MANDLEY & THE ESTATE OF DEBBINS
[2020] FamCAFC 154
•12 June 2020
FAMILY COURT OF AUSTRALIA
| MANDLEY & THE ESTATE OF DEBBINS | [2020] FamCAFC 154 |
| FAMILY LAW – APPEAL – ADJOURNMENT – Where the appellant seeks an adjournment to obtain legal advice with regard to the primary judge’s finding that she had no jurisdiction to make the orders sought – Where there is no basis on which the finding by the primary judge as to jurisdiction can be challenged – Where the appellant has had ample time to seek that advice – Application refused. FAMILY LAW – APPEAL – DISMISS – Where the respondent seeks dismissal of the appellant’s Notice of Appeal and in the alternative security for costs –– Where the grounds of appeal do not have a reasonable chance of success and do not address the primary issue, namely that of jurisdiction – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 4, 39B(1), 44(5), 90SM(8) and 96AA |
| Simonds (Deceased) & Coyle (2019) FLC 93-895; [2019] FamCAFC 47 |
| APPELLANT: | Ms Mandley |
| RESPONDENT: | Ms Debbins (Litigation Guardian for the Estate of Mr Debbins) |
| FILE NUMBER: | MLC | 702 | of | 2019 |
| APPEAL NUMBER: | SOA | 30 | of | 2020 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 June 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 March 2020 |
| LOWER COURT MNC: | [2020] FCCA 523 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | David Gibbs & Associates |
Order
The appellant’s oral application seeking adjournment of the proceedings be dismissed.
The Notice of Appeal filed on 6 April 2020 be dismissed.
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 Mandley & the Estate of Debbins 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 30 of 2020
File Number: MLC 702 of 2019
| Ms Mandley |
Appellant
And
| Ms Debbins (Litigation Guardian for the Estate of Mr Debbins |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the Court today is an Application in an Appeal, filed on 6 May 2020, by Ms Debbins the Litigation Guardian for the Estate of Mr Debbins (“the respondent”).
The application seeks dismissal of the Notice of Appeal filed by Ms Mandley (“the appellant”) on 6 April 2020, appealing orders made by a judge of the Federal Circuit Court of Australia on 12 March 2020.
In the alternative to the application for dismissal, there is an application for security for costs.
The application is opposed, and indeed, the appellant has sought an adjournment of the matter to enable her to seek legal advice with a view to filing an Amended Notice of Appeal.
The application for an adjournment is opposed by the respondent on two primary bases as follows:
a)First, this matter needs to be drawn to a conclusion. This is the second appeal in these proceedings, the first appeal filed by the appellant having been withdrawn. A continuation of this matter can only prejudice the respondent in terms of costs, resources and, of course, delay in finalisation.
b)Secondly, there is no apparent or obvious basis to challenge the orders made by the primary judge, and to explain that briefly, her Honour determined that she had no jurisdiction to make the orders sought by the appellant. Her Honour though, went on to consider whether, if there was jurisdiction, there was a de facto relationship such that the Court could make the orders sought by the appellant. Her Honour found that there was no de facto relationship, and thus was able to dismiss the application before her on that basis as well. However, her Honour need not have gone on to deal with the issue of whether there was a de facto relationship; she could have ceased her reasons for judgment at the point where she found that there was no jurisdiction under the Family Law Act 1975 (Cth) (“the Act”).
My view, having read the documents and considered the matter, is that there is no basis for challenging the finding by her Honour of no jurisdiction, and that is what the appellant would need to obtain advice about if I was to allow her application to adjourn, because in the Notice of Appeal, the two grounds of appeal only address the second aspect of her Honour’s reasons for judgment, namely, her Honour’s reasons in relation to whether there was a de facto relationship or not. The grounds of appeal do not address in any way, the finding of no jurisdiction based on the relevant provisions of the Act.
Thus, the appellant is seeking an adjournment to be able to obtain some legal advice about the question of jurisdiction and then, subject to that advice, presumably file an Amended Notice of Appeal.
To repeat, for my part, there is no basis on which that finding by her Honour can be challenged. It is perfectly sound, and her Honour’s reasons are appropriate and adequate, and thus it would simply be a waste of everyone’s time and resources to grant an adjournment for the appellant to consult a lawyer and, presumably, be informed that she has no basis to challenge that finding. We would be back here again looking to dismiss her Notice of Appeal, but there would have been delay in reaching that point, and further costs incurred by the respondent.
The appellant has been perfectly frank in telling the Court that her financial circumstances are such that she cannot afford to instruct a private lawyer, and she would not be able to meet any costs order. The difficulty with that though, is that if I was to grant the adjournment, there would inevitably be an order for costs made, those costs being the costs thrown away today.
Further, the appellant has had ample opportunity to obtain legal advice in relation to her appeal. The orders were made by her Honour on 12 March 2020, accompanied by detailed reasons, and the Notice of Appeal was filed on 6 April 2020. The Application in an Appeal seeking to dismiss the Notice of Appeal, or have an order for security for costs made, was filed on 6 May 2020, and there was an affidavit filed in support which set out the basis of the application. Yet the appellant, it seems, has done nothing to obtain legal advice, either immediately following the judgment of her Honour, or immediately following her receipt of the Application in an Appeal and supporting affidavit.
For those reasons, I am not prepared to adjourn the matter to enable the appellant to seek legal advice, and to file an Amended Notice of Appeal, subject to that advice.
The Application in an Appeal
The application primarily seeks dismissal of the Notice of Appeal on the basis that it has no reasonable chance of success pursuant to s 96AA of the Act. That section relevantly provides as follows:
APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
…
Thus, what I need to consider, is whether there are reasonable prospects of success on the basis of the grounds of appeal as disclosed.
Brief Background
The proceedings were commenced in the Federal Circuit Court of Australia on 23 January 2019 by an Initiating Application filed by the appellant and, in that application, an order by way of property settlement was sought on the basis that it was alleged that there was a de facto relationship between the appellant and the late Mr Debbins.
That application needed to also seek leave to file the application, given that it was over four and a half years out of time. The alleged de facto relationship had ended in July 2012, and pursuant to s 44(5) of the Act, an application for property settlement needs to be commenced within two years of the cessation of a de facto relationship.
There was an Amended Application filed on 23 March 2019, which still only sought an order for property settlement, and did not seek the requisite leave to commence the proceedings, and that was the state of play when Mr Debbins passed away on … June 2019.
There was an Amended Initiating Application on foot seeking property settlement, but no leave had been granted to commence those proceedings. Therefore, there was, in fact, no application for property settlement before the Court at the date of the death, and s 90SM(8) did not allow for continuation of those proceedings on the basis that proceedings had been instituted before the death, and the death had occurred prior to completion of the proceedings.
The matter was set down for hearing on 26 February 2020, effectively for the appellant to seek leave to commence property settlement proceedings, despite there being no application, and that was the matter that was before her Honour, and in respect of which her Honour delivered her reasons for judgment and made orders on 12 March 2020. And, to repeat, her Honour found that there was no jurisdiction because, of course, there was no application for property settlement before the Court at the time of the death of Mr Debbins.
Specifically, at [54] and [55] her Honour concluded that she did not have jurisdiction under s 39B(1) of the Act to consider the Amended Initiating Application, because there was no financial de facto cause instituted by the appellant within the meaning of s 4 of the Act at the time Mr Debbins passed away. And, to continue, there was no financial cause within the meaning of s 39B(1) of the Act issued prior to the death of Mr Debbins, and therefore, any right to seek a property settlement abated upon the death of Mr Debbins.
Her Honour relied on a Full Court decision of Simonds (Deceased) & Coyle (2019) FLC 93-895, which had a similar fact scenario, and wherein the Full Court determined that there was no jurisdiction to make the orders sought, for the very same reasons as were provided by her Honour in this case.
To repeat though, her Honour did not stop there, but then went on and considered the question of whether there was a de facto relationship within the relevant definition in the Act, and concluded at [91] and [92], that there was no de facto relationship, indicating that she would be dismissing the Amended Initiating Application on that basis as well.
There is no challenge to that finding in the Notice of Appeal, and as I say, there could not be any basis for such a challenge. Thus, for that reason alone, there can not only be no reasonable chance of success of the Notice of Appeal as it stands, but it has no chance of success.
Grounds of Appeal
Turning then to the actual grounds of appeal, which go to her Honour’s finding that there was no de facto relationship, I consider it necessary to at least briefly consider them, for the benefit of the appellant who appears in person.
Ground 1
HH … stated that applicant was “a brazen liar owing to her bi-polar disorder, being discriminatory re Victorian Discrimination Law 2019 ---
Part 1. 4 Definations
Disability means :- (i) A mental or psychological disease or disorder
Part 2. 6. Attributes
The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4:-
(e) Disability
(As per the original)
It is readily apparent that that is a misquoting of what her Honour said in her reasons for judgment at [51]. Her Honour in fact said this:
The evidence of the [appellant] was such that I could not attribute any weight to the [appellant’s] evidence, unless it was independently corroborated by a third party. The [appellant] presented as a witness who would say whatever necessary to achieve the objective she desired. The [appellant] is a person who is prepared to defy Court orders. In this regard I refer to the [appellant’s] deliberate failure to withdraw the Caveat. Not only was the [appellant] prepared to defy Court orders, she was prepared to actively act against Court Orders. In this regard I refer to the [appellant] lodging the Second Caveat in a deliberate act which was against previous Court Orders. When the [appellant] was asked by Counsel why she did not obey the Court Order to remove the Caveat, the [appellant’s] response was:
Well, I wanted the caveat on it to protect my interest, you see?
(Footnote omitted)
Her Honour did not call the applicant “a brazen liar” and there is no relevance to referring to, as is described, the “Victorian Discrimination Law 2019”, because that is State legislation and does not bind the Family Court of Australia. Thus, if the position was that there was jurisdiction under the Act, and it was appropriate and necessary for her Honour to deal with the question of whether there was a de facto relationship or not, that is not a ground of appeal which has any reasonable chance of success in relation to that issue.
Ground 2
Rules of Evidence distate that witnesses must be out-side the court room before giving evidence after they are called into the courtroom.
Respondents’ witnesses (approx. five (5)) were ALL seated in the courtroom from the beginning of the hearing and heard all earlier evidence.
(As per the original)
This assertion is completely at odds with what in fact happened.
The only persons present during the hearing of the matter, as I understand it, were the respondent and the applicant in the application, and that is the respondent in this matter, namely the Litigation Guardian for the Estate of Mr Debbins.
In any event, there is nothing in this ground of appeal which would suggest that it is a basis for appellate interference with her Honour’s orders, and I find that it has no reasonable chance of success.
Conclusion
In relation to the two grounds of appeal which are relied upon, and which do not address the issue of jurisdiction, I find that they have no reasonable chance of success. There is also no ground of appeal addressing the primary issue of jurisdiction, and thus, the appeal must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 12 June 2020.
Associate:
Date: 24 June 2020
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