MARINO and HODNEY

[2016] FCWA 29

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MARINO and HODNEY [2016] FCWA 29

CORAM: O'BRIEN J

HEARD: 9 MAY 2016

DELIVERED : 9/05/2016

FILE NO/S: PTW 2965 of 2014

BETWEEN: MR MARINO

Applicant

AND

MS HODNEY
Respondent

Catchwords:

Appeal against orders of a Family Law Magistrate exercising non-federal jurisdiction - where relevant orders final and not interlocutory - no jurisdiction - appeal dismissed.

Legislation:

Family Court Act 1997 (WA), s 5, s 205Z, s 205ZG, s 209A, s 210A, s 211, s 211B

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms Farmer

Solicitors:

Applicant: Self Represented Litigant

Respondent: Lavan Legal

Case(s) referred to in judgment(s):

CDW v LVE [2015] WASCA 247

MCG v JM [2016] WASCA 75

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The matter before the court is the Form 20 notice of appeal filed by [Mr Marino] on 10 March 2016. By the filing of that notice he seeks to appeal the orders made by Magistrate Sutherland on 12 February 2016 and, if necessary, seeks the appropriate leave to appeal. The orders made by Magistrate Sutherland on 12 February 2016 followed a trial which took place from 23 to 25 November 2015.

2Her Honour’s reasons for decision were published to the parties together with proposed orders under cover of a letter dated 14 January 2016. At the same time the matter was relisted for orders to be made in court on 12 February 2016. At the hearing on 12 February 2016 an order was made, as foreshadowed in the published reasons, dismissing the Form 1 application filed on 27 May 2014 by Mr Marino for want of jurisdiction.

3A further order was made that save for the issue of costs, all outstanding proceedings otherwise be dismissed. For convenience I will refer to those as being the substantive orders.

4The balance of the orders made by Magistrate Sutherland on 12 February 2016 were procedural in nature. They set a timetable for the filing by each party of submissions in relation to the issue of costs and for the relisting of the costs issue for oral submissions if requested.

5The only other order made was purely administrative in nature, providing for subpoenas and exhibits produced at trial to be returned to source or destroyed.

6The notice of appeal filed by Mr Marino does not contain grounds of appeal in the usual sense. The document does, however, set out the complaints that Mr Marino makes in relation to her Honour’s reasons for decision, her findings and the substantive orders made by her. The document also makes clear, notwithstanding the indication at Part D of the notice that Mr Marino proposes to appeal all of the orders made on 12 February 2016, that his primary intention, if I can call it that, was to appeal against the orders which I have described as the substantive orders made that day.

7The proceedings between Mr Marino and [Ms Hodney] were brought under the Family Court Act 1997 (WA) (“the Act”). In his Form 1 application filed on 27 May 2014, Mr Marino sought orders for alteration of property interests pursuant to s 205ZG of the Act. In her Form 1A response filed on 22 August 2014, Ms Hodney sought dismissal of that application on the basis of want of jurisdiction or, perhaps more accurately, an absence of power to make the orders sought.

8In short, she contended that firstly, the parties did not live together in a de facto relationship of two years or more in duration and, secondly, that the circumstances which would ground the power to make an order under s 205ZG, even in the absence of a de facto relationship lasting two years or more, as set out in s 205Z(1), did not exist.

9The proceedings were, as noted, heard by Magistrate Sutherland. Magistrate Sutherland is a family law magistrate as that term is defined in s 5 of the Act.

10As the relief sought was pursuant to s 205ZG of the Act, her Honour was exercising non-federal jurisdiction. Pursuant to s 210A of the Act, an appeal from a decree of the Magistrates Court constituted by a family law magistrate exercising its non-federal jurisdiction lies to the Court of Appeal unless the decree in question is an interlocutory order.

11Section 209A of the Act defines “decree” to include an order dismissing an application. The substantive order made by Magistrate Sutherland was, accordingly, a decree for the purposes of s 210A.

12Pursuant to s 211, an appeal against an interlocutory order of the Magistrates Court constituted by a family law magistrate and exercising non-federal jurisdiction lies to this court, but only if leave to appeal has been granted or the decree in question is of a nature prescribed in the regulations.

13For this court to have the necessary appellate jurisdiction therefore:

(a)the appeal must be from a decree as defined, which it is;

(b)the decree must be made by the Magistrates Court, which it was;

(c)the decree must have been made in the exercise of non-federal jurisdiction, which it was; and

(d)either the relevant Magistrates Court must not have been constituted by a family law magistrate as defined in the legislation, or the decree must have been an interlocutory order and either the Family Court of Western Australia has granted leave to appeal or the decree is a decree prescribed in the regulations for the purposes of s 211(1) of the Act.

14Given that Magistrate Sutherland is a family law magistrate as defined in the Act and that no regulations have been made under the Act to prescribe any decrees for the purposes of s 211(1), this court only has appellate jurisdiction if the decree sought to be appealed was an interlocutory order. The first and critical question, therefore, is whether the order dismissing the substantive application was an interlocutory order.

15The Act does not define the expression “an interlocutory order”. Having said that, the expression has been defined by the authorities as summarised in the recent case of CDW v LVE [2015] WASCA 247.

16In short, the court must look at the consequences of the order itself, and ask whether it finally determines the rights of the parties in a principal cause pending between them. If the answer to that question is yes, then the order is a final order, not an interlocutory order.

17In this case the answer is clear. The primary decree Mr Marino seeks to appeal was an order finally dismissing his application for substantive relief in the form of alteration of property interests.

18The decree finally determined his rights to seek alteration of property interests under the Act. That is so as s 205Z provides that a court may make an order in relation to a de facto relationship only if satisfied that there has been a de facto relationship between the partners for at least two years or, relevantly in this case, that the de facto partner who applies for the order made substantial contributions of a kind mentioned in ss 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.

19Her Honour found that the parties lived in a de facto relationship from 23 January 2012 until 16 May 2013. Accordingly, she found that they did not cross the two year threshold referred to in s 205Z. Her Honour went on to consider whether Mr Marino had made substantial contributions of a kind mentioned in the subsections to which I have already referred; she concluded that he had. Her Honour then considered whether or not there would be a serious injustice to Mr Marino if he were not permitted to bring an application under the Act for an adjustment of the parties’ existing property interests.

20She concluded that there would be no such serious injustice, largely because the existing legal interests of the parties in the [Coastal Town] property were equal.

21Her Honour accordingly concluded that the court has no power to make an order for alteration of property interests as between these two parties. The nature of the analysis which led to that conclusion is, by its nature, retrospective. There are no new facts or circumstances which could arise so as to enliven the jurisdiction of this court.

22It is not open to Mr Marino to bring a further application in this court for alteration of property interests. That distinguishes this case from the factual situation in the matter of MCG v JM [2016] WASCA 75.

23It follows that this court has no jurisdiction to entertain the appeal in relation to the substantive decree.

24To the extent it might be considered necessary, I note that s 211B of the Act expressly provides that an appeal instituted in this court may be dismissed at any time where it appears to the court that the appeal has no reasonable prospect of success. That is clearly the case when the court has no jurisdiction.

25In making that finding, I emphasise for the benefit of Mr Marino that I have made no finding or determination as to the merits or otherwise of the complaints which he makes. I have simply determined that this court does not have the jurisdiction to entertain them.

26As I have already noted, the balance of the orders made by Magistrate Sutherland on 12 February 2016 were procedural only, relating to the filing of submissions in relation to costs.

27Those orders, self-evidently, do not finally determine the rights of the parties. This court would have jurisdiction to entertain an appeal against those orders, provided that it first granted leave to appeal. On the face of Mr Marino’s notice of appeal, at least, he has sought that leave. He has set out, at Part C of the notice, the facts relied upon in support of the application for leave. For fairly obvious reasons, even if accepted, they establish no error of principle nor substantial injustice arising from the procedural orders in question.

28The application for leave to appeal, therefore, has no merit and will be dismissed.

29I note for the record that the court did endeavour to provide some assistance to Mr Marino before matters reached this point. His notice of appeal was filed on 10 March 2016. On 11 March 2016 the Regional Appeal Registrar wrote to Mr Marino saying that he would “consider the Notice of Appeal further” only on receipt of written confirmation from Mr Marino that he wished to proceed with the appeal in this court rather than the Court of Appeal.

30In that letter Mr Marino was advised that the Court of Appeal prescribed its own forms, procedures and time limits. He was further advised in these terms:

An appeal against an order of a Family Law Magistrate lies, with leave, to a Judge of the Family Court of Western Australia only in relation to an interlocutory order. If the order sought to be appealed from is a final order [then] that appeal lies to the Court of Appeal of the Supreme Court of Western Australia. I am unable to give you legal advice and I strongly recommend that you seek legal advice on this issue.

If you appeal to the wrong court and your appeal is therefore unsuccessful, you may be ordered to pay the legal costs of the respondent in relation to the appeal.

31By a letter dated 21 March 2016 and received by the court on 24 March 2016, Mr Marino confirmed that he wished to proceed with the appeal in this court. The Principal Registrar of the court wrote to Mr Marino on 14 April 2016 to advise that his notice of appeal had been accepted for filing as of 10 March 2016. That letter repeated in short form the information provided in the letter of 11 March 2016 and, again, suggested to Mr Marino that he seek his own legal advice as to whether the appeal could be validly brought in this court rather than in the Court of Appeal.

32He was expressly advised that the acceptance for filing of his notice of appeal was not to be taken as any indication that the appeal had been validly instituted. Unfortunately, it does not appear that Mr Marino took up the suggestions made by the Regional Appeal Registrar and the Principal Registrar. Had he done so, it is likely that the need for today’s hearing might have been avoided. In making that observation, I note that Mr Marino told me during this morning’s hearing that he had not received the letter from the Principal Registrar dated 14 April 2016.

33The formal order of the court will be that the Form 20 notice of appeal and the application for leave to appeal filed by the appellant on 10 March 2016 be and are hereby dismissed.

I certify that the preceding [33] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate