Hillekamp and Hillekamp
[2016] FamCAFC 58
•18 April 2016
FAMILY COURT OF AUSTRALIA
| HILLEKAMP & HILLEKAMP | [2016] FamCAFC 58 |
| FAMILY LAW – APPEAL – DIVORCE – The wife appealed against a divorce order – Matter listed for dismissal on account of the wife’s failure to show reasonable diligence in prosecuting the appeal – The appeal would depend for success on an application to adduce further evidence, which will be controversial – No merit in the appeal – Appeal dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Application for costs dismissed. |
| Family Law Act 1975 (Cth) – s 55(3), s 58 Family Law Rules 2004 (Cth) – r 22.13, r 22.45 |
| APPELLANT: | Mrs Hillekamp |
| RESPONDENT: | Mr Hillekamp |
| FILE NUMBER: | PTW | 3049 | of | 2015 |
| APPEAL NUMBER: | WA | 27 | of | 2015 |
| DATE DELIVERED: | 18 April 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 18 April 2016 |
| LOWER COURT JURISDICTION: | Magistrate’s Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 October 2015 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr O’Brien |
| SOLICITOR FOR THE RESPONDENT: | Patrick Legal |
Orders
Any rule preventing the matter being heard today be dispensed with.
The appeal be dismissed.
The respondent’s application for costs be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillekamp & Hillekamp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 27 of 2015
File Number: PTW 3049 of 2015
| Mrs Hillekamp |
Appellant
And
| Mr Hillekamp |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This matter has been listed today on the court’s own motion for possible dismissal of the wife’s appeal against a divorce order, which was made in her absence after an order had been made for substituted service.
The basis upon which the matter has been listed relates to the wife’s alleged failure to show reasonable diligence in proceeding with the appeal. Questions also arise as to whether the wife has failed to meet a requirement under the Family Law Rules 2004 (Cth) (“the Rules”), and/or whether she has failed to comply with an order in relation to the appeal.
Background to the appeal
The appellant wife and the respondent husband were married in 1990 in Holland.
On 12 June 2015, the husband filed an application for divorce in the Family Court of Western Australia. The application was listed for 20 August 2015.
In his application, the husband asserted that the parties had separated in 2007, and he gave the wife’s current address as G Street, Suburb D (“the Suburb D address”).
At the time the application was filed, there were property settlement proceedings on foot which had been commenced by the husband on 8 June 2015. The wife was represented in those proceedings by Robertson Hayles.
On 13 July 2015, Robertson Hayles filed a Notice of Ceasing to Act in which they stated that the “last known residential address” of the wife was PO Box …, Suburb D (“the Suburb D Post Office Box address”).
On 27 July 2015, Lavan Legal filed a Notice of Address for Service on behalf of the wife. The Notice stated that Lavan Legal’s office was “the address for service for all applications with the above file number”.
On 29 July 2015, the husband filed an application for dispensation of personal service of the divorce application, on the condition that the divorce application would be posted to the wife at the Suburb D Post Office Box address or to the postal address of “her legal representatives, Lavan Legal, or such other legal representatives that the Wife may appoint”.
In his affidavit in support of his application for dispensation of personal service, the husband noted that the wife had lived at the Suburb D address for several years after separation “until in or about June 2015”. He deposed that he understood that the wife was no longer living at that address and that she was living somewhere in Suburb O or Suburb L, but that he did not know where and she would not tell him.
The husband further deposed to the following facts:
·On 19 June 2015, his solicitors wrote by email to Robertson Hayles to enquire whether they had instructions to accept service of the divorce application. No response was received to the email, a copy of which was attached to the husband’s affidavit.
·On 3 July 2015, the husband’s solicitors telephoned Robertson Hayles to enquire whether they had instructions to accept service of the divorce application, but they were advised that the wife’s solicitors did not have instructions to accept service at that time.
·On 7 July 2015, the husband’s solicitors wrote to Robertson Hayles again, enquiring whether they had instructions to accept service. A copy of the correspondence was attached to the affidavit (and I note that the correspondence also dealt with the property issues then pending).
·On 8 July 2015, the question of service of the divorce application was again raised, but this time in court. The husband deposed that Ms Auburn from Robertson Hayles stated in open court that she had asked the wife about accepting service on several occasions, but advised the court that each time the wife had not been able to understand the “concept of accepting service”.
·On 13 July 2015, as noted already, Robertson Hayles lodged a Notice of Ceasing to Act and gave the Suburb D Post Office Box address as the wife’s new address for service.
·On 17 July 2015, the husband’s solicitors attended a hearing at the Family Court, where both the wife and her new solicitor, Ms Kilgallon from Lavan Legal, were in attendance. The husband’s solicitor asked Ms Kilgallon whether she had instructions to accept service of the divorce application and was informed that Ms Kilgallon did not have instructions to accept service, but that the husband’s solicitor could serve the wife personally. However, by the time the husband’s solicitor attempted to serve the wife, she had left the Family Court building and did not return, so she could not be served.
·On 17 July 2015, the husband’s solicitors instructed process servers to attempt to serve the wife, but they were unable to do so.
On 27 August 2015, having read the husband’s affidavit, a magistrate made an order dispensing with personal service of the divorce application on the condition that the documents were served on the wife by prepaid post at the Suburb D Post Office Box address. The wife was also ordered to contribute to the husband’s costs fixed in the sum of $350.
On 10 September 2015, the husband’s solicitor filed an affidavit stating that a copy of the divorce application and the orders of 27 August 2015 had been posted to the wife at the Suburb D Post Office Box address on 3 September 2015.
On 28 October 2015, the divorce application came before Magistrate Monaghan and a divorce order was pronounced. That order would have become final one month later were it not for the fact that the wife lodged an appeal on 27 November 2015. By operation of s 55(3) of the Family Law Act 1975 (Cth) (“the Act”), if an appeal is instituted before a divorce order has taken effect, then the divorce order, unless reversed or rescinded, takes effect at the expiration of a period of one month from the day on which the appeal is determined or discontinued.
I should pause here to note that it is highly arguable that the appeal, filed as it was on 27 November 2015, was out of time, since the appeal should have been instituted within 28 days of the date of the divorce order. I understand, however, from advice received from the Appeal Registrar, that the wife had filed some form of application on or about 26 November 2015 to extend the time within which to appeal, but for reasons I need not go into, the Registrar determined that the application should not be filed and that instead the Notice of Appeal itself should be filed.
For the purposes of the proceedings this morning, I do not intend to dwell on the question of whether or not the appeal was filed out of time, and I will simply proceed on the assumption that the appeal is properly constituted.
The Notice of Appeal
Before considering whether the appeal should be dismissed for failure to prosecute it with due diligence, something should be said about the appeal itself.
The Notice of Appeal contains 13 purported grounds of appeal. They are, with respect to the appellant, largely nonsensical. However, it is possible to discern that there are two complaints which, if correct, would be regarded as legitimate, albeit only one of them, in my view, would provide grounds for an appeal. The other complaint would be more appropriately directed to an application for rescission of the divorce order.
The wife’s first and fundamental complaint was that the parties had not separated for the requisite 12 months prior to the filing of the divorce application. If this were to be established, the appeal would succeed and the divorce order would be set aside. However, it would only be by obtaining leave to introduce further evidence that the appeal could succeed, since on the evidence that was before the Magistrate, there is no doubt that the correct order was made. The wife has acknowledged that fact in her submissions today.
The real question on the appeal therefore would be whether the further evidence about the date of separation would be permitted to be filed in circumstances where the wife has not, thus far at least, said anything in her material to put in issue the vast bulk of the assertions made by the husband in support of his application for dispensation of service.
This is significant, since those assertions, if true, would establish that the wife deliberately went out of her way to avoid service, thereby depriving herself of the opportunity to adduce evidence about the date of separation at the hearing before the Magistrate. In my view, that would be a factor that would weigh heavily against the court granting the wife leave to rely on further evidence on the hearing of the appeal, quite apart from the fact that the material seems certain to be controversial, which is also another factor that would weigh against the evidence being allowed in on the hearing of the appeal.
The second significant complaint that can be discerned from the wife’s grounds of appeal is that she claims that the husband misled the court into dispensing with personal service of the divorce application because he failed to reveal to the court that he knew she was living in a car parked somewhere on M Street and that he chose not to serve her there. In my view, this is not a ground of appeal at all, but rather a possible basis for an application for rescission of the divorce order pursuant to s 58 of the Act. However, a divorce order will only be rescinded if the court is satisfied there has been a miscarriage of justice. Once again, if the husband was truthful in the assertions he made in his dispensation of service affidavit (corroborated as some of them were by the correspondence from his solicitors), then it could scarcely be said that there was a miscarriage of justice, since the wife had by her own actions effectively waived the opportunity to receive the divorce papers.
The wife’s conduct of the appeal
At the time of filing her appeal on 27 November 2015, the wife claimed she was unable to afford the filing fee. The Appeal Registrar allowed the wife to defer payment of the filing fee until 18 December 2015.
On 30 November 2015, the Appeal Registrar wrote to the wife giving detailed advice in relation to the proper conduct of the appeal. The letter noted, inter alia, that the appellant had until 18 December 2015 to pay the filing fee. The appellant was also informed that she might qualify for an exemption and that she should consider filing the appropriate application for an exemption by no later than 18 December 2015.
The letter from the Appeal Registrar of 30 November 2015 importantly went on to say (original emphasis):
The Rules provide, inter alia, that an appellant must file a draft index to the appeal books within 28 days of filing the Notice of Appeal or the date when the reasons for judgment that relate to the order the subject of the appeal are issued … and that, in the event the draft index is not filed within the required time, the appeal is deemed abandoned. I note that reasons for judgment have not been delivered in this case nor would, in ordinary circumstances, this occur in relation to divorce proceedings.
When filed the draft index must comply with Rules 22.19 and 22.20 of the Rules. Whilst there is no prescribed form for this document, I enclose a sample index for your assistance and a copy of the relevant Rules. Failure to file the draft index by the due date will result in the appeal being deemed abandoned pursuant to Rule 22.13(3). The issue as to the latest date by which this is due is problematical, and may need to be the subject of further consideration.
The Appeal Registrar’s letter also made comment about the possibility that the appeal had been filed out of time, but as I say, I do not propose to take that matter any further today.
On 17 December 2015, the wife wrote to the Appeal Registrar saying, “I am just trying to get the information to you ASAP”. Much of the balance of the letter is indecipherable, but part of it says, “is there a way that I can apply for [my husband’s] lawyers to get all the necessary documentation together for the appeal index? Once I have some funds I will get legal advice”.
On 8 February 2016, the Appeal Registrar wrote to the wife. His letter said:
In light of the fact that your Appeal is against a divorce order in relation to which no Reasons for Decision are likely to be published I now direct that you file a draft Index to the Appeal Books by close of registry on 8 March 2016.
I also require you to pay the filing fee for the Appeal of $1,270 or complete, sign and file an application seeking exemption from the requirement to pay the Appeal fee ... also by 8 March 2016.
On 28 February 2016, the wife responded to the letter from the Appeal Registrar. In her letter, she explained that she had delayed in responding to the Registrar because she did not often clear her mail at the Post Office Box. The letter contains a number of excuses for the wife’s inability to comply with the directions made by the Registrar and asked for another “one or 2 more extra weeks so I can get those papers together. I have to figure out how all is done [sic], how long it takes to even get the necessary documentation”.
On 8 March 2016, the wife again wrote to the Appeal Registrar saying, “I am writing this, so to let you know I am putting the whole thing together with proof but really need time”. She then went on to refer to her medical condition and her lack of money.
On 21 March 2016, the wife again wrote to the Appeal Registrar about her financial position, noting that she was “unable to pay the lodgement fees at this point”. She went on to say, “I need to get a lawyer to represent me but cannot because I have no funds”.
By letter dated 4 April 2016, the Appeal Registrar wrote to the husband’s solicitors and to the wife, advising that as the wife had not filed a draft Appeal Book Index nor sought an exemption from the obligation to pay the filing fee in an acceptable form, he had listed the matter for hearing before me today for consideration as to whether the appeal should be dismissed, or for any other appropriate orders or directions.
It is arguable that the 14 days referred to in r 22.45(3) does not elapse until tomorrow, but as the wife is here, and has had plenty of notice, I intend to dispense with the rule as I am entitled to do.
On 7 April 2016, the wife wrote to the Appeal Registrar advising, inter alia, that she would “try [to] get some information for the index. If I can be pls [sic] given an opportunity to get a lawyer involved”.
On 11 April 2016, the wife again wrote to the Appeal Registrar saying, “I received the letter on 8 April … I will be there on the 18 April”.
On 14 April 2016, most belatedly, the wife obtained an exemption for the payment of the filing fee for the appeal. However, the Appeal Book Index has still not been filed, and the appeal has therefore been delayed.
Had the wife filed the Appeal Book Index when she was directed to do so, this appeal could have been listed for final hearing this week when I would have had time to hear the matter. In the meantime, the divorce continues not to become final while the wife delays in prosecuting the appeal.
I should note at this point that all of the correspondence to which I have referred has been passing between the court and the wife at the Suburb D Post Office Box to which the divorce application was posted according to the sworn evidence of the husband’s solicitor. I have, however, noted the claim made by the wife today that, at the time the divorce papers were posted, she was not clearing her Post Office Box because she was not living in the area and was concerned about other matters, including her son.
Relevant rules
I turn now to consider the applicable rules. There are two rules relevant to the proceedings today.
Rule 22.13 provides as follows:
22.13 Filing draft index to appeal books
(1)This rule applies to an appeal that is not an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia.
(2) The appellant must file a draft index to the appeal book within:
(a) 28 days after:
(i) filing the Notice of Appeal; or
(ii)the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or
(b)if the court extends the period mentioned in paragraph (a)—the period ordered by the court.
(3)If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned.
Rule 22.45 relevantly provides as follows:
22.45Dismissal of appeal and applications for non‑compliance or delay
(1)This rule applies if:
(a)the appeal is not taken to have been abandoned; and
(b)a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Regulations;
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2)A court having jurisdiction in the appeal or application may:
(a)if the defaulting party is the appellant or the applicant:
(i)dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
…
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
Ordinarily, the failure of a party to file an Appeal Book Index would lead to the appeal being treated as having been automatically abandoned pursuant to the Rules. However, the Appeal Registrar has taken the view that notwithstanding the direction he gave for the appellant to file an Appeal Book Index, her failure to do so cannot, pursuant to the Rules, be treated as having led automatically to the abandonment of the appeal. This is associated with the Registrar’s apparent view that r 22.13 is logically to be read as if the words “the latest of” appear somewhere within the rule, which means that there is no time limit for the filing of an index in cases where no reasons for judgment are published.
I do not wish to express an opinion in relation to the validity of either of the propositions to which I have just referred. The provisions of s 55(3) of the Act relating to when a divorce becomes final are such that it would be most unsatisfactory to leave open any room for doubt whether or not an appeal that has been deemed abandoned by operation of the Rules has been “determined or discontinued” for the purposes of the Act. In order to avoid any doubt on this topic, in my view, it is necessary for the appeal either to be heard on its merits or formally dismissed.
Should the appeal be dismissed?
I recognise that the appellant is a self-represented litigant and I also recognise that the procedures associated with an appeal are quite complex. Ordinarily, these matters would weigh very heavily in the exercise of the discretion to dismiss or refuse to dismiss an appeal for failure to demonstrate reasonable diligence in prosecuting the appeal.
However, in the present matter, there is no merit in the appeal unless the appellant were to successfully prosecute an application to introduce further evidence, since without that evidence, the decision of the Magistrate is correct. For the reasons I have already mentioned, there would be almost no prospect of the appellant obtaining leave to introduce further evidence, especially as it seems the dispute about the date of separation relates more to matters of intention, rather than matters of fact associated with the parties’ very long history of living in separate countries.
A further factor to take into account in the exercise of the discretion is the fact that the husband is denied the fruits of his divorce order until such time as the appeal has been properly disposed of. The wife is able to achieve this effect by operation of the law, whereas in the case of an appeal against any other form of order, the filing of an appeal does not operate as a stay of the primary order, and a stay can only be obtained by successfully pursuing an application to that effect.
The appeal has now been on foot for many months and the wife still has not complied with a clear direction made by the Appeal Registrar in relation to the filing of the Appeal Book Index.
Given her delay, and even more importantly, given the apparent lack of merit in the appeal, I propose to dismiss the appeal.
[Recorded, not transcribed]
Costs
The respondent now seeks that the appellant pay the costs of the appeal. Although the matter has been brought on for summary dismissal, thereby saving considerably more costs, the respondent has undoubtedly incurred some costs in relation to the matter, including the costs of appearance here today and preparation. The amount of $500 sought is entirely reasonable.
The starting position in all family law proceedings, including appeals, is that each party should pay their own costs. However, the Act provides that if certain circumstances exist, then the court, in the exercise of its discretion, may make an order for costs.
One of the matters to be taken into account is whether a party has been wholly unsuccessful in the proceedings. As the wife’s appeal has been summarily dismissed today, there is no doubt that she has been wholly unsuccessful, and that does provide a basis for an order for costs.
However, the financial circumstances of the parties must also be taken into account. The husband is a very high income earner, although I am told from the bar table that he has many commitments. I have before me a statement of the wife’s current position, which was so sufficiently dire that a Registrar exempted her from payment of the appeal filing fee on the grounds of hardship. I have also heard mention of the wife having been living in a car from time-to-time and suffering financial difficulties at present.
It would seem from what I have heard today that there is no guarantee that the wife will receive any significant sum by way of property settlement. I am uncomfortable in making any order for costs against the wife given her current, and potentially future, difficult financial circumstances.
I also take into account the fact that, although self-representation is no defence, the wife has been self-represented. It is apparent from reading her material that she has genuine concerns in relation to the issue that is before the court. She also labours under some personal difficulties, as would be apparent from reading the correspondence and hearing the submissions today.
Overall, notwithstanding that there is a strong basis for a costs order, in my view, it would not be just to make such an order. The application for costs will therefore be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 18 April 2016.
Associate:
Date: 19 April 2016
0
0
2