Ferringer and Melchiori
[2019] FamCAFC 136
•8 August 2019
FAMILY COURT OF AUSTRALIA
| FERRINGER & MELCHIORI | [2019] FamCAFC 136 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of Time – Application for an extension of time to file a Notice of Appeal against spousal maintenance orders – Where the application for spousal maintenance was an interim application of which leave to appeal is required – Explanation for the delay – Merits of the proposed appeal – Where the explanation for the delay is far from satisfactory – Where the appeal has little merit – Where there is no issue that requires reconsideration by the Full Court of the Family Court of Australia – Where the application has been wholly unsuccessful – Application dismissed – Applicant to pay the respondent’s costs of the application in a fixed sum. |
| Family Law Act 1975 (Cth) s 117(2A) Family Law Rules 2004 (Cth) r 22.03 |
| De Winter and De Winter (1979) FLC 90-605 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jess v Scott (1986) 12 FCR 187; [1986] FCA 365 Stein & Stein (2000) FLC 93-004; [2000] FamCA 102 Williamson & Williamson (1978) FLC 90–505; [1978] FamCA 57 |
| APPLICANT: | Mr Ferringer |
| RESPONDENT: | Ms Melchiori |
| FILE NUMBER: | SYC | 1207 | of | 2019 |
| APPEAL NUMBER: | EA | 69 | of | 2019 |
| DATE DELIVERED: | 8 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 8 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 May 2019 |
| LOWER COURT MNC: | [2019] FCCA 1464 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wong |
| SOLICITOR FOR THE APPLICANT: | Birchgrove Legal |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The Application in an Appeal filed on 30 July 2019 is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $1,200.
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 Ferringer & Melchiori 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: EA 69 of 2019
File Number: SYC 1207 of 2019
| Mr Ferringer |
Applicant
And
| Ms Melchiori |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 30 July 2019, Mr Ferringer (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against spousal maintenance orders made by a judge of the Federal Circuit Court of Australia on 14 May 2019.
The orders provided for the applicant to pay to Ms Melchiori (“the respondent”) the sum of $1,615.65 per week in spousal maintenance.
Background
The parties were in a de facto relationship for almost four years. They met in April 2014 and moved in together shortly thereafter.
There are two children from the relationship, X, born in 2015, and Y, born in 2017. The respondent ceased working when the first child was born and took on the role of primary carer which continued when the second child was born.
The parties separated in either December 2017 or in January 2018.
Shortly after separation, by agreement, the applicant paid to the respondent the sum of $6,000 per month. That agreement came to an end about a year later.
The respondent made an application for a child support assessment and accordingly the applicant was assessed to pay the sum of $683.81 per week for the period 4 January 2019 to 3 April 2020.
Application for an extension of time
The application for an extension of time was filed on 30 July 2019, which was approximately 11 weeks after judgment was given and therefore approximately seven weeks after an appeal should have been filed.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in the well-known case, Gallo v Dawson (1990) 93 ALR 479 at 480-481, 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
Explanation for the delay
The primary judge’s orders were made on 14 May 2019 and any appeal from those orders should have been filed by 11 June 2019 pursuant to Rule 22.03 of the Family Law Rules 2004 (Cth).
The applicant’s explanation for not filing the Notice of Appeal within the prescribed time was that he did not receive a copy of the orders until on or about 5 July 2019, which is almost two months after her Honour’s reasons were handed down.
The applicant, nonetheless, prepared a draft Notice of Appeal and attempted to file it on 11 June 2019, but it was rejected by the Registry because it did not attach the primary judge’s orders.
The Registry advised the applicant that he should wait to receive the orders and then file a Notice of Appeal with an Application in an Appeal for an extension of time.
The primary judge’s reasons were given orally on 14 May 2019. The evidence establishes that the orders made by her Honour were uploaded onto the Commonwealth Courts Portal on 14 May 2019 and were available to be viewed on the portal the following day.
On 15 May 2019, the respondent’s solicitors wrote to the associate to the primary judge seeking a written copy of the reasons. It emerged that there was a delay in providing the written copy of the reasons because, in turn, there had been difficulties in obtaining the transcript. As I have said above, the reasons became available on 5 July 2019.
Meanwhile, on 6 June and 20 June 2019, the applicant’s solicitor wrote to her Honour’s associate seeking a copy of the reasons but, interestingly, in the light of today’s application, no express request was made for a copy of the orders. At no stage did the applicant’s solicitor seek a copy of the orders from either the primary judge or from the respondent’s solicitors, or ask why they were not available. The applicant’s solicitor gives no explanation as to why he did not look at the portal or seek a copy of the orders.
Once he had obtained the reasons for judgment which, of course, included the orders, the solicitor did not file the present application until 30 July 2019, being a delay of 25 days. No explanation is proffered for that delay.
The evidence simply discloses that the applicant intended to appeal. It does not say when instructions were given to commence the appeal.
Ordinarily, delays occasioned by the default of a solicitor are not held against the client (Jess v Scott (1986) 12 FCR 187). However, that principle can only be taken so far and, in the present case, its operation is clouded by the fact that there is no evidence given as to the instructions provided by the applicant himself.
Taken overall, the explanation for the delay is far from satisfactory.
Merits of the proposed appeal
I turn then to the consideration of the merits of the appeal, bearing in mind two things. Firstly, this was an interim application for spousal maintenance. A consideration of such an application need not be as extensive or comprehensive as when a final order is involved (Williamson & Williamson (1978) FLC 90–505 per Fogarty J at 77,650).
Secondly, it is an interim application in respect of which leave to appeal is required.
Did the primary judge fail to give adequate reasons for determining that the respondent could not adequately support herself? (Ground 3)
The application before her Honour was for spousal maintenance in the sum of $1,616.65 per week. The applicant contended that an order of $499 per week was appropriate.
It could not therefore be an issue that the respondent was unable adequately to support herself and, as counsel for the applicant properly conceded, Ground 3 must fail.
The primary judge found that the respondent had a weekly shortfall of income over expenditure of $1,727.76 per week.
Her Honour turned to the income of the applicant, which she found difficult to determine on the evidence. The conclusion was that he had a gross monthly income exceeding $39,061.11.
Taking into account the applicant’s expenses, the primary judge was satisfied that the applicant had the capacity to pay maintenance in the sum sought by the respondent.
Did the primary judge fail to determine whether the respondent had discharged her onus in establishing that she could not adequately support herself to the extent that the applicant was required to meet the totality of her weekly needs & is the order requiring the husband to pay the “entirety of the [respondent’s] weekly expenses” plainly wrong? (Grounds 2 and 5)
Grounds 2 and 5 are said to concern the following paragraph of the reasons:
90.In terms then of concluding what orders ought to be made, as noted at the beginning of these reasons, the parties agree that the [respondent] is currently unable to support herself adequately. However, they are in dispute as to the extent to which this is so. Assuming that the [applicant] meets his child support obligations, the [respondent’s] current regular weekly income totals $1,153.90. She gives evidence that her weekly expenses for herself and the children total $2,281.66, plus she pays rent of $600 per week. She therefore has apparently a weekly shortfall of $1,727.76.
As can be seen, her Honour included in that paragraph both child support and the expenses of the children. It is said that in doing so, her Honour thereby erred (Stein & Stein (2000) FLC 93-004).
Nonetheless, as was explained to me, Part N of the respondent’s Financial Statement described her expenses as $1,016.66 per week plus rent of $600 per week, which was the order that the primary judge made. Thus, the order that was made, was made in relation to the respondent’s expenses only and not the children’s. It follows, in my opinion, that any infelicity in the language and approach of the primary judge by conflating the children and the respondent’s expenses (at [90]) did not find its way into the orders. Therefore, to the extent that it was in fact an error, then it was not material to the outcome (De Winter and De Winter (1979) FLC 90-605).
Did the primary judge properly assess the capacity of the respondent to support herself at all? (Ground 1)
Ground 1 is said to concern her Honour’s findings as follows:
93.Accordingly, I am unable to find with confidence that the [respondent] will, on an ongoing basis, have an amount in the vicinity of $5,500 per month available to her. Further, I accept that if the business is to develop into an ongoing affair that may, in the future, provide her with a regular and more predictable source of income, it is reasonable to expect that further funds will need to be applied to it and that the takings from the business are likely to meet this purpose.
It is submitted by the applicant that the finding of a lack of confidence is not sufficient and not properly explained. However, that paragraph must also be seen in the light of the following paragraphs:
26.In 2018 and since separation, the [respondent] established a [business]. The parties are in dispute as to whether this represents a source of income for the [respondent]. She gives evidence that she has invested $32,887.43 into the business. She does not disclose the source of these funds, although I note she gives evidence that as at the time of separation, she had five bank accounts with a total balance of $54,688.66. I expect, although I cannot conclude, that she drew upon those funds. She gives evidence in her affidavit material that as at 9 April 2018, her business had received sales totalling $26,185.36, although she observed that as the weather has cooled, sales have slowed.
27.She gives evidence that she is currently carrying a business loss of $7,676 and that the remaining stock will likely have to be sold at a discount. Insofar as there are funds available to her in a business account generated by her operation of the business, she gives evidence that she needs to preserve those funds to apply to new stock, so as to keep the business going.
28.The [applicant] contends that approximately $56,000 of the money held in the [respondent’s] accounts at the time of separation was, in fact, the joint savings of the party and that those funds were, therefore, assets of the relationship and not generated by the [respondent’s] endeavour. There is no evidence of her tax liability and there is no encumbrance on the revenue from the business. He further contends that as the [respondent] is operating as a sole trader, the income received from the business is being received by her and it is income available to her which has not been included in her financial material. The [applicant] contends that the income generated by business to date is approximately $5,597.68 per month and it is income available to her.
29.To the extent that the [applicant] contends that the [respondent] has an income of approximately $5,500 per month available to her from the business, without further evidence I am not aware as to whether this level of income can be expected to be generated by the business on a predictable or steady basis and I cannot be confident that it is likely to represent a secure source of income for the [respondent] to support herself and the children. In terms of what I can be confident of, it appears that the [respondent] has available to her, by way of income, approximately $1,153.90 per week, being made up of child support and family tax benefit.
It follows, therefore, that her Honour was not satisfied that the respondent had any income from the business that required it to be taken into account. Other than for the general complaint made in Ground 5, no specific error is outlined and, despite the applicant’s counsel’s best efforts today, he was unable to take that further.
Did the primary judge take into account an irrelevant consideration? (Ground 4)
Finally, I turn to Ground 4, which is said to be directed towards the first sentence at [92] of the reasons. As appears from the earlier passages quoted, the respondent had a business. The reasons refer to that business as follows:
92.Insofar as she has a [business] that has generated sales of approximately $26,000, she is, as I understand it, yet to recoup her initial investment and so she is currently behind by approximately $7,000. As noted, I am unable to determine on the evidence before me, whether the start-up costs were, in fact, drawn from the parties’ joint savings. At this time, I have no evidence that indicates whether the business takings to date are likely to continue at the same rate, or at a lesser or a higher amount, particularly having regard to seasonal variations.
I, for myself, do not see any apparent relationship between Ground 4 and the first sentence of that paragraph, except to say they both concern the business of the respondent. I do not see anywhere in her Honour’s reasons, where her Honour took into account the fact that the respondent did not repay the initial capital investments in circumstances where they were joint funds. Leaving that paragraph with the earlier paragraphs, which I have already quoted above, it seems to me that her Honour clearly did not make the error contended for.
It follows that I consider that the appeal has little merit. It is difficult to be satisfied that there is an issue that requires reconsideration by the Full Court of the Family Court of Australia and that any failure to reconsider that would lead to a substantial injustice.
It was submitted that no particular prejudice would be suffered if the order was made. That may be so, but the respondent has the right to retain the fruits of her judgment. The applicant has no right of appeal unless and until leave is granted so there is a presumed prejudice to the respondent.
Conclusion
Taking into account my view of the delay and the merits of the appeal, the application for an extension of time is dismissed.
Costs
The application has been wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth)).
The respondent sought an order for costs fixed in the sum of $1,200. No submissions were made in opposition to that application. That is an appropriate order to make.
I certify that the preceding forty-one (41) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 8 August 2019.
Associate:
Date: 15 August 2019
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