs of spending time or communicating with the children exceeded five per cent of his adjusted taxable income;
b)He had provided money, goods or property for the benefit of the children;
c)The costs of caring for the children were more than five per cent of his adjusted taxable income; and
d)The various assessments did not accurately reflect the First Respondent’s income, property or financial resources.
On 11 May 2012 it was determined that the grounds had been established and the appellant’s annual rate of child support was set at $11,000 for the period 1 January to 14 July 2011, and then $6,000 from 15 July 2011 to 30 June 2013. From that determination the appellant appealed to the Federal Circuit Court of Australia.
After hearing the appeal, on 30 April 2015 Judge Scarlett made the following orders:
(1)The Amended Notice of Appeal filed on 29 October 2013 is dismissed.
(2)The decision of the Social Security Appeals Tribunal made on 7 March 2013 and posted on 20 March 2013 is affirmed.
(3)Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these Orders.
(4)Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
The costs appeal
After the hearing of the trial in relation to the parenting proceedings, on 20 August 2015 Cronin J made the following orders:
1.That the [appellant] pay 50 per cent of the costs of the [first respondent] on an indemnity bases at the rate set out in the costs agreement under which the [first respondent] had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.
2.That the said costs referred to in paragraph 1 be by agreement and failing agreement as assessed by a registrar.
Those costs orders arose out of contested proceedings relating to the parenting arrangements for the parties two children. The substantive orders were delivered on 27 February 2015, and Cronin J delivered the cost reasons and orders separately on 20 August 2015. The appellant filed an application for an extension of time to appeal from the substantive children orders, that application was dismissed.
The Application for leave to file a Further Amended Notice of Appeal
The appellant filed an Application to file a Further Amended Notice of Appeal on 14 December 2015.
The appellant’s summary of argument for the child support appeal was filed on 15 October 2015 and consequently leave to file a Further Amended Notice of Appeal is required by r 22.09 of the Family Law Rules 2004 (Cth) (“the Rules”). The first respondent and the Child Support Registrar filed their summary of arguments on 27 November 2015. The appeal is opposed by each of them as is the application to file a Further Amended Notice of Appeal.
The appellant’s Amended Notice of Appeal filed 1 June 2015 contains 10 grounds of appeal. These grounds, in summary, essentially argue that the primary judge was wrong to dismiss the appellant’s appeal against the findings of the Tribunal, with a number of grounds relating to purported errors of fact and a failure to take into account relevant evidence.
The proposed Further Amended Notice of Appeal contains 20 grounds of appeal. The new grounds of appeal argue that the primary judge erred by failing to find that the Tribunal had exercised improper power, raised issues of bias and prejudice, and further argued issues of jurisdiction and power.
The parties had previously filed their summary of arguments in relation to this appeal, and the appeal books have been prepared. No doubt to grant the appellant an extension of time to file a Further Amended Notice of Appeal will require further work from each of the respondents, a timely and costly exercise. For that reason, the application was opposed by both respondents.
The original orders appealed from were made 30 April 2015, and the Amended Notice of Appeal filed 1 June 2015. As the appellant’s summary of argument was filed on 15 October 2015, he is unable to further amend his grounds of appeal without leave.
While no further guidance is provided in the Family Law Act 1975 (Cth) or the Rules as to the principles or discretion applicable for such leave, reference is often made to the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-481. In that judgment, his Honour found that the central consideration is whether a grant or refusal of an extension of time would result in an injustice, by reference to the following factors:
·whether there was an adequate explanation for the delay;
·the proposed grounds of appeal having some merit; and
·that any prejudice to the respondents can be compensated by an order for costs.
In his affidavit filed 14 December 2015, the appellant argued that in his original Notice of Appeal he had reserved his right to amend the grounds of appeal and he was now relying upon that statement. Further, the appellant emphasises that he is dealing with a number of other appeals and legal matters, and the strain that has placed him under explains the delay in filing.
The appellant is a self-represented litigant, albeit experienced in this court. There is some explanation for the delay. In addition to the existing grounds, the amended grounds of appeal do raise serious issues. The further grounds, as drafted by the appellant raised some sophisticated arguments. While it is difficult to assess the merit of these grounds, ideally the appeal should be heard on the merits with every opportunity given to the appellant to argue the grounds.
However these factors must be balanced against the likely injustice to the first respondent and the Child Support Registrar, who may need to prepare an amended Summary of Argument to address the new grounds of appeal. It is possible that in the event the appeal is not successful, this prejudice could be remedied with a costs order. Notwithstanding the prejudice to each of these parties, the appellant should be given leave to file a Further Amended Notice of Appeal.
The appellant will be required to file the Further Amended Notice of Appeal on or before 4.00 pm Friday 8 April 2016. The appellant will be granted the indulgence of three weeks to prepare a supplementary summary of argument, which must be filed on or before 4.00 pm Friday 29 April 2016. The appellant requested at least six weeks to prepare a supplementary summary of argument, but this will not be granted. The appellant must have given consideration to the arguments when he drafted the Amended Notice of Appeal
Each of the respondents will then have liberty to file a further summary of argument on or before 4.00 pm Friday 13 May 2016, to which each respondent indicated they could prepare sufficiently by that time.
Application to adjourn hearing of the Appeals
The appellant’s Application in an Appeal filed 9 March 2015 seeks that the hearing dates for the child support appeal and costs appeal being 27 May 2016, be vacated. In his affidavit filed 9 March 2015, the appellant explains that he is attempting to engage lawyers and counsel to assist with these appeals and without their assistance he would be unable to prepare adequately. The appellant provided no evidence of these attempts. For example, there are no annexures referencing attempts to contact lawyers, seek legal aid or request assistance from the Bar Association of NSW. Nothing the appellant said in support of this application provided any basis for concluding that an adjournment would allow him the opportunity to be represented.
As previously explained, the appeal books for the child support appeal and the costs appeal are filed. The summaries of arguments have been filed, and the only remaining work is the burden placed upon each of the respondents to address the appellant’s Further Amended Notice of Appeal.
The listing date for appeals are set well in advance, and there are substantial delays experienced by litigants in attempting to have an appeal heard in a timely manner. The sheer number of matters heard by the Federal Circuit Court of Australia and the Family Court of Australia means that the number of appeals flowing to the Full Court is significant. This puts a considerable burden on court resources, and to vacate a hearing date for an appeal that is largely ready would cause a serious injustice to the parties, and also to other litigants who could have had their matter listed in their place.
In this case there are particular reasons why the dates should not be vacated. On 23 September 2015 the appellant filed an Application in a Case seeking an injunction to restrain the Child Support Registrar from continuing to seek unpaid child support amounts, and seeking that the matter be listed urgently. The matter was transferred from the Federal Circuit Court to the Family Court and the parties appeared before Le Poer Trench J.
On 19 February 2016 Le Poer Trench J made the following orders:
1.Between the date of this Order and 30 May 2016, or such further date as the Full Court or a Judge of the Appeal Division of the Family Court of Australia may order, the operation of the s 72A(2) notice issued pursuant to the power contained in the Child Support (Registration and Collection) Act 1988 (Cth), the Notice directed to the public officer Ernst and Young and dated 18 June 2015 is stayed upon the following conditions:
a.That [the appellant] do all things necessary on his part to ensure that Appeal Number EA75 of 2015 together with any other appeal which he has lodged and which the appeal registrar of this Court consolidates with appeal number EA75/2015 is ready to proceed to hearing on 27 May 2016.
b.That the appellant meet all his obligations under any child support assessment which may be operative between this date and 30 May 2016.
2.Should the appellant fail to comply with either of the two conditions above specified, the stay order made herein shall stand immediately discharged.
3.The Applications in a Case filed by the [appellant] on 23 September 2015 and 16 November 2015, as amended by the minute of order marked as Exhibit “A” today, are otherwise dismissed.
IT IS NOTED:
4.It is intended that the Order made herein will operate to prevent the collection of arrears of Child Support owed by the appellant as at the date hereof until 30 May 2016 (the Monday following the date expected for the hearing of the appellant’s appeal against the Orders of Judge Scarlett made 30 April 2015) or such further time as the Full Court of this Court or a Judge of the Appeal Division may order, and subject to the appellant meeting the conditions imposed in the Order.
A review of the transcript, annexed to the appellant’s affidavit filed 1 April 2016, reveals that there appeared to be a general consensus amongst the parties that an expedition of the hearing of the appeal would assist in determining the application for a stay before Le Poer Trench J (Transcript 16 February 2016, p 25 l 24). The parties, and in particular the appellant, did not object to the proposed date for the hearing of the appeal being 27 May 2016 (Transcript 16 February 2016, p 40 l 7). In fact, the appellant indicated in this hearing that the appeals were ready to proceed (Transcript 16 February 2016, p 37 l 43). In oral submissions in today’s hearing, the appellant said he would need an adjournment to the end of the year to properly prepare for the hearing of the appeals.
The substantial prejudice caused to the first respondent would be significant, who until the appeal is resolved, will have the sole burden of financially supporting the children. Additionally, the Child Support Registrar is a statutory body whose time and resources must not be wasted.
Further, the appellant has managed to file two Applications for Special Leave in the High Court of Australia on 16 March 2016 for appeals from two separate Family Court matters, which demonstrates that his lack of legal representation has not acted as a bar to his ability to continue to run matters on his own.
In these circumstances, the application to adjourn the hearing date of 27 May 2016 must be refused.
Application opposing listing appeals together
In the most recently filed application of the appellant, filed 1 April 2016, he opposes the consolidation of the hearing of the appeals. It was explained to the appellant during the hearing that the appeals had not been formally consolidated, and any language that may have been used by the Registry to that effect was incorrect.
In support of his application, the appellant describes the prejudice he would suffer if the appeals were consolidated or heard together. The appellant refers to a stroke he suffered in 2002 and the ongoing complications from that medical event. The appellant annexed to his affidavit excerpts from a medical report dated 28 January 2015 to support this position.
When regard is had to this medical report it is correct that the appellant suffers from some impairment, including diminished short-term memory function among other issues. However the medical report does go on to comment that there was “no impairment in [the appellant’s] capacity to instruct his defence team”. The fact remains that the appellant has been, since at least 2008, able to manage the carriage of his many legal proceedings and in the circumstances where the appeals can be listed in a manner that affords him a reasonable break; there is no reason to not hear both appeals on the same day.
Although there is no substantial connection between the two matters, the first respondent is concerned with both appeals. The second, an appeal against a costs order, could not be considered a complicated matter.
The appellant also refers to his inability to properly prepare because of other ongoing legal matters and his desire to retain legal representation. The appellant complains about the hearing before Le Poer Trench J on 19 February 2016, stating that his Honour himself stated he had no power to expedite or consolidate the hearing of the appeals. This is correct, and as the previous references to the transcript reveal, his Honour did not do this. The date of 27 May 2016 was chosen, seemingly with the consent or at least with no opposition of either of the parties, as a date for the stay order to appropriately operate.
The application opposing the listing of the appeals together must be refused. The Child Support Registrar requested that the appeal EA75 of 2015 be listed first on that day so they can then be excused without incurring further expense to the Commonwealth. Counsel for the first respondent agreed with this position.
costs
At the conclusion of the hearing of this application, I asked the parties for submissions on costs. Counsel for the first respondent asked that the issue of costs be reserved to the hearing of the child support and costs appeals on 27 May 2016. The appellant did not resist this submission.
The Child Support Registrar sought its costs in preparing for today’s hearing, in circumstances where regard must be had to the conduct of the appellant and the fact that two of his applications were wholly unsuccessful.
The appellant resisted any order for costs and asked that the other parties pay his own costs of today’s hearing. There was no evidence before me as to the parties’ current financial circumstances. It is not appropriate to determine at this stage the issue of costs, it being connected with the merits of the appeals. The costs of each application should be reserved for determination by the Full Court on 27 May 2016.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 8 April 2016.
Associate:
Date: 8 April 2016
0