Lasman and Lasman
[2014] FamCAFC 50
FAMILY COURT OF AUSTRALIA
| LASMAN & LASMAN | [2014] FamCAFC 50 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Appeal dismissed for want of prosecution. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Lasman |
| RESPONDENT: | Mrs Lasman |
| FILE NUMBER: | CAC | 1966 | of | 2010 |
| APPEAL NUMBER: | EA | 117 | of | 2013 |
| DATE DELIVERED: | 20 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Ryan JJ |
| HEARING DATE: | 20 March 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 August 2013 |
| LOWER COURT MNC: | [2013] FamCA 593 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
The appeal be dismissed for want of prosecution pursuant to the provisions of Rule 22.45 of the Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lasman & Lasman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 117 of 2013
File Number: CAC 1966 of 2010
| Mr Lasman |
Appellant
And
| Mrs Lasman |
Respondent
REASONS FOR JUDGMENT
FINN J:
On 21 August 2013 Mr Lasman (“the father”), through his solicitors, filed a Notice of Appeal against orders made by Deputy Chief Justice Faulks on 14 August 2013; those orders permitted Mrs Lasman (“the mother”) to take the two children of the parties’ relationship to live in Sweden.
On 25 October 2013 the father, having by that time apparently become
self-represented, filed an application seeking an extension of time to file his appeal books.
The mother’s solicitors responded by filing a response on 2 December 2013 seeking the dismissal of the father’s application for an extension of time to file the appeal books, and also the dismissal of the appeal. In the alternative, they sought that the father lodge security in relation to the mother’s costs in the appeal in the sum of just under $20,000.
On 4 February 2014, the Appeal Registrar made an order which provided that, by consent, the appellant father would lodge security of $10,000 by 21 February 2014. The Registrar’s orders also provided that if the security was lodged, the time for filing the appeal books would be extended to 28 March 2014, but if it was not, the appeal would be listed before the Full Court for the Full Court to consider the dismissal of the appeal for want of prosecution.
On 24 February 2014, the mother’s solicitors wrote to the Registrar advising that the security had not been lodged and seeking that the matter be listed for the Full Court to consider dismissal of the appeal.
On 26 February 2014, the Registrar wrote to the appellant father saying that because he had not lodged security the appeal would be listed before this Court today so that we might consider the dismissal of the appeal.
When the matter was called today there was no appearance by the appellant father, but Mr Othen of counsel appeared for the respondent mother.
Given the father’s failure to appear today, I consider that the appeal should be dismissed for want of prosecution pursuant to the provisions of Rule 22.45
that’s of the Family Law Rules 2004 (Cth). That rule provides:
(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.
Mr Othen has raised with us the possibility of an application for costs against the father in relation to the now dismissed appeal. However, as the father has had no notice of that application and of its being heard by us today, we cannot entertain it. It will therefore be for the mother to rely on the provisions of subrule (4) of Rule 22.45, which permits an application for costs to be made in respect of a dismissed or abandoned appeal within 28 days of the happening of that event.
STRICKLAND J:
I agree with the reasons delivered by the presiding judge and the orders proposed by her Honour.
RYAN J:
I agree with the reasons given by the presiding judge and the orders proposed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 20 March 2014.
Associate:
Date: 20 March 2014
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