FARRAH & FARRAH
[2012] FamCAFC 194
•6 November 2012
FAMILY COURT OF AUSTRALIA
| FARRAH & FARRAH | [2012] FamCAFC 194 |
| FAMILY LAW – APPEAL – Application for leave to file Notice of Cross-Appeal – Where error is conceded by both sides and the appeal is inevitably to be allowed by consent – Where there is limited utility in hearing the proposed cross appeal – Application dismissed. |
| Family Law Act 1975 (Cth) Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Farrah |
| RESPONDENT: | Mrs Farrah |
| FILE NUMBER: | BRC 695 of 2010 |
| APPEAL NUMBER: | NA 25 of 2012 |
| DATE DELIVERED: | 6 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 6 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 160 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Burridge |
| SOLICITOR FOR THE APPELLANT: | MacDonnells Law |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Crowley Greenhalgh Solicitors |
Orders
The application in an appeal filed by the respondent on 2 November 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrah & Farrah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 25 of 2012
File Number: BRC 695 of 2012
| Mr Farrah |
Appellant
And
| Mrs Farrah |
Respondent
ex tempore
REASONS FOR JUDGMENT
May J
The appellant filed a Notice of Appeal on 27 March 2012 against orders of Federal Magistrate Coates made on 28 February 2012. His Honour in paragraph 1 of those orders, purported to divide the parties’ assets and liabilities as to 54 per cent to the respondent wife and 46 per cent to appellant husband. Orders were subsequently made, apparently after the parties considered the reasons, first on 19 June 2012, then as amended on 27 June 2012.
An Application in an Appeal was filed on behalf of the respondent wife on 26 October 2012, asking for the time to be extended to file a cross-appeal dated 16 October 2012. In an Application in Response filed on behalf of the appellant husband on 2 November 2012 the application is opposed.
It is necessary in hearing this appeal to first consider the application to file the cross-appeal out of time. It can immediately be seen from the proposed cross-appeal that the order sought is that the respondent receive an extra one per cent, that is 55 per cent to herself and 45 per cent to the appellant. However, as counsel for the respondent has explained, the purpose of the cross-appeal is much more far reaching.
An essential matter to understand as part of the decision to be made in this application is that it is agreed between the parties that the appeal should be allowed, although for slightly different reasons. It is agreed that there is substance in the grounds contained in paragraphs 2 to 4 of the Notice of Appeal such that the appeal should be allowed. It is also apparent looking at the proposed Notice of Cross-Appeal that it is agreed errors were made as described in Ground 1.
As to the cross-appeal there are other contentions that are raised within it that were not raised in the appeal and hence the difficulty that is presented. In Ground 2 of the cross-appeal it is asserted that the Federal Magistrate made an error in finding that the appellant husband was likely to relapse into severe depression at any stage and perhaps most importantly in this proposed cross-appeal in Ground 3, that the learned Federal Magistrate’s finding that the add back monies expended by the husband ought be limited to $31,631 was against the evidence and the weight of the evidence.
In determining the question of whether leave should be given to file such an application the well known principles in Gallo v Dawson (1990) 93 ALR 479 apply. In considering the first matter, that is delay, it can be seen as highlighted by the chronology provided to us by counsel for the appellant, that there is a significant delay. The Notice of Appeal was filed on 27 March 2012, apparently served some two days later. The time expired for the filing of any cross-appeal on 13April 2012 and thus the filing later on 16 October 2012 was some six months late. It must be said by reference to the affidavit of the solicitor that the explanation for the delay is somewhat limited and could be described as largely unexplained.
There is of course also some prejudice to the appellant the most significant being as his counsel argued, that they have been brought here, should the cross-appeal be filed, to argue matters that were not as they expected. Speaking for myself, I am largely unconcerned about that argument, especially since some notice was given of the application. As is well known, the real question is whether allowing this application and allowing the cross-appeal to be filed is necessary to do justice between the parties.
As I have already mentioned, this hearing is somewhat unusual because it is conceded by the parties that the appeal must be allowed. The next step is of course that this Court, if we accept that the appeal should be allowed as one would expect we might, is to order that there be a new trial where all the issues raised by both parties on this appeal and perhaps others will be raised again before another judge. Orders then made may or not be different from the current orders. The other possibility is that there could be, by this Court, a
re-exercise of the discretion and in that the parties would be entitled to agitate the matters they wish to raise before us in the Notice of Appeal and also the Cross-Appeal.
I must say having heard the submissions of counsel for the appellant and having looked at the proposed summary of argument in relation to the
cross-appeal, it is quite doubtful at least in my view, that we could undertake such a re-exercise of the discretion. Counsel for the appellant has also flagged this morning, again unsurprisingly, that it is likely that it would be necessary to ask that further evidence be adduced because of a change of financial circumstances.
Ultimately, in my view the question of prejudice is not the deciding factor, the delay is certainly a difficulty however the real answer is, in this unusual case where the appeal is conceded by both sides, that this will inevitably lead to the appeal being allowed and the orders set aside. There can be very limited utility at this stage in us hearing all that would emanate from a cross-appeal. The better course is that we simply hear the appeal which inevitably it seems, will be allowed and decide what then flows from that being the question of whether we can re-exercise or whether there should be an order that the matter be remitted to another judge for hearing.
The order we would make is that we would not allow the application to file the cross-appeal and that application would be dismissed.
Ainslie-Wallace J
I agree with the proposed order of the presiding judge and the reasons she articulates. I have nothing further to add.
Murphy J
I also agree.
I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court delivered on
6 November 2012 and published on 22 November 2012.
Associate:
Date: 22 November 2012
0