Verbeck & Sabberton (No 2)

[2020] FamCAFC 39

FAMILY COURT OF AUSTRALIA

VERBECK & SABBERTON (NO. 2) [2020] FamCAFC 39

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the order made on 30 January 2020 should have been to dismiss the appeal on the application filed by the respondent – Where the grounds of appeal in the alternative Notice of Appeal filed by the applicant are incompetent and fail to identify any appealable error by the Magistrate – Where the appeal has no prospect of success – Where this is the second attempt by the applicant to raise competent grounds of appeal and both attempts have failed – Where a careful reading of the Magistrate’s reasons for judgment and other documents which were before his Honour confirm that his Honour made no appealable error – Notice of Appeal dismissed.

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: Adelaide

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

1. The Notice of Appeal filed on 7 January 2020 be dismissed.

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 (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 PERTH

Appeal Number:  WEA L44 of 2019
File Number:   PTW 4117 of 2016

Mr Verbeck

Applicant

And

Ms Sabberton

Respondent

REASONS FOR JUDGMENT

1. Before the court on 30 January 2020, was the Notice of Appeal filed on 7 January 2020 by Mr Verbeck (“the father”), and the Application in an Appeal filed on 23 January 2020 by Ms Sabberton (“the mother”), seeking that the Notice of Appeal “be summarily dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth)”.

2. The father failed to appear, but I proceeded to deal with the matter in his absence. In the time that I had available, I was able to deliver ex tempore reasons recording the background of the proceedings, addressing the absence of the father, and making an order that the Application in an Appeal filed on 13 November 2019 be dismissed. I indicated that I would provide my reasons for that order subsequently, and these are my further reasons.

3. Before setting out those reasons, I explain that on 30 January 2020 I overlooked the fact that the order I made on 6 December 2019, was to grant the father an extension of time to file a Notice of Appeal, and I adjourned the matter to 30 January 2020, to consider whether the alternative Notice of Appeal that he had to file by 13 January 2020, raised competent grounds of appeal. Incorrectly, I proceeded on the basis that the Application in an Appeal filed on 13 November 2019, seeking the extension of time, was still before the court, and thus, unnecessarily, I made an order that that application be dismissed. As I will explain shortly, I did so because, in my view, the grounds of appeal in the alternative Notice of Appeal were incompetent, and it could not be said that the appeal had any reasonable prospect of success.

4. The order that I should have made though, was to dismiss the appeal on the application of the respondent, given that, to repeat, I found that the appeal had no reasonable prospect of success. I will shortly make such an order for the reasons which follow, and which are the same reasons why I made the unnecessary order that I did on 30 January 2020.

5. The grounds of appeal in the Notice of Appeal filed on 7 January 2020 are as follows:

   1.There is a caveat still on the property […], put on by my former lawyer, […] which was not mentioned in the orders.

   2.The wrong legislation was used in the orders made on the 2^nd October 2019.

   3.Estimates given by the respondant (sic), Ms Sabberton were grossly over estimated.

   4Proof the respondant (sic) can be accepted by a bank to re finance the mortgage into her name, afford the repayments and service the house.

   5.[My former lawyer] hiring 2 of Ms Sabberton’s lawyers while our case was still on going through the courts, which is a conflict of interest.

6. It can be seen that these are not competent grounds. They fail to identify any appealable error by the Magistrate.

7. To explain Ground 2 though, it is not the case that the “wrong legislation was used in the orders”, the implication being that those orders were made incorrectly. In the heading of the orders, “Family Court Act 1997” appears immediately below “Family Law Act 1975”. It was incorrect to refer to the former in the heading, or indeed at all, but that is the only place where it does appear, and a plain reading of the reasons for judgment, and the order itself, demonstrate that the proceedings were duly conducted under the Family Law Act 1975 (Cth), and the orders were made pursuant to that Act.

8. Given that no appealable error is identified, it is beyond doubt that the appeal not only has no reasonable prospect of success, it has no prospect of success at all. It is also relevant that that was the second attempt by the father to raise competent grounds of appeal, and both attempts have failed.

9. Thus, the Notice of Appeal filed on 7 January 2020 must be dismissed.

10. I add for completeness that if the Application in an Appeal seeking an extension of time had still been alive, the lack of any prospect of success of the appeal would have rendered it futile to grant that application, and particularly given that that was the father’s second attempt to raise competent grounds of appeal.

11. Finally, I indicate that having carefully read the Magistrate’s reasons for judgment, and other documents which were before his Honour, I can find no error by his Honour in the orders that he made.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland J delivered on 21 February 2020.

Associate: 

Date:  21 February 2020