HAIGWOOD & PLUM
[2015] FamCAFC 148
•24 July 2015
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 | of | 2011 |
| APPEAL NUMBER: | SOA | 76 | of | 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 adjournment was not consented to by Mr Plum (“the respondent”), but in the end result I granted the adjournment and further consideration of the matter was adjourned to 10 April 2015.
As referred to earlier in these reasons, on 1 April 2015 the appellant did file a Further Amended Notice of Appeal.
On 10 April 2015 I conducted a directions hearing, and although I still had some concerns about whether any of the grounds of appeal in the Further Amended Notice of Appeal were proper, I allowed the matter to proceed and I made orders as earlier indicated listing the appeal for hearing, and to prepare the appeal for that hearing.
In terms of listing the hearing, at that time I was unable to specify a date and my order provided that the hearing take place in either the week commencing Monday 6 July 2015, or the week commencing Monday 20 July 2015. In that regard, on 13 May 2015 the Appeal Registrar sent a letter to both parties at their respective addresses for service, advising that the appeal was listed for hearing before this court on Friday 24 July 2015.
In relation to the preparation of the appeal for hearing, on 10 April 2015 I ordered that the appellant obtain the transcript of the hearing before the trial judge by 29 May 2015, and that she provide copies of that transcript to the court and to the respondent. It is apparent from the Appeal Registrar’s file that the appellant did not comply with that order. Indeed, in an email from the appellant dated 13 May 2015 to the Appeal Registrar, the appellant advised that she had obtained a quote for the transcript, that she was not in a position to afford the cost, and asked what could be done. On the same date the Appeal Registrar responded by email to the appellant advising her what could be done about that, including making an application to the court for the provision of transcript, and indeed attaching a copy of the Full Court’s decision in Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220, which was a decision that addressed the question of provision of transcript.
Despite that, there has been no application by the appellant seeking orders in relation to the provision of transcript, and indeed no transcript has been provided to the court. I do not know of course whether transcript was provided to the respondent, but if it has not been provided to the court then I assume it has not been provided to him either.
In any event, pursuant to the orders made on 10 April 2015, the appellant was to file and serve a written summary of argument and list of authorities, on or before the close of business on Friday 29 May 2015. The appellant has not complied with that order.
Also in the orders of 10 April 2015 the respondent was to file and serve a written summary of argument and list of authorities on or before the close of business on Friday 26 June 2015. The respondent has also not complied with that order, but that is understandable given that it was the appellant who was required to file a summary of argument first, and of course the respondent would then, in the usual circumstances, file a written summary of argument responding to that.
As a result of that failure by the appellant the Appeal Registrar sent a letter by email to the parties on 18 June 2015 directed specifically to the appellant, confirming that she had not complied with the order for the filing of a written summary of argument, or the order for the provision of the transcript. The appellant was referred to the relevant Family Law Rules 2004 (Cth) (“the Rules”) and the Appeal Registrar indicated that if the appellant was not intending to proceed with the appeal, then a Notice of Discontinuance would have to be filed, and indeed, helpfully attaching to that email a copy of the relevant Rules and also a copy of a Notice of Discontinuance.
As I understand it there has been no response to that email by either the appellant or the respondent. There has been no indication particularly from the appellant, but not from either party, as to what they were intending to do today. Given the fact that neither has appeared, the only assumption I can make is that the appellant has decided not to proceed with the appeal, and of course that would also explain the absence of the respondent.
Thus, what I propose to do today is to dismiss the appeal pursuant to r 22.45 of the Rules. That rule applies if a party has not complied with an order in relation to the appeal, or shown reasonable diligence in proceeding with the appeal. In my view both of those preconditions apply here, and pursuant to sub-rule (2), where that is the case this court may dismiss the appeal, and to repeat, that is what I propose to do.
For completeness I also indicate that having read the documents in this matter, and in particular the reasons for judgment of the trial judge, and the Further Amended Notice of Appeal filed by the appellant, it is apparent that the appeal had little or no chance of success. I hasten to add though, that is not the basis on which I propose to dismiss the appeal today, although it is a relevant factor. The dismissal of the appeal today is pursuant to r 22.45 of the Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 23 July 2015.
Associate:
Date: 28 July 2015
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