Hickey, B. and Scott, M.J.

[1987] FamCA 9

In the marriage of HICKEY, B. and SCOTT, M.J.

(1988) FLC ¶91-941

Other publishers' citations: (1987) 92 FLR 435 (1988) 12 FamLR 289

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 4 May 1987.

Before: Evatt C.J., Nygh and Burton JJ.

Evatt C.J.: In this matter an order was made by Ross-Jones J. on 18 December 1986. Included among the orders was an order dismissing the husband's application for access and an order that the parties should not assault, molest, annoy, disturb or interfere with each other, and as to the husband with the children. There were several other orders made on that occasion. On 7 January a form entitled notice of appeal was filed on behalf of the husband. We have that document before us. It is a Form 42 which is completed in some respects.

It identifies the order made on 18 December and it seeks that the order be set aside. In regard to grounds, it does not set out the grounds, but indicates that they would be supplied when the reasons for judgment were provided. Those reasons for judgment became available in January and it is now 4 May and no attempt has been made to supply any grounds of appeal. In my opinion the notice of appeal does not comply with the requirements of O. 32, r. 1(iv). It is defective and no attempt has been made on behalf of the appellant to rectify those defects, although it appears that attempts have been made on his behalf, though not until April this year, to seek legal aid. We are told that his application for legal aid has been refused and that there is an appeal pending.

Our attention has been drawn to the provisions of the Legal Aid Commission Act 1979 of New South Wales, in what is apparently a Xerox copy of part of that legislation. I do not really know what status this document has, but it seems to be an extract from there. It has been put before us and it has been suggested that we should be bound by it. I certainly take the view that we would not be bound by it as an Act of the State Parliament, but that we would take note of it in deciding what to do.

We are asked by the wife respondent to strike out the appeal, on the ground that it has not been prosecuted diligently by the appellant. We are asked by the appellant to allow the appeal to continue on the basis that the legal aid issue has not yet been determined, and that it is therefore not possible for the appellant to comply with the requirements of O. 32, r. 1.

In my opinion, the delay in seeking legal aid really lies at the door of the appellant. No attempt was made to do this until April. But in any event, it is not necessarily appropriate for this Court to rely on the fact that legal aid issues have not yet been determined in deciding what action to take in regard to an appeal. I mean by that that an appellant cannot simply hide behind the fact that legal aid issues have not been finally determined, as an excuse for not complying with the Family Law Rules in regard to appeals.

Those rules are there for a purpose, that a notice of appeal should comply with the requirements of O. 32. This notice does not comply and even though the means of compliance have been available to the appellant, at least since the end of January, no attempt has been made by him or his legal advisers to comply. We are told, which is not clear at all from the notice of appeal, that it is only the matters of access which are in issue. But I still come back to the basic proposition that there has been a complete failure to comply with the requirements of O. 32 r. 1(iv) in particular, and that failure has not been explained in any satisfactory way. There is no adequate reason why there should not have been compliance. There is no doubt in my mind that the appellant has failed to prosecute the appeal with reasonable diligence. As the notice itself is basically defective and has not been put in order I think the appropriate course for this Court to take is to strike out the notice of appeal.

Nygh J.: I agree with the Chief Judge, that the notice of appeal should be struck out. No proper notice of appeal has been filed in accordance with the rules, despite an extension of time. That defect has not been corrected, and even today we could not be told in accurate terms what the appeal was all about.

Burton J.: I agree with the reasons of her Honour the Chief Judge and my brother Nygh.

Evatt C.J.: The order of the Court will be that the notice of appeal filled on 7 January 1987 be struck out.