Leigh and Watson

[2011] FamCAFC 117

FAMILY COURT OF AUSTRALIA

LEIGH & WATSON [2011] FamCAFC 117

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – neither party appeared at the hearing before the Federal Magistrate – father’s application dismissed by the Federal Magistrate on grounds of his non-appearance, and his failure to prosecute the proceedings with due diligence – Federal Magistrate referred to rule 13.10 of the Federal Magistrates Court rules where proceeding could be dismissed if court satisfied no prospect of success – so satisfied and application dismissed – concern about whether appeal proper course of action – primary issue one of denial of natural justice – conceded by counsel that appropriate course is for an application to be made to the Federal Magistrate to set aside the orders on basis of denial of natural justice – appeal dismissed.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules - r 13.10; r16.05(2)(a)

Wilkes & Wilkes (1981) FLC 91-060
Taylor & Taylor (1979) 143 CLR 1

APPLICANT: Mr Leigh

RESPONDENT: Ms Watson

FILE NUMBER: HBC 431 of 2007

APPEAL NUMBER: SA 24 of 2011

DATE DELIVERED: 13 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 & 13 May 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 10 February 2011

LOWER COURT MNC: [2011] FMCAfam 238

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Pearce

SOLICITOR FOR THE APPELLANT: A D Pearce & Co

COUNSEL FOR THE RESPONDENT: In person

Orders

1. The Notice of Appeal filed on 10 March 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Leigh &  Watson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLETE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 24 of 2011
File Number: HBC 431 of 2007

Mr Leigh

Appellant

And

Ms Watson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal filed by the father on 10 March 2011 against orders made by Federal Magistrate Roberts on 21 March 2011.

2. The matter was called on for hearing before Federal Magistrate Roberts on 10 February 2011, but neither party appeared. His Honour then proceeded to dismiss what was the father’s application. It seems from reading his Honour’s judgment that the primary reason for his Honour dismissing the application was that the father, who was the applicant, had not appeared, and he was in default in that he had failed to prosecute the proceedings with due diligence. As his Honour pointed out, on that basis, the Federal Magistrates Court rules provided that the Court could dismiss the application.

3. His Honour though went on and considered whether the applicant had any reasonable prospect of successfully prosecuting the proceedings. His Honour referred to and relied on rule 13.10 of the Federal Magistrates Court rules which provided that the proceedings could be dismissed if the Court was satisfied that there was no prospect of success.

4. His Honour in that context considered the material that he had available from the court file, and found that there was no reasonable prospect of success, and on that basis also, dismissed the application.

5. In the Notice of Appeal filed by the father he raises in his grounds of appeal a mixture of complaints to the effect that the Federal Magistrate proceeded to hear the matter and dismiss the application in the absence of the father, and also that his Honour found there was no prospect of success.

6. At a directions hearing on 9 May 2011 when the father appeared in person I explained to him that I had concerns about whether the appeal was the proper course to take as opposed to making an application to the Federal Magistrate to set aside the orders that he made, on the basis that his Honour made those orders in the absence of the father and thus, in effect, raising an issue of denial of natural justice.

7. It was somewhat difficult to explain to the father, with all due respect, the issue that I was raising.  Thus I adjourned the matter at his request to enable him to obtain legal advice and, if possible, to have legal representation.  The matter has been called on today and I am pleased to record that Mr Pearce has appeared on behalf of the father and has provided him with some legal advice.

8. Mr Pearce initially attempted to persuade me that the appeal was still an appropriate course to take in this matter.  However, I indicated to Mr Pearce that I was not persuaded by his arguments.  Indeed, with respect, the more Mr Pearce said about what his client wished to raise in this matter, the more it became obvious to me that the primary issue here, and about which the father complains, is a denial of natural justice in that the Federal Magistrate proceeded to hear and finalise the matter in the father’s absence.

9. I put to Mr Pearce that I may be disposed to proceed to hear the appeal if in fact the father’s complaint was confined to challenging his Honour’s findings on the material before him and not raising any issue of a denial of natural justice because of the absence of the father and the circumstance of the Federal Magistrate not hearing from the father in relation to the issues that the father wanted to raise.  However, it became apparent again that that issue could not be put aside and, indeed, to repeat, it is still the primary issue here.

10. In the case of Wilkes and Wilkes (1981) FLC 91-060 the Full Court said this:

    Where a party does not appear at the hearing of a proceeding but later seeks to have orders set aside upon that basis the proper course is to apply to a single judge for an order for a rehearing rather than to deal with the matter by way of appeal.

    There is also a High Court decision which addresses this issue, namely the case of Taylor and Taylor (1979) 143 CLR 1.

11. This is also recognised in the Federal Magistrates Court Rules. Rule 16.05(2)(a) provides as follows:

    (2)The Court may vary or set aside its judgment or order after it has been entered if:

    (a)      The order is made in the absence of a party;

    Thus the Federal Magistrate is not functus officio.

12. In those circumstances Mr Pearce has conceded that the appropriate course here, given his client’s instructions, and the issues that his client wants to raise, is for an application to be made to the Federal Magistrate to set aside his Honour’s orders on the basis of a denial of natural justice.

13. Given that, this appeal cannot proceed and I propose to dismiss it.

14. I have made the obvious comment to Mr Pearce though, that that does not mean that his client may not ultimately be able to pursue an appeal if, for example, the Federal Magistrate dismisses the proposed application and in so doing makes an error.  That then would provide a basis for the father to file an Appeal against that decision.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 13 May 2011.

Associate: 

Date: