HAIGWOOD & PLUM - [2015] FamCAFC 148

FAMILY COURT OF AUSTRALIA

HAIGWOOD & PLUM

[2015] FamCAFC 148

FAMILY LAW – APPEAL – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where both parties are legally unrepresented – Where there is no appearance by or on behalf of either party – Where the preconditions of the application of r 22.45 of the Family Law Rules 2004 (Cth) are satisfied – Appeal dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) – r 22.45

APPELLANT:

Ms Haigwood

RESPONDENT:

Mr Plum

FILE NUMBER:

MLC

10108

2011

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

24 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2014

LOWER COURT MNC:

[2014] FCCA 2340

REPRESENTATION

APPELLANT:

In person - no appearance

THE RESPONDENT:

In person – no appearance

Order

The Further Amended Notice of Appeal filed on 1 April 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haigwood & Plum has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 76 of 2014
File Number: MLC 10108 of 2011

Ms Haigwood

Appellant

And

Mr Plum

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of an appeal filed by Ms Haigwood (“the appellant”) in respect of which a Further Amended Notice of Appeal was filed on 1 April 2015, and in respect of which orders were made on Friday 10 April 2015 setting the appeal down for hearing today, and making orders to prepare the appeal for hearing.
The matter has been called, and there is no appearance by or on behalf of either party today.
On 14 October 2014 Judge Baumann made orders and delivered his reasons for judgment in this matter.
On 6 November 2014 an initial Notice of Appeal was filed by the appellant. As I have previously recorded, and as I understand it, as a result of the Appeal Registrar challenging the grounds of appeal relied upon by the appellant, there being some 71 grounds of appeal in that Notice of Appeal, an Amended Notice of Appeal was filed on 26 November 2014. In that Amended Notice of Appeal the grounds of appeal were reduced from 71 to 19.
The appeal first came on before this court on 26 February 2015 by way of a directions hearing. Although initially neither party appeared, subsequently they both appeared but without legal representation. On that occasion I took the appellant through the then 19 grounds of appeal, because on my reading of the same, none of those grounds were proper grounds of appeal. As a result of that the appellant sought an adjournment of the hearing to seek legal advice and to file a Further Amended Notice of Appeal. That…

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.

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Details

Case: [2015] FamCAFC 148
Decision Date: 24 July 2015

CaseChat Overview and Summary

Ms Haigwood filed an appeal against a decision of the Federal Circuit Court of Australia, which was initially heard on 26 February 2015. The appeal was adjourned to allow Ms Haigwood to obtain legal advice and file a Further Amended Notice of Appeal. The appeal was listed for hearing on 24 July 2015, but neither party appeared. The court was required to determine whether the appeal should be dismissed under rule 22.45 of the Family Law Rules 2004 (Cth) due to the appellant's failure to comply with orders to prepare the appeal for hearing.

The court found that Ms Haigwood had not obtained the transcript of the hearing before the trial judge or provided a written summary of argument and list of authorities as ordered. Additionally, Mr Plum had also not complied with the order to file a written summary of argument. The Appeal Registrar had informed the appellant that if she did not intend to proceed with the appeal, a Notice of Discontinuance would have to be filed. Neither party responded to the Appeal Registrar's email or indicated their intentions for the hearing. The court concluded that both preconditions of rule 22.45 were satisfied, and therefore the appeal should be dismissed.

The court dismissed the appeal pursuant to rule 22.45 of the Family Law Rules 2004 (Cth). The dismissal was not based on the merits of the appeal but rather on the appellant's failure to comply with the court's orders and show reasonable diligence in proceeding with the appeal. The court also noted that the appeal had little or no chance of success, but this was not the basis for the dismissal. The appeal was dismissed, and no further orders were made.

Orders