Thurston and Thurston
[2012] FamCAFC 121
FAMILY COURT OF AUSTRALIA
| THURSTON & THURSTON | [2012] FamCAFC 121 |
FAMILY LAW – APPEAL – Procedure – Application to reinstate appeal – Where the husband’s appeals were deemed abandoned when the appeal books were not filed – Where prior to the date for the filing of the appeal books the husband filed an application in an appeal seeking an extension of time citing related proceedings in the Federal Court and ill health – Where the wife opposed the application and sought that the husband’s appeal be deemed abandoned or dismissed – Where the husband’s application sought other orders in relation to subpoenas and further evidence – Where the parties agreed by consent to orders that the respondent file an application for dismissal – Appeals reinstated and applications otherwise adjourned to the Full Court.
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Family Law Rules 2004 rr 22.21, 22.41, 22.45(1)(b)(iii) |
| APPELLANT: | Mr Thurston |
| RESPONDENT: | Mrs Thurston |
| FILE NUMBER: | BRC 2249 of 2010 |
| APPEAL NUMBER: | NA 31, 32 & 95 of 2011 |
| DATE DELIVERED: | 14 August 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 14 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 April 2011, 18 April 2011, 1 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam1160 [2011] FMCAfam 1486 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Sara |
| SOLICITOR FOR THE RESPONDENT: | Neilson Stanton & Parkinson |
Orders
The appeals NA 31, 32 and 95 of 2011 deemed abandoned be reinstated.
The appellant’s application in an appeal filed 27 July 2012 otherwise be heard by the Full Court in the November 2012 sittings.
Orders by consent
The respondent be at liberty to file and serve an application for dismissal together with an affidavit within 14 days of the date of this order.
The appellant file and serve a response and any affidavit upon which he would wish to rely within three weeks of being served with the respondent’s application and affidavit but no later than 28 September 2012. The respondent be at liberty to file and serve a reply, if any, within two weeks of being served with the appellant’s response.
The costs of the respondent be reserved to the Full Court.
Either party be at liberty to apply for further directions or orders on seven days notice to the other.
It is Further Ordered
The application of the respondent that the appeals be dismissed be heard by the Full Court in the November 2012 sittings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston and Thurston has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 31, 32 & 95 of 2011
File Number: BRC 2249 of 2010
| Mr Thurston |
Appellant
And
| Mrs Thurston |
Respondent
REASONS FOR JUDGMENT
Introduction
The appellant filed an application in an appeal seeking a suspension or stay of procedural orders made by Registrar Spink on 24 May 2012 in relation to the filing of appeal books and other documents in the appellant’s three consolidated appeals numbered NA 31, 32 and 95 of 2011. The appellant also seeks orders in relation to his application for further evidence and the issuing of subpoenas. The persons to whom the subpoenas are to be addressed are not named in the application or affidavit. Those issues are beyond the scope of this hearing and could be argued before the Full Court should the appeal proceed.
The appeal books were due to be filed in the Brisbane Registry on 3 August 2012. The books were not filed and accordingly pursuant to Rule 22.21 of the Family Law Rules 2004 (“the Rules”), the appeals have therefore technically been deemed abandoned. The orders I propose to make take into account that the appellant filed an application for an extension of time to file the appeal books before they were due.
The essence of the appellant’s request for a stay or extension of the procedural orders is that there are proceedings on foot in the Federal Court concerning judicial review of certain decisions of Federal Magistrate Spelleken and Regional Appeals Registrar Kane which may affect the conduct and determination of the appeals in this Court. The appellant also cites “quite separately and additionally” his poor health as a reason for delaying the appeal proceedings.
Background
The proceedings in this Court concern appeals from interlocutory and final orders made by Federal Magistrate Spelleken on 1 and 18 April 2011 and
1 November 2011 in property proceedings between the appellant husband and the respondent wife. The proceedings were commenced by the wife’s initiating application in May 2010.
The appeals NA 31 and 32 of 2011 against the orders made 1 and 18 April 2011 assert that the Federal Magistrate erred in hearing and making orders in the absence of the appellant. The first hearing concerned the wife’s contravention application in relation to earlier orders which required the husband to cooperate in the valuation of property, and the husband’s application for a stay (no appeal was on foot at that stage). The husband did not appear at the hearing and provided no medical evidence to the Court. The parties’ son sought to appear on his behalf, however was refused by the Federal Magistrate on the basis that no request had been received from the husband. No formal orders were issued from the 1 April 2011 hearing however a transcript is on the file.
The interlocutory orders made on 18 April 2011 followed a hearing on the same day in relation to the wife’s contravention application, her amended application for final orders and a further stay application from the husband. The husband did not appear at the hearing, could not be contacted by telephone and did not file medical or other evidence to explain his absence before the Federal Magistrate. The orders made by the Federal Magistrate dismissed the husband’s stay application and provided that “should the husband fail to attend at the adjourned hearing on 10 May 2011, or fails to formally seek leave to attend by way of telephone link, the wife be at liberty to seek orders by default”.
On 10 May 2011 the property application was further adjourned to the Federal Magistrates Court sitting in Hervey Bay on 17 May 2011. On 10 May 2011the order allowing the adjournment noted that at that at the hearing on
17 May 2011 the Court would consider making final orders in terms of an attachment labelled “Annexure A”. The orders of 10 May 2011 record the parties’ son as having appeared for the husband. The orders in Annexure A in essence reflect those final orders made by the Federal Magistrate on
1 November 2011.
At the hearing on 17 May 2011 there was no appearance by the husband and the wife’s legal representative asked the Federal Magistrate to deal with the matter finally by default. The Federal Magistrate, having indicated this course in her earlier orders, acceded to this request and heard the matter on an undefended basis, however noted in her reasons that she had taken into account affidavits and a financial statement filed on behalf of the husband.
The effect of the final orders made 1 November 2011 was to order a sale of property in order to reach a division of the parties’ property on a 50/50 basis and the husband’s payment to the wife from his share her costs of the application and previous costs orders. The husband filed a notice of appeal against those orders on 29 November 2011 alleging denial of procedural fairness, bias and miscarriage of discretion.
The Federal Magistrate granted a stay of the orders made 1 November 2011 on 21 December 2011.
On 24 February 2012 the Chief Justice issued a direction that it was appropriate for the three appeals to be heard by a single judge. On 13 March 2012 the matter was listed for a procedural hearing before Regional Appeals Registrar Kane. Registrar Kane made procedural directions preparing the matter for hearing before a single judge and listed the matter for hearing before me on
24 May 2012.
The hearing did not take place because the husband commenced proceedings in the Federal Court in April 2012. By originating application he sought judicial review of unparticularised decisions and or orders of Federal Magistrate Spelleken, and the decision of Registrar Kane on 13 March 2012 described by the appellant as her decision to “deny the Applicant available legally trained assistance”. The Federal Court matter was heard by Greenwood J in May 2012 and in July 2012. Those proceedings are still on foot, the most recent event being orders of Greenwood J in July 2012 directing the husband to file an affidavit by 10 August 2012 setting out each of the decisions or orders made by Federal Magistrate Spelleken and Registrar Kane, together with a short description of the applications giving rise to those orders or directions.
Greenwood J also made a Referral Certificate pursuant to r 4.12 of the Federal Court Rules 2011, enabling the husband to obtain legal advice on the questions of (1) whether his Originating Application ought be set aside on the ground that neither decision the subject of the application is a decision of an administrative character for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and (2) whether any constitutional writ lies in respect of either decision.
On 17 April 2012 the Chief Justice of this Court revoked the direction that the appeals by heard by a single judge. On 24 May the matter came before Registrar Spink for a procedural hearing and the Registrar made orders for the preparation of appeal books, directing that they be filed by 3 August 2012. As mentioned earlier the books have not been filed.
The Application
In view of the proceedings continuing in the Federal Court, the appellant filed on 27 July 2012 an application in an appeal seeking the following orders:
1.These present Appeals are adjourned to the registry, any procedural orders, including the requirement to file appeal books are suspended and a Stay on any order/s subject of these appeals is/are continued until those matters are resolved by order of the Federal Court of re-heard and determined in this court.
2.Appellant or the Respondent has Leave to re-list on seven days Notice after the Judicial Review in this matter in the Federal Court is determined, if such a course remains appropriate
3.If the appeals be re-listed or by order of the Federal Court, this matter is to proceed, Appellant has Leave to issue such subpoenii regarding financial Evidence as he deems appropriate and such subpoenii may have an early return date of not less than two weeks clear, and upon production pursuant to the subpoenii, Appellant may view and copy any documents produced in a manner suitable to him.
4.In the hearing of this Application, Appellant may, after so advising the Registry, appear by telephone.
5.If, consequential to the above orders, these appeals are to proceed, Appellant has Leave to adduce Further Evidence.
6. There be no order as to the costs of this application.
As mentioned, the two bases to the husband’s application are the ongoing proceedings in the Federal Court and his poor health. Annexed to the husband’s affidavit in support of the application is a letter from a Dr N stating that the husband has “Developed sever anaemia due to an unknown cause…required a reasonably urgent transfusion…on 07.07.12. He requires weekly checks of his blood levels and requires referral to several specialist [sic] for investigation of his condition. This management will be ongoing for several months”. Also annexed to the affidavit is a Discharge Summary from Hospital G stating a Principal Diagnosis of Severe Iron Deficiency Anaemia.
It seems the husband’s health problems have persisted throughout the course of both the first instance and appeal proceedings. The specific issue of anaemia was known to him at least as early as the hearing of an application in an appeal before me in May last year where he put before the Court medical evidence of that diagnosis.
This morning the husband said he was unable to hear what was being said in Court. For that reason I allowed his companion to sit next to him, advise him about what was being said in Court and, as there seemed no alternative on this occasion, speak to him and make brief submissions to the Court.
Submissions of the Respondent Wife
Submissions on behalf of the respondent wife were filed on 13 August 2012. The wife seeks orders that pursuant to rule 22.21 and order 5 of 24 May 2012, the appeals be taken to be abandoned. Alternatively, in written submissions the wife asks that the appeal be dismissed. The wife also asks that the husband pay her costs including the costs of responding to this application, and that the stay granted by the Federal Magistrate on 21 December 2011 be “dissolved and otherwise lifted”.
The real issue in dispute according to the wife is how the proceeds of sale of the former matrimonial home should be divided between the parties. It was submitted that regardless of the outcome of the appeal, the home will have to be sold and the proceeds placed on trust for the parties.
In relation to the Federal Court proceedings, it is emphasised for the wife that she is not a party to those proceedings and it was further submitted that pursuant to the Judicial Act 1903 (Cth) and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) the Federal Court does not appear to have jurisdiction to grant the relief sought by the husband. Counsel for the wife submitted that the proceedings are an example of Mr B, who is a person not admitted to practice in Queensland, “encouraging the husband to delay and obfuscate the true nature of the proceedings subject to dispute”, and that there is considerable unfairness to the wife in the hearing of the appeal being further delayed.
Conclusion
At the conclusion of the submissions the parties agreed that the issues raised by them, including those contained in the written submissions on behalf of the wife, should be heard by the Full Court. Orders by consent were tendered including a timetable for the filing of documents. These consent orders were marked Exhibit 1.
It is important that the appeal be heard but also that if there are no merits in the appeal, that be determined in a timely manner. Such an application is to be brought by the respondent pursuant to s 96AA of the Act. In addition, the respondent is also entitled to be heard in relation to the appeal pursuant to
r 22.45(1)(b)(iii) of the Rules. The appellant should be served with an application and supporting material and have an opportunity to file material in response.
There seems little point in making further orders about the filing of the appeal books until the application of the respondent is heard, especially as part of that application is that the appellant has not shown reasonable diligence in proceeding with the appeal. Of course, it remains open to the appellant to file the appeal books at any time before the November hearing.
Costs
The husband asks that no order for costs be made. The wife seeks that the husband pay her costs of the appeal including but not limited to these applications.
In these circumstances I consider the appropriate order is to reserve the costs of the applications to the Full Court.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on
14 August 2012.
Associate:
Date: 14 August 2012
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