WALKER & PAGE
[2017] FamCAFC 118
•14 June 2017
FAMILY COURT OF AUSTRALIA
| WALKER & PAGE | [2017] FamCAFC 118 |
| FAMILY LAW – APPEAL – Interlocutory orders appealed – Leave is required to appeal such orders – No leave sought or given – Appeal dismissed FAMILY LAW – APPEAL – Application to reinstate appeal – Appeal deemed abandoned due to failure to file a draft Appeal Book Index in time – No adequate explanation for the delay – Notice of Appeal does not disclose appealable error – Application dismissed |
| Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Walker |
| RESPONDENT: | Ms Page |
| FILE NUMBER: | PTW | 2156 | of | 2015 |
| APPEAL NUMBERS: | WA | 16L | of | 2016 |
| WA | 24L | of | 2016 |
| DATE DELIVERED: | 14 June 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray ACJ |
| HEARING DATE: | 14 June 2017 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 25 October 2016 |
| LOWER COURT MNC: | [2016] FCWAM 222 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The appeal WA 16L of 2016 be dismissed.
The Application in an Appeal filed 3 May 2017 seeking reinstatement of appeal WA 24L of 2016 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 Walker & Page 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Numbers: WA 16L of 2016
WA 24L of 2016
File Number: PTW 2156 of 2015
| Mr Walker |
Appellant
And
| Ms Page |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 22 August 2016, Mr Walker filed a Notice of Appeal (WA 16L of 2016), by which he challenged procedural orders made in the Magistrates Court of Western Australia by Family Law Magistrate Osborn on 25 July 2016. In these reasons, I will refer to Mr Walker as “the husband”.
Although the Notice of Appeal indicated that leave to appeal was not being sought, leave was required because the orders the subject of the appeal were interlocutory. I will refer to this appeal as the “interlocutory appeal”.
On 27 October 2016, the husband filed a Notice of Appeal (WA 24L of 2016) by which he sought leave to appeal against further orders made by Family Law Magistrate Osborn on 25 October 2016. As the orders made on this occasion were more substantive, I will refer to this appeal as the “substantive appeal”.
The respondent has advised the court staff by telephone this morning that she does not wish to participate in the hearing today but wishes to be informed of the outcome. I will refer to the respondent as “the wife”.
The orders made on 25 October 2016:
·dismissed an interlocutory application filed by the husband on 10 March 2016;
·ordered the husband and the wife to take all necessary steps to cause two properties in Queensland to be listed for sale by private treaty;
·provided for the distribution of the proceeds of sale in payment of outgoings, including the amount outstanding on the mortgages, with the balance to be held in a joint account pending further order;
·gave liberty to apply in relation to the distribution of the proceeds; and
·transferred the proceedings to the Federal Circuit Court in Brisbane.
Background
The following background is seemingly uncontroversial.
The parties commenced a relationship in 2000, were married in 2002 and separated in either 2009 or 2010. For the duration of their relationship they lived in Queensland. They were divorced in April 2013.
The husband filed proceedings in the Family Court of Western Australia on 24 April 2015, having moved to live here after the marriage ended. The application sought an equal division of the parties’ property on the basis that the orders would be particularised once discovery had been given. Leave was also sought to file the application for property settlement out of time.
On 11 June 2015, the wife filed her response in which she sought that the application for leave to proceed out of time be dismissed or, alternatively, that specified orders be made dealing with the parties’ property. The wife also sought the transfer of the proceedings to the Federal Circuit Court of Australia at Brisbane, and that the parties attend mediation.
On 11 August 2015, an affidavit was filed by the husband’s psychiatrist deposing to the fact that the husband had for many years suffered from significant anxiety and depression, although he had last seen him in May 2013.
On 13 October 2015, orders were made by consent granting the husband leave to bring property proceedings out of time and for the parties to attend mediation. The application for transfer of the proceedings was adjourned generally on the basis that the parties were going to attend mediation.
On 29 February 2016, the wife filed an affidavit in support of her application for the transfer of the proceedings. She also set out evidence suggesting that the husband had not cooperated in setting up the mediation process.
On 10 March 2016, the husband filed an Application in a Case (with a supporting affidavit) seeking inter alia:
·spousal maintenance of $1,000 a week;
·the wife to “coperate [sic] and provide full and frank disclosure”;
·the wife not to sell or use as a guarantee or transfer any money from joint accounts and joint property; and
·the proceedings remain in Western Australia.
On 11 March 2016, the parties were ordered to provide the usual documents by way of disclosure and to attend a Conciliation Conference on 13 July 2016. The proceedings were adjourned to 25 July 2016 for an interim hearing in relation to the application filed by the husband on 10 March 2016.
On 16 June 2016, the wife filed a Response (which the record indicates had been received by the court on 25 May 2016) in which she sought:
a)the dismissal of the husband’s application filed on 10 March 2016; and
b)the sale of two properties in Queensland.
On 13 July 2016, the parties attended the Conciliation Conference. Nothing was agreed and the matter was adjourned to a Readiness Hearing on a date to be advised, with orders being made for the filing of trial documents.
At the hearing on 25 July 2016, the Magistrate made the following orders which are the subject of the interlocutory appeal:
1.By no later than the close of Registry today, the [wife] … cause the [husband] … to be served with a copy of [her] Response … and supporting affidavit …
2. By no later than close of Registry on 17 August 2016, the [husband] have leave to file and serve an affidavit in response to any new issued [sic] raised by the [wife] in respect of interim issues …
3. The said proceedings otherwise be adjourned to 24 August 2016 … with an estimated hearing time of 30 minutes …
On 22 August 2016, the husband filed his Notice of Appeal against these three orders.
The substantive issues came on for argument on 24 August 2016 at which time the husband was self-represented and the wife’s counsel appeared by telephone. Her Honour reserved her decision, which was handed down on 25 October 2016, at which time she made the orders which I have already outlined.
The progress of the appeals
I turn now to outline the progress of the appeals, or more correctly the lack of progress.
The interlocutory appeal
On 29 August 2016, the Appeal Registrar returned to the husband stamped copies of the interlocutory Notice of Appeal and advised him of his obligation to file a draft Appeal Book Index. The husband was informed that failure to file the index on time would result in the appeal being deemed abandoned.
The Appeal Registrar also drew attention to the fact that the husband had not sought leave to appeal and that if leave was required, and had not been sought, this “may prove fatal to the Appeal”. The husband was advised that it would be “highly desirable” for him to seek legal advice in relation to this aspect of the matter. The husband was also advised that if events overtook the utility of the appeal, he should file a Notice of Discontinuance.
Given the nature of the orders, the Appeal Registrar informed the husband by letter dated 13 September 2016 that the Magistrate did not propose to publish formal reasons for judgment. The husband was also informed in this letter that he was required to file a draft Appeal Book Index by 13 October 2016.
On 28 October 2016, the Appeal Registrar wrote to the husband again noting that he had not filed a draft Appeal Book Index. The Registrar also noted that he was in the process of assessing the husband’s substantive Notice of Appeal which had been filed very promptly against the orders of 25 October 2016.
The Appeal Registrar said in his letter:
It would appear to me that events have overtaken the above Appeal (WA16L/2016) and that the ‘real’ appeal now is the proposed appeal against the substantive orders made 25 October 2016, rather than the orders made 25 July 2016 which were simply procedural.
The husband was told that if he did not intend to proceed with his appeal he should consider discontinuing it and if he failed to do so, or if the draft Appeal Book Index was not filed, then the Appeal Registrar would consider himself at liberty to list the appeal before the Full Court for possible dismissal.
Although the husband has said this morning that it takes on average 17 days for correspondence from the Appeal Registrar to reach him, he responded to the Appeal Registrar’s letter of 28 October 2016 on 4 November 2016.
The substantive appeal
On 1 November 2016, the Appeal Registrar wrote to the husband advising that the draft Appeal Book Index in the substantive appeal had to be filed by 24 November 2016 and that if it was not filed by the due date it would be deemed abandoned by operation of Rule 22.13(3). In reply to correspondence received from the husband, the Appeal Registrar wrote to the husband again on 8 November 2016 advising that he was unable to grant him an extension of time in which to file the index and reiterated that if it was not filed by 24 November 2016 the appeal would be deemed abandoned.
The Appeal Registrar also pointed out in his letter of 8 November 2016 that he had provided the husband with a sample copy of an Appeal Book Index on 1 November 2016 and that so long as the husband filed some form of index by the due date, his right to continue the appeal would be preserved and the index could be later amended. The Appeal Registrar went on to say:
I urge you to prepare and submit the best draft you can at this stage on the basis that it can be enhanced later once you have a clearer picture of what documents might be relevant to the hearing of the Appeal by the Court.
On 23 November 2016, the husband wrote to the Registrar saying he had undergone eye surgery earlier in November 2016 and was unable to read or write due to his post-operative condition. He said he was now doing so with difficulty although in his four page letter he said that he had, in the interim, written letters of complaint to various people including both the State and Commonwealth Attorney-Generals.
On 28 November 2016, the Appeal Registrar wrote to the husband advising him that his appeal had been deemed abandoned and informing him of his right to seek to have the appeal reinstated. The letter went on to advise how such an application could be made and what should be included in the affidavit.
On 16 December 2016, a letter was received from the husband seeking to review the Registrar’s decision, seeking an extension of time and seeking the reinstatement of the appeal. On 19 December 2016, the Appeal Registrar replied, explaining how a review needed to be undertaken, the process by which an application could be made for an extension of time, and again explaining how to make an application to reinstate the appeal. The Appeal Registrar also explained that while the substantive appeal had been deemed abandoned, the interlocutory appeal remained on foot and did not require reinstatement, but that the husband should nevertheless read carefully the earlier correspondence regarding that appeal.
On 13 March 2017 (almost three months later) the court received an application from the husband seeking to reinstate the substantive appeal. On 24 March 2017, the Appeal Registrar advised the husband that he would accept the application and supporting affidavit, but would retain the documents on the file pending receipt of the Appeal Book Index.
On 3 May 2017, the husband finally wrote to the court attaching a draft Appeal Book Index. In the meantime, there had been no stay of the substantive orders.
The Appeal Registrar wrote to the husband on 4 May 2017 acknowledging receipt of the index, which he said left “much to be desired” but would suffice for now. On this basis, the Registrar formally accepted for filing the application seeking reinstatement of the substantive appeal.
Notwithstanding the husband’s advice that the court has not informed him of the hearing today, and that he only found out about it by viewing information on the Commonwealth Courts Portal, the file discloses that the Appeal Registrar had written to the husband on 12 May 2017 advising that both appeals were listed before me today.
On 29 May 2017, the Appeal Registrar wrote again to the husband, this time in response to correspondence in which the husband had enclosed an application seeking reinstatement of the interlocutory appeal. The Registrar advised the husband that the interlocutory appeal had not been dismissed or deemed abandoned and did not require reinstatement, but advised the husband that it had been listed for hearing before me today in conjunction with the application seeking to reinstate the substantive appeal.
Before proceeding further, I should mention that I have authority to dispose of both appeals today and any associated issues as I have received a delegation from the Chief Justice permitting me to exercise the powers of the Full Court.
The interlocutory appeal
This appeal challenges only procedural orders, two of which were for the husband’s benefit and the third of which gave an adjournment, which I would have also thought was for the husband’s benefit.
Whatever utility the husband ever thought his appeal might have was clearly lost as a result of the progress of the substantive matter. Equally fundamentally, as the Appeal Registrar had foreshadowed, failure to seek leave to appeal would be fatal if leave was required. As the orders were interlocutory orders, leave was required.
Leave to appeal not having been sought or given, the appeal will be dismissed.
The substantive appeal – application for reinstatement
The husband seeks to reinstate the substantive appeal which was deemed abandoned as a result of his failure to file the Appeal Book Index. The correspondence to which I have referred shows that the husband was given more than ample notice of his obligation to file the index. He was also given significant assistance by the Appeal Registrar, who had not only provided the husband with a precedent, but also pointed out that any form of index would suffice on the basis it could be improved later.
The husband did not take the Appeal Registrar’s advice and failed to file the draft index until many months after it was due, by which time the substantive orders were in place and the proceedings had been transferred to a court in another state. The husband nevertheless has the right to seek to have the appeal reinstated and this is the substantive matter with which I am concerned today.
The husband is effectively seeking an extension of time in which to file his Appeal Book Index. The principles associated with such applications are well‑know and do not require reinstatement. In my view, there are two fundamental issues that should be considered here: whether the husband has provided an adequate explanation for the delay and whether the proposed appeal has any merit.
Reasons for delay
In his submissions today, the husband pointed to four matters to explain his delay.
First, he relied upon his poor mental health and in particular his anxiety and depression. As I have mentioned, there is a report from the husband’s psychiatrist before the court and the husband has also referred to information from other health professionals which establishes that he faces challenges with his mental health, some of which were demonstrated in his presentation in court today. I have no doubt the husband has a significant mental health issue.
The second matter upon which the husband relied was the fact he has no assets. He did acknowledge that he had received $380,000 from his mother’s estate but, due to his own actions, that money is now, to use his expression, “locked up” in superannuation and he cannot access more than 10 per cent annually. He claims he has exhausted all of his funds. This is a significant consideration because the husband clearly would have benefited greatly from receiving legal advice during the course of these many months while he has been struggling with the procedures relating to the conduct of an appeal.
The third matter on which the husband relied was his eye operation, which effectively incapacitated him for a period of three weeks at what was, I accept, a critical point in the appeal process where he should have been attending to the preparation of the Appeal Book Index. I note however that the husband had adequate time to prepare the index prior to his eye operation. Nevertheless, that is an adequate explanation for three weeks of the delay.
The final matter on which the husband relied was his claim that on average it has taken 17 days for correspondence from the Appeal Registrar to reach him. However, examination of the record, including the dates on which the husband replied to correspondence, would indicate that the husband’s mathematics may not be entirely correct. Even if it were proven to be the case that one communication was delayed by 17 days, this would not explain the inordinate delay in the filing of the Appeal Book Index.
Whilst the husband does face challenges, particularly associated with his mental health and financial position, I am not satisfied that these matters, when considered together, provide an adequate explanation for the very long delay in provision of the Appeal Book Index. In saying this, I have had regard to the fact that, notwithstanding his various disabilities, the husband was able to maintain a stream of correspondence with the Appeal Registrar and numerous other authorities in the wider community, while simultaneously failing to attend to the preparation of what is a fairly simple document for which the husband had been provided a precedent.
I am therefore not satisfied there is adequate explanation for the delay. It should also be noted that the reinstatement of the appeal would cause significant prejudice to the other party in circumstances where the husband has been not properly agitating the appeal and the substantive litigation has been proceeding in another court in another state.
Merits of the appeal
In the event that I am mistaken in holding that the husband has not provided an adequate explanation for his delay, it is appropriate that I make some brief remarks in relation to the merits of the appeal.
I have considered the grounds set out in the Notice of Appeal filed 27 October 2016. Again, one must make allowances in looking at the grounds provided by a self-represented litigant who suffers from mental health issues. Nonetheless the Notice of Appeal is difficult to follow and, in many instances, simply makes complaints that do not amount to appealable error. In other instances the grounds are clearly without merit. Instead of looking at each of the proposed grounds, I think it more useful to consider the merits of the proposed appeal by reference to the Magistrate’s reasons delivered on 25 October 2016.
The first matter the Magistrate dealt with was the husband’s application for spousal maintenance of $1,000 a week. Her Honour set out the relevant legislative provision and then had (appropriately brief) regard to the evidence. The matter that likely would have stood out in her Honour’s mind was that the husband had a very large sum of money available to…
HIS HONOUR: … The record will indicate that at this point the husband began interjecting and insulting the court and was removed by the security officer.
The matter that would have stood out in the mind of the Magistrate, as it stood out in mine when reading her Honour’s reasons, was that the husband had voluntarily disposed of $380,000 available to him by placing the money into a superannuation fund which he claims he is unable to access other than at the rate of 10 per cent per annum. That matter alone would have provided adequate reason for the Magistrate to dismiss the application for maintenance, but her Honour also gave other logical and evidence-based reasons for her decision.
The second matter which troubled the husband was the failure of the Magistrate to make an order concerning disclosure by the wife. I have already recited the terms of the order sought by the husband, and it is clear it would not have been appropriate for the Magistrate to make an order in those terms. The Magistrate explained that the court had already made orders for disclosure and that absent any specific requests for disclosure and evidence in support of those requests, and given the parties’ ongoing obligation to provide disclosure in accordance with the Rules, she did not propose to make any further orders about disclosure. Again this was a perfectly appropriate exercise of her Honour’s discretion.
The next matter about which the husband complains is the order for the sale of two properties. In her reasons, the Magistrate considered the evidence and explained logically why it was appropriate for orders to be made for the sale of these properties. Although the husband said today that he was opposed to the sale, it does not appear to be controversial that at the time of the hearing neither party wanted the properties and the husband was not paying the outgoings on the properties, hence it would seem to be entirely sensible that they be sold.
The only element of this part of the husband’s complaint that may have had merit was his concern that the mortgage over one of the properties secured a loan for which he considered that the wife ought to be solely responsible. The husband also mentioned today that he has some litigation in another court concerning that issue. In the event the husband’s contention is correct, that is a matter that can be taken into account in the final determination of the property proceedings. I note also that the Magistrate gave liberty to the parties to apply in relation to the terms of her orders, and I am not convinced the husband would be prevented from seeking to revisit that issue in the event that the properties are sold prior to a final hearing.
The next issue the Magistrate decided was under a heading of “Injunctive Relief”. The husband today advised that he was not concerned about that issue.
The final matter the Magistrate was required to determine was whether the proceedings should be transferred to Brisbane. The husband today acknowledged that the case has no connection with Western Australia whatsoever apart from the fact that he has chosen to move here and file his application in a Registry as far away from Brisbane as you can get in Australia. Although he mentioned there was some issue concerning his mother’s estate and that his mother lived in Western Australia, it appears the estate has been finalised. Regardless of any relevance the estate might have to the proceedings, it does not justify the matter being litigated in Western Australia. The Magistrate set out very clearly all of the reasons why it would be appropriate for the matter to be heard in Queensland, and her decision was well within the proper exercise of her discretion.
The husband, to use the expression I used earlier this morning, throws allegations around like confetti. I consider it proper, before concluding these reasons, to record that one of his allegations is that the Magistrate must have had some secret communication with the wife or her advisers for her Honour to have known that he had returned to Queensland to participate in one other piece of litigation. As I pointed out today, the Magistrate was aware of that because the information was contained in an affidavit. When I put this to the husband this morning, he obfuscated and glossed over the obvious fact that he ought to have known from where the Magistrate obtained her information.
For all of those reasons, the application for the reinstatement of the appeal will be dismissed.
The formal orders of the court therefore are:
1. The appeal WA 16L of 2016 be dismissed.
2. The Application in an Appeal filed 3 May 2017 seeking reinstatement of appeal WA 24L of 2016 be dismissed.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Thackray delivered on 14 June 2017.
Associate:
Date: 6/7/17
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