Sartwell and Bayliff
[2013] FamCAFC 81
FAMILY COURT OF AUSTRALIA
| SARTWELL & BAYLIFF | [2013] FamCAFC 81 |
| FAMILY LAW – APPEAL – Procedural hearing – Where Rule 22.16 of the Family Law Rules 2004 requires the appellant or appellant’s lawyer to attend on the first procedural hearing –Where the mother did not appear – Where the mother’s non-appearance is deemed a non-compliance or delay of procedure – Whether the mother’s non-appearance warrants dismissal of the appeal under R 22.45 as a consequence of non-compliance |
| Family Law Act 1975 (Cth): s 94AAA(3) Family Law Rules 2004: rr 22.16, 22.45, 22.45(1), 22.45(3) |
| APPLICANT: | Ms Sartwell |
| RESPONDENT: | Mr Bayliff |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
APPEAL NUMBER: FILE NUMBER: | EA PAC | 148 3864 | of of | 2012 2012 |
| DATE DELIVERED: | 11 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 11 April 2013 |
REPRESENTATION
| FOR THE APPLICANT: | No appearance for or on behalf of the applicant |
| FOR THE RESPONDENT: | Mr Bayliff in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hall as agent |
Orders
That within 10 days the mother shall file and serve an affidavit which explains her failure to attend on 11 April 2013.
That each party has liberty to apply to the Honourable Justice Ryan upon seven (7) days notice in writing to the other party and to the Appeal Registrar in the Sydney Registry or if not reasonably available to another member of the Appeal Division.
Unless the mother has applied in writing to relist her appeal by 9 May 2013, as at 10 May 2013 her appeal will stand dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sartwell & Bayliff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: EA 148 of 2012
| Ms Sartwell |
Applicant
And
| Mr Bayliff |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
On 8 November 2012, Ms Sartwell (“the mother”) filed a Notice of Appeal in relation to interim parenting orders made by Federal Magistrate Henderson (as she then was) on 8 October 2012.
Relevantly, those orders provided that the mother and Mr Bayliff (“the father) would have equal shared parental responsibility for their son B (“the child”), born in April 2009 and that the child live with the father and spend time with the mother supervised at a contact centre.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice determined that it was appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge.
Consequently, the mother’s appeal was listed for a first procedural hearing before me today. The father and an agent for the Independent Children’s Lawyer (“the ICL”) have appeared but the mother has not.
As I understand it, a telephone call was received from the mother by the National Enquiry Centre some 15 minutes prior to the commencement of this hearing. The information communicated by the National Enquiry Centre is that the mother said that she is unwell and would not attend this hearing. Nothing more has been provided by the mother to explain her absence. With respect to her, the approach she has taken to her obligation to appear today is somewhat cavalier. Of course, it may be that she is too unwell to appear, but at this stage, that is not apparent.
Rule 22.16 of the Family Law Rules 2004 (“the rules”) requires that the appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal. Self-evidently, the mother has failed to comply with the obligation imposed upon her pursuant to r 22.16.
By r 22.45, provision is made for dismissal of an appeal and in relation to applications for non-compliance or delay. The mother’s failure to comply with r 22.16 brings r 22.45 into play. By r 22.45(3) the Court must give the mother at least 14 days notice before, on its own initiative, consideration is given to dismissal of the appeal as a consequence of non-compliance with the matters referred to in r 22.45(1). If the mother wants to resist dismissal she will need to explain her failure to comply with r 22.16 and to relist her Notice of Appeal for the purpose of a procedural hearing.
It is well understood that litigation is stressful for those involved and thus it is not appropriate to adjourn this procedural hearing for a lengthy period. It seems to me that the provision of 28 days is sufficient to enable the mother to present evidence concerning her non-appearance and to take steps to relist her appeal. If she fails to do the latter there will be a self-executing dismissal order.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 April 2013.
Associate:
Date: 7 May 2013
0
0
0