Fairlie and Fairlie
[2010] FamCAFC 43
•17 March 2010
FAMILY COURT OF AUSTRALIA
| FAIRLIE & FAIRLIE | [2010] FamCAFC 43 |
| FAMILY LAW – APPEAL – Application to extend time to appeal property settlement orders made in the absence of the applicant – long delay in seeking to challenge trial Judge’s orders – no substantial issue to be raised on appeal – strict compliance with the rules will not work an injustice to the applicant – application dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Joshua v Joshua (1997) FLC 92-767 Taylor v Taylor (1978) 143 CLR 1 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Fairlie |
| RESPONDENT: | Ms Fairlie |
| FILE NUMBER: | PTW | 2037 | of | 2007 |
| APPEAL NUMBER: | WA | 20 | of | 2009 |
| DATE DELIVERED: | 17 March 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 29 October 2009 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2008 |
| LOWER COURT MNC: | [2008] FCWA 76 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fairlie in person |
| SOLICITOR FOR THE APPLICANT: | Self represented litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Moser |
| SOLICITOR FOR THE RESPONDENT: | Calverley Johnston |
Orders
That the application of the husband filed 24 September 2009 seeking permission to extend the time to appeal orders of the Honourable Justice Crisford made 27 June 2008 be dismissed.
That the husband pay the wife’s costs of and incidental to the said application fixed in the sum of $2,000 within 60 days of the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Fairlie & Fairlie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 20 of 2009
File Number: PTW 2037 of 2007
| Mr Fairlie |
Applicant
And
| Ms Fairlie |
Respondent
REASONS FOR JUDGMENT
By an Application filed on 24 September 2009 Mr Fairlie (“the husband”) has sought an order for extension of time in which to appeal orders made by the Honourable Justice Crisford on 27 June 2008 in proceedings between himself and Ms Fairlie (“the wife”).
On 26 October 2009 the wife filed a Response in which she sought that the husband’s application be dismissed. In the alternative, the wife sought $15,000 by way of security for her costs in the event the husband was permitted to proceed with his appeal.
Background
The husband and wife were married in 2000 and separated in 2007. There were two children of the marriage.
The wife commenced proceedings relating to the children in April 2007. The husband responded in May 2007. In July 2007 the wife amended her application by seeking property settlement and spousal maintenance orders. In September 2007 the husband filed an amended response in which he too sought orders in relation to property settlement and spousal maintenance.
The parties were directed to attend a Conciliation Conference on 17 December 2007. The wife and her solicitor attended. The husband did not attend, but was represented by his solicitor. The presiding Registrar made the following notation on the Conciliation Conference File Note, a copy of which was distributed to the solicitors for both parties.
Record to note that contributions are agreed between the parties at 50/50. The Section 75(2) factors are not agreed. The property matters are to be determined in a joint trial with the children’s issues.
The husband’s solicitors continued to represent him after the Conciliation Conference at hearings on 16 January 2008 and 5 March 2008.
On 22 April 2008 the husband’s solicitors filed a Notice of Ceasing to Act. The Notice contained the following pro forma statement: “I no longer act for you in this case. I intend to advise the Court that your last known residential address in Australia is: …”. Underneath those words, the husband’s solicitors gave an address for him in [an overseas city] (which had been the husband’s place of employment). An international telephone number was also given, together with an email address for the husband. At the hearing before me the husband advised that he had instructed his solicitors to cease acting for him.
The Notice of Ceasing to Act indicated that the matter was listed for further directions before the Court on 23 April 2008. On that day the matter was adjourned until 14 May 2008. There was no appearance by or on behalf of the husband on 14 May 2008, at which time an order was made adjourning the proceedings for trial on 20 June 2008. The distribution note on the order indicates that a copy of the order was sent to the husband at the address in [an overseas city] given on the Notice of Ceasing to Act.
The wife filed a trial affidavit but the husband filed nothing. The matter came before Crisford J on 20 June 2008. Her Honour received into evidence an affidavit of service by an employee of the wife’s solicitors in which she deposed to having, on 10 June 2008, posted the wife’s trial affidavit and her Minute of Orders Sought to the husband. After a brief hearing, her Honour reserved her decision. Judgment was delivered a week later.
The trial Judge’s orders and reasons
In her reasons for decision, Crisford J noted that the wife had initially sought 85% of the assets, but had reduced her claim to 75% on the morning of the trial. Her Honour then set out a table of “assets and liabilities as put to the Court by the wife”. The assets, including superannuation entitlements, were found to have a net value of $863,104.
Crisford J recorded that the wife had originally sought that her contributions to the assets be fixed at 60%, but she went on to note that the wife had accepted that at the Conciliation Conference it had been agreed that contributions were equal. Her Honour found that “in the absence of any good reason to depart from this I accept the overall contributions to the assets to be 50%”.
Her Honour then dealt with the factors mentioned in s 75(2) of the Family Law Act 1975. She noted that the wife sought an adjustment of 25% on account of those factors. Having briefly discussed the matters she considered relevant, her Honour determined that 25% was appropriate. She therefore made orders for the assets to be divided 75:25 in favour of the wife. This involved the wife having to pay the husband $80,000. In return for that payment the husband was to transfer to the wife his interest in the major asset, which was a property in [a Perth suburb].
Events after judgment
Following delivery of judgment the wife instructed her solicitors to prepare documents to give effect to the orders, including a Transfer of Land in relation to the … property and a Discharge of Mortgage authority.
On 24 July 2008 the wife’s solicitors sent the Transfer of Land and the Discharge of Mortgage authority to the husband at the address in [an overseas city] shown on the Notice of Ceasing to Act.
It was not contested that on 6 August 2008 the husband telephoned and sent text messages to the wife. The wife gave evidence that the husband told her:
· he “had just found out about the Court”;
· the mail had been sent to his work address;
· he wanted mail to go to his home address which he provided to the wife;
· he had telephoned the Bank and asked for the $80,000 payment to be transferred to him.
On 11 August 2008 the husband sent an email to the Bank seeking the urgent transfer of the $80,000 to which he was entitled under the terms of the order. On the same day the wife’s solicitors sent an email to the husband seeking the return of the signed documents relating to the … property. The husband replied, “Yes no problem, can you get the bank to send me $80,000 ASAP thanks because the AUD$ is falling and i losing money thanks”.
On 12 August 2008 the husband sent an email to the wife’s solicitors advising that he had mailed the “signed docs” today. The wife’s solicitors duly received the Transfer signed by the husband on 12 August 2008, together with the Discharge of Mortgage authority.
On 11 September 2008 the wife’s solicitors wrote to the husband asking him to complete an authority which would permit the $80,000 to be paid to him. The required document was received by the wife’s solicitors in due course and settlement took place on 25 September 2008. The $80,000 was transferred to the husband’s account.
It subsequently transpired that the husband had not only received the $80,000 he was meant to receive, but a second payment of $80,000, which the bank sent in error. When this came to light the wife commenced proceedings to prevent the husband from withdrawing funds from his bank accounts. The wife was subsequently reimbursed by the bank for the second payment of $80,000.
The husband did not deny the wife’s assertion that after these events there were further communications between the parties in relation to a proposed divorce and the husband’s desire to see the children. In November 2008 the husband commenced proceedings relating to contact with the children, but no mention was made of property settlement issues in his application.
On 23 July 2009 the husband filed an application in the Family Court of Western Australia, together with an affidavit, in which he sought orders seeking an extension of time within which to appeal the property settlement orders. The application came before the Court on 24 August 2009 and was dismissed (on the basis that the application should be determined by a Judge of the Appeal Division unless there was no Judge of the Appeal Division available).
The husband then filed an Application in an Appeal on 24 September 2009 in which he sought an extension of time within which to appeal. The matter was listed before me for argument on 29 October 2009, following which I reserved my decision.
Relevant law and principles
Section 94(1)(b) of the Family Law Act 1975 provides for appeals to the Family Court of Australia from the Family Court of Western Australia.
Section 94(1A) provides that such appeals shall be instituted within the time prescribed by the Rules of Court or within such further time as is allowed by those Rules.
Section 94(2D) provides that applications of a procedural nature, including applications for an extension of time within which to institute 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.
Section 94(2F) provides that no appeal lies from an order or decision made under s 94(2D).
Chapter 22 of the Family Law Rules 2004 deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal. Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from was made.
Rule 1.14 deals with shortening or extending of time. It provides as follows:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
The principles relevant to applications for extensions of time within which to appeal were explained in Joshua v Joshua (1997) FLC 92-767 where Lindenmayer J said (at 84,440):
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC ¶ 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.
Is there a substantial issue to be raised on appeal?
Although the husband’s draft Notice of Appeal suggested he was appealing against all of the orders made by Crisford J, it became apparent that he was challenging only the orders relating to property settlement.
The draft Grounds of Appeal were expressed in these terms:
1. False and misleading information from [the wife]
2. Justice Crisford made an error in the finding of fact or facts on an important issue which could not be supported by the evidence.
3.Justice Crisford exercised discretion to arrive at a decision which was clearly wrong.
4. Conciliation conference information is covered by privilege.
The Grounds as drafted did not assist in understanding whether there might be merit in the husband’s complaints. Out of fairness to the husband, who was self-represented, I explored each of the four grounds with him in the course of oral argument. I will now deal with the each of the proposed grounds briefly
By proposed Ground 1 it is asserted that the wife provided “false and misleading information” to the Court. The answer to this is clear. In the event there is any substance in the complaint it is open to the husband to make an application to set aside the orders pursuant to s 79A of the Act. The husband had been informed of this prior to the hearing before me and this was reiterated in the course of the hearing.
By proposed Ground 2 it is asserted that the trial Judge had made incorrect findings of fact on important issues; however, consideration of the husband’s submissions indicated that these all related to the finding her Honour made that contributions were equal. Given the notation made on the Conciliation Conference File Note this ground is without merit (provided there is also no merit in Ground 4).
By proposed Ground 3 it is asserted that the trial Judge had exercised her discretion in a way which was “clearly wrong”. The submissions made by the husband made clear that the complaint really concerns the “false and misleading information” referred in Ground 1. The remedy again lies in an application under s 79A.
By proposed Ground 4 it is asserted that the information recorded on the Conciliation Conference File Note was “covered by privilege”. There is no substance in this ground. The practice in preparation of Conciliation Conference File Notes in the Family Court of Western Australia is that the Registrar only records directions made and any information which both parties consent to having included on the record. Paragraph 6.8.15 of the Case Management Guidelines requires the Registrar to note on the record “any significant issues that are agreed” at such conferences.
The file note recorded that the parties were agreed that contributions were equal. Although the husband was not physically present at the conference he was represented by a senior legal practitioner. In these circumstances the trial Judge was entitled to proceed on the basis that this issue had been agreed. It is noteworthy that the file note appears, in fact, to have been used to the wife’s disadvantage by Crisford J in that the wife wanted to assert that her contributions were greater than those of the husband, whereas her Honour concluded that the wife was bound by the agreement reached at the conference.
For these reasons, I do not consider there is any substantial issue to be raised in the event that the husband was granted an extension of time within which to appeal. This being the case it is strictly unnecessary for me to say more.
I do, however, have some misgivings about the fact that the trial proceeded in the husband’s absence in circumstances where he had been represented up until near the time of trial; was living overseas; and had (at best) received relatively short notice of the trial date. The husband claims he received no notice of the trial since the address to which the documentation was sent was his work address and he had left his work before the trial date was set. (The husband did, however, receive the Transfer of Land and other documents sent to him at that same address after the trial had been concluded.)
I do not have the benefit of information that may have been provided to the Court at the time of trial or at the various hearings leading up to the trial which may well have explained why the trial Judge determined to proceed with the matter in the absence of the husband. What is clear, however, is that when the husband found out the matter had proceeded to trial in his absence he did not take any effective steps to seek to have the orders set aside.
If the husband had not received notice of the trial there were steps he could have taken to seek to have the orders set aside, apart from filing an appeal (see Taylor v Taylor (1978) 143 CLR 1). Instead of taking those steps, the husband instead sought to obtain his entitlements under the terms of the order and co-operated in otherwise implementing the order. In fact, he received his entitlements under the order twice and on the information provided to me at the oral hearing it is apparent he has not returned the second payment of $80,000.
The husband took no effective steps to challenge the orders until he filed his first application for an extension of time in July 2009, more than a year after the orders had been made (and many months after he returned to Australia to live in February 2009). The husband’s explanation was that he was “in shock and very traumatized by this decision”. His shock and trauma were not such as to prevent him from proceeding promptly, and in a businesslike fashion, to seek to obtain his entitlements under the terms of the order.
Even if the husband had satisfied me there was a substantial issue to raise on appeal, his long delay in seeking to challenge the orders would have provided a strong basis for denying him the indulgence he now seeks. A further factor that would have weighed in the balance against the husband would have been the steps he took to enforce his entitlements under the terms of the orders (as to which see Tormsen and Tormsen (1993) FLC 92-392).
The outcome
The husband has not demonstrated there is any substantial issue to be raised on appeal. He has failed to demonstrate that strict compliance with the rules will work an injustice to him. His application will therefore be dismissed. It is accordingly unnecessary to consider the wife’s application for security for costs.
Costs
The wife sought an order for costs fixed in an amount of $2,000 in the event that the husband’s application was dismissed.
The husband has been entirely unsuccessful and I am satisfied he should pay the wife’s costs. The amount of $2,000 sought appears more than reasonable. Costs should be fixed in that sum to avoid the expense of an assessment of costs by a Registrar.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 17 March 2010
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