Kelman and Pearson
[2014] FamCAFC 75
FAMILY COURT OF AUSTRALIA
| KELMAN & PEARSON | [2014] FamCAFC 75 |
| FAMILY LAW – APPEAL AGAINST ORDERS OF A FEDERAL CIRCUIT COURT JUDGE – Where the Federal Circuit Court judge ordered that the appellant sign passport documentation for the child – Where the Federal Circuit Court judge ordered that the respondent have leave to holiday with the child overseas – Where the appeal has no utility as the time for overseas travel allowed by the order has already passed – Where the appellant has failed to comply with the directions of the Regional Appeals Registrar – Where the appellant failed to appear - Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Kelman |
| RESPONDENT: | Ms Pearson |
| FILE NUMBER: | CSC | 141 | of | 2008 |
| APPEAL NUMBER: | NA | 61 | of | 2013 |
| DATE DELIVERED: | 12 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 12 March 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1994 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The appeal filed 22 October 2013 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelman & Pearson 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 BRISBANE |
Appeal Number: NA 61 of 2013
File Number: CSC 141 of 2008
| Ms Kelman |
Appellant
And
| Mr Pearson |
Respondent
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
Ms Kelman, (“the mother”) filed a notice of appeal on 22 October 2013 against all the orders made by Judge Coker on 8 October 2013. Those orders are as follows:
(1)That the Mother sign all documentation necessary to enable the Father to obtain a passport for the child [X] born [in] 2002 within 48 hours of the date of this order, and in the event that the Mother does not sign all necessary documentation, that the Registrar have the power to sign in her place.
(2)That the Father have leave to holiday with the child from 1 November 2013 to 17 November 2013.
(3)That the Father provide the Mother, at least 7 days prior to departure from the Commonwealth of Australia, with an itinerary outlining the following:
(a) The departure date;
(b) The return date; and
(c)As best as possible, dates in relation to where the child will be during the holiday period.
(4)That the Father facilitate 3 telephone calls each week as a minimum by the child to the Mother during the holiday period and that the Father be responsible for the making of the calls and ensuring the calls occur.
(5)That the Mother have compensatory time of 14 days with the child, and that such time is to be added to her time to be spent with the child during the 2013 gazetted Christmas school holiday period.
I hear this appeal as a single judge pursuant to a direction issued by the Chief Justice on 23 January 2014 under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Apart from order (1) requiring the mother to sign documents to enable Mr Pearson (“the father”) to obtain a passport for the child, it can be seen that the time for the holiday has passed.
In any event, on 30 October 2013 the order was stayed and an order was made as follows:
4.That the child’s passport be held by the Registry Manager of the Federal Circuit Court of Australia in [C] to be released upon joint request of the parties or order of a Court of competent jurisdiction.
I intend to dismiss the appeal, the effect of which (for the benefit of the parties) is that the operation of the order is restored.
On 3 February 2014 directions were made in relation to the hearing of the appeal. The appeal was listed for hearing today. It was directed that:
5.That the appellant by 4.00pm on Friday 14 February 2014 obtain and provide copies thereof to the Court and the Respondent the transcript of the evidence before Judge Coker at the hearing of the proceedings on 8 October 2013.
6.That the Appellant file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 21 February 2014.
7.That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 7 March 2014.
The appellant has not complied with paragraph 5 and 6 of those directions.
The Registrar has informed the mother of her failure to comply by letter, email and telephone calls.
By letter dated 24 February 2014, the appellant was reminded of her failure to comply. In accordance with r 22.45 of the Family Law Rules 2004 the mother was given notice that her failure to comply may lead to dismissal of the appeal.
On 7 March 2014 the father filed a summary of argument.
The summary of argument filed by the respondent also asks that the parenting orders be reconsidered. This is not something that can be considered in this appeal.
I understand that the matter has been listed for hearing before a judge on 31 March 2014 when Mr Pearson will no doubt raise those matters.
I am informed that there has recently been some telephone communication when the appellant has indicated she wished to proceed with the appeal. No transcript of the proceedings or summary of argument has been filed by her.
Today Ms Kelman did not appear. The court waited for 10 to 15 minutes after 10:00 am. There was no appearance by her or on her behalf.
CONCLUSIONS
The appeal should be dismissed.
In accordance with r 22.45(3) the appellant was given at least 14 days’ notice of the likely dismissal of her appeal. The appellant has not filed the transcript and the summary of argument as she was required to do by the directions made on 3 February 2014. There has been no application filed seeking an extension of time. Apart from failing to file the documents the appellant has not shown reasonable diligence in proceeding with the appeal and has not attended today for the hearing of her appeal.
In any event, the appeal has no utility. The time for the child to travel overseas has long passed. Should the father wish to travel with the child in the future an application may be filed in the Federal Circuit Court. The mother could file any material upon which she wishes to rely in response.
COSTS
The father appeared for himself and explained that he has no legal costs. Thus there will be no order as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered ex tempore on 12 March 2014.
Associate:
Date: 12 March 2014
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