ANA & ANA
[2010] FamCAFC 173
•9 September 2010
Family Court Of Australia
| ANA & ANA | [2010] FamCAFC 173 |
| FAMILY LAW - APPLICATION IN AN APPEAL – Application to file a notice of appeal out of time in relation to the judgment of the Federal Magistrate – Where there is an allegation of non-disclosure – Where the alleged evidence that was not disclosed is entirely speculative and would probably have no effect on the outcome of the proceedings – Where the public cost has been enormous – Where the future costs may be enormous – Where having regard to the history of the proceedings, and the nature of the issue raised by the Wife, which she clearly articulated, the approach of the Federal Magistrate was within her discretion – Where no procedural unfairness was caused to the Wife pursuant to the principles in Aon Risk Services – Application dismissed FAMILY LAW - APPLICATION IN AN APPEAL – Application to reinstate abandoned appeal – Appeal deemed abandoned pursuant to r 22.13(2) – Where the appeal books failed to be filed in time – Principles in Gallo v Dawson (1990) 93 ALR 479 applied – Where before the appeal was deemed abandoned the Wife filed an application seeking an extension of time to file the appeal books – Where there would be an injustice caused to the Wife if such relief was not granted to her – Where any prejudice that may be caused to the Husband is outweighed by the prejudice that may be caused to the Wife – Application to reinstate allowed |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Arthurman & Arthurman [2008] FamCAFC 188 Bemert & Swallow [2010] FamCAFC 100 Gallo v Dawson (1990) 93 ALR 479 |
| Family Law Act 1975 (Cth) Federal Magistrates Court Act 1999 (Cth) |
| APPELLANT WIFE: | MS ANA |
| RESPONDENT HUSBAND: | MR ANA |
| FILE NUMBER: | MLC | 1367 | of | 2008 |
| APPEAL NUMBER: | SA | 87 | of | 2009 |
| SA | 22 | of | 2010 |
| DATE DELIVERED: | 9 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 7 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 September 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 716 |
REPRESENTATION
| THE APPELLANT: | Self-Represented |
| THE RESPONDENT: | Self-Represented |
Orders
The application filed by the Wife on 31 March 2010 seeking an extension of time to file a notice of appeal against the orders of 28 January 2010 be dismissed.
Appeal No. SA 87 of 2009 by the Wife against the orders of 4 September 2009 be reinstated.
A further procedural hearing of Appeal No. SA 87 of 2009 be conducted pursuant to r 22.15 of the Family Law Rules 2004 (Cth).
The procedural hearing in order 3 hereof be expedited.
IT IS NOTED that publication of this judgment under the pseudonym Ana & Ana is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 87 of 2009
SA 22 of 2010
File Number: MLC 1367 of 2008
| MS ANA |
Appellant Wife
And
| MR ANA |
Respondent Husband
Reasons For Judgment
Introduction
Before me for hearing are two applications in an appeal filed on 31 March 2010 by Ms Ana (“the Wife”). The Respondent is Mr Ana (“the Husband”).
On 4 September 2009 Federal Magistrate Riley pronounced judgment in contested property, spousal maintenance and child support proceedings between the Husband and the Wife.
On 2 October 2009 the Wife filed a notice of appeal against the orders of 4 September 2009. On 16 November 2009 the Wife filed an amended notice of appeal.
On 21 December 2009 the Wife filed an application seeking relief pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). On 7 January 2010 the Wife filed an amended application. On 28 January 2010 the Federal Magistrate dismissed the application by the Wife seeking orders pursuant to s 79A of the Act.
In summary, what the Wife is seeking is to file a notice of appeal out of time in relation to the judgment of the Federal Magistrate pronounced on 28 January 2010. If this application is granted the Wife then seeks that the hearing of the notice of appeal against the orders of 4 September 2009 be adjourned until after the hearing of the appeal against the order of 28 January 2010. The Wife also seeks an extension of time to file the appeal books in relation to the appeal against the orders of 4 September 2010 that on 17 February 2010 were ordered to be filed by 1 April 2010.
Background
To understand the two applications before me for hearing it is necessary to consider some of the relevant history.
The Husband was born in 1957 and the Wife was born in 1971.
The parties were married in August 2005 and finally separated in October 2007. There is one child of the relationship who was born in February 2006.
As I have already observed, on 4 September 2009 the Federal Magistrate pronounced judgment in relation to contested property, spousal maintenance and child support proceedings between the Husband and the Wife and her Honour delivered comprehensive reasons for judgment comprising 354 paragraphs.
The trial before the Federal Magistrate continued for 10 days over three months between 23 April 2009 and 11 June 2009. At the hearing both parties were unrepresented. I observe that in her reasons for judgment the Federal Magistrate found at [41] to [44] that both parties were unreliable witnesses.
The Federal Magistrate observed at [49]:
The parties agreed on the value of some of their assets and who should keep them. In relation to the farm, the husband agreed that the wife should keep it for herself and [the child] to live in, provided that she gave him an appropriate amount of money. The husband recognised that he could not afford to keep the farm himself. After much argument, the agreed matters were as follows:
ITEM VALUE RETAINED BY
[Property M]$750,000Wife
Old Audi motor vehicle$0Wife
Jewellery (specified)$2,950Wife
Scuba diving gear$1,150Wife
Total for wife $754,100
Husband’s superannuation$3,000Husband
Mack truck$80,000Husband
Ford truck$16,000Husband
Ford Econovan $1,500Husband
Audi motor vehicle $12,000 Husband
Honda motorbike$1,500Husband
Paraglider$5,000Husband
Tool$10,000Husband
Shares $4,500 Husband
Total for husband $133,500
TOTAL: $887,600
The Federal Magistrate at [50] to [92] dealt with various issues about the extent and value of the assets of the parties and found at [93] that the net assets had a value of $709,800.00 which comprised:
ITEM VALUE RETAINED BY
[Property M]$750,000Wife
Old Audi motor vehicle$0Wife
Jewellery $2,950Wife
Diamond ring $25,000 Wife
Scuba diving gear$1,150Wife
Home contents $9,000 Wife
Honda motor vehicle $5,000 Wife
Cheques: $4,500 & $1,700 $6,200 Wife
Funds from loan account $40,000 Wife
Interest payments from parents $9,800 Wife
Japanese bank account $17,500 Wife
Total for wife $866,600
Husband’s superannuation$3,000Husband
Shares $4,500 Husband
Company$78,000Husband
Ford Econovan $1,500Husband
Audi motor vehicle $12,000 Husband
Honda motorbike$1,500Husband
Paraglider$5,000Husband
Tools$10,000Husband
Boat $5,000 Husband
Home contents $1,000 Husband
Superannuation owed $4,000 Husband
Truck repairs $27,400 Husband
Funds from loan account $27,000 Husband
Bank of Queensland $1,500 Husband
Total for husband $181,400
TOTAL: $1,048,000
LESS LIABILITIES: ($338,200)
NET ASSET POOL: $709,800
The Federal Magistrate at [94] to [192] dealt with the matters of contribution being the matters in s 79(4)(a), (b) and (c) of the Act. Her Honour set out at [139] the contributions the Wife made at the date of marriage and at [140] the contributions of the Husband at that time. Her Honour found at [141] that “the initial contributions of the parties were roughly 64% in favour of the wife and 36% in favour of the husband”. Her Honour found at [193] that the contribution based entitlements of the parties should be assessed as to 67 per cent to the Wife and 33 per cent to the Husband.
The Federal Magistrate at [194] to [321] dealt with the “other factors” being the matters in s 79(4)(d), (e), (f) and (g) of the Act and found at [322] that there should be “a further allowance of 3%” in favour of the Wife.
The Federal Magistrate found:
323. In my view, it would be just and equitable to order a total settlement of 70% of the asset pool to the wife and 30% to the husband. This will mean that the wife will receive about twice as much as the husband from their joint asset pool. This reflects her greater contributions and her responsibility for being [the child]’s principal carer into the future, as well as her greater earning potential. The wife will retain the farm and the husband will retain some cash and the company and its assets.
324. In arithmetic terms, the net asset pool is $709,800. 30% of that is $212,940. The husband will retain assets of $181,400. The difference is $31,540. The wife will have to pay the husband that amount and take over the mortgage on the farm. She will then be able to keep the farm. That will be to [the child]’s benefit.
325. I consider that the wife should be given 45 days to organise her finances. If the wife is unable to pay the husband the requisite amount and refinance the farm within that time, the farm will have to be sold. There will be orders accordingly.
The Federal Magistrate at [326] to [330] dealt with the spouse maintenance application and found that she was satisfied that the Wife could support herself adequately and thus the application of the Wife would be dismissed.
The Federal Magistrate at [331] to [354] dealt with child support and found:
348. I consider, taking into account all the matters that the CSAA requires me to take into account, that it would be just and equitable as regards [the child], the wife and the husband, and otherwise proper, to make an order varying the husband's child support income to $800 per week for the period 1 May 2008 to 10 December 2008, and varying the husband's child support income to $927 per week for the period 11 December 2008 to 31 July 2009. This is based on the husband’s own admissions about his income in his financial statements. I will leave it to the CSA to calculate the amount of child support payable by the husband.
349. I do not consider that it would just and equitable or otherwise proper to make orders with an effect beyond 31 July 2009. It would be undesirable to attempt to predict the husband’s future earnings, especially as his contract with the [B Company] is due to expire shortly, and as there is some uncertainty in the building industry. (emphasis added)
Her Honour at [350] declined to make a lump sum order for past and future child support.
The final orders of the Federal Magistrate were as follows:
(1) As within 45 days of these orders:
a)the husband transfer to the wife all of his right, title and interest in the property known as [property M] in the State of Victoria (“the property”);
b)simultaneously, the wife provide to the husband:
i)discharge of any mortgage over the property;
ii)$31,540.
(2) Each party retain the items described in paragraph 92 of the reasons for decision herein as items that party is to retain and forego any claim he or she may have to the items that the other party is to retain.
(3) In the event that the wife fails to comply within order 1(b) hereof, the property forthwith be sold out of court with the proceeds of sale to be applied:
a)firstly, to the discharge of any mortgage over the property;
b)secondly, to the proper costs and expenses of the sale of the property; and
c)thirdly, to the husband and wife in such sums as will result in the wife receiving 70% and the husband receiving 30% of the asset pool, after taking into account the items that each party is to retain in accordance with order 2 hereof.
(4) Each party have liberty to apply in relation to the sale, if any, of the property.
(5) The wife’s application for spousal maintenance be dismissed.
(6) The husband’s child support income amount for the period 1 May 2008 to 10 December 2008 be varied to $800 per week.
(7) The husband's child support income amount for the period 11 December 2008 to 31 July 2009 be varied to $927 per week.
In written submissions filed on 4 May 2010 the Wife contended that approximately around the time of judgment she ascertained that the Husband was working a new contract for his business. The Wife contended that she does not know who employs the Husband, which trucks he has employed, the number of trucks, the duration of the contract and the income. The Wife contended that the Husband failed to disclose the new contract during the trial. It is this alleged non-disclosure that the Wife relied upon to support her subsequent application pursuant to s 79A of the Act.
As I have already observed, on 2 October 2009 the Wife filed a notice of appeal (SA 87 of 2009). The Wife sought to appeal all of the orders of 4 September 2009. In the notice of appeal there are 108 grounds of appeal. At least 69 grounds of appeal relate to the property settlement order.
In the event that the appeal was successful the Wife sought the following orders:
1. That the asset pool, after appropriate re-defining, is divided at the ratio of 82% (Wife) and 18% Husband.
2. That until the Wife completes her education and/or establishes herself in an employment that will appropriately make her able to support herself and the child, spousal maintenance is ordered.
3. That retrospective spousal maintenance is ordered for the period of December 2008 to date, and, as proposed by the Husband, offset against the Wife’s assets of $40,000 retained past separation.
4. That outstanding child support (for the period of May 2008 to the date the orders are made, currently in the sum of $11 250) is paid by the Husband within 30 days of the making of the order.
5. That monthly child support of $1000 is ordered. That within 14 days of the making of such order the parties are to enter a binding agreement in this regard, and submit such to Child Support Agency. That the amounts are to be collected by Child Support Agency.
6. That the Husband is to share equally medical, pharmaceutical, dental and optical expenses for the child, these being invoiced to him by the Wife on the last day of each calendar month and paid on the seventh day of the following month.
In the written submissions filed on 4 May 2010 the Wife contended that the transcripts “alone amount to a trollyload of volumes” and “[t]here are over a thousand pages in other material filed” in court. The Wife contended that the “cost of obtaining the transcripts alone exceeds” $22,000.00.
On 11 October 2009 the Federal Magistrate made an order granting a stay of the orders of 4 September 2009.
On 30 October 2009 the Wife filed an application in an appeal in which she sought the following orders:
1. That the following evidence is adduced
a)statement given to Victoria Police by the Applicant/Appellant on 28 September 2007 regarding incidents recorde [sic] on the “tape”
b)statement from Centrelink confirming that the Wife/Appellant appropriately disclosed her previous countries of residence upon application for benefits in December 2007
c)a page from VICROADS website confirming that it is necessary to have “a strong pfoof [sic] of residency” to obtain a Victorian driver’s license.
d)updated statement from the Wife’s bank account in Japan.
e)evidence of the Wife’s tax liability outstanding in Japan.
2. That the Husband files an updated Profit and Loss Statement for the child support application and that the Profit & Loss Statement is adduced as post-trial evidence.
3. That the Husband discloses the new(current) contract/contracts for his business and that the contracts are adduced in evidence.
The application was supported by an affidavit sworn by the Wife on 30 October 2009 which has 58 paragraphs.
On 16 November 2009 the Wife filed an amended notice of appeal. The Wife sought leave to appeal against the child support orders. However, there are now 124 grounds of appeal.
On 18 December 2009 the Chief Justice made an order that the appeal be heard by the Full Court.
On 21 December 2009 the Wife filed an initiating application in the Federal Magistrates Court. The Wife sought the following final and interim orders:
1. That within 24 HRS of the making of the orders the Respondent signs all documents necessary to postpone repayments of the mortgage held in joint names in Westpac until 28 April
or
2. That the Respondent makes repayments of the mortgage until the appeal is heard.
The Wife swore an affidavit on 21 December 2009 in support of the application.
On 7 January 2010 the Wife filed an amended initiating application in the Federal Magistrates Court. The Wife sought the following final orders:
1. That orders to stay made by Her Honour FM Riley on 18 October 2009 are varied to include:
“That the parties sign immediately all documents necessary to postpone mortgage repayments of mortgage held in joints names with Westpac”
2. That orders made by Her Honour FM Riley on 2 September 2009 (final property orders) be set aside on grounds of Section 79(A).
The Wife also sought the following interim orders:
1. That the Respondent files Response to the Application (re: order sought #2) within 21 days.
On 28 January 2010 the Federal Magistrate dealt with the applications filed by the Wife including the application filed on 7 January 2010 seeking orders pursuant to s 79A(1)(a) of the Act.
During the hearing before the Federal Magistrate on 28 January 2010 the Wife contended that for the purposes of the previous trial before the Federal Magistrate, the Husband had contended that there would be no contract for the use of his trucks and yet at that time he was negotiating a new contract and was preparing a truck for this purpose. The Wife contended that the contract was the value of the business (Transcript, 28 January 2010, pp 4 to 5).
During the hearing on 28 January 2010 the Husband admitted that he had “another contract” but that it was not transferable and the value of the business is only represented by the value of the trucks (Transcript, 28 January 2010, pp 4 to 5).
During the hearing on 28 January 2010 the Husband contended that at the time of the previous hearing the Wife had possession of the contract and the Wife contended that it was to expire in July 2009. The Wife contended that the contract was with a solicitor and this was denied by the Husband (Transcript, 28 January 2010, p 6).
During the hearing on 28 January 2010 the Wife contended that the Husband should have disclosed the “pending contract, or the fact that the truck [was] being prepared for a pending contract” as it may have been relevant to the “long term income” of the Husband which, in turn, was relevant to the “capacity to earn, and also to child support” (Transcript, 28 January 2010, p 7).
In her reasons of 4 September 2009 the Federal Magistrate said:
63. The wife said that the husband, through his company, [SP Pty Ltd], had a contract with the [B Company] for … haulage which was worth a lot of money. The husband claimed that the wife had refused to give him the contract which was in her possession on the farm. He said the contract was due to expire in August 2009 and is unlikely to be renewed, in view of the down turn in the building industry. The husband claimed that the contract cannot be sold and is of no value.
64. It seems that the husband is the sole director and shareholder of the company. The company runs the business of … haulage. The company employs the husband but no one else. It was apparent from the examination of […], the accountant for the company and the husband, that the trucks which the parties have treated as being the husband’s property are in fact the property of the company. The company claims tax deductions in respect of them for depreciation, repairs and maintenance and so on. That is as one would expect.
65. Neither party produced a valuation of the business, or the contract or the company. I accept the husband’s claim that the wife has possession of the contract on the farm. She did not dispute that she had possession of the contract. In the absence of a sworn valuation, and indeed in the absence of the contract itself, I am not able to give any particular value to the contract. I note that the wife did not include the value of the business, or the contract or the company as part of the asset pool in her affidavit filed on 10 December 2008 or in her affidavit filed on 21 April 2009. Both of those documents were prepared with the assistance of a solicitor.
66. The company’s tax return for the year ended 30 June 2008 stated that there was equity in the company of $23,910. However, that figure took account of a large amount of depreciation for the trucks, which is for tax purposes only. It has virtually no relationship to the actual value of the trucks. The tax returns also referred to cash at bank, a loan owed to an unidentified person, and a certain tax liability. Those figures are now nearly 12 months out of date.
67. The husband claimed that the tax liability of his company should be treated as a liability of the parties. The husband tendered an itemised account from the tax agent portal (Exhibit R9) which shows that the company had an income tax liability for the 2004 income year which was discharged in full by 4 December 2008. The account shows that the company had a liability of about $7,000 for the 2007 income year which was reduced by about $1,000 on 12 December 2008. The account shows that the company had a liability of about $10,000 for the 2008 income year which was reduced by payments of about $3,000 in April and May 2009.
68. The amount outstanding as at 19 May 2009 was $14,150.55. That amount was referable to the 24 months from 1 July 2006 to 30 June 2008. The first 15 of those months occurred during the period when the parties cohabited (albeit with some separations) and the last 9 months occurred after final separation.
69. The wife also argued that $9,000, reflecting the superannuation that the husband’s company had failed to pay on his behalf, should be included in the asset pool as a notional asset. The husband acknowledged that the company had stopped paying him superannuation at the time of separation. The parties were in agreement that, prior to separation, the wife had been in control of the parties’ joint finances, including the majority of business expenses. They seemed to be in agreement that the wife had organised for the company to pay the husband superannuation until that time.
70. The husband’s company was legally obliged to pay superannuation on his behalf at the rate of 9 per cent per annum based on his ordinary wages. His tax return for the year ended 30 June 2008 shows that his annual wage during that time was $25,000. He said and, in the absence of contradictory evidence, I accept, that his wage was the same in the year ended 30 June 2009.
71. Final separation occurred in October 2007. As the company has not paid superannuation for the husband since then, the company owes on behalf of the husband nine months superannuation up to 30 June 2008, and an additional 12 months superannuation up to 30 June 2009. That works out to be 9 per cent of $18,750 plus $25,000, which equals $3,937.50, rounded up to $4,000. That is a debt owed by the company on behalf of the husband, and as such should be included in the asset pool. The wife did not explain how she calculated the $9,000. I can see no basis for that amount to be included.
72. However, the consequence of finding that there is a debt of $4,000 owing by the company on behalf of the husband is that the value of the company would have to be reduced by the amount of its liability for superannuation.
73. In all the circumstances, I consider that it is necessary to place some value on the company. The only matters that are known with a proper level of confidence are the agreed value of the trucks and the amount of the liabilities for tax and superannuation. The agreed value of the trucks is $96,000, the tax liability is, say, $14,000, and the superannuation debt is $4,000 leaving a net figure of $78,000. That figure should be included as the value of the company. The trucks themselves should not be included as assets to be retained by the husband. They are the company’s, not his, except indirectly. The wife claims that the husband used matrimonial funds to purchase the trucks. That matter will be addressed in the discussion of contributions.
In relation to the income of the Husband, in her reasons of 4 September 2009 the Federal Magistrate found at [196]: “The husband receives wages of $480 per week and drawings of $447 per week from his company, making a total of $927 per week or $48,204 per year. The husband has the physical and mental capacity to engage in appropriate gainful employment”.
In her reasons of 4 September 2009 the Federal Magistrate also observed:
346. The taxable income provided by the husband to the CSA is a little more than his taxable income according to his tax returns. However, I note that the financial statement sworn by the husband on 23 May 2008, with the assistance of a solicitor, disclosed that his weekly income from his company was $800 per week or $41,600 per year. The husband provided an updated financial statement sworn on 10 December 2008, with the assistance of a solicitor. That statement disclosed that the husband had salary or wages of $480 per week and an income from his company of $447 per week, making a total of $927 per week or $48,204 per year.
347. The wife submitted in her affidavit sworn on 20 April 2009 that the husband's income for the 2008/2009 income year was in the vicinity of $90,000. That claim is not sustainable. It was based on a misapprehension about the costs of running the business and the difference between depreciation for tax purposes and values of assets in the real world.
On 28 January 2010 the application filed by the Wife on 21 December 2009 was dismissed by the Federal Magistrate. During discussion her Honour said that the Wife could have adduced evidence of the value of the business and that her Honour was not satisfied that there had been non-disclosure by the Husband.
On 17 February 2010 the appeal was listed before the Regional Appeal Registrar and the following directions were made for preparation of the appeal for hearing:
1. That the appellant Wife be responsible for the preparation of the appeal books.
2. That the appeal books for the appeal are to comprise each of the following documents arrange in the following order:
(a)Amended Notice of Appeal filed 16 November 2009;
(b)Order of Federal Magistrate Riley made 4 September 2009;
(c)Reasons for Judgment delivered by Federal Magistrate Riley on 4 September 2009;
Applications
(d)Response of the Wife filed 1 April 2008;
(e)Amended Application of the Husband filed 26 May 2008 ;
(f)Amended Response of the Wife filed 12 December 2008;
(g)Application of the Wife filed 1 May 2009; para 6
Affidavits and other documents
(h)Affidavit of [Ms S Ana] sworn 18 and filed 19 March 2008;
(i)Affidavit of the Wife sworn 20 March and filed 1 April 2008;
(j)Financial Statement of the Wife sworn 20 March and filed 1 April 2008;
(k)Order of Federal Magistrate Burchardt made on 20 March 2008;
(l)Affidavit of the Husband sworn 23 and filed 26 May 2008;
(m)Financial Statement of the Husband sworn 23 and filed 26 May 2008;
(n)Affidavit of the Wife sworn 7 and filed 10 December 2008;
(o)Financial Statement of the Wife sworn 9 and filed 10 December 2008;
(p)Affidavit of the Husband sworn 10 and filed 11 December 2008;
(q)Financial Statement of the Husband sworn 10 and filed 11 December 2008;
(r)Minutes of Proposed Order Sought filed on behalf of the Husband on 16 December 2008;
(s)Aide Memoire filed 17 December 2008;
(t)Outline of Case Document filed by the Wife on 29 January 2009;
(u)Affidavit of the Wife sworn 20 and filed 21 April 2009;
(v)Affidavit of the Husband sworn and filed 22 April 2009;
(w)Affidavit of the Wife sworn and filed 1 May 2009;
Reports
(x)Affidavit of [Mr S] sworn 11 and filed 15th December 2008 (to which is annexed a letter dated 8 December 2008)
(y)Affidavit of [Mr G] sworn 11 and filed 15 December 2008 (to which is annexed a report dated 2 November 2008)
(z)Affidavit of [Mr E] sworn 11 and filed 15 December 2009 (to which is exhibited a report dated 9 December 2008 and an amended report dated 10 December 2008);
(aa)Affidavit of [Mr A] sworn 16 and filed 17 December 2008 (to which are annexed reports in relation to each of the Wife and Husband);
Transcript
(bb)Transcript of proceedings before Federal Magistrate Riley on 23 April 2009;
(cc)Transcript of proceedings before Federal Magistrate Riley on 27 April 2009;
(dd)Transcript of proceedings before Federal Magistrate Riley on 4 May 2009;
(ee)Transcript of proceedings before Federal Magistrate Riley on 5 May 2009;
(ff)Transcript of proceedings before Federal Magistrate Riley on 18 May 2009;
(gg)Transcript of proceedings before Federal Magistrate Riley on 20 May 2009;
(hh)Transcript of proceedings before Federal Magistrate Riley on 22 May 2009;
(ii)Transcript of proceedings before Federal Magistrate Riley on 5 June 2009;
(jj)Transcript of proceedings before Federal Magistrate Riley on 10 June 2009;
(kk)Transcript of proceedings before Federal Magistrate Riley on 11 June 2009;
Exhibits
(ll)List of Exhibits; (copy attached)
(mm)Copies of each relevant exhibit, if practicable
3. That no later than 1 April 2010, the appellant Wife file in the Southern Regional Appeal Registry of the Court:
a)four (4) copies of the appeal books containing the documents referred to in paragraph 2(a) to 2(aa) hereof and serve one copy on the respondent Husband.
b)one (1) copy of the appeal books containing the documents referred to in paragraph 2(bb) to 2(kk) hereof and serve one (1) copy on the respondent Husband.
c)four (4) electronic copies of the documents referred to in paragraph 2(bb) to 2(kk) hereof and serve one (1) electronic copy on the respondent Husband;
d)and serve on the respondent, a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules.
4. That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
5. That the parties have liberty to apply for any further directions upon notice to the Appeal Registrar in the Southern Regional Appeal Registry.
IT IS NOTED that:
1. the estimated time for the hearing of the appeal is 1 day; and
2. that the appeal is likely to be listed for hearing before the Full Court in the week commencing 3 May 2010.
On 18 February 2010 the Regional Appeal Registrar wrote a letter to the parties attaching a copy of the orders made on 17 February 2010. The letter states, amongst other things:
The following provisions of the Family Law Rules are drawn to the Appellant’s attention:
a) Rule 22.21 which provides that where the Appellant does not file and serve Appeal Books by the date provided for in the orders (ie 1 April 2010) then the Appeal is taken to be abandoned; … (emphasis in original)
In an affidavit sworn on 30 March 2010 the Wife contended that the “months of January and February [2010] were extremely stressful for [her]”.
The Wife contended that on 26 February 2010 she was served with a notice dated 22 February 2010 from the Westpac Bank requesting that she vacate her property within seven days as she had not complied with a Default Notice. The Wife testified that she was able to repay the outstanding mortgage payments with “help from my family overseas”.
The Wife attached to her affidavit of 30 March 2010 a copy of a letter dated 30 March 2010 from P College advising that she had an outstanding amount on her account and that her enrolment for a Graduate Diploma of Counselling was deferred. The Wife contended that she had been attempting to convince the College that she can repay the fees for the course so she can complete the course and graduate.
On 31 March 2010 the Wife filed two applications in an appeal. The applications are identical and what the Wife seeks is as follows:
1. That the deadline to file Books of Appeal for Appeal SA 87/2009 be extended until the hearing and determination of the Application for extension of time for filing Notice of Appeal against Final Orders made by Federal Magistrate Riley on 28 January 2010.
2. That the hearing and determination of Appeal SA 87/2009 be adjourned until the hearing and determination of the Application for extension of time for filing Notice of Appeal regarding Final Orders made by Federal Magistrate Riley on 27 January 2010.
3. That in the event the Application for extension of time for filing Notice of Appeal against orders made 27 January 2010 is successful, Appeal SA 87/2009 be adjourned until the hearing and determination of this “new” appeal.
4. That extension of time for filing Notice of Appeal against orders made on 28 January 2010 be granted.
5. That judgements in this case be expedited.
As I have observed, in summary, what the Wife is seeking is to file a notice of appeal out of time in relation to the judgment of the Federal Magistrate pronounced on 28 January 2010. If this application is granted the Wife then seeks that the hearing of the notice of appeal against the orders of 4 September 2009 be adjourned until after the hearing of the appeal against the order of 28 January 2010. The Wife also seeks an extension of time to file the appeal books in relation to the appeal against the orders of 4 September 2009 that on 17 February 2010 were ordered to be filed by 1 April 2010.
In support of her applications the Wife swore an affidavit on 30 March 2010 in which she testified:
4. Final Property Orders were made by Her Honour Federal Magistrate Riley on 3 September 2009, following a trial that lasted 10 full Court days and spread over the period of 4 months.
5. I did not consider the Final Orders just and equitable and subsequently filed a Notice of Appeal from these Orders on 3 October 2010. The Appeal was numbered SA 87/2009 and will be referred to accordigly [sic] ("APPEAL SA 87/2009").
6. Orders to Stay for the Final Orders were granted by Her Honour Federal Magistrate Riley on 11 October 2009.
7. In October 2009 I filed An Application To Adduce Evidence in Appeal SA 87/2009. In the Application I sought, among other evidence to be adduced, orders for the Respondent to disclose contracts for his business, which (as I came to know post-trial) had been pending and had been finalised during the trial but had not been disclosed.
8. I self-represent myself in this matter, due to financial reasons. I have not received any legal advice regarding Appeal Procedures and/or the rules of adducing evidence. I rely entirely on my own “research” in handling this case.
9. In December 2009 I filed an Application for the repayments of mortgage of the property held in joint names (THE FARM), which I continue to occupy with the child of the marriage, to be postponed as agreed with WESTPAC, with which the mortgage is held, until I sufficiently establish myself in the workforce. During the proceedings I also sought (in an oral application) that the Respondent disclose the current status of the two trucks he had received in property settlement (i.e. whether they remain in his possession, whether both of them work etc). In my view, as the Final Property Orders stay, the two trucks remain a jointly owned matrimonial asset and I am entitled to an update on their current use.
Her Honour Federal Magistrate Riley informed me that I ought to bring a formal application in front of the Court to receive an answer to my query.
10. I filed an Application in this regard on 7 January 2010. Whilst researching the legal aspect of this matter, I realized that under the existing law the Respondent's non-disclosure of work contracts during trial ought to be dealt with under Section 79 A, as it clearly constitutes supression of evidence during trial and non-disclosure (and not through an application to order him to adduce evidence in this regard in an appeal, as I originally had sought). Subsequently, in the Application filed on 7 January 2010 I sought procedural orders that the Respondent file a Response to my Application, and that if the non-disclosure of the contracts is proven, orders be made to void the trial on these grounds.
PROCEEDINGS UNDER SECTION 79 A (January 28, 2010).
11. The matter was scheduled to be heard on 29 January 2010, but the date was changed to a day earlier in the due course. The hearing took place on 28 January 2010.
12. In an Affidavit sworn in these proceedings and in my Application I relied on rule 79A (1) (a) of the Family Law Act 1975 and argued that the Respondent breached the obligation pursuant to rule 13 (04) (a) (d) (e) of Family Law Rules 2004 by failing to disclose contracts for his business existing at the time of trial, which led to undervaluation of the joint asset pool and assets to be attributed to him and, among others, child support,
13. The matter of this non-disclosure impacted profoundly on the Final Orders made on 3 September 2009. Her Honour ruled that, (in the absence of the job contracts),:
a)there be no child support payable past July 2009 for the child.
b)By receiving another truck in property settlement the Respondent did not receive another income-earning asset (because there was no contract for this truck).
c)The value of the Respondent's business be the value of the two trucks he received in the settlement , less outstanding tax liabilities of the business and outstanding superannuation liabilities (in the absence of any earnings the business is to have, such as guaranteed by a work contract).
d)Wastage on one of the trucks be awarded to me as the truck “could have been sold” (whilst it became clear now that during the period of the proceedings the truck was being prepared for work under the new contract and that the Respondent never had the intention to sell it).
e)That the Respondent will “continue to work for a modest income” as a driver of a small truck (whilst the new truck has the capacity to earn $15 000 monthly as deposed by the Respondent in his material filed before the Court).
In the affidavit the Wife also gave evidence at paragraphs 31 to 38 explaining why a notice of appeal against the orders of 28 January 2010 was not filed within time. I have already summarised this evidence.
Attached to the Wife’s affidavit is a proposed notice of appeal. The grounds of appeal stated in the notice of appeal are as follows:
1. Misaplication [sic] of section 79 A (1) (a) and the principles established in:
i)Taylor & Taylor (1977) FLC 90-226
ii)The Marriage of Morrison (1995) 18FAM LR519
iii)Gebert & Gebert (1990) FLC92-137 / FAM LR 62
iv)The Marriage of Clifton & Stuart (1991) 14 FAM LR 511
v)Black & Kellner (1992)15 FAM LR 343
vi)The Marriage of Sulker (1993) 17-FAM LR 236.
2. Denial of procedural fairness.
3. The Respondent did not disclose a contract for his business existing/pending at the time of trial. This became known to me post-trial and only recently. At trial and in the judgement he received the business at the value of the vehicles owned by him (as he maintained that there may be no work for him post-trial). In an application brought in front of Her Honour FM Riley I sought response which would clarify the details of the contract. I also sought that the trail is void as ther [sic] Respondent failed to appropriately disclose his financial circumstances in a manner that significantly influenced the outcome.
4. During the hearing the Respondent admitted that there was a new contract during the time of trial, which he did not disclose.
5. Notwithstanding this admission, Her Honour ruled that “this evidence was available on trial and could have been subpoenad” [sic].
6. I find Her Honour's reasons absurd. Had the EXISTENCE of a new contract been disclosed, along with the details of the employer, I could have subpoenad [sic] it. Obviously, not knowing there was a contract, I could not subpoenad it. The Respondent's actions clearly constitute a violation of the duty of disclosure. The non-disclosure impacted significantly on the judicial process during trial: the evidence before the court was incomplete and misleading, and resulted in an unjusted [sic] division of the assets.
On 4 May 2010 the Wife filed written submissions.
On 6 May 2010 the applications filed on 31 March 2010 were listed before me for hearing. There was no appearance by or on behalf of the Wife, nor the Husband. However, rather than dismiss the applications, I made an order adjourning the applications to a date to be arranged with the Southern Appeal Registrar and an order allowing the parties liberty to apply for a relisting.
On 6 July 2010 the applications filed on 31 March 2010 were relisted before me for hearing.
On 28 July 2010 the matter was listed before me for further hearing with the parties appearing by telephone. At the end of the hearing I reserved judgment.
Relevant Principles
Section 93 of the Act confers appellate jurisdiction on the Family Court. Section 94AAA(1) provides that an appeal from a decree of the Federal Magistrates Court exercising original jurisdiction under the Act or a decision of a Federal Magistrate exercising original jurisdiction under the Act rejecting an application that he or she disqualify himself or herself from further hearing a matter lies to the Family Court.
Section 93AAA(3) of the Act provides that the jurisdiction of the Family Court in relation to an appeal pursuant to s 94AAA(1) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction in relation to the appeal to be exercised by a single Judge. Section 94AAA(13) provides that the Judge need not be a member of the appeal division. Section 93AAA(12) provides that if an appeal is heard by a single Judge, no appeal lies to the Full Court from that Judge’s determination. In effect, the hearing before the Judge exhausts the appellate jurisdiction of the Family Court and any appeal from that decision would lie, with special leave, to the High Court.
Section 94AA of the Act essentially provides that leave is required before a party can appeal against a “prescribed decree” of the Federal Magistrates Court. Regulation 15A of the Family Law Regulations 1984 (Cth) effectively defines a “prescribed decree” as an interlocutory decree. However, leave is not required for child welfare matters. Regulation 15A(2) provides that a “child welfare matter” is a matter relating to the person(s) with whom a child is to live, contact between a child and another person(s) or any other aspect of parental responsibility within the meaning of Part VII of the Act for a child. The term “decree” is defined in s 4(1) of the Act.
Section 94AAA(5) of the Act provides that an appeal from a decree of the Federal Magistrates Court is to be instituted within the time prescribed by the standard Rules of Court or such further time as is allowed in accordance with the standard Rules of Court.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals. I observe that r 1.16 provides for a dictionary at the end of the Rules which defines and explains certain words and expressions and that the dictionary is part of the Rules. In the dictionary the term “appeal” is defined and includes an appeal under s 94AAA(1) of the Act.
Rule 22.01(1)(b) of the Rules, which is in Part 22.1, provides that Chapter 22 applies to appeals to the Family Court from an order of a Federal Magistrate, whether heard by the Full Court or a single judge.
Part 22.2 of the Rules contains provisions dealing with starting an appeal. Rule 22.02(1) provides that a person may start an appeal by filing a notice of appeal. Rule 22.02(2) provides that if an appeal cannot be started without the leave of the court then leave must be sought in the notice of appeal.
Rule 22.03 of the Rules provides that a notice of appeal, including a notice of appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
Rule 22.13(2) of the Rules provides that the appellant must file a draft index to the appeal book within 28 days after filing the notice of appeal; or the date when the reasons for judgment that relate to the order the subject of the appeal are issued. Rule 22.13(3) provides that if the appellant fails to comply with r 22.13(2), the appeal is taken to be abandoned.
Part 22.3 of the Rules contains provisions that deal with appeals to the Full Court. A note to r 22.14 provides: “On the filing of an appeal from an order of the Federal Magistrates Court or a Family Law Magistrate of Western Australia, the Chief Justice must decide whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge. There is no right to an appeal against this decision”. The note also makes clear that if the appeal is to be heard by a Full Court then Part 22.3 applies and if the appeal is to be heard by a single judge then Part 22.4 applies.
In relation to appeals to the Full Court, r 22.15 of the Rules provides that as soon as reasonably practical after the filing of a draft index the Regional Appeal Registrar must fix a date for a procedural hearing for the appeal before a Regional Appeal Registrar and give the parties to the appeal written notice of the date fixed for the procedural hearing. It may also be listed before a Judge of the Appeal Division or another Judge if there is no Judge of the Appeal Division available.
Rule 22.16(1) of the Rules provides that the appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal. Rule 22.16(2) provides that a respondent in the appeal; a lawyer for a respondent in the appeal; an independent children’s lawyer in the appeal may also attend on the first procedural hearing.
Rule 22.17 of the Rules deals with the orders to be made at the procedural hearing. Rule 22.18 deals with the preparation of appeal books. Rule 22.19 deals with the content of appeal books and r 22.20 deals with the form of the appeal books.
Then r 22.21 of the Rules provides: “If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned”. A note to r 22.21 provides that a “party may apply for an extension of time to file the appeal books (see rule 1.14)”.
Part 22.8 of the Rules contains provisions that deal with concluding an appeal, an application for leave to appeal or an application in relation to an appeal.
Rule 22.43 of the Rules, which is in Part 22.8, provides:
(1) If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties.
(2) An application for costs of an abandoned appeal must be filed within 28 days after the date the appeal became abandoned.
Rule 22.44 of the Rules provides: “A party may apply to have an appeal taken to be abandoned under this Chapter reinstated”.
Section 94 of the Act provides:
(2D) Applications of a procedural nature, including applications:
…
(c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
…
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
There are no specified criteria in the Act or the Rules for the exercise of discretion to reinstate an abandoned appeal. However, in Bemert & Swallow [2010] FamCAFC 100 (11 June 2010) per Coleman, May and O’Ryan JJ discussed, at paragraphs 131 to 154, the principles to be applied when dealing with an application for reinstatement of a deemed abandoned appeal.
Rule 1.14 of the Rules deals with shortening or extension of time and provides:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
This rule confers discretion to extend or shorten time.
Section 94AAA(10) of the Act provides that applications of a procedural nature may be heard and determined by a single Judge or by a Full Court. Section 94AAA(10)(a) provides that such applications include an application for an extension of time within which to institute an appeal under s 94AAA(1) or (1A). Section 94AAA(10)(c) provides that such applications include an application to reinstate an appeal under s 94AAA(1) or (1A) that, because of the Rules, was taken to have been abandoned.
In Bemert & Swallow the Full Court observed at paragraph 130 that there are no specified criteria either in s 94(1A) of the Act or r 1.14 of the Rules for the exercise of discretion to extend the time for the institution of an appeal. The Full Court did say that “the often quoted authority” is Gallo v Dawson (1990) 93 ALR 479 per McHugh J. In that case his Honour was considering an application pursuant to Order 60, rule 6 of the High Court Rules 1952 (Cth) which provided that the Court or a Justice could enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case required and that the enlargement could be ordered although the application was not made until after the expiration of the time appointed or fixed for doing the act: see now Part 4, rule 4.02 of the High Court Rules 2004 (Cth). McHugh J observed at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v. Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
In Bemert & Swallow, referring to the provisions of Chapter 1 of the Rules, the Full Court also observed at paragraph 138 that “it is also relevant to consider other provisions of the Rules and what was recently said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 by French CJ at 180 to 195 and in the joint reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at 195 to 218”.
Conclusion
Application for extension of time to appeal the judgment of 28 January 2010
As I have observed, in the property settlement proceedings the Federal Magistrate found that the parties had net assets of $709,800.00. The Federal Magistrate determined that the Wife should receive 70 per cent or $496,860.00 and the Husband receive 30 per cent or $212,940.00 being a difference of $283,920.00. This is a very significant disparity.
The Federal Magistrate found that the contribution based entitlements should be assessed as to 67 per cent or $475,566.00 to the Wife and 33 per cent or $234,234.00 to the Husband which is a disparity of $241,332.00. I observe that when considering the “other factors” the Federal Magistrate did not take this disparity into account and thus did not consider the significantly greater assets of the Wife. The disparity was relevant because of s 75(2)(b) of the Act.
In any event, if the Wife’s appeal is successful in relation to property settlement she seeks an order whereby she would receive 82 per cent of the net assets or $582,036.00 and the Husband receive 18 per cent or $127,764.00. This is a disparity of $454,272.00. The Wife is therefore seeking to achieve a further amount of $85,176.00 ($582,026.00 less $496,860.00).
However, the Wife contends that the net assets may have a value greater than $709,800.00 if a value is placed on the present contract of the cartage business of the company.
During the hearing on 28 January 2010 the Husband admitted that there is a current contract. The inference to be drawn from this admission is that the contract that was current at the time of the trial in June 2009 expired and that at some point during 2009 or perhaps early 2010 the company obtained another contract. There is no evidence as to the terms of the current contract.
The Wife contends that the current contract has a value. Further, the Wife contends that at the time of the trial in mid-2009 the current contract was being negotiated and that it should have been disclosed in those earlier proceedings.
Prima facie, there may be some merit in these contentions of the Wife given that the Federal Magistrate found that the value of the company was, in effect, only the net value of the trucks owned by the company and also, as I have observed, said at [349] that it “would be undesirable to attempt to predict the husband’s future earnings, especially as his contract with the [B Company] is due to expire shortly, and as there is some uncertainty in the building industry”.
However, there is no evidence to corroborate the Wife’s contention that the current contract has a value. The first task is to resolve what would be valued. In my view, there is no evidence to suggest the contract per se would have a value. The business of the company is a relatively modest cartage business and, in effect, is owner operated. The Federal Magistrate found that the Husband was receiving a total of $48,204.00 per year from the company. As at 30 June 2008 the company had net assets of $28,000.00 and for the purposes of the hearing, after revaluation of the trucks, had net assets of $78,000.00. In conclusion, in my view, the contract has no intrinsic value.
The next question is whether the company may have an intangible asset being goodwill. The company does not have a purchased goodwill and the question is whether it may have an internally generated goodwill, being a goodwill developed through normal recurring business activities. It is not necessary for me to undertake a detailed consideration of the concept of goodwill and how it is defined and measured. It is sufficient to observe that for present purposes it is the residual value, being the difference between the value of the business as a whole and the net tangible assets that are used for the purposes of generating the income of the business. It would be necessary to ascertain whether, based on the capitalised adjusted net earnings that the company receives pursuant to the contract or dividends, the company has a value greater than the value of the net tangible assets and if so the difference may be a goodwill value.
The Wife has no evidence, based on the terms of the contract that existed at the trial, that any value could be placed on goodwill of the company having regard to the capitalisation of the adjusted historical profits of the company derived from the stream of income generated pursuant to the terms of the then current contract. For example, it may be that even if a goodwill could be attributed to the company it may be of no or minimal value given that the contract could not be transferred and also after the allowances that would have to be made for expenses including reasonable remuneration of the Husband to arrive at a maintainable earnings figure. It may be that there is no adjusted net income stream that could be valued. In any event, any value that could be ascribed to goodwill may simply represent the earnings of the Husband which have already been taken into account.
Further, even if a net value could be placed on goodwill it does not follow that the Wife would necessarily receive any greater amount by way of property settlement than she received pursuant to the current orders. The value, as I have observed, may be minimal. Next, even if the value of the net assets materially increased because the value of the company increased by reason of the inclusion of a value for goodwill, after consideration of the matters of contribution and the “other factors”, there may be no or no material change to the findings as to the ultimate entitlements of each party.
I should also add that, in my view, the absence of valuation evidence of the contract or goodwill that existed at the time of the trial is significant. Such a valuation would have demonstrated whether or not the company had a goodwill value represented by the capitalisation of its net adjusted historical profits.
In conclusion, even if there was evidence as to a value of the current contract or goodwill, what that evidence would be is entirely speculative and would probably have no effect on the outcome of the proceedings.
This is in circumstances where there was a 10 day trial with hundreds of documents. The public cost has been enormous. The future costs may be enormous. The costs of the transcript alone is estimated to be not less than $20,000.00 and this does not include all the other documents that may have to be included in the appeal books.
As I have observed, in the first notice of appeal there are 108 grounds of appeal and in the amended notice of appeal there are 124 grounds. In my view, even making allowance for the fact that the Wife is unrepresented, this is absurd.
I also observe that even if the Wife was able to successfully prosecute an appeal against the judgment of 28 January 2010 it would not obviate the appeal against all of the judgment of 4 September 2009. If the Wife successfully prosecuted her appeal against the judgment of 28 January 2010 it may result in a variation or setting aside of the property settlement order of 4 September 2009. However, the orders of 4 September 2009 in relation to spouse maintenance and child support would remain on foot and presumably the Wife would continue to prosecute her appeal against those orders.
The Wife also complains about procedural fairness. However, she provided no particulars to support this contention.
I accept that consideration of the transcript of proceedings on 28 January 2010 reveals that the Federal Magistrate dealt with the application of the Wife in a summary way. There was no evidence from the Husband. Her Honour simply heard brief oral submissions. Further, there are no separate reasons for judgment of the Federal Magistrate.
Notwithstanding these deficiencies, in my view, in the circumstances of this case, having regard to the history of the proceedings, and the nature of the issue raised by the Wife, which she clearly articulated, the approach of the Federal Magistrate was within her discretion. Section 3(2)(a) of the Federal Magistrates Court Act 1999 (Cth) provides that an object of the Act is to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power. Section 3(2)(b) of the said Act provides that an object is to enable the Federal Magistrates Court to use streamlined procedures. In my view, what the Federal Magistrate did was consistent with s 42 of the said Act which provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”.
I also observe that s 17A(2) of the Federal Magistrates Court Act provides that judgment may be given for one party against another in relation to the whole or any part of a proceeding if the first party is defending the proceeding or that part of the proceeding; and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. Section 17(3) of the said Act provides that for the purposes of s 17 a defence or a proceeding or part of a proceeding need not be hopeless or bound to fail.
As well, and importantly, no complaint was made by the Wife to the Federal Magistrate during the hearing about the manner in which her Honour proceeded. In conclusion, I am satisfied that no procedural unfairness was caused to the Wife: see also Aon Risk Services.
The notice of appeal against the judgment of 28 January 2010 should have been filed on or before the expiration of 28 days from that date. However, it was not filed within time and the application to extend time to file the notice of appeal was not filed until 31 March 2010.
The Wife has provided an explanation for the delay at least for February 2010. However, what the Wife said, in my view, does not provide a complete explanation for why she did not comply with the Rules.
Further, I am of the view, for reasons I have given above, that the proposed appeal would have very little, if any, prospect of success. I also take into account the history of the proceedings and the nature of the litigation.
In conclusion, I am not satisfied that to refuse the application would constitute an injustice to the Wife. However, I am persuaded that to allow the wife an extension of time to appeal against the judgment of 28 January 2010 would, in all the circumstances, create an injustice to the Husband.
I propose to dismiss the application of the Wife seeking to extend the time to file a notice of appeal against the judgment of 28 January 2010, dismissing her application for relief pursuant to s 79A of the Act.
Extension of time to file appeal books
I will now deal with the application by the Wife to extend the time to file appeal books in compliance with the orders made at the procedural hearing on 17 February 2010.
Pursuant to the orders made on 17 February 2010 the appeal books were to be filed by the Wife by 1 April 2010. However, on 31 March 2010 the Wife filed the application which is currently before me. The reason why the Wife sought the relief set out in the application is clear. The Wife was of the view that if she was able to successfully prosecute an appeal against the order of 28 January 2010, and the property settlement order made on 4 September 2009 was varied, then it would have a material bearing on her complaints about the property settlement order of 4 September 2009 and the appeal.
I have no doubt that what the Wife proposed was theoretically sound: see for example the discussion in Arthurman & Arthurman [2008] FamCAFC 188 (2 December 2008) per Boland, Thackray & O’Ryan JJ. However, as it transpires, I propose to refuse the Wife’s application for an extension of time to appeal against the property settlement order of 28 January 2010.
The appeal against the order of 4 September 2009 has been deemed abandoned by reason of r 22.21 of the Rules because the Wife did not file the appeal books by the due date, namely 1 April 2010.
However, before the appeal was deemed abandoned the Wife filed an application seeking an extension of time to file the appeal books. That such an application can be made is acknowledged by the note to r 22.21 of the Rules, which I have set out above.
In all the circumstances, I propose to reinstate the appeal of the Wife against the orders of 4 September 2009 and remit the matter to the Regional Appeals Registrar to conduct a further procedural hearing.
I am of the view that there would be an injustice caused to the Wife if such relief was not granted to her. I am of the view that any prejudice that may be caused to the Husband is outweighed by the prejudice that may be caused to the Wife.
However, I make the following brief observations. The Wife will have to file a further amended notice of appeal. As I have observed, in my view, in the circumstances of this case, the idea of 124 grounds of appeal is absurd. Next, the costs of the hearing of the appeal will be very significant for reasons already given. Every effort should be made to try and contain the amount of material required for the appeal. I have not attempted any analysis of the merits of all of the grounds of appeal. However, I have observed that the Federal Magistrate provided very comprehensive reasons for judgment. Her Honour made findings in relation to the extent and value of the net assets of the parties and the Wife received a greater entitlement than the Husband. I have also observed that in relation to the property settlement even if the Wife succeeds she is seeking approximately $80,000.00.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 10 September 2010.
Associate:
Date:9 September 2010
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