Bindon and Beatham - [2019] FamCAFC 173

FAMILY COURT OF AUSTRALIA

BINDON & BEATHAM

[2019] FamCAFC 173

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATE – Where partway through the hearing the applicant left the courtroom stating that she was withdrawing the appeal – Where there was no appeal to withdraw it having been abandoned as a result of her failure to file appeal books within time – Where it was not clear whether the applicant also withdrew her Application in an Appeal the subject of the hearing which sought reinstatement of her appeal deemed abandoned – Application adjourned to enable the applicant to consider her position in relation to whether she intends to pursue the application or withdraw it.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172

APPLICANT:

Ms Bindon

RESPONDENT:

Mr Beatham

FILE NUMBER:

PTW

3125

2018

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

2 October 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

2 October 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

12 March 2019

LOWER COURT MNC:

[2019] FCWA 34

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In Person

Orders

The Application in an Appeal filed on 18 September 2019 be dismissed.
The Application in an Appeal filed on 26 September 2019 be adjourned for further consideration before the Honourable Justice Strickland to 9:30am (Perth time) on Tuesday 19 November 2019.
Leave be granted to the parties and their legal representatives to attend the adjourned hearing by way of telephone link.

It is noted that:

The purpose of the adjournment is to enable the appellant wife to consider her position in relation to the Application in an Appeal, namely whether she wishes to pursue it or withdraw it.

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 Bindon & Beatham 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
PERTH

Appeal Number: WEA 13 of 2019
File Number: PTW 3125 of 2018

Ms Bindon

Applicant

And

Mr Beatham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today are two Applications in an Appeal; one filed on 18 September 2019, and the other filed on 26 September 2019. In relation to the former application, which was listed today, events have overtaken that application. By that I mean that since that application was filed, the appeal filed on 9 April 2019 has been deemed abandoned, because of the failure of Ms Bindon (“the wife”) to comply with the orders for the filing of electronic appeal books, and the effect of that is, that that application cannot proceed.
For completeness though, I indicate that in that application what was in effect sought by the wife, was that the appeal listing as a reserve in the week commencing 14 October 2009, be moved to the next appeal sittings, that she have leave to file all the necessary documents after her solicitor is back from leave on 31 October 2019, and she be granted leave to file the affidavit in support of the application as further evidence in the appeal.
Pausing there, that application was quite surprising given that on 16 April 2019 the wife filed an Application in an Appeal seeking a number of orders, but the only order which could in fact be made by this Court, was an order expediting the hearing of the appeal. That application came on for hearing before this Court on 27 June 2019, and given the circumstances and the reason for the expedition, namely issues relating to the health of the wife, and her stated concerns about the possible dissipation or diversion of assets, I determined to grant the application for expedition.
I was not in the position though to give a firm listing, because the next available sittings, namely in October 2019, at that stage were full. Thus, what I did, in consultation with the wife, was to list the matter in that list but as a reserve. To repeat, it was quite surprising then that the wife made the application to which I have just referred. It is surprising also because the wife failed to appear at the first directions hearing before the Appeal Registrar to prepare the appeal for the hearing, and that directions hearing was adjourned. At that adjourned hearing, namely on 3 September 2019, the wife did appear, and the Appeal Registrar, as I understand it, enquired of her as to whether there would then be sufficient time to get the appeal ready, and suggested that she might like to consider removing the appeal from that list, and having it listed in the next available list, which at that time was going to be in 2020. Again, as I understand it, the wife did not want that to happen, and wanted the matter to proceed to hearing, if it could, in October 2019.
In any event, that application has been overtaken by the deemed abandonment of the wife’s appeal.
The other application before the court today, to repeat, is one filed on 26 September 2019, and that is an application which in effect seeks reinstatement of the appeal. It does not seek that in so many words, but that is clearly the purport of the application.
Mr Beatham (“the husband”) opposes the application.
I note that in the application the wife seeks similar orders to those she sought in her earlier application, namely in effect having the appeal listed at the next available appeal sittings after October 2019, not being required to file appeal books until her solicitor is back from leave on 31 October 2019, and that she be granted leave to file the affidavit in support of that application as further evidence. I also mention that there was an order sought in that application as follows:
4. Clarification in writing on the Appeal Court’s position
(a)on the First Respondent’s standing to make submissions and file documents for this appeal;
(b)whether I can dispense with service of Respondents 2, 3, 4, and 5; and
(c)whether I need to serve Mr Carr for Carr & Co the Intervener for the 2 October and subsequent hearings.
As I indicated to the wife at the start of these proceedings, that is not an application I am prepared to consider, and it is not appropriate for a litigant to seek clarification in writing of an Appeal Court’s position.
In any event, the primary application was for reinstatement of the abandoned appeal.
I then challenged the wife as to why the appeal had come to this, and the basis on which she was now wanting the matter effectively taken out of the October 2019 list, and listed in the next available appeal sittings. I also indicated to the wife, that having read her application, there was nothing in the application or the supporting affidavit which explained why she had not complied with the orders of the court for the filing of the electronic appeal book. And as I indicated, that was the very first of a number of factors that needed to be considered on an application for reinstatement.
In response, the wife sought to take me to the issues that concern her in relation to the proceedings below, and she attempted to take me to what has happened in the court below since I made orders on 27 June 2019 expediting the appeal.
Apparently there had been a hearing before the primary judge on 10 September 2019, but I explained to the wife that whatever happened then was not relevant to the appeal, and the only matter that was before this Court was her abandoned appeal filed on 9 April 2019. I then repeated some of the remarks that I had made on 27 June 2019 in relation to the merits of that appeal, namely that at that point, and still, I could not see how she could be successful, given, in my assessment, the result she was attempting to achieve was not a result that she could obtain from an appeal, but rather, she needed to go back to the court below to pursue those matters.
It seems that the wife did that, and that was the purpose of the hearing on 10 September 2019, but reading her documents, she is unhappy about the result on 10 September. Again, that was not something I could take into account or hear about from her because, as I reiterated to the wife, all that is before this Court is the abandoned appeal filed on 9 April 2019.
In any event, part way through the hearing the wife indicated that she had had enough, that she was withdrawing the appeal, and she left the court room.
I noted for the purposes of the transcript that given the appeal had been deemed abandoned, there was in fact no appeal for the wife to withdraw, and that what was before this Court was the Application in an Appeal seeking in effect a reinstatement. The wife in her haste to leave the court room did not say anything about what she wanted done with that application. I assume that in saying that she, and I quote “had had enough”, was referring to that application as well, but I cannot be certain about that.
What I propose to do then is adjourn that application and leave it to the wife to make a decision as to whether she wishes to proceed with it, or withdraw it, and I will fix a date after her solicitor has returned from his leave, and will presumably then be able to provide the wife with some legal advice, but before the next hearing in the court below, namely on 6 December 2019.
The other matter I mention is in relation to the question of fresh evidence.
Having read the wife’s affidavit in support of her application seeking reinstatement of her appeal, it does not satisfy the principles established in the High Court decision of CDJ v VAJ (1998) 197 CLR 172, and although I have not heard any submissions from the wife about it, my preliminary view is that there is no basis for receiving the contents of that affidavit as further evidence, and I mention one reason for that. A substantial part of the contents of that affidavit relate to events which have occurred since the orders the subject of the abandoned appeal were made, namely the orders made on 12 March 2019, and the wife had gone to a lot of trouble to annex documents that have been produced subsequent to that date.
Stating the obvious, none of those documents were before the primary judge on 12 March 2019, so how it could be suggested that they demonstrate error by the primary judge is the issue which led me to make my comment about it.
That perhaps highlights what I have been saying to the wife on the last occasion and again today, namely that the court below is where she should be pursuing these matters. And indeed, as I have indicated, the matter is back before the court below on 6 December 2019, and as I understand it, the purpose of that hearing is to consider much, if not all, of what has happened since 12 March 2019, and particularly in relation to expert reports and the production of documents, including accounts.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 2 October 2019.

Associate:

Date: 10 October 2019