Masters and Masters - [2011] FamCAFC 168

FAMILY COURT OF AUSTRALIA

MASTERS & MASTERS

[2011] FamCAFC 168

FAMILY LAW – APPEAL – Dismissal for want of prosecution.

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

APPELLANT:

MR MASTERS

RESPONDENT:

MS MASTERS

FILE NUMBER:

SYC

5295

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

5 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

5 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 February 2011

LOWER COURT MNC:

[2011] FMCAfam 314

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

No appearance

REPRESENTATION FOR THE RESPONDENT:

No appearance

Orders

That the Notice of Appeal filed by the husband on 8 March 2011 and the Application in an Appeal filed on 10 May 2011 be and hereby are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Masters & Masters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 40 of 2011
File Number: SYC 5295 of 2008

MR MASTERS

Appellant

And

MS MASTERS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

For the record, this matter has been called outside the Court at 10.06 am this morning and again at 11.05 am. On neither occasion has there been any appearance by or on behalf of either party.
By Notice of Appeal filed 8 March 2011, Mr Masters (“the husband”) appealed against orders made by Altobelli FM on 8 February 2011 in proceedings for settlement of property between the husband and Ms Masters (“the wife”).
In his Notice of Appeal, under the heading Leave to Appeal, the husband complained that he was “denied the right to cross-examine the other side’s evidence”, that the learned Federal Magistrate “failed to recognise the contravention of orders by the other side”, that the learned Federal Magistrate “failed to find I had a reasonable excuse, when the wife filed a contravention against myself” and that there had been a “substantial injustice and miscalculation on the amount determined” in one of the orders made by the learned Federal Magistrate.
Under the heading Grounds of Appeal, the husband restated or appears to have restated some of the complaints to which reference has just been made and made further complaints, including a claim that the wife had “failed to maintain the mortgage” and “therefore was the first to not comply, and therefore contravened the orders”, which “then fell back on the husband to purchase the property, giving him a bad credit rating due to the wife’s failing to maintain the mortgage under orders”.
The grounds of appeal went on to complain that costs orders were made against the husband due to his failure to comply with orders, that the learned Federal Magistrate had erred in failing to see that the husband had a reasonable excuse for not complying with the orders, and that it was the wife who had caused this to occur by being the first not to comply with the original orders. The complaint that there had been a miscalculation of the sums payable to the husband was reiterated in the grounds of appeal. So too was the husband’s assertion that, in some unidentified way, he had been denied natural justice by the learned Federal Magistrate, one particular of which was his asserted denial of the right to cross-examine “the wife’s evidence and the wife”. The husband asserted that his whole case had been to “make his Honour aware of all of the above, via cross-examination”. The final complaint related to the children of the marriage and the impact which the orders of the learned Federal Magistrate were asserted to have had upon them.
The orders of the learned Federal Magistrate of 8 February 2011 provided that the parties sell what appears to have been their former and jointly owned matrimonial home (“M Property”) and to disperse the proceeds of sale (after payment of adjustments on settlement, the estate agents’ commission and expenses, solicitors’ costs of acting on the sale and the sum necessary to discharge a mortgage to Westpac Bank) as to $6 344 to the husband, and although not worded in quite these terms, the balance remaining in equal shares to the parties. His Honour’s orders thus provided that the husband receive the first $6 344 of the proceeds of sale and that the balance remaining be divided equally between the parties.
The material provided by the husband does not make entirely clear why the learned Federal Magistrate made the orders he did. There are reasons for judgment of the learned Federal Magistrate of 18 March 2010 in proceedings for settlement of property between the parties in support of his orders of that date which also provided for the sale of what appears to be the same M Property as in the orders the husband, in his Notice of Appeal filed 8 March 2011, sought to challenge.
It is reasonably clear from the reasons for judgment of 18 March 2010, and the orders which the learned Federal Magistrate then made, that his Honour by those orders provided first, that the wife have the option to purchase the husband’s interest in the M property on the terms and conditions referred to in his Honour’s orders, failing which the husband acquired an option to purchase the interest of the wife in the terms also articulated in his Honour’s orders.
In the event, as seems clear, it transpired that neither party chose to or was able to exercise the option conferred by his Honour’s orders of 18 March 2010. In that eventuality, Order 6 provided for the sale of the property and the payment out of a variety of sums prior to the distribution of the net proceeds of sale of the property. Order 7(d) reserved liberty to apply in relation to the adjustment therein referred to. His Honour’s orders were not otherwise dispositive in relation to the balance of the property of the parties. Although this Court does not have the reasons for his Honour so doing, it is reasonably apparent that the orders made by him on 8 February 2011 determined the matter in respect of which liberty was reserved pursuant to Order 7(d) of the orders of 18 March 2010.
The procedural history of the matter is relevant to the fate of the husband’s Notice of Appeal. The Court has the benefit of information extracted from the Appeals Registry. It has been provided by the Appeals Registrar. To the extent that the Court has been able to verify those matters for itself, they are consistent with the information provided by the Appeals Registrar.
There was some confusion, the nature of which is apparent from the husband’s Notice of Appeal, in relation to the need, or the absence of any need, for leave to appeal. His Honour’s orders being final, the husband did not require leave to appeal.
The reasons for judgment of the learned Federal Magistrate were apparently not published until 12 April 2011. The husband was directed to file his material by 10 May 2011. On that day, the husband filed an application to this Court which he supported by an affidavit. The affidavit simply stated:
1.I physically had not received the official written orders until the week of April the 27^th (twenty seventh) 2011. This has not given me enough time to go through the file with my newly appointed solicitor.
2.I will now be represented for the appeal process, in the preparation of the Appeal Books and represented at the appeal. My new solicitors are “Rachel Stubbs & Associates”, who had asked for at least 4-6 extra weeks to prepare thoroughly Appeal Books.
The Appeals Registrar on 20 May 2011 telephoned Rachel Stubbs & Associates solicitors, who advised that they did not act for the husband and had only provided initial legal advice.
On 9 June 2011, the Appeals Registrar wrote to the husband and sent a copy of her letter to the wife seeking advice as to whether or not the husband intended to pursue his application in the appeal seeking an extension of time to file his appeal material, or intended to file a notice of discontinuance. The Appeals Registrar advised the husband that if she did not hear further from him, steps would be taken to have the appeal and the application filed 10 May 2011 listed for dismissal.
The Appeals Registrar, having heard nothing further from the husband, wrote to him on 20 July 2011 and advised him that the matter would be listed for dismissal this day at 10 am. The address of the Court was clearly apparent from the letter. The address to which the letter was directed was a post office box identical to the post office box which on 10 May 2011 the husband had shown as his address on the application and affidavit which he filed that day.
It is appropriate, in the circumstances, to consider whether the husband’s Notice of Appeal should be dismissed. The Court must give some consideration to whether or not, although the husband does not appear to wish to pursue it, the appeal has possible merit.
Nothing filed by the husband gives this Court any reason to doubt the correctness of the decision of the learned Federal Magistrate. In the absence of far more than the husband has placed before this Court, it is not possible to meaningfully say more about what may or may not have been raised in opposition to his Honour’s orders, or the prospect of anything so raised finding favour with the Court.
As is clear from the reasons for judgment of 18 March 2010, the learned Federal Magistrate did not finally dispose of the proceedings before him at that time but provided a series of options to the parties which may have resulted in the proceedings being finalised. As his Honour recorded in paragraph 37 of his reasons of 18 March 2010, it was not necessarily possible for final orders to be made, hence the terms of Order 7(d).
Clearly, both parties availed themselves of the liberty reserved on 18 March 2010, albeit the outcome of doing so was not what the husband hoped for. There being nothing which would cause this Court to conclude, or possibly conclude, that the decision of the learned Federal Magistrate may be erroneous, the Notice of Appeal should be and is dismissed, as is the application filed 10 May 2011.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 5 August 2011.

Associate:

Date: 16.08.11