FLEMING & SCHMIDT

[2015] FamCAFC 123

FAMILY COURT OF AUSTRALIA

FLEMING & SCHMIDT [2015] FamCAFC 123

FAMILY LAW – APPEAL – where the appellant had failed to file a summary of argument and sought an adjournment of the hearing – adjournment granted – self-executing order made for dismissal of the appeal in the event summary of argument was not filed by the required date.

APPELLANT/RESPONDENT: Mr Fleming

RESPONDENT/APPELLANT: Ms Schmidt

FILE NUMBER: DUC 239 of 2013

APPEAL NUMBERS: EA
EA 123
10 of
of 2014
2015

DATE DELIVERED: 19 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, Ainslie-Wallace and
Le Poer Trench JJ

HEARING DATE: 19 June 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 5 August 2014
23 December 2014

LOWER COURT MNC: [2014] FCCA1625
[2014] FCCA 2997

REPRESENTATION

THE APPELLANT/RESPONDENT: In person

COUNSEL FOR THE

RESPONDENT/APPELLANT:

Ms Obradovic

SOLICITOR FOR THE

RESPONDENT/APPELLANT:

North & Badgery

Orders in relation to the appeal by Mr Fleming against the orders made on 5 August 2014 (EA 123 of 2014):

1. The appellant (Mr Fleming) have until Friday 14 August 2015 (at 4pm) to file and serve a summary of argument in relation to the grounds of appeal in his notice of appeal (filed 1 September 2014) or in relation to any proposed amended grounds of appeal.

2. In the event that the appellant (Mr Fleming) does NOT file his summary of argument in relation to this appeal by 14 August 2015 (at 4pm), then the appeal shall stand dismissed.

3. In the event that the appellant (Mr Fleming) does file his summary of argument by 14 August 2015, then the respondent (Ms Schmidt) shall have until 28 August 2015 (at 4pm)  to file any amended summary of argument that she may wish to file.  

4. On the filing of an amended summary of argument by the respondent (Ms Schmidt), or advice to the Appeals Registrar that no further summary of argument is to be filed by the respondent (Ms Schmidt), then the Appeal Registrar will list this appeal together with appeal EA 10 of 2015 for hearing at the next available date before the Full Court.

5. The appellant (Mr Fleming) shall pay the costs of the respondent (Ms Schmidt) thrown away by the adjournment of the hearing of this appeal, with such costs being assessed at $6,000 and such costs to be paid within 7 days of today’s date.

Order in relation to the appeal by Ms Schmidt against the orders made on 23 December 2014 (EA 10 of 2015)

1. In the event that the appeal against the orders made on 5 August 2014
   (EA 123 of 2014) is dismissed pursuant to Order 2 of these orders, then this appeal (EA 10 of 2015) will be determined by this court on the basis of the submissions already filed by the appellant (Ms Schmidt) and any submissions filed by the respondent (Mr Fleming) on or before 14 August 2015 and without oral hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleming & Schmidt 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 123 of 2014; EA 10 of 2015
File Number: DUC 239 of 2013

Mr Fleming   

Appellant/Respondent

And

Ms Schmidt

Respondent/Appellant

REASONS FOR JUDGMENT

1. Listed before the court for hearing this morning were two appeals.  The first was an appeal by Mr Fleming against orders which were made by Judge Dunkley of the Federal Circuit Court on 5 August 2014.  Those orders included a declaration as to the existence of de facto relationship between Mr Fleming and Ms Schmidt and also included property orders consequent on the making of that declaration. 

2. The second appeal listed before us this morning was one by Ms Schmidt, in which she appeals orders made on 23 December 2014, again by Judge Dunkley, whereby he granted a stay of the property orders on conditions, and also required Mr Fleming to pay Ms Schmidt’s costs in the sum of $7477.50 in relation to the proceedings that had been before him. 

3. Various orders have been made by the Appeal Registrars in an endeavour to have both appeals ready for hearing today.  Both parties filed the appeal books as required, and Ms Schmidt filed her summaries of argument in respect of both appeals again as required.

4. However, Mr Fleming did not file his summary of argument in relation to his appeal nor his responding summary of argument in relation to Mr Schmidt’s appeal.  He has explained to us today that he has consulted a solicitor, but he has had some health problems.  We have given him time today to consult with his solicitor (by phone) as to how long was needed before a summary of argument could be prepared.  We are told that the solicitor would like 10 weeks (from today). 

5. The Court considers that that is just too long, given we would need to give Ms Schmidt’s representatives the opportunity to respond to any new summary of argument from Mr Fleming, and that would again extend the time for the hearing of the appeals.  The Court has therefore settled on a date of 14 August, which is about eight weeks approximately from today, for Mr Fleming to file his summary of argument in relation to his appeal. We would also then permit Ms Schmidt’s lawyers to file her summary of argument, if they want to amend it in any way, by 28 August. After those dates have been complied with, if they are complied with, the court will endeavour to list both appeals for hearing as soon as possible. 

6. The Court has also determined, and our orders will reflect this, that in the event Mr Fleming does not file his summary of argument by 14 August, then his appeal will stand dismissed, and this Court will proceed to determine Ms Schmidt’s appeal on the basis of those summaries of argument already filed. This course will prevent the parties having to come back to court. 

recorded not transcribed

1. Given the indulgence which the Court has granted Mr Fleming, there will be an order that he pay the costs thrown away by the adjournment of the hearing of the appeals today, such costs will be assessed at $6,000 and paid in 7 days of today.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 June 2015.

Associate:

Date: