Waldon and Kipley-Waldon
[2013] FamCAFC 108
•24 July 2013
FAMILY COURT OF AUSTRALIA
| WALDON & KIPLEY-WALDON | [2013] FamCAFC 108 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME - DIVORCE ORDER – where the husband seeks an extension of time to file an appeal against the orders of Federal Magistrate Baker (as she then was) made 30 August 2012 – where the divorce order became final on 1 October 2012 – where s 93 of the Family Law Act 1975 (Cth) (“the Act”) provides that an appeal does not lie from that order and therefore logically there cannot be an extension of time to appeal – where the husband did not file an appeal before the divorce order took effect (s 55(3) of the Act) – where an appeal had no chance of success even had the husband been able to pursue one – application dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Waldon |
| RESPONDENT: | Ms Kipley-Waldon |
| FILE NUMBER: | HBC | 246 | of | 2012 |
| APPEAL NUMBER: | SOA | 74 | of | 2012 |
| DATE DELIVERED: | 24 July 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide via telephone link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 August 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1013 |
REPRESENTATION
| THE APPLICANT | In person |
| THE RESPONDENT: | In person |
Orders
The application in an appeal filed by the husband on 3 October 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon 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 ADELAIDE |
Appeal Number: SOA 74 of 2012
File Number: HBC 246 of 2012
| Mr Waldon |
Applicant
And
| Ms Kipley-Waldon |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in an appeal filed on 3 October 2012 Mr Waldon (“the husband”) seeks in effect an extension of time to file a Notice of Appeal against an order for divorce made in these proceedings by Federal Magistrate Baker, as she then was, on 30 August 2012, which order became final on 1 October 2012. The respondent is Ms Kipley-Waldon (“the wife”). She opposes the application.
At the hearings before the court on 13 and 27 November 2012 the husband and the wife were both self represented and made their appearances by telephone link.
On 13 November 2012 I called the matter on to express my preliminary view to the parties as to the application seeking an extension of time. During that hearing I directed the husband in particular to ss 55 and 93 of the Family Law Act 1975 (Cth) (“the Act”) and I will say more about these sections and their importance later in this judgment. I adjourned the matter to 27 November 2012 to provide the husband with an opportunity to consider what I had said, and if he thought it possible, to present argument to indicate a basis upon which his application could proceed. I also suggested to him that he seek legal advice in relation to the matter.
During the hearing on 13 November 2012, the husband also alleged that the court staff in the Hobart Registry of the Family Court had not provided him with proper advice as to the timelines for filing a Notice of Appeal. I indicated to the husband that he should consider filing an affidavit setting out precisely what he said happened between the court staff in the Hobart Registry and himself between 28 September 2012 and 3 October 2012, regarding his purported attempts to file a Notice of Appeal within time.
Unfortunately, on the adjourned hearing date the husband advised that he had decided not to seek legal advice. He did however file a document that purported to be an affidavit, but that was less than satisfactory and of little assistance. The husband used this document to make submissions rather than set out relevant factual matters that could pass for evidence. Further, of the
16 paragraphs the first 13 paragraphs dealt with generally irrelevant issues that arose prior to 28 September 2012, and only three paragraphs dealt with issues that arose post 28 September 2012, but then only up to 1 October 2012 and not thereafter. Examples of the irrelevant issues raised by the husband were the delay in the parties receiving the reasons for judgment of the Federal Magistrate and the fact that the husband had given “notice” to the wife of his intention to appeal.
Background
The parties married in 1971 and separated in 2009.
There are no children of the marriage aged less than 18 years.
On 4 April 2012 the wife filed an application for divorce.
The husband opposed the application and filed a response on 22 April 2012.
On 29 August 2012 her Honour heard the contested divorce application.
On 30 August 2012 her Honour delivered her reasons for judgment and made the divorce order.
The reasons for judgment of the federal magistrate
The Federal Magistrate commenced her reasons for judgment by providing a short introduction setting out the application and response filed by the parties, together with the affidavits relied upon, the date of marriage, the date of separation and noting that a consent property settlement order had been made on 5 January 2012.
Her Honour then addressed the evidence.
The wife regarded the marriage as over at the date of separation, namely, in 2009, and from that date she asserted that she and the husband had not resided together in the same home, nor as husband and wife, and she did not think it likely that that would ever be the case again.
The husband disputed several facts including the wife’s indication that she believed the marriage to be at an end. The husband asserted that in Christmas 2009 or 2010 the parties slept in the same bed for one night, and slept in the same unit at A for two to three nights in Christmas 2011, however there was no physical contact on either of these occasions. He then went on to say that the parties agreed to reconcile in October or November 2011, after the wife made a payment settling civil litigation that the parties were involved in. He suggested that at that time the parties entered into a verbal reconciliation agreement on the terms that on the wife’s invitation both parties would return to the marriage and cohabitation. He further suggested that the wife had breached this agreement when she commenced a relationship with another man in January 2012.
The husband indicated that he would “accede” to the wife’s application for divorce if it was granted with conditions imposed on the wife. He also submitted that the divorce ought be postponed until 7 October 2012 and
7 November 2012, “the earlier date being at the nominal 12-month anniversary of the reconciliation agreement”.
The husband cross-examined the wife but the wife chose not to cross-examine the husband.
The wife disputed that there was any reconciliation agreement and that she had ever agreed to return to the matrimonial home. She denied that the separation was “to punish the husband”, something which the husband alleged. She did agree that the parties spent one night together in S in 2009 or 2010 and again on a family holiday in 2011, and that there had been no physical contact. She could not recall there being “a reconciliation of sorts” in 2011.
Her Honour then set out the relevant law citing, ss 48 and 49 of the Act and the cases of Todd & Todd (No. 2) (1976) FLC 90-008, Falk & Falk (1977) FLC 90-247, and Lane & Lane (No. 1) (1976) FLC 90-055.
In the end result her Honour was satisfied that the parties had lived “separately and apart for a continuous period of 12 months prior to the filing of the dissolution application”. Her Honour found that the occasions when the parties had stayed overnight together was “not a resumption of cohabitation in the terms of s.50 of the Act”.
Her Honour found it “inconceivable” that the husband thought that the wife only wanted “some space from him” with that period having continued for four years, and that he was aware that the parties had separated.
In the circumstances her Honour found all of the requirements of the legislation proved, and granted the divorce order as sought by the wife.
The order made 30 August 2012
The Federal Magistrate made the following order:
THE COURT FINDS:
1.The marriage is proved.
2.The wife was at all material times domiciled in Australia.
3.The ground for the application for a divorce order – namely that the marriage has broken down irretrievably – is proved.
THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:
4.There is/are no child/ren of the marriage to whom Section 55A(3) of the Act applied.
THE COURT ORDERS:
5.A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the first day of October 2012.
Orders sought in the application in an appeal filed
3 October 2012
The orders sought by the husband in his application in an appeal were as follows:
1.An “Extension-of-Time” is sought beyond the 28 Days specified in the rules to file the Appeal Documentation and Court Book. Advice was given by your Mr [K] from the Hobart Registry (where the Divorce Application was heard on 29th August 2012) some
15 minutes prior to my intended lodgement of Appeal Documentation on Friday 28th September which was the last day for filing under the Rules and an earlier date than Baker J. who delivered a Judgement [sic] on the matter . . . . such that it could not be accepted at the Hobart Registry . . . . only at the Southern Registry in Melbourne. It has taken additional time to compile some additional seven (7) Court documents plus a “Revised Index”.Please Note: It has taken the Hobart Registry some EIGHTEEN (18) days to provide the Appellant with a Transcript Extract of eleven (11) pages . . . . . OTHERWISE THE APPEAL DOCUMENTAITON WOULD HAVE BEEN LODGED EARLIER!!!!
Relevant statute law and rules
Section 55 of the Act provides as follows:
55(1)Subject to this section, a divorce order made under this Act takes effect by force of this section:
(a)at the expiration of a period of 1 month from the making of the order; or
(b) from the making of an order under section 55A;
whichever is the later.
I note that s 55(1)(b) has no relevance here.
55(2)If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:
(a)make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or
(b)make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.
55(3)If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:
(a)at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or
(b)on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted;
whichever is the later.
Section 93 of the Act provides that “An appeal does not lie from a divorce order after the order has taken effect”.
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Discussion
The application filed by the husband effectively seeking an extension of time to file an appeal is misconceived in the circumstances of this case. As I will explain shortly, once a divorce order takes effect, s 93 of the Act provides that an appeal does not lie from that order. Here the divorce order took effect on
1 October 2012, and thus an appeal cannot be brought thereafter, and logically there cannot be an extension of time to appeal.
The gravamen of the husband’s case in fact appears to be that he had effectively filed an appeal against the divorce order, and thus the order should not have taken effect on 1 October 2012. However, that does not require this court to extend the time to appeal against the divorce order utilising
s 94AAA(10)(a) of the Act.
To put that into context. Her Honour made the divorce order in Hobart on
30 August 2012. Section 55(1)(a) provides that subject to this section any divorce order made under the Act takes effect “at the expiration of a period of
1 month from the making of the order”. Therefore, by force of s 55 of the Act the divorce order made on 30 August 2012 took effect on 1 October 2012. There can be no issue about that, and I note that the husband has not challenged that in any document that he has filed, or in any oral submission that he has made.
Section 55(2)(a) of the Act allows the court to “make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; …”, but the husband did not make an application under this paragraph. Further, had an appeal been instituted before the divorce order had taken effect on 1 October 2012, then
s 55(3) provides that, subject to any order that may be made, the divorce order takes effect at the expiration of a period of one month from the day on which the appeal is determined or discontinued. It is here that the real issue in the husband’s case stands or falls; in other words, did he effectively file an appeal before the divorce order took effect?
The husband sent what purported to be a “Notice of Appeal” attached to an email to the Family Law Courts Enquiry Centre at 6:55pm on 28 September 2012, well after the latest time a document could be filed, namely 4:30pm. I will not repeat all that I said about this on the last occasion this matter was before the court, but suffice to say, the document sought to be filed by the husband was not in either the form of a Notice of Appeal, or in such a form that could be filed in this court. I pointed out the defects in the document to the husband on the last occasion, and again, I will not labour the issue on this occasion. However, I need to mention item 15 of the husband’s purported affidavit filed on 22 November 2012. There the husband makes the following submission:
The Appellant respectfully concedes that this original “Notice of Appeal” document at Index A1 was incorrectly address [sic] to the “Federal Magistrates Court Southern Registry” in lieu of the “Family Court Southern Registry”
Now, if the husband is intending to suggest that that is the only problem with this particular Notice of Appeal then he has not listened to, or taken any notice of what I said on the last occasion. To repeat, it was a Notice of Appeal which simply could not be filed. Indeed to describe it as a Notice of Appeal is being far too generous. In any event, it was not in fact filed on 1 October 2012. The email was forwarded by the National Enquiry Centre to the Southern Appeals Registry to ascertain if the document would be accepted. It was not and the husband forwarded a replacement Notice and “other documentation” to the Registry by Australia Post on 1 October 2012 and/or 2 October 2012 and which was received at the court on 3 October 2012.
I observe that the replacement Notice was no better than the original document and was still not able to be accepted by the court as a Notice of Appeal, even if the timing of its receipt by the court was not a problem in itself.
Thus, in summary, at the close of business on Friday 28 September 2012 there had been no Notice of Appeal filed and as at 1 October 2012, there had been no Notice of Appeal filed. The divorce order, as is apparent from the order and certificate promulgated by the court, to repeat, took effect on 1 October 2012, in accordance with s 55(1)(a) of the Act.
Section 93 of the Act provides that “An appeal does not lie from a divorce order after the order has taken effect”, and thus that is the end of this matter. There can be no extension of time as sought by the husband after that point is reached, and accordingly, the husband’s application must be dismissed.
As I have said earlier, it was open to the husband to make an application pursuant to s 55(2)(a) of the Act which allows for a court to extend the time by which a divorce order takes effect. But such an application must be filed prior to the taking effect of the divorce order, in this instance, prior to 1 October 2012. Indeed, such an application could have been filed on 1 October 2012, but it was not.
I note at this point that even if the husband was able to be successful in his application for an extension of time, three of the five orders he seeks in his proposed Notice of Appeal filed on 3 October 2012 simply cannot be made. He seeks in order 3 that the parties jointly undertake counselling with Relationships Australia, in order 4 that a restraining order be made, and in order 5 a return of property; all orders that cannot and would not be made by an Appeal Court.
Further, order 1 seeks a stay of the “decree nisi” and the “decree absolute”, yet there is no apparent basis as to why that would be done when order 2 seeks in effect that the divorce order “be quashed”. In any event, having read her Honour’s judgment and deciphered the purported grounds of appeal that the husband seeks to rely on, I can say that the appeal had no chance of success if the husband had been able to pursue it.
This has been a farcical exercise on the part of the husband. He has chosen not to seek legal advice, even though I gave him the opportunity to do so, and importantly, he has clearly not thought through what he is attempting to achieve. The path he has chosen to follow simply goes nowhere and has been a waste of the Court’s and the wife’s time.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
24 July 2013.
Associate:
Date: 24 July 2013
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