Jamine and Jamine

[2009] FamCAFC 86

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE [2009] FamCAFC 86

FAMILY LAW - Appeal – application for an indulgence – non-compliance with previous orders – indulgence granted

Family Law Rules 2004

APPLICANT: Mr Jamine

RESPONDENT: Ms Jamine

APPEAL NUMBER: SA 108 of 2008

FILE NUMBER: MLC 3286 of 2008

DATE DELIVERED: 12 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: O'Ryan J

HEARING DATE: 12 May 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 10 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W.M. Pinner

SOLICITOR FOR THE APPLICANT: BOWLEN DUNSTAN & ASSOCIATES PTY

COUNSEL FOR THE RESPONDENT: Mr N. Dragojlovic (solicitor)

SOLICITOR FOR THE RESPONDENT: LANTERN HILL LAWYERS

Orders

1. The Appellant Husband be granted leave to rely upon the Amended Notice of Appeal filed on 5 May 2009.

2. Orders 2, 3, 4 and 5 made on 24 March 2009 be amended by the deletion of “Tuesday 14 April 2009” and the insertion in lieu thereof of “Friday 29 May 2009”.

3. In the event that the Appellant Husband fails to comply with the preceding order his Notice of Appeal filed on 23 December 2008 be dismissed.

4. Orders 6 and 7 made on 24 March 2009 be amended by the deletion of “Tuesday 5 May 2009” and the insertion in lieu thereof of “Friday 12 June 2009”.

5. The Husband pay the Wife’s costs of and incidental to the appearance before me today, such costs to be assessed on an indemnity basis.

6. The hearing of the appeal to be on a date to be arranged with the Appeals Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Jamine and Jamine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SA 108 of 2008

MR JAMINE

Appellant

And

MS JAMINE

Respondent

REASONS FOR JUDGMENT  

1. Before me is what is in effect an oral application on behalf of the Appellant Husband for an indulgence.  The indulgence which is sought is to be relieved of the consequences of failure to comply with orders I made on 24 March 2009. 

2. Without referring to the relevant rule, insofar as, for example, the Family Law Rules may apply, those Rules make clear that if an order or direction is not complied with, then any step taken thereafter in purported compliance with the order or direction is of no effect.  What that means is that in this case the filing of the Amended Notice of Appeal on 5 May 2009 was of no effect as it should have been filed by 4:00 pm on 7 April 2009.  It was then incumbent upon the Appellant Husband to make an application to be relieved of that consequence.  That is the way in which I have approached the matter for the purposes of the exercise of my discretion.

3. I am also informed, quite candidly, by counsel for the Appellant Husband that there are other orders made on 24 March 2009 that were not complied with, and in particular, orders 2, 3, 4 and 5.  I am informed and accept that nothing has been done. 

4. The application is opposed by the Wife and her contention is that it is what her lawyer described as a delaying tactic. 

5. I am told that there are pending financial proceedings between the parties that have been transferred from the Federal Magistrates Court to the Family Court of Australia, and that there is a return date or date for hearing of such proceedings in August 2009.

6. I am informed that, for a reason that is not entirely clear to me and for my part I could see no possible foundation for it; the Husband is contending that such financial proceedings should be stayed pending the outcome of his appeal currently before me.  In relation to that, I emphasise that I cannot see what possible explanation there could be, but the matter is not before me and so I cannot formally conclude a view about it. 

7. I have also indicated in discussion both today and on an earlier occasion, my concern about the utility of this appeal, given that it is an appeal against a decree for dissolution of marriage, in circumstances where as at the present date, and as at a date of the proposed hearing of the appeal, there could be no controversy that a ground for divorce; namely irretrievable breakdown of marriage, will be established.  To that extent, it is difficult to see what the explanation for pursuing this proceeding is.  However, again, as I indicated in discussion, the Husband does have rights, and there may be other reasons which are not currently readily apparent to me.  Therefore, I again express no concluded view about it.

8. I propose to grant the indulgence sought.  I do so reluctantly, but note that it is a very significant position to take namely that non-compliance with orders should be a reason for a dismissal of proceedings.  That is not to say it should not happen, but in considering an exercise of discretion of the type I have to address today, I have to weigh the prejudice that would be caused to the Husband by refusing his application for an indulgence against the prejudice to the Wife of the effect of granting an indulgence. 

9. Ultimately, I am required to ensure that justice is done to all parties, and on balance, I have come to the conclusion that subject to the conditions that I have outlined in discussion, the interests of justice require that I grant the Husband one last opportunity.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Ryan

Associate: 

Date:  25 May 2009