WEST & WHITE
[2016] FamCAFC 128
•19 July 2016
FAMILY COURT OF AUSTRALIA
| WEST & WHITE | [2016] FamCAFC 128 |
| FAMILY LAW – APPEAL – Application in an appeal for reinstatement – Where procedural orders were made for the preparation of appeal books – Where the appellant failed to file the appeal books on time – Where the appeal was deemed abandoned – Where the appellant queried the order to include the whole of the trial transcript in the appeal book – Where the respondent agreed to an extension of time for filing the appeal books provided an assurance was received in writing from the appellant that the books will contain the totality of the transcript – Where there was no appearance by the applicant on the hearing of his application for reinstatement – Where the application was allowed and the appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.03, 22.21 |
| APPELLANT: | Mr West |
| RESPONDENT: | Ms White |
| FILE NUMBER: | NCC | 3 | of | 2007 |
| APPEAL NUMBER: | EA | 194 | of | 2015 |
| DATE DELIVERED: | 19 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 July 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2015 |
| LOWER COURT MNC: | [2015] FamCA 1088 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Mr Fox of Attwaters Solicitors by telephone |
Orders
Appeal No EA 194 of 2015 is reinstated.
Within twenty-one (21) days of 19 July 2016 the appellant file the appeal books in accordance with the directions made on 8 March 2016.
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 West & White 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 194 of 2015
File Number: NCC 3 of 2007
| Mr West |
Appellant
and
| Ms White |
Respondent
REASONS FOR JUDGMENT
By Appeal EA 194 of 2015 filed on 11 December 2015, Mr West (“the husband”) appeals against orders of Johnston J of 16 November 2015 in which his Honour dismissed the husband’s application that Ms White (“the wife”) be dealt with for breaching a property order made on 16 December 2008.
It is unnecessary for the determination of the instant issue to set out the background facts to this matter which has been litigated in this court for many years.
Having filed the Notice of Appeal within the time specified by r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), a procedural hearing was appointed in which orders would be made concerning the contents of the appeal books. The date fixed for that hearing was 8 March 2016. I understand that the husband did not appear at that hearing.
Nevertheless, orders were made for the preparation and filing of the appeal books. In particular, the books were to be filed no later than 19 April 2016.
The books were not filed by that time and the appeal was deemed abandoned by reason of the operation of r 22.21. The husband was notified that the appeal had been deemed abandoned by letter from the Appeals Registrar on 17 June 2016.
On 30 June 2016 the husband filed an application seeking orders that the appeal be reinstated.
The application was listed for hearing on Thursday 14 July 2016. The wife’s solicitor, having sought and obtained leave, appeared by telephone. There was no appearance for the husband nor was any communication received from him explaining his absence.
Husband’s evidence
In his affidavit in support of the application to reinstate the appeal, the husband said that on realising that he could not file the appeal books on the ordered date, he prepared an application seeking an extension of time supported by an affidavit. The application and affidavit was sent to the court electronically on 19 April 2016 but was not received on that date due to a small error made by the husband in the email address. However, the husband spoke to a member of staff in the Appeals Registry and resent the documents the following day.
On 18 April 2016 the solicitor for the wife, in response to a letter from the husband, observed that while not conceding that the husband genuinely required an extension of time said:
However, the Court and the Appeals Registrar in particular should not be inconvenienced by having to deal with a contested application about extension of time for the filing and service of the appeal books.
Provided that you assure me in writing that the appeal books will contain the totality of the transcript of both hearing days before Justice Johnston, then although my client does not formally consent to any extension of time she will not actively oppose such extension as the Appeals Registrar may see fit to allow you and you will see that I have emailed a copy of this letter to the Appeals Registrar.
In brief submissions on the matter, the solicitor for the wife noted that there had been considerable delay between the correspondence and the filing of the application.
From a perusal of the appeal file, it appears that the delay between the correspondence and the deeming of the appeal to be abandoned was due to inadvertence within the Appeals Registry.
The solicitor for the wife maintained his consent to the extension of time for the filing of the appeal books.
However, he submitted that in line with his position expressed in the letter of 18 April 2016 to the husband, there was concern that the appeal books when filed may not contain the entire relevant transcript. He drew attention to orders made at the procedural hearing on 8 March 2016, that the transcript of the hearings of 3 September 2014 and 29 January 2015 be included in the appeal books. It was further ordered:
5. That, in the event that the appellant seeks to file the appeal books without transcript, or with only parts of the transcript ordered to be filed, the appellant shall, at the same time as filing the appeal books, file an application in an appeal with supporting affidavit seeking dispensation from the requirement to file all of the transcript ordered to be filed.
The Registrar directed that any such application be heard at the same time as the hearing of the appeal.
The solicitor for the wife expressed concern that the wife not be prejudiced if the appeal was listed for hearing but could not proceed because the relevant transcript was not available to the Full Court.
Consistent with his letter of 18 April 2016, the solicitor for the wife wished confirmation from the husband that the appeal books, when filed, would contain all of the ordered transcript.
Of course, had the husband appeared to prosecute his application, these issues may have been clarified and the application heard.
The procedural orders on foot require all relevant transcript to be included in the appeal books. Unless and until the husband files the appeal books as ordered the composition of those books cannot be known. Nonetheless, in my view, the appeal should be reinstated and the application thus will be granted.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 19 July 2016.
Associate:
Date: 19 July 2016
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