Ganem & Ganem
[2016] FamCAFC 106
•21 June 2016
FAMILY COURT OF AUSTRALIA
| GANEM & GANEM AND ANOR | [2016] FamCAFC 106 |
| FAMILY COURT – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the appellant has failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 – Where there was no appearance by or on behalf of the appellant or second respondents – Appeal dismissed – Appellant to pay costs of the first respondent in relation to the appeal. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth): r 22.45 |
| APPELLANT: | Mr Ganem |
| FIRST RESPONDENT: | Ms Ganem |
| SECOND RESPONDENTS: | Mr B and Mr A |
| FILE NUMBER: | SYC | 931 | of | 2012 |
| APPEAL NUMBER: | EA | 12 | of | 2015 |
| DATE DELIVERED: | 21 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Austin JJ |
| HEARING DATE: | 21 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 December 2014 |
| LOWER COURT MNC: | [2014] FamCA 1177 |
REPRESENTATION
| FOR THE APPELLANT: | No appearance for or on behalf of Mr Ganem |
| FOR THE FIRST RESPONDENT: | In person |
| FOR THE SECOND RESPONDENTS: | No appearance for or on behalf of the Second Respondents |
Orders
The appeal be dismissed.
The Application in an Appeal filed on 21 April 2015 be dismissed.
The appellant pay the first respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid to the first respondent within forty-two (42) days of their agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem 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 12 of 2015
File Number: SYC 931 of 2012
| Mr Ganem |
Appellant
And
| Ms Ganem |
First Respondent
And
| Mr B and Mr A |
Second Respondents
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
This is an appeal by Mr Ganem (“the appellant”) against orders for the settlement of property (Orders 17, 18 and 19) and for the payment of costs in favour of the second respondent interveners (Orders 35 and 36) made by Aldridge J on 24 December 2014. His Honour also made parenting orders in relation to the appellant and first respondent’s children, however, by Notice of Discontinuance filed on 18 May 2015 the appellant discontinued his appeal against the parenting orders.
The appeal as now constituted is contained in the Further Amended Notice of Appeal which was filed on 22 May 2015. In support of that appeal, an Application in an Appeal to adduce further evidence was filed by the appellant on 21 April 2015. In broad terms, that application would seek to introduce valuation evidence of a property at Suburb H obtained some four months after the orders under appeal were made.
Although the appellant has filed the appeal books, he has failed to comply with other orders designed to have his appeal ready for hearing and to ensure the respondents understood the case they were expected to meet. Thus, on 6 June 2016, the Appeals Registrar gave the appellant and respondents notice that the appeal was listed for hearing today for consideration of whether the appeal should be dismissed for want of prosecution pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the rules”). Rule 22.45 is set out below:
(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.
Notice having been given in accordance with r 22.45(3), the question to be addressed is whether pursuant to r 22.45(1)(b)(ii) or r 22.45(1)(b)(iii) the appeal should be dismissed for reasons of non-compliance or delay.
Turning first to the question of non-compliance, on 5 March 2015, the appellant was ordered to file a Summary of Argument and List of Authorities on or before 29 May 2015. The first and second respondents were to do so by 30 June 2015. Neither the appellant nor the first respondent complied with that order. The second respondent interveners complied.
On 26 May 2016 the Appeals Registrar wrote to all parties advising the appeal was listed for hearing at 10.00 am on 21 June 2016. In light of the appellant’s non-compliance further directions were made which required him to file and serve a Summary of Argument and List of Authorities by 4.00 pm on Friday, 4 June 2016. The Friday was in fact 3 June 2016 but as the appellant did not comply with that direction at all, nothing turns on that mistake.
The appellant being in default, on 6 June 2016, the Appeals Registrar forwarded a letter to the appellant by email (the address provided by him) which was copied to the other parties as follows:
Dear Sir or Madam
I refer to the email below and note that the appellant did not file his summary of argument and list of authorities by 4.00 pm on Friday 3 June 2016.
The Family Law Rules (rule 22.45) provide that if an appellant has not shown reasonable diligence in proceeding with an appeal, then the court may list the appeal in order to consider its dismissal on 14 days written notice to the parties.
In accordance with this rule the appeal has been listed at 10.00 a. [sic] on 21 June 2016 before the Full Court sitting in the Sydney Registry (located at 97 - 99 Goulburn Street Sydney) for the court to consider whether to dismiss he appeal for want of prosecution.
The parties are not required to attend on that day, but the parties should be aware that they do not attend, the court may dismiss the appeal in their absence.
Kind Regards,
[Appeals Registrar]
Correspondence addressed to the Appeals Registrar was received from the appellant by email on 16 June 2016 as follows:
Dear Honorable … Appeals Registrar
Thanks for the Email but the appellant know that I am outside of Australia for medical treatment i am not permitted to travail that far by may doctor for next 6 months i hope I will be back in Australia by the end of December 2016
pleas it will be fine for January 2016 any day is fine by me
Kind regards
[the appellant]
(as per original)
The Appeals Registrar responded in the following terms:
Good morning [the appellant],
Thank you for your email of 16 June 2016.
Please be advised that your appeal remains listed in accordance with the letter dated 6 June 2016 and in particular for consideration of whether it should be dismissed for want of prosecution.
Kind Regards,
Assistant to the Appeals Registrar
Neither the appellant nor the second respondent has appeared today. The first respondent invites the Court to dismiss the appeal pursuant to the rules mentioned earlier.
I am satisfied the appellant has failed to comply with an order in relation to the appeal. I am similarly satisfied the appellant has not shown reasonable diligence in proceeding with the appeal. The appellant has placed nothing before us which would suggest that the interests of justice would be advanced if the appeal was permitted to linger any longer. Indeed, as the appellant’s correspondence of 16 June 2016 reveals, he would not be in a position to attend to the appeal prior to January 2017 at the earliest. The respondents should not be burdened by the ongoing stress associated with unresolved litigation and I would accordingly dismiss the appeal.
Austin J
I agree with the orders proposed and the reasons given by Ryan J.
Ainslie-Wallace J
I too agree with the reasons of Ryan J and the orders she proposed. Therefore the orders of the Court will be that:
(1)The appeal be dismissed.
(2)The Application in an Appeal filed on 21 April 2015 be dismissed.
On behalf of the Court it will be further ordered that the appellant pay the first respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid to the first respondent within forty-two (42) days of their agreement or assessment.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 21 June 2016.
Associate:
Date: 22 June 2016
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