Dawson and Dawson - [2011] FamCAFC 40

FAMILY COURT OF AUSTRALIA

DAWSON & DAWSON

[2011] FamCAFC 40

FAMILY LAW – APPEAL - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where final property settlement orders were made but an application for spousal maintenance was adjourned – where the spousal maintenance application was subsequently dismissed – where the wife is out of time to appeal the property settlement orders but within time to appeal the dismissal of the spousal maintenance application – where there is an adequate explanation for the delay – where there are arguable grounds of appeal – consideration of the consequences for the parties if the application is granted or refused – extension of time granted.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004(Cth) rr 22.02, 22.03 & 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Dawson

RESPONDENT:

Mr Dawson

FILE NUMBER:

MLC

9982

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

7 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 August 2010

LOWER COURT MNC:

[2010] FMCAfam 874

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Hughes Legal

COUNSEL FOR THE RESPONDENT:

Mr Spicer

SOLICITOR FOR THE RESPONDENT:

Pearsons Barristers & Solicitors

Orders

The time for the wife to file and serve a Notice of Appeal against the orders made by Federal Magistrate Turner on 18 August 2010 be extended to close of business on 21 February 2011.
The question of the costs of and incidental to the Application in an Appeal filed 26 November 2010 be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Dawson & Dawson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 90 of 2010
File Number: MLC 9982 of 2009

Ms Dawson

Applicant

And

Mr Dawson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an Application in an Appeal filed on 26 November 2010 by Ms Dawson, who is the wife in these proceedings. In that application the wife seeks that she be granted leave to appeal out of time against the orders made by Federal Magistrate Turner on 18 August 2010.
What happened in this case was that before the Federal Magistrate there were applications in relation to property settlement and spousal maintenance. The hearing took place in June 2010 in relation to those matters, and his Honour delivered reasons for judgment on 18 August 2010. However, his Honour found that he was only able to deal with the property settlement issues. In relation to the spousal maintenance issue, his Honour considered that he did not have sufficient evidence before him to determine that application. Thus his Honour made final orders for property settlement but adjourned the application of the wife for spousal maintenance for further hearing on 30 September 2010, and made orders for the filing of further affidavits.
Further affidavits were filed and the matter proceeded on 30 September 2010. His Honour then delivered further reasons for judgment on 13 October 2010 in relation to the spousal maintenance issue. His Honour dismissed the application.
On 9 November 2010 the wife filed a Notice of Appeal against both the orders made on 18 August 2010 and 13 October 2010. However, as it happened, she was out of time to appeal against the orders of 18 August 2010, and on 18 November 2010 she filed an Amended Notice of Appeal limited to the orders made on 13 October 2010. Then on 26 November, as I have already adverted to, the wife filed the Application in an Appeal which is before me today.
In support of the application there is a brief affidavit filed by the wife, comprising some eight paragraphs. The application is opposed by the husband.
The relevant statute law and rules that apply here are as follows:
6.1Section 94AAA(1) of the Family Law Act 1975 (Cth) provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
6.2      Section 94AAA(5) provides:
(5)      An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
6.3      Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
6.4Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
6.5Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
6.6Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
The law in relation to applications for extension of time is well settled and the High Court case which is often cited is that of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
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 & 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 194-5; 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.
That decision has been followed in a number of Full Court cases, including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Addressing the relevant factors arising in this case. There is first the question of delay, and the explanation for that. Of course, as is apparent, a Notice of Appeal was not filed within the requisite 28 days, and it was not until 26 November 2010 that the application seeking an extension of time was filed. There has been much discussion between bench and bar as to this issue, but my reading of the affidavit in support of the application, and my assessment of the submissions that have been made on the wife’s behalf, is that a primary reason for the delay is that, given the adjournment of the application for spousal maintenance, until that application had been determined the wife was not aware of her, as she describes it in her affidavit, “full entitlements”, and I add to that, her full entitlements in relation to all financial matters in dispute between the parties. And further, given that the wife says that it was not possible to make a decision as to whether or not an appeal should be lodged in respect of the orders made on 18 August 2010 until the spousal maintenance application had been determined, and that was not determined until 13 October 2010, she delayed filing a Notice of Appeal in relation to the orders for property settlement to await the outcome of the spousal maintenance proceedings so that she could then make a fully informed decision as to whether to lodge an appeal against any order, whether it be made on 18 August or 13 October.
Mr Spicer, for the husband, has suggested that I should not view the wife’s position as generously as I have just outlined, and his submission to me on behalf of his client is that when one looks at the grounds of appeal which were promoted in the initial Notice of Appeal in relation to the orders of 18 August 2010, they were all grounds of appeal of which the wife would have been aware, either at or not long after the delivery of the reasons for judgment on 18 August, and no reason can be found there for delaying the filing of the Notice of Appeal.
Mr Spicer further submits that the only specific error of the Federal Magistrate that the wife identifies in her affidavit is in paragraph (6) wherein she deposes that, in delivering his judgment on 18 August, the Federal Magistrate made an error that her income tested pension was to be taken into account. She continues that this error needed to be dealt with and corrected, and was corrected in the second judgment delivered on 13 October 2010. Mr Spicer makes the point that, in effect, that is the only issue that the wife has identified in that affidavit, yet that error in itself could not be the reason for, or the explanation for, any delay in filing a Notice of Appeal.
I have listened carefully to Mr Spicer and put various questions to him to clarify in my mind the submission he is making on behalf of his client, but for my part, I consider that the wife has established a reason for the delay, and it is encompassed in what I have said earlier as to my understanding of the position which is, to repeat – and I will add an extra element in the way I describe it – that as a result of how the Federal Magistrate determined to run the case, namely hearing the matter, delivering a judgment on part of it and making orders but adjourning an important aspect of the financial dispute between the parties to another date, the wife took the stance that until she had the further judgment of his Honour and she was then aware of her full entitlements in relation to financial matters, it was not possible to make a decision as to whether or not to appeal.
I also imply that, for example, if she had been successful in her application for spousal maintenance she may not have determined to appeal against either order. However, until she was aware of the final orders on all aspects it was not possible for her to make that decision. I also observe that there is a relatively small asset pool here.
The parties, to use the vernacular, are not flush with funds, and the wife had to make a decision as to whether she should instruct her legal representatives to lodge a Notice of Appeal in relation to the property settlement or hold off until she had the result of the application for spousal maintenance before making that decision.
Mr Spicer has suggested that that approach by the wife has caused his client to incur costs and also has lead to there being a hearing in relation to spousal maintenance when there may not have been if the wife had proceeded with a Notice of Appeal in relation to property settlement within time.
That certainly is the other side of the coin, but I am addressing here the reasons and the explanation for the delay that the wife puts forward, and in my view, there is an explanation for the delay here which is understandable in the context of the case, and particularly, and I repeat, given how the Federal Magistrate determined to dispose of that case and not, unfortunately, in one sitting as would have been expected by both parties.
The next issue which has been the subject of submissions before me and which is a highly relevant factor is whether there is a substantial issue to be raised on appeal.
For me to understand what the complaint is the wife has in relation to the orders of 18 August 2010, I have had regard to the Notice of Appeal originally filed. That was a Notice of Appeal against both sets of orders, and Mr Williams, for the wife, has indicated that, if the wife is successful in this application today, the grounds of appeal that she will be promoting are those that were in the original Notice of Appeal but were not proceeded with because she was not in a position to at that time.
I invited Mr Williams to elaborate, if his instructions allowed, on those grounds of appeal, because as Mr Spicer has commented, and certainly this was the reason for me inviting Mr Williams to do this, the grounds of appeal were not expansive and gave me little indication as to what the specific complaints were. Mr Williams has responded to my invitation, and he has amplified the grounds of appeal. Mr Spicer, in response, has taken me to each of those grounds of appeal as amplified, and his submission is that there is no substantial issue to be raised on appeal.
As always, the difficulty for me in addressing this factor is that I am not able to fully determine and consider the merits of the grounds of appeal given that the appeal is not yet before me. I have limited information to make some sort of assessment as to the likelihood of success or otherwise, and I am grateful for the submissions that both counsel have made to assist me in that regard, but of course I have not read the transcript of the proceedings before the Federal Magistrate, and it would not have been appropriate for me to do so anyway. What I have read are the reasons for judgment, and I am aware of the grounds of appeal that are intended to be promoted, and I have obviously heard submissions from Mr Williams in support of those grounds of appeal.
Mr Spicer has rightly pointed out – and this is my summary or assessment of what he is saying – that at least two of the grounds are weight grounds, and it is well known the difficult task that an appellant has in successfully establishing grounds of appeal where the issue is the weight, for example, that the judicial officer either has or has not applied to the particular topic, and reflecting on what Mr Williams has amplified, certainly that is the case in relation to the grounds of appeal as to the initial contributions and the s 75(2) factors relating to the child of the parties of whom the husband has the care.
There was a third or another ground of appeal relating to what seemed to be, prima facie, an inconsistency between paragraph 20 and paragraph 22 of the Federal Magistrate’s reasons for judgment. Mr Spicer has argued valiantly that there is nothing in that ground either, but I must say that there appears to be a problem with what the Federal Magistrate has said in those two paragraphs. They do not appear to sit well with each other, but whether that is de minimis or has a significant effect is something that I am not in a position to finally determine.
To repeat, my task here is a difficult one and I have to do the best I can in making some assessment as to whether there is a prospect of success or not. It is not possible for me to make a definitive finding about it one way or the other, but I do consider that there are arguable grounds of appeal there.
In terms of other factors that are relevant to this application, nothing has been put to me about the history of the proceedings. There are no documents that I have been referred to to allow me to look at that aspect of the matter. With the conduct of the parties in the proceedings, there is again nothing that has been put to me, save and except, I suppose, Mr Spicer’s submissions in relation to the wife not choosing to file the final Notice of Appeal within time.
Next, there are the consequences for the parties of the grant or refusal of the application. Mr Spicer has not pointed to any specific prejudice to the husband if the application is granted, but there are obvious consequences of doing that. If I grant the application that will mean the appeal will be able to proceed, and that will clearly impact upon the husband. He will then have to address that appeal. He will presumably instruct his legal advisers to respond appropriately to it, and there will be both time and money involved in that exercise. I note that, in any event though, the husband will still have to deal with an appeal because the wife has filed an appeal against the orders made on 13 October 2010. That Notice of Appeal was filed within time and presumably will proceed to a hearing.
On the other hand, if I refuse the application then there are serious consequences for the wife in that there is no appeal from such a decision, and the wife would not be able to pursue an appeal against the orders for property settlement. There is, though, the ability to make an application for special leave to the High Court, but that in itself is a difficult application to make, and the question is whether it would be warranted or indeed even successful in a case like this. Thus there are serious consequences for the wife if I refuse the application.
That is all leading, though, to the overarching principle which is, of course, where the justice of the case lies, and in that regard it seems to me the most significant factor in favour of granting the application is the circumstance of the Federal Magistrate determining to decide the case in the way that he did and thus not giving the parties, and in this case particularly the wife, the ability to determine at the conclusion of the first part of the matter whether to appeal or not if they were unsatisfied with the decision.
Certainly, as Mr Spicer has said, the wife could still have filed an appeal, but it is not as simple as that, and particularly in a case like this where there is a small asset pool, and the parties have very little funds available to lodge Notices of Appeal and proceed in that way. In my view, that circumstance tips the balance in favour of allowing the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 February 2011.

Legal Associate:

Date: 1 March 2011