BASSET & EDDY-BASSET
[2010] FamCAFC 155
•19 April 2010
FAMILY COURT OF AUSTRALIA
| BASSET & EDDY-BASSET | [2010] FamCAFC 155 |
| FAMILY LAW - APPEAL – PROCEDURE – Husband’s application for leave to appeal listed for consideration of dismissal for want of prosecution – No appearance by the husband – Where husband has failed to comply with orders in relation to the application and has not shown reasonable diligence in prosecuting application – Application for leave to appeal dismissed for want of prosecution. FAMILY LAW - COSTS – Where circumstances warrant a departure from s 117(1) – The husband to pay the wife’s costs. |
| Family Law Act 1975 (Cth) – s 94AAA, s 94AA, s 117 Family Law Rules 2004 – r 22.45 |
| APPELLANT: | Mr Basset |
| RESPONDENT: | Ms Eddy-Basset |
| FILE NUMBER: | SYC | 4998 | of | 2009 |
| APPEAL NUMBER: | EA | 145 | of | 2009 |
DATE DELIVERED: | 19 April 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Boland & Stevenson JJ |
| HEARING DATE: | 19 April 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1173 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No appearance for or on behalf of the appellant husband |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
Orders
The application for leave to appeal against Orders 1, 2 and 4 made by Federal Magistrate Walker on 25 November 2009 is dismissed.
The father pay the mother’s costs of and incidental to the appeal.
IT IS NOTED:
A.A stay was granted by the Federal Magistrate and as the matter has been transferred to the Family Court of Australia an application will be made by the respondent to a judge at first instance for the stay to be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Basset & Eddy-Basset is approved 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 145 of 2009
File Number: SYC 4998 of 2009
| Mr Basset |
Applicant
And
| Ms Eddy-Basset |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Boland J
Introduction
On 30 November 2009 Mr Basset, who for convenience I will refer to as “the husband”, filed a Notice of Appeal in which he sought leave to appeal and if leave was granted, to appeal Orders 1, 2 and 4 made on 25 November 2009 by Walker FM.
The proceedings before the Federal Magistrate were proceedings in which Ms Eddy-Basset, who for convenience I will refer to as “the wife”, sought orders, including orders for spousal maintenance, exclusive occupation of the former matrimonial home, and orders removing the names of the parties’ two children from the Airport Watch List to enable her to travel to the United States for a four week holiday.
The orders which the husband seeks leave to appeal are as follows:
(1)The husband is restrained from selling, dealing with or further encumbering the matrimonial home situated at [M], until further order.
(2)The wife is to have exclusive occupancy of the matrimonial home and the husband is to vacate the home two weeks from the date of these Orders.
…
(4)The husband is to pay the wife the sum of $500.00 per week in spouse maintenance and he is to meet council rates and water charges in respect of the matrimonial home, the mortgage payments in respect of the matrimonial home and insurance in respect of the building and contents.
The husband’s application, which is listed before us this morning, is listed for dismissal for want of prosecution. The wife appeared this morning, represented by her solicitor, Mr Burreket. No submissions were made to us, and we assume that the wife supports the dismissal of the application.
Before us is an affidavit of the Appeal Registrar, Ms Jennifer Halbert, affirmed 19 April 2010. I will refer to that affidavit in greater detail shortly.
Background and procedural history of the proceedings
Some relevant material concerning the parties appears in the Federal Magistrates reasons.
At the time of the proceedings before the Federal Magistrate the husband was aged 38 and the wife was aged 26. The parties married in October 2000 in the United States of America. They commenced living in Australia in November 2000.
There are two children of the marriage, S born in February 2003 and R born in December 2006.
The parties separated under the one roof on 10 July 2009.
At the date of the hearing the wife was engaged in part-time university studies and was otherwise occupied with home duties. The husband was a construction site foreman.
The matrimonial home is registered in the sole name of the husband. The home is encumbered by a mortgage to the National Australia Bank
Relevant provisions of the act and rules
The relevant provisions of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 apposite to this application are as follows:
SECT 94AAA
Appeals to Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; or
…
(6) On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re‑hearing on such terms and conditions, if any, as it considers appropriate.
(7) If, in dismissing an appeal under subsection (1) or (1A), the Family Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.
SECT 94AA
Leave to appeal needed in some cases
(1) The following table sets out the circumstances in which leave to appeal is required:
Requirements for leave to appeal Item Appeal from Appeal to Who determines the application for leave to appeal 1 a prescribed decree of the Family Court (constituted otherwise than as a Full Court) a Full Court of the Family Court a Full Court of the Family Court 2 a prescribed decree of a Family Court of a State a Full Court of the Family Court a Full Court of the Family Court 3 a prescribed decree of a Supreme Court of a State or Territory constituted by a single Judge a Full Court of the Family Court a Full Court of the Family Court 4 a prescribed decree of the Federal Magistrates Court the Family Court (a) a single Judge of the Family Court (who need not be a member of the Appeal Division); or
(b) a Full Court of the Family Court
5 a prescribed decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia the Family Court (a) a single Judge of the Family Court (who need not be a member of the Appeal Division); or
(b) a Full Court of the Family Court
RULE 22.45
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3) The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
The appeal registrar’s affidavit
In her affidavit affirmed today the Appeal Registrar deposed:
a)After the filing of the husband’s Notice of Appeal, (which Notice now contains the relevant provision for leave to appeal) on 23 December 2009 Marsden’s Solicitors filed a draft appeal index on behalf of the husband.
b)She listed the matter for a procedural hearing before her on 17 February 2010. The parties were notified of the procedural hearing by letter dated 19 January 2010.
c)On 16 February 2010 she forwarded by facsimile to the parties’ solicitors draft procedural orders.
d)On 17 February 2010 there was no appearance by or on behalf of the husband and the husband’s solicitors advised her that they had ceased to act for the husband. A Notice of Ceasing to Act was filed by the solicitors on 17 February 2010. The solicitors advised that the husband’s last known address was at I.
e)On 17 February 2010 she made orders adjourning the procedural hearing to 24 March 2010 and caused a sealed copy of those orders to be sent to the husband at the I address disclosed by his former solicitors. That notice was sent by pre-paid post.
f)On 18 March 2010 the Appeal Registrar’s assistant forwarded an email to the husband at his email address.In the email, which is Annexure F to the Appeal Registrar’s affidavit, the husband was again advised the procedural hearing would take place on 24 March 2010.
g)On 24 March 2010 when the procedural hearing commenced there was no appearance by or on behalf of the husband.
h)On 24 March 2010 the Appeal Registrar made orders listing the matter before the Full Court for consideration of dismissal of the appeal. A letter was forwarded to the husband at the I property address by the Appeal Registrar on 29 March 2010. A copy of that letter is Annexure H to her affidavit.
Discussion
I have already set out r 22.45 of the rules. That rule concerns the dismissal of an appeal and an application for leave to appeal. I am satisfied that there has been compliance with r 22.45(3), that is, at least 14 days have elapsed since notice was given to the husband of the intention of the matter being referred to the Full Court for dismissal of the appeal.
I am also satisfied that the husband has failed to comply with orders in respect of the application. He has not attended at the procedural hearing to fix the index for the appeal books and for the making of other necessary directions for the appeal. In short, save and except for his former solicitors filing a Notice of Appeal and a draft appeal index, he has done nothing to prosecute his application for leave to appeal and if leave is granted, his appeal against the Federal Magistrate’s orders made 25 November 2009 since 23 December 2009.
Having regard to the matters set out in the Appeal Registrar’s affidavit, which I have particularised above, I am satisfied that the husband has failed to comply with orders in relation to the application for leave to appeal and has not shown reasonable diligence in prosecuting his application. In these circumstances I am satisfied it is appropriate that the application for leave to appeal filed 30 November 2009 should be dismissed.
Costs
Although no formal application has been made before us today for costs in relation to the wife’s costs thrown away by this application for leave to appeal, subject to any further submissions which may be made to us, my preliminary view is that there are circumstances which would warrant a departure from s 117(1) of the Act. I say that because I am satisfied the husband has been wholly unsuccessful in relation to his application for leave to appeal, as that application will be dismissed. I am also satisfied, under s 117(2A)(d), the husband has failed to comply with orders of the Court.
In those circumstances, I would be prepared to make an order that the husband pay the wife’s costs of and incidental to the application for leave to appeal as agreed, and failing agreement, as assessed under Chapter 19 of the Rules.
Faulks DCJ
I agree with the orders proposed by her Honour and for the reasons that she has given. I have nothing further to add.
Stevenson J
I too agree with the reasons and proposed orders of her Honour. I have nothing to add.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 April 2010.
Associate:
Date: 20 August 2010
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