Herbst and Ruhle and Ors
[2018] FamCAFC 14
•30 January 2018
FAMILY COURT OF AUSTRALIA
| HERBST & RUHLE AND ORS | [2018] FamCAFC 14 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appellant has failed to prosecute her appeal against interim orders – Where the appeal is otiose given that final orders have been made – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Herbst |
| FIRST RESPONDENT: | Mr Ruhle |
| SECOND RESPONDENT: | Mr Wadsworth |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Heinz |
| FILE NUMBER: | MLC | 493 | of | 2007 |
| APPEAL NUMBER: | SOA | 109 | of | 2016 |
| DATE DELIVERED: | 30 January 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 January 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 March 2017 |
| LOWER COURT MNC: | [2017] FCCA 2780 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE FIRST RESPONDENT: | No appearance |
SOLICITOR FOR THE FIRST RESPONDENT: | Victoria Legal Aid |
| THE SECOND RESPONDENT: | Self-represented – no appearance |
| INDEPENDENT CHILDREN’S LAWYER | Heinz & Partners |
Orders
The Notice of Appeal filed 16 December 2016 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herbst & Ruhle and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 109 of 2016
File Number: MLC 493 of 2007
| Ms Herbst |
Appellant
And
| Mr Ruhle |
First Respondent
And
| Mr Wadsworth |
Second Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Before the court is a Notice of Appeal filed by Ms Herbst (“the mother”) on 16 December 2016, appealing against interim parenting orders made by Judge Curtain on 18 November 2016.
Following the filing of the Notice of Appeal, the Appeal Registrar wrote to the mother advising her that she would need to file an Amended Notice of Appeal to name the first applicant as a respondent to the appeal, and also advising her that the appeal was unlikely to be determined prior to 20 March 2017, being the date fixed for the final hearing of the applications before the trial judge.
Despite that advice from the Appeal Registrar, the mother did not file an Amended Notice of Appeal, and in effect, did nothing in relation to the fact that the appeal was unlikely to be heard prior to the final hearing of the matter before the court.
As is necessary in any appeal, the trial judge’s reasons for judgment need to be provided, but unfortunately in this case, the trial judge did not provide any reasons for judgment to enable the appeal to proceed for some time.
Despite this, the matter proceeded in the lower court, and on 20 March 2017, final parenting orders were made. Pausing there, plainly as a result of those final orders the appeal against the interim orders became otiose. Nevertheless, the Appeal Registrar continued to await receipt of the reasons for judgment of the trial judge, but they were still not forthcoming. Nor, might I add, was there any communication from the mother indicating whether she still wished to proceed with the appeal.
On 20 October 2017 the Appeal Registrar wrote to the mother querying whether she wished to pursue her appeal, but no response was received.
Finally, on or about 15 November 2017 the reasons for judgment were published by the trial judge. Accordingly, on 16 November 2017, the Appeal Registrar wrote to the mother confirming this, and noting that final orders were made on 20 March 2017, that the interim orders had been overtaken by the final orders, that the mother had not sought to appeal the orders made on 20 March 2017, and referring the mother to the previous letter dated 20 October 2017.
The letter of 16 November 2017 concluded with a request that the mother advise the Appeal Registrar within 28 days whether she wished to continue with the appeal, and indicated that if she did not respond, the appeal would be listed for dismissal.
It appears that the next communication was an email from the mother on 28 November 2017 referring to previous communications, indicating that the mother had some questions about the matter, and suggesting that she did not quite understand what was happening. In that letter the mother indicated that she would greatly appreciate if her appeal could proceed, and looked forward to hearing from the Appeal Registrar.
The Appeal Registrar replied, indicating that she was happy to respond to any questions, but she was unable to provide legal advice.
On 29 November 2017, the mother responded to the Appeal Registrar’s email raising a number of questions directed primarily to the issue of the final orders made on 20 March 2017.
On 30 November 2017, the Appeal Registrar responded, indicating to the mother that the appeal that she had filed was an appeal against the interim orders made on 18 November 2016, and again enquiring of the mother whether she wished to continue with that appeal. In relation to the orders made on 20 March 2017, the Appeal Registrar advised the mother that if she wished to appeal those orders she needed to file an application seeking, in effect, an extension of time.
The mother responded on that same day, namely 30 November 2017, thanking the Appeal Registrar for the information that she provided, and indicating that she would follow her directions, but curiously, only referring to the orders made on 20 March 2017, and in effect saying that she would send through her appeal against those orders.
Despite the email from the mother of 30 November 2017, nothing was received thereafter by the Appeal Registrar, either in relation to the final orders made on 20 March 2017 or, more importantly, for the purposes of the appeal that is before the Court today.
Accordingly, on 11 January 2018, the Appeal Registrar wrote to all of the parties in the matter, including the Independent Children’s Lawyer (“ICL”), advising that the matter had been listed before this Court on Tuesday 30 January 2018, at 9:00am for dismissal of the Notice of Appeal filed on 16 December 2016.
The matter has been called on today and there is no appearance by the mother. I note that there is also no appearance by the other parties or the ICL, but that is not unexpected. On 18 January 2018 the ICL wrote to the Appeal Registrar advising that the ICL was not funded with regard to the appeal, and requesting to be excused from appearing on 30 January 2018. The Appeal Registrar responded, at my direction, excusing the ICL from attending today.
In relation to the first respondent, a letter was received by the Appeal Registrar on 25 January 2018 from his solicitor, referring to the history of the matter and, particularly, that final orders were made on 20 March 2017, indicating that the father did not seek to have those orders varied, and submitting that the matter should be finalised with the mother’s appeal being dismissed as she had not complied with the procedural requirements for that appeal.
Pausing there, it seems that the first respondent’s solicitor is there confusing the appeal that is before the Court today, with the question of any appeal against the orders made on 20 March 2017, and I confirm there has been no appeal lodged against those orders. Thus, unfortunately, that letter is not directed to the appeal before the court today but, in any event, the letter indicates that the first respondent lives some way out of Melbourne and it would be difficult for him to attend Court today.
There has been no communication received by or on behalf of the second respondent.
Given the failure by the mother to prosecute the appeal, and her failure to attend today, I propose to dismiss her appeal. Also, in my view, this appeal is otiose, given that final orders were made on 20 March 2017.
I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court delivered on 30 January 2018.
Associate:
Date: 12 February 2018
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