HORWATE & HORWATE - [2015] FamCAFC 139

FAMILY COURT OF AUSTRALIA

HORWATE & HORWATE

[2015] FamCAFC 139

FAMILY LAW – APPEAL – Where the husband has not complied with the orders made to prepare the appeal for hearing – Where both parties are now 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:

Mr Horwate

RESPONDENT:

Ms Horwate

FILE NUMBER:

MLC

2927

2013

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

23 July 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

23 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2014

LOWER COURT MNC:

[2014] FCCA 2896

REPRESENTATION

APPELLANT:

In person - no appearance

THE RESPONDENT:

In person – no appearance

Order

The Notice of Appeal filed on 1 December 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Horwate & Horwate 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 86 of 2014
File Number: MLC 2927 of 2013

Mr Horwate

Appellant

And

Ms Horwate

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of an appeal filed by Mr Horwate (“the husband”) on 1 December 2014 against orders made by Judge Whelan on 5 November 2014.
I am told by my court officer that the matter has been called in the precincts of the court, but neither party has appeared. Despite that, I propose to proceed with the hearing.
On 6 January 2015 a draft appeal index was filed by the husband, as is required by the Family Law Rules 2004 (Cth) (“the Rules”). I note that at the hearing before Judge Whelan the husband appeared in person, but Ms Horwate (“the wife”) was represented by counsel.
In relation to the Notice of Appeal, and the draft appeal index, they were both filed by the husband’s solicitors, namely Bogunovic Lawyers.
The appeal first came before this court on 7 May 2015 when I conducted a directions hearing. At that hearing the husband was represented by counsel, Mr Levine. There was no appearance by or on behalf of the wife. I have inspected the first instance file, and on that file, on 29 April 2015, a Notice of Ceasing to Act was filed on behalf of the wife by her solicitors. It may not have been strictly necessary, but it would have been helpful if a Notice of Ceasing to Act had also been filed in relation to the appeal. Clearly then, from 29 April 2015, the wife did not have legal representation and that may explain her failure to attend the directions hearing on 7 May 2015. Of course though, as I said on 7 May 2015, there is no requirement for a respondent to attend a directions hearing, and albeit the wife did not attend, I was still able to proceed with that hearing.
On 7 May 2015 I made the usual orders in relation to listing the appeal for hearing, and preparing it for hearing, including orders providing for the obtaining of the transcript of the hearing, and the filing and serving of written summaries of argument and lists of authorities. The appeal was listed for hearing in either the week commencing Monday 6 July 2015 or Monday 20 July 2015. It was noted that in relation to the hearing date it would take place on either 7, 8, 22, 23 or 24 July 2015, and the court would advise the parties of the specific date for hearing as soon as possible. In that regard the Appeal Registrar forwarded a letter to the husband’s solicitors, and to the wife at her last known address for service, on 13 May 2015, advising that the appeal was listed for hearing before this court on Thursday 23 July 2015 at 10:00am.
The next thing to happen in relation to the appeal file was that the husband complied with the order made on 7 May 2015 for the transcript of the hearing before the trial judge to be obtained, and a copy of that transcript to be at least provided to the court, and that occurred on 15 May 2015. I do not know whether a copy was forwarded to the wife, but I am prepared to assume that it was, given that that would have been attended to by the solicitors who were then acting for the husband.
According to the orders made on 7 May 2015 the next thing to happen in relation to the appeal was the requirement for the husband to file a written summary of argument and list of authorities by close of business on 5 June 2015. The husband did not comply with that order.
On 26 May 2015 the solicitors for the husband filed a Notice of Ceasing to Act and in that Notice, as is required, they advised the court of the last known residential address of their client, the husband. It appears therefore that as at 26 May 2015 neither party was legally represented.
As a result of the failure by the husband to file his written summary of argument and list of authorities, on 10 July 2015 the Appeal Registrar sent a letter to the husband at his last know residential address, as provided by his solicitors, confirming the listing of the hearing of the appeal on 23 July 2015, referring to the orders made on 7 May 2015, and in particular the requirement to file the written summary of argument and list of authorities, and indicating to the husband that if he was not intending to proceed with the appeal he should file a Notice of Discontinuance. Indeed a copy of the requisite Notice of Discontinuance was attached to the letter that was sent to the husband.
There appears to have been no response to that letter, and certainly there has been no Notice of Discontinuance filed by the husband.
The orders of 7 May 2015 provided for the wife to file and serve a written summary of argument and list of authorities on or before the close of business on 30 June 2015. That order was not complied with, but in the normal course of events that would be understandable given the husband had failed to file his written summary of argument and list of authorities by 5 June 2015. It is of concern though that there has been no communication with the court by the wife in relation to the matter, either generally or specifically, in relation to documents required for the purposes of the hearing.
To repeat, the appeal has been called on today and there is no appearance by or on behalf of either party. Given that, what I propose to do is 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 an appeal. In my view both of those preconditions apply here, and pursuant to sub-rule (2), this court may dismiss the appeal. To repeat, that is what I propose to do in circumstances where the appellant husband here has not complied with the orders of 7 May 2015, and nor has he shown reasonable diligence in proceeding with the appeal.
To also repeat, it is of concern that the wife has not appeared today, and that there has been no communication from her to the court to indicate what her position is in relation to the appeal. However, that does not prevent me proceeding under r 22.45 in the way that I have indicated.
For completeness I can also indicate that having read the documents, and in particular the reasons for judgment of the trial judge, the transcript of the hearing before the trial judge, and the Notice of Appeal filed by the husband, in my view, this appeal had no reasonable chance of success. Of course 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 fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 23 July 2015.

Associate:

Date: 23 July 2015