DEGENAAR & DEGENAAR
[2020] FamCAFC 96
•24 April 2020
FAMILY COURT OF AUSTRALIA
| DEGENAAR & DEGENAAR | [2020] FamCAFC 96 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal against interim costs and property settlement orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where there is sufficient merit in the proposed grounds of appeal such that granting an extension of time would not be futile – Applicant would suffer an injustice if leave is not granted – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.03 |
| Dobey & Shey [2019] FamCAFC 68 EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Mareet & Colbrooke [2018] FamCAFC 254 Pannett & Crain [2018] FamCAFC 99 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 |
| APPLICANT: | Mr Degenaar |
| RESPONDENT: | Ms Degenaar |
| FILE NUMBER: | WOC | 83 | of | 2019 |
| APPEAL NUMBER: | EAA | 38 | of | 2020 |
| DATE DELIVERED: | 24 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 February 2020 |
| LOWER COURT MNC: | [2020] FCCA 451 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hansons Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Havenstein |
| SOLICITOR FOR THE RESPONDENT: | Kells The Lawyers |
Orders
The time in which the applicant may file a Notice of Appeal against the orders of Judge Neville made on 25 February 2020 is extended and the applicant is to file and serve the Notice of Appeal no later than 4 pm on 30 April 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 Degenaar & Degenaar 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 38 of 2020
File Number: WOC 83 of 2019
| Mr Degenaar |
Applicant
and
| Ms Degenaar |
Respondent
REASONS FOR JUDGMENT
Mr Degenaar (“the husband”) seeks an extension of time in which to appeal from interim financial orders made by a Judge of the Federal Circuit Court on 25 February 2020. Ms Degenaar (“the wife”), sought an order that there be interim property settlement orders requiring the sale of the parties’ former marital home at B Street, C Town (“the B Street property”) and from the proceeds she receive a sum of $70,000 being her legal costs to the date of the hearing, the sum of $7,000 in satisfaction of a costs order made by a Local Court in her favour in December 2019 which had not been paid and that she and the husband each receive an interim distribution of property of $100,000.
Her Honour ordered that the B Street property be sold and ordered that from the sale proceeds, and in priority to the mortgage registered over the property, the wife receive $55,000 as an interim property settlement, $45,000 against her costs and $7,000 in satisfaction of the costs order.
Those orders also appointed the wife as trustee for sale of the B Street property allowing her to sell the property in accordance with the orders on behalf of the parties jointly. The orders also provided that the wife, in execution of her duties as trustee through her lawyers, was to “notify [the] husband within 14 days of any proposed sale of [the B Street property] of the price for which the property is to be sold in the execution of [the wife’s] duties as trustee for the sale of property” (Order 27).
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 time for lodging an appeal from her Honour’s orders expired on
24 March 2020.
By Application in an Appeal filed on 27 March 2020, the husband seeks an extension of time in which to appeal from her Honour’s orders. The wife opposes the extension of time. The husband’s application for extension of time was made three days after the expiration of the time period in which to bring the appeal.
Legal principles
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 (“Gallo”). 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 (Gallo at 480). It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.
The exercise of discretion 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” (Jackamarra v Krakouer (1998) 195 CLR 516 at 540). 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
It seems that the primary judge delivered oral reasons for judgment for her decision on 25 February 2020. Although her Honour’s oral reasons generally indicated the orders to be made, she did not give the particular detail of her orders which led to requests from both the husband and the wife’s solicitors to her Honour’s Chambers for a copy of her Honour’s settled orders. Those orders were provided on 18 March 2020 by their being uploaded onto the Commonwealth Courts Portal. At this time but three days remained of the time in which the husband could lodge an appeal without seeking an extension of time.
Equally, on 25 February 2020 the husband’s solicitor asked the judge’s Chambers for a settled copy of the reasons. The settled reasons were provided to the parties on 27 March 2020 by which time the appeal period had expired.
It was contended for the wife that the husband ought to have filed the Notice of Appeal within the limitation period notwithstanding he did not have her Honour’s settled reasons.
True it is that the operation of r 22.03 of the Rules contemplates the filing of a Notice of Appeal within 28 days after the making of the order sought to be challenged. However, it visits a significant disadvantage on litigants in deciding whether to bring an appeal if they do not have the settled reasons for decision to seek advice as to the prospects of the proposed appeal. Thus, even if the husband had legal advisers, standing in the way of his receiving necessary considered advice on the prospects of appeal was her Honour’s failure to provide to the parties the settled reasons for her decision within the appeal period.
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, the Court said at [26]:
… The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period…
(Emphasis in original)
Both in Mareet & Colbrooke [2018] FamCAFC 254 and in EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304, the Court granted an extension of time in like circumstances (see too Dobey & Shey [2019] FamCAFC 68 and Pannett & Crain [2018] FamCAFC 99).
The husband’s delay in not bringing an appeal within the time specified by the Rules is well explained.
Merits of the Proposed Appeal
The proposed appeal challenges the primary judge’s orders and contends that her Honour failed to properly identify the source of power used in making the interim costs order and failed to give adequate reasons for making that order. The applicant further contends in relation to the interim property settlement order that the primary judge failed to give adequate reasons to support the making of that order.
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 respondent 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.
While the wife’s submissions contend that the husband’s Grounds of Appeal disclose no error in her Honour’s order and thus argues that the appeal is without merit, I disagree. I am persuaded that there is sufficient merit in the proposed appeal to grant an extension of time.
The wife contended that to extend time would work a prejudice to her in that it would involve delay and further costs. That is accepted but I am of the view that to refuse an extension of time would work a significant injustice to the husband and I therefore propose to grant an extension of time in which to file an appeal against her Honour’s orders.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 24 April 2020.
Associate:
Date: 24 April 2020
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