DEMPSEY & LESLIE - [2013] FamCAFC 121

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

2010

APPEAL NUMBER:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DEMPSEY & LESLIE

Details

AGLC: DEMPSEY & LESLIE [2013] FamCAFC 121
Case: [2013] FamCAFC 121
Decision Date: 25 July 2013

CaseChat Overview and Summary

The appeal arose between Dempsey and Leslie, who were originally involved in a family law dispute that was heard in the Family Court of Australia. The specific nature of their dispute is not detailed in the summary, but it is clear that it was sufficiently serious to warrant an appeal to the Federal Circuit Court of Australia. The appeal was dismissed on the basis that it had not been prosecuted within the required time frame, in accordance with rule 22.45 of the Family Law Rules 2004 (Cth).

The legal issue before the court was whether the appellant had complied with the procedural requirements of the court in prosecuting the appeal. This included whether the appellant had adhered to the timelines set out in the Family Law Rules 2004 (Cth) for prosecuting an appeal, and whether the appellant had demonstrated sufficient diligence in pursuing the appeal. The court considered whether the appellant's failure to prosecute the appeal within the required time frame was excusable, or whether it warranted the dismissal of the appeal.

In determining the outcome of the appeal, the court considered the provisions of rule 22.45 of the Family Law Rules 2004 (Cth), which provides for the dismissal of an appeal for want of prosecution if the appellant fails to prosecute the appeal within the time limits specified. The court found that the appellant had not taken the necessary steps to prosecute the appeal within the required time frame, and that the delay was not excusable. As a result, the court dismissed the appeal for want of prosecution. The court also made no order for costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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