Lamery and Beason
[2016] FamCAFC 105
•14 June 2016
FAMILY COURT OF AUSTRALIA
| LAMERY & BEASON | [2016] FamCAFC 105 |
| FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Notice from the Registrar – Where the appellant failed to file a transcript and summary of argument as required by the procedural orders – Where the appellant failed to attend the procedural hearing or respond to letters from the Appeals Registry – Where the appellant was informed that the appeal was listed for dismissal pursuant to the Family Law Rules 2004 (Cth) and did not appear – Appeal dismissed and no order as to costs. |
| Family Law Rules 2004 (Cth) r 22.45 | ||
| APPELLANT: | Mr Lamery | |
| RESPONDENT: | Ms Beason |
| FILE NUMBER: | BRC | 5351 | of | 2015 |
| APPEAL NUMBER: | NA | 81 | of | 2015 |
| DATE DELIVERED: | 14 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 14 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 October 2015 |
| LOWER COURT MNC: | [2015] FCCA 3282 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | Ms Beason (in person) |
Orders
The appeal be dismissed for want of prosecution pursuant to the provisions of Rule 22.45 of the Family Law Rules 2004 (Cth).
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamery & Beason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: NA81 of 2015
File Number: BRC5351 of 2015
| Mr Lamery |
Appellant
And
| Ms Beason |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
By way of a Notice of Appeal filed 12 November 2015, Mr Lamery (“the appellant”), appeals against property orders made on 19 October 2015 in the Federal Circuit Court of Australia. Those orders provided that the appellant transfer to Ms Beason (“the respondent”), a property at Suburb B, Queensland, and orders in relation to entitlements to superannuation. Various other orders were made, including for spousal maintenance.
Background and Reasons of the Primary Judge
The orders made by Judge Demack on 19 October 2015 were made upon the respondent asking for orders by default. The ex-tempore reasons explain the attempts made by the respondent to effect service on the appellant, including via post, email and social media (at [3]). The transcript of the hearing reveals the respondent was in contact with the appellant’s mother (Transcript 19 October 2015, p. 2, l. 40) and had also asked the parties’ child to message the appellant through social media (Transcript 19 October 2015, p. 3, l. 3).
The transcript also reveals that the appellant was put on notice when it was ordered during a previous hearing that if he failed to appear for the determination of the matter it would proceed on an undefended basis (Transcript 19 October 2015, p. 2, l. 9).
Having demonstrated adequate service, the matter proceeded on an undefended basis, and Judge Demack found the respondent was entitled to a property adjustment of approximately 60 per cent in her favour:
11.Firstly, I am satisfied that it’s just and equitable to adjust the parties’ property between them, they having separated on a final basis and the [respondent] having sought that orders be made. I’m further satisfied that the orders that are proposed are just and equitable and appropriate in the circumstances and I make orders in terms of the amended initiating application as amended by me as speaking with the [respondent] during her submissions.
…
14.The [respondent] seeks that the spousal maintenance be for a limited time period up until the 18th birthday of the younger child of the relationship. That seems to me to be an appropriate timeframe from today’s date until January 2019, a period of two years and about four months. It is in that respect an order only of a moderate kind being time-limited and for the limited amount of $200 per week.
15. I am satisfied that the spousal maintenance order should be made.
Appeal
The appellant has four grounds of appeal:
1.That the orders made 19 October 2015 be set aside ex debito justitiae in that the appellant was not served with the initiating proceedings for property issues, nor orders setting down property matters for trial.
2.That the appellant had no knowledge, actual or constructive, of a hearing on 19 October 2015 or that final orders would be sought on that day.
3. That the appellant was not heard.
4.That the learned trial judge was otherwise wrong in fact and in law such that justice has miscarried.
In essence the appellant complained that orders had been made in his absence. If the appeal were to succeed, the appellant seeks that the orders made on 19 October 2015 be set aside and a rehearing of the matter. The appellant also sought the respondent pay his costs of the appeal or a costs certificate pursuant to the Federal Proceedings Costs Act 1981 (Cth).
Non-compliance with procedural orders
Procedural orders were made by Registrar Kane on 7 March 2016. The appellant, who now apparently lives in the United Kingdom, telephoned for the procedural hearing and was advised to call back at the correct time. The appellant failed to telephone again. The procedural orders in part required that the appellant do a number of things:
3.That the appellant by 4.00pm on 8 April 2016 obtain and provide copies thereof to the Court and to the Respondent, the transcript of the evidence before Judge Demack at the hearing of the proceedings on 19 October 2015.
4.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 29 April 2016.
5.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 27 May 2016.
A copy of the procedural orders were sent to the appellant on the same day via post and email. On 7 April 2016 the appellant sent a copy of a transcript as required by Procedural Order 3. The Appeals Registry replied to the appellant, noting the transcript was not in the approved form and requested it be resent. The appellant did not comply with this request.
On 28 April 2016 the appellant emailed the Appeals Registry seeking an adjournment. A letter in reply was posted and emailed on the same day explaining that the transcript remains outstanding and a summary of argument was due on 29 April 2016. It was explained to the appellant that if an extension of time to file either of these documents was sought, such request must be made with the consent of the other party. Finally it was clarified that if an adjournment was sought, an application and an appeal would need to be filed specifying the further time sought and an affidavit in support would also need to be filed setting out the evidence in support of the adjournment. The appellant failed to comply with any of the steps recommended by the Appeals Registry.
On 4 May 2016 the Appeals Registry caused further correspondence to be sent to the appellant noting the appellant had failed to comply with Procedural Orders 3 and 4, which meant the respondent was unable to comply with Procedural Order 5.
The correspondence referred to r 22.45 of the Family Law Rules 2004 (Cth), which relevantly provides the following:
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Regulations;
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii)proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
It is apparent from the correspondence from the appellant that he had received the letters from the Court and in particular the letter of 4 May 2016 providing notice of his failure to comply and possible consequences. Part of the letter is as follows.
This correspondence serves as written notice that the Court will consider whether to make such an order dismissing the appeal at the hearing listed at 10.00 am on Tuesday, 14 June 2016.
Should you fail to attend the hearing of the appeal on the date detailed above, orders may be made in your absence.
I note that until the appellant remedies his default, the other party is not required to file a summary of argument or list of authorities unless they choose to do so, in respect of costs of the appeal, should the appeal be listed for dismissal.
(Original emphasis)
Conclusion
In conclusion, the appellant has failed to appear today for the hearing in relation to his appeal, and is therefore appropriate to dismiss the appeal pursuant to rule 22.45 for want of prosecution.
Costs
As the respondent is self-represented, she has not incurred any legal costs in preparation for today’s hearing, and therefore no order for costs should be made.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 14 June 2016.
Associate:
Date: 21 June 2016
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