DELANEY & DELANEY

[2021] FamCAFC 26

FAMILY COURT OF AUSTRALIA

DELANEY & DELANEY [2021] FamCAFC 26

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Where the circumstances for the failure of the applicant to file the Notice of Appeal within time are not of themselves a basis for dismissing the application – Where none of the so-called grounds of appeal have any chance of success and the appeal is without merit – Where the prejudice to the respondent outweighs the prejudice to the applicant – Where there is no utility in granting the application – Application dismissed.

Family Law Act 1975 (Cth) s 79A
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT: Ms Delaney

RESPONDENT: Mr Delaney

FILE NUMBER: DGC 2723 of 2020

APPEAL NUMBER: SOA 97 of 2020

DATE DELIVERED: 18 February 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 February 2021

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 November 2020

LOWER COURT MNC: [2020] FCCA 2960

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. The Application in Appeal filed on 8 December 2020 be dismissed.

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 Delaney & Delaney 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 ADELAIDE

Appeal Number: SOA 97 of 2020
File Number: DGC 2723 of 2020

Ms Delaney

Applicant

And

Mr Delaney

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Before the court today is an Application in an Appeal filed by Ms Delaney (“the wife”) on 8 December 2020, seeking an extension of time to file a Notice of Appeal against orders made by a judge of the Federal Circuit Court of Australia on 4 November 2020.  That application is supported by an affidavit filed by the wife also on 8 December 2020, and the wife filed a further affidavit on 16 February 2021.

2. Mr Delaney (“the husband”) filed a Response on 15 February 2021, together with a supporting affidavit also filed on that day. 

3. I note that both parties appear without legal representation and, having read the documents, and hearing primarily what the wife has had to say, that is where it seems the difficulties with this matter stem from.  I appreciate that obtaining legal advice can be costly, but it does not take terribly much in terms of time or cost to seek some initial advice from a lawyer experienced in family law.  In any event, it appears that did not happen.

4. The reason the Application in an Appeal has been brought, is because the wife failed to file a Notice of Appeal within the time prescribed in the Family Law Rules 2004 (Cth) (“the Rules”), namely 28 days following the date the orders were made, and which orders are the subject of the appeal. I will return to the reasons why the wife failed to comply with the timeframe shortly.

5. I raised three matters with the parties at the commencement of this hearing as follows. 

6. First, the primary judge omitted to formally make an order dismissing the application that the wife had before his Honour.  As I have indicated to the parties though, there is no difficulty with that, because in [39] of his Honour’s reasons for judgment, he clearly indicated that he was dismissing that application, and if this is an appeal that can proceed, that is an issue which can easily be rectified, and I hasten to add, can have no relevance to the appeal per se. 

7. Secondly, and this was particularly in relation to the wife.  In her Draft Notice of Appeal which she has provided to the court, and which is the Notice of Appeal that she would want to proceed on in the event that an extension of time is granted, she has not sought leave to appeal.  It seems to me that some at least of the orders made by his Honour require leave to appeal.

8. The problem that creates for the wife is that she has not included in her Draft Notice of Appeal any facts to which I could have regard in determining the likely success or otherwise of an application for leave to appeal. 

9. However, although that is a significant issue, I do not propose to take it any further at this stage, because if the grounds of appeal relied on in the event leave is granted have no merit, then leave to appeal would not be granted, even if it was applied for, and thus an extension of time would have no utility.

10. Thirdly, I queried with the wife whether indeed she was appealing all of the orders made by his Honour, as that is what she indicated in her Draft Notice of Appeal, because it seemed to me that that could not be the case, with some of the orders made being made in the context of the application that the husband had before the court, and which she opposed.  I attempted to sort that out with the wife, but to no avail, and thus I do not propose to do anything other than simply mention it.

The relevant legal principles

1. In terms of the principles that are applicable in relation to an application such as this, I need go no further than refer to an oft quoted extract from the High Court decision of Gallo v Dawson (1990) 93 ALR 479. There, McHugh J said this at 480 – 481:

   …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. 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. 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. 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. 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…

   (Citations omitted)

2. In summary, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account.  In this case, there are three factors which I need to address in that context.  First, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, secondly, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, and thirdly, whether there is prejudice to the parties, or either of them, depending upon the result of the application.

The failure to comply with the relevant timeframe

1. For this purpose, I refer to the affidavit of the wife filed on 8 December 2020 where she deposed as follows:

   1.I was told previously that I could file a Notice of Appeal within a month of the Orders. I apologise that I filed the Notice of Appeal two days after the 28 days within which filing of Notice of Appeals are required. I would like to apply for leave to file my Notice of Appeal late. The Notice of Appeal that I attempted to file on 4 December 2020 and the Orders are attached to this affidavit. I thought this date of filing was within the month required.

   2.There are many grounds for Appeal that I would like the Full Appeals Court to consider. It will be of significant financial disadvantage to me and my children if I am not given the opportunity to have these shortcomings of the Property Orders addressed.

2. In summary, the first paragraph puts forward as the reason for failure to comply with the timeframe that the wife had been told the time period was one month, and that was a time period she was operating on.  She attempted to file her Notice of Appeal on 4 December 2020, namely one month after the orders made by his Honour, but that attempt was unsuccessful because the application was out of time. 

3. Although I do not accept the explanation, the one saving grace for the wife is that she did not, for example, wait for several months to pursue an appeal.  She was operating under the misunderstanding that she had a month to appeal, and she sought to file her Notice of Appeal within that timeframe, but unfortunately it was out of time.

4. Thus, I can say that if I am able to find merit in the appeal, I would not dismiss the application solely on the basis that there was not a satisfactory explanation as to why the wife had failed to comply with the relevant timeframe.

The merits of the appeal

1. There are ostensibly 17 grounds of appeal in the Draft Notice of Appeal as follows:

   1.The learned Judge erred in not having proper regard to the fact that the Orders were based upon a miscarriage of justice in suppression of evidence and the failure of the husband to disclose an accurate assessment of his income at Trial in the order of more than $200,000 per annum.

   2.The learned Judge erred in that he failed to have any or proper regard to the husband’s perjury during the Trial which he presided over.

   3.The learned Judge erred in his discretionary power by including A Family Law as a third Party Debtor to proceedings when:

   a.the matter is concurrently being dealt with at the County Court.

   b.the Harmon principle does not make allowance for legal representation involved in the current Family Law proceedings.

   4.The learned Judge did not make allowance for the fact that withholding assets from the wife pending the outcome of the County Court proceedings would impose hardship and financial consequences to the wife in the interim whilst the matter is on-foot at the County Court for whatever timeframe may be required for the matter to be resolved there.

   5.The learned Judge failed to have proper regard to the evidence brought before him of [law firms] sharing privileged documents outside the jurisdiction of the Family Court.

   6.The learned Judge failed to address the substantive issue brought before him of the parenting orders not being adhered to by the husband.

   7.The learned Judge failed to address the substantive issues brought before him of the husband’s contraventions of the property orders.

   8.The learned Judge failed to give any or proper regard to the conduct of the husband’s solicitors and did not make a final appraisal of the facts presented to him.

   9.The following errors in Judgement refer to the Orders of 27/02/19 upon which the current Orders are based.

   10.In assessing factors under Section 75(2) of the Family Law Act 1975 (“the Act”) the learned Trial Judge erred in that he failed to have any or proper regard to the fact that:

   a.the husband retained the balance of his inheritance moneys in circumstances where such moneys were not included in the divisible pool of assets.

   b.The husband had applied the balance of such moneys towards his legal fees in circumstances where the wife continued to owe her previous lawyers (A Family Lawyers) the sum of $130,000 and had not paid any of their bills.

   11.In assessing factors under section 75(2) of the Act, the learned Trial Judge erred in that he:

   a.Failed to give proper regard to the terms of the final parenting orders made on 2 June 2017 which provided for the children to live with the parties on an equal shared care basis; and

   b.Impermissibly took into account the future care arrangements of the adult child, … who turned 18 on the day that final property orders were made.

   12.That the learned trial judge failed to provide any or adequate reasons for his refusal and/or failure to include the wife’s HELP debt in the asset pool.

   13.The learned trial judge’s discretionary decision miscarried as a result of failing to take into account relevant facts in the process of assessing and evaluating the post separation contributions of the parties namely the wife’s post-separation contributions to the … property.

   14.The learned trial judge erred in fact in reaching the factual conclusion expressed in paragraph 129 of his reasons for judgment, namely that in respect of the two properties owned by the husband prior to cohabitation there “must have been at least some decent measure of equity” as the foundation of the conclusion was unsupported by the evidence.

   15.Having found that the husband’s post-separation expenditure involved grossly excessive expenditure and constituted wastage by the husband, the learned trial judge erred in his assessment of the quantum of the addback attributable to the husband by way of wastage as referred to in paragraph 151 of his reasons for judgment in that he failed to:

   a.make adequate calculations as to the amount of wastage, or

   b.give any or adequate weight to the increase in the monthly interest charged on the home mortgage (which he found increased by over $1,800 per month) being caused solely by the husband’s conduct in unilaterally withdrawing the sum of $500,000 from the … mortgage after the time of separation.

   16.The trial judge erred in failing to make any adjustment to the asset pool by reason of the Husband’s expenditure on legal fees and particularly the bank cheque for $57,000 which the husband cashed after the first trial to pay for legal fees.

   17.The trial judge erred in that he failed to afford to the appellant, in the circumstances of her being a litigant in person, procedural fairness by reason of:

   a.His refusal to admit into evidence the transcript of the proceedings before [a Judge of the Federal Circuit Court of Australia]; and

   b.His refusal to admit into evidence documents that had been tendered as exhibits in the first trial before [a Judge of the Federal Circuit Court of Australia], and particularly the respondent husband’s taxation returns for the 1994-1995 year.

   (As per original)

2. I turn first to Ground 9 though which reads, “[t]he following errors in Judgement refer to the Orders of 27/02/19 upon which the current Orders are based”.  It then seems that so called Grounds 10 through 17 identify those alleged errors made by his Honour in making the orders of 27 February 2019.  Now, that ground, and obviously the subsequent grounds, can easily be disposed of in that there is no appeal before this Court, and no application in relation to any appeal before this Court against orders made on 27 February 2019.  It does not matter at all that those orders may have been the basis for the current orders.  The only appeal that the wife is wishing to pursue, is an appeal against the orders made on 4 November 2020.  Thus, none of the grounds of appeal 9 through 17 can have any merit.

3. I turn next to Grounds 6, 7 and 8 which allege that his Honour failed to address certain issues.  The problem the wife has though, is those issues identified are irrelevant to the orders that his Honour made.  They were not part of what his Honour needed to consider for the purpose of the applications before him, and which led to the orders of 4 November 2020.  Thus, those grounds of appeal have no merit.

4. I next turn to Ground 1.  And what I need to explain here is that the application that the wife had before his Honour was, in effect, seeking that his Honour revisit the previous final property settlement orders, to re-evaluate them, and to bring forward arguments as to why those orders are wrong, or why the judge on that occasion, failed to take into account relevant matters.

5. His Honour dismissed that application on the basis that it was not an application that could be brought. For instance, it was not an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).

6. Ground 1 then seeks to complain that his Honour, in effect, erred by failing to take into account the wife’s arguments as to why the earlier orders were unsound or should not have been made. Obviously, with all due respect to the wife, she did not understand what his Honour said in his reasons for judgment. His Honour said quite clearly that effectively, the only way that could be done was by means of a s 79A application, and there was no such application before his Honour. Thus, Ground 1 has no merit.

7. And in a similar vein, that outcome also applies to Ground 2. Again, the wife is complaining that his Honour failed to take into account what she says was the husband’s perjury during the previous trial. However, that could not happen. It was not open to the wife to make an application based on such a submission when there was no s 79A application before the court.

8. I turn now to Grounds 3 and 4, because they can also be dealt with together.  They relate to his Honour’s order joining a firm of solicitors as a party to the proceedings.  The context of that was that firm of solicitors were owed legal costs by the wife, and in respect of those legal costs, they had obtained a judgment on 14 January 2020 in the County Court of Victoria.  Indeed, those proceedings had gone so far as a warrant of seizure of sale was subsequently issued on 10 February 2020.  However, what then apparently happened, is that the wife took proceedings in the County Court to set aside those orders, and that matter was still under consideration by the County Court.  Thus, what the firm of lawyers sought to do was to join in these proceedings and seek an order from his Honour quarantining from the proceeds of the sale of the property, the amount they were owed.  His Honour allowed that, and legitimately and appropriately so.  Thus, there is no merit in those grounds, and no appealable error has been identified which would support those grounds of appeal being successful.

9. The final ground I need to consider is Ground 5.  Again, that is a complaint which can go nowhere.  Apart from the fact that it is impossible to understand what the issue is in the context of the application before the primary judge, but doing the best I can, all I can make of it is that it seems to be suggesting that the firm of solicitors should not be joined or any money be quarantined for them, because they had shared some privileged documents with another firm of solicitors.  However, that was not a matter that was before his Honour, nor was it a matter that could have been put before his Honour.  It is not a basis on which his Honour could refuse to make the order that he did in his discretion in joining the firm of solicitors and quarantining the amount that they were owed.

10. In summary, none of the grounds of appeal, so-called, have any chance of success; there is no merit in them. 

The prejudice to the parties depending on the outcome

1. If the application is dismissed, that might be seen as prejudicial to the wife because she would not be able to pursue an appeal.  But that is, with respect to her, not the case.  Having found no merit in any of the grounds of appeal, it would be futile to extend the time to allow the appeal to proceed, because it would necessarily be subsequently dismissed, after wasting further time, cost and expense, not only for the parties, but for this Court.  Thus, there is no prejudice.

1. On the other hand, if the application is allowed there would be prejudice to the husband in that he would have to deal with the appeal.  He would have to expend resources and maybe costs, depending on whether he sought legal advice in opposing the appeal, and that would be a serious prejudice to him.

Conclusion

1. As the authorities recognise, the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely where the justice of the case lies.  Here, I have found that although the wife has not provided an adequate explanation for her failure to file the Notice of Appeal within time, to repeat, given the circumstances that would not be, by itself, a basis for dismissing the application. 

2. However, I have found that the appeal has no merit, and given that, I have not needed to pursue the issue with the wife of her failure to seek leave to appeal because, of course, if the grounds of appeal have no merit, then leave to appeal clearly would not be granted.

3. In relation to the third factor, I have found that there was no prejudice that would be suffered by the wife if the application is dismissed, but there is significant prejudice to the husband if the application is allowed.  Thus, this is a clear case where the interests of justice require that the application be dismissed.  Apart from anything else, there is no utility in granting the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 February 2021.

Associate: 

Date:  25 February 2021