Belsito and Levendoski
[2014] FamCAFC 165
•14 August 2014
FAMILY COURT OF AUSTRALIA
| BELSITO & LEVENDOSKI | [2014] FamCAFC 165 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant sought an extension of time to appeal an interim order that required her to pay spousal maintenance to the respondent – Where the applicant left the hearing of the application prematurely – The applicant failed to demonstrate that her proposed appeal has merit – The applicant’s delay is explained by the difficulties she faced as a self-represented litigant – Additional litigation between the parties should be avoided – Application dismissed. |
| Family Law Act 1975 (Cth), s 94AAA Family Law Rules, r 1.14, r 22.02, r 22.03 |
| Gallo v Dawson(1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 |
| APPELLANT: | Ms Belsito |
| RESPONDENT: | Mr Levendoski |
| INDEPENDENT CHILDREN’S LAWYER: | CMS Legal |
| FILE NUMBER: | PTW | 5870 | of | 2012 |
| APPEAL NUMBER: | WA | 15L | of | 2014 |
| DATE DELIVERED: | 14 August 2014 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 14 August 2014 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 10 January 2014 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Scott |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | CMS Legal |
Orders
The application in an appeal filed 27 June 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Belsito & Levendoski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 15L of 2014
File Number: PTW 5870 of 2012
| Ms Belsito |
Appellant
And
| Mr Levendoski |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court is the Form 21 application of Ms Belsito, which was ultimately filed on 27 June 2014.
Although not in proper form, it is apparent that the relief really sought by the application (and the only relief that could be sought at this point), is an extension of time in which to file a notice of appeal against a decision of Magistrate Walter made on 10 January 2014. The contentious order made on that date was one for Ms Belsito to pay interim spousal maintenance to the respondent, Mr Levendoski, in an amount of $137 per week.
Mr Levendoski filed a response on 11 August 2014, in which he opposes the extension of time and seeks the dismissal of the Form 21.
It is apparent from reading the material that Ms Belsito, even up until this morning, is having some difficulty in appreciating that the order she seeks to appeal is not a permanent order, but rather a temporary order based on the affidavit evidence available to Magistrate Walter on 10 January 2014.
Progress of the substantive proceedings
The spousal maintenance proceedings are progressing alongside litigation concerning the arrangements for the care of the one child of the marriage, M, who is eight years of age. Usefully, there has been a hearing today before Magistrate Walter, who also has the conduct of this matter. Her Honour made orders for the parties to attend a readiness hearing on 25 November 2014 and file their affidavit evidence for trial.
A single expert witness has been appointed to deal with the issues relating to the child. I am informed today that the parties have engaged with the expert. The independent children’s lawyer’s view is that the report should be available in a couple of months at the latest.
In my view, the litigation in the Magistrates Court should be given some expedition, given the obvious stresses that are being caused to both parties and no doubt to the child as well. I would therefore recommend that this matter be given considerable priority at the readiness hearing, with a view to the litigation being resolved in the very early part of next year. I make this comment because it is clearly relevant to questions of prejudice that could be associated with the refusal to grant an extension of time, or alternatively with the granting of that extension.
The applicant’s conduct in court
I should record at this point that the applicant did not attend court this morning until well after the appointed time of 10.00 am. However, I accept that she was confused about the appointment at 11.00 am with Magistrate Walter and I also note that the 10.00am hearing was omitted from the court list in the newspaper today.
Although the applicant was able to contain herself at the commencement of this hearing, she began to lose control very soon thereafter. Notwithstanding my best endeavours, the applicant was doing her utmost to prevent the respondent from making what were entirely appropriate submissions.
The applicant’s behaviour degenerated into a very vocal outburst. I asked her to desist and advised her that she would have a right of reply. I also suggested that she take notes of what she wanted to say instead of interrupting, but she discarded the piece of paper given to her by my staff for this purpose. The applicant then began to shriek repeatedly, before picking up her possessions and vacating the court. In the process of leaving, she endeavoured to do quite serious damage to the door of the court.
In these circumstances, it was not possible to conduct a satisfactory hearing. I informed the respondent that it was not necessary for him to complete his submissions, because the applicant had failed to persuade me of the merit of her application, and his written material had very comprehensively dealt with the submissions that the applicant wished to make.
Notwithstanding that the applicant vacated the court and hence might be seen as having abandoned her application, it is very clear she does wish to have an extension of time in which to challenge the order for spousal maintenance. It is therefore appropriate that I give some brief reasons to explain why I have determined that an extension should not be granted.
The statutory framework
The appeal is against a decision of a family law magistrate in the Magistrates Court of Western Australia, so it proceeds under s 94AAA of the Family Law Act1975 (Cth) (‘the Act’). Section 94AAA(5) provides that an appeal against a decision in the Magistrates Court is to be instituted within the time prescribed by the rules of court, or such further time as is allowed in accordance with the rules of court. Section 94AAA(10) provides that applications of a procedural nature, including an application for an extension of time within which to institute an appeal, may be heard and determined by a single judge. Section 94AAA(11) provides for rules of court to be made dealing with procedural applications, including ones of this nature. Significantly, s 94AAA(12) provides that no appeal lies to a Full Court from a decision of a single judge exercising jurisdiction under this section.
Rule 22.02 of the Family Law Rules 2005 (Cth) (“the Rules”) states that an appeal is to be commenced by the filing of a notice of appeal. Rule 22.03 provides that an appeal must be filed within 28 days, but r 1.14 provides that a party may apply to shorten or extend the time fixed by the Rules, which is why Ms Belsito is entitled to bring her application.
Applicable principles
The question then becomes: in what circumstances does the Court exercise its discretion to permit an extension of time within which to lodge an appeal? These principles have been discussed in numerous cases. The one most regularly cited is Gallo v Dawson(1990) 93 ALR 479.
A very convenient exposition of the principles is to be found in the judgment of Lindenmayer J in Joshua v Joshua (1997) FLC 92-767 at 84,440 where his Honour said:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court's satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.
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 the 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.
As was also pointed out in Gallo v Dawson, the “first question” mentioned by Lindenmayer J leads to an examination of the merits of the appeal.
Merits of the proposed appeal
Regrettably, in part because of the way in which she has presented her case, the applicant has not demonstrated whatever merit there might be in her complaint. She endeavoured to do so in her affidavit, but this was met with a comprehensive response from the respondent and I have not heard from the applicant today as to what she would say about those matters.
As should be obvious, when cases are heard at an interim level, with the benefit only of affidavit evidence, there is the potential for misunderstanding of the facts or for not all of the evidence to be available. In this case, there is the added difficulty of the apparent inability of the applicant to understand the legal process. Of course, this is not at all uncommon with self-represented litigants, but it seems to be a more significant factor in this case than in others.
What has been said and written by the applicant does not persuade me that her appeal had much in the way of merit, as it seems her argument largely is that she did not know how to present her case, which is a very different thing from suggesting there was some error made by the Magistrate.
It is also important to remember that the applicant does not have an automatic right of appeal, given that the order in question is an interim order in financial proceedings. In the event I granted the extension of time, the applicant would still need to obtain leave to appeal before any appeal would be considered.
Leave to appeal is not automatically granted and leave provisions exist, in part, to deal with cases such as the present where there will be a further opportunity for the issue involved to be reassessed at a trial. The fact that these proceedings are potentially going to proceed to trial in the early part of next year would be a strong indication that leave to appeal would not be granted.
I am entitled simply to reject the application on the basis that I am not satisfied there is any real merit in the proposed appeal. However, I accept there may be some matters that the applicant would wish to agitate on an appeal that might be worth consideration, in what is in some respects quite a difficult matter. On that basis, I turn to the discretionary matters I should take into account.
Explanation for the delay
One significant question is whether there is some explanation for the delay in instituting the appeal (or more correctly the application for leave to appeal). Whilst the applicant overlooked including this information in her affidavit, it is apparent from looking at the date stamps on the application document that she has been attempting to file it since at least 17 February 2014. However, the application was not accepted until 27 June 2014, because of various inadequacies in the way in which it was presented. The applicant insisted in her oral submissions today that she had, in fact, presented the application even earlier, within the prescribed 28 day time period. If so, the delay in filing the document is explained.
I also accept that the applicant has struggled in getting together the material she needed to file to progress her complaint against the maintenance order. I need to make allowance not only for the fact that the applicant is self-represented, but that she has some fairly serious psychological or personality issues, which no doubt impinge upon her ability to present her case in an orderly fashion. To that extent also, the delay is well and truly explained.
Hardship to the parties
The hardship to the applicant would be that she is required to continue to pay maintenance pursuant to the order. She says she will be successful in having the order set aside on appeal. To that extent, there would be financial detriment to the applicant, but only if merit is ultimately shown in her complaint.
There is hardship to the respondent in granting the extension, because he would then need to deal with a quite separate piece of litigation, being the appeal. It is apparent from his presentation in court, and what he says in his affidavit, that he finds litigation very debilitating and extremely time consuming. Appeal proceedings would therefore impact on his ability to parent the child for whom he has almost entire responsibility at present.
Furthermore, given the applicant’s conduct in court today, I consider any additional litigation is something that she too should seek to avoid.
Conclusion
Given the apparent lack of merit in the appeal, the prejudice to the respondent and indeed to the applicant, the appropriate order to make is that the Form 21 application in an appeal be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 14 August 2014, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 8 September 2014
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