BLAKELEY & JAINE
[2020] FamCAFC 114
•15 May 2020
FAMILY COURT OF AUSTRALIA
| BLAKELEY & JAINE | [2020] FamCAFC 114 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Spousal maintenance – Where the husband attempted to file the Notice of Appeal on the last day for filing – Where the husband attempted to contact the Appeal Registry for assistance but was unable to do so – Where the Notice of Appeal was subsequently rejected – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the husband would suffer an injustice if leave is not granted – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 |
| APPLICANT: | Mr Blakeley |
| RESPONDENT: | Ms Jaine |
| FILE NUMBER: | SYC | 7125 | of | 2018 |
| APPEAL NUMBER: | EAA | 43 | of | 2020 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J (via telephone) |
| HEARING DATE: | 12 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 March 2020 |
| LOWER COURT MNC: | [2020] FamCA 141 |
REPRESENTATION
| APPLICANT | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Dorter Family Lawyers and Mediators |
Orders
That time be extended in which the applicant husband may file a Notice of Appeal against the orders of a judge of the Family Court of Australia made on
5 March 2020 and the notice be filed no later than 4.00 pm on Friday 22 May 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blakeley & Jaine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 43 of 2020
File Number: SYC 7125 of 2018
| Mr Blakeley |
Applicant
and
| Ms Jaine |
Respondent
REASONS FOR JUDGMENT
Mr Blakeley (“the husband”) seeks to appeal against an interim order for spousal maintenance made by a judge of the Family Court of Australia on 5 March 2020. The orders concern Ms Jaine (“the wife”).
The order sought to be challenged on appeal is an interlocutory one for which leave to appeal is necessary.
The basis of the proposed challenge to the order is a contention that the primary judge erred in assessing the husband’s capacity to pay the amount sought by the wife and in his characterisation of mortgage payments made by the husband as “discretionary”. The husband further challenges the primary judge’s acceptance of the wife’s stated needs.
The application
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. That time expired on 28 May 2019 the date on which his solicitor attempted to file the Notice of Appeal.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at
480–481, his Honour said:
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. 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 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. 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.
(Citations omitted)
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the wife and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail.
It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
This being an appeal from an interim financial order, leave to appeal must be granted. In determining leave to appeal, the applicant must show that that the decision in question is attended with sufficient doubt to warrant the grant of leave and that a substantial injustice will result from a refusal of leave to appeal (Medlow & Medlow (2016) (2016) FLC 93-692).
The assessment of whether leave would be granted, as with an assessment of the merit of the appeal rests as I have indicated on a consideration of the documents supporting the application. I am of the view that sufficient merit is demonstrated in the proposed appeal that it could not be said to be futile to grant leave to commence the appeal, all other things being equal.
Delay in bringing the appeal
The husband who was represented during the hearing before the primary judge brings this application himself. In his affidavit in support of the application for extension of time, he says that shortly after receiving the primary reasons for judgment he sought advice from his lawyer on 6 March 2020 and it was not until 23 March 2020 that his solicitor contacted the husband advising him that as a result of the COVID-19 pandemic, he was reducing staff and would not be able to assist the husband in bringing the appeal. The husband then prepared the appeal and attempted to lodge it himself by filing it electronically on 2 April 2020, the last day for the filing of the appeal. However, although the document was apparently accepted on the Commonwealth Court’s Portal, he could not determine who the necessary filing fee was to be paid. Although he made two attempts to contact the Registry, the telephone was unanswered. Ultimately the application was emailed to the Eastern Appeal Registry on the morning of 3 April 2020 but was rejected on 7 April 2020 because it was then out of time.
The solicitor who appeared for the wife contended that the husband’s evidence did not satisfactorily explain the delay in filing the appeal, arguing that there was no evidence from his previous solicitor to corroborate the husband’s contention that he had sought but not been able to obtain legal assistance to bring the appeal. There is no reason to doubt the husband’s evidence contained in his affidavit and I do not regard it necessary to have evidentiary support for so prosaic an explanation.
Next, the solicitor for the wife argued that the husband gave no explanation as to why he left the filing of the appeal as late as he did, that is trying to file it on the last day of the 28 provided by the relevant Rules. In his affidavit, the husband sets out the process by which he attempted to obtain advice and his decision to bring the appeal which I accept.
The delay such as it is, has been satisfactorily explained.
The history and conduct of the proceedings
The husband filed an application for property and parenting orders in the Federal Circuit Court in November 2018. On 15 February 2019 the wife sought interim spouse maintenance. After a number of directions hearings before a judge of the Federal Circuit Court, the matter was transferred to the Family Court for further hearing. In March 2020 the parties agreed on orders which, in effect, provided for the parties to take out a mortgage on their property located at C Street, Suburb D to a maximum amount of $100,000 which is to be paid to the wife against her pending and anticipated legal fees. The wife’s application for spousal maintenance was then heard by a judge of the Family Court who made interim parenting orders and an order for interim spousal maintenance of $836 per week in the wife’s favour. This is the order sought to be challenged on appeal. The balance of the parties’ applications are awaiting the allocation of a hearing date.
In submissions on this topic, the solicitor for the wife pointed to the delay in the hearing of the applications, which is regrettable. It was also baldly asserted that the husband had “dissipated substantial funds” and “failed to provide full and frank disclosure”. These submissions no doubt form the basis of the wife’s case which may or may not be made good when the matter comes on for final determination. The elevation of untested and contentious assertions as a matter to be taken into account against the husband in considering whether time should be extended to bring the appeal is misplaced and I regard them as irrelevant.
Merit of the appeal
The wife’s solicitor argued that the husband’s grounds do not identify error and thus contended that the husband’s appeal is without merit.
I do not agree. Having regard to the reasons and the grounds as expressed in the husband’s proposed Notice of Appeal, I could not conclude that there was such little merit in the appeal that, all other things being equal, it would be futile to grant and extension of time.
Equally, the merits of the proposed appeal as I see them are sufficient to justify a grant of leave to appeal.
Prejudice to the wife
It was argued that the delay in obtaining the order and the wife’s present financial circumstances mean that further proceedings will result in prejudice to her. It must be understood that there is no evidence that the challenged orders have been stayed and I assume that the wife is receiving the maintenance orders.
It was submitted that the consent order requiring payment to the wife of $100,000 to meet her legal fees had not been complied with, although no enforcement proceedings have been brought. However, the payment of the wife’s legal fees has not apparently prevented her from representation at this hearing and I am not persuaded that any delay in the payment of that sum is a necessary or relevant hardship.
Further I am of the view that a requirement of strict compliance with the Rules would work an injustice on the husband.
I am thus of the view that the husband should be given an extension of time in which to appeal and the Notice of Appeal is to be filed no later than 4.00 pm on Friday 22 May 2020.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
15 May 2020
Associate:
Date: 15 May 2020