JAMIR & DEVADA - [2015] FamCAFC 9

FAMILY COURT OF AUSTRALIA

JAMIR & DEVADA

[2015] FamCAFC 9

FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Notice from the Registrar – Where the mother filed the appeal books and has since failed to attend procedural hearings or respond to letters from the Appeals Registry – Where the mother was informed that the appeal was listed for dismissal pursuant to the Rules and did not appear – Appeal dismissed.

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

APPELLANT:

Ms Jamir

RESPONDENT:

Mr Devada

FILE NUMBER:

PAC

7057

2007

APPEAL NUMBER:

149

2013

DATE DELIVERED::

5 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Ryan JJ

HEARING DATE:

5 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

25 September 2013

LOWER COURT MNC:

[2013] FCCA 2002

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

The appeal NA 149 of 2013 be dismissed for want of prosecution pursuant to the provisions of Rule 22.45 of the Family Law Rules 2004 (Cth).
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamir & Devada has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 149 of 2013
File Number: PAC 7057 of 2007

Ms Jamir
Appellant

And

Mr Devada

Respondent

REASONS FOR JUDGMENT

The Registrar having given the necessary written notice to the parties, this is a hearing to consider the dismissal of an appeal pursuant to rule 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
Rule 22.45(1)(b)(iii) provides that where a party has not shown reasonable diligence in proceeding with an appeal, then under rule 22.45(2)(a), applicable to an appellant, the court may dismiss the appeal.
By notice of appeal filed on 23 October 2013, Ms Jamir (“the mother”) appeals orders made by Judge Henderson on 25 September 2013.
At the hearing of this matter today there was no appearance by the appellant mother or the respondent father.
The orders of the judge provided:
1.The mother’s lawyers have leave to withdraw.
2.The father [Mr Devada (“the father”)] shall have sole parental responsibility for the child … born … 2001 [(“the child”)].
3.The child shall live with the father.
4.Any time the child spends with the mother shall be at the sole discretion of the father.
5.The name of the child … born … 2001 be removed from the Airport Watch List.
6.The father is authorised to sign all documents necessary for a passport to issue for the child in the absence of the consent or otherwise of the mother.
7.The father may take the child outside of the Commonwealth of Australia on any occasion he chooses.
8.The mother to pay to the father or as he directs his costs of these proceedings being the sum of $3,884 no later than 5 December 2013.
These orders were first made on 9 July 2013 and confirmed by Judge Henderson on 25 September 2013 on an undefended basis.
There are five grounds of appeal. The mother asserts:
1.Orders were made on an undefended basis on 25 September 2013 without the knowledge of the appellant.
2. The Orders exclude the mother from the life of the child.
3. The Orders are therefore not in the best interests of the child.
4.The appellant, who was the applicant in the proceedings, was suffering from ‘supraventricular tachycardia’ and for health reasons, was unable to attend the proceedings. An agent of the Applicant’s solicitor attended Court on 25 September 2013 and withdrew without the appellant’s knowledge or permission.
5.The proceedings did not afford the appellant procedural fairness or justice.
The mother failed to communicate with the Registry from 22 May 2014 to 4 December 2014 and no steps were taken to progress the appeal since 2 April 2014. The Appeals Registrar advised the mother on 4 December 2014 that the matter would be listed for dismissal, which is the subject of this hearing.

Background

There is a lengthy administrative background to this matter. Correspondence between the Appeal Registrar (“the Registrar”) and the mother is summarised in the paragraphs below.
A week after the appeal was filed, the Registrar wrote to the mother on 30 October 2013. The letter set out the background to the filing of the notice of appeal. Relevantly, the Registrar noted:
You were advised that if you were seeking expedition, you would need to file an application in an appeal with a supporting affidavit seeking expedition.
…
In the meantime you should be aware that it is a matter for the Federal police as to whether they will include the child on the airport watchlist on the basis that an appeal has been filed. The appeal registry has no obligation to advise the Federal police that an appeal has been filed, and it is the responsibility of the parties to advise the Federal police of any airport watch list application made.
On 4 November 2013 the Federal police contacted the Registry advising that the child departed Australia on 1 November 2013 and that enquiries were being made into the circumstances surrounding the departure and travel.
On 5 November 2013 the mother responded to the letter from the Registry and advised:
this is a notice of discontiune to appeal the child has been taken out of Australia its too late to appeal
(errors as per original)
On 7 November 2013 the mother emailed the Registry and advised:
even the fact that the […] was taken away from Australia but Would like to inform you to keep the appeal to the decision made by Judge Hinderson [sic] as this judge made the decision with out the mother existance [sic] and the child was taken away from Australia and the me (the mother) collapsed in heart attack so would like to inform you to keep the appeal process in place, this judge made terrible wrong decision to give full custody to dad only and he might take her to make her marry overseas or the child could loss her future so for the sake of this child please keep the appeal process in place
(original emphasis)
On 14 November 2013 the Registrar emailed the mother with the draft procedural orders. The Registrar noted:
Please note that, unless expedited, appeals are prioritised for hearing dates in order of the date of filing of the appeal books.
…
Because the appeal is against an order removing a child from the airport watchlist, the appeal is able to be administratively expedited…Subject to the appeal books being filed in time, the appeal may be able to be heard by the Full Court sitting in Sydney in the week commencing 2 December 2013, possibly on 6 December 2013.
Please advise me in writing, by 4.00pm on Monday 18 November 2013 whether or not you agree with the draft orders.
…
Unless I receive any written objection from either party to the procedural orders by 4.00pm on Monday 18 November 2013, I will issue sealed orders in accordance with the draft orders.
…
In the meantime the appellant should obtain the transcript and be ready to proceed to prepare and file the appeal books.
(original emphasis)
Also on 14 November 2013, the Registrar forwarded the email sent to the mother to the father’s legal representatives.
On 16 November 2013 the mother emailed the Registrar advising:
Dear Sir/Madam
I'm overseas and I will be away in the given date due to illness ,I wish that the appeal will take its normal time till next year ,and I'm not healthly enough to provide all paper work to be expediate it at this stage cuase I'm overseas and I won't be able to prepare the documents requested in time , and also my daughter was taken overseas ,so I do agree that this apeal take its normal time without expedition,it will be also better for me to be allocated a hearing date before late 2014, so I will have time to prepare and moeny for solicitors as in the mean time I can't afford the soliciting fees so I do agree to leave it with out expedition.

thanks for your time
(errors as per original)
On 21 November 2013 the Registrar wrote to the mother stating:
I refer to my email of 14 November 2013 and your response of 16 November 2013 advising that you are out of the country and do not seek expedition of your appeal.
I advise that the hearing date of 6 December 2013 has been vacated and amended draft procedural orders will be forwarded, and a date for procedural hearing listed, in 2014.
On 21 November 2013 the Registrar wrote to the father and enclosed a copies of the following:
a)the email dated 14 November 2013 attaching draft procedural orders for the parties’ approval;
b)the email from the appellant to the appeal registry dated 16 November 2013; and
c)the letter from the appeal registry to the appellant dated 21 December 2013.
The Registrar advised the father:
…that a copy of that email [dated 14 November 2013] was sent to your former solicitors…and the appeal registry was subsequently advised they had no instructions to represent you in the appeal.
The appeal registry requested that those solicitors provide the appeal registry with an email address for you however they have not done so. The email address used in this letter was obtained from an attachment to your affidavit…
…
I advise that in light of the appellant’s email dated 16 November 2013, the appeal, which was to have been listed for hearing on 3 December 2013, will no longer be heard on that date.
…please file a Notice of Address for Service…with the appeal registry at your earliest convenience.
On 20 January 2014 the Registrar advised both parties:
The draft index required by Rule 22.13 of the Rules was filed on 24 October 2013.
I give notice in compliance with Rule 22.15 of the Rules, that I will conduct a procedural hearing…on 2 April 2014 at 10:00am. This will be the first court date.
…the onus will be on the appellant to satisfy the Court that the respondent has notice of the date, time and place of the procedural hearing and has been served with the Notice of Appeal and with any documents in support of the appeal.
At the procedural hearing the Registrar will:
1.decide which documents and other material are to be included in the appeal papers;
2.decide which parts of the transcript of proceedings are relevant and to be included in the appeal books;
3. settle the index to the appeal papers;
4.decide how many copies of the appeal papers are required and how they are to be prepared;
5.require from the parties’ estimates of how long the hearing of the appeal is likely to take;
6.make an order directing who is to be responsible for preparing the appeal papers; and
7.fix a day by which the appeal papers must be filed and served.
A notice of address for service was filed on behalf of the mother by Batey’s Family Lawyers on 2 April 2014 and was subsequently withdrawn on 15 April 2014.
On 2 April 2014 the Registrar made orders to adjourn the procedural hearing until 21 May 2014. Neither the mother nor the father attended the procedural hearing.
On 21 May 2014 the Registrar emailed the mother:
I refer to the procedural hearing on 2 April 2014 which was adjourned to today [21 May 2014] at 10.00am.
I note that there was no appearance by you or on your behalf today and that there was no appearance by or for the respondent.
I note that the solicitor who acted for you on 2 April 2014 filed a Notice of Ceasing to Act on 15 April 2014.
I further note that during the procedural hearing on 2 April 2014 there was a discussion with you and your solicitor about the utility of the appeal given your advice that you have no knowledge of the respondent nor your daughter’s whereabouts.
If you do not intend to pursue the appeal, please complete and forward the attached blank Notice of Discontinuance to the appeal registry.
…
If you intend to pursue the appeal, please advise me in writing as to your intention within 7 days.
If I do not hear further from you within 7 days, I will take steps to list the appeal before a Full Court for consideration of dismissal of the appeal.
On 22 May 2014 the mother emailed the Registrar, stating:
I’m in my country of origin & I’m very sick, I wish to postpone my case till Aughest [sic] if possible
On 4 December 2014 the Registrar wrote to the parties and advised:
There has been no further communication from the appellant since 22 May 2014, and no steps have been taken by the appellant to progress the appeal since 2 April 2014.
The Family Law Rules (rule 22.45) provide that if an appellant has not shown reasonable diligence in proceeding with an appeal, then the court may list the appeal in order to consider its dismissal on 14 days written notice to the parties.
In accordance with this rule, your appeal has been listed at 10.00am on Thursday 5 February 2015 in the Sydney Registry located at 97-99 Goulburn Street, Sydney, for the court to consider whether to dismiss your appeal for want of prosecution.
Neither the appellant nor the respondent is required to attend on that day, but the parties should be aware that if they do not attend, the court may dismiss the appeal in their absence.
(original emphasis)
On 5 December 2014 the mother replied to the Registrar’s email attaching the letter sent on 4 December 2014, stating:
I’m overseas since May for medical treatment, I can provide the court with medical report explaining my health condition deteriorated since the court decision
Please don’t dismiss the case & give me chance to see my daughter
I confirm the date 5th of Feb 2015.
On 8 December 2014 the Registrar emailed the mother confirming the date for consideration of dismissal of the appeal on 5 February 2015. In this email, the Registrar stated:
If you seek to pursue your appeal and/or to place material before the Full Court regarding your appeal, you should file an application in an appeal with a supporting affidavit, setting out the evidence on which you seek to rely.
You should obtain independent legal advice as to the appropriate orders to be sought in the application.
I attach blank copies of the application and affidavit for your convenience.
On 8 December 2014 the mother responded to the Registrar’s email, stating:
No please I don’t want the appeal to be dismissed, I will be back to Australia at the 1st of Feb, please advice [sic] me if I full [sic] these papers & attach a medical certificate explaining my health condition, can we go on with the appeal?
The Registrar responded on 9 December 2014:
I am unable to advise you as to the possible outcome of any application filed by you.
You should obtain independent legal advice regarding Rule 22.45 and the listing before the Full Court on 5 February 2015.
On 15 December 2014 the mother emailed the Registrar, attempting to authorise a representative and her parents to appear on her behalf:
Authorize a representative and my parents [sic] to discuss my matter case
…
As I am overseas unable to do it strait [sic] away within court time due to health condition. Authorize a representative to discuss my matter case
…
I have acceptable reasons and can provide the court if necessary, As I’ve attached a copy of the my medical report and the reason why I couldn’t attend the last court case II [sic] collapsed with a heart condition.
I can not afford legal representation at this time and I need help.
I give full authority to
A representative, and my parents.
will be appearing on my behalf and for preparing the application in appeal also the affidavit.
Please see attached my Medical Report
On 18 December 2014 the Registrar responded to the mother, noting:
I refer to the email below and confirm telephone advice that the appeal registry is unable to provide any information regarding the appeal to people who are not parties to the appeal or are not legal representatives of parties to the appeal.
You have been advised that if you seek to pursue your appeal you are required to file an application in an appeal setting out the orders that you would like the Full Court to make when the appeal is next listed at 10.00am on Thursday 5 February 2014, together with an affidavit setting out the evidence on which you seek to rely in support of the application. I note that the medical report attached to your email below is dated 11 July 2013 and is therefore some 17 months out of date. It is unlikely that medical report would be considered persuasive by the Full Court as to your current medical condition, nor regarding your inability to pursue the appeal since your last court appearance on 2 April 2014.
It is not possible for you to authorise people who are not legal representatives to file documents on your behalf nor appear on your behalf before the Full Court.
(original emphasis)
On 6 January 2015 Bazzi Lawyers emailed the Registrar:
We have recently received instructions to act for the Appellant, in relation to the abovementioned matter. We are yet to receive the Appellant's file as she is currently overseas.
Can you please in the mean time advise if the Appellant's previous solicitors have so far complied with filing and serving appeal books, certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004 and the Appellant's Summary of Argument and List of Authorities as ordered by the court? The Appellant seems to think this order has been complied with but she is not too sure and cannot get hold of her previous solicitors. Thank you.
On 12 January 2015 the Registrar responded to Bazzi Lawyers, stating:
I refer to your email below and advise that if you are acting for the mother in the appeal, you should file a Notice of Address for service immediately, following which I will be able to provide you with information regarding the current status of the appeal.
Until I receive such Notice I am unable to provide you with any information regarding this matter.
On 23 January 2015 the father emailed the Registrar attaching a number of documents. The Registrar responded on that same date, requesting:
I reiterate that if you wish to place any material before the Full Court at the hearing listed on 5 February 2015 during which the Full Court will consider dismissing the appeal, you should do so by way of an application in an appeal with supporting affidavit.
…
The material set out in, and attached, to, your email below is not in a form which will allow it to be placed before the Full Court.
All correspondence regarding the appeal should be copied to the other party, and I have copied this email to the appellant’s email address.
On the same day, the mother responded to the Registrar’s email noted above stating:
I still don't fell well, I'm outside Australia at the country of origin , I'm in a very critical situation not healthy enough at the stage and can't afford to pay any lawyer fees ,the legal aid refused to help me , not sure if I have the option to postpone the case again till end of the year .
I really appreciate that you are giving me chance to see my daughter again but at the stage I'm very sick and financially suffering ,I can't even pay the court fees
(errors as per original)
The Registrar responded to the mother:
The emails that you have sent over recent weeks and months are not evidence that can be placed before the Full Court.
If you do not attend the hearing on 5 February 2015, or do not instruct legal representatives to appear on your behalf on that date, the appeal may be dismissed in your absence.
No appeal books or summary of arguments have been filed by the mother.

possible merits of the appeal

It is instructive in considering whether the appeal should be dismissed to have regard to the reasons of the primary judge.

A concern of the judge included that the mother failed to engage in the proceedings in a meaningful way.
The judge considered that the mother had effectively abandoned the child and had little regard for the child’s needs, including her care arrangements (at [3]).
The judge noted that she could not assess the benefit of the child having a meaningful relationship with the mother as she had failed to engage in the proceedings (at [4]).
There were a number of serious concerns referred to by the judge when discussing the relationship of the mother and the child:
4. …Having a relationship with the mother may expose this child to significant risk of harm due to her mother’s behaviour and conduct and lack of understanding of the needs of the child. The mother has made life extremely difficult for the child and the father, and has behaved in a manner that has caused the father great difficulty in being involved in his daughter’s life.
5. This child has not been well cared for by the mother. An AVO was taken out against the mother on 2 July 2013 to protect the child from her mother’s violent behaviour. It is clear the mother and the child have a difficult relationship and rather than the mother seeking assistance and support to repair that relationship she hid these difficulties from the father including her address.
At [8] the judge found on a final undefended basis that it was appropriate to rebut the presumption of equal shared parental responsibility as it was neither practical, realistic nor in the child’s best interests to be shared. The judge also made an order to permit the father to obtain a passport for the child and discharging any airport watch list (at [13]).
The judge made an order for costs in favour of the father.
No order was made for time, given the mother’s violent history with the child. The orders provided that the mother could have time with the child only if the father deems it appropriate, and such time would be at his sole discretion (at [9]).

Conclusion

As can be seen, numerous attempts were made by the Appeals Registrar to assist the mother, including adjourning the procedural hearing and vacating the expedited hearing date.
The mother failed to contact the Registrar in the appropriate time frame to advise if she intended to continue with the appeal. Other than the correspondence to which we have referred no documents have been filed by or on behalf of the mother.
The mother has failed to appear in person today or to properly appoint a legal representative.
In accordance with the Rules, the appeal should be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 February 2015.

Associate:

Date: 5 February 2015