WADHURST & BALLARD

[2015] FamCAFC 118

FAMILY COURT OF AUSTRALIA

WADHURST & BALLARD [2015] FamCAFC 118

FAMILY LAW – APPEAL – where an appeal against parenting orders made in the Federal Circuit Court was dismissed for want of prosecution pursuant to Rule 22.45 of the Family Law Rules 2004 (Cth).

Family Law Rules 2004 (Cth)

APPELLANT: Ms Wadhurst

RESPONDENT: Mr Ballard

FILE NUMBER: CAC 633 of 2011

APPEAL NUMBER: EA 1 of 2014

DATE DELIVERED: 16 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, May and Aldridge JJ

HEARING DATE: 16 June 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 22 November 2013

LOWER COURT MNC: [2013] FCCA 1943

REPRESENTATION

THE APPELLANT: No appearance

THE RESPONDENT: No appearance

Orders

(1)The appeal be dismissed for want of prosecution pursuant to the provisions of Rule 22.45 of the Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wadhurst & Ballard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 1 of 2014
File Number: CAC 633 of 2011

Ms Wadhurst

Appellant

And

Mr Ballard

Respondent

REASONS FOR JUDGMENT

Finn J    

1.

There is listed before this court today in order that we might consider dismissal for want of prosecution, an appeal by Ms Wadhurst (“the mother”) against orders made by Judge Neville of the Federal Circuit Court on

22 November 2013.  Those orders relate to parenting arrangements for the two children of the mother’s relationship with Mr Ballard (“the father”), and also to a contravention application brought by the father against the mother.  The father is the respondent to the appeal.

2.The appeal was filed on 20 December 2013 on behalf of the mother by the Central Australian Women’s Legal Service.  Procedural orders for the appeal were made by the Appeals Registrar on 12 February 2014.  Those procedural orders required the mother to file her appeal book by 9 April 2014, and her summary of argument by 30 May 2014.

3.The order for the filing of the appeal book was complied with in that the book was filed by the Central Australian Women’s Legal Service on behalf of the mother on 3 April 2014.  However, the mother’s summary of argument was not filed by the required date, being 30 May 2014. 

4.On 21 July 2014, the Central Australian Women’s Legal Service filed a notice of ceasing to act. On 14 October 2014, the mother filed an address for service, being her own personal address. 

5.On 3 March 2015, the Appeals Registrar wrote to the mother advising that the appeal was listed before the Full Court for hearing on 16 June 2015, and that, in accordance with the time stipulations in the Family Law Rules 2004 (Cth), her summary of argument should be filed by 15 May 2015.

6.On 6 May 2015, the Appeals Registrar wrote again to the appellant mother, and also to the respondent father, noting that the appellant had still not filed her summary of argument and saying that if it was not filed by 15 May 2015, the appeal would remain listed before the Full Court on 16 June but for consideration by the Court of its dismissal.

7.The Appeals Registrar wrote yet again to both parties on 19 May 2015, saying that the appellant had not filed her summary of argument and that the matter remained listed before the Full Court on 16 June 2015 – that is, today – for dismissal pursuant to rule 22.45 of the Family Law Rules 2004 (Cth).

8.Rule 22.45 essentially permits the court, on the giving of a required notice, to dismiss an appeal for want of prosecution. The exact provisions of the rule are as follows:

22.45      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

(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.

(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.

9.At the hearing today, there was no response to the call by the court officer and, accordingly, there was no appearance by either party. In these circumstances, and having regard to the notice that was given by the Appeals Registrar to the mother, and the time period from the date on which that notice was given, I propose that the appeal should be dismissed for want of prosecution pursuant to the provisions of Rule 22.45.

MAY J

10.I also agree that the appeal should be dismissed pursuant to that rule.

ALDRIDGE J

11.I also agree.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 16 June 2015.

Associate:

Date: 16 June 2015