DEMPSEY & LESLIE
[2013] FamCAFC 121
•25 July 2013
FAMILY COURT OF AUSTRALIA
| DEMPSEY & LESLIE | [2013] FamCAFC 121 |
| FAMILY LAW – APPEAL – consideration of whether the appeal should be dismissed for want of prosecution. |
| Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Dempsey |
| RESPONDENT: | Ms Leslie |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
| FILE NUMBER: | PAC | 4954 | of | 2010 |
| APPEAL NUMBER: | EA | 17 | of | 2013 |
| DATE DELIVERED: | 25 July 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, May and Ainslie-Wallace JJ |
| HEARING DATE: | 25 July 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 January 2013 |
| LOWER COURT MNC: | [2013] FamCA 576 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | No appearance |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | Appearance excused |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Leis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Mark Whelan Lawyer |
Orders
The appeal be dismissed for want of prosecution pursuant to the provisions of rule 22.45 of the Family Law Rules 2004 (Cth).
There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dempsey & Leslie 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 17 of 2013
File Number: PAC 4954 of 2010
| Mr Dempsey |
Appellant
And
| Ms Leslie |
Respondent
And
| Mark Whelan |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Finn J
There is listed before us today an appeal by Mr Dempsey against parenting orders made by Loughnan J on 11 January 2013, in order that we might consider dismissal of that appeal for want of prosecution.
The notice of appeal was filed by solicitors acting on behalf of Mr Dempsey on
8 February this year (2013). The draft appeal book index was filed by the same solicitors on 8 March.
On 22 April, the appeal registrar wrote to the appellant’s solicitors, to the respondent mother’s legal representatives, being the Legal Aid Commission for New South Wales, and to the Independent Children’s Lawyer, advising that a procedural hearing would be conducted on 9 May 2013. On 8 May the respondent’s solicitors wrote to the appeal registrar advising that they would not be attending the procedural hearing as they did not have instructions to appear in the appeal.
The orders made by the appeal registrar at the procedural hearing on 9 May record that there was no appearance that day by any party. The appeal registrar then proceeded to make orders which:
·adjourned the procedural hearing to 27 June;
·required the appellant to advise the registrar and the other parties by 20 June as to whether he intended to pursue the appeal; and
·also required him, in the event that he did not intend to pursue the appeal, to file a notice of discontinuance.
The appeal registrar also ordered that, in the event that the appellant did not comply with her orders, then the appeal would be listed before the Full Court for consideration of its dismissal.
On 24 June the solicitors for the respondent again wrote to the appeal registrar, advising that because they had not received any notification from the appellant as to his intentions in relation to the appeal, the solicitor would not be attending the adjourned procedural hearing.
The orders made by the appeal registrar on 27 June, which was the date of the adjourned procedural hearing, record that, again, there was no appearance by any party and also noted that the appellant had not complied with the registrar’s orders of 9 May.
The orders then made by the registrar, on 27 June, listed the appeal for hearing by the Full Court at a date to be advised for consideration of its dismissal, and reserved the costs of the hearing to the Full Court.
On 3 July, the appeal registrar wrote to the solicitors for all parties, referring to her orders of 9 May and 27 June, noting that no action had been taken to progress the appeal since the filing of the draft index on 8 March 2013, and advising that the appeal would be listed before the Full Court at 10:00am today to consider dismissal for want of prosecution pursuant to the provisions of rule 22.45 of the Family Law Rules 2004 (Cth). That rule provides:
(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.
When the appeal was called today at 10:00am, the only party to appear was the Independent Children’s Lawyer, although we are advised by the appeal registrar that the respondent’s solicitor had, on 1 July, advised the registry that she would not be attending today unless the appellant had filed a document to indicate his intentions in relation to the appeal. No such document has been filed, and hence we understand why the respondent’s solicitor is not here today.
Importantly, however, neither the appellant nor his solicitors, who remain on the record, have chosen to appear today.
But as I have said, the Independent Children’s Lawyer is represented by counsel.
Given the history which I have outlined, and the non-appearance of the appellant today, I consider that the appeal should be dismissed for want of prosecution pursuant to the provisions of rule 22.45.
Counsel for the Independent Children’s Lawyer has also sought a costs order, although she has acknowledged that the appellant and his solicitors have no knowledge of that application.
The circumstances, which I have outlined in some detail, including the appearances that have not been made at the various procedural hearings (and in that regard no criticism is intended of parties other than the appellant) and also the correspondence with the registrar, do not, in my view, warrant an order for costs in favour of the Independent Children’s Lawyer.
May J
I agree with the reasons of the presiding judge. I would also dismiss the appeal and make no order as to costs.
Ainslie-Wallace J
I agree with the reasons given and the orders proposed by the presiding judge. I have nothing further to add
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Ainslie- Wallace JJ) delivered 25 July 2013.
Associate:
Date: 25 July 2013
0
0
0