Kipling & Netis (No. 5)
[2021] FamCAFC 135
•15 July 2021
FAMILY COURT OF AUSTRALIA
Kipling & Netis (No. 5) [2021] FamCAFC 135
Appeal from: Netis & Kipling [2020] FCCA 2852 Appeal number(s): NOA 56 of 2020 File number(s): TVC 809 of 2015 Judgment of: STRICKLAND J Date of judgment: 15 July 2021 Catchwords: FAMILY LAW – APPEAL – Where the father’s appeal is listed for consideration of dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the father has not complied with an order for the payment of security for costs – Where there is no appearance by or on behalf of the father – Appeal dismissed. Legislation: Family Law Rules 2004 (Cth) rr 22.45, 22.45(3) Division: Appeal Division Number of paragraphs: 13 Date of hearing: 15 July 2021 Place: Brisbane by Microsoft Teams audio link The Appellant: no appearance The Respondent: In Person ORDERS
NOA 56 of 2020
TVC 809 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR KIPLING
Appellant
AND: MS NETIS
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
1.Pursuant to Rule 22.45 of Family Law Rules 2004 Appeal No. NOA 56 of 2020 be dismissed.
2.That there be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kipling & Netis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Before the Court today is an appeal filed by the appellant father on 3 November 2020.
On 1 September 2020 the appellant father filed an Application in an Appeal seeking an order extending the time to file a Notice of Appeal from orders made by a Judge of the Federal Circuit Court of Australia on 20 July 2020. The respondent mother filed a response primarily seeking the dismissal of that application, but in the event that an extension of time was granted, seeking an order for security for costs.
The application of the appellant father, seeking an order extending the time to file a Notice of Appeal was granted, and the Notice of Appeal filed on 3 November 2020 was filed as a result of that extension of time.
In relation to the question of security for costs, that was heard on 2 December 2020, and orders were made providing that within six months of that date the appellant father pay to the solicitors for the respondent mother the amount of $10,000 by way of security for the costs of the respondent mother in relation to the appeal, with such amount being held by the solicitors pending the outcome of the appeal.
There were two further orders made, namely, that pending payment of the amount for security for costs, the appeal be stayed, and that the costs of and incidental to that matter be reserved, pending the outcome of the appeal.
The period of six months expired on 2 May 2020, and the position is that the appellant father has failed to comply with the order made on 2 December 2020. As a result of that failure, on 16 June 2021, the Regional Appeals Registrar sent a letter to the parties, advising that the appeal was listed for hearing before this Court in the Brisbane Registry on Thursday 15 July 2021 at 10.00 am.
The purpose of that listing, as explained in that letter, was that on that date, this Court would consider whether to make an order dismissing the appeal, pursuant to Rule 22.45 of the Family Law Rules 2004. Rule 22.45(3) provides that this Court may make an order dismissing the appeal on its own initiative if, at least 14 days before making the order, written notice has been given to the parties of the date and time when the Court will consider whether to make the order.
I note that in that correspondence, although the date of Thursday, 15 July 2021 is the date set for the hearing, towards the end of the correspondence, an incorrect date is given, namely Tuesday, 13 July 2021. There is a simple explanation for that error though, and that is that, originally this hearing was to take place on Tuesday, 13 July 2021, but was subsequently changed to Thursday, 15 July 2021.
In any event, the assistant to the Appeals Registrar has informed the Court today that there has been no contact or correspondence from the appellant father in relation to this appeal since April 2021, and there has been no query from him as to whether the date of this hearing was to be 15 July 2021 or 13 July 2021. Further, the assistant to the Appeal Registrar tells the Court today that on 13 July 2021 there was no communication from the appellant father, for example, inquiring as to whether the hearing was to take place that day. Indeed, today there is no appearance by or on behalf of the appellant father. The respondent mother, though, has appeared, and I also note that this hearing is taking place by telephone link because, unfortunately, with COVID-19 restrictions, it has not been possible to conduct the hearing face‑to‑face in the Brisbane Registry.
Since that correspondence of 16 June 2021, there has been further correspondence emanating from the Appeal Registry. On 6 July 2021, an email was sent to the appellant father and the respondent mother was copied into that correspondence, and that email attached correspondence, dated the same date, namely 6 July 2021, addressed to both parties. I need only read the first paragraph of that letter, namely:
Further to my letter of 16 June 2021 I confirm that this Appeal remains listed for hearing before the Full Court on Thursday 15 July 2021 at 10.00am. Due to the ongoing Covid19 situation I confirm that this Appeal will now proceed by way of Microsoft Teams Audio Conference.
Thus importantly, there can be no doubt that the appellant father has been advised that this hearing is to take place today, namely 15 July 2021. The balance of that letter advises both parties as to how the hearing will be conducted and what is required in terms of Court procedural hearing logistics.
There was also a subsequent email sent to both parties, advising of the precise contact details for the hearing, and referring again to the hearing taking place at 10.00 am on Thursday, 15 July 2021. So again, I am satisfied that the appellant father was made aware that the hearing was to take place today.
Accordingly, in terms of addressing this matter today, the simple proposition is that the appellant father has failed to comply with the order made on 2 December 2020, providing that within six months of that date, he pay the amount of $10,000 by way of security for the costs of the respondent mother in relation to this appeal. As a result, pursuant to Rule 22.45, I propose to dismiss the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 29 July 2021
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