Thurston & Thurston (No. 2)

[2012] FamCAFC 222

FAMILY COURT OF AUSTRALIA

THURSTON & THURSTON (NO. 2) [2012] FamCAFC 222

FAMILY LAW – APPEAL – Application for an adjournment of appeal proceedings – Where the appellant sought an adjournment of the proceedings on three bases: allied proceedings in the Federal Court in which the respondent is not a party, time to obtain legal representation, and ongoing illness and unfitness to participate in proceedings – Where it is apparent from the reasons for judgment of the Judge in the Federal Court proceedings that the appellant’s application there will not proceed until the appeals in this Court are determined – Where the appellant has already had the benefit of

pro bono legal advice, including an offer of further pro bono legal services in relation to these appeals, which he unreasonably rejected – Where the appellant has no alternative proposal as to how he might be legally represented, and this Court having no facility to provide litigants with legal representation, there would be no good purpose in adjourning the hearing of the appeals – Whether the appellant had demonstrated by way of medical evidence how and for how long his health difficulties might prevent him from prosecuting his appeals – Where the appellant was given a further opportunity after the hearing to adduce current and probative evidence in this regard – Where the evidence adduced by the appellant failed to provide a satisfactory indication of when the husband might be able to continue the appeal proceedings – Where there would be substantial prejudice to the respondent in adjourning the appeals, apparently indefinitely – Application dismissed.

FAMILY LAW – APPEAL – Application for dismissal pursuant to r 22.45 – Where the primary bases to the application are significant prejudice to the respondent and lack of merit in the appellant’s appeal – Where the appellant has not met requirements under the Rules,

or complied with orders, or shown reasonable diligence to progress his appeals – Whether there is merit in the appellant’s appeals such that the Court should not dismiss the appeals without a hearing on the merits – Where the thrust of the appellant’s grounds of appeal is an alleged denial of natural justice and procedural fairness by the Federal Magistrate hearing the matter undefended – Where consideration of all of the material before the Federal Magistrate and her Honour’s reasons for judgment demonstrate the Federal Magistrate did not err in her dealing with the case – Where there is no merit in the appeals – Application allowed,

appeals dismissed.

FAMILY LAW – APPEAL – Costs – Whether circumstances exist to justify the making of an order for costs – Where the conduct of the appellant, the proceedings being necessitated by the failure of the appellant to comply with orders, and the appellant being entirely unsuccessful in the proceedings are factors which justify the making of an order for costs against the appellant – Appellant ordered to pay the respondent’s costs, to be assessed.

Administrative Decisions (Judicial Review) Act 1977 (Cth)