Forster & Forster

[2007] FamCA 1633

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER [2007] FamCA 1633

FAMILY LAW - APPEAL – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – application by husband for extension of time to file application for leave to appeal interim orders made “with respect to property” – discussion of relevant principles in determining application for extension of time – whether a substantial issue to be raised on appeal – orders seeking to appeal relate to practice and procedure and not matters of substantive law – discussion of relevant principles to determining application for leave to appeal – husband self- represented – husband will not accept application for property settlement is before the court – claims by husband that Federal Magistrates Court does not have jurisdiction to hear matter and that Federal Magistrates Court has been discriminatory towards him – complete misunderstanding by husband of jurisdiction and power of Federal Magistrates Court – not satisfied is substantial issue to be raised on appeal – husband would be wholly unsuccessful in an appeal – application dismissed.

FAMILY LAW - APPEAL – appeal from orders with respect to parenting – appeal from order “during period of adjournment” – order no longer in existence – order subsequently made in same terms – leave granted for husband to amend Notice of Appeal so as to appeal subsequent order.

FAMILY LAW - COSTS – application by wife for costs – husband wholly unsuccessful in relation to application in case – application doomed to fail and should not have been made – husband to pay wife’s costs in relation to application in a case – wife’s application for costs with respect to Amended Notice of Appeal adjourned to directions hearing in event husband files Further Amended Notice of Appeal.

Family Law Act 1975 (Cth) s 117

McMahon and McMahon (1976) FLC 90-038
Gallo v Dawson (1990) 93 ALR 479
Alfasi and Alfasi Group (2006) FLC 93-271
Rutherford and Rutherford (1991) FLC 92-255
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170

Aarons v Knowles (1995) FLC 92-627

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 3359 of 2007

APPEAL NUMBER: SA 95 of 2007

DATE DELIVERED: 30 November 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 November 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Catherine Hicks & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen
Legal Services Commission of SA

Orders

1. That the Amended Notice of Appeal filed on 8 November 2007 be dismissed insofar as it appeals against paragraph 1 of the orders made by Federal Magistrate Lindsay on 26 September 2007.

2. That leave is granted to the husband to further amend the Amended Notice of Appeal such that the appeal is against paragraph 5 of the order made by Federal Magistrate Lindsay on 16 November 2007, such Further Amended Notice of Appeal to be filed and served within 14 days.

3. That the Application in a Case filed by the husband on 8 November 2007 be dismissed and removed from the active pending cases list.

4. That the husband pay to the wife’s solicitors on behalf of the wife the sum of $2,000.00 by way of costs, such sum to be paid within 28 days from the date hereof.

5. That the wife’s application for costs in relation to the Amended Notice of Appeal be adjourned to a date to be fixed UPON NOTING that the date will be the same as the date for the directions hearing in the event that the husband files a Further Amended Notice of Appeal.

IT IS NOTED that publication of this judgment under the pseudonym Forster and Forster is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SA 95 of 2007

MR FORSTER

Applicant

And

MS FORSTER

Respondent

EX TEMPORE REASONS

1. I had started to deliver some short reasons today in relation to an application that the husband made to amend his Application in a Case filed on 8 November 2007.  Part‑way through those reasons the husband indicated that he was not proceeding with his application in that regard.  That is relevant to what I now intend to deal with.

2. This is a matter where the husband filed a notice of appeal against orders made by Lindsay FM on 26 September 2007.  The orders made on that day can be very loosely described as orders with respect to parenting issues and orders with respect to property settlement.

3. I am going to leave for the moment the appeal the husband has filed against the orders described as "With respect to parenting orders" in the order itself, namely, paragraphs 1 and 2 of the order of 26 September 2007.

4. In relation to the orders which are described as "With respect to property settlement" in the order itself, initially the husband sought to appeal against paragraphs 3, 4, 6 and 7 of the orders of 26 September 2007 but, as a result of being informed by the Appeals Registrar that he needed leave to appeal against those orders, he then filed an application in a case seeking that leave.

5. As it turned out though, the husband did not seek leave in relation to paragraph 3.  That was the subject of the amendment application to which I have just referred and the position now is that the husband does not seek an extension of time for leave to appeal against paragraph 3 of the order of Lindsay FM made on 26 September 2007.

6. I will not dwell on that, but I note that in any event that order provided for a conciliation conference to be held on 29 November 2007 and that has in fact occurred.  That conciliation conference took place yesterday.  Fortuitously or otherwise, by dint of the timing of the matters coming before this court, paragraph 3 is of no moment any more, in any event.  Thus I turn my attention to paragraphs 4, 6 and 7 of the order of 26 September 2007.

7. To repeat, the husband now makes an application to this court for an extension of time to file an application seeking leave to appeal, and in that same application he seeks leave to appeal.  The husband has filed an affidavit in support of that application and that was also filed on 8 November 2007. 

8. The husband has sought other orders in the application.  Paragraph 3 and paragraph 4 of the application do not relate, per se, to any order made on 26 September 2007 or in respect of any order that he either appeals against or seeks leave to appeal against.

9. In paragraph 3 he seeks an order that the wife file an application for property settlement and file an amended Financial Statement.  They are not matters that can be put before this Court.  The Federal Magistrates Court is seized of the application for property settlement and if the husband wants to make such an application he should make it to that court.  Thus I propose to dismiss paragraph 3.

10. In paragraph 4 the husband seeks an order that paragraph 9 of the order of 8 August 2007 be included in the 26 September 2007 order.  Paragraph 9 granted, “liberty to the father to apply to vary the adjourned date upon filing an affidavit relating to the circumstances in which he is required to leave the jurisdiction.”  It seems that that is a matter of particular concern to the husband.  He has litigation in the United States, and he says that he needs to return to the United States to conduct the same.  However, he is worried about having to be in the United States when he might also have to be here for these proceedings.  Be that as it may, paragraph 4 is not an application that I can deal with.  It does not relate to any part of his notice of appeal or his application for leave to appeal.  Thus I propose to dismiss paragraph 4 as well.

11. Mr McGinn for the wife has opposed the application for an extension of time and equally has indicated that his client opposes the application for leave to appeal.  I have heard submissions from both parties in relation to both issues, although the application for an extension of time logically comes first.

12. There is ample authority which provides guidance as to what an applicant for leave to extend time must establish.  For example, in McMAHON and McMAHON (1976) FLC 90-038 Evatt CJ held that an applicant for leave to extend time must show that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on appeal, and that no hardship or injustice is caused to the wife which cannot be compensated by orders as to costs or otherwise.

13. I am not going to take everyone through a history of the subsequent cases that have been decided both in this court and in the High Court.  They include though the Full Court decision in TORMSEN v TORMSEN (1993) FLC 93-392, and the High Court decision in GALLO v DAWSON (1990) 93 ALR 479. Summarising the principles that have been developed, both in this court and other courts, including the High Court, it seems that there are now four matters that need to be addressed. Firstly, there should be adequate reasons present explaining the delay. Secondly, there should be a substantial issue to be raised on the appeal. Thirdly, that there is present neither hardship nor injustice to the wife which cannot be otherwise compensated by orders as to costs or otherwise. Fourthly, the fundamental issue is whether the granting of an extension of time for leave to appeal out of time is necessary to enable the court to do justice between the parties.

14. In this case it seems to me - and Mr McGinn did not argue strongly against this – that there are adequate reasons explaining the delay.  Mr McGinn, though, has quite forcefully put to me that there is no substantial issue to be raised on the appeal.  As to whether there is hardship or injustice to the wife which cannot be otherwise compensated by orders as to costs or otherwise, I consider that that matter stands or falls on whether there is a substantial issue to be raised on appeal.  With the fourth requirement I need to ask myself the question, "Is it necessary to extend time to enable this court to do justice between the parties?"  Again, in my view that issue is inextricably tied up with whether there is a substantial issue to be raised on appeal.

15. Mr McGinn has also made extensive submissions in relation to the requirements in respect of leave to appeal.  However, before I come to that I need to mention that, even allowing for the husband appearing in person, his affidavit in support of his application is completely inadequate in that it failed to address the issues that this Court needs to consider in determining an application for an extension of time.  It does address the issue of leave to appeal but frankly raises matters which in my view are completely irrelevant to that issue.  At the end of the day the affidavit did not help me greatly in deciding this aspect of the matter.  I mention that because the onus is on the husband to satisfy me that there should be an extension of time granted in this case.  Equally, the onus is on the husband to satisfy me that this is a matter where leave to appeal should be granted. 

16. Of course, in considering the application for an extension of time, to repeat, I am primarily required to look at whether there is a substantial issue to be raised on appeal.  I do not need to be satisfied that the father has a good case for leave to appeal, but in addressing that question, as Mr McGinn has done and I will do shortly, it seems to me that that provides the answer to the application for an extension of time.

17. As I have said, the orders that the husband seeks leave to appeal against are described in the order as, "With respect to property settlement".  However, they are quite obviously orders that relate to practice and procedure.  Paragraph 4 provides for the husband to provide certain documents to the wife’s solicitors.  Paragraph 6 provides for the exchange of written valuations of the former matrimonial home.  Paragraph 7 provides for, in the event that the valuers are not in agreement, the valuers to confer prior to the conciliation conference.  Thus, matters of procedure as opposed to matters of substantive law.

18. The law in relation to leave to appeal from interlocutory orders of this nature is relatively settled.  Mr McGinn has referred me to the case of ALFASI v ALFASI GROUP (2006) FLC 93-271, which was a decision of Bryant CJ sitting as a single judge. However, the earliest relevant case is RUTHERFORD v RUTHERFORD (1991) FLC 92-255 which was a decision of the Full Court of this Court.

19. In looking at the principles that should be applied under the Family Law Act 1975 to an application for leave to appeal, the Full Court in RUTHERFORD drew upon the principles that had been established prior thereto in the High Court, and in particular in the High Court decision of ADAM P BROWN MALE FASHIONS PTY LTD v PHILLIP MORRIS INC (1981) 148 CLR 170. Gibbs CJ, Aickin, Wilson and Brennan JJ said this at p.177:

    “An interlocutory order for an injunction is a matter of practice and procedure.  See McHarg v. Universal Stock Exchange Ltd. [[1895] 2 QB 81 at 82]; Minister for The Army v. Parbury Henty and Co. Pty. Ltd. [(1945) 70 CLR 459 at 489]; White v. White [[1947] VLR 434 at 438].

    Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.  Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task.  Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties.  The opposing view is that such criteria are to be expressed disjunctively.  Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146].  For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.  The circumstances of different cases are infinitely various.  We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:

    ‘…I am of the opinion that, …there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’

    See also Brambles Holdings Ltd. v. Trade Practices Commission [(1979) 28 ALR 191 at 193]; Dougherty v. Chandler [(1946) 46 SR (NSW) 370 at 374].  It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.”

20. The requirement that not only must there be an error of principle but the decision appealed from must work a substantial injustice to one of the parties has been adopted in this court, from RUTHERFORD onwards.  The Chief Justice, though, in ALFASI, referred to a more recent decision of this court in AARONS v KNOWLES (1995) FLC 92-627, which introduced a third element, namely, that the issue needs to be one of general importance.

21. There has been no definitive judgment as to whether those requirements ought to be applied disjunctively or not, but I do not propose to launch into a consideration of that issue.  I do not think it is necessary for this case.  What I need to do is to consider whether there is an error of principle or a substantial injustice to one of the parties or whether the issue is one of general importance, bearing in mind that the orders that are made are procedural orders and not substantive orders.

22. Why I stress that is because again the authorities are quite clear that appellate courts should exercise particular caution in reviewing decisions pertaining to practice and procedure, otherwise the workings of the courts would be seriously impacted upon.  The disposal of cases would be delayed if, in effect, a litigant were able to transfer all exercises of discretion in interlocutory applications from a lower court to a court of appeal.  Thus there are good reasons for that particular caution, which obviously applies here.

23. As Mr McGinn has said, and as is perfectly obvious to me from the documents that are before me, these orders are what I would term "usual" or "common" orders that are made in order to prepare a case not only for a conciliation conference, which is one of the very first steps that occur in a family law case involving property settlement, but also as part of the case management process, leading ultimately to a trial in the matter if the issue is not resolved earlier, either at the conciliation conference or by negotiation or otherwise.

24. There is nothing unusual in these orders.  To repeat, they provide for certain documents to be made available to the wife’s solicitors, they provide for an exchange of valuations of the former matrimonial home and they provide for a conference between the valuers in the event that the valuers are not in agreement.

25. I have had the benefit of reading the transcript of the hearing on 26 September 2007, and in particular in relation to these matters and what passed between the Federal Magistrate and counsel and the husband when considering the orders which were ultimately made.  It was a case which occurs day in day out in the Federal Magistrates Court of one party saying they need particular documents and the other party saying they need particular documents as well, but also addressing the question of the need for a valuation.

26. I note that it was properly canvassed before the Federal Magistrate whether there should be a single valuer appointed.  The Federal Magistrate decided that in the circumstances of this case it was better to allow the parties to each get their own valuation, then there could be no disagreement about the single expert or what that single expert might say.  All pretty much standard procedural matters that, as I say, occur on a daily basis in the Federal Magistrates Court.

27. It has also assisted me to understand the husband’s complaint about these particular orders by looking at his grounds of appeal in his Notice of Appeal.  As I said, he filed a notice of appeal presumably thinking that he was able to appeal as of right against these particular orders.  I have taken the husband through these grounds of appeal and also asked him to explain at least one of them.  The grounds of appeal and his attempts at explaining them reveal a complete misunderstanding by the husband as to what applications are before the Court.  For example, he says in these grounds of appeal, and he has repeated it in his oral submissions to me, that he will not accept that there is an application for property settlement before the court.  As I identified from the Federal Magistrates Court file when this matter was before me previously, on 19 June 2007 the wife filed an initiating application in which she sought orders in relation to the children and in relation to property settlement.  Thus, I simply cannot understand what the husband is referring to in this regard.

28. The husband also suggests that there is a jurisdictional issue, namely, that the limit of the jurisdiction of the Federal Magistrates Court is $700,000.00 in property settlement matters.  However, that has not been the case for some time.  When I raised this with the husband he said, "Oh, look, I'll have to look into that.  I've seen a recent case which says otherwise, but I'll look into that and research that."  The plain fact of the matter, whether he accepts it or not, is that it is wrong.  There is no jurisdictional limit of $700,000.00 that now applies in the Federal Magistrates Court.

1. The husband explained to me that his objection to paragraph 6 of the order of the Federal Magistrate, which provided for the exchange of written valuations, is that the Federal Magistrate could not order an exchange of valuations at this early stage of the proceedings.  He says he should be left to present a valuation at an appropriate time; namely, he says, closer to trial.  If the husband is intending to suggest that the Federal Magistrate had no power to make the order that valuations be exchanged, he is again sadly mistaken.  The Federal Magistrate clearly has that power and he has exercised that power in making that order.

2. Outside of that, when I requested the husband to explain his grounds of appeal, he said that the whole process in the Federal Magistrates Court has been discriminatory against him.  He has not been given the same time to attend to things as the other side.  He has not been given the same opportunity to present, as he described it, his issues to the Court.  They are matters which presumably the husband feels strongly about but they are not matters that I can take into account in considering the application that is currently before me. 

3. Unfortunately, the husband appears for himself.  He would benefit greatly if he instructed a solicitor to conduct this case for him.  At every turn it seems that the husband either misunderstands the law or has taken a particular view, which ultimately has turned out to be wrong, as to what the law is.

4. Taking everyone through that exercise and referring to the grounds of appeal, and what the husband has said in his submissions to me, highlights, confirms and corroborates the submissions that Mr McGinn has made, namely, that in making these orders that the husband complains about, the Federal Magistrate has not made an error of principle, he has not caused substantial injustice to one of the parties and the issue involved is not one of general importance.  The onus, to repeat, is on the husband to satisfy the Court about those things but he has not satisfied that onus. 

5. It has not been demonstrated to me that there is a substantial issue to be raised on the appeal.  It is quite apparent that, even if I granted the extension of time, the husband would be wholly unsuccessful in his application for leave to appeal.  He has failed to demonstrate, in his affidavit material or in oral submissions that leave to appeal should be granted and thus I propose to dismiss the application.

6. Finally, and to repeat some matters that I raised at the commencement of today's hearing, the husband has also appealed against paragraphs 1 and 2 of the orders made by Lindsay FM on 26 September 2007.  Prima facie, his appeal in that regard is validly before the Court.  He is able to appeal such orders as of right.  However, I have indicated already that I propose to dismiss the Notice of Appeal insofar as it seeks to appeal against paragraph 1 of the order of Lindsay FM.  And to repeat my reasons for that, they are simple.  I am told, and it has been confirmed, that the children have in fact seen the Independent Children’s Lawyer and there is no suggestion that there is another appointment that needs to be arranged or another interview that needs to take place.  Thus, the plain fact of the matter is that that order has been complied with.  The husband does not quibble with that but he says he should be allowed to pursue an appeal against paragraph 1 because of the prejudicial nature of that order. 

7. Specifically, in his ground of appeal in relation to paragraph 1 he says this:

   “An objection was made on Mr Stephen’s representation and that prejustices demonstrated against me by Mr Stephen to the Court for his failure, when requested, to provide an itemize statement for charges of $2400.00 for hourly work he intended to conduct as the independent children representative.”

   Now, I quote that directly.  Trying to make the best of what the husband is saying there, he is complaining about Mr Stephen and the amount that he is requiring be paid for his work as the Independent Children’s Lawyer.  What that has to do with an order that provides for the children to see the Independent Children’s Lawyer, I do not know.  In any event it does not matter.  The fact is there is no basis any more for that appeal to proceed and thus I propose to dismiss it.

8. In relation to paragraph 2 of the order - that order is no longer in existence.  It was an order during the period of the adjournment and the adjournment was until 16 November 2007.  It is now 30 November 2007.  Therefore that appeal can go nowhere.  However, on 16 November 2007 I have been told - and I have been able to confirm it myself from the Federal Magistrates Court file - that a further order was made in the same terms.  In other words - and referring to paragraph 5, it says:

   “During the period of the adjournment paragraphs 1 to 5 inclusive of the order made on 8 August 2007 do continue.”

   and the adjournment is to 5 December 2007.

9. Thus, what I proposed to do was to give leave to the husband to amend his notice of appeal to appeal against paragraph 5 of the order of 16 November, which he is able to do.  And I will still give him that leave.  However, I point out to the husband that the matter is obviously next back before the Federal Magistrate on 5 December.  What the Federal Magistrate does about continuing or not the orders made on 8 August 2007 will be a matter for the Federal Magistrate on that day. 

10. I make it clear, and this is not in any sense other than providing information to counsel and the husband, that it is impossible for me to hear an appeal in this matter before 5 December.  Thus the husband should bear in mind that if he does amend his Notice of Appeal to appeal against paragraph 5 of the order of 16 November, he should take account of what happens on 5 December, and it may be that he will need to further amend his notice of appeal.  That is a matter for him though.

11. I now have before me applications for costs by the wife.  She seeks costs in relation to the Application in a Case which I have dismissed.  She also seeks costs in relation to the dismissal of that part of the Amended Notice of Appeal wherein the husband appeals against paragraph 1 of the order of 26 September 2007 and in relation to my proposed order giving leave to the husband to further amend his Notice of Appeal to appeal against paragraph 5 of the order made on 16 November.

12. Mr McGinn says, and I think quite properly, that the application for costs in relation to the appeal should be reserved to the directions hearing that will be held once the Further Amended Notice of Appeal is filed.  That then leaves the application for costs in relation to the Application in a Case and in that regard Mr McGinn seeks the amount of $2,000.00 by way of counsel fees.  The husband opposes that application.

13. As with any application for costs, I need to refer to section 117 of the Family Law Act 1975. Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to sub-sections (2A), (4) and (5), make such order as to costs and security for costs as the court considers just.

14. In relation to sub-paragraph (2A), that sets out the matters which I am obliged to have regard to insofar as they are relevant.  For example, sub-paragraph (a) requires me to have regard to the financial circumstances of each of the parties to the proceedings.  In this regard Mr McGinn has, quite properly, referred me to the two financial statements that have been filed by the parties in the Federal Magistrates Court.  They are both of recent date, the wife’s being filed on 14 August 2007 and the husband’s being filed on 4 September 2007.

15. Mr McGinn specifically relies on sub-paragraph (e) which requires me to take into account:

    “Whether any party to the proceedings has been wholly unsuccessful in the proceedings.”

    Here the husband has been wholly unsuccessful in relation to his Application in a Case.  I have dismissed that application in its entirety.  Thus, that alone in my view justifies an order for costs. 

16. Mr McGinn has also relied on what he has generically referred to as the conduct of the husband in these proceedings and he has highlighted a number of matters, all of which I agree with.  In particular, the affidavit in support of the application was virtually of no assistance to me in deciding this case.  It is an application which the husband should have realised was doomed to failure, yet he has persisted with it.  He has put the wife to the cost and expense of instructing her solicitor and having counsel appear, which was appropriate, and in terms of time spent in court; we have been here all afternoon, in my view unnecessarily, in relation to this application.  It was an application that should never have been made in the first place. 

17. Accordingly, I have no hesitation in finding that there are circumstances which justify an order for costs.  As to the amount sought of $2,000.00 for counsel fees, that is modest in a matter of this nature, and I will make an order for that amount to be paid.

I certify that the preceding
45 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 30^th day of November 2007.

……………………………………….
Associate