Wheaton v Wheaton

[2005] WASCA 253

WHEATON -v- WHEATON [2005] WASCA 253

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 253
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:8/2005	Heard:	25 NOVEMBER 2005
Coram:	PULLIN JA	Delivered:	25/11/05
No of pages:	8	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	B
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Parties:	ERIC DAVID WHEATON MERLY ARIETA DELA PENA WHEATON
Catchwords:	Appeal Restraining Orders Act and Family Court Act Application for an extension of time in which to appeal Turns on own facts
Legislation:	Family Court Act 1997 (WA) Restraining Orders Act 1997 (WA) Supreme Court (Court of Appeal) Rules (WA), r 26
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHEATON -v- WHEATON [2005] WASCA 253 CORAM : PULLIN JA HEARD : 25 NOVEMBER 2005 DELIVERED : 25 NOVEMBER 2005 FILE NO/S : CACV 8 of 2005 BETWEEN : ERIC DAVID WHEATON

Applicant

AND

MERLY ARIETA DELA PENA WHEATON
Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : THACKRAY J

File No : PT 7097 of 2002

Catchwords:

Appeal - Restraining Orders Act and Family Court Act - Application for an extension of time in which to appeal - Turns on own facts

(Page 2)

Legislation:

Family Court Act 1997 (WA)

Restraining Orders Act 1997 (WA)
Supreme Court (Court of Appeal) Rules (WA), r 26

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr C P Stokes

Solicitors:

Applicant : In person
Respondent : Chris Stokes & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 3)

1 PULLIN JA: On 12 October 2004 Thackray J, in the Family Court of Western Australia, made a misconduct restraining order against the appellant. The appellant seeks to appeal against that order, but the appeal is out of time and the application now before me is for an extension of time to allow the appellant to pursue the appeal. A right of appeal lies to this Court by virtue of s 64(6) of the Restraining Orders Act 1997 (WA) and pursuant to provisions of the Family Court Act 1997 (WA). The time limited for instituting the appeal appears in the Supreme Court (Court of Appeal) Rules. Rule 26 provides than an appeal is to be instituted within 21 days of the order being made.

2 The appellant filed a notice of appeal on 24 February 2005 in this Court and, having been informed that the appeal was out of time, the appellant responded with this application for an extension. The Court has a discretion to grant an extension of time. The Court may have regard to the history of the matter, the conduct of the parties and the prospects of success in the appeal if the extension is to be granted. An explanation for the delay is necessary and, even if the delay is explained, the application should be refused if the appeal has no prospects of success. The overall question is whether justice would best be served by granting or refusing the application for an extension.

3 Before considering the grounds of appeal I note that the misconduct restraining order was made during the course of proceedings in the Family Court which involved the appellant and his wife. The proceedings had commenced on 11 October 2005 and they were concerned with appropriate parenting orders and, it appears to me, also property settlement questions. The conduct of the appellant during the proceedings was somewhat unusual. On the second day the appellant was due to return to the witness box and he declined to do so. He attempted to hand up an affidavit and he said:

"Your Honour, I'm here as the secured party and third party intervener in these proceedings and I bring forth today my claim of title to the property in question with regard to these matters. I wish - I just wish to add, your Honour, that no other party in these proceedings has come forward to produce evidence to state claim upon which my - upon which release may be granted. I do not wish to enter into an argument as to the merits contained within the facts of these proceedings and I merely ask whether anyone has a claim against me. My intention as a third party intervener is to settle and close these matters."

(Page 4)

4 His Honour indicated that he was "just a bit flabbergasted" as a result of the appellant's reference to himself as a third party intervener. He asked for an explanation and the appellant said:

"I do not wish to enter into argument as to the merits contained within the facts of these proceedings and merely ask whether anyone has a claim against me."

5 When asked whether he wanted to go back into the witness box the appellant repeated that he did not wish to enter into argument. The Judge then adjourned and, after further questioning on the resumption of the hearing, his Honour said:

"Unless I'm mistaken, Mr Wheaton doesn't wish to take any further part in the proceedings. Is that right, Mr Wheaton?"

6 The appellant replied, "That's correct." Later on that day an application was made by counsel who was appearing on behalf of the child of the marriage for the restraining order. His Honour asked whether the appellant wished to be heard in relation to the application and the appellant indicated that he did not wish to respond to it. His Honour then said:

"This is a clear case where there should be misconduct restraining orders. The evidence indicates that Mr Wheaton has already visited and/or telephoned the private residences of a number of professional people involved in these proceedings and also there are concerns in relation to the various people who have given evidence in these proceedings. Not only, in my view, does it justify orders being made under the Restraining Orders Act, it is in fact, in my view, a contempt of this Court but I propose to deal with the matter by way of restraining orders rather than have Mr Wheaton dealt with for contempt."

7 The order was then made. The protected persons included legal practitioners involved in the case and officers of the Department for Community Development. Grounds of appeal are set out in the notice of appeal and are as follows:

"(1) That the decision of the primary court is an error of mixed fact and law by reason the Appellant did not get a fair hearing after having closed the matter before the order was made. After closing, the appellant took no further part in proceedings.

(Page 5)

(2) That the decision of the primary court is an error of mixed fact and law by reason the order originated from fabricated evidence that involved allegations of misconduct and impropriety. In view of the fact proceedings with regard to this evidence had commenced elsewhere, this evidence should not have been included in the order.

(3) That the decision of the primary court is an error of fact by reason the Appellant was denied subpoena information and consequently never had the opportunity to present his case. Had this information been presented it would not have justified the order being made.

(4) That the primary court made the order for the respondent to bring the matter to the attention of Police is an error of law. Given the Respondent has a proven history for inappropriately dialing [sic] the Police 000 emergency number, the order does not consider the serious issues attached to the Respondent that affect all the parties.

(5) That the order is unsatisfactory given there is evidence to support a claim that significant financial loss affecting the parties has resulted since the primary court made the order. The reason for the parties loss is direct result of the order being an error of mixed fact and law.

(6) In addition, there is also evidence to support a claim that so long as the Respondent remains protected by the order, the parties will continue to be adversely affected.

(7) That whenever there is a child affected by an order, the over-riding consideration must be the best interests of the child. If the child affected by this order had a need or expresses a desire to have contact with the Appellant; the order will prevent such contact from occurring. In view of the fact the Respondent has committed two of her other children to become Wards of the State and desires to also alienate this child, the order does not serve the best interests of the child. The reason the order adversely affects the child is the primary court's decision is an error of mixed fact and law."

(Page 6)

8 In my opinion, none of the grounds afford any basis for an appeal against the restraining order. None of the points suggest any error was made, which is a conclusion I have reached after hearing submissions made by the appellant. The appellant's contention that he was not given a fair hearing "after having closed the matter" and when he "took no further part in the proceedings" is no basis for complaining of the order, which is in effect what ground 1 complains about. Because the appellant chose not to participate and because he chose not to make any submissions at the time when the order was made, it really precludes a complaint that he was not given a fair hearing. He was given the opportunity of having a hearing if he wished and to raise any points and he chose not to do so.

9 Ground 2 alleges that the order was based on "fabricated evidence," as to which there is no material save in one respect. During the hearing before me a reference was made to a complaint which the appellant had made to the Legal Practitioners Complaints Committee against Mrs Stokes, who was one of the protected persons. The appellant handed up some correspondence to and from the Legal Practitioners Complaints Committee and from it it appears that the complaint concerns an allegation that an affidavit of the appellant's wife, sworn on 12 August 2004, had been prepared containing false information. I assume the allegation is that of knowing it contained false information. I should add that the appellant's allegation against Mrs Stokes is just that, ie an allegation. Whether it is justified or not is for the Complaints Committee to decide. There is nothing before me which justifies the allegation.

10 There is no evidence that that affidavit was relied upon at all in making the order complained of. The misconduct restraining order appears to have related to the events during the hearing itself in October. In any event, as the respondent's counsel points out, any submissions that were to be made about the relevance of that affidavit could have been made at the time of the hearing, and no submissions were made indicating the relevance of that affidavit and none, as I say, have been made to me today which indicates how that affidavit, which related to the proceedings in the Family Court, could have borne upon the misconduct restraining order.

11 Ground 3 alleges that the appellant was denied the use of subpoenaed information and consequently never had the opportunity to present his case. This is supposed to reflect the complaint that the appellant had lost confidence in the Court. In fact, one can see that he had lost confidence in the Court, but he chose not to participate in the proceedings and in choosing not to participate, there seems to be no basis for ground 3

(Page 7)

because he was not denied the use of any information that he wished to use. He simply chose not to produce any information or make any submissions at all.

12 The other grounds appear to me to have no relevance to an appeal against the misconduct restraining order. The appellant did make some reference to ground 7 in particular and tried to explain to me why it was that that ground in some way affects the order which had been made by Thackray J. As I understand it, it is said that because the restraining order affects the appellant's access to his wife and because his wife has custody of the child, that it therefore affects the interests of the child. In fact the issue about access to the child had been dealt with in the Family Court. I was informed by the appellant that orders have been made permitting supervised access to his child, so in my view ground 7 would have no prospect of success as a ground of appeal.

13 But there is another factor, and that is that in any event there is a non-molestation injunction in place which has effect similar to the misconduct restraining order in relation to the appellant's contact with his wife. The appellant says that his main concern with this misconduct restraining order is about the effect on contact with his wife. However, while that non-molestation injunction remains in place, success on this appeal would have no practical effect.

14 The appellant informs me that the non-molestation injunction is in turn under appeal in the Family Court, but both parties have told me that that is subject to an order for security for costs and the appellant has given me the impression that he may have difficulty in raising the funds in order to provide that security, which means that that appeal is likely to be delayed in its hearing.

15 The other factor is of course that the misconduct restraining order was made in October of 2004. It is now well over a year old. It only lasts for two years. The fact is that it will expire in October of next year and if the other order which has been made in the Family Court remains in place after March, which appears to be the case, it is likely that that order is going to continue in existence for most of the rest of the time that the misconduct restraining order will remain in place. So that is a factor that I take into account. I accept that it cannot be ruled out that Mr Wheaton will in fact find some funds and allow the appeal in the Family Court to proceed. At the moment, however, every indication is that that is not likely to happen in the near future.

(Page 8)

16 In my view, for those reasons, I see that there are no reasonable prospects of this appeal succeeding. In addition, there is delay involved in the institution of the appeal. It is clear that the appellant attempted to appeal the order fairly promptly. He attempted to do so in the Family Court on 8 November 2004. By then the appeal was already out of time. One can understand a layman thinking that the matter should have gone to the Family Court on appeal, but nevertheless, he was out of time when he attempted to appeal to the Family Court. By 18 November 2004 he knew that the Family Court would not accept the appeal for filing and it was not until 24 February 2005 that he purported to institute the appeal in this Court. There was further delay in making this application.

17 I accept in relation to the latter delay that the appellant was perhaps not aware that he had to apply for an extension.

18 In my opinion, the lack of prospects of success if the appeal were allowed to proceed, and the fact that there has been no satisfactory explanation for the delay between 18 November 2004 and the filing on 24 February 2005 in this Court, leads me to the conclusion that I should dismiss the application for an extension of time. That is the order I make.