Wilson and Mason - [2009] FamCAFC 160

FAMILY COURT OF AUSTRALIA

WILSON & MASON

[2009] FamCAFC 160

FAMILY LAW – APPEAL – Application to reinstate an Appeal – no appearance by any party – appeal dismissed

Family Law Rules 2004

APPELLANT:

Mr Wilson

RESPONDENT:

Ms Mason

FILE NUMBER:

MLC

6729

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

27 August 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

O'Ryan J

HEARING DATE:

27 August 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2008

LOWER COURT MNC:

[2008] FamCA 1191

REPRESENTATION

THE APPELLANT:

No appearance

THE RESPONDENT:

No appearance

Orders

The application be dismissed.

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)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 5 of 2009
File Number: MLC 6729 of 2007

Mr WILSON

Appellant

And

Ms MASON

Respondent

REASONS FOR JUDGMENT

I observe that there is no appearance by either party before me. In the circumstances, I propose to deal with the matter, although my reasons will be somewhat brief.
Listed before me for hearing today was an Application in an Appeal filed on 8 July 2009 on behalf of Mr Wilson (“the Father”). The Respondent named in the application is Ms Mason (“the Mother”).
In the application, the Father sought that an appeal filed 14 January 2009 be reinstated. In support of the application, the Father swore an affidavit on 24 June 2009, which was filed on 8 July 2009. There are a number of attachments to the affidavit, including what appears to be what I will describe as a typed statement of the Father.
Prior to the commencement of the hearing today, I had the opportunity to consider various reasons for judgment that have been delivered in proceedings between the Father and the Mother. In particular, in paragraph 30 of reasons delivered by Young J on 19 December 2008, his Honour said:
At the commencement of this case, the Independent Children’s Lawyers submitted a chronology limited to specific and relevant matters and facts and summaries of previous orders of the court. All parties either agreed or did not oppose that this presented an accurate and non-contentious chronology (save for the existence of any de facto relationship) and I have incorporated that chronology into this judgment and rely upon its contents.

Thereafter, at pages 11 to 19 of the reasons, Young J set out the chronology which he referred to. It is apparent from that chronology that the litigation between the Father and the Mother has been difficult and protracted. I observe that in paragraph 12 of those reasons his Honour said that the initiating court application was filed by the Mother on 15 November 2006 and that thereafter: “There have been many orders made in the Federal Magistrates Court and on or after 23 May 2007 in this Court”.
On 18 November 2008, there was listed for hearing before Young J applications for final parenting orders. However, on that day, with the assistance of an Independent Children’s Lawyer, the parties were able to resolve a number of matters and on 19 November 2008, by consent, his Honour made the following orders:
1.THAT the children [J] born […] July 2001 and [N] born […] November 2003 live with the mother.
2.THAT both children spend time and communicate with the father as follows:
(a)     on each alternate weekend commencing Friday 28 November 2008 from the conclusion of school on the Friday until the commencement of school the following Tuesday and such time spent shall continue until the first applicable weekend in July 2010;
(b)    from that weekend in July 2010, and on a continuing basis from the conclusion of school on Friday until the commencement of school the following Wednesday morning;
(c)    for one half of every school term holiday by agreement but in default of agreement for the first half in odd numbered calendar years and for the second half thereof in even numbered calendar years;
(d)    for half of every long summer school holiday period by agreement but in default of agreement for the first half thereof in odd numbered calendar years and for the second half thereof in even numbered calendar years – and for the purposes of these orders that long summer holiday period is defined to commence at 5.00 p.m. on 26 December in each calendar year;
(e)    from 5.00 p.m. on 24 December until 1.00 p.m. on 25 December in all even numbered calendar years;
(f)     from 1.00 p.m. on 25 December until 5.00 p.m. on 26 December in all odd numbered calendar years;
(g)    from 5.00 p.m. on the day prior to the Sunday of Father’s Day until 5.00 p.m. on Father’s Day;
(h)    on each of the children’s birthdays and on the father’s birthday from the conclusion of school until 5.30 p.m. if a school day and otherwise from 10.00 a.m. until 2.00 p.m. if not a school day.
3.THAT the times specified in the preceding order shall be suspended for the following times:
(a)     from 5.00 p.m. on the day prior to the Sunday of Mother’s Day until 5.00 p.m. on Mother’s Day;
(b)    on the children’s birthdays and the mother’s birthday from the conclusion of school until 5.30 p.m. if on a school day and from 10.00 a.m. until 2.00 p.m. if not on a school day.
4.THAT the mother shall sign all documents and do all acts and things properly required to authorise any school attended by each of the children to provide to the father, and his expense, copies of all school reports, newsletters and similar documents of and concerning the children.
5.THAT any communication between the mother and father required by these orders shall be undertaken by e-mail or SMS and for this purpose both parties will at all times ensure the other party has an appropriate e-mail address and telephone number for the purposes of receiving SMS messages.
6.THAT the children be at liberty to telephone whichever parent they are not living with at any time and each parent do all things necessary and co-operate with the children to ensure that they are able to make such reasonable telephone calls.
7.Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
8.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 the above orders were agreed to by all parties in the hearing of a defended children and parenting dispute. There are continuing disputes and the hearing will proceed and resolve the issue of sole or shared parenting and other specific issues.
B.THAT the signed minutes of consent orders, executed on 18 November 2008 by the parties remain upon the court file.
As well, on 19 November 2008, his Honour delivered brief extempore reasons, and I have considered what his Honour said.
The parties were unable to agree on all matters and, in particular, whether or not an order be made granting to the Mother sole parental responsibility or an order be made for joint parental responsibility, and thereafter his Honour continued to hear the matters that remained in dispute.
Then on 19 December 2008, his Honour made the following orders:
1.THAT pursuant to s61DA(1) and (4) of the Family Law Act 1975 (Cth) the presumption that it is in the best interests of the children [J] born […] July 2001 and [N] born […] November 2003 (“the children”) for the mother and father to have equal shared parental responsibility be rebutted.
2.THAT the mother have sole parental responsibility for the children.
3.THAT each of the mother and father communicate with the other by e-mail or SMS immediately should either of the children suffer any significant medical event or emergency.
4.THAT paragraphs 5 and 6 of the Order of Senior Registrar FitzGibbon made 31 July 2007 be discharged.
5.THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.
6.Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
7.THAT should no appeal be lodged against this Order within a period of one (1) calendar month then the appointment of the Independent Children’s Lawyer be discharged.
His Honour also delivered extensive reasons for judgment that comprise some 60 pages, and I have read those reasons and considered what his Honour said. It is within those reasons that the chronology I have earlier identified appears. His Honour concluded at 187 that:
In all the circumstances of the case, in evaluating all of the evidence, I conclude that it is in the best interests of the children to rebut the presumption of equal shared parental responsibility. I conclude that the mother should have an order for sole parental responsibility for the children, and I have so ordered.
Then, on 14 January 2009, a Notice of Appeal was filed on behalf of the Father against the orders made by Young J on 19 December 2008.
In the Notice of Appeal, there are three grounds which I do not propose to repeat in these reasons, although I have considered what the Father said.
Subsequent to the filing of the Notice of Appeal, various directions were made with respect to the preparation of appeal books and, in particular on 2 April 2009 the following orders were made:
1.That the appellant Father be responsible for the preparation of the appeal books.
2.That the appeal books for the appeal are to comprise each of the following documents arranged in the following order:
…
3.That in the event that the appellant proposes to ask the Full Court to consider documents other than those identified in paragraph 2 hereof, the appellant should either:
a. make application to adduce further evidence in accordance with Rule 22.39 of the Family Law Rules; and/or
b. prepare a further appeal book containing any such additional documents and mark such book as "Contentious Appeal Book, including documents which the appellant may ask the Full Court to receive as further evidence in the Appeal" (`contentious appeal book').
4.That no later than 11 May 2009, the appellant Father file in the Southern Regional Appeal Registry of the Court four (4) copies of the appeal books together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules and four (4) copies of any contentious appeal books.
5.That no later 4.30 pm on 15 April 2009, the respondent and Independent Children's Lawyer notify the Court and the appellant as to whether they intend to participate in the appeal and in the event that such notification is received, then the appellant must serve one (1) copy of the appeal books and any contentious appeal book on any party who has indicated that they intend to participate in the appeal.
6.That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
7.That the parties have liberty to apply for any further directions upon notice to the me in the Southern Regional Appeal Registry.
IT IS NOTED that:
1. the estimated time for the hearing of the appeal is ¹/2 day; and
2.that the appeal is likely to be listed for hearing before the Full Court in the July 2009.
The continuation, however, of the litigation between the parties was not confined to the appeal proceedings. I am not going to set out all of what has happened since 19 December 2008. However, I have considered reasons delivered by Young J on 3 March 2009, reasons delivered by Mushin J on 16 March 2009 and reasons delivered by Dessau J on 27 March 2009, and on 24 April 2009.
I observe that on 3 March 2009, Young J dealt with an application that was filed on behalf of the Father on 12 February 2009. The Father sought the stay of the orders which his Honour made on 19 December 2008 pending the appeal. In his reasons, his Honour said at 5:
The matter was properly listed before me this morning. There was 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.
His Honour referred in his reasons to other applications that the Father had filed and concluded that he proposed to dismiss the orders sought on the basis that the Father had elected not to attend court, or to argue for or seek the order outlined in the relevant document. As well, his Honour observed that there was no adjournment or request for an adjournment.
The Father did not comply with the orders made on 2 April 2009 and, in particular, he did not file, by 11 May 2009, the appeal books. The consequence of the Father’s failure to comply with this order is that his appeal is taken to be abandoned pursuant to the provisions of Rule 22.21 of the Family Law Rules 2004, which provides as follows:
If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.
Note A party may apply for an extension of time to file the appeal books (see rule 1.14).
The Father, in consequence of the deemed abandonment of his appeal, made an application that it be reinstated. This application was made pursuant to r 22.44 of the Family Law Rules, which provides that “A party may apply to have an appeal taken to be abandoned under this Chapter reinstated”.
I have considered very carefully all of the material that I have described. The matter is one where I take the view that the absence of the Father before me today, in circumstances where he had every opportunity to appear and prosecute his application for reinstatement is such that I should proceed to deal with the matter. The litigation between the Father and the Mother has been extraordinarily protracted and that is self-evident from the material which I have read.
I take into account that the Father appears to be representing himself; however, I observe that was the circumstance on the occasion of the hearing before Young J in November 2008. Given the absence of the Father, I infer that he no longer seeks to pursue his application and thus I propose to dismiss it.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Full Court of the Honourable Justice O’Ryan

Associate:

Date: 7 September 2009