Akmal and Akram

FAMILY COURT OF AUSTRALIA

AKMAL & AKRAM

[2009] FamCAFC 59

FAMILY LAW - APPEAL – Appeal against orders of a Federal Magistrate – Whether the appellant was denied natural justice – Where matter was heard before the Federal Magistrate in the appellant’s absence where appellant asserted that she was unaware of the hearing and despite alleged request for adjournment – Where no material placed before this Court, by way of further evidence or otherwise, in support of claims – Appellant’s repeated failure to prosecute her appeal in this Court – Complete absence of any evidence sought to be adduced in the appeal which, if accepted, would render erroneous the decision of the learned Federal Magistrate – Appeal dismissed.

Family Law Act 1975 (Cth) Section 93A

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MS AKMAL

RESPONDENT:

MR AKRAM

APPEAL NUMBER:

2008

FILE NUMBER:

PAC

6352

2007

DATE DELIVERED:

22 JANUARY 2009

PLACE DELIVERED:

PARRAMATTA

PLACE HEARD:

PARRAMATTA

JUDGMENT OF:

COLEMAN J

HEARING DATE:

22 JANUARY 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

17 June 2008

LOWER COURT MNC:

[2008] FMCAfam 762

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearances for the appellant.

SOLICITOR FOR THE APPLICANT:

Raphael & Associates

COUNSEL FOR THE RESPONDENT:

Mr Akram appearing in person

Orders

That the Notice of Appeal is dismissed.

That the appellant is ordered to pay the respondent’s costs in relation to the appeal.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal No: EA 81 of 2008
File No: PAC 6352 of 2007

MS AKMAL

Appellant

And

MR AKRAM

Respondent

REASONS FOR JUDGMENT

On 14 July 2008, Ms Akmal, (“the appellant”), filed a Notice of Appeal against orders made by Donald FM on 17 June 2008 in proceedings between the appellant and Mr Akram (“the respondent”).
By her Notice of Appeal, the appellant sought that the learned Federal Magistrate's orders of 17 June 2008 be set aside and the matter relisted for hearing before the Federal Magistrates Court.
The Grounds of Appeal articulated in the Notice of Appeal in essence asserted that the appellant, through no fault of hers, was unaware of the hearing of the proceedings on 17 June 2008 until 16 June 2008, one day prior to the hearing of the proceedings before the learned Federal Magistrate.
The Notice of Appeal asserted that, on the morning of 17 June 2008, the appellant notified a firm of attorneys of the documents received by her the previous day and, extraordinarily one might think, given that the hearing was on some hours later that very same day, instructed those attorneys "to forward a letter to the Federal Magistrates Court of Australia requesting the matter be adjourned so as to enable the appellant to ascertain the status of the proceedings". Unsurprisingly, in those circumstances, as the appellant went on to assert, the matter was heard in her absence.
The matter came before this Court on 29 August 2008 for directions. Ms Raphael, the solicitor referred to in the Notice of Appeal, then appeared on behalf of the appellant. The respondent husband appeared in person. It might be noted at this point that there does not appear to have ever been any material placed before this Court, by way of further evidence or otherwise, confirming either the matters referred to in the Grounds of Appeal to which reference has been made in the Notice of Appeal or that any approach was made to the Federal Magistrates Court by telephone, fax, email or otherwise on 17 June 2008 requesting an adjournment of the proceedings on that day.
With the consent of the respondent husband, on 29 August 2008, the proceedings were adjourned to 26 September 2008 for further directions. On that date, Ms Raphael again appeared on behalf of the appellant and the respondent husband again appeared in person. Directions were made for the appeal to be heard on 19 December 2008 and for the filing of appeal books by 1 December 2008.
It is not in doubt that no appeal books have ever been filed, nor has any explanation for the failure to file appeal books ever been proffered.
The matter came before the Court on 19 December 2008, pursuant to the orders of 26 September 2008. On that occasion, the appellant was again represented by Ms Raphael and the respondent husband again appeared in person. On that occasion, the appellant was granted yet a further indulgence. The time for compliance with the directions of 26 September 2008 was extended to 15 January 2009.
The appeal was listed to be heard this day, whether or not the appellant had filed appeal books and whether or not the appellant was able to attend Court. There was discussion, the Court vaguely recalls, on the last occasion of the reality that the appellant did not need to be present at Court for an appeal to be prosecuted in any event. There has been total silence subsequent to the orders of 19 December.
The Court has a vague recollection of discussion on the last occasion with Ms Raphael in relation to her retainer or the defects in such retainer. It is probable, though the Court does not need to speculate about this, that Ms Raphael has quite properly not appeared today because she has not been properly instructed to do so.
The matter should be finalised. The respondent husband has on every occasion attended Court. He has been patient in not opposing adjournments from time to time, as the brief chronology which has been provided by way of introduction to this Judgment reveals. He is entitled to have the appeal disposed of.
As noted earlier, there is no evidence pursuant to the principles emerging from the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172, with respect to s 93A of the Family Law Act 1975 (Cth) (“the Act”), or otherwise, in support of the appellant's assertion that she was inferentially, it seems to be asserted, denied natural justice on 17 June 2008.
Kirby J has pointed out that it is the opportunity to be heard which is important. There is a limit to the extent to which Courts are obliged to protect parties from themselves. It is extraordinary, if, which may or may not be the fact, the appellant's contention with respect to the events of 16 and 17 June 2008 is true, that there is not some evidence of that and some evidence that the firm of attorneys referred to by the appellant sought to contact the Court.
On the occasions when Ms Raphael has represented the appellant before this Court, she has demonstrated an awareness of relevant principles and the presumption of competence is appropriate to be applied to her.
The appellant has failed totally to explain why, if what she claims to be the case is true, she simply asked her solicitors, on the morning of the hearing, to write a letter to the Court requesting an adjournment.
The other matter of significance relates to the complete absence of any evidence sought to be adduced in the appeal which, if accepted, would render erroneous the decision of the learned Federal Magistrate. It is clear that the appellant has his Honour's Reasons for Judgment of 17 June 2008. The appellant has not filed any evidence or sought to rely upon any evidence in the appeal in relation to any of the matters which led to the learned Federal Magistrate to conclude as he did. Nor has the appellant sought to demonstrate appellable error in relation to such matters.
Whilst the absence of being heard is relevant for present purposes, it is not a matter which, of itself in isolation, necessarily would result in appellate intervention. It is not without significance that, seven months since the Judgment in this case was delivered and made known to the appellant, she has not sought to file any evidence whatsoever which, if accepted, would render erroneous the learned Federal Magistrate's conclusions.
Turning to his Honour's Reasons for Judgment, those, perhaps, are unsurprising. His Honour recorded that the application of the present respondent (who was then the applicant) was for the appellant to pay to him $40 000 within 28 days of the Court's order by way of settlement of property.
His Honour incorporated into his Reasons for Judgment some matters of background from the affidavit of the respondent husband sworn on 25 February 2008. His Honour recorded that the parties had married in July 2003, separated in October 2005 and that there were no children of the marriage. Upon separation, the appellant wife remained in occupation of the matrimonial home. The husband took with him "only some limited clothing and personal effects".
His Honour referred to the acquisition in 2005 of a property at Liverpool ("Liverpool"). He further recorded that, "On advice, the parties agreed that the unit would be placed in the wife's name alone and, when the husband, on 26 December 2007, attended at the Land Titles Office with the purpose of placing a caveat on the property, he found the property had been sold by her on 16 July 2007".
Whilst the Court does not need to speculate about such matters, there is a consistency in the conduct of the appellant wife which starts with the disposition without notice to the husband of Liverpool and continues through her inadequately explained failure to appear on the hearing in June 2008 and her repeated failure to prosecute her appeal in this Court, culminating in her failure to appear by any means, actual or virtual, before the Court today or instruct attorneys to appear on her behalf.
Returning to the learned Federal Magistrate's Reasons for Judgment, however, having recorded those introductory matters, his Honour then identified the process, correctly in this Court's view, by which the proceedings before him fell to be determined.
His Honour recorded, accurately, it seems, that determining what property there was was a less than simple task. On the evidence before him, the property available for distribution by the orders of the Federal Magistrate represented the proceeds of sale of Liverpool which the wife had received in or about July 2007. His Honour recorded the financial circumstances of the husband and they, with respect to the husband, are extremely modest. His Honour recorded, as was clearly open to him, that the wife "at least has the proceeds of sale from the former matrimonial home and we do not know what has happened with that". His Honour, as was also open to him, included such proceeds of sale "notionally in the pool of property available for distribution".
Reference was then made to the acquisition of the property in 2005 for a cost of $160 000. The husband contributed $44 000 of that acquisition cost. The sum of $105 000 was borrowed from a bank.
The learned Federal Magistrate then referred to some matters pertaining to personalty which do not assume significance for present purposes. He then considered the contribution history of the marriage, recording that, when the parties married in August 2003, the wife was unemployed and studying using a temporary protection visa. The husband was then working as a labourer in a factory with an income of $37 700. The following year, he worked at a bakery with an income of $26 659 and received $100 000 from his previous marriage settlement.
His Honour observed, accurately, that the marriage was "very short", that there was "a very short period between the purchase of the home and the sale of the home". His Honour was understandably unable to quantify the proceeds of sale of Liverpool but concluded, as was reasonably open to him, that there would have been equity in the property which had been contributed as to $44 000 by the husband and the balance by the wife.
Inferentially, although it is perhaps difficult to see how the wife could have done so, the wife was thus considered to have contributed $26 000 of the $70 000 which for reasons he detailed the learned Federal Magistrate found to have been contributed to the purchase of Liverpool.
His Honour concluded in the exercise of discretion that the contribution based entitlements of the parties favoured the husband by 55 per cent to the wife's 45 per cent.
His Honour then considered certain medical evidence in relation to the husband, concluding, as was open to him, that the husband's health was not good.
He also concluded, as was virtually inevitable, that he knew nothing of the wife's employment although he noted that she was "studying in some capacity". His Honour, accordingly, on that basis, adjusted in favour of the husband by 5 per cent, his overall entitlement accordingly being 60 per cent.
Ultimately, his Honour concluded that, if the equity in Liverpool was approximately $60 000, 60 per cent of that would be $36 000. The husband was, accordingly, awarded the sum of $36 000.
In the absence of the slightest indication of the manner in which the appellant asserts that the learned Federal Magistrate erred, it is difficult to attempt to suggest how the appeal could be successful.
In the circumstances of this appeal, the absence of any indication of the bases of challenge to the substantive orders or the reasons for them or the findings of fact which underpin them and in the complete absence of any credible explanation for the failure to either appear before the learned Federal Magistrate or to prosecute the appeal, in this Court's view, it would be a travesty of justice for the respondent husband to be denied success on the appeal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 8 April 2009

[2009] FamCAFC 59

22 January 2009