Eddington & Eddington

[2007] FamCA 381

FAMILY COURT OF AUSTRALIA

EDDINGTON & EDDINGTON [2007] FamCA 381

FAMILY LAW - APPEAL – Application to extend time to appeal – Consideration of application having regard to principles enunciated in Gallo v Dawson (1990) 93 ALR 479 – Condition proposed by applicant – One aspect of proposed grounds requires appellate consideration given recent legislative amendments - On balance appropriate to grant extension of time in which to appeal – Application allowed.

Family Law Act 1975 (Cth), s 94
Family Law Rules 2004, ch 22

Casson and Casson (1988) FLC 91-962
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Gallo v Dawson (1990) 93 ALR 479
Gronow and Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
McMahon and McMahon (1976) FLC 90-038
Rice and Asplund (1979) FLC 90-725
Tormsen and Tormsen (1993) FLC 92-392

APPELLANT: Eddington

RESPONDENT: Eddington

FILE NUMBER: SYF 2342 of 2005

APPEAL NUMBER: EA 29 of 2007

DATE DELIVERED: 20 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 20 April 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Carr

SOLICITOR FOR THE APPELLANT: JNT Legal

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: Anne Day & Associates

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Eddington v Eddington.

Orders

1. That subject to the conditions contained in Order 2 the applicant is granted an extension of time to 30 April 2007 to appeal orders made by the Honourable Justice Rose on 22 December 2006. 

2. That if the appeal by the husband against the orders of 22 December 2006 is successful and the wife is thereafter obliged to refinance the mortgage on the former matrimonial home or to sell the matrimonial home the husband shall do the following:-

   1.In the event the wife refinances the mortgage on the matrimonial home pay any costs associated with such refinancing.

   2.In the event that the former matrimonial home is sold:-

   (a)   pay such costs as the wife incurred in obtaining initial borrowings to pay the sum due pursuant to the trial judge’s orders;

   (b)  any penalty incurred by the wife of the early discharge of her mortgage in respect of the former matrimonial home;

   (c)  one half of the costs of and incidental to the sale being limited to real estate agent’s commission and legal costs on the sale in respect of the former matrimonial home.

3. That the husband file and serve on or before 4.00 pm on 30 April 2007 Notice of Appeal and Pre Argument Statement.

4. That the Appeals Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal at a date and time to be notified to the parties.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 29  of 2007
File Number: SYF 2342  of 2005

Eddington

Applicant

And

Eddington

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The application before me is an Application in a Case filed by the husband on 12 March 2007.  The husband seeks orders for an extension of time to file an appeal against orders made by Rose J on 22 December 2006.

2. No response or any material has been filed on behalf of the wife.  However an oral application was made to me today opposing Order 1 sought by the husband in his application.

3. Proposed Order 2 sought in the application is a stay of the trial Judge’s orders pending determination of the appeal.  That is an application which, in accordance with the rules, should be made to the trial Judge unless he is unavailable.  I have been advised from the bar table that the issue of a stay was raised before Rose J, but the husband elected not to pursue the stay.

Background relevant to this application

1. The trial Judge noted at the date of the hearing the wife was aged 40 years and engaged in full time employment as an office worker.  The husband was aged 43 years and was employed on a full time basis by the State government.

2. The parties’ cohabitation commenced in about October 1989 and they married in January 1990.  The parties separated under the one roof in May 2004 and physically separated in October 2004.

3. There are two children of the marriage, J who was born in 1993 and B who was born in 1995.

4. Further historical background is set out in the trial Judge’s reasons at paragraphs 12 to 19 as follows:

   12.      The following are further brief relevant historical matters.

   13.In the middle to late 1980s (the evidence is inconsistent) the parties jointly purchased land at TH for $70,000.00.

   14.      In 1989 the wife purchased the property BE for $175,000.00.

   15.In about 1989 the TH land was sold for $75,000.00 with net proceeds of approximately $35,000.00.

   16.      In 1995 the BE property was sold for $220,000.00 approximately.

   17.In 1995 the former matrimonial home was jointly purchased by the parties for $265,000.00.

   18.      In 2000 JE Pty Limited (“the company”) was incorporated.

   19.On 3 May 2006 interim parenting orders were made which provided for the two children to live with the wife and the husband to have contact with them on evenings and during weekends.

5. The trial Judge’s parenting orders provide for the children to live with the wife, for the parties to have equal shared parental responsibility for major decisions, and for the children to spend time with the husband on a 56 day revolving roster at specified dates during school terms, for one half of all school holiday periods as well as special days such as father’s day and at Christmas.

6. His Honour found the parties had net property of $706,330.00 which he found should be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.

7. His Honour’s property orders provide for the wife to pay the husband $162,000.00 and on payment of that sum the husband is to transfer his interest in the former matrimonial home to the wife, subject to the existing mortgage. The wife is obliged pursuant to the orders to transfer to the husband her shareholding in a company JE Pty Ltd.

Relevant statute law and rules

1. Section 94 of the Family Law Act1975 (Cth) (“the Act”) provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D), (2E) and (2F) are also relevant. They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   (b)for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

   (c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or

   (e)for an extension of time within which to file an application for leave to appeal; or

   (f)for security for costs in relation to an appeal; or

   (g)to reinstate an appeal dismissed under a provision of the Rules of Court; or

   (h)to adjourn the hearing of an appeal; or

   (i)to vacate the hearing date of an appeal; or

   (j)to expedite the hearing of an appeal;         

   may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

   (2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

1. Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.

2. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

3. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 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.

4. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order. 

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a Judge 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.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal or review. 

3. The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 where McHugh J said:

   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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

   “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

4. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Evidence in this application

1. The husband relies on his affidavit sworn 9 March 2007 and the affidavit of his solicitor also sworn 9 March 2007.

2. The husband deposes to being unable to attend Court on 22 December 2006 when his Honour delivered his reasons for judgment and made the orders the subject of the proposed appeal.  However he says that his solicitor telephoned him that day and advised him of the orders and the import of the reasons for judgment.

3. The husband deposes to his solicitors’ office being closed over the Christmas period and re-opening on 8 January 2007 on which date he telephoned his solicitors to discuss the judgment.  The husband advised he was distressed by his Honour’s orders.  He acknowledges however that his solicitor told him that his dissatisfaction with the orders made was not a reason for them to be set aside and it would be necessary for him to file an appeal the success of which would be dependent upon the Full Court finding an error of law by the trial Judge.  He notes that his solicitor agreed to seek advice from his counsel, but that any appeal would need to be lodged by 19 January 2007.

4. The husband deposes that at about the time an appeal was required to be lodged in accordance with the rules he received the wife’s application for costs. He describes this application as “a further set-back”.

5. The husband says he attended a conference with counsel on 12 February 2007 for the purpose of discussing an appeal. The husband says he was concerned as to how he could fund an appeal, and subsequently applied to the Legal Aid office for a grant of legal aid.

6. On 26 February 2007 the husband received a letter from the Legal Aid office advising that his application for legal aid had been refused.

7. Thereafter during the first week in March the husband says he made enquiries of local solicitors to see if he could obtain pro bono assistance, but was not successful.   He thereafter attended the RW Credit Union and was able to obtain a loan.  He says on this basis he instructed his solicitors to file the appeal out of time.

8. In her affidavit Ms T, the husband’s solicitor, deposes:

   During the period 21 December 2006 to 8 January 2007, my office was closed due to the Christmas/New Year break.  Immediately upon my return on 8 January 2007, I was telephoned by the Husband who still appeared to be in a state of disbelief saying to me, words to the effect:  “I have read the reasons and they do not make sense”.  The Husband was then insisting upon speaking to the Judge and appeared surprised when I advised him, in words to the effect:  “That is not possible.  The only avenue available to address Justice Rose’s Judgment would be an appeal and this would depend upon whether there are grounds for such appeal”.  While discussing in brief what was involved in an Appeal, the Husband did not appear to comprehend what I was advising him.  This continued over a course of several weeks and it is only now I believe after speaking with Legal Aid and several other solicitors that he has made a firm decision to Appeal.  (paragraph 5)

Discussion

1. I find it is convenient and appropriate to consider the husband’s application by reference to the principles referred to in Gallo v Dawson (supra).

Will strict compliance with the rules work an injustice on the applicant?

(a)    History of the proceedings

1. I do not find anything relevant to my determination having regard to the history of the proceedings.

(b)     The conduct of the parties

1. Similarly I do not find anything of relevance in respect of the conduct of the parties.

(c)     The nature of the litigation

1. The husband seeks to challenge the trial Judge’s orders both in respect of parenting orders and property settlement.  In respect of the former, unless the husband is able to appeal and is successful in an appeal and on rehearing, the existing orders will prevail absent any substantial or significant change of circumstance (see Rice and Asplund (1979) FLC 90-725). In respect of the property orders, absent a successful appeal and re-exercise of the discretion or a retrial, or grounds under s 79A (which seems most unlikely in this case) the orders are final.

2. I have particular regard to the parenting orders on the basis that litigation involving children is not strictly inter partes litigation, and the tests for an extension of time to appeal applicable to ordinary civil litigation are not always appropriate in a parenting dispute.

(d)    Consequence for the parties of the grant or refusal of the application for extension of time

1. I have already in the preceding paragraph dealt with the consequence to the husband of the application.  From the wife’s point of view she was entitled on the elapsing of 28 days after the orders of the trial Judge to rely on the orders as final, and to order her life accordingly.  If leave is granted she will be exposed to the emotional and financial costs of an appeal, and possibly a re-hearing.  That is a significant prejudice to her which I must take into account.

2. It is asserted by the husband’s solicitor that prejudice will not be caused to the wife as she will continue to live in the former matrimonial home.  The husband’s counsel today referred me to the decision of the Full Court in Casson and Casson (1988) FLC 91-962 and advised she was instructed that in the event leave was granted, and the husband’s appeal successful, he would consent to an order that he pay any costs involved with the wife refinancing the mortgage obtained to pay him any additional monies which may be so ordered. As the husband has not pursued a stay application before the trial Judge the sum ordered by the trial Judge is payable by the wife, or in default the house is to be sold. I therefore find the assertion by the husband’s solicitor is too widely stated. I find however the condition of the granting of leave proposed by the husband does ameliorate some aspects of prejudice to the wife. I also note that the wife proposes to proceed if the husband’s application is successful with an application for security for costs of the appeal.

(e)     The prospects of success of the appeal

1. It appears to me that this factor is a very significant one to take into account in the exercise of my discretion. Whilst it would be inappropriate for me to conduct a detailed analysis of the likely success or otherwise of the proposed grounds, I find some general assessment of whether the proposed grounds are arguable is appropriate.  

2. The first ground raised by the husband is that the trial Judge erred in concluding 8 nights out of 56 constituted “substantial and significant” time for the children to spend with the husband to enable them to have a meaningful relationship with him.  There is some confusion about the actual orders sought by the husband at trial, but it appears his position was “as much time as possible”.

3. This ground will involve consideration of the provision of the Act as now amended by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth). It appears to me, given the recent legislative changes, that the proposed ground is an arguable ground. Hence I consider it is unnecessary to consider ground 2. Although it is not clear whether this proposed ground is directed to an error of fact by the trial Judge, or the exercise of inappropriate weight given to flexible arrangements, in the exercise of his Honour’s discretion.

4. Ground 3 of the proposed grounds, as is ground 5, is directed to asserted error by the trial Judge in weight afforded to particular factors in the exercise of his discretion.  The difficulties in establishing error in the appellate sense in respect of such grounds is well recognised in the authorities (see House v The King (1936) 55 CLR 499, Gronow and Gronow (1979) 144 CLR 513; (1979) FLC 90-716 and CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828). Whilst these grounds are arguable I have regard to the principles in the relevant authorities in respect of appellate intervention, and place little weight on them.

(f)     Can hardship or injustice to the respondent be compensated by an order for costs

1. The husband is to receive by way of property settlement a cash payment from the wife of $162,660.00. In these circumstances I am prima facie satisfied that if the husband is unsuccessful in the appeal, he has sufficient resources to pay the wife’s costs of the appeal.  I find this factor reduces any prejudice to the wife in granting of leave.  I also again note that there is a foreshadowed application for security for costs.

(g)    Delay by the husband and explanation for the delay

1. The delay by the husband in instituting this application is a short one.  I accept that he was well aware of the time limits in which to file an appeal and this factor prima facie militates against the exercise of discretion in his favour.  However I accept the difficulties he encountered by unavailability of his counsel over the Christmas period, and the delay caused by applying for legal aid.  Overall I do not find the delay to be significant.

(h)    The condition proposed by the husband

1. The husband’s proposed condition is limited to costs associated with the refinancing of any mortgage over the former matrimonial home to enable the wife to obtain additional borrowings to pay any sum due to him following a successful appeal. I find in the event the matrimonial home has to be sold rather than refinanced, a condition similar to that imposed in Casson and Casson (supra) would be appropriate.

Conclusions

1. In Gallo v Dawson (supra) McHugh J noted:

   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…

2. In summary, I have taken into account the  areas of prejudice to the wife and balanced those matters against prejudice to the husband.  I find on balance given the minimum delay in bringing the application, the fact the husband has sufficient resources to pay the wife’s costs if an appeal is unsuccessful, the effect of the condition to the extension which I intend to impose, and because one aspect of the proposed grounds requires appellate consideration of the recent amendments to the legislation, that it is appropriate to grant an extension of time to the husband in which to appeal.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  20 April 2007