Napleton and Napleton
[2020] FamCAFC 71
•31 March 2020
FAMILY COURT OF AUSTRALIA
| NAPLETON & NAPLETON | [2020] FamCAFC 71 |
| FAMILY LAW – APPEAL – DISMISSAL – 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 the orders made to prepare the appeal for hearing – Where there is no appearance by or on behalf of the father – Where the preconditions of the application of r 22.45 of the Family Law Rules 2004 (Cth) are satisfied – Appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.30, 22.45 |
| APPELLANT: | Mr Napleton |
| RESPONDENT: | Ms Napleton |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Bannerman |
| FILE NUMBER: | PTW | 2128 | of | 2011 |
| APPEAL NUMBER: | WEA | 29 | of | 2019 |
| DATE DELIVERED: | 31 March 2020 |
| PLACE DELIVERED: | Perth (by video link from Adelaide, Brisbane and Newcastle) |
| PLACE HEARD: | Perth (by video link from Adelaide, Brisbane and Newcastle) |
| JUDGMENT OF: | Strickland (by video link from Adelaide), Kent (by video link from Brisbane) & Austin JJ (by video link from Newcastle) |
| HEARING DATE: | 31 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT ORDER DATE: | 2 July 2019 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person (by video link) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bannerman (by video link) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bannerman Solicitors |
Orders
The Notice of Appeal filed on 22 July 2019 be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Napleton & Napleton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 29 of 2019
File Number: PTW 2128 of 2011
| Mr Napleton |
Appellant
And
| Ms Napleton |
Respondent
And
Independent Children’s Lawyer
EX-TEMPORE REASONS FOR JUDGMENT
STRICKLAND J
Introduction
Mr Napleton (“the father”) appeals from final parenting orders made by a judge of the Family Court of Western Australia on 2 July 2019. Those orders were made as a result of the father failing to comply with previous orders.
The orders made on 2 July 2019 provide as follows:
1. All previous parenting orders be discharged;
2.The children, A and B both born … 2002, C born … 2006 and D [born] … 2008 [“the children”] live with the respondent, Ms Napleton [“the mother”].
3. The Respondent have sole parental responsibility for the children,
4. The proceedings be otherwise dismissed.
5. The Independent Children’s Lawyer be discharged.
6. All subpoenaed documents be returned to source.
(As per original)
The father appeals against paragraphs 1 to 4 inclusive of those orders, but I note that the two oldest children have turned 18 years of age since the making of the final orders.
As will be further detailed shortly, the father’s Notice of Appeal has been listed before the Court today to consider its dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
Relevant Background
The parenting proceedings first commenced in 2011, and as a result of various orders made since then, the father has not spent any time with the children for approximately six years.
On 6 August 2018, Duncanson J made orders that the father place funds in the trust account of a solicitor to be appointed by him, with those funds to be applied to the cost of the Single Expert’s report. The father failed to comply with that order.
On 4 February 2019, the matter returned before Duncanson J, but the father did not appear at that hearing. The mother and the Independent Children’s Lawyer (“ICL”) informed the Court that the father had not complied with the order of 6 August 2018 and neither of them had heard from the father since that date. Her Honour then made orders on that day which stayed the father’s application for final orders pending his compliance with the order of 6 August 2018, and further ordered that in the event the father failed to comply with that order by 30 June 2019, the proceedings would be referred to the presiding judge in chambers for final orders to be made without further notice to the parties. The proposed final orders were also set out in the order.
On 2 July 2019, those final orders were made by Duncanson J in chambers. No reasons accompany the orders.
Following the final orders, the father filed a Notice of Appeal on 22 July 2019. On 19 August 2019, he filed a draft appeal book index, however, that index lacked specific details.
When the matter came before the Appeals Registrar on 3 September 2019 for directions, it became apparent that the father took issue with the ICL participating in the appeal because he was of the understanding that the ICL had been discharged.
Orders were made on 3 September 2019 for the ICL to be named as a party to the appeal proceedings, for the father to serve a copy of his Notice of Appeal on the ICL, for the father to file an amended appeal book index, and adjourning the appeal for further directions.
That order was the subject of a review application filed by the father on 17 September 2019, as again, the father took issue with the ICL being a part of the appeal proceedings. That application came before me on 6 December 2019, with only the mother and the ICL appearing. I dismissed that application.
The matter returned before the Appeals Registrar for further directions on 6 January 2020 where the father, again, failed to appear. Orders were made which provided that the proceedings be adjourned generally with liberty to relist by 20 January 2020, and that in the event that a written request to relist the appeal was not made by the father, and that the previously ordered documents were not received by 20 January 2020, then the matter be referred to the Managing Judge for consideration of dismissal of the Notice of Appeal without further notice to the parties.
That order also included a notation that the Court had attempted to telephone the father without success, the father had failed to attend the proceedings on 6 December 2019, both the mother and the ICL confirmed they had received the court correspondence as to the listing of the proceedings, the father had failed to comply with the orders made on 3 September 2019, and neither the mother or the ICL sought any orders for costs.
The father did not make a request to relist the matter, nor did he file the documents, pursuant to the orders of 3 September 2019, by 20 January 2020.
On 14 February 2020, the Appeals Registrar wrote to each of the parties advising them that the matter was listed for hearing before the Full Court in the forthcoming Perth sittings on Tuesday, 31 March 2020 at 9.30am, noting that the father had not made a request to relist the appeal, and nor had he complied with the orders made on 3 September 2019. The Appeals Registrar also outlined r 22.30 of the Rules as well as the parties’ obligation to file a Schedule of Costs in the event they sought an order for costs at the hearing.
Then, on 5 March 2020, the Appeals Registrar wrote to the father advising him that written notice was thereby given that the Full Court will consider whether to make an order dismissing the appeal at the hearing listed on 31 March 2020. The letter outlined the father’s non-compliance with the orders of 3 September 2019 and 6 January 2020, and noted the father’s non-appearance at the last two hearings of the matter. Specific attention was drawn to r 22.45 of the Rules.
Discussion
As mentioned, the relevant rule under consideration today is r 22.45. That rule specifically provides as follows:
22.45 Dismissal of appeal and applications for non‑compliance or delay
(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
…
(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.
As I have outlined earlier in these reasons, the father has failed to comply with the orders made on 3 September 2019, which required the father to serve the ICL with his Notice of Appeal and to file an amended appeal book index, and the orders of 6 January 2020 which required the father to request a relisting of the appeal together with the filing of his appeal documents by 20 January 2020. As of today’s date, the father has not complied with either of those orders, and I am satisfied that r 22.45(1)(b)(ii) and (iii) apply.
The father has also failed to appear at the last two court hearings, on 6 December 2019 and 6 January 2020, despite the Appeals Registry sending correspondence to the father’s last known address for service of the various listings. He has also failed to appear today, and no communication has been made by the father to the Appeals Registry in relation to his non-appearance.
I am satisfied that the father has been given sufficient notice of the possible dismissal of the appeal today by way of the Appeal Registrar’s letter to the father of 5 March 2020.
For those reasons, I propose to dismiss the appeal pursuant to r 22.45 of the Rules.
Kent J
I agree that the appeal should be dismissed for the reasons given by the presiding judge.
Austin J
I agree with the orders proposed and the reasons given by the presiding judge.
Strickland J
The orders of the Court will be:
(1)The Notice of Appeal filed on 22 July 2019 be dismissed.
(2)There be no order as to costs.
I certify that the preceding twenty five (25) paragraphs are a true copy of the
ex-tempore reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 31 March 2020.
Associate:
Date: 31 March 2020
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