MEASURES & MEASURES
[2012] FamCAFC 3
•25 January 2012
FAMILY COURT OF AUSTRALIA
| MEASURES & MEASURES | [2012] FamCAFC 3 |
| FAMILY LAW – APPEAL – Application for dismissal for want of prosecution – Where the husband filed the appeal books and has since failed to attend procedural hearings or respond to letters and phone calls from the Appeals Registry – Where the husband was informed that the appeal was listed for dismissal pursuant to the Rules, and where he did not appear – Appeal dismissed FAMILY LAW – COSTS – Where the wife has incurred costs in responding to the husband’s appeal – Husband to pay the wife’s costs of the appeal |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Measures |
| RESPONDENT: | Mrs Measures |
| FILE NUMBER: | NA | 26 | of | 2011 |
| APPEAL NUMBER: | BRC | 1603 | of | 2010 |
| DATE DELIVERED: | 25 January 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 January 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 March 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 242 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person (no appearance) |
| SOLICITOR FOR THE RESPONDENT: | Carl Edwards Solicitors |
Orders
The appeal NA 26 of 2011 is dismissed.
The husband pay the wife’s costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Measures & Measures has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: BRC 1603 of 2010
File Number: NA 26 of 2011
| Mr Measures |
Appellant
And
| Mrs Measures |
Respondent
REASONS FOR JUDGMENT
Introduction
In consequence of previous orders made in this matter the issue for my determination is whether the husband’s appeal should be dismissed. The solicitor for the wife appears by telephone, there is no appearance by or on behalf of the husband.
A notice of appeal was filed by the husband on 1 April 2011 appealing certain orders made by Federal Magistrate Demack on 7 March 2011. The orders of the Federal Magistrate provided:
(1)That the husband is to pay the wife the sum of one hundred and thirty three thousand dollars ($133,000.00) with such sum to be paid in the following way:
(a)The amount of thirty three thousand ($33,000.00) within 30 days of the date of these Orders;
(b)The amount of one hundred thousand dollars ($100,000.00) within 120 days of the date of these Orders;
(c)In the event that the payments pursuant to Orders 1(a) and (b) are not paid by the date they are due, interest will accrue on a daily basis at the applicable rate after the date that the payments are due has past; and
(d)In the event that the payments pursuant to Orders 1(a) and (b) herein are not paid by the date they are due, the payments (including any interest) are then to be, failing agreement, paid on a weekly basis of no less than five hundred ($500.00) per week with such payments to be paid to the wife each and every Monday.
(2)That the wife shall be the sole owner as against the husband of the following property:
(a) The … motor vehicle …;
(b) All household items in the wife’s possession; and
(c) The wife’s … Credit Union Account.
…
(5)That both parties take all necessary steps and execute all necessary documents to cause the property situated [in northern New South Wales] to be sold by private treaty at the earliest possible date by listing the property for sale with … Real Estate Agency at a price nominated by the principal of the Agency and that the proceeds of the sale be disbursed as follows:
(a)Firstly in payment of all costs, commissions and expenses of the transfer and the sale;
(b)Secondly to discharge the Westpac mortgage and any other encumbrance affecting the real property;
(c)Thirdly to the wife’s solicitor’s Trust Account in payment of the wife’s outstanding debt for legal costs; and
(d)Fourthly, the balance be paid to the wife absolutely.
(6)That in the event that the property fails to be sold by private treaty within a period of 60 days hereof, then each party take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the principal of … Real Estate Agency and that the proceeds of the said sale be disbursed as follows:
(a)Firstly in payment of all costs, commissions and expenses of the transfer and the sale;
(b)Secondly to discharge the Westpac mortgage and any other encumbrance affecting the real property;
(c)Thirdly to the wife’s solicitor’s Trust Account in payment of the wife’s outstanding debt for legal costs; and
(d)Fourthly, the balance be paid to the wife absolutely.
…
(14)That the husband pay to the wife the sum of three thousand ($3,000.00) dollars for arrears spousal maintenance pursuant to Orders dated 26 July 2010 within 14 days of the date of these Orders and thereafter with interest to accrue on a daily basis at the applicable rate.
(15)That pursuant to section 77A of the Family Law Act 1975, the husband pay the wife spousal maintenance in the amount of two hundred ($200.00) dollars per week for a period of 12 months form the date of these Orders, to be paid on each and every Monday to the wife’s … Credit Union account …
The grounds of appeal as contained in the notice of appeal provide:
1.Whether the Federal Magistrate erred in including property not owned by the Husband as being property of the Husband.
2.Whether the Federal Magistrate erred in her findings that there should be no adjustment to the husband after considering s75(2) of the Family Law Act 1975 (Cth).
3.Whether the Federal Magistrate made a property settlement order that was not just and equitable.
The husband asked for the matter to be remitted to the Federal Magistrates Court for re-hearing.
Background
The husband filed a draft appeal index on 28 April 2011.
On 26 May 2011 a notice of ceasing to act was filed by the wife’s former solicitors.
A directions hearing was conducted on 15 June 2011. Both parties were represented at the hearing. It was ordered:
1.That the Appellant be responsible for the preparation of the appeal books.
2.That the Appellant prepare Appeal Books in accordance with the attached Settled Appeal Index
3.That the Appellant on or before 4pm on Friday 2 September 2011 file 4 copies of the Appeal Books, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, in the Brisbane Registry and deliver 2 copies of the appeal books to the Respondent, together with a copy of the certificate.
4.That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date.
5.That the Appellant file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 30 September 2011
6.That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 21 October 2011
7.That the appeal be listed for hearing in the next available Brisbane Full Court sittings.
8.That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar upon five (5) days notice in writing to the other parties and to the Appeals Registrar in the Brisbane Registry.
9.That in the event either party seeks to rely on an exhibit at the hearing of the appeal, that the party shall provide photocopies of such exhibit for members of the Full Court and to the other party/parties.
10.That the costs of and incidental to this hearing be reserved to the Full Court.
…
The appeal books were filed within time on 2 September 2011.
On 7 October 2011 a facsimile was sent from the husband’s solicitor to Registrar Spink stating:
…
We refer to orders made on 15th June.
We would ask the Courts indulgence to extend our summary of argument and list of authorities to 21st October as out client has been delayed in providing funds to meet our Barristers costs for preparation due to circumstances outside his control.
We will not seek any further indulgence.
…
On 20 October 2011 a further facsimile was addressed to Registrar Spink. The correspondence provided:
…
We refer to your correspondences of 18 October and now advise we have received no further instructions from our client Mr. [Measures] in the matter and will be ceasing to act any further.
We hold no current instruction as to whether Mr [Measures] wishes the Appeal to proceed or not and understand the Court will make its own determination.
…
It is noted that no formal notice of ceasing to act has been filed by the husband’s former solicitors.
On 24 October 2011 the Appeals Registrar wrote to the husband at his then known address. That letter provided:
…
I have been advised that Stacks the Law Firm are no longer acting for you in this appeal matter.
Please advise what your intentions are for this appeal as your summary of argument was due to be filed on the 30 September 2011 and has now become urgent that the summary of argument is filed.
…
No response was received and no written submissions have been filed on behalf of the husband.
The Appeals Registrar wrote another letter to the husband on 8 November 2011. That letter provided:
…
This matter is now listed for a Procedural Hearing:
a)The Brisbane Registry situated at the Commonwealth Law Courts, Tank Street and North Quay, Brisbane is to be the Appeal Registry;
b)A Procedural Hearing will be conducted at the, Conference Room 6, Level 3 on Wednesday, 23 November 2011 at 12.00 midday (Brisbane time) before Registrar Spink.
The Appellant, and if represented, the Appellant’s lawyer are to attend the procedural hearing.
Each other party who wishes to be heard on the appeal and each party’s lawyer (if any) must attend on the first court date. However, should the parties be legally represented at the Procedural Hearing they may be excused from attending.
The parties are given leave to appear by telephone at the procedural hearing provided they give the Registry prior notice of their intention to do so.
…
On 30 November 2011 Registrar Spink held a further directions hearing. The husband did not attend. Orders were made providing:
1.That the procedural hearing be adjourned to 10 January 2012 at 9.30am at Brisbane and the Appellant is required to appear in person on that day.
2. The Respondent has leave to appear by telephone on this day.
3.In the event that the Appellant fails to appear personally or by legal representative on 10 January 2012 at 9.30am, the appeal be listed before the Honourable Justice May at Brisbane at 10.00am on 25 January 2010 for dismissal for want of prosecution of the appeal.
This order was sent to the husband at his last known residential address.
On 12 January 2012 a notice of address for service was filed by the wife, noting Carl Edwards Solicitors as the legal representatives of the wife.
Another procedural hearing was conducted by Registrar Kane on 10 January 2012. The husband did not attend. The following orders were made:
1.That the Appeal is listed before the Honourable Justice May in Brisbane on Wednesday 25 January 2012 at 10.00am (Brisbane time) for consideration of dismissal of the Appeal for want of prosecution.
2.That any legal representative proposing to appear for the appellant or respondent file and serve an address for service by 4.00pm Monday 16 January 2012.
On the appeal file there are a series of file notes detailing the dates the Appeals Registry tried to contact the husband in an effort to ascertain the husband’s current position. No response has been received. The file note provides:
Advised 20/10/11 that [the husband] now in person. Tried to ring mobile. No answer.
Rang 21/10 No answer
Rang 27/10 No answer
Rang 2/11 No answer
Rang 7/11 No answer
Letter 8/11
Rang 8/11 No answer
Rang 11/11 No answer
Rang 14/11 No answer
Rang 15/11 No answer
Rang 17/11 No answer
Rang 23/11 Procedural hearing – no answer
Rang 9/1/12 No answer
Relevant law
Rule 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) concerns the “Dismissal of appeal and applications for non-compliance or delay”:
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned ; and
(b) a party (the defaulting party ) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
Conclusion
It is the submission of the wife that the husband is using “the appeal process as a delaying tactic to stop [her] from enforcing the judgement”. She explained that it has cost her a considerable amount of money in opposing the husband’s appeal.
The husband has failed to file the summary of argument. Despite numerous attempts on the part of the Appeals Registry to contact the husband it has been unsuccessful.
In view of the circumstances of this case I am of the view that the proper order is to dismiss the husband’s appeal.
Costs
At the conclusion of the hearing submissions as to costs were heard.
The husband should pay the costs incurred by the wife in responding to the appeal.
Of some interest to the question of costs the judgment of the Federal Magistrate reveals that the husband failed to appear at the directions hearings, failed to properly disclose documents and was found by the Federal Magistrate to not be a credible witness.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 25 January 2012.
Associate:
Date: 25 January 2012
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