Falk and Andrew
[2010] FamCAFC 106
•4 June 2010
FAMILY COURT OF AUSTRALIA
| FALK & ANDREW | [2010] FamCAFC 106 |
| FAMILY LAW - APPEAL – Consideration for dismissal of appeal pursuant to r 22.30 – No appearance by appellant – Appellant informed both Appeals Registrar and Independent Children’s Lawyer that she did not intend to continue with the appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| APPELLANT: | Ms Falk |
| RESPONDENT: | Mr Andrew |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Lawyers |
| FILE NUMBER: | BRM | 9554 | of | 2006 |
| APPEAL NUMBER: | NA | 61 | of | 2009 |
| DATE DELIVERED: | 4 June 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Boland and Strickland JJ |
| HEARING DATE: | 4 June 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 31 July 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 812 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Lawyers |
Orders
The appeal is dismissed.
The application in an appeal filed 5 February 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Falk & Andrew is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 61 of 2009
File Number: BRM 9554 of 2006
| Ms Falk |
Appellant
And
| Mr Andrew |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
Introduction
By a notice of appeal filed 4 August 2009 the mother appeals against parenting orders made by Federal Magistrate Spelleken on 31 July 2009. The parties have two children; V, born in March 1996, and B, born in December 2000.
The mother had appealed only against paragraphs 2 to 6 and paragraph 9 of the orders.
Paragraphs 2, 3, and 4 of the orders relate to parental responsibility. Paragraph 2 provides that the father and the mother have equal shared parental responsibility for the children; paragraph 3 provides that the parties are to consult with each other about decisions to be made in the exercise of that responsibility and to make a genuine effort to come to a joint decision; and paragraph 4 provides that each parent is responsible for the “daily care, welfare, and development of the children” while they are living with him or her.
Paragraph 5 of the orders provides that except as otherwise provided, the children are to live with the father. Paragraph 6 then provides for a routine by which the children will spend time with the mother during the school term, school holidays, on special days including Christmas, birthdays, and Mother’s Day, and for the children to communicate with the mother by telephone or other electronic means.
Paragraph 9 provides that while the children are with either parent, that parent shall not question the children about the personal life of the other parent, shall speak about the other parent respectfully, will not denigrate or insult the other parent in the presence of the children, and endeavour to ensure that others do not either, and will not physically discipline the children.
The appeal books have been filed and the former solicitors for the mother prepared and filed a summary of argument. The mother, who now represents herself, ceased communicating with the Appeals Registrar in relation to this appeal. Ms Falk has not appeared before us this morning. Consequently, consideration turns to whether it is appropriate to dismiss the appeal pursuant to r 22.30 of the Family Law Rules 2004 (“the Rules”).
Background
The orders were made by the Federal Magistrate after a defended hearing during which both parties were represented by counsel.
On 2 October 2009 the solicitors for the father filed a notice of ceasing to act. Since that date he has represented himself in the appeal. The father appears before us this morning.
On 22 October 2009 directions were made by the Appeals Registrar settling the appeal index and for the filing of material, including the appeal books. The appeal books and the appellant’s summary of argument were to be filed and served by 4:00pm on 11 December 2009.
On 7 December 2009 the mother’s solicitors applied for an extension of time to file the appeal books and summary of argument. The Appeals Registrar made orders extending the time for filing of material to 5 February 2010, and further extending the timetable for the respondent and Independent Children’s Lawyer to file summaries of argument. In his reasons, the Appeals Registrar stated:
The Appellant has deposed that the delay in the filing of the books was occasioned by her inability to get legal aid for the appeal. … Nevertheless the Appellant has now been assisted by her brother in relation to the costs of the preparation of the books but this assistance was not forthcoming until 1 December 2009. I accept this as an adequate explanation for the delay.
On 5 February 2010 the mother’s solicitors filed an application in an appeal seeking an order pursuant to r 22.18(2) that the respondent or the Court be responsible for providing the transcript of the hearing before the Federal Magistrate. In the affidavit accompanying the application, the mother deposed that she could not afford to provide the transcript herself.
The Appeals Registrar made orders on 11 March 2010 directing that the application for provision of the transcript be listed for hearing together with the appeal before the Full Court. Those are the matters before us this morning.
On 1 April 2010 the Appeals Registrar wrote to the parties and advised the following:
The application and appeal is listed for hearing before the Full Court in Brisbane at 10.00 a.m. on Friday 4 June 2010 …
The parties are reminded that summary of arguments and list of authorities should be filed and served, pursuant to the provisions of Rule 22.22 of the Family Law Rules, by the:
a)respondent and independent Children’s lawyer is due Thursday 1 April 2010. (original emphasis)
On 10 May 2010 the solicitors for the mother filed a Notice of Ceasing to Act. From the affidavit filed on behalf of the mother on 5 February 2010, it is apparent that the solicitors had been acting for the mother on a pro bono basis.
In a letter dated 26 May 2010 the Appeals Registrar wrote to the appellant as follows:
I have been advised that you are discontinuing your Notice of Appeal. I have attempted to ring you about this on a daily basis since 17 May 2010 and on each occasion my telephone call was sent through to message bank. I have left 3 messages for you to return my call. …[T]he Appeals Assistant, has left 6 messages for you to return his call. You have not returned our calls. You were advised that this appeal was listed by a procedural hearing on Monday last by telephone and when you were called the telephone call again was put through to your message bank.
I have been advised by [the] Independent Children’s Lawyer, that he has sent you a blank Notice of Discontinuance for you to complete and file with this Registry. To date the Court has not received a Notice of Discontinuance from you in relation to this appeal.
The Registrar then advised the mother that the appeal remained listed for hearing today and then set out r 22.30 concluding:
Accordingly, please be advised that if you do not attend at the hearing of this appeal, your appeal may be dismissed.
There has been no further communication from the mother in relation to this appeal other than, as I am informed by the Appeals Registrar, a message left by telephone this morning that the mother would not be attending and had discussed this with the Independent Children’s Lawyer.
Discussion
The Independent Children’s Lawyer informed us this morning of various matters and conversations with the mother, including that she had told him the children were now living with the father and that she had decided not to continue with the appeal.
Rule 22.30 provides:
Non-attendance by party
If a party does not attend, in person or by lawyer, when an appeal is called on for the hearing of the appeal, the court may:
(a) if the appellant does not attend — dismiss the appeal; or
(b) if the respondent does not attend — proceed with the appeal.
This, of course, is a discretionary matter. The position of each of the parties must be considered, together with the consequences.
It seems, at least to me, that the history of this matter demonstrates that although the mother may have had some grounds in this appeal, she has decided not to appear. She has had notice that the appeal was listed for hearing today. She has informed both the Appeals Registrar and the Independent Children’s Lawyer that she does not wish to attend and argue the appeal.
Thus, it seems to me we have no choice other than to dismiss the appeal, and I would make that order.
Boland J
I agree with the reasons of the learned Presiding Judge, and I too would dismiss the appeal.
Strickland J
I agree with the reasons of the learned Presiding Judge, and I too would dismiss the appeal.
May J
The mother had filed an application in an appeal on 5 February 2010 seeking the provision of the transcript. We would also dismiss that application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 17 June 2010
0
0
2