HARSHANI & DARNITH
[2014] FamCAFC 2
•16 January 2014
FAMILY COURT OF AUSTRALIA
| HARSHANI & DARNITH | [2014] FamCAFC 2 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the husband appeals the orders of the Federal Magistrate (as she then was) made on 25 October 2012 – where the wife opposes the appeal – where the husband has not complied with the orders for the filing of the transcript of the hearing before the Federal Magistrate and for the filing of a summary of argument – where there has been no appearance at the hearing by or on behalf of the husband – appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) | ||
| APPELLANT: | Mr Harshani | |
| RESPONDENT: | Ms Darnith |
| FILE NUMBER: | MLC | 1556 | of | 2010 |
| APPEAL NUMBER: | SOA | 83 | of | 2012 |
| DATE DELIVERED:: | 16 January 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 January 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1312 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person with interpreter |
Orders
The Notice of Appeal filed on 21 November 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harshani & Darnith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 83 of 2012
File Number: MLC 1556 of 2010
| Mr Harshani |
Appellant
And
| Ms Darnith |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter was listed today for hearing of the Notice of Appeal filed by
Mr Harshani on 21 November 2012. In that Notice of Appeal he sought to appeal against orders made by Federal Magistrate Hughes (as she then was) on 25 October 2012.
On 21 December 2012 Mr Harshani filed a draft appeal index as he is required to do under the Rules of Court.
On 15 July 2013 I note that he filed a Notice of Address for Service.
On 10 October 2013 I conducted a directions hearing with a view to listing the appeal for hearing and making orders preparing the matter for hearing.
Mr Harshani appeared in person on that date and the respondent was legally represented.
I made an order on that day that the appeal be listed for hearing at 10:00am on Thursday 16 January 2014, I also made an order identifying the documents that were to be before the court for the purposes of the appeal, and I made orders for the filing of summaries of argument and lists of authorities, and an order that Mr Harshani file the transcript of the relevant hearing. Mr Harshani was to file that transcript and also his summary of argument and list of authorities by the close of business on 6 December 2013. He failed to comply with those orders.
On 9 January 2014 the respondent filed her summary of argument in accordance with the orders that I made on 10 October 2013.
The appeal has been called on for hearing today. It was called on at 10:00am. Mr Harshani did not appear. I held the matter for 30 minutes and
Mr Harshani still did not appear. I have had my court officer call the matter throughout the court precinct on several occasions this morning, and there has been no response from Mr Harshani and he has still not appeared.
The respondent is present at the hearing today.
I am satisfied that Mr Harshani is well aware of the date and time of the hearing of his appeal. As I say he was present on 10 October 2013 when the appeal was listed today for hearing.
I also note that Mr Harshani on 8 January 2014 lodged with the court for filing an application in an appeal and an affidavit. Those documents were not accepted for filing because the appeals registrar was uncertain as to what orders Mr Harshani was in fact seeking, and accordingly on that same day the documents were returned to him with a covering letter advising that if he wished to proceed with the application he would need to hand the documents up at the hearing of the appeal. In the body of that letter the date and time for the hearing of the appeal was confirmed. I am not aware of that letter being returned to the Southern Appeals Registry.
I might say that as with the appeals registrar it is not apparent what orders
Mr Harshani was seeking in those documents lodged on 8 January 2014. I have attempted to make some sense of them but frankly I cannot, and in his absence today I am not prepared to receive those documents for filing.
That leaves the appeal listed for hearing today.
Ms Darnith, the respondent, seeks that in the circumstances the appeal be dismissed, and I am disposed to do that.
I can also indicate, and I am comforted by this, that having read the relevant documents in relation to the appeal, and particularly the reasons for judgment of the Federal Magistrate, and the Notice of Appeal filed by Mr Harshani, that the appeal had no reasonable chance of success, and in all probability would have been dismissed in any event. Of course I have not heard oral argument from Mr Harshani, and so I allow for the possibility that if he did appear today and I permitted him to make oral argument in the absence of written argument, he could have persuaded me otherwise.
I confirm though that the reason that I am dismissing Mr Harshani’s Notice of Appeal is his failure to attend to prosecute the appeal today.
Having made an order dismissing the appeal Ms Darnith has made an application for costs, and as I understand it she is seeking the costs of the appearance by a solicitor on her behalf on Thursday 10 October 2013. Unfortunately though she is not in a position to indicate the amount of those costs, or provide me with any detail in relation to the same.
I have reminded Ms Darnith that the appearance on 10 October 2013 was a very short appearance, and I frankly would not expect the costs to be very much. That is not to say however that there were not any costs, but equally I note that it was a legal aid solicitor who appeared, and I do not know the arrangements in terms of the provision of legal aid for Ms Darnith.
In those circumstances, given that Ms Darnith cannot tell me what costs she seeks and the basis of the same, I am not in a position to make an order for costs in her favour today, and she does not proceed with her application now.
I have indicated to Ms Darnith that under the relevant Rules of Court she would have 28 days after the orders I make today to file a formal application seeking an order for costs, and that is an opportunity that is still available to her if she is able to sort out with legal aid what the costs are, and depending on the amount, whether she still feels that it is appropriate to pursue such an application.
I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
16 January 2014.
Associate:
Date: 17 January 2014
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