Cleary and Ngoc (No 2)

[2011] FamCAFC 108

FAMILY COURT OF AUSTRALIA

CLEARY & NGOC (NO. 2) [2011] FamCAFC 108

FAMILY LAW - NOTICE OF APPEAL –  COSTS - father failed to comply with orders and to show reasonable diligence in proceeding with the appeal – father did not attend at two hearings – circumstances which justify an order for costs – father to pay costs of and incidental to the appeal – such costs to be agreed and in default of agreement taxed – appeal dismissed

Family Law Act 1975 (Cth) s 117
Family Law Rules r 22.45

APPELLANT: Mr Cleary

RESPONDENT: Ms Ngoc

FILE NUMBER: SA 67 of 2010

APPEAL NUMBER: ADC 5849 of 2007

DATE DELIVERED: 11 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 11 May 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 31 August 2010

LOWER COURT MNC: [2010] FMCAfam 924

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Subramaniam

Orders

1. The Notice of Appeal filed by the father on 10 September 2010 be dismissed.

2. The father pay costs of and incidental to the appeal, such costs to be agreed and in default of agreement as taxed.

IT IS NOTED that publication of this judgment under the pseudonym Cleary & Ngoc is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 67 of 2010
File Number: ADC 5849 of 2007

Cleary

Appellant

And

Ngoc

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal against orders made by Federal Magistrate Simpson on
   31 August 2010.  The appeal was filed by the father on 10 September 2010.

2. The appeal came before me on 10 February 2011 when I conducted a directions hearing.  At that hearing the mother was represented and the father appeared in person, and I made orders for the filing and serving of a draft appeal index and for written summaries of argument to be filed.  I put a regime in place whereby the father was to file his written summary first and that was to be done on or before the close of business on 9 March 2011.  I also listed the matter for hearing on 21 April 2011.

3. I will not repeat what I said on the last occasion about the arrangements that I had to make to provide the earliest possible hearing for the appeal at the specific request of the father.  What has happened though is that the father has only partially complied with the orders that I made on 10 February 2011.  That compliance was that he forwarded copies of his written submission which had been presented to the Federal Magistrate for the purposes of the hearing when the orders were made against which the father appeals.  Beyond that though the father failed to comply with the orders and specifically he failed to file a written summary of argument on or before close of business on 9 March 2011.

4. The matter then came before me on the date allocated for the hearing, namely
   21 April 2011.  The mother’s solicitor appeared but the father failed to appear.  On that occasion the mother made an application for the appeal to be dismissed pursuant to Rule 22.45 of the Family Law Rules.  I though determined to give the father an opportunity to explain his absence and to appear, and I adjourned the matter to today.  One reason why I took that stance was that the father up to that point had appeared at the directions hearing before me, but also I was aware that he had appeared at the hearings in the Federal Magistrates Court, and indeed hearings that had taken place of recent date.  In any event, I adjourned the matter to today.  The mother’s solicitor made an application for costs thrown away and I reserved the question of those costs to the adjourned hearing and I requested the court to forward a letter to the father advising him of the adjourned hearing date and indicate that if he failed to attend that hearing orders may be made in his absence.

5. I have a copy of that letter in front of me.  It was sent on 28 April 2011 enclosing a copy of the orders I made on 21 April 2011 and advising of the hearing today and indicating the consequences that may follow if he failed to appear.  I note that that letter has not been returned for example and so I proceed on the basis that the father has received that letter.  I also note that that letter was the subject of email correspondence with the father of the same date.

6. What has happened is that the matter has been called on today.  The mother and her solicitor are here, the father has failed to attend.  The mother’s solicitor has renewed her application to dismiss the appeal and in the circumstances I now have no difficulty with that.

7. Rule 22.45 of the Family Law Rules provides that the court may dismiss the appeal if a party has not complied with an order in relation to the appeal or shown reasonable diligence in proceeding with an appeal.  As I have outlined the father has failed to comply with my order of 21 April 2011 and I am also satisfied that he has failed to show reasonable diligence in proceeding with the appeal.  To repeat, I have no difficulty making an order dismissing the appeal.

8. On that basis the mother’s solicitor makes an application for costs, and obviously including the costs thrown away on 21 April 2011.  Unfortunately the mother’s solicitor has not provided me with a schedule of the costs that she seeks and so I am not in a position to make an order for a specific amount of costs to be paid by the father.

9. I am satisfied that there are circumstances that justify an order for costs in accordance with s 117 of the FLA and specifically I rely on the fact that the father has now failed to appear on two occasions, firstly when the appeal was set for hearing and secondly today, and also he has failed to comply with the orders that I made on 21 April 2011.

10. To repeat I am satisfied that there are circumstances that justify an order for costs being made and I will do so.  Unfortunately I have no alternative in the circumstances that are presented to me but to send the matter to a taxation, if costs cannot be agreed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 11 May 2011.

Associate: 

Date:  11 May 2011