DIGLEN & KEARTLEY

[2019] FamCAFC 114

FAMILY COURT OF AUSTRALIA

DIGLEN & KEARTLEY [2019] FamCAFC 114

FAMILY LAW – APPEAL – PROPERTY – Where the appellant failed to comply with an order of this Court – Where the appellant says that this Court is not the appropriate forum to litigate the issues in dispute – Where the appeal has no merit – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Orders made for written submissions to be filed and served.

Family Law Act 1975 (Cth)

APPELLANT: Mr Diglen

RESPONDENT: Ms Keartley

FILE NUMBER: PTW 2140 of 2016

APPEAL NUMBER: WEA 47 of 2018

DATE DELIVERED: 28 June 2019

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Strickland J

HEARING DATE: 28 June 2018

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT ORDER DATE: 23 November 2018

LOWER COURT MNC: [2018] FCWAM 173

REPRESENTATION

THE APPELLANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Carr

SOLICITOR FOR THE RESPONDENT: Carr & Co

Orders

1. The Notice of Appeal filed on 21 December 2018 be dismissed.

2. Within fourteen [14] days of the date hereof the respondent wife file and serve written submissions in support of an application for costs of and incidental to the appeal.

3. Within fourteen [14] days of receipt of the written submissions the appellant husband file and serve written submissions in response.

4. Within seven [7] days of receipt of the written submissions in response the respondent wife, if so advised, file and serve written submissions in reply.

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 Diglen & Keartley 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 47 of 2018
File Number:  PTW 2140 of 2016

Mr Diglen

Appellant

And

Ms Keartley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is a Notice of Appeal filed by Mr Diglen (“the husband”) on 21 December 2018, appealing against orders made by Magistrate Walter on 23 November 2018.

2. On 15 April 2019 a directions hearing was conducted in relation to that Notice of Appeal, and orders were made to prepare the appeal for hearing. Specifically, those orders provided for the husband to file and serve, on or before the close of business on Friday 31 May 2019, a written summary of argument and list of authorities.

3. There was then a provision for Ms Keartley (“the wife”) to file and serve a written summary of argument and list of authorities on or before the close of business on Friday 21 June 2019.

4. The appeal was listed for hearing today, namely Friday 28 June 2019 commencing at 9:00am.

5. The husband has failed to comply with the order providing for the filing and serving of a summary of argument, and no application was made by him, for example, to extend the time for the filing of that summary of argument. I note that the wife complied with the order for the filing of a summary of argument, despite not having a summary from the appellant to respond to.

6. The husband has attended the hearing today, again without legal representation, and he seeks to tender to the court a summary of argument.

7. The further preliminary matter that I mention is that on 26 June 2019 the husband presented to the Appeal Registry an Application in a Case and a supporting affidavit. However, those documents have not been received for filing because the application is not in the correct form, and orders are sought in that application in relation to this appeal, and orders are also sought in relation to the proceedings below. The problem for the husband is that he cannot seek orders in relation to the appeal in an Application in a Case. What the husband is required to do if he wishes to seek orders in relation to the appeal, is to file a separate Application in an Appeal, supported by an affidavit. Accordingly the Application in a Case will be returned to the husband.

8. I note though that in the application that the husband sought to file, the order that he sought in relation to the appeal was as follows:

   …

   4.All hearings in the proceedings (PTW 2140 of 2016 and WEA 47 of 2018) be adjourned forthwith and all proceedings be stayed indefinitely, pending resolution of the dispute before the courts of England & Wales.

   …

9. I mention that because of a matter that the husband has raised before this Court today, namely suggesting that orders 1 to 4 that he himself sought in his Notice of Appeal cannot, or should not, be made because, he says, this Court is not the appropriate forum for those issues to be litigated. The husband suggests that that is because courts in Australia will not exercise jurisdiction over legal title of real property in a foreign jurisdiction.

10. Given all these circumstances, I put three options to the husband in relation to this appeal. First, to withdraw it, because he says that this Court is not the appropriate forum for the issues the subject of the appeal to be litigated, for the reason that I have referred to previously. Secondly, for me to dismiss the appeal because of the husband’s failure to comply with the order of this Court.  And I interpolate to say that that is an application made by counsel for the respondent in any event. Thirdly, to allow the appeal to proceed to the extent that the husband says, or suggests, that it can.

11. Despite plain obfuscation by the husband in responding to my questions generally in relation to the appeal, ultimately, he put to me that the only order of the Magistrate that he would wish to challenge, and I add, wherever, but presumably in England, is order 10 of the orders made by the Magistrate on 23 November 2018.  Order 10 reads as follows:

    At or before the settlement or completion of the sale of the [City A] Property, the [husband] do all acts and things and sign all documents necessary to secure the removal of the Matrimonial Home Rights pursuant to the Family Law Act (UK) lodged over the title to the [City A] Property at his expense.

12. It seems that what the husband is attempting to argue is that this Court would not exercise jurisdiction over such an order, because, and going back to his submission about this, courts in Australia will not exercise jurisdiction over legal title of real property in a foreign jurisdiction. Pointedly, during the oral submissions, I indicated to the husband that that is nonsense, and I repeat that in these reasons for judgment.

13. The order made by the Magistrate is an order in personam. It is not an order in rem. There is no error whatsoever made by the Magistrate on the basis of any issue about jurisdiction or appropriate forum in relation to such an order. Logically then, if this appeal was to proceed, and if it was only on the basis of challenging order 10, the appeal must be dismissed on its merits.

14. In any event, of the three options that I gave to the husband, he has opted for the first, namely, withdrawing the appeal, and given that, I propose to dismiss it.

15. I indicate that equally I would have been prepared to dismiss the appeal because of the failure by the husband to comply with an order of this Court. Further, and equally, given what I have just indicated in relation to the one order that the husband would seek to challenge of those made by the Magistrate, in my view, as I have explained, there is no merit in such a challenge.

16. Given that, I now have before me an application by the wife seeking an order for costs, with such order to be calculated on an indemnity basis, and the opportunity to provide written submissions in support of that application is sought. I propose to allow that and I will also give the husband the opportunity to file written submissions in response.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 28 June 2019.

Associate: 

Date:  11 July 2019