TAGGART & TAGGART
[2020] FamCAFC 66
•30 March 2020
FAMILY COURT OF AUSTRALIA
| TAGGART & TAGGART | [2020] FamCAFC 66 |
| FAMILY LAW – APPEAL – DISMISSAL – Where the appellant failed to obtain and file a copy of the trial transcript in accordance with orders made by the Full Court – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) – Where there was no appearance by or on behalf of the appellant – Where the requirements of r 22.45 of the Rules were satisfied – Appeal dismissed – Appellant to pay the Independent Children’s Lawyer’s costs. |
| Family Law Act 1975 (Cth) s 117(4) Family Law Rules 2004 (Cth) r 22.45 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Taggart & Taggart [2017] FamCAFC 262 |
| APPELLANT: | Ms Taggart |
| RESPONDENT: | Mr Taggart |
| INDEPENDENT CHILDREN’S LAWYER: | TLG Law |
| FILE NUMBER: | BRC | 10337 | of | 2014 |
| APPEAL NUMBER: | NOA | 65 | of | 2016 |
| DATE DELIVERED: | 30 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace (via telephone), Ryan (via telephone) & Tree JJ |
| HEARING DATE: | 17 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2362 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Kingston |
| SOLICITOR FOR THE RESPONDENT: | Norman & Kingston |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bertone |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TLG Law |
Orders
Pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal NOA 65 of 2016 against the orders of a judge of the Federal Circuit Court made on 9 September 2016 is dismissed.
The appellant to pay the Independent Children's Lawyer’s costs of the application fixed in the sum of $2,000 within twenty-eight (28) days of these orders.
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 Taggart & Taggart 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 BRISBANE |
Appeal Number: NOA 65 of 2016
File Number: BRC 10337 of 2014
| Ms Taggart |
Appellant
And
| Mr Taggart |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 9 September 2016 a judge of the Federal Circuit Court of Australia made final parenting orders in relation to B born in 2008 (“the child”), the child of Ms Taggart (“the mother”) and Mr Taggart (“the father”). The effect of the orders was that the father would have sole parental responsibility for the child subject to an obligation to notify the mother and inform her of any decision made in exercising that parental responsibility. The orders further provided for the child to live with the father and spend time with the mother.
On 23 September 2016 the mother appealed those orders. She sought that the orders be set aside and that alternate orders be made providing that the parties have equal shared parental responsibility for the child, that until the father relocates to the Gold Coast the child live with the mother and spend time with the father each alternate weekend, and upon the father’s relocation the child live with the parents on a week-about basis.
The appeal came before the Full Court on 25 August 2017 when the mother sought and was granted an adjournment of the proceedings (Taggart & Taggart [2017] FamCAFC 262). On that occasion the following orders were made:
(1)The appeal be adjourned.
(2)Until further order, the appeal not be relisted until the appellant obtains and files and serves the transcript of the proceedings before the primary judge.
(3)The appellant pay the respondent’s costs thrown away in the fixed sum of $3,500.
(4)The application for costs made by the Independent Children’s Lawyer be dismissed.
Thereafter, the mother took no step either to comply with the orders of 25
August 2017 or to otherwise advance the appeal.
On 11 November 2019, the Appeal Registrar wrote to the mother giving her notice that by reason of her default in filing the transcript and in taking no other step in the appeal, if she did not comply with the earlier orders, the appeal would be listed before the Full Court for dismissal.
On 24 February 2020 the Appeal Registrar notified the parties that the matter had been listed before the Full Court on 17 March 2020 to consider whether to dismiss the appeal. The Appeal Registrar made directions and orders for the provision of submissions on the question of dismissal from each of the parties. Thus the requisite notice was given to the mother and the other parties.
The appeal was listed before the Full Court for consideration of whether it should be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) which provides that where a party has defaulted by failing to comply with an order in relation to the appeal or has not shown reasonable diligence in proceeding with an appeal, then the court may, of its own motion, dismiss the appeal provided that the parties have been given 14 days’ notice in writing informing them of the date and time when the Court will consider whether to make the order.
The mother did not appear at the hearing nor did she file and serve any written submissions as directed by the Appeal Registrar on 24 February 2020.
Counsel for the Independent Children's Lawyer and the father’s solicitor appeared and each contended that the mother’s appeal should be dismissed by reason of the default. The Independent Children's Lawyer further noted that the parenting proceedings, the subject of the appeal, had been re-commenced and were presently before a judge of the Family Court. Thus it seems, in any event, that there is little utility in the appeal.
It is apposite to recall what the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 where Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 213:
98. ... Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon
re-pleading, when delay and cost are taken into account.Here, the mother has had over 2.5 years in which to comply with the direction to obtain a transcript to support her appeal. She has failed to do that and has not taken any other step to progress the appeal.
In our view there is no point in allowing this appeal to remain on foot and it should be dismissed.
Costs
Counsel for the Independent Children's Lawyer submitted that ordinarily she would seek an order for costs but was constrained by s 117(4) of the Family Law Act 1975 (Cth) which provides that the court must not make a costs order in favour of an Independent Children’s Lawyer if the court considers that a party to the proceedings would suffer financial hardship by reason of the order. In our view, while it might be that the mother is impecunious, it is not for the Independent Children's Lawyer to prove that she is and in this case, it is appropriate to make an order that the mother pay the costs of the Independent Children's Lawyer as sought, fixed in the sum of $2,000.
The solicitor for the father was acting pro bono and did not seek a costs order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 30 March 2020.
Associate:
Date: 30 March 2020