Danes and Danes & Anor
[2014] FamCAFC 86
FAMILY COURT OF AUSTRALIA
| DANES & DANES AND ANOR | [2014] FamCAFC 86 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the Appeals Registrar listed the matter for consideration of whether the appeal should be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant has now filed her summary of argument – Where the appeal should not be dismissed – Orders made for the filing and serving of summaries of argument by the respondents and by the Independent Children’s Lawyer. FAMILY LAW – APPEAL – NOTICE OF APPEAL - COSTS – Where the ICL seeks that their costs of today be reserved to the hearing of the appeal – Costs reserved. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth) – r 22.25
| APPELLANT: | Ms A Danes |
| FIRST RESPONDENT: | Ms C Danes |
| SECOND RESPONDENT: | Mr Bray |
| THIRD RESPONDENT: | Independent Children’s Lawyer |
| FILE NUMBER: | SYC | 6705 | of | 2011 |
| APPEAL NUMBER: | EA | 46 | of | 2013 |
| DATE DELIVERED: | 13 May 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Austin JJ |
| HEARING DATE: | 13 May 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 281 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson |
| THE FIRST RESPONDENT: | No appearance |
| THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE THIRD RESPONDENT (ICL): | Mr O’Dowd, solicitor |
| SOLICITOR FOR THE THIRD RESPONDENT (ICL): | Legal Aid NSW Sydney Central Family Law |
Orders
If so advised the respondent father file and serve an updated Summary of Argument and a List of Authorities with the Appeals Registrar on or before
10 June 2014.
The respondent mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 10 June 2014.
The Independent Children’s Lawyer file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 8 July 2014.
The costs of the Independent Children’s Lawyer for today be reserved to the hearing of the appeal.
This appeal be referred to the Appeals Registrar for listing for hearing at the earliest available opportunity.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danes & Danes and Anor 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 46 of 2013
File Number: SYC 6705 of 2011
| Ms A Danes |
Appellant
And
| Ms C Danes |
First Respondent
And
| Mr Bray |
Second Respondent
And
| Independent Children’s Lawyer |
Third Respondent
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
This appeal was listed today by the Appeals Registrar for the purpose of this court considering whether to make an order dismissing the appeal pursuant to
r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
The Notice of Appeal was filed on 24 April 2013 appealing against parenting orders made by Federal Magistrate Foster (as his Honour then was) on
28 March 2013.
The appellant is Ms A Danes, the maternal grandmother of the children the subject of the parenting orders made by his Honour, and some of those orders are the subject of this appeal.
There are two respondents to the appeal, Ms C Danes (“the first respondent”) and Mr Bray (“the second respondent”), and they are the parents of the children. There is also an Independent Children’s Lawyer (“ICL”), who has appeared today.
I will not detail all of the procedural matters that have occurred since the filing of the Notice of Appeal, but relevantly, on 5 February 2014 an order was made by the Appeals Registrar setting a timeframe for the parties to file and serve summaries of argument and lists of authorities. Unfortunately, what then happened was that the appellant failed to comply with the timeframe prescribed in the order of the Appeals Registrar namely, she was to file and serve her summary of argument and list of authorities on or before 14 March 2014. When that time passed, the Appeals Registrar, as is common practice, wrote to all the parties on 9 April 2014 indicating that as a result of that failure to comply, the appeal would be listed today before this court, for the purpose of considering whether to make an order dismissing the appeal.
I note that in fact the summary of argument of the appellant has now been filed, and that was attended to on 8 May 2014.
Today Mr Hodgson has appeared for the appellant and Mr O’Dowd has appeared for the ICL. Unfortunately, there is no appearance by either of the respondents, and that is unusual as Mr O’Dowd has pointed out to us. Indeed they have neither attended today, nor have they provided any written submissions to the court in relation to what the court should do with this matter.
Despite the absence of the respondents, in light of the history of this matter and the issues sought to be agitated on appeal, and particularly the fact that the appellant has now filed her summary of argument, and has completed all the steps that are required for her to pursue the appeal, and also given of course the fact that she has met the significant expense of obtaining the transcript and preparing the appeal books, which were filed some time ago namely, on
25 September 2013, it seems to me that this appeal should be permitted to proceed, and it should not be dismissed today. I observe that this is also the position of the ICL.
On that basis I enquired of Mr Hodgson and Mr O’Dowd as to what the next step should be, and it seems that summaries of argument need to be filed by the other parties. It is apparent from the file, that the respondent father filed a summary of argument on 7 November 2013. However, it may be that he wants the opportunity to file an updated summary given that the summary of the appellant has now been filed. That needs to be catered for.
There has not yet been a summary filed by the respondent mother, but of course that is understandable in that the appellant was required to file her summary first, and likewise there has not yet been a summary of argument filed by the ICL, but again that is understandable in the circumstances.
Thus, I propose to make orders setting a timeframe for the filing of those summaries of argument and lists of authorities. In terms of the appeal being listed for hearing, I would propose to refer the matter to the Appeals Registrar for her to consider that and advise the parties of when the listing will be in due course.
Murphy J
I agree with the orders proposed by Justice Strickland and have nothing to add to what his Honour has said.
Austin J
I agree with the orders proposed and the reasons given by Justice Strickland.
I certify that the preceding thirteen (13) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Full Court (Strickland, Murphy & Austin JJ) delivered on 13 May 2014.
Legal Associate:
Date: 14 May 2014
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