Carbry and Hazart
[2020] FamCAFC 67
•27 March 2020
FAMILY COURT OF AUSTRALIA
| CARBRY & HAZART | [2020] FamCAFC 67 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where incomprehensible and unmeritorious challenges advanced by the husband – Where the appeal wholly lacks merit – Where no adequate explanation for the delay in filing a Notice of Appeal – Oral application to adjourn the hearing of the Application in an Appeal dismissed – Application in an Appeal dismissed – Husband to pay the wife’s costs as assessed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 1.14(1) and r 1.21 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Carbry |
| RESPONDENT: | Ms Hazart |
| FILE NUMBER: | BRC | 8600 | of | 2018 |
| APPEAL NUMBER: | NOA | 12 | of | 2020 |
| DATE DELIVERED: | 27 March 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 3 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3627 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Michael Dwyer Solicitor |
Orders
The husband’s oral application to adjourn the hearing of his Application in an Appeal filed 16 January 2020 is dismissed.
The husband’s Application in an Appeal filed 16 January 2020 is dismissed.
The husband is to pay the wife’s costs of and incidental to his Application in an Appeal filed 16 January 2020 within twenty-eight (28) days of their assessment.
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 Carbry & Hazart 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 CAIRNS |
Appeal Number: NOA 12 of 2020
File Number: BRC 8600 of 2018
| Mr Carbry |
Applicant
And
| Ms Hazart |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 13 December 2019, pursuant to an Application in a Case filed by Ms Hazart (“the wife”) the primary judge made orders that required Mr Carbry (“the husband”) to vacate the parties’ former matrimonial home at C Town, in the D Region (“the property”). Ancillary orders were also made, restraining the husband from entering the property thereafter, from having contact with the real estate agent conducting the sale, or any perspective purchaser, of the property. He was also, by injunction, required to remove all of his personal items from the property.
No appeal from those orders was brought within the time limited for its institution. Now, by Application in an Appeal filed 16 January 2020, the husband seeks two orders. The first is to extend time in which to lodge an appeal, not only in relation to the primary judge’s orders, but also in relation to two earlier sets of orders said to have been made by both the primary judge, and another Federal Circuit Court Judge. The second order the husband seeks is that the court “waive the filing and Auscript fees associated with these appeals”. For her part, the wife resists the Application in an Appeal, and seeks that it be dismissed.
On 3 March 2020 I heard the Application in an Appeal (together with an oral application by the husband to adjourn the hearing) and reserved my decision. For the reasons which follow, the husband’s applications must be dismissed.
BACKGROUND
The property is a part of land which has been owned by the husband’s family since 1867. The means by which it came into the husband’s (and later, his and the wife’s joint) ownership is unclear, but irrelevant.
The parties are in dispute as to the date of the commencement of their de facto relationship (seemingly either 1995 or 1999) or its cessation (either April 2016 or April 2017), but on any view it was of lengthy duration. It appears as though during the course of the relationship the husband, or perhaps the parties, established a plant nursery business on the property. The husband appears to assert that he continues to operate that business there.
The parties’ relationship bore one child, a son presently aged six, albeit shortly to turn seven.
After separation, the wife and child moved out of the property, and the husband remained living there. That remained the situation as at the time of the primary judgment, and indeed the hearing of the husband’s Application in an Appeal.
THE HUSBAND’S APPLICATION FOR AN ADJOURNMENT
During the course of the hearing on 3 March 2020, I alerted the husband to the potential deficiencies in his affidavit filed in support of his Application in an Appeal. Particularly, as I shall later discuss, I noted the complete lack of any particulars of efforts which, prior to the expiry of the time in which he could appeal, he had made, albeit unsuccessfully, to procure legal assistance.
That prompted the husband to seek an application to adjourn the hearing, so as he could augment his material in that respect. I then heard argument about that, and indicated I would deliver my decision in due course, but otherwise, to cover the eventuality that application was unsuccessful, heard the arguments relating to the Application in an Appeal filed 16 January 2020.
The overriding consideration in an application for an adjournment is where the interests of justice lie. Here, as shall be seen, a further contract for the sale of the property is due to settle on 30 March 2020. If the matter were to be adjourned, there is no certainty that the husband could file additional material, and the matter be heard and determined, prior to then.
However there is a more fundamental difficulty. As shall be seen shortly, the husband’s appeal is wholly without merit. To adjourn the hearing of the husband’s Application in an Appeal seeking to extend the time to file the appeal would, in those circumstances, be an exercise in futility, in that even if the husband were able to augment his material with evidence of his unsuccessful attempts to obtain legal assistance, the application would still be doomed to fail.
I therefore dismiss the husband’s application to adjourn the hearing, and will now proceed to deal with the Application in an Appeal.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Rule 1.14(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that “(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.”
Whilst there are no criteria specified either in the primary Family Law Act 1975 (Cth) or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480–481, McHugh J said:
[A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. 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; 70 ALR 185. 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 263-4; 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 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.”
(As per the original)
The following factors are established by the authorities as being potentially relevant:
·The nature and history of the proceedings;
·The length of the delay, and any explanation for the same;
·The merits of the appeal; and
·Any prejudice or other consequence for the respondent if leave is granted.
NATURE AND HISTORY OF PROCEEDINGS
The wife commenced the principal proceedings on 31 July 2018. They concern both parenting and property matters. According to the chronology contained in the primary judge’s reasons, although when the matter was first before Judge Coates on 2 October 2018, the husband was ordered to file his material in response by 16 October 2018, he did not in fact do so until 19 August 2019. By then, the matter had been before other judicial officers, including Judge Purdon-Sully on 17 April 2019. On that occasion her Honour made a number of orders including:
1.That by 4:00pm on 17 May 2019 the husband will provide to the solicitors for the wife a signed letter evidencing an unconditional grant of approval by a financier of a loan to refinance the mortgage over the property at [B Street], [C Town] more particularly described as Lot … on … being the whole of the land comprised in Title Reference ….
2.That in the event the husband is not able to comply with Order 1 herein, the property will be listed for sale within 24 hours and the wife will be appointed trustee on behalf of both the husband and herself for the purpose of sale.
(As per the original)
It is not in contention that no letter evidencing an unconditional grant of approval by a financier was provided by the husband within the time stipulated by the first order, and accordingly, as the primary judge correctly identified, the sale of the property was triggered, and under the second order, was to be listed for sale within 24 hours.
Exercising her powers as trustee for sale, on 20 August 2019 the wife entered into a contract for the sale of the property, which, after it became unconditional, was due for settlement on 25 October 2019.
However the husband did not vacate the property, despite requests by the wife’s solicitor to do so, which resulted in her filing, on 22 October 2019, an application seeking, in substance, the orders which were ultimately made by the primary judge on 13 December 2019.
At [37] of the reasons, the primary judge said:
37. I am further satisfied on the evidence of [Ms E] filed on 28 October 2019 and 27 November 2019 that the respondent has actively interfered with the proposed sale. As a result the sale did not settle on 25 October 2019.
I do not understand that last sentence to be controversial.
I will consider the somewhat unusual aspects of the hearing before the primary judge when considering the merits of the appeal.
LENGTH OF, AND EXPLANATION FOR, DELAY IN BRINGING APPEAL
Given that the orders were pronounced on 13 December 2019, it is not contentious that the time for bringing an appeal as of right (subject to any argument as to leave being required) was 28 days, which given r 1.21, meant that time expired on 13 January 2020. The husband’s attempt to file his Notice of Appeal on 14 January 2020 was rejected. His subsequent Application in an Appeal to extend time was filed 16 January 2020, only some three days outside of the time for lodgement of the appeal. The Notice of Appeal annexed to that application was purportedly signed by the husband on 13 January 2020.
It can therefore be seen that the length of delay is very short.
However, as I have already adverted to, the husband’s explanation for the delay advanced in his affidavit also filed 16 January 2020 is scant. At paragraph 21 he merely says:
21. On 13 January 2020, it came to my attention that the Orders granted in favour of the [wife] against me are in contravention of Case Authorities and the Family Law Act 1975 which should have prevented the Applicant from ever being granted agency rights over a property too which I had a valid equitable interest, prior to facts being fully tested at Trial.
(As per the original)
Some further explanation is advanced, but not sworn to, in the Application in an Appeal itself, where at paragraph 1.A. of Part D the husband says “in relation to the 13 December 2019 hearing of Judge Middleton, a lack of legal advisors available over the Christmas period of which to assist me in drafting an affidavit for the court in assessing the proceedings to date”. However, beyond this assertion, there is no material which speaks to unsuccessful efforts which the husband made after 13 December 2019 to seek legal representation or assistance, or indeed why he himself could not draft a Notice of Appeal, such as he did, and attached to his application to extend time to file a Notice of Appeal.
The husband’s material does not demonstrate an adequate explanation for his delay, very short though it be.
MERITS OF APPEAL
The grounds of appeal set out in the Notice of Appeal signed by the husband on 13 January 2020 are as follows:
1. The judge erred by breach of the fair hearing rule, breach of procedural fairness and breach of statutory requirement s42 of the Family Law Act 1975 and breach of his sworn oath to uphold the law to unfairly accept the orders made by the [wife’s] legal team, who failed to follow the mandatory required process to disclose important materials and service of documents to all parties prior to hearing in the correct manner.
2. The judge erred by exercising jurisdiction in excess, an abuse of process and failed to apply the rules of procedural fairness, failing the objective test and as such breached the fair hearing rule by making orders that facilitated the [wife] to obtain ‘agency’ on the [husband’s] behalf, allowing the [wife] to sell the family property that would make the [husband] homeless and jobless, ignoring the legal requirement for the proper review and audit of the marital assets as would be tested at trial.
3.The judge erred by failing to apply the Family Law Act 1975 as it relates to property settlement under s79 of the Family Law Act and related case authorities, and as such is an abuse of process and breach of procedural fairness principles.
4. The judge erred by not following the mandatory provisions and the intention of the Family Law Act and breached the principle of legality as it relates to:
a)The manner in which interim orders are made for finance, by failing to apply the binding precedent of stare decisis as ‘in the marriage of cilento’, and
b)Failing to apply the interpretation requirements of the Family Law Act 1975 under the acts interpretation act 1901 15a and 15ab; and
5. The judge erred by demonstrating actual and apprehended bias, breached his statutory duty and meets the elements of the tort misfeasance in public office.
It is extremely difficult to understand these grounds of appeal, or to construe them in a way that engages with any of the evidence, or the primary judge’s reasons.
Moreover, at Part D of the Notice of Appeal signed by the husband on 13 January 2020, the only details of the orders said to be appealed are those made by the primary judge on 13 December 2019, but in the Application in an Appeal, the extension of time is sought in relation to not only the orders made on that occasion, but also an earlier hearing before the primary judge (seemingly, said in the husband’s affidavit filed 16 January 2020, to be on 12 August 2019) and the hearing before Judge Purdon-Sully on 17 April 2019. In the orders which are sought in the Application in an Appeal, the following are said in relation to those two previous decisions:
b. In relation to the previous hearing of Judge Middleton, a miscarriage of justice in that the orders made were in contravention of higher court authorities to which I did not have legal, mental or financial capacity to defend at the time.
c. In relation to the previous hearing of [Judge] [Purdon]-Sully a miscarriage of justice in that the orders made were in contravention of higher court authorities to which I did not have legal, mental or financial capacity to defend at the time.
To the extent that these should, given the husband’s self-represented status, be regarded as if they are additional grounds in the proposed Notice of Appeal, again it is difficult to construe them in a way that asserts error in the exercise of a judicial discretion, or any other proper ground of appeal.
It is for the husband to persuade me that his appeal is meritorious. That is necessarily a difficult task, given the nigh incomprehensible assertions made in the grounds of appeal.
Moreover, none of the matters contended in relation to any of the orders appear to have been raised before either the primary judge or Judge Purdon-Sully. Whilst I do not have the previous reasons for judgment in the materials before me (and indeed, have been unable to locate any orders made by the primary judge on 12 August 2019) in the primary judge’s reasons for the orders of 13 December 2019, the conduct of the first instance proceedings is discussed. Particularly, it appears as though, despite the husband having not filed a response to the wife’s Application in a Case filed 22 October 2019, he nonetheless sought to resist the orders on the basis that there was a “bark treaty” (at [39]) relating to the property between himself and an aboriginal tribe, a paper variant of which was tendered into evidence. Inexplicably, also tendered into evidence without objection was what was described by the primary judge as “the paper version of the bark treaty in ‘correct parse syntax grammar performance’” (at [40]).
The primary judge’s reasons detail that thereafter the husband “argued that the proceedings were fraudulent, because all of the documents filed in the proceedings were not in the proper “parse syntax grammar”” (at [43]). The primary judge records that the husband then informed him that ““parse syntax grammar” is a form of language of which he is a practitioner, that is based on mathematical accuracies so as to avoid the possibility of english words being misunderstood” (at [44]).
All of this apparently culminated in what the primary judge recorded at [46] of the reasons, as follows:
46. The respondent then attempted to persuade me through submissions that if I made an order for him to vacate the property and restrain him from attending the property I would be interfering with his sovereign right to remain on the land pursuant to the bark treaty.
Unsurprisingly at [49]–[50] the primary judge concluded:
49. After considering all of the evidence before the court and the submissions made by both parties I am satisfied that the respondent is attempting to frustrate the proceedings and prevent the timely resolution of this property matter.
50. I am also satisfied that if I do not make the orders proposed by the applicant, the respondent will continue to frustrate any prospective sale which will have the ongoing effect of delaying these proceedings.
Those findings were well open to the primary judge.
Additionally, although it is unnecessary to traverse them in these reasons, the primary judge embarked upon a perfectly orthodox consideration of the powers and principles in relation to the grant of injunctions, after which, he continued at [56] as follows:
56. Furthermore I am satisfied on the evidence that the respondent will continue to interfere with any prospective purchase of the property. I am satisfied that he has done so in the past and I am satisfied that his unmeritorious claim to some form of sovereignty will drive him to attempt to interfere with any subsequent purchase.
Accordingly, the primary judge made the impugned orders.
Leaving aside the incomprehensible and unmeritorious challenges which are advanced by the husband, my independent review of the primary judge’s reasons do not suggest that, even with the assistance of a legal practitioner, any meritorious ground of appeal is likely to be identified.
The appeal wholly lacks merit.
PREJUDICE OR CONSEQUENCE FOR WIFE IF EXTENSION GRANTED
In her affidavit filed 18 February 2020, the wife deposed to a second contract having been entered into for the sale of the property on 19 January 2020, which is due for settlement on 30 March 2020. Inferentially she says that she does not wish to lose a second sale of the property, which might be the consequence if there was an extension of time in which to bring the appeal, given that the appeal would thereafter not be determined for some period of time.
I accept that is the case, but in the overall scheme of things, I give such prejudice little weight.
EVALUATION
The husband has failed to demonstrate any merit in the proposed appeal, and moreover, advances under its cover matters which were not advanced before the primary judge. To the extent that the husband seeks to challenge orders other than those made 13 December 2019, the basis for the attack is completely opaque.
Whilst the period of time subject to the application to extend time arising from the 13 December 2019 orders is slight, to the extent that leave is sought in relation to earlier orders, the period of time is considerable. There is no adequate explanation for the delay in filing a Notice of Appeal in relation to the 13 December 2019 orders, and none whatsoever for any previous orders.
To extend time for the filing of a Notice of Appeal, the merits of which are completely lacking, would not be a proper exercise of the judicial discretion. It therefore follows that the husband’s Application in an Appeal, insofar as it seeks an extension of time in which to bring the appeal, must fail. That failure obviates the need to consider the further orders sought in relation to waiving the filing and Auscript fees.
OUTCOME
The husband’s Application in an Appeal filed 16 January 2020 should be dismissed in its entirety.
COSTS
At the conclusion of the hearing, Queens Counsel for the wife sought an order for costs.
I have little information as to the parties’ financial circumstances, although the husband contends the wife earns considerably more than he does. The application has failed in its entirety, and is without merit. It seems likely that it was part of a deliberate strategy on the part of the husband to seek to frustrate earlier orders of the court.
I am satisfied that it is appropriate in these circumstances that the wife should have an order for costs in her favour. There will therefore be an order that the husband pay the wife’s costs of and incidental to the husband’s Application in an Appeal, within 28 days of their assessment.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 March 2020
Associate:
Date: 27 March 2020
0
4
2