CAPPETTO & CAPPETTO

[2012] FamCAFC 165

FAMILY COURT OF AUSTRALIA

CAPPETTO & CAPPETTO [2012] FamCAFC 165

FAMILY LAW ─ APPEAL ─ Application seeking an adjournment of the appeal hearing date ─ Where the evidence that the appellant presented in support of the adjournment application did not establish that the appellant would be unable to prosecute the appeal ─ Application dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Ms Cappetto

RESPONDENT: Mr Cappetto

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

FILE NUMBER: SYC 7342 of 2008

APPEAL NUMBER: EA 72 of 2011

DATE DELIVERED: 9 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman J, Ainslie-Wallace J
and Rees J

HEARING DATE: 9 October 2012

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 May 2011

LOWER COURT MNC: [2011] FamCA 345

REPRESENTATION

THE APPELLANT: In person by telephone link

THE RESPONDENT: In person by telephone link

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

1. That the application in an appeal filed 28 June 2011 is dismissed.

2. That the application in an appeal filed 12 September 2012 is dismissed.

3. That both the appellant mother and the respondent father be granted leave to appear by telephone at the appeal hearing on 21 November 2012.

4. That there be no order for costs of the application in an appeal filed 28 June 2011.

5. That there be no order for costs of the application in an appeal filed 12 September 2012.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 72 of 2011

File Number: SYC 7342 of 2008

Ms Cappetto

Appellant

And

Mr Cappetto

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

coleman j

1. The Court will refuse unanimously the appellant wife’s adjournment application filed 12 September 2012.  For my part, to the extent that it is not apparent from what the transcript would record of exchanges with the appellant, I would refuse the appellant’s application for the following reasons.

2. Notwithstanding the last statements made by the appellant, which I think are quite inconsistent with what the appellant was earlier saying, the appellant is unable to indicate with any degree of certainty, or on any satisfactory basis, when the appellant thinks that she might be ready to proceed if the appeal were to be adjourned. The appeal relates to a decision made in May 2011. The appeal books are filed. For reasons that have not been explained the appellant has failed to file her outline of argument, notwithstanding that, in two days’ time, the appellant will have had one year, in addition to the time originally ordered, in which to do so.

3. There is nothing to indicate that, on the next occasion, anything will be any different. There is nothing in the medical evidence that the appellant relied upon, which I accept for the purpose of this application which suggests otherwise. That medical evidence does not establish that the appellant would be unable to prosecute her appeal, provided that, as the Court would readily allow her to, the appellant does not have to physically attend Court for the purpose of prosecuting the appeal.

4. The Court must balance on the one hand the appellant’s unfortunate medical difficulties, with the entitlement of the other parties to have this appeal finally determined, 18 months after the trial Judge’s decision was made, on the other.

5. The appeal is listed for 21 November 2012 that is six weeks hence, so the appellant still has another six weeks in which to do whatever further preparation that the appellant says that she needs to undertake. If the appeal is to have any hope of being seriously considered, the appellant needs to file an outline of argument, as she should have a year ago.

6. For my part, to adjourn this appeal in the circumstances that the appellant’s own evidence reveals, and her own submissions reveal, would be for the Court to fail to discharge its obligations to the respondent, the ICL, and the broader interests of justice. There is nothing that the appellant presented which persuades me that, when the appellant is ready, whenever that might be, at some distant time, to prosecute her appeal, anything is going to be any different to what will be the case on 21 November 2012. So, essentially for those reasons, I would refuse the application for an adjournment. 

ainslie-wallace j

1. I agree with the proposed orders of Justice Coleman, and the reasons for making those orders, and I have nothing further to add. 

rees j

1. I, too, agree with the proposed orders and the reasons of Justice Coleman, and have nothing further to add. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Rees J) delivered on 9 October 2012.

Associate:

Date: 16.10.2012