Radic & Radic
[2008] FamCAFC 136
•31 July 2008
FAMILY COURT OF AUSTRALIA
| RADIC & RADIC | [2008] FamCAFC 136 |
| FAMILY LAW - APPEAL AGAINST ORDER OF FEDERAL MAGISTRATE – PROPERTY – Where appellant husband failed to comply with procedural orders – Where appellant husband declined to seek ajournment to comply with the orders. FAMILY LAW - APPLICATION FOR DISMISSAL OF THE APPEAL – Where respondent wife applied to have the appeal dismissed as incompetent, as an abuse of process, for want of prosecution, or alternatively summarily dismissed for failure to comply with court orders – Where grounds as framed not competent – Where failure to amend Notice of Appeal when appellant husband ordered to do so – Where non-compliance with court orders – Application allowed – Appeal dismissed. FAMILY LAW - COSTS – Where circumstances make departure from s 117(1) appropriate – Where appellant husband failed to comply with orders – Where appellant husband was wholly unsuccessful – Appellant husband to pay respondent wife’s costs of the Appeal and of the Application for dismissal – Appellant husband ordered to pay costs of $3,920.00. |
| Family Law Act 1975 (Cth) – s 79, s 94AAA(3) Family Law Rules 2004 (Cth) – r 22.38, r 22.56, r 22.58 |
| Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800 |
| APPELLANT: | Mr Radic |
| RESPONDENT: | Ms Radic |
| FILE NUMBER: | SYM | 5614 | of | 2006 |
| APPEAL NUMBER: | EA | 46 | of | 2008 |
| DATE DELIVERED: | 31 July 2008 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 31 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 April 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 328 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Radic in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Brian Samuel & Associates |
Orders
That the appeal filed on 24 April 2008 by the husband against the orders of Federal Magistrate Kemp made 11 April 2008 is dismissed.
The husband pay the wife’s costs of and incidental to the appeal and the application filed 25 July 2008 as agreed in the sum of $3,920.00.
The costs payable by the husband pursuant to Order 2 of these orders shall be deducted from the sum payable by the wife to the husband pursuant to Federal Magistrate Kemp’s orders of 11 April 2008.
IT IS NOTED that publication of this judgment under the pseudonym Radic and Radic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 46 of 2008
File Number: SYM 5614 of 2006
| Mr Radic |
Appellant
And
| Ms Radic |
Respondent
ex tempore reasons for judgment
Introduction
On 24 April 2008 Mr Radic filed an appeal against orders made by Federal Magistrate Kemp on 11 April 2008. The proceedings before the Federal Magistrate were property proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) between Mr Radic and his former wife Ms Radic.
The defended property proceedings were proceedings remitted for re-hearing after I allowed an appeal brought by Mr Radic against orders made in earlier property proceedings between the parties.
Without wishing to offend either party, and notwithstanding they have been divorced since August 2006, I will for convenience in these reasons refer to them as “the husband” and “the wife”.
In his Notice of Appeal, in Part D of the form, which requires grounds of appeal to be set out, the husband, who is self represented, set out the following:
1.The initial settlement of 80% to the husband the parties subsequent reconciliation and living together in the apartment [on the Northern Beaches].
A procedural hearing was conducted by me on 26 May 2008. At that time I discussed with the husband the deficiencies in the Notice of Appeal, and I made orders which included the following orders:
1.That the appellant file and serve an Amended Notice of Appeal setting out grounds of appeal on which he relies on or before 16 June 2008;
…
3.That on or before 8 July 2008 the appellant obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the Court and to the respondent.
4.That the appellant file and serve a written summary of argument and list of authorities (if any) on or before 8 July 2008.
…
6.That each party be at liberty to apply for any further directions to the Honourable Justice Boland (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other party and to the Appeal Registrar in the Sydney Registry.
7.That the appeal be listed for hearing before the Honourable Justice Boland (or if not reasonably available then such other judge as may be nominated by the Honourable Justice Finn) at 10.00am on 31 July 2008.
8.That the costs of today’s proceedings be reserved.
There has been no compliance by the husband with these orders.
On 25 July 2008 the wife’s solicitor filed an application on her behalf. The wife seeks the following orders:
1.That the Notice of Appeal filed by the appellant on 24 April 2008 be dismissed for want of prosecution.
2.That in the alternative the Notice of Appeal be sumarily [sic] dismissed.
3.That the Appellant pay the Respondents [sic] costs of and incidental to the said Appeal.
I am hearing the appeal, including the application for dismissal of the appeal, as a single Judge pursuant to a direction of the Chief Justice made on 29 April 2008 under s 94 AAA(3) of the Act.
The husband today sought, and was granted leave, to rely on an oral response to the wife’s application. He seeks that the orders sought in the application be dismissed.
I afforded the husband the opportunity to apply for an adjournment of the appeal, and a further opportunity to comply with orders to file an amended Notice of Appeal and provide transcript, but he declined to seek an adjournment. I therefore heard submissions from Mr Millar, counsel for the wife, as to why the appeal should be dismissed.
Before hearing submissions from the husband, I provided him with a copy of r 22.58 of the Family Law Rules 2004 (“the rules”). Although the husband participated in the hearing in the English language he had the benefit of an interpreter provided by the Court. The interpreter translated r 22.58 to the husband as well as the application filed 25 July 2008 and the affidavit in support.
The parties’ submissions on the application
Mr Millar submitted there were three bases on which the appeal could be dismissed. Firstly, he asserted the appeal was incompetent, the Notice of Appeal containing no competent challenge to the Federal Magistrate’s orders. Secondly, he asserted the appeal was an abuse of process, and thirdly, he submitted that the appeal should be dismissed in accordance with r 22.58 for non-compliance with my orders made 26 May 2008.
The husband asserted that in some unspecified manner the judgment was flawed. It was clear to me from the husband’s submissions that, insofar as property proceedings are concerned, he has a fixed idea that each party’s entitlement should be 50 per cent of their total property, or 50 per cent of the home unit property registered in the wife’s sole name, on the Northern Beaches, notwithstanding that before the Federal Magistrate he sought orders that he receive a sum equivalent to 35% of the net proceeds of that property, and each party keep the property in their present ownership and control (judgment paragraph 1).
The relevant provisions of the rules dealing with an dismissal of an appeal
Rule 22.38 of the rules provides that if a party does not attend in person, or by a lawyer when an appeal is called on for hearing, the court may, if the appellant does not attend, dismiss the appeal. As the husband appeared after the matter was called on this rule has no relevance.
Formerly, the rules contained a provision for dismissal of appeal (r 22.56) but that rule was omitted from the rules in 2005. Rule 22.58 now provides for dismissal of appeal for non-compliance or delay. It is in the following terms:
(1)This rule applies if:
(a) rule 22.56 does not apply; and
(b) a party (the "defaulting party") has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order; or
(iii) shown reasonable diligence in proceeding with an appeal.
(2) A court having jurisdiction in the appeal may:
(a) if the defaulting party is the appellant:
(i) dismiss the appeal; or
(ii) fix a time by which a requirement is to be met and order that the appeal 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 will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal.
(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.
Discussion
I propose to deal with this application by considering the three bases on which Mr Millar asserted the appeal should be dismissed. I will also endeavour to consider the husband’s generalised assertion that the judgment was flawed, and the implication that, in those circumstances, to dismiss the appeal would constitute an injustice to him.
That the appeal is incompetent
I have already set out the purported ground of appeal in the Notice of Appeal. At the procedural hearing conducted by me on 26 May 2008 I pointed out to the husband that the Notice contained no ground which asserted appealable error by the Federal Magistrate. I specifically ordered that a Notice of Appeal be filed setting out the grounds of appeal relied on. There is no dispute that there was no compliance with Order 1 of my orders of 26 May 2008. Further, today the husband specifically rejected the opportunity to seek an adjournment to file an Amended Notice of Appeal.
A perusal of the learned Federal Magistrate’s reasons for judgment discloses that he carefully recorded the competing applications before him, as well as relevant background facts. Thereafter, he identified the matters in issue, and explained the approach, recognised by authority, to determine an application for property adjustment under s 79 of the Act. His Honour then dealt with and made findings about the disputed date of separation. His Honour also carefully considered credit issues and concluded at paragraph 46 “[t]he Court has been left in no doubt that the husband sought to minimise the value of his business assets, to advantage himself and to disadvantage the wife”. His Honour concluded, having had the unique opportunity of observing the husband in the witness box, that his “lack of candour falls clearly into the category of cases of Weir & Weir (1993) FLC 92-338, Black & Kilner (1992) FLC 92-28 and Chang & Su (2002) FLC 93-118” (paragraph 46). I pause here to note each of those cases dealt with the situation where the Court has found one party has failed to make a full frank and complete disclosure of their financial position.
His Honour, correctly in my view, considered that the agreement made between the parties to split the proceeds of their former matrimonial home 70 per cent to the wife and 30 per cent to the husband was not a final property settlement, and the Court was required to consider the competing applications. His Honour then, again in accordance with authority, identified the parties’ assets and liabilities. At paragraphs 52 to 63 his Honour carefully considered each party’s submissions on contribution, including the husband’s assertion that land purchased by him in the Hunter region prior to the parties’ marriage should be excluded from the asset pool, (which he rejected) and thereafter made findings on the parties’ respective contributions, including the wife’s significant post separation contributions. At paragraphs 64 to 67 of his reasons his Honour carefully considered relevant factors under s 75(2) and made findings relevant to that section. His Honour then turned to consider the justice and equity of the orders.
The pool of disclosed assets before the Federal Magistrate was modest ($362,166.00). His Honour found, in all the circumstances, that the husband should retain assets of $48,869.00 or 13.5 per cent of the pool.
Having considered the reasons for judgment, and the husband’s submissions, I discern no appealable error demonstrated in the Notice of Appeal. If the husband is asserting that the adjustment is manifestly unjust or outside the reasonable range of his Honour’s discretion he has not said so. I have regard to his Honour’s findings which supported the orders made, particularly his finding of lack of appropriate disclosure by the husband.
I am satisfied that the appeal as framed is not competent, and the husband has rejected an opportunity to cure the deficiencies in his Notice of Appeal.
Abuse of process
I have already noted the very modest nature of the parties’ assets. I also take into account that this is the second appeal brought by the husband who is well aware of the appeal process.
I accept the wife, whose income is modest and who has the responsibility for the support of the two children who at the time of the hearing were aged 17 years and 14 years, has incurred costs by the ongoing litigation and her costs have been increased by the husband’s non compliance with orders necessitating this application.
Failure to comply with court orders
It is not in dispute that the husband has not complied with Court orders. He has not filed, as ordered, an amended Notice of Appeal and he has not provided any transcript. While the husband asserts he cannot afford to pay for transcript and the Court should provide transcript to him I do not accept that submission. The husband has, as disclosed in Federal Magistrate Kemp’s reasons, monies in his bank account of $2,848.00 and an entitlement to receive $14,000.00 from the wife.
Conclusions
For the reasons I have just given, I am satisfied that the husband’s appeal should be dismissed as it is incompetent, an abuse of process, and because there has been non compliance with Court orders which the husband has not sought to remedy.
I will now hear submissions on costs.
Costs
It is not in dispute I have a wide discretion to award costs (see Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800). I am satisfied that there are circumstances in this case that I should depart from s 117(1) of the Act. I have regard to and accept the submissions of Mr Millar in respect of the wife’s financial circumstances. I find that both the husband’s conduct of this appeal, his failure to comply with orders, and the fact he has been wholly unsuccessful in this application justifies an order that he pay the wife’s costs of this application and the appeal, and I propose to so order.
Mr Millar seeks costs in a fixed sum of $3,920.00 for the appeal and this application. I am satisfied it is appropriate to award costs in that quantum. He further submits that I have power under s 117 to order that these costs be deducted from the amount payable of $14,000.00 plus interest payable by the wife to the husband. I propose to so order.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 6 August 2008
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