ATHANASTOS & ATHANASTOS
[2011] FamCAFC 152
•21 July 2011
FAMILY COURT OF AUSTRALIA
| ATHANASTOS & ATHANASTOS | [2011] FamCAFC 152 |
| FAMILY LAW - APPEAL – application to extend time for filing notice of appeal – parenting and property – denial of procedural fairness – debts exceed assets – operative delay |
| Family law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 Tormsen (1993) FLC 92-392 Joshua (1997) FLC 92-767 |
| APPELLANT: | Mr Athanastos |
| RESPONDENT: | Mrs Athanastos |
| FILE NUMBER: | SYC | 106 | of | 2007 |
| APPEAL NUMBER: | EA | 67 | of | 2011 |
| DATE DELIVERED: | 21 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 21 June 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 66 |
REPRESENTATION
| THE APPELLANT: | Mr Athanastos in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Reeve, Marsdens Law Group |
Orders
That the application to extend time to file a notice of appeal is dismissed.
That any submission as to the respondent’s costs be made in writing within 14 days of the delivery of judgment and any response to those submissions by the applicant be made within a further 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Athanastos & Athanastos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA67 of 2011
File Number: SYC106 of 2007
| Mr Athanastos |
Appellant
And
| Mrs Athanastos |
Respondent
REASONS FOR JUDGMENT
Mr Athanastos (“the applicant”) seeks an extension of time in which to appeal a decision of Cohen J delivered on 16 February 2011. The hearing was conducted from 20 to 24 December 2009.
The judgement sought to be impugned concerns both parenting and property issues between the applicant and the respondent.
The application is opposed by the respondent.
Background
The parties married in June 2000 having lived together for a period before marriage. They separated in June 2006. They were divorced in 2007. There are three children of the parties, aged about 11, 8 and 6.
The orders of Cohen J provided for the children to live with the respondent and she to have sole parental responsibility for them. His Honour provided for the applicant to spend time with the children on alternate weekends, in school holidays and on other occasions.
Having found that the parties’ debts substantially exceeded their assets, his Honour ordered that the applicant transfer his interest in a property at S to the respondent and declared that otherwise neither party had any interest in any property or any liability for any debt held solely by the other except as provided in the judgment.
History of the litigation
From the submissions of the parties, it seems that the respondent’s application for parenting and property orders was filed in January 2007. After the application was filed there were a number of directions hearings in which orders were made to have the matter prepared for hearing. It was submitted on behalf of the respondent that the applicant substantially failed to comply with those directions.
The matter was listed for hearing before Cohen J on 2 November 2009 and, on the applicant’s request, was adjourned until late November 2009 although the applicant had requested that the matter be re-listed in January 2010. At the conclusion of the hearing the matter was further adjourned to enable the parties to make written submissions.
The husband suffered from an illness and required daily hospitalisation. He said that from May to November 2009 he was receiving training to provide that treatment for himself at home and had to travel to hospital to receive instruction. The training had completed when the matter was heard by Cohen J.
The applicant, although apparently notified by the appeals registry of the date of the hearing of his application at the address on his application, said that he did not receive the notice. He however appeared and although said that he was not entirely prepared to make the application however he made submissions and argued in support of his application.
The applicant filed a draft notice of appeal, application for extension of time and affidavit in support on 31 May 2011.
His affidavit in support of the application for extension of time is brief. I set out the relevant parts in full.
1. The hearing date of the matter, file no SYC 106/2007 was from 20-24 December 2009
2. The judgement was delivered by the Honourable Justice Cohen on 16 February 2011.
3. On 2 March 2011 I forwarded the orders to a solicitor for pro bono advice.
4. As a result of receiving the pro bono advice out of time to file a Notice of Appeal I now seek leave for an extension of time to appeal.
5. As a result of ongoing medical treatment I was denied procedural fairness by reason of being refused an adjournment whilst receiving treatment and not being able to properly prepare for the hearing.
The proposed draft notice of appeal contains further assertions that shed a little more light on the applicant’s case for extension of time:
1. I was denied procedural fairness by His Honour by denying me proper time to prepare for the case as I was receiving home treatment and training for home treatment during the hearing and the months of November 2009 and December 2009.
2. His Honour took over a year in delivering his judgment constituting operative delay.
The proposed grounds of appeal are
1. Appellant was denied natural justice whilst in preparation for the hearing the appellant subpoened [sic] documents that were never produced and was denied by his Honour further time for them to be produced.
2. The decision by his Honour is an injustice to the appellant as he suffers hardship and was undergoing treatment and was denied sufficient time to prepare for the hearing.
3. Was denied procedural fairness by his Honour as the appellant was self represented and was not allowed to question a number of witnesses during the hearing.
The applicant seeks an order that if the appeal is successful the matter be remitted for rehearing.
Principles
The principles governing applications such as this are found in Gallo v Dawson (1990) 93 ALR 479 in which the High Court considered an application for an extension of time to file a notice of appeal. McHugh J said at page 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 certain 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. 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. 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… 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. (footnotes and citations omitted)
This question has received considerable attention in the Family Court. In Joshua (1997) FLC 92-767 the Full Court said at 84,440:
Accordingly the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely; the extent of the delay and reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation…
Delay in bringing the appeal
The applicant said that on 25 March 2011, understanding that the time in which he could file his appeal had lapsed, sought the consent of the respondent to an extension of time. That consent was not given. The applicant said the delay in bringing the application was because he made two unsuccessful attempts to file the application. He said that he received the advice of senior counsel in the preparation of documents.
These submissions and that which appears in his affidavit, namely that there was delay in obtaining pro bono advice are the asserted explanations for the delay.
Clearly the applicant was aware very shortly after the expiration of the time period that the respondent would not consent to an extension of time, why if he had advice from senior counsel, he was unable to file the application in a more expeditious way was not explained.
Both the affidavit and the applicant’s submissions fall far short of providing a proper explanation for the delay in bringing the appeal.
Appellant’s prospects on appeal
The applicant claims that he was denied procedural fairness in not having sufficient time to prepare the case because he was receiving treatment training; not receiving an extension of time for the production of documents under subpoena and by not being allowed to cross-examine certain witnesses. Nowhere in any of the material filed on his application did he do more than make the general claim.
In submissions the applicant said that because he was forced into a hearing he did not have valuation evidence nor evidence which he said would otherwise have been available to him to show that the wife had disposed of assets.
It seems that although the applicant was undergoing the treatment training in May to November 2009, he made no apparent effort to produce this evidence before this. The applicant said that any valuations would need to be prepared proximate to the hearing. He did not explain how then none was obtained during the adjourned period from November to December 2009 nor was the other evidence produced. He provided no evidence about what evidence he proposed to bring to make good his assertions that the wife had disposed of assets or any steps he took to obtain this evidence either before or after he commenced treatment training.
He did not indicate which witnesses he wished to cross-examine but was prevented from doing so nor did he indicate what documents were subpoenaed but not produced and to which issue they were material.
During submissions, the utility of any appeal was raised with the applicant given that it was apparently undisputed that the parties had significant debts in excess of their assets (found by the trial judge to be net joint debts over assets of $766,000 and individually the applicant to have net debt over asset of $191,000 paragraph 70 of the reasons for decision.)
The applicant seemed to concede that given the net debt/asset position of him and the respondent, there was little utility in contesting the property orders. However he then argued that the respondent’s family had money and further argued that if he was successful on appeal and the matter was re-heard, he would obtain valuations of property and would demonstrate that the wife had disposed of assets.
As to the orders relating to the children; neither the affidavit nor draft notice of appeal makes reference to any particular fact or issue to be challenged in the judgment. The applicant said that before the hearing he had seen the children each alternate weekend and for half of the school holidays but since the hearing (and presumably after the orders of Cohen J) he was not seeing them for the ordered time in school holidays. He said that his purpose in appealing the orders was because the respondent would not negotiate with him on the times to be spent with the children and she was not complying with the terms of his Honour’s orders. He did not articulate nor indicate in any way what orders he would seek on appeal or re-hearing in relation to the children.
The applicant submitted that there were factual findings made against him that were not correct. He did not specify the matters nor did he indicate to what issue or issues they were material and whether they were the foundation for any particular finding made by his Honour.
The applicant said that his difficulties stemmed from his medical condition and claimed that he had difficulty in understanding the case. Again, he provided no detail nor elaborated on where this difficulty in understanding had arisen or how it had affected him. I have no means of assessing this based as it is on a bald unspecified assertion.
The applicant claimed that the time elapsed between the hearing and delivery of judgment as a ground of appeal. Delay per se does not give rise to appealable error and the applicant did not point to any matter that might indicate that the delay had affected his Honour’s decision.
I am particularly mindful that the applicant represents himself but note his claim that he had the assistance of a senior counsel for some part of the preparation of this matter. However, nothing either in his documents or in the oral argument he made persuades me that there is a substantial issue to be raised on appeal. For this reason I will decline to extend the time to file an appeal.
Prejudice
The respondent argued that significant prejudice attended any grant of extension of time to the applicant. It was argued that given the apparently undisputed financial position of the parties, the applicant could not achieve any better outcome on appeal or subsequent re-hearing than the orders made by Cohen J whereas the respondent would be financially disadvantaged by having to bear the expense of the appeal and perhaps re-hearing. It was argued that the applicant had no capacity to meet any order for costs made in favour of the respondent either if the appeal failed or on any re-hearing.
There is considerable force to this argument. Prejudice is a consideration not merely in relation to an applicant but also to a respondent and in this case, is another factor weighing against the application.
Conclusion
I propose to dismiss the application. I will order that any submission as to the respondent’s costs be made in writing within 14 days of the delivery of judgment and any response by the applicant be made within a further 14 days.
_____________________________________________________________________
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 21 July 2011.
Associate:
Date: 21 July 2011
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