Nolan and Child Support Registrar - [2016] FamCAFC 161

FAMILY COURT OF AUSTRALIA

NOLAN & CHILD SUPPORT REGISTRAR

[2016] FamCAFC 161

FAMILY COURT – APPEAL – PRACTICE AND PROCEDURE – The appellant failed to serve the respondent with the Notice of Appeal and has not shown reasonable diligence in prosecuting the appeal – Appeal dismissed under r 22.45 of the Family Law Rules 2004 (Cth) – No order as to costs.

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Rules 2004 (Cth) – r 22.45

APPELLANT:

Mr Nolan

RESPONDENT:

Child Support Registrar

FILE NUMBER:

PTW

4310

2013

APPEAL NUMBER:

20L

2015

DATE DELIVERED:

18 April 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

18 April 2016

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

9 July 2015

LOWER COURT MNC:

[2015] FCWAM 137

REPRESENTATION

THE APPELLANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Bird

SOLICITOR FOR THE RESPONDENT:

Hunt & Hunt Lawyers

Orders

Made on 20 April 2016:

The appeal 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 Nolan & Child Support Registrar 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 20L of 2015
File Number: PTW 4310 of 2013

Mr Nolan

Appellant

And

Child Support Registrar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter is listed before the court today on the motion of the Appeal Registrar for consideration of the dismissal of the father’s appeal, which was filed on 6 August 2015. The appeal relates to a decision made by Magistrate Monaghan on 9 July 2015 under the Child Support (Registration and Collection) Act 1988 (Cth) concerning the enforcement of child support obligations, including quite significant penalties relating to late payment.
The appellant has failed to serve the respondent, who is the Child Support Registrar, with a copy of the Notice of Appeal. It can be seen from looking at the correspondence on the court file that on 10 August 2015, the Appeal Registrar wrote to the appellant drawing attention to his obligations relating to the appeal, including his obligations in relation to service of the appeal. There was then further correspondence with the appellant relating to the filing of an appeal book index and other documents.
On 15 September 2015, the Appeal Registrar wrote to the appellant advising that in order to progress the appeal, he needed to file an affidavit of service in relation to service of the Notice of Appeal. There was no response to that correspondence, and no further document filed. On 25 November 2015, the Appeal Registrar again wrote to the appellant saying:
I refer to my telephone conversations with you on 21 September 2015 and 30 October 2015 and note that no evidence has been filed to establish that the Form 20 Notice of Appeal has been served on the Respondent.
Unless an Affidavit proving service on the Respondent is filed within 21 days from today or the Respondent files a Notice of Address for Service in relation to the Appeal, I will consider referring this Appeal to the Full Court for consideration as to whether the Appeal should be dismissed by reason of failure on your part to pursue the Appeal with reasonable diligence, or for other appropriate directions.
Once again, no response was received to that correspondence. On 4 April 2016, the Appeal Registrar wrote to the appellant, sending him a copy of the letter of 25 November 2015, and advising as follows:
As you have not responded to the above correspondence nor taken any action to my knowledge to progress your appeal, I advise that the Chief Justice has determined that the jurisdiction of the Family Court should be exercised by a single Judge and the Appeal has been listed for hearing before the Honourable Justice Thackray on 18 April 2016 at not before 10.00 am for consideration as to whether the Appeal should be dismissed, or any other appropriate orders or directions.
If you wish to be heard in relation to the above matters you must attend the hearing.
There was no further correspondence from the appellant and he has failed to attend this morning’s hearing.
In the meantime, a member of the court staff sent the respondent a copy of the Notice of Appeal and a Notice of Address for Service, together with a Request to attend by Electronic Communication. The respondent completed the latter two documents and filed them at the court on 12 April 2016.
At this morning’s hearing, counsel for the respondent informed me that since the determination of the matter by Magistrate Monaghan, there have been settlement negotiations between the appellant and the respondent. The respondent has agreed to waive a significant proportion of the late payment penalties, which seem to have been one of the major concerns of the appellant, and which perhaps explain why the appellant has not been showing due diligence in the prosecution of the appeal. The position of the respondent is that, on the basis of all of the matters to which I have referred, the appellant’s appeal should be dismissed today.
Rule 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:
(1)      This rule applies if:
…
(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.
…
The notice of this hearing was sent to the appellant by letter dated 4 April 2015, and today is 18 April 2015. It is therefore arguable that the 14 days, properly calculated, might not expire until tomorrow.
Putting that issue to one side, it is clear that the appellant has failed to meet a requirement under the Rules, because he failed to serve the respondent with the appeal. He has also failed to show reasonable diligence in proceeding with the appeal, because he has failed to communicate with the Appeal Registrar in relation to matters which have been holding up the further conduct of these proceedings. Counsel for the respondent informed me this morning that her office has also had difficulty in communicating with the appellant over the last few months.
The failure to serve the appeal was remedied relatively simply by the court itself sending a copy of the Notice of Appeal to the respondent, but the overall conduct of the appellant in relation to this matter has been unsatisfactory, to say the least. It certainly does indicate a failure to show reasonable diligence. It is delaying the overall resolution of the matter, and it is putting the respondent to inconvenience and expense, in circumstances where the court is entitled to infer that the appellant has lost interest in the prosecution of the appeal.
My only concern is in relation to the 14 days’ notice. I propose to make an order dismissing the appeal, but I will delay making that order until Wednesday, when I will recall the matter in open court and dismiss the appeal formally. I recognise that I do have the ability under the Rules to dispense with a requirement of the Rules, but in the circumstances, and given the absence of the appellant, I think the safer course is to simply postpone the making of the formal order by 48 hours.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Justice Thackray delivered on 18 April 2016, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 22 August 2016