Walmsley and Walmsley - [2011] FamCAFC 56

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY

[2011] FamCAFC 56

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to appeal – adjournment granted for the applicant to prepare proper documentation.

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

11 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

11 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 July & 19 November 2010

LOWER COURT MNC:

[2010] FamCA 680 &
[2010] FamCA 1034

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The Application in an Appeal filed on 17 December 2010 and the Application in an Appeal tendered today be adjourned for further consideration to 10:00am on Wednesday 23 February 2011.
In the event that Mr [Walmsley] determines to file further documentation, including, for example, a further affidavit and/or a further draft Notice of Appeal, such documentation is to be filed and served by the close of business on Friday 18 February 2011.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 94 of 2010
File Number: ADC 728 of 2008

Mr Walmsley

Applicant

And

Ms Walmsley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an Application in an Appeal dated 9 February 2011. It is an application which has not formally been filed, but that is not an issue, indeed, I permitted that to occur, given the timeframes that I had set when the matter was last before me on 28 January 2011.
On that date I had before me an Application in an Appeal filed by the husband on 17 December 2010, in which he, in effect, sought an extension of time to file and serve a Notice of Appeal against orders made by Dawe J on 19 November 2010. There was an affidavit filed by Mr Walmsley, in support of that application. As I say, that was before me on 28 January.
I do not intend to repeat all that I said on 28 January. I delivered some ex tempore remarks, but the long and the short of it is that, on the documents that Mr Walmsley had filed, the matter simply could not proceed, and indeed, all things being equal, it was not only unable to proceed, but it should have been dismissed. However, Mr Walmsley applied for an adjournment. He told me that he was obtaining legal advice, and he would shortly thereafter be in a position to file the appropriate documents in relation to this matter. Over the understandable objections by the respondent, I determined to give Mr Walmsley another opportunity to file appropriate documents so that his application for an extension of time could proceed.
I indicated though that I was only disposed to grant the adjournment on the basis that when the matter was next before me there would be the appropriate and relevant documentation, and the matter could be heard and determined at that time. I specifically indicated to Mr Walmsley that I was not granting the adjournment on the basis of him coming on the adjourned hearing and saying, for example, that he now knows what he is going to do, and he needs further time.
What I am confronted with today is Mr Walmsley, who firstly strolled in late, alleging that he thought the hearing was to commence at 10:15am, whereas, in fact, the adjourned time was quite clearly set as 10:00am. And what Mr Walmsley has presented to the Court is an Application in an Appeal, as I have identified just a moment ago, and a draft Notice of Appeal. He says he sent them, by email, to the respondent earlier this week, and he posted hard copies of the documents to her, and she received them yesterday.
Although the Application in an Appeal appears to address, accurately now, the two orders that the husband needs to ultimately challenge, namely orders made on 29 July 2010 and 19 November 2010, there is no further affidavit. As I pointed out to Mr Walmsley on 28 January, one of the major difficulties with his documentation at that time was that there was absolutely nothing in the affidavit in support of the application which explains why Mr Walmsley did not file a Notice of Appeal within time. Yet here we are, and Mr Walmsley has not filed any further affidavit. Thus I still only have that earlier affidavit, and there is still no factual material before me to explain the delay. And indeed, there is a further need for another affidavit, given that Mr Walmsley is now looking to appeal against an earlier order made by Dawe J on 29 July 2010.
Pausing there, that should lead to a dismissal of the application, but I need to make comment about the draft Notice of Appeal. Mr Walmsley tells me he has seen four lawyers, and he has obtained advice, presumably from those four lawyers, but what he has presented is a draft Notice of Appeal where he seeks leave to appeal. He has gone into a great deal of detail about certain paragraphs of Dawe J’s reasons for judgment, and in summary what he is putting is that in relation to Dawe Js findings in those paragraphs, he says he has evidence that he can present to this Court which shows those findings are wrong.
As I said to Mr Walmsley, he needs to get some advice about what an appeal is about, because that certainly is not how an appeal would run. In any event, Mr Walmsley has, in this draft Notice of Appeal, set out what could loosely be described as grounds of appeal, which gives some flavour of the complaint that he wishes to pursue against the orders of 19 November 2010 and 29 July 2010.
Nevertheless, bearing in mind what happened on 28 January 2011, and my remarks on that day, and my adjournment of the matter to today, and my reasons for it, both applications – indeed, the other application is still, theoretically, before me – should be dismissed, and that is what Ms Walmsley, the respondent, seeks.
Mr Walmsley, though, seeks a further adjournment. He says he now has a lawyer who will give him some assistance, and he guarantees and undertakes that if he has more time, he will have the correct documents prepared, and this matter can proceed. That is opposed by the respondent.
In the circumstances, I propose to give Mr Walmsley a final opportunity, and I stress, final, to place before the Court proper documentation, which will enable his application for an extension of time to be heard and determined.
I do so reluctantly. I do so bearing in mind the prejudice that that will cause to Ms Walmsley in having to come back to court on another occasion, but it is a matter of balancing the respective positions of the parties. I propose to give Mr Walmsley seven days to file the further documentation. I am not going to direct what he has to file, he knows well enough what is needed, and he will stand or fall on what he files. Those documents that he determines to file in the seven days, must be filed and served within that time, and that does not mean, for example, on the seventh day filing the documents and posting them to Ms Walmsley. It means filing them and serving, so that they are in Ms Walmsley’s hands at the end of the seven day period, just as much as those documents are in the Court’s hands.
Then I propose to list this matter for determination on 23 February 2011.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 11 February 2011.

Legal Associate:

Date: 23 February 2011