Darte & Darte
[2008] FamCAFC 38
•25 March 2008
FAMILY COURT OF AUSTRALIA
| DARTE & DARTE | [2008] FamCAFC 38 |
| FAMILY LAW – APPEAL – LEAVE TO FILE CROSS-APPEAL OUT OF TIME – Slight delay – No prejudice to appellant - Leave granted FAMILY LAW - COSTS – Costs reserved to Full Court |
| Family Law Act 1975 ss 75(2); 79; 94AAA(10)(a) Family Law Rules 2004 R 22.07, 22.08 |
| Moi v Fong (1976) QdR 7 |
| APPLICANT: | MRS DARTE |
| RESPONDENT: | MR DARTE |
| FILE NUMBER: | BRC | 4099 | of | 2007 | |
| APPEAL NUMBER: | NA | 8 | of | 2008 |
| DATE DELIVERED: | 25 March 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1104 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR HANDRAN |
| SOLICITOR FOR THE APPELLANT: | RICHARD GRAY & ASSOCIATES |
| COUNSEL FOR THE RESPONDENT: | MR A.L SMITH |
| SOLICITOR FOR THE RESPONDENT: | CLIVE SPEAKMAN |
Orders
That the respondent husband be given leave to file and serve a cross-appeal on or before 4.00pm on Friday, 28 March 2008;
That the respondent husband be given leave to file and serve an Application to Adduce Further Evidence together with a supporting affidavit in terms of paragraph (2) of the application filed on 13 March 2008 on or before 4.00pm Monday, 14 April 2008;
That the costs of the appellant wife of and incidental to this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Darte & Darte 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 BRISBANE |
Appeal Number: NA 8 of 2008
File Number: BRC 4099 of 2007
| MRS DARTE |
Appellant
And
| MR DARTE |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Application to file cross-appeal out of time
The husband wishes to file a cross-appeal from orders made by
Purdon-Sully FM on 21 December 2007, out of time. If he is given leave, he also asks permission for an application to be filed to provide further evidence on the appeal.
The notice of appeal was filed on 16 January 2008, and in essence the grounds include a refusal of the Federal Magistrate to grant an adjournment and discretionary matters related to property settlement orders. The application for leave to file a cross-appeal was filed on 13 March 2008.
The application is opposed by the appellant wife. Mr Smith of counsel, who appears for the wife, submits that there has not been a proper explanation for the delay, and that there is no merit in the proposed cross-appeal.
Rule 22.07 of the Family Law Rules 2004 provides that:
A respondent to an appeal or an independent children's lawyer who intends to argue that an order under appeal should be varied or set aside must cross-appeal by filing a Notice of Appeal endorsed as a cross-appeal.
Rule 22.08 of the Family Law Rules 2004 provides that:
A Notice of Appeal for a cross-appeal must be filed within 14 days after the Notice for the appeal is served on the cross-appellant.
An application may be made for an extension of time to cross-appeal pursuant to s 94AAA(10)(a) of the Act. No criteria is provided for how the discretion should be exercised.
The orders made by Purdon-Sully FM were in relation to property settlement.
The cross-appeal seeks to challenge paragraph 1 of those orders in relation to the monetary sum payable by the husband.
As I have already mentioned, the application for leave was filed on 13 March 2008, less than two months out of time. The affidavit of the husband seeks to explain the delay on the basis that the advice received from counsel at first was not to appeal, and when further advice was obtained counsel's opinion altered. An affidavit sworn by the husband's solicitor confirms that advices had been received from counsel, as the husband describes in his affidavit.
In relation to paragraph 2 of the application, it is said that there are circumstances since the hearing of the appeal about which the husband would wish to file an application and affidavit including the health of the children and information about the wife's employment.
The appeal is listed for hearing in the May sittings. Although directions have already been made, it is apparent that the filing of a cross-appeal will not delay the hearing. The applicant would wish to adduce further evidence, as I have mentioned, and that question would need to be argued and decided by the Full Court if leave is granted.
In relation to how the Court should exercise the discretion to allow a cross-appeal out of time, reference was made to a number of cases which unsurprisingly set out the following criteria:
a)sufficient explanation for the delay;
b)that the grounds of appeal raise a substantial issue;
c)that any hardship suffered by the respondent to the application should be considered with a consideration of terms being provided.
In relation to delay, counsel for the applicant explained that the only explanation was his own first negative advice, followed more recently by an advice that there are prospects of success on appeal. In response it is submitted that the transcript was available to the solicitors on 5 February, and that counsel's changed advice must be related to the further evidence it is hoped will be allowed on appeal.
It was submitted by counsel for the respondent to this application that the rules of Court must be obeyed, and to allow leave in this case would give the applicant an unqualified right.
Reference was made to a number of cases, including Moi v Fong (1976) QdR 7 where an extension of time to appeal was not allowed. It was submitted that even if the delay has been explained the discretion should not be exercised in the applicant's favour. Further, that there is no merit in the cross-appeal, especially as it appears to depend, at least in part, on circumstances arising after the hearing.
In my view the delay is of such a short period and that other than the respondent wishing to have an opportunity to oppose such a cross-appeal, where different orders are asked it cannot be said that to allow the cross-appeal to be filed now would cause any real prejudice to the wife.
Reference to the proposed grounds of cross-appeal demonstrate that although this is inevitably an appeal against an exercise of discretion there are proper grounds relating to s 79 of the Family Law Act, and especially s 75(2).
In this case the applicant has satisfactorily explained the slight delay. It is apparent that there are grounds to be argued, and that to permit the application will not delay the hearing of the appeal, nor will the filing of the application for further evidence to be adduced. Whether the Full Court allows that evidence to be received can only be determined as part of the appeal overall.
Costs
The final matter that I must consider is the question of costs. The respondent asks for costs on the basis that it was the husband who was out of time in filing the cross-appeal. The applicant asks for their costs on the basis that the respondent should have consented to their application. These are reasonable arguments. However, an important fact in deciding the question of the costs of this application must be the outcome of the cross-appeal itself. If it is unsuccessful it would no doubt follow that the respondent to this application should have their costs. If the cross-appeal succeeds in some way the question of costs may raise a number of different arguments. Overall, it is better to reserve the costs to the Full Court.
The orders of the Court then are as follows:
I certify that the preceding twenty one (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 8 April 2008
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