WALDON & KIPLEY

[2017] FamCAFC 114

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY [2017] FamCAFC 114

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appellant challenging a costs order and an order dismissing his application for the primary judge to “review” his own order – Alleged lack of procedural fairness – No error established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Appellant wholly unsuccessful – Appellant to pay costs.

Family Law Act 1975 (Cth) s 117(2A)

APPELLANT: Mr Waldon

RESPONDENT: Ms Kipley

FILE NUMBER: HBC 246 of 2012

APPEAL NUMBER: SOA 57 of 2014

DATE DELIVERED: 19 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Strickland & Ryan JJ

HEARING DATE: 19 May 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 14 August 2014

LOWER COURT MNC: [2014] FamCA 728

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Fitzgerald

SOLICITOR FOR THE RESPONDENT: FitzGerald and Browne Lawyers

Orders

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $2,000 within 28 days of the date of this order.

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 Waldon & Kipley 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 57 of 2014
File Number: HBC 246 of 2012

Mr Waldon

Appellant

And

Ms Kipley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

1. Before the Full Court for determination today is the Notice of Appeal filed on 2 September 2014 by the appellant, Mr Waldon, (“the husband”). 

2. The respondent, Ms Kipley, (“the wife”), opposes the appeal. 

The Appeal Proceedings

1. The appeal has had a chequered history.  The husband has been self‑represented throughout and has had to overcome a number of procedural hurdles that resulted in the appeal being deemed abandoned.  Recognising, however, his status as a self-represented litigant, and in view of the position adopted by the wife, the appeal was reinstated so as to ensure the husband was given every opportunity to advance what is clearly a very deep grievance that he feels in relation to the underlying issue; the resolution of property settlement matters between him and his wife after a long marriage.

2. At the outset of the hearing, there were eight grounds of appeal.  However, over objection, we struck out Grounds 4, 5, 6 and 8 on the basis that they did not disclose any appealable error.  The remaining grounds, had the husband been legally represented, would also have been struck out because they too did not disclose appealable error.  However these grounds were not quite as scandalous or irrelevant as those that were struck out and we therefore permitted them to remain on the record so as to give the husband a fair opportunity to explain how they might reveal error on the part of the primary judge.

3. In preparing for the appeal today, we have had the benefit of considering the grounds of appeal, the husband’s submissions filed on 9 September 2016, and the submissions of counsel for the wife filed on 31 October 2016.  Having heard from the husband about what he perceives to be error by the primary judge, we did not consider it necessary to hear from counsel for the wife, especially as we have the benefit of his written submissions. 

4. Before discussing the grounds of appeal, it is important first to provide some background to the orders the subject of the appeal.         

Background

1. The first significant matter in the chronology is the consent orders made on 5 January 2012 dealing with the division of property between the husband and wife following the breakdown of their marriage.  

2. In March 2013, the husband applied to set aside the consent orders.  This came before Benjamin J in April 2014, and on 19 May 2014 his Honour summarily dismissed the application. 

3. Rather than appealing his Honour’s order, on 17 June 2014 the husband filed an application seeking, among other things, for his Honour to “review” his decision.  The application came before Benjamin J in August 2014.  His Honour delivered reasons on 14 August 2014 explaining why he was unable to grant the relief sought.

4. His Honour also had before him the wife’s application concerning the costs of the proceedings instituted in March 2013.  His Honour also needed to deal with an extant injunction, restraining the husband from encumbering or disposing of a property.  Finally, his Honour had to determine what was to happen to an amount of $100,000 that was being held in a trust account.

5. As well as dismissing the application for a “review”, his Honour ordered the husband to pay the wife’s costs of the proceedings, but declined to order that they be calculated on an indemnity basis as the wife requested.  His Honour also set aside the injunction, and made an order for the husband to receive the $100,000 in the trust account. 

6. It is these orders of 14 August 2014 which are the subject of the husband’s appeal.  As Strickland J has pointed out during argument, the husband wanted to challenge the order of 19 May 2014, but he was out of time and his efforts to have the time extended were unsuccessful.  Accordingly, there is no properly constituted appeal against that earlier order.

7. I now turn to the grounds of appeal. 

Ground 1

1. The first ground is an attempt by the husband to challenge the dismissal of the husband’s application to “review” the earlier order for summary dismissal.

2. The difficulty for the husband in advancing this ground is that the law provides a process for challenging orders which does not permit a judge, save in unusual circumstances that do not exist here, to review his or her own order. 

3. Nothing the husband advanced today explained how his Honour erred in concluding that he did not have the power to review his own decision.  Accordingly there is no substance in Ground 1.

Ground 2

1. As explained by the husband today, Ground 2 constitutes a complaint about Order 4(a) which required the husband to pay the wife’s costs of that part of the proceedings below by which the husband had sought to challenge the consent orders.  The husband’s argument, repeated on a number of occasions, was simply that each party should have borne their own costs. 

2. It is the case, as his Honour well knew, that the Family Law Act 1975 (Cth) provides that each party will bear their own costs unless there are circumstances that make it just to depart from that position.  His Honour set out the relevant law and explained why, on this occasion, there should be departure from the position that each party should bear their own costs.  One of the primary bases upon which his Honour made that ruling was that the husband had been wholly unsuccessful.

3. The primary judge had a wide discretion to determine who should meet the costs of the litigation.  It is only in unusual circumstances that the Full Court will intervene, and it would do so only if the judge had made some error of principle, or had made an error in a significant finding of fact.  Nothing advanced by the husband today indicated that his Honour had erred in principle or that there was any other error in his approach.  With respect to the husband, it was almost inevitable, given the nature of the proceedings, that his Honour would make the costs order that he did.  The wife does not challenge the decision that those costs should only be awarded on a party/party basis.

4. In his written submissions, which he endeavoured to justify today, the husband made scandalous allegations concerning the conduct of others involved in the proceedings.  Even if there were merit in these allegations, which there would appear not to be, they do not sound in any error on the part of the judge.

5. Accordingly, there is, in my view, no substance in Ground 2. 

Ground 3

1. Turning, then, to Ground 3.

2. After hearing the husband’s argument concerning this ground, one again appreciates the depth of his grievance about the orders that were made by consent in 2012.  However it is not possible, for reasons already explained, for the husband to use this appeal to attack the underlying settlement. 

3. This ground must therefore be confined to the way the primary judge dealt with the property issues in the orders of 14 August 2014.  Therein lies the fundamental difficulty for the husband, since the injunction restraining him from dealing with property was discharged, and the only remaining money, the $100,000 in the trust account, was given to him.

4. For those reasons there is also, in my view, no merit in Ground 3.

Ground 7 

1. Ground 7 was incomprehensible, but the husband has attempted to explain what he understands it to mean.  Having heard his explanation, it is apparent that the complaint also concerns the consent orders and the division of property which the husband now considers to be unjust.  For the reasons that have been given, it is not available to the husband to challenge the settlement. 

2. The only matter that concerned me in relation to this ground was the suggestion that there had been a denial of natural justice.  It was important to hear the husband to ensure that he had not, in fact, been denied natural justice in relation to the order that is the subject of this appeal.  However the husband was unable to take us to anything that indicated there had been any denial of natural justice in the proceedings which culminated in the order made on 14 August 2014. 

3. Accordingly, there is also no merit, in my view, in Ground 7. 

4. Having found no merit in any of the grounds, I would dismiss the appeal.

Recorded, not transcribed

1. Strickland J has drawn to my attention to one other matter: namely that the Registry has recently received a document from the husband entitled “Application in an Appeal (Not Intended to be Served)” together with an unsworn, unsigned affidavit and a set of Contentions in an Appeal, again noted “Not Intended to be Served”. 

2. We have not given the husband any opportunity to agitate that matter today, and he has not himself raised it but, out of an abundance of caution, it is worth noting that it appears the objective was for the Full Court to have before it two more Appeal Books.  The background,  as I understand it, is that, at an earlier stage, and in purported compliance with a requirement to file Appeal Books, these documents were provided to the Appeal Registrar, but they were rejected – properly, in my view, since they had been heavily annotated by the husband.

3. As best I understand it, Strickland J disposed of this issue when he reinstated the husband’s appeal for the second time.  In my view, it is not available to the husband to seek to re-agitate the issue by placing before us material that was previously and properly rejected.

Strickland J

1. I agree with the order proposed by the presiding judge, and with his Honour’s reasons for that order. 

2. I wish to add some comments in relation to the two supplementary appeal books that, as the presiding judge has correctly recorded, were sought to be put before this Full Court by the husband.

3. The presiding judge is correct in the history of that matter, and I indicate that it is apparent that those supplementary appeal books contained, certainly if not all, then almost all, of the documents that have been filed in the proceedings below. 

4. This included all affidavit material, all financial statements, all applications and all responses.  In my view, the Appeal Registrar was correct in refusing to have those documents put before this Full Court given they had no relevance to the appeal that has been pursued today.  Further, as the presiding judge has said, another reason for the Appeal Registrar not permitting those documents to be before this Full Court was because of the annotations on those documents made by the husband.

5. I agree with the presiding judge that there is no basis for those supplementary appeal books to be before us for the purposes of this appeal; the documents contained therein are of no relevance to this appeal.

Ryan J

1. I agree with the remarks of the presiding judge, and those of Strickland J, and have nothing further to add.

Thackray J

1. For those reasons, the appeal will be dismissed.

Recorded, not transcribed

1. The application now before the Court is that of counsel for the wife, seeking that the husband pay the wife’s costs of the appeal which, we have been advised, amount to $2,000.  In support of the application, counsel for the wife has referred to: the financial circumstances of the parties, as detailed in his Honour’s reasons; the fact that the husband has been wholly unsuccessful; and that, at least in one part of the conduct of the proceedings relating to the contentious appeal books, the wife has been put to unnecessary expense. 

2. Notwithstanding that the legislation provides that in appeals, as well as at first instance, each party ought to bear their own costs, it also provides that the Court can depart from that position when it has regard to the matters set out in s 117(2A) of the Act. In my opinion, the fact that the husband has been wholly unsuccessful is the overwhelming reason why costs ought to be awarded. It is also true that some costs would have been unnecessarily incurred because of the manner in which the appeal was conducted.

3. As for quantum, the amount of $2,000, given the history, seems to be a remarkably small amount and, in my view, entirely appropriate.  I would order that the husband pay the wife’s costs of the appeal, fixed in the sum of $2,000, payable within 28 days.

Strickland J

1. I agree with the order proposed by the presiding judge, and with the reasons given for that order.

Ryan J

1. I also agree.

Thackray J

1. There will, therefore, be an order that the husband pay the wife’s costs of and incidental to the appeal in the sum of $2,000 within 28 days of the date of this order.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Ryan JJ) delivered on 19 May 2017.

Associate: 

Date:  3/7/17