Hoebeek & Anor and Hoebeek - [2018] FamCAFC 17

FAMILY COURT OF AUSTRALIA

HOEBEEK AND ANOR & HOEBEEK

[2018] FamCAFC 17

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to reinstate the appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Appeal filed within time but the applicant failed to file a draft appeal book index – Adequate explanation for the failure to provide the draft appeal book index – Found there is no utility in reinstating the appeal as the grounds of appeal do not identify appealable error – Application dismissed – Applicant to contribute to the respondent’s costs of the application in a fixed sum payable upon the finalisation of the substantive property settlement proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

FIRST APPLICANT:

Ms Hoebeek

SECOND APPLICANT:

Company A

RESPONDENT:

Mr Hoebeek

FILE NUMBER:

PTW

3049

2015

APPEAL NUMBER:

27L

2017

DATE DELIVERED:

1 February 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

1 February 2018

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

30 May 2017

LOWER COURT MNC:

[2017] FCWA 69

REPRESENTATION

THE FIRST APPLICANT:

In person

THE SECOND APPLICANT:

Self-represented litigant (Ms Hoebeek)

COUNSEL FOR THE RESPONDENT:

Mr O’Brien

SOLICITOR FOR THE RESPONDENT:

Patrick Legal

Orders

The application in an appeal filed 13 November 2017 be dismissed.
The first applicant contribute to the respondent’s costs of the application fixed in the sum of $500 payable upon the finalisation of the substantive property settlement proceedings.

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 Hoebeek and Anor & Hoebeek 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: WA 27L of 2017
File Number: PTW 3049 of 2015

Ms Hoebeek

First Applicant

And

Company A

Second Applicant

And

Mr Hoebeek

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court this morning is the application in an appeal filed by Ms Hoebeek on 13 November 2017 seeking the reinstatement of appeal WA 27L of 2017. The respondent is Mr Hoebeek.
I will refer to the parties as “the wife” and “the husband”, although I am aware an order was made some time ago dissolving their marriage.
The husband and wife were engaged in litigation before Moncrieff J, in the course of which his Honour made, inter alia, an order for sale of properties. The wife was aggrieved by the orders and filed an appeal on 23 August 2017.
As a requirement of the Family Law Rules 2004 (Cth) (“the Rules”), the wife was to provide an appeal book index by no later than 20 September 2017. The Appeals Registrar wrote to the wife on 28 August 2017 advising her of this and providing her with information about the way in which the appeal was to be conducted, including a brochure about procedures. The letter also explained that by operation of the Rules, if the draft index was not filed by the due date, the appeal would be deemed to be abandoned without notice.
The wife failed to provide the draft index by 20 September 2017 and, on 29 September 2017, the Appeals Registrar wrote advising her that her appeal had been deemed abandoned. The wife then wrote back, and although her letter was dated 15 August 2017, it is obvious that was not the date on which the letter was sent and it was in fact received by the court on 16 October 2017.
The Appeals Registrar, having considered the content of the letter, wrote back to the wife on 23 October 2017 explaining that he took the letter to mean that the wife was wanting to reinstate her appeal. The Registrar therefore explained the process that she needed to undertake. Subsequently, the wife filed the application that is before me today. Unfortunately, like much of the material in this matter, the orders sought in the application were not orders that the Court could make at all at this stage of the proceedings.
The affidavit in support of the application, which was a very lengthy document with many attachments, again, with respect to the wife who is self‑represented, simply misses the point of what these proceedings are currently about. The only indication of the wife’s understanding of what was required was the fact that in the application itself in Part C, where the applicant is required to identify the type of order sought, she wrote “Application to reinstate appeal”. As I have explained to the wife this morning, that is in fact all that I can deal with today.
I have also explained that there are two primary matters that I need to consider.
The first is whether there has been an adequate explanation for the delay in filing the index. The wife has explained to me that the reason for her not complying with the obligation was that her son has been very unwell, that he was admitted to an institution and that she was visiting him regularly. She also refers to the fact that she was otherwise occupied in dealing with what I understand to be a stay application and, as a result, did not have time to attend to these proceedings and in particular the preparation of the index (a sample copy of which had been sent to her by the Appeals Registrar).
In his submissions in response, Mr O’Brien, who appears today for the husband who is not resident in Australia, says that the relief sought ought not to be granted because the explanation for the delay is not satisfactory. He points to similar explanations having been provided by the wife during the course of the substantive proceedings and that those explanations did not find favour with the trial judge. I take a different view, if indeed it is a different view, from the trial judge and of course, the circumstances are entirely different.
The wife obviously struggles with the processes of the Court, as is apparent even from a cursory examination of the material that she has provided. It is not in doubt that her son has been seriously unwell and I have no reason to doubt that this was distressing for her and time-consuming in needing to visit him. I also have no reason to doubt that the wife was preoccupied with other matters, perhaps relating to the stay. I am, therefore, inclined to take the view that an adequate explanation has been provided for the failure to file the index, which would not be an easy document for a self‑represented litigant to prepare.
There is, however, a second aspect to the application, and that is the question of whether there is any utility in reinstating the appeal.
I have explained to the wife the merit in the position that the husband has adopted in responding to the appeal: namely that the appeal has been presented in a way which does not identify appealable error. With great respect to the wife, who I accept has done her best to present her case, the extraordinarily lengthy matters referred to in seeking leave of the Court to appeal and the many matters referred to as identifying grounds of appeal, constitute an abuse of the Court’s process because of the failure to adequately identify appealable error.
The wife also relies upon a miscellany of matters that are irrelevant and/or impossible to understand. In those circumstances, I would not be doing the wife a favour by reinstating the appeal because if – and I stress if – she was then able to successfully navigate the difficult processes of getting an appeal prepared for hearing before a Full Court, there is no indication on the material currently provided that there is any prospect of success.
I have explored very briefly this morning the possibility of the wife obtaining some legal assistance with a view to bringing forward an appeal that is not an abuse of the process, but I must leave that up to her. I have stressed to the wife the wide discretion that is given to a trial judge, the difficulty in successfully prosecuting an appeal and, in this instance, the question of whether leave would be granted to appeal what, at this stage, appears to be an interlocutory order.
For these reasons, there will be an order that the application in an appeal filed 13 November 2017 be dismissed.

RECORDED: NOT TRANSCRIBED

The application now before the Court is that of the husband seeking an order for costs fixed in the sum of $3,762. This is based upon nine hours work, although probably more has been done in dealing with the somewhat difficult application. The husband is entitled under the legislation to rely upon the fact that the wife has been wholly unsuccessful in her application today.
The amount being sought is not unreasonable in the circumstances. The husband however acknowledges that he is a very high income earner, albeit he also has many commitments including some increasing commitments that he has described in his affidavit evidence. The husband appropriately accepts (through his counsel) that there is no indication that the wife at present could meet such a sum and it is instead said that she could meet it from her property settlement, the amount of which is rather uncertain. In response the wife appears to be relying upon her strained financial circumstances. That is a matter I must take into account, although it is less significant in this case where there is the prospect that there will be a sum of money available at the end of the proceedings to meet a costs order.
In the course of hearing the argument, I have drawn attention of the husband’s counsel to the concerns that were expressed by Moncrieff J about the capacity, in the legal sense, of the wife to conduct this litigation. His Honour ultimately determined that the wife’s capacity was such that he was comfortable to deal with the litigation and to allow the matter to proceed without assistance being provided. In reading the wife’s material, I shared the initial concerns of his Honour about her capacity. His Honour has had a better opportunity than I have had to determine that issue, but I must say I think the issue of capacity here is fairly lineball.
Overall, taking into account the personal circumstances of the wife and her strained financial circumstances, I think the appropriate course, in the exercise of the wide discretion conferred on me, is to make a relatively nominal order for costs. This takes into account the unique personal circumstances of the wife but also makes clear that the commencement and the continuation of litigation can have financial consequences.
I therefore order that the wife contribute to the husband’s costs of the application fixed in the sum of $500 payable upon the finalisation of the substantive property settlement proceedings.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 1 February 2018.

Associate:

Date: 27 April 2018