Xuarez and O’Halloran & Anor (No 2)
[2013] FamCAFC 57
FAMILY COURT OF AUSTRALIA
| XUAREZ & O’HALLORAN AND ANOR (NO. 2) | [2013] FamCAFC 57 |
| FAMILY LAW – APPEAL – PROCEDURE – REVIEW OF REGIONAL APPEAL REGISTRAR’S ORDER – Application for review of Regional Appeal Registrar’s order – where the Family Law Rules 2004 (Cth) (“the Rules”) provide for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division – where the Rules do not specify the manner in which such a review is to occur – where review conducted as a hearing de novo. FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME TO FILE APPEAL BOOKS – where the appellant applies for an extension of the time within which to file his appeal books – where neither respondent opposes the application – where the appellant contends that he will be able to obtain the funds necessary to prepare the appeal books – whether the application should be granted – whether the respondent and/or Independent Children’s Lawyer would be prejudiced – where no prejudice alleged in circumstances where the application is not opposed – application granted subject to order deeming appeal abandoned if appellant fails to file appeal books by specified date. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Eckert & Eckert (2010) FLC 93-431 Harris & Caladine (1991) 172 CLR 84 |
| APPELLANT: | Mr Xuarez |
| FIRST RESPONDENT INDEPENDENT CHILDREN’S LAWYER: | Ms O’Halloran |
| SECOND RESPONDENT: | Ms Vitela |
File Number omitted to comply with s 121, Family Law Act 1975 (Cth)
| APPEAL NUMBER: | NA | 76 | of | 2012 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9 April 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2012 |
Lower Court MNC omitted to comply with s 121, Family Law Act 1975 (Cth)
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE FIRST RESPONDENT INDEPENDENT CHILDREN’S LAWYER : | M Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | S Firm |
Orders
Paragraph 3 of the Orders of Registrar Kane made on 25 February 2013 be varied such that the Appellant must file one copy of the Appeal Books, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, in the Brisbane Registry and deliver one copy of the appeal books to each Respondent, together with a copy of the certificate by 4:00pm, Friday 11 October 2013.
Paragraph 6 of the Orders of Registrar Kane made on 25 February 2013 be varied such that the Appellant must file and serve the Summary of Argument and List of Authorities upon which he wishes to rely by 4:00pm, Friday 8 November 2013.
In the event that the Appellant fails to comply with either or both of paragraphs 3 and 6 of the Orders of Registrar Kane made on 25 February 2013 by the times provided for in paragraphs 1 and 2 of these Orders, the Appellant’s appeal will be deemed abandoned without further order.
Paragraph 10 of the Orders of Registrar Kane made on 25 February 2013 be varied such that the costs therein referred to must be paid by the Appellant by 4:00pm, Friday 8 November 2013.
In the event that those costs are not paid in full by that date, the Appellant’s appeal will be deemed abandoned without further order.
Paragraph 7 of the Orders of Registrar Kane made on 25 February 2013 be varied such that the time for compliance is extended to 4:00pm, Friday 6 December 2013.
Paragraph 8 of the Orders of Registrar Kane made on 25 February 2013 be varied such that the time for compliance is extended to 4:00pm, Friday 6 December 2013.
Otherwise the Orders of Registrar Kane made on 25 February 2013 remain in full force and effect.
Paragraph 2 of the Orders of Justice May made on 15 February 2013 be varied to provide that the Appellant pay each Respondent’s costs of the application fixed in the sum of $1,320.00 plus GST by 4:00pm, Friday 8 November 2013.
In the event that those costs are not paid in full by that date, the Appellant’s appeal will be deemed abandoned without further order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & O’Halloran and Anor (No. 2) 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 BRISBANE |
Appeal Number: NA76 of 2012
File Number: …
| Mr Xuarez |
Applicant
And
Ms O’Halloran
First Respondent (Independent Children’s Lawyer)
| Ms Vitela |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Forrest J made orders and delivered reasons for judgment on 25 July 2012 in respect of an application by the Independent Children’s Lawyer relating to the father promulgating a website. The father appeals those orders.
The father filed a Notice of Appeal within time on 16 August 2012 and a draft index, again within time, on 5 September 2012. On 22 October 2012, that is about five months ago, procedural orders were made requiring, relevantly, preparation of the appeal books by February 2013. On 21 December the Appeals Registrar dismissed an application by the father that the Registrar, or the respondents, prepare the books. A central basis of the father’s application was his asserted financial incapacity.
The father reviewed the decision by the Appeals Registrar. That review was heard by May J who delivered reasons on 15 February 2013. It is appropriate, I think, to respectfully quote from her Honour’s reasons as they provide significant background to the application before me today, which is “to extend the time to file the appeal books for a period of some six months”.
The Rejection of the Appellant’s Earlier Review
Her Honour, in rejecting the father’s review of the Appeals Registrar’s decision, said as follows:
11.The Registrar identified, by reference to Mr [Xuarez’s] affidavit and written submissions, the three grounds on which he asserted that preparation of the appeal books would impose an exceptional hardship on him. First, financial inability. Second, being a lay person of non-English speaking background. Third, that the respondents are each in receipt of grants of legal aid and legally represented, and therefore have a greater responsibility and capacity to prepare the books.
12.In considering Mr [Xuarez’s] argument that he was financially unable to prepare the books, the Registrar noted that evidence of his financial position was “scant”:
In his affidavit he asserts that his only source of income is from a Disability Support Pension paid by Centrelink and annexes his pension concession card. In his submissions he states that the pension is a limited amount of money to cover basic needs or basic living expenses. He does not particularise either the income or his needs or expenses, nor his current property, resources or liabilities.
13.The Registrar had regard to the settled appeal book index and observed that most of the documents were not lengthy, save for one affidavit. She noted that Mr [Xuarez] had not provided evidence of any quotes for the likely costs of photocopying and binding, which was a relevant consideration to her decision when considering his financial means.
Shortly after those reasons were delivered the father, on 8 March 2013, filed a separate application. Whereas his first application sought orders that the Registrar, or the respondents, prepare the appeal books, his second application (made some three weeks or so after May J’s decision) sought orders in these terms:
That pursuant to rules 1.14 and 22.18-note 2 the time to file the appeal books be extended to any month and day of the year 2857 or until the appellant save the amount of $2000 being $1000 for the costs of photocopies of 3350 or more pages at $0.20 each, binding, postal service, on each respondent, filing, and other expenses and $1000 or more to obtain the three transcripts of proceedings of Colin James Forrest J (21/05/2012, 16/07/2012 and 25/07/2012) if prices are not increased due to the inflation (as stated in paragraphs 1, 2, 3, 4, 5 and 6 to the affidavit of Mr [Xuarez], sworn on 21 February 2013).
That the respondents pay the applicant’s costs of $1320 to this application and appearing on the hearing.
As I have earlier said, the issue of alleged financial incapacity was a central plank of the application brought before May J. Her Honour outlined in her reasons the father’s evidence of financial incapacity and records in the reasons:
30.In oral submissions Mr [Xuarez] said he is on the pension because he does not have a job. When asked about the Disability Support Pension entitlement, which I note appears to have commenced at least in 2004 by reference to the photocopy of the card, it was said he receives this because he has become sick from “all this rubbish”, referring to the Court proceedings.
31.The repeated thread of the applicant’s material and submissions is that the Rules provide for the Court or another party to bear the responsibility of preparing the appeal books if hardship is established. Mr [Xuarez] says it is established, on the basis of his $0.10 per fortnight leftover between income and expenses. In his submissions he repeatedly said he merely wishes to apply the Rules.
It should be mentioned by way of further background that her Honour also found:
53.As a consequence of dismissing Mr [Xuarez’s] application, the orders of the Registrar will remain in force. He is therefore required to prepare the reduced amount of three copies of the appeal books, and to file and serve them by 1 March 2013 (Order 5 made by Registrar Kane on 21 December 2012). As noted by the Appeals Registrar, the settled index comprises 31 documents, most of which are not lengthy.
54.I observe again that the orders of Registrar Kane made on 21 December 2012 reduce by more than half the volume of books to be prepared by the appellant and dispense with formal binding requirements, in his own appeal. These are generous concessions which respond to Mr [Xuarez’s] claims of hardship and assist him towards a hearing of his appeal on its merits, without offending the interests of the respondents. It is also a relevant consideration that he could apply to the Registrar to amend the appeal book index (under order 10 of the Registrar’s orders made 22 October 2012 which remains in force), which could reduce the volume of material to be prepared.
55.If Mr [Xuarez] fails to file the appeal books by 1 March 2013, or otherwise fails to successfully apply to the Registrar to extend the time to comply with Order 5, his appeal will be deemed abandoned pursuant to r 22.21.
The Appeals Registrar’s Reasons
It will have been observed that the father’s application was that he have more than 800 years in which to file the appeal books. Unsurprisingly, it might be thought, that application was dismissed by the Appeals Registrar. The Appeals Registrar records the following matters that are also relevant to this (de novo) hearing before me:
6.At the commencement of the hearing I gave the applicant as a self represented litigant the opportunity to propose an alternative extension of time sought should I determine that the extent of time sought – 834 years – was not reasonable. The applicant was not able to propose an alternative.
…
9.It appears from the applicant’s material that the reason he seeks 834 years to prepare his appeal books is his financial capacity. He asserts that the cost to him of preparing the appeal books would be $2,000 of which $1,000 relates to transcript and that he could only save $2.40 per year towards such costs.
10.The application before me relates only to the timeframe for preparation of the appeal books and not the provision of transcript. As previously stated at paragraph 11 of reasons for judgment dated 21 December 2012 ‘if the Appellant seeks provision of the transcript he may file an application in an appeal and affidavit in support which is listed before the Full Court to be heard with the appeal’.
11.I note that the application filed by the applicant refers to Rule 1.14 of the Family Law Rules 2004 (‘the Rules’) which permits a party to apply for an extension or shortening of time under the Rules or by a procedural order. I also have regard to Rule 1.04 which provides that the main purpose of the Rules ‘is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case’. (my emphasis added)
12.In my view the matters raised by the applicant have already been heard and determined in the proceedings relating to his application in an appeal filed 7 December 2012 ultimately determined on review by the Honourable Justice May on 15 February 2013. The determination was that the preparation of the reduced number of appeal books would not impose an exceptional hardship upon the applicant. I find that the application before me today seeks to relitigate those matters and therefore is without merit.
13.I further find that in seeking 834 years to prepare appeal books, the applicant has not demonstrated an intention to prosecute his appeal in a timely way or meet his responsibility to achieve the main purpose of the Rules under sub-rule 11.08(1) including (g) assisting the just, timely and cost-effective disposal of cases’.
(Emphasis in original).
Hearing De Novo
May J set out at [19] and [24] of her reasons the principles applicable to this review which is heard de novo. Her Honour refers specifically to an issue arising from rule 18.07 of the Family Law Rules 2004 and the absence from the Rules of specific provisions applicable to a review by this Court of a decision of an Appeals Registrar. Those principles do not need to be repeated. I respectfully agree with her Honour’s analysis.
It should be observed that the father refused to take the opportunity afforded by the Appeals Registrar to suggest an alternative timeframe to the period in excess of 800 years, which he proposed, for the preparation of the appeal books. For my part, the father’s application could have been, and perhaps should have been, seen as vexatious and bordering on contemptuous. Be that as it may, the father now, despite eschewing the earlier opportunity afforded to him by the Appeals Registrar, seeks a period of six months within which to prepare the appeal books. As I read the authorities, in particular, Harris & Caladine (1991) 172 CLR 84, and for example, Eckert & Eckert (2010) FLC 93-431 at 26, the father may raise now issues on a hearing de novo, that have not earlier been raised in the proceedings subject, of course, to the respondents being given an opportunity to respond.
The Current Circumstances and the Respondents’ Position
The circumstances of this case point strongly to the father being given no further opportunity to have time in which to provide the appeal books. For example, Ms O’Halloran, the Independent Children’s Lawyer, submits that this is the fourth application by the father within a five month period. Yet, bizarrely, as it seems to me, neither of the respondents opposes the application brought by the father. The central issue in proceedings of this kind is not permitting rules, and in particular, time limits to wreak an injustice. There would, in my view, be ample scope for the respondents, or either of them, to argue that no such injustice occurs in this case if the father was refused the leave which he seeks.
However, if injustice be the criteria, the position of the respondents, who are, after all, the persons likely to suffer prejudice in the relevant sense, must be an important consideration. Each say that they neither agree to nor oppose the application. The failure of the respondents to identify any potential prejudice resulting from the indulgence sought by the father is a centrally important and highly relevant matter in the Court granting the indulgence the father seeks by reference to the interests of justice.
In light of that, it is convenient to be less fulsome in a discussion of the evidence which might otherwise have needed to be traversed in more detail had the application by the father been opposed.
The Relevant Factors in This Case
In broad summary, the father offers little in support of his application save to repeat precisely the same financial circumstances which he has advanced on earlier applications including, in particular, the application before May J. Save for repeating those circumstances, his affidavit in support merely swears the issue, for example, at paragraphs 7 and 8 of his affidavit filed 25 March 2013.
In paragraph 6 of that affidavit, the father deposes:
The appeal books regarding to this matter contain thousands of pages. The costs for the photocopies is $0.20 per page plus other related expenses making it a considerable amount of money to be paid by the appellant with an income from a disability support pension paid by Centrelink, as confirmed in paragraph 4 to this affidavit.
That statement is false. The appeal index lists documents comprising a total of 527 pages and only 527 pages. As the Appeals Registrar makes abundantly clear in the reasons for decision the issue of the cost of the transcript is an entirely different matter and should be the subject of an application to the Full Court should the appeal proceed. There is no evidence, whatsoever, before this Court that there are “thousands of pages”. There is no evidence whatsoever before this Court of any “considerable amount of money” to be paid by the appellant.
May J made reference to the trial judge’s orders from which the father appeals at [42] of her reasons, and also at [43]. Her Honour also quotes the Notice of Appeal’s grounds. Her Honour concludes at [45] of the judgment:
Without proper argument it is appropriate only for me to note that it is not apparent how such an appeal ought succeed.
With that statement I respectfully agree.
Her Honour referred to Forrest J’s reasons. In particular it is to be noted that his Honour said:
1.The father and mother in this case have been locked in conflict since the end of their de facto relationship in 2005. There has been litigation between them about the parenting of their children over those several years and they have also been involved, in that time, in substantial litigation in State courts in respect of alleged domestic violence.
2.In addition, the father has been involved in much other litigation in the courts of Queensland. That involvement culminated in his being made subject to a prohibition order by a judge of the Supreme Court of Queensland pursuant to the Vexatious Proceedings Act 2005 (Qld). That prevents him from bringing any proceedings in a Court or Tribunal in the State of Queensland without the leave of a Judge of the Supreme Court of Queensland.
With great respect to May J, I can well understand (notwithstanding the absence of argument to which her Honour refers) why her Honour reached the conclusion she did about the prospects of success of the appeal. That is an important matter of the exercise of the discretion with respect to the indulgence sought by the father.
The conduct of parties in and about the litigation is a matter which can, and should, be taken into account in the exercise of the discretion. By reference to the earlier hearings which have taken place before the Appeals Registrar and also before May J it is in my view abundantly clear that both the nature of the earlier application and the evidence sought to support it is in almost identical terms to that which he now uses to support the instant application. The instant application is, in effect, a re-agitation of the issues earlier heard and determined.
The application brought in the terms in which it was, brought immediately consequent upon the orders of May J, in my view borders on contempt of court by Mr Xuarez. He was afforded the opportunity to reconsider his ridiculous position as contained in that application by the Appeals Registrar and he specifically eschewed it. Now, although he doesn’t depose to this, he effectively says that he has seen the error of his ways and seeks now six months in which to pay the relevant amounts of money required to complete the appeal books in accordance with the orders.
When asked by me why there was any utility to the making of such an order given what is deposed by him in the current affidavit and what has previously been deposed by him in previous affidavits the father indicated that he would “borrow or steal” the relevant money. When pushed to get a sensible answer through the interpreter who assisted him at court expense today, he indicated that he would borrow from friends and family in order to pay the requisite sums of money necessary to complete the appeal books.
That assertion has never before been deposed to by him, nor has he ever deposed to any capacity to borrow (or indeed any incapacity to borrow) so as to obtain the requisite funds to meet his obligations to prepare the appeal books. The evidence also does not reveal any attempts made by him to receive assistance in respect of the preparation of any documentation required for the appeal.
This application exists within a context. The Appeals Registrar noted specifically the provisions of rule 1.04 and the purposes of the rules which embrace the notion that proceedings will be conducted in a timely manner. The appeal rules also specifically evidence the restrictive nature of the relief if indulgences are to be granted in respect of appeals themselves.
Those specific Rules, including the relatively restricted timeframe within which Notices of Appeal must be filed and other steps taken to properly progress an appeal, together with the specific use of the expression “extreme hardship” as a means of alleviating at least some of the specific rigor of the rules is entirely consistent with a recognition that the preparation of appeals involves hardship for many, many people including the many, many litigants who represent themselves in appeals.
I cannot see that Mr Xuarez’s position is dramatically worse than any of those people with which the Court is well familiar. Evidence is contained at paragraph 6 of Mr Xuarez’s affidavit relating to his financial circumstances. Despite this being the third occasion on which he has attempted to do so, no real attempt to particularise the income and expenses and how they are broken up in the manner which might be required if financial circumstances was to be of itself a compelling circumstance in the exercise of discretion.
Notwithstanding this, I accept that on the face of the evidence before this Court, Mr Xuarez’s financial circumstances are very modest at best and that the financial circumstances involved in the preparation of the appeal books is a relevant consideration in respect of the exercise of the discretion.
Finally, what might be called the broader case management context is also an important context within which the discretion is exercised. Forrest J referred to, and it is otherwise obvious from the file, that there are protracted proceedings involving a child of which orders the subject of appeal comprise but a small part. There is plainly a need to bring to an end this part of the litigation. There needs to be finality in these proceedings as much as there needs to be finality of the other proceedings, including of course the proceedings in relation to the child themselves.
The combination of all of those circumstances will be seen to underpin the surprise expressed by the Court in relation to the attitude to the instant application by each of the respondents. All the more so it might be said because the orders by Forrest J relate to section 121 of the Family Law Act 1975 (Cth) (“the Act”) the breach of which strikes at the very heart of this Court’s process. In particular it strikes at this Court’s process insofar as the lives of children who should be left immune from the conflict of their parents is concerned. It is, to say the least, surprising that no opposition to the orders sought by the father are promulgated by either respondent.
However, as I have said, it is those respondents to whom questions about potential prejudice should be directed. No submissions are made about any prejudice suffered as a result of granting the father the indulgence sought.
In circumstances where he now says that he will obtain the necessary funds in order to comply with this obligation strictly under the amended orders made in accordance with his proposed new timetable, it seems to me that he should be given one, but only one, final chance to prepare the appeal books.
I have decided to grant the father the amount of time which he seeks, but I have made it perfectly plain to him that there will be no further time afforded. There will be no excuses accepted for his failure to comply with these orders. It has been explained in detail to him, through the interpreter provided yet again at court expense, that failure to comply with the obligations under the orders will result in the appeal being deemed abandoned without further application or order.
Further Terms of the Orders
In addition, the father has been ordered to pay costs on two separate occasions. The first of those occasions by the Appeals Registrar provided for that payment to occur within two months. May J also ordered the father to pay costs but did not specify a timeframe. In light of the assertions from the bar table by the father that he was seeking the assistance of family and friends so as to meet the necessary costs of preparing the appeal books I consider it appropriate in all the circumstances of the case that those same available sources of funds, which he has assured the Court today he will be able to obtain, should also be availed of in respect of paying the relevant costs.
He ought not be permitted an indulgence in circumstances where he has failed to pay costs associated with his conduct of the proceedings.
I have decided to vary the terms of each of those orders so as to make provision for the costs to be paid by not later than one month prior to the dates upon which he is otherwise to comply with the directions for the preparation of the books.
The orders will otherwise be made subject to the condition that if each and all of them are not complied with in full by the relevant dates and times, the appeal will as a result, be deemed abandoned. The appeal will be deemed abandoned because of the facts and circumstances to which I have already referred in these reasons which make reference to the nature and manner in which the father has conducted this appeal thus far.
Costs of This Application
The father seeks an order for costs in respect of this application. It might be said that he has been wholly successful in the application within the meaning of section 117(2)A of the Act. However, he comes to this Court seeking a yet further indulgence in circumstances when two earlier applications for indulgence have been unsuccessful. The reasons for his failure to comply have not been properly explained in the affidavit material.
Furthermore, the father provides no evidence which suggests that any costs are properly recoverable by him. The only exception to that might be that he alluded to having “paid friends” for some form of advice or assistance in the preparation of documents. If legal practitioners were employed so as to undertake each of those tasks then the Court would expect evidence from him about the payments to those legal practitioners and there is none. If amounts had been paid to persons other than legal practitioners for the purposes of getting legal advice or the undertaking of legal work then that may be unlawful and the Court would not countenance the recovery of any amounts of costs in that event.
The application for costs by the father is refused.
I will make the formal orders earlier referred to.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 April 2013.
Associate:
Date: 17 April 2013
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