HUTH & HUTH
[2019] FamCAFC 26
•18 February 2019
FAMILY COURT OF AUSTRALIA
| HUTH & HUTH | [2019] FamCAFC 26 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant failed to appear at the hearing alleging he did not know about the listing and in any event he was unwell and he would not be appearing – Where the appellant had not complied with the orders of this Court – Where Senior Counsel on behalf of the respondent sought that the appeal be dismissed on its merits and in the alternative, that the Amended Notice of Appeal be struck out on the basis that the appellant failed to appear to pursue his appeal and failed to comply with orders – Where the appellant was well aware of the hearing – Amended Notice of Appeal struck out. FAMILY LAW – COSTS – Where the respondent seeks her costs thrown away – Where the amount sought is reasonable in the circumstances and less than what the costs would be on a party/party basis – Costs ordered as sought by the respondent in the sum of $5,000. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | MR HUTH |
| RESPONDENT: | MS HUTH |
| APPEAL NUMBER: | WEA | 33 | of | 2018 |
FILE NUMBER: | PTW | 3874 | of | 2016 |
| DATE DELIVERED: | 18 February 2019 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 February 2019 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Hedges SC |
| SOLICITOR FOR THE RESPONDENT: | WA Family Legal |
Orders
The Amended Notice of Appeal filed on 10 January 2019 be struck out.
The husband pay to the wife costs thrown away today fixed in the sum of FIVE THOUSAND DOLLARS [$5,000] such amount to be paid within 28 days of the date hereof.
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 Huth & Huth 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
FILE NUMBER: PTW 3874 of 2016
APPEAL NUMBER: WEA 33 of 2019
| Mr Huth |
Appellant
And
| Ms Huth |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Amended Notice of Appeal filed by Mr Huth (“the husband”) on 10 January 2019. Today was the date set for the hearing of that Amended Notice of Appeal, however, the husband has failed to appear.
Senior Counsel has appeared for Ms Huth (“the wife”), and he has advised the court that prior to the commencement of the hearing today, his instructing solicitor’s secretary telephoned the husband as to his attendance at court, and was informed by the husband that he was not aware that the hearing was on today and that, in any event, he had a cold and he would not be attending.
Given those circumstances the wife’s Senior Counsel sought that I make an order dismissing the appeal on its merits. He suggested that I had sufficient information to be able to do that in the form of the husband’s Amended Notice of Appeal, and a Response to the grounds of appeal in that Amended Notice filed on behalf of the wife. Of course, I also have the benefit, as I needed to have, of the reasons for judgment of the magistrate in relation to the orders the subject of the appeal.
I pause to set out some of the background as to how the matter has come to be listed today.
The orders the subject of the Amended Notice of Appeal are orders made by Magistrate Stewart on 24 August 2018. Those orders imposed the penalties for the husband’s contravention of previous orders made in the Family Court of Western Australia.
The initial Notice of Appeal against those orders was filed by the husband on 19 September 2018. In addition, on that same day the husband filed an Application in an Appeal which seemed to be seeking leave to adduce further evidence, together with an affidavit containing that evidence.
As is required under the Family Law Rules 2004 (Cth) (“the Rules”), on 12 November 2018 the husband filed a draft appeal index.
Following that the appeal was listed for a directions hearing before this Court on 20 December 2018. That directions hearing was conducted by telephone link and the husband appeared without legal representation, and Mr Hedges of Senior Counsel appeared for the wife.
At that directions hearing I raised a number of concerns that I had with the Notice of Appeal, the application to lead further evidence, and the draft appeal index.
In relation to the Notice of Appeal I indicated to the husband that the grounds of appeal were not in proper form in that they did not readily identify appealable errors by the magistrate. I also raised with the husband my concerns about the orders that he sought in his Notice of Appeal, and he clarified that what he was seeking on appeal was that the orders that he was appealing against be, as he put it, overturned.
In relation to the problems with his grounds of appeal, the husband indicated that he wanted an opportunity to file an Amended Notice of Appeal, and I determined to give him that opportunity.
In relation to the Application in an Appeal, unfortunately, again, it was not readily apparent from that application what orders the husband was seeking, and I indicated to him that he would need to take a step back and file a further application which properly set out the orders that he would seek in relation to adducing further evidence.
In relation to the affidavit which allegedly contained the further evidence, I indicated to the husband that there were strict conditions around the receipt of further evidence, and much of what he had put in that affidavit was, in my view, irrelevant to the appeal, and could not be received pursuant to the principles set out by the High Court in CDJ v VAJ (1998) 197 CLR 172.
For example, that affidavit set out the history of the relationship of the parties and made allegations about the other party which were not only irrelevant but, frankly, completely inappropriate for the purposes of an appeal. I indicated to the husband that apart from striking out the application I would be uplifting the affidavit from the file, and returning it to him, and if he wished to pursue an application to lead further evidence, not only would he have to file a proper application in that regard, but he would have to file an affidavit which set out evidence which could, in fact, be received by this Court on appeal.
As I have indicated there were also difficulties with the husband’s draft appeal index, and I spent a good deal of time going through that with the husband identifying those documents which could be before this Court on appeal, and those documents which could not.
Following that exercise I then made orders listing this appeal for hearing, and made further orders to prepare the appeal for the hearing. Relevantly in that regard, I ordered that the husband file and serve an Amended Notice of Appeal by Monday, 14 January 2019. By that same date he also had to provide copies of the transcript of the hearings before the magistrate on four dates, namely 24 July 2018, 16 August 2018, 23 August 2018 and 24 August 2018. Further, I ordered that by 18 January 2019 the husband file and serve a written summary of argument and a list of authorities, and that he file and serve any application for leave to adduce further evidence, together with an affidavit setting out that evidence.
I then made orders providing for the wife to file and serve her written summary of argument and list of authorities, together with any response to any application to lead further evidence filed by the husband.
Finally, I ordered that this appeal be listed for hearing at 2.15 pm on Monday, 18 February 2019 with a time estimate of half a day.
On 28 December 2018 the appeal registrar by letter forwarded a sealed copy of the orders made on 20 December 2018 to the husband and to the wife, and on the same day by way of separate letter, the appeal registrar referred to the order striking out the Application in an Appeal and the uplifting of the affidavit, and enclosed the original of that affidavit.
Those letters were sent to the husband at B Street, Suburb P, Western Australia, which was his address for service on file. However, by letter received by the appeal registrar on 28 December 2018, namely the same day that the registrar sent out those two letters, the registrar received a letter from the husband, together with a Notice of Address for Service, which indicated his address for service was now C Street, Suburb T, Western Australia.
In the covering letter though, importantly, the husband advised that there was a redirect to that new service address from his previous address.
On 10 January 2019 the husband sent a letter to the appeal registrar annexing an Amended Notice of Appeal, an affidavit and transcripts of 24 July 2018 and 16 August 2018.
On 15 January 2019 the appeal registrar sent a letter to the husband, to his new address for service, enclosing service copies of his Notice of Address for Service, his Amended Notice of Appeal, and the transcripts, but in relation to his affidavit, the registrar indicated that that had not been filed, the registrar saying that the orders of 20 December 2018 did not provide for the filing of a discrete affidavit. I will return to that issue in a moment.
There has been no further correspondence received from the husband and, importantly, he has failed to file a written summary of argument and a list of authorities as ordered on 20 December 2018.
The absence of any summary of argument created difficulties for the wife, and what she has done, doing the best that she could in the circumstances, is file a Response to the amended grounds of appeal on 7 February 2019. Senior Counsel tells me that has been served upon the husband.
Turning then to the affidavit of the husband which was not received for filing.
It is apparent that the affidavit was intended to be an affidavit containing the further evidence that the husband was seeking to adduce in the appeal. What obviously caused a difficulty in the appeal registrar’s mind, was my order provided for the husband to file an application together with an affidavit setting out the evidence. With no application there was no basis, plainly, for the appeal registrar to file that affidavit.
I note though having read that affidavit, as I needed to, that it was still inadequate and contained evidence which, again, would not be able to be received as further evidence, and in many respects does not satisfy the principles set out by the High Court for the receipt of such evidence.
However, what the husband does set out in that affidavit and, importantly so in my view, is at paragraphs 15, 16 and 17 where he says this:
15.On 20 December 2018, I participated in an initial hearing with Justice Strickland.
Hearing on 20 December 2018
16.Justice Strickland ordered the Notice of Appeal and this Affidavit be resubmitted in this case – WEA 33/2018. My lack of legal knowledge was evident as I did not even understand the purpose of the hearing on 20 December 2018. I advised the Honourable Justice Strickland that I am not able to obtain legal advice to support my application for the Appeal. I have however proceeded to comply with the Orders.
17.At the time of this Affidavit, I have not yet received correspondence in relation to making summative arguments. At the hearing on 20 December 2018, Justice Strickland indicated paraphernalia on summative arguments would be provided by the Court. I am concerned not having this information before filing this document and the associated Notice of Appeal will detract from a reason this affidavit is to be resubmitted.
…
In paragraph 17 the husband indicates that he was told by me that, as he puts it, “paraphernalia on summative arguments would be provided by the Court.”
Now, I take it that he is referring there to the Practice Direction issued by the Chief Justice which sets out and repeats what is in the Rules as to what is required in relation to a summary of argument. On the assumption that that is what the husband is referring to, I understand that that Practice Direction was sent to the husband by the appeal registrar.
In the end result though, the husband has not filed a written summary of argument in compliance with my orders.
In the circumstances I have a number of options. One option is to adjourn the proceedings to another date. A second option is to strike out the Amended Notice of Appeal on the basis that the husband has failed to attend today to pursue his appeal, and given his failure to comply with my order for the filing of a summary of argument and list of authorities. A third option is to dismiss the appeal on its merits, which is the primary application that is made on behalf of the wife, but as Mr Hedges has indicated, if I am not prepared to do that, then his alternative submission is that I strike out the Amended Notice of Appeal for the reasons that I have indicated.
In the circumstances, I am not prepared to adjourn the hearing. There is no basis before me as to why I should do that. In my view, the husband was well aware of the hearing today, and he is disingenuous in suggesting to the wife’s solicitor’s secretary that he was unaware of the hearing today. I note, of course, that upon being made aware of the hearing today he also indicated that he would not be attending because he had a cold.
Equally I am not prepared to dismiss the appeal on the merits. Although I do have the husband’s Amended Notice of Appeal, my assessment of that Amended Notice, is it is an improvement on the initial Notice of Appeal in terms of the grounds of appeal, but it still suffers from similar defects in failing to identify appealable errors by the primary judge.
Of course, I have the Response by the wife to those amended grounds of appeal, but I do not have a written summary of argument. And having looked at the affidavit which the husband sought to file, I note in addition to what I have already said about it, that he there touches upon matters which bear upon his Amended Notice of Appeal and the grounds of appeal which he is promoting.
Thus, although I am not prepared to adjourn the appeal, and I express my concern at the attitude of the husband, and the fact that, in my view, he was well aware of today’s hearing, I am also not prepared to dismiss the appeal on its merits. That leaves the option of striking out the husband’s Amended Notice of Appeal, which is the alternative application made on behalf of the wife, and that is what I propose to do.
What that means for the husband, and perhaps for the wife, is that if so advised it would not prevent the husband from seeking to pursue an appeal. He would though have to, in the circumstances, obtain an extension of time to do so, and whether he does that or not is entirely a matter for him.
Given the order that I propose, the wife through her Senior Counsel makes an application for costs thrown away in the sum of $5,000.
I am told that that amount would be less than what the costs would be on a party/party basis, and as I have indicated to Mr Hedges, I accept that. I also consider that the amount sought is entirely reasonable in the circumstances, and I will make that order.
I certify that the preceding forty (40) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 February 2019.
Associate:
Date: 5 March 2019