PALMORE & PALMORE
[2015] FamCAFC 79
•8 May 2015
FAMILY COURT OF AUSTRALIA
| PALMORE & PALMORE | [2015] FamCAFC 79 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application in an Appeal to dismiss appeal – Where husband has failed to appear at the procedural hearings as required by Family Law Rules 2004 r. 22.16 – Where the husband has failed to show reasonable diligence in proceeding with the appeal – Where the court notified the husband of the application for dismissal – Appeal dismissed. |
| Family Law Rules 2004 (Cth) r 22.16, 22.45 |
| APPLICANT: | Ms Palmore |
| RESPONDENT: | Mr Palmore |
| FILE NUMBER: | BRC | 9440 | of | 2011 |
| APPEAL NUMBER: | NA | 62 | of | 2014 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2014 Amended 3 October 2014 |
| LOWER COURT MNC: | [2014] FCCA 1561 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Dixie Ann Middleton & Associates |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
The appeal filed by Mr Palmore on 31 October 2014 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmore & Palmore 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 BRISBANE |
Appeal Number: NA 62 of 2014
File Number: BRC 9440 of 2014
| Ms Palmore |
Applicant
And
| Mr Palmore |
Respondent
REASONS FOR JUDGMENT
On 1 April 2015 Ms Palmore filed an Application in an Appeal seeking to dismiss an appeal filed by Mr Palmore. Although the parties were never legally married, it is convenient to refer to them as “the wife” and “the husband”.
On 2 June 2014 the parties appeared before Judge Spelleken when the application of the wife for an alteration of the parties’ interests in their property was heard. On 12 August 2014 the primary judge delivered the reasons finding that the appropriate division of the parties’ property was 51.1 per cent in favour of the husband and 48.9 per cent for the wife. On 3 October 2014 (and amended on 4 November 2014), the primary judge made orders in chambers on a final basis as to the division of the parties property. The parties had been given an opportunity to file draft orders.
The husband filed a Notice of Appeal on 31 October 2014, seeking a different calculation of the pool of property and orders for a greater share of the property.
Background to the Application
The husband filed a draft appeal index within the time prescribed by the Family Law Rules 2004 (Cth) (“the Rules”). His solicitors filed a Notice of Ceasing to Act on 26 November 2014.
The parties were scheduled to appear before the Registrar on 23 February 2015 for procedural orders in relation to the appeal. The procedural hearing had already been adjourned on 19 January 2015, at the husband’s request. There was no appearance by the husband. He sent an email advising the court that he had not obtained his file from his former solicitors and was unwell. The hearing was further adjourned to 24 March 2015. The following notation was recorded on the procedural orders:
IT IS NOTED:
1.The procedural hearing of this appeal on 19 Janauary [sic] 2015 was adjourned by consent at the request of the [husband] who advised he had not received his file from his former legal representatives and was unable to conduct the hearing.
2.The [husband] did not attend the hearing today. His reasons for not participating include that he has not received his file from his former legal representatives and cannot therefore brief new lawyers and also that he does not have the capacity to conduct the hearing himself. The [husband] informed the Court he was unable to estimate a time period in which he would be able to proceed.
3.The procedural hearing has been adjourned for one further month to enable the [husband] time to file any application in an appeal with an affidavit in support seeking orders as to the disposition of the appeal and/or regarding his participation in the proceedings, for example an appointment of a case guardian.
4.The [wife] foreshadowed that, should the [husband] either not participate in the next procedural hearing or not file an application in an appeal regarding disposition of the appeal, the [wife] will seek the appeal be dismissed.
The parties were scheduled to appear again before the Registrar on 24 March 2015. The husband again failed to appear. In an email to the court on 20 March 2015 informing the Registrar that he had still not obtained his file and that he was unwell. The husband said, in part of the email:
“4. The respondent foreshadowed that, should the appellant either not participate in the next procedural hearing or not file an application in an appeal regarding disposition of the appeal, the respondent will seek the appeal be dismissed.”
For the reasons consistently referenced in this and previous correspondence, I am not, at this time, able to contest the respondent’s stated intentions.
I will not, however, abandon this action.
The Registrar ordered that the procedural hearing be adjourned pending the determination of any application in an appeal for dismissal of the appeal filed by the wife. The following was noted on the procedural orders:
1.That the [husband] failed to attend the procedural hearing today or confirm attendance by telephone.
2.The [wife] has foreshowed the filing of an application in an appeal for the dismissal of the appeal.
On each occasion the orders were sent to the husband at his last known address. It is apparent from the contents of his emails that he was aware of the scheduled dates for the procedural hearings and the orders and notations subsequently made.
Application in An Appeal seeking dismissal of the Appeal
The wife filed her Application in an Appeal and supporting Affidavit on 1 April 2015.
In her affidavit, the wife references the concessions made to accommodate the husband’s health difficulties and his attempts to secure his file from his previous solicitor. Notably, the wife raises the husband’s more recent lack of communication regarding the progress of his appeal:
11.My solicitors have advised me and I verily believe that the [husband] has not communicated with my solicitors in relation to this Appeal at all, save and except an email he sent them on 16 January 2015 which provided a copy of the draft Index filed on his behalf…
12.My solicitors had sent a number of letters to the [husband] requesting a copy of the draft Index…
13.The [husband] has not contacted me or my solicitors in relation to his requests to adjourn the Procedural Hearings.
14.The [husband] has a history of mental health issues. Dr [H], psychiatrist completed two reports in relation to his mental health during the proceedings in the Federal Circuit Court of Australia…
On 5 May 2015, the wife filed a Summary of Argument, an Affidavit of the solicitor for the wife, and an Affidavit of a licensed commercial agent.
In the Affidavit of the solicitor, she records an attempt to personally serve the husband with the Application in an Appeal and Affidavit of the wife on 14 April 2015, noting at [3] “The commercial agent telephoned me while he was in attendance at the property on 14 April 2015 and he said to me words to the effect that he did not think the husband was home.”
On 30 April 2015, the solicitor attempted to contact the husband on both his landline and mobile telephone number and was unsuccessful. On that same day, the solicitor caused a letter to be sent to the husband’s psychiatrist and also to his mother, attaching copies of the Application in an Appeal and Affidavit of the wife (Affidavit of the solicitor, 5 May 2015, [8] – [10]).
In the Affidavit of the commercial agent, he explains that he attended the address of the husband on 14 April 2015 and found no one at home. He also notes a conversation with a neighbour of the husband, who said that the husband was taken away in an ambulance by the police (Affidavit of the commercial agent, 5 May 2015, [5] – [7]). In her oral submissions the solicitor said that enquiries had been made at the local hospitals without success.
Principles relevant to summarily dismissal
Rule 22.45 of the Rules provides:
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.
Conclusion
The appeal is not abandoned. The husband has failed to meet a requirement under the Rules, that is, to attend the procedural hearing (r. 22.16) and otherwise has failed to show reasonable diligence in proceeding with the appeal. The husband has notice of the Application.
There is no doubt that the husband was aware of the dates for the procedural hearing, this is demonstrated by the emails from the husband to the court. As mentioned earlier, in his email dated 20 March 2015, the husband acknowledged the wife’s intention to seek dismissal of his appeal.
The court notified the husband (in accordance with r. 22.45(3)) of the listing of the wife’s application in a letter dated 10 April 2015. The husband was served with a copy of the wife’s application and affidavit by Express Post on 2 April 2014 and by email on 23 April 2015. The solicitor for the wife annexed to her affidavit filed 5 May 2015 evidence of the several attempts made to contact the husband and personally serve him with the relevant material. Nothing further could be done and the husband’s whereabouts are currently unknown.
In all of these circumstances, the appeal should be dismissed by reason of non-compliance. The solicitor for the wife said that the application for costs is not pursued.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 8 May 2015.
Associate:
Date: 8 May 2015
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