Robeck & Robeck
[2018] FamCAFC 201
•28 September 2018
FAMILY COURT OF AUSTRALIA
| ROBECK & ROBECK | [2018] FamCAFC 201 |
| FAMILY LAW – APPEAL – PROCEDURAL – Where there is some confusion as to whether or not the appeal was discontinued – Where the appeal is against orders made for the filing of documents in relation to the issue of transferring the proceedings to the Family Court of Australia at Melbourne – Where the facts in support of leave to appeal and the grounds relied upon should leave be granted are incomprehensible – Where the orders appealed are not decrees within the definition of a decree in s 4(1) of the Family Law Act 1975 (Cth) and cannot be appealed – Where the appeal is incompetent – Appeal dismissed. FAMILY LAW – APPEAL – TRANSFER OF PROCEEDINGS – Where leave to appeal has not been sought but is necessary – Where the grounds of appeal and the summary of argument are incomprehensible – Where there is no doubt that the Family Court of Australia has jurisdiction to hear and determine an application for a declaration of nullity – Where the appeal is incompetent and has no reasonable prospect of success – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs on the basis that the two appeals are to be dismissed – Where the appellant opposes any costs order – Where there are circumstances justifying an order for costs – Where the conduct of the appellant deserves condemnation – Where the costs proposed by the respondent are reasonably modest – Where the appellant in opposing the application for costs did not contend that his financial circumstances precluded or inhibited his ability to meet a costs order – Costs ordered in the sum as sought by the respondent. |
| Family Law Act 1975 (Cth) ss 4(1), 94AAA(1), 96AA, 117(2) and 117(2A)(c) Family Law Rules (2004) (Cth) rr 11.17 and 11.18 |
| Commonwealth v Mullane (1961) 106 CLR 166 |
| APPELLANT: | Mr Robeck |
| RESPONDENT: | Ms Robeck |
| FILE NUMBER: | PTW | 7443 | of | 2017 |
| APPEAL NUMBERS: | WEA | 18 | of | 2018 |
| WEA | 23 | of | 2018 |
| DATE DELIVERED: | 28 September 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Austin & Sutherland JJ |
| HEARING DATE: | 28 September 2018 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 3 April 2018 25 June 2018 |
| LOWER COURT MNC: | NA – Transcript of hearing [2018] FCWA 126 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Hedges |
| SOLICITOR FOR THE RESPONDENT: | Zervos Lawyers |
orders
Appeal number WEA 18 of 2018 be dismissed.
Appeal number WEA 23 of 2018 be dismissed.
The appellant husband pay the costs of the respondent wife fixed in the sum of nine thousand seven hundred and twenty seven dollars [$9727.00].
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 Robeck & Robeck 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).
|
Appeal Numbers: WEA 18 and 23 of 2018
File Number: PTW 7443 of 2017
| Mr Robeck |
Appellant
And
| Ms Robeck |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Strickland j
There are two appeals before the Court.
First, appeal no. WEA 18 of 2018, and secondly appeal no. WEA 23 of 2018.
In relation to the first appeal, there is some confusion as to whether that appeal has in fact been discontinued. I attempted today to clarify that with Mr Robeck (“the appellant”), but frankly, his answers did not assist in resolving that issue, and so I proceed on the basis that the earlier appeal is still on foot, and I will say more about that in a moment.
The appeals are opposed by Ms Robeck (“the respondent”).
What the first appeal relates to are orders made by O’Brien J on 3 April 2018, and the Notice of Appeal was filed on 30 April 2018. The orders the subject of the appeal, and I summarise, were orders that provided for the parties to file and serve documents in relation to the issue of the transfer of the proceedings instituted by the appellant to the Family Court of Australia in Melbourne.
The proceedings instituted by the appellant, which were the subject of the hearing before O’Brien J on 3 April 2018 were, as we understand it, an application seeking a declaration of nullity in relation to the marriage between the parties to this matter.
That first appeal came before Thackray J on 25 July 2018, when his Honour made a number of orders, but relevantly, gave the appellant leave to discontinue that appeal, and indeed ordered that the appellant file and serve a Notice of Discontinuance within 14 days. His Honour also relevantly reserved the question of costs to the Full Court when hearing appeal number WEA 23 of 2018, which, to repeat, is the second appeal we need to deal with today.
On 13 August 2018, the appellant filed a Notice of Discontinuance, but that Notice was not signed, the appeal was not identified by filing date, although it was identified by appeal number, and significantly, what the appellant did was add a note to that Notice of Discontinuance which, with all due respect to the appellant, was difficult to understand. Doing the best I can though, it seems that what the appellant was wanting to do was to rely on the grounds of appeal in that Notice of Appeal, and the orders sought, in the second appeal.
In those circumstances, it is not readily apparent that that Notice of Discontinuance has been effective in discontinuing the appeal. However, even if that is the case, in other words, that it has not been discontinued thereby, that does not assist the appellant because, in my view, in any event, the appeal is incompetent.
In the Notice of Appeal filed on 30 April 2018, leave to appeal is sought, as is necessary given the nature of the orders the subject of the appeal, and in the facts identified in support of an application for leave to appeal, what the appellant has put is incomprehensible. They do not satisfy the test of whether leave should be granted, namely whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
Further, even if leave to appeal had been granted, the grounds of appeal relied upon by the appellant, and I have used the word before, but there is no other word that better describes it, those grounds are also incomprehensible. They extend for just over two pages of the Notice of Appeal.
In any event, it is also doubtful in my view whether there can be an appeal from the orders made by O’Brien J on 3 April 2018. Those orders are not decrees within the definition of a decree in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”), and pursuant to s 94AAA(1) of the Act, an appeal only lies to the Family Court of Australia from a decree of the lower court. The orders do not determine the proceedings, or an identifiable part thereof, and they certainly did not conclude the rights of the parties before the hearing of the case was completed. There are ample authorities, High Court, Federal Court and in this Court, which demonstrate that in those circumstances the orders sought to be appealed against are not within the definition of a decree in s 4(1) (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742). Therefore, for two reasons, first, the orders are not decrees and thus cannot be appealed, and secondly, even if they were, the appeal is incompetent and should be dismissed (s 96AA of the Act), I propose to dismiss the appeal.
Turning to the second appeal WEA 23 of 2018, the Notice of Appeal was filed on 19 July 2018, and it appeals against orders made by O’Brien J on 25 June 2018. Those orders, again in summary, provided for the transfer of the proceedings in the Family Court of Western Australia, namely the application by the appellant seeking a declaration of nullity, to the Melbourne Registry of the Family Court of Australia.
I note that in the Notice of Appeal no leave to appeal is sought. In my view, leave to appeal is necessary, but given what I am about to say, there is no need to pursue that issue further.
In support of that Notice of Appeal, the appellant has identified an affidavit which is contained in his appeal books for the purposes of these appeals, as being his summary of argument. Again, I hesitate to use the same description as before, but unfortunately it is still apt, and considering the terms of the order sought to be appealed against, and the grounds of appeal, which I will come to in a moment, that summary of argument is incomprehensible, and does not directly address the question of whether O’Brien J has made an appealable error in making the orders that he did on 25 June 2018.
There are, of course, the grounds of appeal in the Notice of Appeal which would have only become relevant if leave to appeal was granted, but assuming that for the moment, the grounds of appeal in this Notice of Appeal extend over certainly a page and perhaps a page and a bit, and again, in my view, they are incomprehensible.
The only complaint raised therein, which would seem to have some direct relationship to the orders the subject of the appeal, is the suggestion in paragraph 7 of the grounds of appeal that the Family Court of Australia does not have jurisdiction in Western Australia, and thus the matter cannot be transferred to that court, and today we have heard oral submissions from the appellant in support of that argument.
However, with all due respect to the appellant, that argument is incorrect. There is no doubt that the Family Court of Australia has jurisdiction to hear and determine his application for a declaration of nullity, and thus that cannot be a basis for an appeal against the orders made by O’Brien J to transfer the proceedings to the Family Court of Australia, and specifically to the Melbourne Registry.
I note that the transfer was to the Melbourne Registry because, although there are no proceedings in the Family Court of Australia, there are proceedings, as we understand it, in the Federal Circuit Court of Australia in the Melbourne Registry. There are also many other reasons, as set out in his Honour’s reasons for judgment delivered on 25 June 2018, as to the appropriateness of the proceedings being transferred to the Melbourne Registry. Unfortunately, the appellant, neither in his written summary of argument, his grounds of appeal, nor his oral submissions made today, has seen fit to address any of the matters referred to and dealt with in the reasons for judgment, and specifically as to the reasons for transferring the proceedings.
Let there be no doubt about it, it was open to his Honour to transfer the proceedings from the Family Court of Western Australia to the Melbourne Registry of the Family Court of Australia, and his Honour, in referring to and relying on rr 11.17 and 11.18 of the Family Law Rules 2004 (Cth) (“the Rules”) as providing the factors that his Honour needed to address in transferring the proceedings, was not only appropriate but correct.
Thus, in my view, to repeat, this appeal is also incompetent, and if I need to I refer to s 96AA of the Act which provides in paragraph (b) that if having regard to the grounds of appeal as disclosed in the Notice of Appeal, it appears to the court that the appeal has no reasonable prospect of success, the court may order that the proceedings on appeal be dismissed. Plainly that is the case here.
For those reasons I would dismiss both appeals.
Austin J
I agree with the ex tempore reasons delivered by Strickland J in relation to the second pending appeal (WEA 23 of 2018) concerning the orders for transfer of the nullity application made by O’Brien J on 25 June 2018. The appellant’s appeal would be amendable to summary dismissal pursuant to section 96AA of the Act.
For the reasons Strickland J has indicated, the orthodox treatment by the trial judge of the application for change of venue was entirely orthodox, taking into account the provisions of rr 11.17 and 11.18 of the Rules.
In essence, the two parties to the proceedings have lived in Melbourne for the last 24 years and the nullity application had no relevant connection with the State of Western Australia. The decision of O’Brien J was, in my view, wholly correct. In those circumstances, given the appeal itself would have been amenable to summary dismissal under s 96AA of the Act, I would refuse leave to appeal against the orders. Leave is required because the orders were interlocutory in nature.
In relation to the first pending appeal (WEA 18 of 2018), which relates to procedural orders made by O’Brien J on 3 April 2018, a similar fate befalls it.
The orders made by O’Brien J on that date simply called for the parties to file documents in support of their respective positions in relation to their foreshadowed debate about the change of venue for the nullity application. When that matter was procedurally heard before Chief Judge Thackray on 25 July 2018, in anticipation of this appeal, the appellant informed the Chief Judge he intended to discontinue the appeal and orders were then made requiring him to file a Notice of Discontinuance.
As it transpired, for the reasons expounded by Strickland J, the Notice of Discontinuance was not filed in its ordinary and correct format. In my view, the maintenance of the appeal today against merely procedural orders made on 3 April 2018, which were overtaken by the orders made on 25 June 2018 to determine the contested application, in the face of the appellant’s asserted willingness and expressed intention to discontinue the appeal, amounts to an abuse of process. This Court has power to make orders that prevent an abuse of its process and to protect its own functions (see Williams v Spautz (1992) 174 CLR 509 at 518). As in the case of the other appeal, I would refuse leave to appeal in respect of this appeal.
Sutherland J
In relation to both appeals WEA 18 of 2018 and WEA 23 of 2018, I agree with the reasons as set out by Justice Strickland and as expounded upon by Justice Austin, and I have no further matters to add.
Strickland J
We now have before the Court an application by the respondent for costs on the basis that we propose to dismiss the two appeals.
The amount of costs sought is $9,727 and that amount is calculated on a party/party basis. The primary basis of the application for costs is that, in respect of the two appeals before the Court, upon being dismissed, they will have been wholly unsuccessful.
The husband opposes the order for costs.
In my view, there are circumstances here that justify an order for costs. Section 117(2) of the Act provides for this Court to be able to make an order for costs where there are circumstances justifying it, and the circumstance that justifies it is, to repeat, the appeals have been wholly unsuccessful.
Thus, I would make an order for costs in the amount sought by the respondent.
Austin J
I agree with the reasons given by Strickland J, though I add further reasons. In my view, the costs application is well warranted for further considerations.
First, pursuant to s 117(2A)(c) of the Act, the appellant’s conduct of these proceedings deserves condemnation. His maintenance of appeal WEA 18 of 2018 when, only a few months ago, he informed the Chief Judge and the respondent wife he was discontinuing it was indefensible.
Secondly, in opposing the application for costs, the appellant did not contend his financial circumstances precluded or inhibited his ability to meet the reasonably modest sum of costs proposed by the respondent.
For those extra reasons, I agree with the costs orders proposed by Strickland J.
Sutherland J
Thank you. And I also agree with the reasons as set out by Justice Strickland and as expounded upon by Justice Austin, and again, have nothing further to add.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Austin & Sutherland JJ) delivered on 28 September 2018.
Associate:
Date: 22 October 2018
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