ZAWADZKI & ZAWADZKI

[2020] FamCAFC 14

FAMILY COURT OF AUSTRALIA

ZAWADZKI & ZAWADZKI [2020] FamCAFC 14

FAMILY LAW – APPEAL – NON-COMPLIANCE – Notice of non-compliance issued to the appellant – Where an appeal was listed before the Full Court for consideration of its dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant has not filed his Summary of Argument and List of Authorities within the time prescribed by the procedural orders – Where the appellant filed an application seeking to adjourn the appeal, extending the time for each of the parties’ Summary of Argument to be filed and adding a number of documents to the appeal book – Where the application is opposed by the respondent – Where the default is not that of the appellant but that of his counsel – Where the time for the appellant to file his Summary of Argument is extended – Where any orders permitting the appeal to go forward are conditional on the appellant’s Summary of Argument being filed within the prescribed time – Where if the appellant’s Summary of Argument is not filed in the time which has been extended by the orders, the appeal will stand dismissed – Where counsel for the appellant accepted that he should pay the respondent and Independent Children’s Lawyer’s costs of this application in fixed sums.

Family Law Rules 2004 (Cth) rr 22.45

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jess v Scott (1986) 12 FCR 187; [1986] FCA 473

APPELLANT: Mr F Zawadzki

RESPONDENT: Mr A Zawadzki

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 8417 of 2015

APPEAL NUMBER: NOA 89 of 2019

DATE DELIVERED: 23 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland (via telephone), Aldridge (via telephone) & Kent JJ

HEARING DATE: 23 January 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 September 2019

LOWER COURT MNC: [2019] FamCA 631

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Linklater-Steele

SOLICITOR FOR THE APPELLANT: Parker Family Law

COUNSEL FOR THE RESPONDENT: Mr Fisher – directly briefed

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

Orders

1. The respondent have leave to file and rely on the affidavit sworn on 22 January 2020 and to rely on the written submissions received by the Court on 23 January 2020.

2. The listing of this appeal for hearing on 7 February 2020 be vacated.

3. The time for the appellant to file and serve his Summary of Argument and List of Authorities be extended to 4.00 pm on 24 January 2020.

4. Conditional upon and subject to the appellant filing and serving his Summary of Argument for the appeal by 4.00 pm on 24 January 2020, the appeal be listed for hearing in the March 2020 sittings of the Full Court in Brisbane.

5. In the event that the appellant fails to file the Summary of Argument within the time as ordered, the appeal stand dismissed.

6. The appeal be listed for a procedural hearing before the Appeal Registrar at 3.00 pm on Tuesday, 28 January 2020 with the parties to appear by way of telephone.

7. Counsel for the appellant pay the respondent’s costs of and incidental to the application fixed in the sum of $2,750 including GST within 28 days of today by payment of that sum to counsel for the respondent.

8. Counsel for the appellant pay the Independent Children’s Lawyer’s costs of and incidental to the application fixed in the sum of $1,950 including GST within 28 days of today by payment of that sum to the trust account of the Independent Children’s Lawyer.

9. The proceedings in appeal no. NOA 120 of 2019, being the appeal from the orders made by Hogan J on 27 November 2019 with respect to the stay application, be listed for hearing on 7 February 2020.

10. For the purpose of procedural orders, appeal no. NOA 120 of 2019 also be listed at 3.00 pm on Tuesday, 28 January 2020 before the Appeal Registrar for the making of directions to prepare that appeal for hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Zawadzki & Zawadzki has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 89 of 2019
File Number: BRC 8417 of 2015

Mr F Zawadzki

Appellant

And

Mr A Zawadzki

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

1. This appeal has been listed before us today for consideration of its dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).

2. That rule provides that if a party has not complied with an order in relation to the appeal, the Court may dismiss the appeal (r 22.45(2)(a)(i) of the Rules). The Court is empowered to make such an order on its own initiative provided that at least 14 days written notice has been given to the parties as to the time and date that the Court will consider whether to make the order (r 22.45(3) of the Rules).

3. The appeal is listed for hearing on 7 February 2020.

4. On 6 September 2019, a judge of the Family Court of Australia made orders concerning the parenting arrangements for Mr A Zawadzki’s (“the respondent”) two children to live with Mr F Zawadzki (“the appellant”), who is the children’s elder brother and who is to have sole parental responsibility for them in relation to all major long term issues (apart from issues in relation to their names and changes in their living arrangements which would make it significantly more difficult for them to spend time with the respondent). Orders were also made for the children to spend unsupervised time with the respondent.

5. A Notice of Appeal was filed on 4 October 2019 which was followed by an Amended Notice of Appeal filed on 20 December 2019.

6. On 11 November 2019, an Appeal Registrar made a number of orders to prepare the appeal for hearing. Those orders required the appellant to prepare an electronic appeal book and to obtain a consolidated electronic transcript, both of which were to be filed by 4.00 pm on 13 December 2019. They were both filed on time. The electronic appeal book was filed on 13 December 2019 and the consolidated transcript was filed on 15 November 2019.

7. The appellant was further directed to file and serve his Summary of Argument and List of Authorities by 4.00 pm on 20 December 2019. That order was not complied with. Instead, shortly after 4.00 pm on 20 December 2019, the appellant sought an extension of the time in which to file his Summary of Argument until 24 December 2019. The appellant’s application for an extension of time could not be considered by the Court in Chambers because, although the Independent Children’s Lawyer consented to the extension of time, no consent had been given by the respondent.

8. No Summary of Argument was received on 24 December 2019 and none has yet been received. The effect of this, of course, is that the respondent to the appeal and the Independent Children’s Lawyer have not been able to prepare their Summary of Argument and Lists of Authorities, which were due respectively on 17 January 2020 and 28 January 2020.

9. On 30 December 2019, the Appeal Registrar wrote to the parties pointing out the above default by the appellant and drawing the parties’ attention to r 22.45 of the Rules. The letter continued:

   …This correspondence serves as written notice that the Court will consider whether to make such an order dismissing the appeal at the hearing listed on Friday 7 February 2020 at 9:30am.

   Should you fail to attend the hearing of the appeal on the date detailed above orders may be made in your absence.

   (Emphasis in original)

10. On Monday, 13 January 2020, the Appeal Registrar again wrote to the parties and drew to their attention that the Full Court had directed that the matter be listed for consideration of dismissal pursuant to r 22.45 of the Rules due to the appellant’s failure to file a Summary of Argument. The email went on to advise the parties that the matter was listed for hearing on Thursday, 23 January 2020 at 9.30 am.

11. I am of the view that these two letters taken together constitute compliance with r 22.45(3) of the Rules.

12. The appellant has not yet filed his Summary of Argument. However, yesterday he filed an Application in an Appeal which has been listed for hearing today. The application seeks orders adjourning the appeal until March 2020, extending the time for each of the parties’ Summary of Argument to be filed and adding a number of documents to the appeal book. The appellant also seeks an order that his Summary of Argument be filed by 24 January 2020. The application is opposed by the respondent.

13. The application is supported by an affidavit from the appellant’s solicitor. The appellant’s solicitor explains that “[u]nfortunately, counsel was not able [to] finalise and supply the submissions to meet the required deadline for the filing of submissions”. He adds:

    On my return [to the office on 6 January 2020] I was informed by Counsel that in seeking to finalise the submissions he had determined that a significant number of documents which as a matter of record had been relied upon by the Respondent in the first stanza of the trial, had not been referred to in the later part of the trial and were not contained in the Appeal books. Indeed, even the Respondent’s written trial submissions had not been included within the appeal book, due to counsel alone having copies in [sic] would seem.

    (As per the original)

14. The appellant’s solicitor concludes by saying that the delays are not the appellant’s fault but occurred “as [a] result of the conduct of the appeal on [the appellant’s] behalf”.

15. The absence of relevant documents from the appeal book does not prevent the completion of a Summary of Argument. Any relevant document can always be added later or, less desirably, handed up at the hearing of the appeal.

16. The affidavit of the appellant’s solicitor does not say when counsel was first asked to prepare the Summary of Argument, why the absence of some documents prevents its preparation or when it will be available. There is, thus, no acceptable explanation for the delay. There is, of course, the general suggestion that the default is that of the lawyers and not that of the appellant. Generally speaking, the defaults of a party’s lawyer are not visited upon his or her client (Jess v Scott (1986) 12 FCR 187).

17. As can been seen, the appellant has complied with some of the orders made by the Appeal Registrar. It is also true that this appeal has come on for hearing quickly but that is in accordance with the appellant’s wishes. The appellant filed an Application in an Appeal seeking expedition of the appeal on 6 November 2019 but did not persist with it once it became clear that an early hearing date for the appeal could be granted.

18. It is clear that the appellant has not abandoned any interest in the proceedings but the fact remains that he has not filed his Summary of Argument. It is far from clear why one is not available today.

19. Nonetheless, it is well established that a person should not lightly lose the benefit of a right of appeal because of a procedural default (Jackamarra v Krakouer (1998) 195 CLR 516). This is more so where the default is not that of the appellant but that of his lawyers.

20. Further, a number of the orders made by the primary judge on 6 September 2019 were stayed by orders made by the primary judge on 27 November 2019. The respondent filed a Notice of Appeal against the orders granting the stay on 30 December 2019.

21. It appears from the reasons given by the primary judge that her Honour considered that the case for a stay was finely balanced. Her Honour regarded the imminent hearing of the appeal as a significant factor that weighed in favour of the stay. Whilst, ordinarily, the sensible course would be for both appeals to be heard together, the appropriate course, in these circumstances, is for the stay appeal to be heard in the February 2020 sittings of the Full Court, so as to ameliorate, as far as possible, any injustice to the respondent caused by the delay.

22. The respondent and the Independent Children’s Lawyer seek payment of their costs in the sums of $2,500 plus GST and $1,950 inclusive of GST respectively. These costs appear to me to be reasonable in the circumstances. Counsel for the appellant, candidly and properly, accepted that the delay in filing the Summary of Argument was his fault. It is appropriate, therefore, as he also accepts, that he should pay those costs within 28 days.

23. In addition, any order permitting the appeal to go forward should also be conditional on the Summary of Argument being filed within the time sought by the appellant, namely, by 4.00 pm on 24 January 2020, and if it is not, the appeal should stand dismissed. I propose orders to that effect.

Strickland J

1. I agree with the orders proposed by Aldridge J and with the reasons provided for them.

Kent J

1. I too agree with the orders proposed by Aldridge J and with his Honour’s reasons for those orders.

2. The orders of this Court will be as follows:

   (1)The respondent have leave to file and rely on the affidavit sworn on 22 January 2020 and to rely on the written submissions received by the Court on 23 January 2020.

   (2)The listing of this appeal for hearing on 7 February 2020 be vacated.

   (3)The time for the appellant to file and serve his Summary of Argument and List of Authorities be extended to 4.00 pm on 24 January 2020.

   (4)Conditional upon and subject to the appellant filing and serving his Summary of Argument for the appeal by 4.00 pm on 24 January 2020, the appeal be listed for hearing in the March 2020 sittings of the Full Court in Brisbane.

   (5)In the event that the appellant fails to file the Summary of Argument within the time as ordered, the appeal stand dismissed.

   (6)The appeal be listed for a procedural hearing before the Appeal Registrar at 3.00 pm on Tuesday, 28 January 2020 with the parties to appear by way of telephone.

   (7)Counsel for the appellant pay the respondent’s costs of and incidental to the application fixed in the sum of $2,750 including GST within 28 days of today by payment of that sum to counsel for the respondent.

   (8)Counsel for the appellant pay the Independent Children’s Lawyer’s costs of and incidental to the application fixed in the sum of $1,950 including GST within 28 days of today by payment of that sum to the trust account of the Independent Children’s Lawyer.

   (9)The proceedings in appeal no. NOA 120 of 2019, being the appeal from the orders made by Hogan J on 27 November 2019 with respect to the stay application, be listed for hearing on 7 February 2020.

   (10)For the purpose of procedural orders, appeal no. NOA 120 of 2019 also be listed at 3.00 pm on Tuesday, 28 January 2020 before the Appeal Registrar for the making of directions to prepare that appeal for hearing.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 23 January 2020.

Associate:

Date:  28 January 2020