VERBECK & SABBERTON
[2020] FamCAFC 38
•21 February 2020
FAMILY COURT OF AUSTRALIA
| VERBECK & SABBERTON | [2020] FamCAFC 38 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant did not appear – Where the day before the hearing the applicant sought that the hearing be delayed and be heard at a later time – Where the applicant was well aware of this hearing and the request could have been made earlier and may have been able to be accommodated – Where the hearing proceeded in the applicant’s absence – Order made. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Verbeck |
| RESPONDENT: | Ms Sabberton |
| FILE NUMBER: | PTW | 4117 | of | 2016 |
| APPEAL NUMBER: | WEA | L44 | of | 2019 |
| DATE DELIVERED: | 21 February 2020 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 January 2020 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 2 October 2019 |
| LOWER COURT MNC: | [2019] FCWAM 128 |
REPRESENTATION
| THE APPLICANT: | In Person – no appearance |
| COUNSEL FOR THE RESPONDENT: | Ms Milton |
| SOLICITOR FOR THE RESPONDENT: | Bannerman Solicitors |
Order
The Application in an Appeal filed on 13 November 2019 be dismissed.
It Is Noted That:
No order for costs is sought by the respondent mother.
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 Verbeck & Sabberton 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 PERTH |
Appeal Number: WEA L44 of 2019
File Number: PTW 4117 of 2016
| Mr Verbeck |
Applicant
And
| Ms Sabberton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I want to deal first with the circumstance of Mr Verbeck (“the father”) not being present today.
This is a matter where the father filed an Application in an Appeal on 13 November 2019, seeking an extension of time to file a Notice of Appeal appealing orders made by Magistrate Anderson on 2 October 2019. That application was supported by an affidavit and, as is required, there was Draft Notice of Appeal, being the Notice that the father wished to proceed on if he was granted an extension of time.
That application first came before me on 6 December 2019, and at that time I indicated that, on the basis of the evidence presented by the father, he had provided a satisfactory reason as to why the Notice of Appeal was not filed in this Court within the requisite 28 day period. That, though, is not the only factor which needs to be addressed in the context of an application for an extension of time. It is also necessary to look at the prospects of success of the appeal, and in that regard, the grounds of appeal in the Draft Notice of Appeal presented by the father were incompetent. Those grounds of appeal were as follows:
1. So I can represent myself and be open to a fair judgement (sic).
2. So a Magistrate can hear all of the facts and not just one side.
3. So there can be a fair division of marital property.
Given that, I indicated to the father that that would be fatal to his application for an extension of time. The authorities are quite clear, that for the prospects of success to be, in effect, determinative of an application for an extension of time, it needs to be plain that the appeal has no chance of success. That was readily apparent with the Draft Notice of Appeal relied on by the father.
However, at the father’s request, I adjourned the matter to today to enable him to file an alternative Notice of Appeal, and for that alternative Notice of Appeal to be considered. On 7 January 2020 the father filed his alternative Notice of Appeal.
I am told today that the sealed document was not served upon Ms Sabberton (“the mother”) or her solicitors, but they received an unsealed copy of that Notice of Appeal.
In any event, the matter was due to be heard again today, as I have indicated. However, yesterday the Court was advised by the father that he would not be able to attend the hearing today given that he, as I understand he described it, would be on a plane flying home to Perth from wherever he was at the time. And, as I further understand it, the father requested that the matter be delayed and heard later on this day than its appointed time. That information was brought to my attention and I requested the Appeal Registrar to advise the father that it was not possible to change the time of the hearing, and that the matter would proceed at the appointed time, namely, 9:00am on 30 January 2020.
I am further informed that having been informed of that, the father responded by saying that, and I quote from his email, “I am not attending anyway”, and that is the case. He has not appeared, and I have determined to proceed with the matter, it being his application, in his absence.
Given the orders that I made on 6 December 2019, the father was well aware of and had ample notice of the hearing today, and could have made an application for an adjournment at an earlier time, which may very well have been accommodated. In any event, in my estimation, having heard the father on 6 December 2019, I am not persuaded that anything that he could say in support of his application today would change the view that I have reached in relation to this matter, specifically because the issue that concerns me now, is whether the fresh Notice of Appeal contains competent grounds of appeal which, on their face, have a reasonable chance of success.
What I propose to do is, given the time constraints that I am under this morning in terms of the matters that are listed, leave my reasons at that point and make an order that the application be dismissed, and I will provide my further reasons in relation to that order in due course.
I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland J delivered on 30 January 2020.
Associate:
Date: 21 February 2020
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