CHRISTENSEN & POWELL

[2020] FamCAFC 148

FAMILY COURT OF AUSTRALIA

CHRISTENSEN & POWELL [2020] FamCAFC 148

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file an appeal against interlocutory orders – Where the applicant husband was 30 days late in filing the Notice of Appeal – Sufficient explanation for delay – No merit in the appeal – Where refusing an extension of time would not occasion a substantial injustice – Application dismissed – Husband to pay the respondent wife’s costs of the application.

Family Law Act 1975 (Cth) ss 94AA, 117

Family Law Rules 2004 (Cth) Sch 3, r 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPLICANT: Mr Christensen

RESPONDENT: Ms Powell

FILE NUMBER: CAC 1032 of 2018

APPEAL NUMBER: EAA 69 of 2020

DATE DELIVERED: 19 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney (via video link)

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 16 June 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 30 March 2020

LOWER COURT MNC: [2020] FamCA 203

REPRESENTATION

THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: DDCS Lawyers

Orders

1. The Application in an Appeal for an extension of time in which to appeal filed on 27 May 2020 is dismissed.

2. The applicant husband pay the respondent wife’s costs of the application fixed in the sum of $2,990.80 within thirty (30) days of these orders or to be deducted from any money to be paid to the husband as part of the property settlement orders, and that sum to be paid to the wife before receipt of the balance of the funds by the husband.

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 Christensen & Powell 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 69 of 2020
File Number: CAC 1032 of 2018

Mr Christensen

Applicant

And

Ms Powell

Respondent

REASONS FOR JUDGMENT

1. Mr Christensen (“the husband”) seeks to appeal against interlocutory orders made on 30 March 2020 by a judge of the Family Court.  The orders concern the property settlement aspect of property and parenting proceedings currently on foot as between the husband and Ms Powell (“the wife”).  The challenged orders relate to the parties’ self-managed superannuation fund.  The parties’ property settlement and parenting proceedings had been heard by the primary judge who has reserved his decision.  The challenged orders were made while judgment in those proceedings was reserved.

Background

1. The parties are beneficiaries and joint trustees of a self-managed superannuation fund (“the fund”) which fell to be considered as part of their property proceedings.

2. After judgment was reserved, the primary judge came to understand that the fund was non-compliant with relevant legal obligations, and further he was of the view that the evidence given in the trial did not enable him to identify each parties’ member balance in the fund.

3. Thus his Honour made directions for the provision of further evidence by each party as to how they proposed these difficulties could be overcome in order that judgment proceed to finalisation.  There was a hearing on this issue before his Honour.

4. It is apparent from his Honour’s reasons that the default of the fund was raised during the principal hearing because he noted that the wife’s position then was that she could not take steps to rectify the defaults because she did not have access to the all necessary documents.  The primary judge noted that the husband disputed that and maintained that the wife had all the documents necessary to rectify any default.  The husband declined to attend to any rectification (at [4]–[5]).

5. In any event, the primary judge’s reasons indicate that in the subsequent hearing, the wife proposed that she would take whatever steps were needed to ensure compliance of the fund, including engaging accountants for the purpose of obtaining  advice and to liaise with the Australian Taxation Office (“the ATO”) about the matter.  Further, his Honour noted that the wife proposed to provide statements and advice from the accountant engaged which would set out the value of the parties’ superannuation interests to enable the matter to proceed to judgment.  Although the wife’s position at trial was that she did not have access to all the necessary documents, on the interlocutory application his Honour noted that she had reviewed material and, but for some information required to be lodged that needed a password (apparently held by the husband), she had all of the necessary information (at [10]).

6. The husband argued to the primary judge that while the wife should bear the responsibility of bringing the fund into compliance, any costs of ensuring compliance and any payments outstanding to the ATO should be borne by the wife alone.

7. A second issue before his Honour at this interlocutory stage was whether the previous fund administrators continued to act.  It seems from his Honour’s reasons that there was some uncertainty as to whether they were still involved.

8. His Honour then said:

   16. The [h]usband’s position leaves uncertainty as to whether or not the appropriate steps would be able to be undertaken.  The [w]ife’s position does not leave that same uncertainty.  She addresses appropriate steps including the seeking of professional advice to enable the fund to be made compliant.  While the [h]usband complains that this will constitute a duplication with the role of the current administrator, and in fact it may do so, it is unclear that that is the case.  It seems necessary, or at least reasonable, for the parties to have access to professional advice to assist in interactions with the ATO in relation to the defaults in the administration of the fund, not least in the hope of garnering reduction or removal of penalties which would otherwise draw upon the resources that the parties otherwise have available.

   17. Although the current administrator has withdrawn some fees, it is not apparent why that has happened and it is not clear what their current role is and it is not clear that they will provide sufficient advice to undertake the tricky path of not only rendering the funds compliant, which may be straightforward, but the tricky path of dealing with the ATO.

   18. The [w]ife has taken the step of estimating the amount of costs such that they are not overly onerous.  She has also identified an appropriate source of funding for the meeting of those costs.  The taking of those steps would enable just and equitable orders to be made to deal with the pool and the orders as sought by the [w]ife, under those circumstances, should be made.

9. His Honour made orders the following of which are sought to be challenged on appeal.  The wife was the applicant before the primary judge in the trial:

   (2) Within 14 days the [husband] provide to the [wife’s] solicitors a copy of the Trust Deed for the [f]und.

   (3) Within 30 days of the date of these Orders the Applicant [w]ife will do all acts and things to provide all necessary instructions and information to [J Accountants] of Canberra to enable that firm to take all necessary steps to make the [f]und compliant with the requirements of the Superannuation Industry (Supervision) Act 1993 and other superannuation regulations and relevant tax obligations, including but not limited to, preparation of annual [f]und financial statements for the financial years ended 30 June 2017, 2018 and 2019 and the part financial year ended 31 March 2020, the preparation of Member statements and Trustee’s resolution and Minutes, preparation of an annual audit for each outstanding financial year and lodging annual tax returns for each outstanding financial year and to facilitate this order…

   …

10. The balance of Order 3 directs the wife to pay the accountant’s fees from the fund’s bank account; that the accountants be instructed to make representations to the ATO in relation to any penalties and outstanding tax and any fees and penalties be paid out of the fund’s bank account.  The order further directs the parties, as trustees of the fund, to sign documents authorising the accountants to bring the fund to compliance and, to provide the parties with a fund balance sheet and statement of member benefits.

11. The husband wishes to appeal against those orders.  However, he is out of time in which to lodge a Notice of Appeal and thus needs an extension of time in which to bring the appeal.

Extending time in which to appeal

1. 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. The husband’s application for an extension of time in which to appeal was filed on 27 May 2020. He is thus 30 days outside the time provided for in the Rules.

2. The wife opposes the husband’s application.

3. The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave. It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.

4. The exercise of discretion also involves an assessment of the prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought.  This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”.  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.

Delay and the reason for it

1. The husband asserts that the “essential” reason for the delay is that other circumstances prevented the necessary research and preparation required to file the Notice of Appeal.  Those reasons include that as a self-litigant he had to undertake research which was stressful and caused a backlog of other tasks he needed to take care of in the week following the hearing.  He also said that the COVID-19 pandemic caused him additional burdens including a 100 per cent loss of his income until he had the benefit of receiving the JobKeeper allowance which is now his sole income.  During this time he sought legal advice but found that the Legal Aid duty solicitor scheme had been suspended and other avenues proved to be unable to provide him with any clear or useful legal advice, so he resolved to handle the appeal himself.

2. The husband said that there was another application before the Family Court which was listed for hearing on 8 May 2020 and he needed to prepare for this which temporarily diverted his attention away from the preparation of the appeal.  The husband says that from 9 May 2020, he focused exclusively on the appeal even postponing desperately needed work from his day job so he could devote himself to the research and preparation of the appeal.  The husband asserted that it was also necessary to “balance any legal work with other work/life duties during the whole period since [30 March 2020], and in the extraordinary circumstances of a pandemic”.

3. The husband’s desire to balance work and life duties against the time imperative for filing the appeal does not, of itself, speak to a reasonable explanation for the delay.  I am however prepared for these purposes to accept that especially during the general upheaval and uncertainty surrounding the pandemic, the husband has explained the delay in filing the appeal within the necessary time period.

Merits of the proposed appeal

1. The husband acts for himself and drew the grounds of appeal.  The challenges are directed to Orders 2 and 3.  The proposed Notice of Appeal not only sets out the grounds of appeal but also includes the husband’s arguments in relation to each ground.

Order 2

1. Order 2 requires the husband to provide a copy of the Trust Deed for the fund to the wife in order for her to commence the process of bringing the fund to compliance.

2. Although addressed over more than three pages in the husband’s proposed Notice of Appeal, the thrust of the challenge appears to be the husband’s contention that the wife already had a copy of the Trust Deed and the error lies in his Honour’s order that he provide her with a copy.

3. The primary judge said of this matter:

   19. I note one aspect in particular of those which relates to the provision of a copy of the Trust Deed.  The [h]usband has asserted that he has provided the Trust Deed on a number of occasions.  The [w]ife still seeks the Trust Deed.  At best as I can tell, during the trial, this dispute emanated over a fracas of the [h]usband providing documents directly to the [w]ife and the [w]ife refusing such provisions, saying it should occur via her solicitor.  What remains clear is that given the assertions made by the [h]usband that he has provided that Trust Deed in the past, he has access to such to provide it now.  It may well be that the [w]ife somewhere has that document.  That document is necessary to resolve the dispute, it is necessary to ensure that the [w]ife has it given the responsibility that she will take on with rendering the self-managed superannuation fund compliant and there appears to be little or no inconvenience in the direct provision of [the] document.  That order will be made.

4. It seems that the essence of this challenge is that the primary judge failed to take into account, or perhaps more accurately, did not prefer the husband’s evidence on this matter which is that he had provided the Trust Deed to the wife some time before.  From that contention flows a number of matters which the husband addressed in his proposed Notice of Appeal.

5. The husband contends in paragraphs 4(e) and 5 that Order 2 is “superfluous” and constitutes a “substantial injustice” to him.  The husband, at paragraph 6, contends that the wife has embarked on a “long-running ‘campaign’ of misinformation about disclosure”.

6. Next, at paragraph 7, the husband argues that the making of this “superfluous” order creates an apprehension of bias because it was made in the face of his assertions that he had already provided the document to the wife, and in making the order the primary judge in effect paid no regard to his evidence.

7. Thus, while the husband argues that the unfavourable treatment has caused him disadvantage and is likely to lead to more disadvantage, he does not say what that disadvantage is, nor does he articulate what “substantial injustice” the making of the order creates.

8. He concludes his argument by saying:

   12. In summary, the only correct decision would have been not to grant the order requiring me to (re-)disclose the document, and I seek its annulment as a crucial step in correcting the course of justice in this case. This annulment is also an important contribution to public confidence in the administration of justice in the Federal [C]ourt system.

   (As per the original) (Emphasis in original)

9. As is apparent from his Honour’s reasons in the passage quoted above, his Honour accepted the husband when he said he had given a copy to the wife and his Honour’s order merely required the husband to make another copy available.

Order 3

1. The husband also challenges Order 3 which directs the wife to take all steps necessary to rectify the fund’s non-compliance.  Before considering the husband’s proposed challenges to this order, it is to be recalled that he, while having possession of all of the necessary documents, declined to attend to rectification.

2. The first challenge to the order is the husband’s contention at paragraph 22 in his proposed Notice of Appeal, that his Honour’s order pays insufficient attention to “various relevant superannuation, trust and taxation legislation, rulings, guidelines, professional codes of practice and other such documents (“the law”)” and his submissions maintain that the order is in conflict with or ambiguous in relation to the law.

3. None of these matters was raised in the argument before the primary judge.  The  husband argued that while he understood the orders being contemplated by the primary judge were aimed at bringing the fund to compliance, the detail of the orders were not made plain to him so that he had no opportunity to raise these issues with his Honour.  Neither however did the husband indicate to this Court which particular aspects of the identified “law” was in conflict with his Honour’s orders.  The husband said that this would be included in the Appeal Book in due course.  Thus it is impossible for this Court to assess the husband’s assertions of there being a conflict of laws nor is any such conflict or ambiguity immediately apparent.

4. Next, the husband contends that as a trustee of the fund he objects to accountants being engaged to address the fund’s non-compliance and thus any costs incurred must be the wife’s liability.  His objection was apparent to the primary judge and is reflected in the discussion of the point in the reasons for judgment (at [7] and [15]).  The husband’s argument was not accepted (at [18]).  This challenge as with many of the others is in effect a complaint that the primary judge did not accept the husband’s submissions.

5. The husband argues that the primary judge failed to have sufficient regard to his evidence and submissions of the husband, and made errors of fact in a number of respects including his contention that there was at the time a firm of accountants engaged to administer the fund.

6. Additionally, the husband argues that the making of Order 3 creates a personal disadvantage to him and amounts to being a “substantial injustice” because whilst the order contemplates the payment of penalties and outstanding tax to the ATO, it does not directly allow him to engage with the accountants.

7. The husband further argues at paragraph 26 of his proposed Notice of Appeal, that the order constitutes “evidence of apprehension of bias” in that it inherently disadvantages him, as the order undermines his “right and responsibilities as both an individual and a trustee, while awarding significant control to the [wife]”.

8. As part of this ground of appeal, the husband takes issue with the primary judge’s reference, in passing, to the fact that there is no communication between the parties which, his Honour observed at [8], occurs in circumstances “where the [h]usband accepts that he engaged in an act of extreme family violence upon the [w]ife”.  The solicitor for the wife submitted, apropos this point, that the husband did not, in the trial before the primary judge, take issue with the facts of the incident to which this is a reference but rather cavilled with its description as family violence.

9. It is impossible to understand how this passing comment, in the circumstances of the making of the challenged order could result in appealable error.

1. Finally, the husband contends at paragraph 27 of his proposed Notice of Appeal, that the terms of the order “far exceeds what should have been the scope of the order” and the ground contends that had the primary judge done what was submitted by the husband, the order’s terms would have been correct.

Discussion

1. As I have said, the exercise of discretion to extend time also involves an assessment of prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought.  This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”.

2. It must first be understood that even had the husband filed his appeal against the orders of the primary judge within the time specified in the Rules, he still required leave to appeal against those order because they are interlocutory
   (s 94AA of the Family Law Act 1975 (Cth) (“the Act”)). Thus when considering the merit of the proposed appeal, it must be done through the prism of the nature of the orders sought to be appealed.

3. The test for granting leave to appeal from an interlocutory order is two-fold. First, that the decision in question is attended with sufficient doubt to warrant the grant of leave.  The second requirement is that a substantial injustice will result from a refusal of leave to appeal (Medlow & Medlow (2016) FLC 93-692 at [57]).

4. Turning first to the second limb of the test for granting leave to appeal, it is accepted that an appeal lies from an interlocutory order which affected the final result (see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 (“Gerlach”) at [6]). However the existence of an apparent error will only result in a new trial or appellate intervention where that error resulted in a miscarriage of justice (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 144). Put another way, Kirby and Callinan JJ in their separate judgment in Gerlach said at [49] that the point sought to be appealed must be relevant to the disposition of the case, for otherwise it would be futile to intervene.

5. It is also well accepted that a party need not appeal from an interlocutory judgment, such as this, but can wait until final judgment is delivered (see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [78]).

6. Here, the impugned orders do no more than provide for further evidence on an isolated point and, of course, there is no final result.  His Honour’s orders did not finally determine the issue of how the fund is to be considered in the context of the parties’ property proceedings and I am of the view that no substantial injustice would accrue if leave was not granted.

7. Turning then to the first limb of the test, even had leave not been required I am of the view that the husband’s grounds and asserted challenges to the primary judge’s orders, even read with a benevolent eye as having been drafted by a

   
   

   self-represented litigant, do not demonstrate sufficient merit and to otherwise extend time in which to appeal would be futile.

8. The application for extension of time in which to appeal will be dismissed.

Costs

1. It was submitted for the wife that in the event that the husband’s application was unsuccessful, the Court should order the husband to pay the wife’s costs of the application which were assessed, according to Schedule 3 of the Rules at $2,990.80.

2. The first question is whether any costs order should be made given the general principle to which s 117(1) of the Act speaks, that is that each party to a cause should be responsible for his or her own costs, unless the Court is of the opinion that the circumstances justify the making of a costs order.

3. Here, the application has been wholly unsuccessful (s 117(2A)(e)) and the appeal has such little merit that it would be futile to grant an extension of time.  Secondly, the wife’s financial circumstances as revealed in her Written Submissions dated 15 June 2020 at paragraph 24 and her affidavit filed on

   
   

   15 June 2020 at paragraphs 36–37, show that she is responsible for all of the children’s expenses and the husband has been assessed to pay child support which he currently does not pay and is over $14,000 in arrears (s 117(2A)(a)).

4. The husband opposes an order for costs.  He said that he lost work because of the pandemic and is in receipt of JobKeeper payments.  While the husband’s present finances might speak against the making of an order for costs, the parties’ property proceedings are not yet finalised and there will be funds from which an order for costs may be met.  In my view it is appropriate that he pay the wife’s costs as assessed of the application.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 19 June 2020.

Associate:

Date:  19 June 2020