Wilson and Mason

[2009] FamCA 154

FAMILY COURT OF AUSTRALIA

WILSON & MASON [2009] FamCA 154

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders pending appeal – No appearance by applicant father – Dismissed application

Family Law Act 1975 (Cth)

APPLICANT: MR WILSON

RESPONDENT: MS MASON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 3 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON - NO APPEARANCE

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON - NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: NO APPEARANCE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C.E. FAMILY LAWYERS

ORDERS

IT IS ORDERED:

1. THAT the application in a case filed 12 February 2009 by the father be struck out.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS NOTED:

A.THAT there was no appearance at court by the father to prosecute his application for a stay of the children and parenting orders of the court pronounced 19 December 2008.

B.THAT there are no affidavits of service filed which would indicate that the father has properly served either the mother or the Independent Children’s Lawyer.

C.THAT there is a further application, supported by an affidavit of the father filed with the court and returnable 16 March 2009 but that deals with issues other than the stay application.

IT IS NOTED that publication of this judgment under the pseudonym Wilson & Mason is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MR WILSON

Applicant

And

MS MASON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Wilson & Mason and the independent children's lawyer is listed before me this morning on the return date of the applicant father's request for orders to be made pursuant to an application in a case filed 12 February 2009.

2. In that handwritten document, the father sought a stay of orders which I pronounced on 19 December 2008, pending his appeal.  There is an affidavit of the father filed that same day which is presumably intended to be in support of that stay application.  In any event, I have read that document.

3. I am also now aware from a perusal of this file that there have been other applications earlier filed by the father in respect of contravention and other matters which have been dealt with by orders of the Federal Magistrates Court on 4 February 2009 and 26 February 2009.  I do not concern myself with any of those matters.

4. There is also on file a typed affidavit from the mother filed 19 February 2009, where she deposes to her efforts to comply with and support the orders that I earlier made and otherwise it identifies issues that she would assert have arisen since the orders and by way of implementation of time to be spent by the father with both J and N.  In that affidavit, assistance is sought by the mother with clarifying aspects of the consent orders and for specific times to be more fully defined.  Annexed to the mother's affidavit is a purported transcript of various conversations or messages left by the father.  Again, many aspects of that affidavit are beyond my immediate consideration for the purposes of a stay.

5. The matter was properly listed before me this morning.  There is no appearance by any party; that is, the father, the mother or the Independent Children's Lawyer.  Of significance there are no affidavits of service on file, and it is not able to be ascertained from the file whether the mother or the independent children's lawyer, who remain in this case pending the hearing and outcome of the father's appeal of my orders, have been served.  The father has been called out of court and did not appear.

6. I note that there was a telephone message left on the file but that must relate to an earlier occasion.  It seems that when the contravention application was before the Magistrates' Court, the father was late and requested a deferment from 10.00 a.m. until 11.30 a.m. to give him time to get to court.  I note carefully that document carries the date 4 February 2009 and thus it is of no relevance to today's hearing.  There is no other message recorded today and certainly the father knows that he has an avenue of advising the court of any genuine and proper delay or excuse.  This he has not done on this occasion.

7. I am also aware that there is a further application filed by the father on 26 February 2009. That has been made returnable before Mushin J on 16 March of this year and I therefore leave to one side that application and affidavit. 

8. Returning to the stay application, I propose to dismiss that order sought on the basis that the father has elected not to attend court or to argue for and seek the order outlined in that document.  There has been no adjournment or request for adjournment.  It is a fact that that matter should properly come before me as the trial judge.

9. The Family Law Rules, Chapter 22, Rule 22.12, highlights that the filing of a notice of appeal does not stay the operation of an order and, more particularly for the purposes of this hearing, Rule 22.12(3) provides that an application for a stay must be made to the judge who made the order under appeal.

10. This matter therefore is properly before me and I had intended to hear argument and decide and deliver reasons for judgment today.  It is now a straightforward procedure, in that the failure of the father to attend means that the matter will be struck out for his non-appearance and his failure to prosecute his application before the court.

11. I will have these reasons transcribed, placed on the court file and made available to all parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: