HOUGH & MARSDEN

[2018] FamCAFC 24

FAMILY COURT OF AUSTRALIA

HOUGH & MARSDEN [2018] FamCAFC 24

FAMILY LAW – APPEAL – Where the appellant has not appeared and there has been no communication from her as to her intentions with regard to the appeal – Where the respondent seeks that the appeal be dismissed – Where the appellant has failed to comply with previous orders of the court, and has failed to attend to prosecute her appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks his costs thrown away – Where there are circumstances justifying the making of such an order – Costs ordered as sought by the respondent.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.45

APPELLANT: Ms Hough

RESPONDENT: Mr Marsden

FILE NUMBER: ADC 4256 of 2012

APPEAL NUMBER: SOA 60 of 2017

DATE DELIVERED: 12 February 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 12 February 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 July 2017

LOWER COURT MNC: [2017] FCCA 1662

REPRESENTATION

THE APPELLANT: In Person – No appearance

COUNSEL FOR THE RESPONDENT: Mr Peters

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

Orders

1. The Notice of Appeal filed on 15 August 2017 be dismissed;

2. The appellant pay the costs of the respondent thrown away today fixed in the sum of $300 plus GST.

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 Hough & Marsden 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 60 of 2017
File Number: ADC 4256 of 2012

Ms Hough

Appellant

And

Mr Marsden

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an adjourned directions hearing in relation to this appeal.

2. The Notice of Appeal was filed on 15 August 2017 by Ms Hough (“the mother”), appealing against orders made by Judge Mead on 19 July 2017.  Those orders were orders made by her Honour consequent upon her Honour making certain findings in relation to two applications alleging contraventions filed by Mr Marsden (“the father”).

3. In summary, her Honour found the mother guilty of six separate contraventions of previous orders made in the Federal Circuit Court of Australia.

4. Her Honour, in the preamble to the order made on 19 July 2017, noted what she considered to be an appropriate penalty, but that issue was adjourned to 22 August 2017.  I am told by counsel for the father that penalty has not yet been imposed, primarily as a result of this appeal not yet having been finalised. 

5. The Notice of Appeal first came before this Court on 10 November 2017.  At that directions hearing the mother, through her solicitor, sought an adjournment to enable more time to obtain the transcript, to allow counsel to be briefed to address the issue of amending the grounds in the Notice of Appeal, and to seek counsel’s advice with regard to the mother filing an application seeking to lead further evidence.

6. That application for adjournment was granted, and further consideration of the Notice of Appeal was adjourned to 15 December 2017.

7. On 15 December 2017, the mother appeared without legal representation and, indeed, on 28 November 2017, the mother’s solicitor filed a Notice of Ceasing to Act.  In any event, the mother sought a further adjournment to allow her to attend to the matters raised on the previous occasion, which had not in fact been attended to.

8. The father opposed that application and sought dismissal of the appeal.

9. In the end result though, I determined to adjourn the matter to today.  I made further orders that on or before the close of business on Wednesday 31 January 2018 the mother file and serve an Amended Notice of Appeal, she file and serve any application to lead further evidence, together with any affidavit containing that evidence, and she pay the costs of the father thrown away that day fixed in the sum of $300 plus GST.

10. The appeal has been called on today and there is no appearance by on or behalf of the mother.  No communication has been received by or on her behalf to explain her absence, and counsel for the father tells me that his firm has not been advised by the mother, or anyone acting on her behalf, that she would not be attending today.  Indeed, there has been no information from the mother as to her intention in relation to the appeal, and that is concerning, given that the matter is still proceeding in the court below in relation to parenting issues, and it is next on for hearing before the primary judge on 17 May 2018.  I am further told that a family assessment report is also being prepared.

11. Given the failure by the mother to comply with the orders made on 15 December 2017, and given her failure to appear today to prosecute the appeal, I propose to dismiss the appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth).

12. Given that intimation, I now have an application for costs thrown away today in relation to this appeal.

13. I am satisfied that it is appropriate to make an order for costs and that there are circumstances justifying such an order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 12 February 2018.

Associate: 

Date:  20 February 2018