Charton & Sedgley
[2021] FamCAFC 53
•16 April 2021
FAMILY COURT OF AUSTRALIA
Charton & Sedgley [2021] FamCAFC 53
Appeal from: Sedgley & Charton [2020] FCCA 3227 Appeal number(s): EAA 161 of 2020 File number(s): SYC 4446 of 2020 Judgment of: ALDRIDGE J Date of judgment: 16 April 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Appeal from interim parenting orders – Appellant failed to file Amended Notice of Appeal and Summary of Argument – Appellant failed to appear at hearing of summary dismissal application – Grounds of appeal too broad – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Rules 2004 (Cth) r 22.45 Division: Appeal Division Number of paragraphs: 17 Date of hearing: 16 April 2021 Place: Sydney Counsel for the Applicant: Mr Macpherson Solicitor for the Applicant: Macpherson Kelley Pty Ltd The Respondent: No appearance ORDERS
EAA 161 of 2020
SYC 4446 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS SEDGLEY
Applicant
AND: MR CHARTON
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 23 March 2021 for the dismissal of Appeal No. EAA 161 of 2020 be granted.
2.Accordingly, Appeal No. EAA 161 of 2020 is dismissed.
3.The appellant is to pay the costs of the respondent as agreed, or in default, as assessed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charton & Sedgley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is the hearing of an Application in an Appeal filed by the respondent on 29 March 2021 in an appeal against interim parenting orders made by a judge of the Federal Circuit Court of Australia on 26 October 2020.
The application seeks dismissal of the appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) on the basis that the appellant has failed to comply with orders made for the preparation of the appeal.
The orders subject to appeal are interim parenting orders concerning the parties’ two children who were born in 2012 and 2018. The orders provided for the children to live with the respondent mother and spend time with the appellant father, supervised by a commercial supervision agency.
Injunctions were made preventing the appellant from contacting the respondent, except in the case of an emergency, or regarding the children when they were in his care.
The appellant was not satisfied with those orders and on 23 November 2020 filed a Notice of Appeal. The grounds of that notice are in general terms, and assert that a lack of adequate reasons were provided by the primary judge and that the orders did not reflect the best interests of the children. The third ground is not a ground, but rather a request for leave to amend the grounds of appeal upon the release of the reasons for judgment.
I take from that, that at the time the Notice of Appeal was filed, the primary judge’s oral reasons had not yet been reduced to writing and made available to the parties. It is undoubtedly then, that the appellant would wish to reconsider the grounds when the reasons for judgment became available.
Procedural orders were made by the Registrar of the 10 February 2021. Those orders required an Amended Notice of Appeal to be filed on or before 7 February 2021, and a Summary of Argument and List of Authorities to be filed by 15 April 2021.
The appellant has not complied with either direction despite letters written to him by the solicitor for the respondent and the Appeal Registry on 16 March 2021 and 19 March 2021 respectively.
The appellant has filed no material in response to the present application.
I am informed by the Appeal Registry that earlier this morning the appellant contacted the Registry, and said that he was not well and was not able to attend. He sought an adjournment of the application. He was informed that that could not be done administratively, and any application for adjournment would have to be made to the Court. For that purpose, the appellant was provided with the details of the telephone link to the court room and was informed how to use it so that he could be heard remotely.
The appellant has not telephoned in to the court room.
I am very properly informed by counsel for the respondent to the appeal that this matter was also in the list before the primary judge today at 9.30 am. The appearance was conducted remotely by telephone link, and I am informed that the appellant did not attend that hearing either.
At the time of giving these reasons, that hearing has concluded and it therefore cannot be a reason why the appellant has not dialled in for this matter.
I am satisfied however that the appellant clearly has notice of the application and the fact that the matter is before the court. There is no material before me that would justify any adjournment.
The appellant has failed to comply with two significant orders of the Registrar. The first is to file a Notice of Appeal that identifies the issues that will be before the Court on the appeal. The second is to file a Summary of Argument and List of Authorities which presents the reasons that the appellant says, the Court would find the grounds of any appeal to have been established.
Taking those matters into account, it can be inferred that the appellant no longer wishes to prosecute the appeal and it ought be dismissed.
Accordingly Appeal No. EAA 161 of 2020 is dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 16 April 2021
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