Petchey and Petchey (No 2)
[2019] FamCAFC 157
•18 September 2019
FAMILY COURT OF AUSTRALIA
| PETCHEY & PETCHEY (NO. 2) | [2019] FamCAFC 157 |
| FAMILY LAW – APPEAL – PROPERTY – Where only two grounds of appeal are potentially competent – Where there is no merit in either of the grounds of appeal, nor in any of the complaints made by the appellant in his “brief summary of argument” or his “Pre-argument Statement” – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant has been wholly unsuccessful – Costs awarded in favour of the respondent in the sum of $13,108.89. |
| Family Law Act 1975 (Cth) ss 90SB and 117 |
| Petchey & Petchey [2018] FamCAFC 256 Petchey & Petchey [2019] FamCAFC 48 |
| APPELLANT: | Mr Petchey |
| RESPONDENT: | Ms Petchey |
| FILE NUMBER: | DGC | 931 | of | 2016 |
| APPEAL NUMBER: | SOA | 27 | of | 2018 |
| DATE DELIVERED: | 18 September 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2018 |
| LOWER COURT MNC: | [2018] FCCA 535 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Lane |
| SOLICITORS FOR THE RESPONDENT: | Guthrie & Associates |
Orders
The Application in an Appeal filed on 4 October 2018 be dismissed.
The appellant have leave to rely on his “Pre-argument Statement” dated 6 February 2019.
The respondent have leave to rely on her summary of argument dated 4 February 2019.
The appeal be dismissed.
The appellant pay the costs of the respondent fixed in the sum of THIRTEEN THOUSAND ONE HUNDRED AND EIGHT DOLLARS AND EIGHTY-NINE CENTS [$13,108.89].
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 Petchey & Petchey (No. 2) 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 MELBOURNE |
Appeal Number: SOA 27 of 2018
File Number: DGC 931 of 2016
| Mr Petchey |
Appellant
And
| Ms Petchey |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 October 2018 Mr Petchey (“the appellant”) filed a Further Amended Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against the final orders for property settlement made by Judge Burchardt on 26 March 2018.
There is of course no need for leave to be given to the appellant to challenge final property settlement orders; he has an appeal as of right.
The appeal is opposed by Ms Petchey (“the respondent”).
At [1] – [88] his Honour, in order to establish his jurisdiction to make a property settlement order, addressed whether the parties were in a de facto relationship, and if so, the period of that relationship (s 90SB of the Family Law Act 1975 (Cth) (“the Act”)).
The respondent alleged that the parties were in a de facto relationship between 1989 and 2014, albeit with some interruptions, but the appellant’s case was that although there was a de facto relationship, it ended well before 1 March 2009.
His Honour found as follows (at [85]):
…These parties were in a relationship that broke down well after 1 March 2009. The relationship was one that does meet the definition of a de facto relationship as prescribed by s.4AA of the Act. The relationship lasted vastly in excess of two years.
Thus, his Honour had the jurisdiction to make a property settlement order where the relationship was in existence as at 1 March 2009.
Relevant background
The appellant filed an initial Notice of Appeal on 23 April 2018, but there was confusion as to the orders that he sought to challenge, of the seven grounds of appeal only two raised possible appealable errors by the primary judge, and the orders sought in the appeal could not be made. Accordingly, on 24 August 2018, at the request of the appellant, I gave him leave to file an Amended Notice of Appeal, which he eventually did on 4 October 2018, after a further directions hearing on 21 September 2018, and further orders being made.
However, in that Amended Notice of Appeal, the appellant set out 22 grounds of appeal, and again, almost all of these so-called grounds were incompetent, and the amended orders sought were still unable to be made.
The appellant also filed an Application in an Appeal seeking to adduce further evidence in the form of an affidavit that I ordered that he file explaining why he failed to appear at the directions hearing on 7 August 2018. However, at the hearing of the appeal the appellant advised that he no longer pursued that application, and for completeness I will now make an order dismissing it.
On 26 October 2018 the appellant filed a Further Amended Notice of Appeal which removed eight of the 22 grounds of appeal, and amended several of the orders sought. However, there were still only two grounds of appeal that potentially were competent.
This Further Amended Notice of Appeal did though finally set out an order that could be made in an appeal, namely setting aside the orders made by the primary judge.
Following another unsuccessful directions hearing on 21 November 2018, and a further directions hearing on 4 December 2018, and despite the inadequacies with the Further Amended Notice of Appeal, on 10 December 2018 I made orders listing the appeal for hearing on 7 February 2019, and the necessary orders to prepare the appeal for that hearing.
On 11 January 2019 the appellant filed an Application in an Appeal seeking leave to adduce further evidence, supported by an affidavit filed on the same day. He also filed a one page “brief summary of argument” purportedly in compliance with the order that I made on 10 December 2018.
On 4 February 2019 the respondent sought to file her summary of argument, but it was four days late. However, I gave leave at the hearing of the appeal for the respondent to rely on that summary.
On 6 February 2019 the appellant sought to file what he described as a “Pre-argument Statement”. I raised at the hearing of the appeal whether this was to be treated as a substitute for his “brief summary of argument”, but I have determined to consider both, and I will give leave for the appellant to rely on the latter document.
Finally, at the hearing of the appeal the appellant handed up a document setting out the order that he sought, and it reads as follows:
1.I SEEK AN ORDER THAT THE HOUNOUABLE JUDGE SET ASIDE THE ORDERS OF JUDGE BURCHARDT 26 MARCH 2018.
ON THE GROUNDS, 17.02 (1) (b) IT WAS OBTAINED BY FRAUD.
FAMILY LAW RULES 2004, Statutory Rules No 375, 2003
(As per original)
The appeal
The two grounds of appeal that appear to raise appealable errors by the primary judge are as follows:
1. The reasons for Judgement cannot be supported by factual evidence.
…
4.The Apellant was prevented from cross-examining, Affidavits supplied to the court …
(As per original)
Ground 1
The appellant did not spend much time in addressing this ground of appeal in either his written or oral submissions, but the complaint seems to be that the primary judge failed to have regard to his affidavits, and relied on the affidavits and evidence of the respondent, and two of their adult children.
However, that complaint is not made out. In his reasons for judgment his Honour painstakingly traversed all of the affidavits, and the oral evidence of the parties and the two adult children (see [20] – [78]), and then made his credit findings (see [79] – [81]), and then his findings on the preliminary issue of jurisdiction (see [82] – [88]).
I am satisfied that his Honour took into account the affidavits and evidence of the appellant, and the fact that his Honour determined to accept the evidence of the respondent rather than that of the appellant, does not indicate otherwise.
There is no merit in this ground of appeal.
Ground 4
The appellant complains that the trial judge “suspended cross-examination” of the respondent, and limited the questioning of one of the adult children to “5 questions”.
There is no doubt that his Honour put a stop to the cross-examination of the respondent. However, his Honour explained this in his reasons as follows:
61.It should be noted that I ceased cross-examination at this point. I had given the [appellant] notice, after about one and a half hours of cross-examination, that I would cease in the half hour later. It seemed clear to me that the cross-examination would not produce further information of sufficient significance to make the provision of further time appropriate.
62.It should be noted further that the transcript will not reveal the prevaricatory and manipulative nature of the way in which the [appellant] expresses himself. As I have said, all his questions were about what [Mr Petchey] had done. It took me some time, as I said, to work out that this was, in fact, him. I formed the clear view that if not prevented, the [appellant] would have cross-examined almost interminably. The process of cross-examination was extremely distressing and stressful for the [respondent], and this was a further consideration. On my view, I gave the [appellant] a sufficient amount of time to fairly test the evidence, but as said, any further amount of time was not likely to take the matter further.
Having read the transcript of the hearing before his Honour, to limit the cross-examination of the respondent in the way his Honour did, was amply justified. Moreover, his Honour gave the appellant ample warnings as to his questioning being inappropriate, and that he needed to finish up (for example see Transcript 8.2.18, pages 37 and 47).
With the adult child, it is not the case that his Honour limited the cross-examination of the appellant to “5 questions”. His Honour, having ruled on the admissibility of the contents of her affidavit, refused to allow the appellant to cross-examine on those paragraphs that were not admissible. There is plainly no error by his Honour here.
There is no merit in this ground of appeal.
None of the other grounds of appeal identify appealable errors by the primary judge and they need not be considered. However, in his “brief summary of argument”, and his “Pre-argument Statement”, the appellant does make the following complaints, which I have summarised below:
a)That Judge Phipps, who heard the matter in its initial stages, made orders without “jurisdiction”.
b)The reasons for judgment of the primary judge were written by the respondent’s solicitor.
c)The respondent’s solicitor filed affidavits which contained “slander” and “perjury” and the solicitor was responsible for perjury “in the court”.
d)The respondent’s solicitor behaved “unethically”, and intimidated the appellant.
e)The primary judge was misled by deceptive material and behaviour from the respondent’s legal representatives creating a miscarriage of justice.
f)The primary judge was deceived by extraneous material filed, and could not factually engage fully with the appellant’s case.
g)Before Judge Baumann (as his Honour then was), who heard the application for an extension of time in the initial stages of this matter, counsel representing the appellant withdrew without notice.
h)The solicitors and counsel “colluded” against the appellant at the hearing before Judge Baumann on 10 May 2017.
i)The hearings in 2016 and 2017 should not have proceeded because an order for the parties to attend a conciliation conference was ignored by the respondent.
j)The valuation of the former matrimonial home presented at the hearing before the primary judge was a “fraud”.
In relation to the first complaint, that is a matter which the appellant has raised previously in two Applications in an Appeal seeking extensions of time to appeal the initial orders made by Judge Phipps. It was found in dismissing both of those applications that there was no merit in this complaint, and repeating it in this appeal does not change that outcome (see Petchey & Petchey [2018] FamCAFC 256 and Petchey & Petchey [2019] FamCAFC 48).
Further, the appellant submitted to the primary judge that because the respondent was not an Australian citizen, the court had no jurisdiction to hear and determine her initial application. His Honour correctly dealt with this by pointing out that only one party need be an Australian citizen, and as the appellant was an Australian citizen, this submission was “totally misconceived” (see [9] and [10]).
As for the other complaints, they plainly have no merit, and at least one was a nonsense. None of these sound in error by the primary judge, even if the complaint is accurate. It is unnecessary for this Court to further consider these matters.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
In the event that the appeal was dismissed, the respondent sought costs on a party/party basis in the total sum of $16,665.96.
That claim is set out in an email sent to the court on 1 March 2019, and copied to the respondent. That process was discussed and agreed upon at the hearing of the appeal, and I record that the appellant has not responded in any way to that email.
I note that the costs claimed for counsel’s appearance on 21 November 2018, 4 December 2018, and 10 December 2018 relate not only to this appeal, but also to the Application in an Appeal filed by the appellant in appeal no. SOA 81 of 2018, which application was also before the court on those dates, and disappointingly, in the schedule of costs sought, those counsel fees are not split up, and the total amount of $1,185.69 is sought for each appearance.
In those circumstances I will not allow any costs in this appeal for those appearances, given that I would only be guessing as to what proportion of those costs related to this appeal. Thus, the claim for costs becomes $13,108.89.
The question of costs is governed by s 117 of the Act, and costs can be awarded if there are circumstances that justify an order (s 117(2)).
Here the appellant has been wholly unsuccessful, and that provides a justifying circumstance for an order to be made (s 117(2A)(e)).
The costs sought appear to me to be reasonable, and thus I propose to make an order that the appellant pay the costs of the respondent fixed in the sum of $13,108.89.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 18 September 2019
Associate:
Date: 18 September 2019
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