MORLEY & MORLEY

[2016] FamCAFC 37

FAMILY COURT OF AUSTRALIA

MORLEY & MORLEY [2016] FamCAFC 37

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file appeal books – Where subsequent to the filing of the application the solicitor for the appellant contacted the parties and indicated a Notice of Discontinuance would be filed – Where the Notice of Discontinuance was never filed – Where attempts were made to contact the appellant without success – Where the appellant failed to attend the hearing of the application – Application dismissed – Where by virtue of the application for an extension of time being dismissed and r 22.21 of the Family Law Rules 2004 (Cth) the appeal is deemed abandoned.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order that the appellant pay his costs of the application in appeal – Where the appellant is not present and it is appropriate to proceed on the basis that the application for costs would be opposed – Costs ordered against the appellant fixed in the amount of $500.

Family Law Rules 2004 (Cth): r 22.21

APPELLANT: Mrs Morley

RESPONDENT: Mr Morley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Blacktown Family Law

FILE NUMBER: PAC 4324 of 2015

APPEAL NUMBER: EA 3 of 2016

DATE DELIVERED: 16 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 16 February 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 25 November 2015

LOWER COURT MNC: [2015] FCCA 3568

REPRESENTATION

SOLICITOR FOR THE APPELLANT: CBD Legal

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Beach, Legal Aid NSW

Orders

1. The Application in an Appeal filed on 10 February 2016 is dismissed.

2. IT IS NOTED by operation of Rule 22.21 the appeal is deemed abandoned.

3. The appeal hearing scheduled for 24 February 2016 is vacated.

4. The appellant pay the costs of the respondent in relation to the Application in an Appeal filed on 10 February 2016 in the amount of $500.00 within eight (8) weeks.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morley & Morley 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 SYDNEY

Appeal Number: EA 3 of 2016
File Number: PAC 4324 of 2015

Mrs Morley

Appellant

And

Mr Morley

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Before the Court is an Application in an Appeal filed by the appellant on 10 February 2016 seeking an order for an extension of time within which to file the appeal books.  Procedural orders were made in the appeal on 4 February 2016 in relation to which it was directed that the appellant file and serve the appeal books on or before 10 February 2016.  Self-evidently, that did not happen. 

3. Subsequent to the Application in an Appeal having been listed for today, contact was made by the appellant’s solicitor with the solicitor for the respondent, the Independent Children’s Lawyer (“ICL”) and with the Eastern Appeal Registry indicating that a Notice of Discontinuance would be filed.

4. There is no Notice of Discontinuance and attempts made by the Appeals Registry to clarify whether that notice related to the Application in an Appeal or the appeal itself have been unsuccessful.  It is disappointing to record that there has been at least six telephone calls placed by the Appeals Registry to the appellant’s solicitor seeking that information, none of which have been returned. 

5. In any event, it seems to me the proper course in circumstances where the moving party on the application listed this afternoon is not present to pursue it and I am asked by the solicitor for the respondent to dismiss the application, that course should be adopted.  I will order accordingly.

6. The effect of the application for an extension of time having been dismissed and the appellant being in breach of her obligations pursuant to the procedural orders of 4 February 2016, in particular, filing the appeal books, by the operation of r 22.21 of the Family Law Rules 2004 (Cth), the appeal is deemed abandoned. The appeal hearing listed on 24 February 2016 should therefore be vacated.

7. The respondent seeks an order that the appellant pays his costs in the amount of $500, being costs of the application in the appeal.  The appellant, self-evidently, is not present to meet that application and it is appropriate to proceed on the basis that it would be opposed.

8. I have read the judgment under appeal from which it is apparent the appellant is of very limited means and it is inferred an order for costs in any amount would occasion some difficulty. 

9. In my view, given the modest amount sought by the respondent, it would not be appropriate to adjourn an otherwise strong application for costs simply because the appellant has failed to appear on her own application.  Doing so would simply add to the costs sought by the respondent and take court time that could otherwise be given to other cases.  In the circumstances of the modest amount sought, I am satisfied an order for costs is appropriate and will require that it is paid within two months.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 16 February 2016.

Associate:     

Date:              14 March 2016