Driscoll & Driscoll (No. 2)
[2008] FamCAFC 201
•6 May 2008
FAMILY COURT OF AUSTRALIA
| DRISCOLL & DRISCOLL | [2008] FamCAFC 201 |
| FAMILY LAW - APPEAL – from decision of a Federal Magistrate - dismissed for want of appearance. FAMILY LAW - APPEAL – from decision of a Federal Magistrate – COSTS – order made for appellant husband to pay the respondent wife’s costs fixed in the sum of $1,000. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | MR DRISCOLL |
| RESPONDENT: | MS DRISCOLL |
| FILE NUMBER: | MLC | 3792 | of | 2007 |
| APPEAL NUMBER: | SA | 18 | of | 2008 |
| DATE DELIVERED: | 6 May 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 6 May 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 336 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | N/A |
| SOLICITOR FOR THE APPELLANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Ms Mandelert |
| SOLICITOR FOR THE RESPONDENT: | Prior & Prior |
Orders
That the husband's appeal against orders made by Federal Magistrate Riethmuller on 29 February 2008 is hereby dismissed for want of appearance.
That the appellant husband pay the respondent wife's costs thrown away as a result of paragraph 1 hereof, fixed in the sum of $1000.
That liberty be reserved to the husband to apply to vary or set aside these orders, any such application to be filed and served no later than 4 pm on Tuesday, 27 May 2008, such application to be listed before Justice Mushin if reasonably available, and otherwise before such other judge of the court as may be nominated by Justice Finn.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Driscoll & Driscoll is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
File number: MLC 3792 of 2007
Appeal number: SA 18 of 2008
| MR DRISCOLL |
Appellant
And
| MS DRISCOLL |
Respondent
REASONS FOR JUDGMENT
On 28 March 2008, the husband filed a notice of appeal from orders made pursuant to Parts VII and VIII of the Family Law Act 1975 made by Riethmuller FM on 29 February 2008. Pursuant to a direction of the Chief Justice of this Court, in accordance with section 94AAA(3) of the Family Law Act 1975, I have been designated as the Judge to sit and hear this appeal.
The sealed appeal documents were returned to the husband by letter from the Appeals Registrar dated 1 April 2008. On 18 April 2008 the Regional Appeals Registrar wrote to all parties, including the husband at his address as provided in the Notice of Appeal, advising of the direction pursuant to section 94AAA(3) of the Act referred to above, and advising that the matter had been listed for directions before me at this court at 2.15 today.
When the matter was called on for hearing this afternoon, the husband was called and has not responded to the call. In addition to that, the husband in a letter written to the wife's solicitor has acknowledged his awareness of today's hearing date, that letter being written on 24 April 2008. Accordingly, it is appropriate that the appeal be dismissed for want of appearance and the usual liberty be reserved to the husband to apply to vary or set aside these orders.
Counsel for the wife has applied for an order for costs against the husband arising out of the dismissal of this appeal in the sum of $1000. In my view that is an entirely reasonable amount and will also again be covered by the leave to apply if he chooses to do so. I will order accordingly.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin
Associate:
Date: 10 December 2008
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