Xuarez & O'Halloran & Anor
[2013] FamCAFC 13
•15 February 2013
FAMILY COURT OF AUSTRALIA
| XUAREZ & O’HALLORAN AND ANOR | [2013] FamCAFC 13 |
FAMILY LAW – APPEAL – PROCEDURE – Application for review of Regional Appeals Registrar’s order – Where the Family Law Rules provide for review of a Regional Appeal Registrar’s order by a judge of the appeal division – Where the Rules do not contain any particular provision about the power or conduct of the Court in such review – Review conducted on basis of a hearing de novo – Where the Court takes into account material before the Registrar, together with any further evidence filed by the parties.
FAMILY LAW – APPEAL – APPLICATION FOR PREPARATION OF APPEAL BOOKS – Where the appellant applies for orders that the Regional Appeals Registrar or the respondents prepare the appeal books – Where the applicant asserts that preparation would impose exceptional hardship on him, by reason of his financial circumstances – Where the applicant’s financial position is not exceptional and the preparation of the appeal books would not visit exceptional hardship on him – Where the applicant also asserts that preparation by the respondents would not impose exceptional hardship on them, because they are funded by Legal Aid – Where the applicant misconstrued the Rule as to the power of the Court to order the Registrar or a respondent to prepare the appeal books – Where in any event, to require either respondent or the Court to prepare the appeal books would be an unreasonable burden in the circumstances of this case – Where having regard to the Notice of Appeal, the orders and the reasons for judgment it is not apparent how the appeal ought succeed – Where the Regional Appeal Registrar’s order provides the applicant generous concessions in appeal book preparation obligations to assist him towards a hearing of his appeal on its merits – application dismissed.
| Family Law Act 1975 (Cth) s 121 Family Law Rules 2004 rr 22.18(2), 22.21, 22.40 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bele & Vaughan (No.2) [2012] FamCAFC 125 Bemert & Swallow (2010) FLC 93-441 Burnett and Green [2008] FamCAFC 160 Harris v Caladine (1991) 172 CLR 84 Marin & Salmon [2012] FamCAFC 157 Oakley & Cooper [2008] FamCAFC 129 Wellington & Child Support Registrar [2012] FamCAFC 34 |
| APPLICANT: | Mr Xuarez |
| FIRST RESPONDENT | Ms O’Halloran (Independent Children’s Lawyer) |
| 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: | 15 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 12 February 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE 1st RESPONDENT | M Firm |
| SOLICITOR FOR THE 2nd RESPONDENT | Ms S |
Orders
The application in an appeal filed 7 November 2012 be dismissed.
The applicant pay each respondent’s costs of the application fixed in the sum of $1,320.00 plus GST.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & O’Halloran 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 BRISBANE |
Appeal Number: NA 76 of 2012
File Number: …
| Mr Xuarez |
Applicant
And
Ms O’Halloran
First Respondent (Independent Children’s Lawyer)
| Ms Vitela |
Second Respondent
REASONS FOR JUDGMENT
This application filed on 3 January 2013 seeks to review an order made by Regional Appeals Registrar Kane on 21 December 2012. That order dismissed an application of Mr Xuarez (the appellant father) filed on 7 November 2012 seeking that the Regional Appeals Registrar, or the respondents, prepare the appeal books pursuant to rule 22.18(2) of the Family Law Rules 2004
(“the Rules”).
The Registrar dismissed the application on the basis that his evidence did not establish he had no capacity to meet the costs of preparing his appeal books. The Registrar considered it appropriate in the circumstances that the number of copies to be prepared by Mr Xuarez be limited to one copy to be delivered to the Court and one to each of the respondents. The Registrar also removed the requirement for formal binding of the books, and extended the time for preparation by four weeks, in order to enable him more time to save or obtain sufficient funds. Accordingly, the Registrar made orders that the appellant file one copy and serve two copies (on the first respondent Independent Children’s Lawyer and second respondent mother) of the appeal books by Friday
1 March 2013.
Mr Xuarez seeks that the Registrar’s order be set aside, that the respondents and/or the Registrar prepare the appeal books, and that the respondents pay his costs of the application.
Pursuant to rule 22.21, Mr Xuarez’s appeal will be deemed abandoned if he fails to file the appeal books by the due date.
The appeal is against an injunction and other orders made by Forrest J on
25 July 2012, in relation to a breach by Mr Xuarez of s 121 of the Family Law Act 1975 (Cth) (“the Act”).
The applicant filed a notice of appeal in time on 16 August 2012, and the draft appeal index in time on 5 September 2012. Procedural orders were subsequently made by the Regional Appeals Registrar on 22 October 2012.
Mr Xuarez filed the application regarding preparation of the appeal books on
7 November 2012 and the matter was heard on 17 December 2012, with reasons for the decision delivered on 21 December 2012.
Reasons of the Registrar
As will be explained, the application is to be heard de novo. It is therefore unnecessary for Mr Xuarez to demonstrate error on the part of the Registrar. Nonetheless, it is instructive to understand the Registrar’s reasons for the decision to dismiss the application.
The Registrar provided detailed reasons, first setting out the procedural history of the appeal and the particulars of Mr Xuarez’s application before her.
The Registrar then set out the material relied on by the parties. This included the application and supporting affidavit filed 7 November 2012, and responses from both respondents opposing the applications (filed by the mother on
5 December 2012 and the Independent Children’s Lawyer on
10 December 2012). The Registrar referred also to additional material in the appeal file, including procedural orders made by her on 22 October 2012, the draft index filed 5 September 2012, and the documents contained in the settled appeal index attached to the orders made 22 October 2012.
Correctly, the Registrar identified and set out the provisions of r 22.18, which confers on the Registrar the power to order a respondent or the Registrar to prepare the appeal books, if satisfied that preparation by the appellant would impose exceptional hardship on them. The rule provides:
Preparation of appeal books
(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
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.
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.
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.
The Registrar concluded, on the basis of the limited evidence put before her, that she was not satisfied Mr Xuarez had no capacity to meet the costs of preparing the books. Referring to the reduced responsibility for preparation which she would order in his favour, the Registrar concluded that she was not satisfied that preparation would impose an exceptional hardship.
The Registrar then considered the evidence and submissions in relation to
Mr Xuarez’s non-English speaking background. She concluded she was not satisfied that he had demonstrated that by this reason the preparation of the appeal books would impose exceptional hardship on him.
As to the significance of the responsibility and capacity of the respondents to prepare the appeal books, the Registrar considered Mr Xuarez’s evidence and submissions, and correctly determined that his argument misconstrued the rule. The correct position is that only if the Court is satisfied that it would impose exceptional hardship on the appellant should it then consider the possibility of the Registrar or a respondent being ordered to prepare the books.
The Registrar explained that in any event she was not persuaded the applicant had demonstrated a reason why the “public purse” should meet his responsibilities in his appeal and when he had not been granted legal aid.
As mentioned, the Registrar made orders allowing additional time in which to prepare the appeal books, reduced the quantity of appeal books required to be prepared and dispensed with formal binding requirements. The Independent Children’s Lawyer and mother both agreed to receive only one copy of the books. It is obvious enough that the additional copies required to hear the appeal will already be at a cost to the Court.
Nature of an appeal from Registrar’s Order – r 22.40
Rule 22.40 provides for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division:
A party may apply for a review of a Regional Appeal Registrar's order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
Chapter 18 of the Rules provides for the powers of Registrars. Part 18.2 deals with review of decisions made by Registrars. Rule 18.07 however, expressly states that Part 18.2 does not apply to an application for review of an order made by an Appeal Registrar. The Rules do not contain any particular provision about the power or conduct of the Court in the review of an Appeal Registrar’s order.
Reviews of orders made by Appeal Registrars by single judges of this Court are conducted on the basis of a hearing de novo, see for example Strickland J in Bele & Vaughan (No.2) [2012] FamCAFC 125 at paragraph 44, and May J in Wellington & Child Support Registrar [2012] FamCAFC 34 at paragraph 25.
The rationale for proceeding to hear an application for review of a Registrar’s exercise of power as a hearing de novo, rather than as an appeal requiring the establishment of error, is a cautionary choice. The reasons of Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 are instructive in this regard (at page 95):
It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second obligation is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review of appeal by a judge or judges of the court on questions of both fact and law, we consider that delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.
(emphasis added)
In separate reasons, agreeing with Mason CJ and Dean J, Dawson J described the nature of a review conducted as a de novo hearing, compared to an appeal (at pages 125-126):
For where the function of exercising a discretion is delegated by a court, as it may be delegated to a Registrar, the exercise of the delegated discretion cannot confined the exercise of the same discretion by the person in whom it is primarily reposed: Evans v Bartlam; Blundell v. Rimmer; and C.M. Van Stillevoldt B.V. v. E.L. Carriers Inc.. Upon a hearing by way of review of the decision of a Registrar the court is exercising its own discretion. There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance. In that event the appeal court must, before interfering, be persuaded that the judge was in error in the exercise of the discretion, either by acting upon wrong principles, mistaking the facts, or by taking into account irrelevant considerations or failing to take into account relevant considerations: House v. The King; Norbis v Norbis…
(footnotes omitted)
In considering this matter, in a review the Court does take into account the material before the Registrar, together with any further evidence filed by the parties.
Evidence and Submissions of the Appellant Applicant
Mr Xuarez filed an affidavit in support of his application in the appeal on
3 January 2013. He appeared before me in person and, on his request, was provided at the Court’s expense with a Spanish interpreter through whom he made submissions.
In his affidavit, Mr Xuarez sets out the reasons and evidence which he says establish that preparation of the appeal books would impose an exceptional hardship on him. There are two apparent bases: that his financial circumstances are such that preparation would impose exceptional hardship, and that the respondents being funded from the “public purse” means their being ordered to prepare the appeal books would not impose exceptional hardship on them.
Relevant to his financial circumstances, Annexure A to Mr Xuarez’s affidavit is copy of his “Pensioner Concession Card”. The card contains the letters “DSP”, which I take to mean Disability Support Pension.
Annexure B is an “Income Statement” dated 2 January 2013, which sets out the various payments received from Centrelink:
Payment Type Amount
Disability Support Pension $712.00
Pension Supplement $60.60
Rent Assistance $121.00
FACS Pensioner Education Supplement $62.40
[Total fortnightly payment: $956.00]
In the body of the affidavit Mr Xuarez sets out his fortnightly income and expenses as follows:
6.1Disability Support Pension – Fortnightly paid by Centrelink, less Deductions: $848.10
Disability Support Pension: $712.00+
Pension Supplement: $60.60+
Rent Assistance: $121.00Deductions:
QLD Dept Housing – Bond $15.50
ST Vincent De Paul Society $30.00=
Qld-NAB-NILS Program
TOTAL INCOME LESS DEDUCTIONS $848.106.2 Fortnightly expenses: $848.00
Rent $221 per week: $442.00 Fortnightly
Food: $250.00
Bills: $65.00
(electricity, Telephone, Internet, Mobile Phone)
Medications: $25.00
Transport: $40.00
Miscellaneous: $26.00
6.3Total amount left from Income less expenses: $0.10 Fortnightly
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.
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.
The applicant did not adduce any evidence or make any submissions about his request that the respondents prepare the appeal books, other than asserting that because they are legally aided (confirmed by them at the hearing), so ordering would not cause exceptional hardship.
Meaning of “Exceptional Hardship”
It is a rare occasion that this Court will exercise the power to relieve an appellant of the obligation to prepare their own appeal books. It should be noted that the Rule confers a power, not an obligation, to make an order. Furthermore this power can only be exercised if the Court is first satisfied of exceptional hardship to the appellant.
Indeed many litigants in this Court could demonstrate hardship, by virtue of their financial or other circumstances. However the financial and human resources cost to the Court or a respondent of preparing appeal books, in the place of an appellant, can be very significant. For good reasons therefore, the threshold required by the Rule is exceptional, not hardship generally.
There is no prescribed definition or test of “exceptional hardship”. It is instructive therefore, to have regard to cases in which its meaning has been considered for the purpose of applications under r 22.18.
In Marin & Salmon [2012] FamCAFC 157, the appellant applied for the Registrar to prepare the appeal books and the matter was directly listed before me. The appellant raised as grounds of exceptional hardship, financial hardship, and ongoing chronic health conditions. Detailed financial and medical evidence was filed by the appellant in these regards.
In that case, the substantive order from which the appellant appealed concerned the appointment of a litigation guardian for her in both parenting and property proceedings. The issues and order the subject of the appeal were therefore very serious in nature. The first instance proceedings, which included the need for orders about the children, had been stayed by the trial judge pending the determination of the appeal, and it was clear that the appeal could not be heard without appeal books.
I considered, in the circumstances of that case, that the appellant’s position was exceptional and to require her to prepare the appeal books would impose exceptional hardship on her. I noted in particular the severity of the orders appealed and the dire financial circumstances of the appellant, though these are not determinative factors. It was also of considerable importance to the other parties that the appeal be heard.
In some cases, where appellants seek to transfer the responsibility of preparing appeal books, that application has been granted not on the basis of extreme hardship, but rather where assistance has been voluntarily offered by an Independent Children’s Lawyer appearing in the appeal (see for example Oakley & Cooper [2008] FamCAFC 129). Such an offer, understandably, is not made in this case.
It is well settled in appellate courts that appeals should, insofar as possible, be heard on their merits. In this Court, the Rules can be interpreted in a manner which permits this to occur, notwithstanding non-compliance with procedural requirements (see statements of Finn J with whom May and Boland JJ agreed, in Burnett and Green [2008] FamCAFC 160 at [18] and [20]).
Without entering into a detailed consideration of the prospects of success in
Mr Xuarez’s appeal, by reference to his notice of appeal, the order of the trial judge and his Honour’s reasons, it is not apparent that there are any substantial grounds to be argued. It need hardly be said that if an appeal is considered unmeritorious, then that would be a proper consideration in deciding whether other parties should prepare the appeal books.
The orders of the trial judge the subject of the appeal are as follows:
(1)That the father forthwith remove from the website … [domain name omitted] all references to these proceedings … [file number omitted], including but not limited to all references to the mother’s name, the father’s name, the names and any details of the single experts Mr N and Dr R, the names, photographs and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the mother and/or the father in parenting proceedings pursuant to the Family Law Act 1975 (“the Act”), the name and any details of the Independent Children’s Lawyer and the firm for which she works and the barristers who represent, or who have represented, her in these proceedings, and all references to judicial officers of this Court or the Federal Magistrates Court in respect of decisions or determinations they are said to have made or not made.
(2)That within 21(twenty-one) days of the date hereof each of the parties to these proceedings serve on each of the other parties a list of documents to which the duty of disclosure applies pursuant to Rule 13.07 of the Family Law Rules 2004.
IT IS DIRECTED THAT
(3)The Marshall of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Act revealed by the material specified in paragraph 5 of these Orders is investigated fully and, if appropriate, thereafter prosecuted.
IT IS RESPECTFULLY REQUESTED THAT
(4)The Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by s 121 of the Act in respect of proceedings involving the children, L born … 1995, C born … 1998, D born … 2000 and B born … 2003, has been committed by the father as revealed by, or indicated in, the documents authorised to be published by paragraph 5 of these Orders.
The relevant parts of the reasons of the trial judges are in paragraphs 1 to 11, and 24:
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.
3.In respect of the parenting dispute between the mother and the father, final parenting orders were made in the Federal Magistrates Court in Brisbane on 24 August 2007. Those orders provided for four of the couple’s six children who remained under the age of 18 and, thereby, subject to Family Law Act parenting orders jurisdiction, to live with the mother and spend certain time with the father.
4.However, by a fresh Initiating Application filed on 21 December 2010 in the Federal Magistrates Court, the father seeks to have those existing parenting orders “vacated” and replaced by some new ones. Although the father described that substantive application as one of seeking to enforce the existing parenting orders, it is clear from the Initiating Application that he seeks fresh substantive parenting orders on a final basis.
5.The substantive parenting proceedings have progressed to the point where, by early this year, the Independent Children’s Lawyer (“ICL”) had obtained single expert reports from a psychiatrist, Dr R, and a family report writer, Mr N. At the hearing before me, the Court was informed by the father that the family report writer had made a recommendation that the children spend no time with the father at all. At the same time, Counsel for the ICL informed me that Dr R’s report included a statement of the doctor’s opinion that neither parent suffered from a diagnosed psychiatric disorder.
6.Shortly after those expert reports were prepared, the substantive proceedings were transferred by a Federal Magistrate to this Court and the matter was awaiting case management towards trial when the ICL filed the Application in a Case currently being determined.
7.The evidence supports a finding that the father has become very unhappy and disillusioned with the lawyers who have acted for him and the mother in the various matters being litigated, as well as with the ICL in these parenting proceedings. He even appears very unhappy with the judicial officers who have been determining the various matters he has been involved in over the years. His unhappiness has led to the creation of an internet website. That website publishes under the domain name “…”. [domain name omitted]
8.On that website one finds clear identifying details of the domestic violence proceedings between the couple and also these current substantive Family Court proceedings. One also finds the names of the parties as well as the names and, in some cases, photographs of the various lawyers and single experts who have been involved in the proceedings in recent years. Those identifying details are published under the heading “[list of corrupt legal professionals].”
9.At around the time the psychiatrist’s report was filed in these proceedings, the father wrote to the ICL, drawing her attention to the website. The published content of that website as at 3 April 2012 is in evidence before me as exhibit C to the affidavit of the ICL filed 4 April 2012.
10.After viewing the content of the website, the ICL wrote to the father asking him to remove what she described as “the objectionable content” from the website. The father responded unequivocally. He stated firmly that he would “NOT remove the content from [his] website”. He actually used the words “my website” in his correspondence to the ICL.
11.The ICL then applied to the Court for injunctions directed against the father, aimed at having him remove that content and preventing him from publishing it again. The father responded to that application with several of his own interim applications.
…
24.At the hearing of these applications on 21 May and 16 July the father represented himself and was assisted by an interpreter whose attendance had been arranged through this Court’s administration. The father sometimes spoke in English though. In addition, the affidavit evidence he relied upon was all in English and bore the notation that it had been prepared by the father himself and had no notation of having been translated or interpreted. I was satisfied that the father did demonstrate that he had a reasonably good command of English, both in comprehension and expression. I was satisfied that the father understood all that was happening and being said, including all the questions that were put to him and the other parties from the bench.
The notice of appeal lists the following as grounds:
1.Bias/Apprehended Bias on the Part of Justice Colin James Forrest;
2.His Honour Orders and Decisions are contrary to the:
(i)Family Law Act 1975;
(ii)Family Law Rules 2004;
(iii)Right to a Fair Hearing; and
(iv)Whistleblowers Protection Act 1994 (Qld).
Without proper argument it is appropriate only for me to note that it is not apparent how such an appeal ought succeed.
Positions of the Respondents
The first respondent Ms O’Halloran, the Independent Children’s Lawyer in the first instance proceedings, handed up brief submissions at the hearing of the application. She opposed the application for review on the basis that Mr Xuarez had failed to establish any error in the Registrar’s order and reasons which would justify the making of different orders. For the reasons which I have outlined above, this is a hearing de novo and as such Mr Xuarez need not establish error on the part of the Registrar.
Ms O’Halloran relied on her amended response and affidavit, filed on
10 December 2012 before the Registrar. In that affidavit it is explained that the Legal Aid grant for the appeal would not extend to the costs of preparing appeal books. It was further said that the applicant had failed to established any grounds for a finding of exceptional hardship, but that the Independent Child’s Lawyer would accept a single copy of the appeal books to assist the appellant in reducing his costs in relation to preparation.
The second respondent, the mother, also opposed the application for review. She relied on her response and affidavit filed before the Registrar on
5 December 2012. In the affidavit sworn by her, the mother deposes that she would be unable to prepare the books as she has no comprehension of what is required, and would be unable to obtain Legal Aid funding to fund preparation by her lawyer, as she is not the appellant.
To require either the Independent Children’s Lawyer or the mother to prepare the appeal books would, in their position as respondents funded in the appeal by taxpayer funds, be an unreasonable burden. Even if I were satisfied of exceptional hardship to the appellant, I would not order that either the respondent mother or the respondent Independent Children’s Lawyer prepare the appeal books.
Conclusion
It is necessary to appreciate the purposes of the Rules as set out in Chapter 1, and the principles of Court case management which have been considered by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. An extensive discussion of case management authorities and the wide discretion of the Court to decide procedural applications by reference to the specific circumstances of cases and parties was given by the Full Court in Bemert & Swallow (2010) FLC 93-441.
On the basis of the evidence adduced and the submissions by the applicant, I am not satisfied that the preparation of the appeal books would visit exceptional hardship on the appellant. His financial position, as a pensioner with virtually no residual income, is not exceptional and is indeed a common position for many litigants in this Court.
The provisions of r 22.18(2) clearly require the Court to be satisfied of exceptional hardship to the appellant, before the power to order a respondent or a Registrar to prepare the appeal books may be exercised. In any event, there is no demonstrated capacity of the respondents to prepare the appeal books. In the circumstances of this case, the Court and its staff should not be burdened with the preparation.
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.
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.
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.
Costs
In their respective filed responses, both respondents sought that Mr Xuarez pay their costs of the application before the Registrar. Registrar Kane made an order that the costs of that application be reserved to the Full Court. Accordingly, I can make no order as to the costs of that application.
In the application before me, both respondents sought costs fixed in the sum of $1,320.00 being the sum of the Legal Aid grant to prepare the response to the application for review.
Mr Xuarez said that the respondents ought pay his costs.
Section 117 of the Act provides that parties shall bear their own costs, subject to subsection 2. I consider there are circumstances pursuant to s 117(2) which justify an order that the applicant pay the respondents’ costs of the application. Those considerations are that the respondent mother and Independent Children’s Lawyer are funded by Legal Aid (s 117(2A)(b)), that no proper grounds for seeking that the Court or the respondents prepare the appeal books were demonstrated and that the application has been wholly unsuccessful
(s 117(2A)(e)).
The applicant will be ordered to pay each respondent’s cost, fixed in the sum of $1,320.00 plus GST.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 February 2013.
Associate:
Date: 15 February 2013
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