Forster and Forster
[2010] FamCAFC 205
•24 September 2010
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER | [2010] FamCAFC 205 |
| FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the Federal Magistrate appointed a litigation guardian for the husband – where the husband only has standing to proceed with his application in relation to orders appointing the litigation guardian – where there is no adequate reason explaining the delay – where there is a substantial issue to be raised on appeal in relation to the circumstances surrounding the Federal Magistrate’s appointment of the litigation guardian – where there is no expert evidence before the Court as to the husband’s mental state – where it is necessary to grant an extension of time to enable the Court to do justice between the parties – extension of time granted. |
| Family Law Act 1975 (Cth) s 94AAA(12) |
| Gallo v Dawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 Willshire & Willshire [2009] FamCAFC 130 |
| APPLICANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| LITIGATION GUARDIAN OF THE APPLICANT: | Public Trustee |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBER: | SA | 44 | of | 2010 |
| SA | 46 | of | 2010 |
| DATE DELIVERED: | 24 September 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 22 and 24 September 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 October 2008, 19 December 2008 & 16 March 2009 |
| LOWER COURT MNC: | [2008] FMCAfam 1075 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mrs West and Ms Hicks |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co Lawyers |
| COUNSEL FOR THE LITIGATION GUARDIAN: | Ms Dickson |
| SOLICITOR FOR THE RESPONDENT: | Crown Solicitor’s Office |
Orders
APPEAL NUMBER SA 44 of 2010
That the time for the filing of a Notice of Appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009, being an order appointing the Public Trustee as the litigation guardian for the husband, be extended to close of business on Monday 25 October 2010.
That paragraphs 2 and 3 of the orders sought in the Amended Application in an Appeal filed on 27 July 2010 be dismissed.
That the balance of the Amended Application in an Appeal filed on 27 July 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to the Notice of Appeal referred to in paragraph 1 hereof.
That the application for costs made by the wife be listed for hearing commencing at 10:00am on Monday 1 November 2010.
APPEAL NUMBER SA 46 of 2010
That the Notice of Appeal filed on 14 July 2010 and the Application in an Appeal filed on 10 August 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to a Notice of Appeal to be filed by the husband on or before 25 October 2010 in Appeal Number SA 44 of 2010.
IT IS NOTED that publication of this judgment under the pseudonym Forster & Forster is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 44 of 2010
SA 46 of 2010
File Number: ADC 3359 of 2007
| Mr Forster |
Applicant
And
| Ms Forster |
Respondent
And
| Public Trustee |
Litigation Guardian of the Applicant
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an Amended Application in an Appeal filed by the husband on 27 July 2010, seeking an extension of time to file a Notice of Appeal against orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008, and 16 March 2009. To identify the latter order, though, given that there were three orders made on 16 March 2009, I indicate that the relevant order is the order appointing the Public Trustee as the husband’s litigation guardian.
There are other orders referred to in the Application in an Appeal, but on 3 August 2010 I determined that, at this time, the husband could only proceed with his application insofar as it sought an extension of time to appeal against the orders relating to the appointment of a litigation guardian. At the time I only identified the orders of 19 December 2008 and 16 March 2009, but during the hearing of this matter it became apparent that the order of 8 October 2008 should also be included.
I do not want to repeat all that I said on 3 August, but in summary, my reason for so deciding was that I found that the husband had no standing to file any application, including a Notice of Appeal, whilst there was a litigation guardian appointed for him, except where challenging the appointment of the litigation guardian itself, and I referred to, and relied upon, a decision of the Full Court in Willshire & Willshire [2009] FamCAFC 130.
The application was ultimately supported by two affidavits, one filed on 27 July 2010 and the other filed on 1 September 2010. There was also a Draft Notice of Appeal filed on 27 July 2010.
The application was opposed by the wife. On 29 July 2010 she filed a response seeking that the application be dismissed, with costs. This response was supported by an affidavit.
At the hearing, the wife was represented by counsel, but the husband appeared without legal representation. Counsel for the litigation guardian also appeared, but in reality, only as a matter of courtesy and to provide assistance where required but without formally seeking to be heard.
I should note that, separate to the application that is before me, there has also been before me a Notice of Appeal filed by the husband on 14 July 2010 appealing against orders made by Federal Magistrate Lindsay on 22 June 2010. I do not want to say much about that Notice of Appeal, save and except that on 23 August 2010, I adjourned an Application in an Appeal filed by the husband on 10 August 2010 for further consideration to 22 September 2010. The fact of the matter is, as with the balance of the application that is before me, the husband, in my view, is not in a position to pursue this appeal whilst he has a litigation guardian appointed. Thus this Notice of Appeal, and the Application in an Appeal filed on 10 August 2010, in effect, has to await the outcome of, firstly, the application seeking an extension of time, and secondly, the outcome of the appeal if an extension is granted, and so I will make an appropriate order about that.
Background facts
The parties were married in the United States in 1989.
Their first child, M, was born in February 1990, and their second child, K, was born in January 1995.
Between 1989 and 1999 the parties and, after they were born, the children, variously lived in Adelaide or in the United States, but from October 1999 the wife and children have lived continuously in Adelaide. The husband remained living in the United States until he returned to Australia at the end of 2005.
The parties and the children then lived in the former matrimonial home until April 2006. Thereafter, the wife remained in occupation of that home with the children until May 2007.
In June 2007, the wife instituted proceedings in the Federal Magistrates Court, seeking parenting orders and orders for property settlement.
The trial in relation to the children’s issues was heard in May 2008, and submissions were presented on 1 September 2008. On that latter date, Federal Magistrate Lindsay expressed concerns as to the mental state of the husband and his capacity to conduct the proceedings.
On 1 September and on 4 September 2008, his Honour heard submissions as to whether an order should be made for the appointment of a litigation guardian for the husband.
On 8 October 2008, his Honour published reasons for judgment and made orders for the husband to attend upon a psychiatrist and for a report as to his capacity to be presented to the court, and his Honour adjourned the matter to 19 December 2008.
An appointment with a psychiatrist was duly made by the Independent Children’s Lawyer, pursuant to his Honour’s orders, but the husband refused to attend, and no report was prepared.
On 19 December 2008 upon noting that the court would make inquiries as to which government agency was available to be appointed as the husband’s litigation guardian, the Federal Magistrate made an order, inter alia, that a litigation guardian be appointed for the husband.
On 16 March 2009 the Federal Magistrate made an order that the Public Trustee be appointed as the litigation guardian for the husband for the purposes of the order made on 19 December 2008.
On 16 March 2009 final parenting orders were also made, by consent, with the litigation guardian consenting on behalf of the husband. That, of course, left the issue of property settlement, and the trial in relation to that dispute took place on 20 and 21 October 2009, and concluded on 30 March 2010. The Public Trustee instructed counsel to appear at that trial.
On 23 April 2010 the Federal Magistrate published his reasons for judgment and made orders for property settlement.
The Public Trustee remains as the litigation guardian for the husband, given that there are other proceedings still on foot in the Federal Magistrates Court, including a section 79A application filed by the Public Trustee.
The Law
The law in relation to applications for extension of time is well settled. The relevant principles are conveniently set out in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, and in particular I refer to what McHugh J said at 480:
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 and Agency Co. of Australasia Ltd. (1978) VR 257, at p 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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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 p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 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 p 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.
Those principles have been followed in a number of Full Court decisions of this Court, including Tormsen and Tormsen (1993) FLC 92-392. The authorities also identify that the extent of the delay and the reasons for any delay are matters which are highly relevant in determining an application for an extension of time, (e.g. see McMahon and McMahon (1976) FLC 90-038).
In summary, then, the relevant factors that need to be addressed are:
§ the history of the proceedings;
§ the conduct of the parties;
§ the nature of the litigation;
§ the extent of any delay;
§ whether there are adequate reasons which explain the delay;
§ the prospects of the applicant succeeding in an appeal;
§ if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise; and
§ the consequences for the parties of the grant or refusal of the application.
However, as the Full Court in Tormsen observed, and as is apparent from what McHugh J said in Gallo v Dawson, these factors are to be considered in the context of determining what the justice of the case requires.
Discussion
The starting point to understanding the husband’s case is his two affidavits filed in support of his application. Both affidavits are unnecessarily lengthy and prolix, and contain substantial irrelevant and inadmissible material. Both affidavits make for difficult reading, and accordingly, I spent significant time during the hearing identifying with the husband precisely what matters he relied upon and attempting to understand the case that he was presenting. Above all else though, the husband made it abundantly clear, not only in his affidavits but also in his oral submissions, that he did not have any mental incapacity and that there was no genuine basis for the appointment of a litigation guardian.
He was also intent on promoting an allegation that the Public Trustee and/or the solicitors for the Public Trustee had failed to carry out their duties, responsibilities, and obligations towards him. In addition, he was keen to promote a claim that the “opposing solicitors” had engaged in a “conspiracy” to prevent him being able to pursue his “fundamental rights”. These latter two themes permeated his affidavit material and became the focus of his oral submissions, unfortunately, thereby failing to address the issues that needed to be addressed to properly determine his application.
In the end result, there was very little in his lengthy affidavit material that assisted the Court in determining his application. As an aside, the content of the affidavit material and his presentation in Court provided a firsthand experience of the concerns expressed by the Federal Magistrate about the husband’s mental state in his reasons delivered on 8 October 2008. This, perhaps, also highlights one issue for the Court in determining the husband’s application. In other words, should the factual matrix be approached on the basis of the husband’s position, namely, that he has no mental incapacity, and he is, and has been, perfectly able to conduct these proceedings himself without a litigation guardian, or should it be approached on the basis that the husband has a litigation guardian and, therefore, he is not, and has not been, mentally capable of conducting these proceedings.
Further, if the latter is the proper approach, the question can perhaps be asked as to what allowance should be made when looking at what the husband did, or did not do, in relation to filing a Notice of Appeal in time and/or an application for an extension of time in a reasonable period of time.
The difficulty, of course, is there is no expert evidence before this Court as to the husband’s mental state, just as there was no such evidence before the Federal Magistrate. Thus, I am in no position to make any finding about his mental capacity, and indeed that is not my task in any event.
As I will elaborate on in a moment, the primary complaint that the husband wishes to pursue in an appeal, and putting it into appropriate language, is that the Federal Magistrate erred in finding that it was necessary for a litigation guardian to be appointed in the first place, and in that context his Honour erred in finding that the husband’s mental state was such that he required a litigation guardian. That is the ultimate issue here, and clearly that would have to be a matter for the Full Court, if an extension of time is granted.
Thus, in terms of the question that I posed, the answer is that in determining the husband’s application, as was expressed by McHugh J in Gallo v Dawson, all I can do is address where the interests of justice lie.
Turning then to the factual matrix, there are, of course, three orders that it is necessary to address and, although strictly it would be necessary to look at the relevant time periods as they apply to each order, I propose to approach this matter on the basis that any time calculations commence from the date of the last order, namely, 16 March 2009. I observe that counsel for the wife did not oppose that course of action. It is still relevant, though, to look at the circumstances that applied from the time of the making of the first order, namely, 8 October 2008, until the making of the third order because, of course, it was open to the husband to file a Notice of Appeal after each of the first two orders were made, but he did not.
In any event, looking at the order made on 16 March 2009, the husband had until 14 April 2009 to file a Notice of Appeal against that order. He did not do so though, and it was not until 5 July 2010 that he filed his initial application for an extension of time. I note that the husband attempted to file a Notice of Appeal against the orders for property settlement made on 23 April 2010, but he was one day late, and that Notice of Appeal was not accepted by the relevant Appeals Registry, and the husband has put before me the letter that he received from the registry in relation to that. It clearly sets out that he would need to, in relation to that matter, file an Application in an Appeal seeking an extension of time.
It seems to me that that was the catalyst to him doing something about appealing against the order appointing the litigation guardian. Until that time he had done nothing about any of the previous orders, in terms of looking to appeal or seeking an extension of time to appeal, and that that was the catalyst is borne out by the fact that his application filed on 5 July sought an extension of time in relation to a number of orders, not only the property settlement order. In any event, the period of time before he did file his initial application is obviously a lengthy period and requires explanation.
Doing the best I can to understand the husband’s affidavits and oral submissions, it seems that he is saying that he was prevented from filing a Notice of Appeal and an Application in an Appeal for the following reasons:
(1)He was required to travel to the United States to attend to litigation in which he was involved there.
(2)That unnamed persons in the United States and Australia “orchestrated and scheduled court hearings to frustrate attendance and impede the fair administration of justice through demonstrated prejudices, unjustifiable delays, and ultimately denial of fundamental rights”.
(3)He was not provided with a copy of the order of 16 March 2009 by the Public Trustee in sufficient time to file an appeal.
(4)The failure by the Public Trustee, and/or the solicitors acting for the Public Trustee, to properly carry out their duties, responsibilities, and obligations, and
(5)The inability of the husband to obtain legal representation.
Looking at these reasons in turn, the husband’s own evidence is that he was overseas from 3 December 2008 to 16 December 2008, then from 18 June 2009 until 18 July 2009, from 25 July 2009 until September 2009, and finally from January 2010 until April 2010. Thus, it can be seen that his absence overseas, which included one trip to attend the funeral of a family member, simply could not have prevented him from filing a Notice of Appeal between 16 March 2009 and 14 April 2009 when the 28 day time period expired, or prevented him from filing an application seeking an extension of time within a reasonable time of 14 April 2009.
With the second reason, there is no evidence that the husband has presented to justify his conspiracy theory, and I reject it.
With the third reason, it is common ground that, although he was present in court when the orders of 8 October 2008 and 19 December 2008 were made, he was not present in court when the order of 16 March 2009 was made. He denied in his oral submission that he had received a letter from the solicitor for the Public Trustee dated 23 March 2009 enclosing a copy of the order. But in his own affidavit, and I refer, for example, to paragraph 104, he deposed to receiving that letter on 3 April 2009, and he even annexes a copy of a letter from him to the solicitor for the Public Trustee dated 3 April 2009 acknowledging receipt of the letter of 23 March 2009, and the enclosed order. Thus, clearly, I do not accept his oral submission to me, and it is quite apparent that he did, in fact, receive a copy of the order within time and certainly by 3 April 2009.
I also find that, given that he was present when the earlier orders were made, and given that he had received correspondence from, and had discussions with, the solicitors for the Public Trustee commencing in February 2009, he was well aware that the order of 16 March 2009 was going to be made, and he therefore had ample time to file a Notice of Appeal before the expiry of the 28 day time period. In addition, it seems to me he had ample time to file an application seeking an extension of time well before July 2010.
As to the fourth reason, that complaint, of course, ties in with his allegation of a conspiracy and the like. However, having read his affidavits and the correspondence that he annexes thereto that has passed between himself and the solicitors for the Public Trustee, this complaint is simply not borne out on that evidence. In any event, there is nothing to suggest that anything the Public Trustee, or the solicitor for the Public Trustee, did or did not do that would have prevented him from filing a Notice of Appeal or an application seeking an extension of time.
It is also apparent from his documentation that the husband has been labouring under the impression that he could not file an appeal because he had a litigation guardian. For example, he says this in paragraph 123 of his affidavit of 1 September 2010:
It is clear that any opportunity to file an appeal against orders were stymied through appointment of a litigating [sic] guardian and restrictions that prohibited me from filing documents in the court.
However, when I raised this with him during the hearing, he made a point of saying that he was not, in fact, under any misconception, and he was fully aware that he could file an appeal and file an Application in an Appeal in this Court. Indeed, he said to me that I should not treat this as a reason for him not filing a Notice of Appeal in time, or an Application in an Appeal within a reasonable time.
It is also common ground that, although the solicitors for the Public Trustee raised with the husband that he could apply to remove the litigation guardian, there was no mention that he could appeal. However, it is not the role of the litigation guardian to provide legal advice to the husband, and in any event the husband well knew that he could file a Notice of Appeal. He had previously, in 2007, filed a Notice of Appeal against orders made by Federal Magistrate Lindsay. However, he needed leave, and he then filed an application seeking an extension of time to file an application seeking leave to appeal. That application proceeded to a hearing when it was dismissed.
In relation to the final reason, namely, inability to obtain legal representation, there is simply no evidence that the husband presents that he was seeking legal representation at or about, or immediately thereafter, or at any time after the order of 16 March 2009 was made. He has always acted for himself, and it is not a serious suggestion, in my view, that a reason for him not filing a Notice of Appeal within time was that he was unable to obtain legal representation.
Thus, analysed in this way, the extent of the delay and the lack of adequate reasons explaining the delay point to the application being dismissed. However, there are other factors still to consider, and next I turn to whether there is a substantial issue to be raised on appeal.
The grounds of appeal in the draft proposed Notice of Appeal of the husband are typically otiose and difficult to follow, but again, doing the best I can, there appears to be two relevant grounds, namely, and to summarise:
(1)That the Federal Magistrate erred in ordering a psychiatric examination with a view to appointing a litigation guardian, absent any evidence that the husband was unable to fully participate in and understand the court proceedings.
(2)That the Federal Magistrate erred in the exercise of his discretion in appointing a litigation guardian for the purpose of suppressing the husband’s fundamental right of self-representation and denying him natural justice.
I note, of course, in the context of, as he describes it, his fundamental right of self-representation, what that says in relation to the fifth reason that he gave to which I have referred earlier.
It is impossible and would be improper for me to express a concluded view about the prospects of success of these grounds of appeal. Having read, though, the reasons for judgment of the Federal Magistrate published on 8 October 2008, and the affidavit material filed by the husband and the wife, and to which parts of the transcript before the Federal Magistrate were annexed, I can make the following comments:
(1)The husband will not succeed in establishing that the appointment of the litigation guardian was designed to suppress his rights or deny him natural justice.
(2)However, it is arguable that the Federal Magistrate erred in the exercise of his discretion in appointing a litigation guardian and/or failed to give adequate reasons for making such an order. It was the Federal Magistrate himself who raised the issue of the appointment of a litigation guardian, as he is entitled to do under the relevant Rules of Court, and he did so on the basis of his concern at the presentation of the husband before him, and the content of his evidence and of his submissions. His Honour had a “real apprehension” as to the husband’s capacity to properly conduct the litigation. However, his Honour found that, before determining that issue, it was appropriate to obtain information arising from a formal psychiatric assessment of the husband. His Honour said this in his reasons for judgment delivered on 8 October 2008:
81.I am presently inclined to make the order for the appointment of a litigation guardian. But it would be imprudent of me to determine the matter in a final way without the benefit of a psychiatric report. The report may opine that no issue arises of a psychiatric or psychological nature such as to make the [husband] incapable of conducting the proceedings. (I would be very surprised if any issue arose as to his understanding of the proceedings - the first of the matters giving rise to the “need” to which r. 11.02 refers.) The existence of a clinical medical condition is not a pre-requisite to the making of an order for the appointment.
And I agree with that comment. But his Honour continued:
An incapacity may arise from a number of factors, some clinical and others not. Or an opinion may be expressed that the [husband] has clear capacity to conduct (or to “manage”, to use the equivalent language of other jurisdictions, referred to above) the litigation.
Then his Honour said this in paragraph 82:
As noted above, whatever the conclusion, the material arising from such a report is unlikely to be irrelevant. It should serve to expand at the very least our understanding of the [husband’s] position. It may well be determinative of the decision to make the appointment. It may not be.
Thus, to repeat, his Honour ordered that the husband attend upon a psychiatrist nominated by the Independent Children’s Lawyer and a report then be provided to the Court and, reading from his Honour’s order, as to the following:
(a) whether the [husband] understands the nature and possible consequences of the proceedings;
(b) whether the [husband] is capable of adequately conducting, or giving adequate instructions for the conduct of, the proceedings; and
(c) whether the [husband] suffers from any, and, if so, what, psychiatric, psychological, or personality disorder or condition, and, if so, the extent to which any such disorder or condition is relevant to the opinion provided in relation to issues (a) and (b) referred to above.
However, the husband refused to attend upon the psychiatrist nominated by the Independent Children’s Lawyer. He explained in his affidavit that he sought answers from the psychiatrist to a series of questions, but the psychiatrist did not respond, and therefore the husband did not attend. Thus, no psychiatric report was provided to the Court, yet on 19 December 2008 the Federal Magistrate made an order for the appointment of a litigation guardian. Significantly, there are no published reasons for making that order. Thus, it is impossible to know on what basis, and in particular without the benefit of a psychiatric report, how his Honour reached that decision. Accordingly, I consider that there is a substantial issue to be raised on appeal here.
Next, I want to deal briefly with the issues of the history of the proceedings, the conduct of the parties, and the nature of the litigation. There would appear to be nothing of great relevance coming out of a consideration of those matters. Perhaps the only comment that can be made is that the circumstance of the husband acting for himself has impacted negatively on the proceedings. His affidavit material has been inevitably lengthy and prolix and often irrelevant, and his submissions have been likewise. His obsession about a conspiracy between lawyers and his unjustified claim that his rights have been suppressed have added to the negative impact that his conduct has had on the proceedings.
Turning then to the issue of whether there is any hardship or injustice to the wife which cannot be compensated by an order for costs or otherwise, there is an obvious prejudice to the wife. Since the order appointing the Public Trustee as the husband’s litigation guardian was made on 16 March 2009, final parenting orders have been made and final property settlement orders have been made. Those orders are at risk if an extension of time is granted and the husband is then successful in appealing against the orders appointing a litigation guardian. It also cannot be forgotten that there was a period of 16 months that passed following the making of the order on 16 March 2009 before the husband filed his initial application in an appeal.
Thus, there is the prospect of some significant unravelling of orders, and of the consequences of those orders, if this application is granted and the husband is subsequently successful, let alone the enormous costs and time that would be involved in that process. However, it is also important not to look too far ahead. The application before me is still only to extend the time to file a Notice of Appeal against the orders for the appointment of a litigation guardian and, if granted, that is only the first step in the exercise. It may end there, or it may proceed further, and it is impossible for this Court to be definitive about that.
This leads into a consideration of the consequences for the parties of the grant or refusal of the application. For the husband, refusing to grant the application will have serious consequences. Section 94AAA(12) of the Family Law Act1975 (Cth) provides that no appeal lies from such a decision. There is, though, the ability to seek special leave to appeal from the High Court of Australia, but that would not generally be a viable option. In relation to the respondent, the wife, I have already referred to the prejudice that she would suffer if the application was granted, and I do not need to repeat that.
Conclusion
Having considered the relevant factors, it is then necessary to determine what the justice of the case requires in light of those factors. Although I have found that there has been an inordinate delay on the part of the husband, and that there is no adequate reason provided for that delay, significantly I have found that there is a substantial issue to be raised on appeal. There is a serious question mark about the husband’s mental capacity and whether the Federal Magistrate erred or not in appointing a litigation guardian, and that is clearly a matter that the interests of justice require be determined by the Full Court on appeal.
This has been a difficult decision and I have every sympathy for the wife, given the husband’s delay and his conduct generally, but, to adopt the words of McHugh J, the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties, and in the particular circumstances of this case that requires the granting of the application.
I need to be precise, though, in terms of what orders can be the subject of a Notice of Appeal.
Clearly, the primary order is that made on 19 December 2008, and that should be included.
Next, although the order of 16 March 2009 merely identified the Public Trustee as the litigation guardian, it would still be an order that the husband would want to appeal against. It takes the order of 19 December 2008 to the next level. That is not to say, though, that I am granting an extension of time to permit the husband to challenge the appointment of the Public Trustee, per se. It is the underlying issue, namely the need at all for a litigation guardian, which needs to be determined on appeal at this stage.
There is then the order of 8 October 2008. Now, it could be said that that order is no longer relevant, given that the husband did not comply with it, and the order of 19 December 2008 was made anyway, but the Federal Magistrate’s reasons published on 8 October 2008, in my view, are highly relevant to any appeal.
Thus, the Notice of Appeal that the husband is now permitted to file can, and should be, against all three orders.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 24 September 2010.
Associate:
Date: 27 October 2010
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