FRANCISZEK & WIKERS
[2015] FamCAFC 78
•8 May 2015
FAMILY COURT OF AUSTRALIA
| FRANCISZEK & WIKERS | [2015] FamCAFC 78 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application in an Appeal seeking an extension of time to file Notice of Appeal – Where the delay is adequately explained – Where there is no merit in the appeal – Application dismissed. |
Family Law Act 1975 (Cth) s 94(2D)(a), 117(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) r 1.14, 22.03, 22.45
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
| APPLICANT: | Mr Franciszek |
| RESPONDENT: | Ms Wikers |
| FILE NUMBER: | TVC | 555 | of | 2012 |
| APPEAL NUMBER: | NA | 23 | of | 2015 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 November 2014 |
| LOWER COURT MNC: | [2014] FamCA 949 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Appeared in person |
| SOLICITOR FOR THE RESPONDENT: | McNamara & Associates |
Orders
The Application in an Appeal filed 26 March 2015 seeking an extension of time to file a Notice of Appeal is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Franciszek & Wikers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 23 of 2015
File Number: TVC 555 of 2014
| Mr Franciszek |
Applicant
And
| Ms Wikers |
Respondent
REASONS FOR JUDGMENT
On 26 March 2015, Mr Franciszek (“the husband”) filed an Application seeking an extension of time to file a Notice of Appeal from orders made by Tree J on 4 November 2014.
Tree J dismissed the husband’s application seeking enforcement of orders made by Coleman J on 26 September 2001. Those orders required Ms Wikers (“the wife”) to pay the husband the sum of $5,000 together with interest. Tree J considered a number of factors in reaching his decision, and on balance found that it would be inequitable to enforce the judgment. His Honour gave particular weight to the lapse of time since the orders were first made and the parties’ financial positions.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed within 28 days after the date the order appealed from was made. The husband was therefore required to file his Notice of Appeal by 3 December 2014 and is nearly four months out of time – a relatively short period.
On 30 April 2015 the wife filed a Response to the husband’s Application, seeking its dismissal. The wife also filed an affidavit and an affidavit of the son, who is one of the parties’ adult children.
Background to the Application
The husband was born in 1952 and is 62 years of age. The wife was born in 1962 and is 52 years of age. The parties married in 1993 and separated in October 2000. There are two, now adult children of the relationship.
As noted above, orders were made by Coleman J on 26 September 2001, now almost 14 years ago, requiring the wife to pay to the husband the sum of $5,000 together with interest. The husband filed an application on 25 May 2012, seeking enforcement of the orders of Coleman J. In his affidavit filed 16 November 2012, the husband sought orders that the wife pay him $10,557.53, being a calculation of the sum payable under the order including interest.
It was recorded in his Honour’s reasons for judgment that the husband is a geologist by profession, but not presently in employment [3]. It was also recorded that towards the end of 2007 the wife became a full-time carer for her mother and in 2009 assumed full-time care for her father. The wife is in receipt of a carer’s pension and family allowance [8].
Principles for an Extension of Time
Rule 1.14 allows a party to apply to the court to extend a time fixed under the Rules. Section 94(2D)(a) of the Family Law Act 1975 (Cth) (“the Act”) provides that applications for an extension of time to institute an appeal may be head by a single judge or by a Full Court.
There is no further guidance in the Rules or the Act as to how the discretion of the Court to grant such an extension is to be exercised. Guidance on such principles are articulated in the oft-quoted judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-481:
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.
The essential question is whether an extension of time would ensure that there is not an injustice, by reference to the following three factors:
·whether there was an adequate explanation for the delay;
·the proposed grounds of appeal having some merit; and
·that any prejudice to the respondent can be compensated by an order for costs.
None of these factors are conclusive and other matters may also be of significance.
The Basis of the Application
Reason for the delay
The husband’s affidavit filed on 26 March 2015 does not address the reasons for his delay in filing a Notice of Appeal and instead argues his grounds of appeal.
However, it must be noted that the husband prepared the Application and accompanying material without assistance from a solicitor or Legal Aid Queensland.
In the husband’s draft Notice of Appeal, attached to his Application, he does provide the following information which assists in understanding the delay:
1.I had a serious motorcycle accident [in] October 2013 and have suffered ongoing health problems ever since. The biggest problem is the non-healing of my right ankle which was extensively broken…I have spent several months in hospital every year since the accident after operations and treatment in [various North Queensland] Hospitals. I was only released from [the] Hospital on 2 November, 2014, not even three days before Justice Tree’s decision. I have serious infection and nerve problems with this right ankle and have huge mobility problems. When I was sent home I was told to stay in bed as much as possible keeping my right leg raised. This made it difficult to do an appeal.
2.I have a host of other medical conditions that affect my ability to function properly. These include Type 1 diabetes, hypertension, insomnia, sleep apnia, aortic valve replacement medication and treatment, glaucoma and depression. The insomnia is probably the worst problem as I cannot sleep and I am therefore extremely tired most of the time. This has also affected my ability to complete an appeal on time. I can get a doctor’s certificate verifying all these conditions. I also suffer considerable stress because of my limited financial resources which is aggravated by letters and phone calls from ATO and Westpac Bank. Westpac has recently agreed to stop my mortgage for 6 months again.
3.I finally completed an application for Legal Aid Queensland in this matter in January, 2015 but was knocked back for financial reasons even though I don’t have any funds. Legal Aid took a considerable time to get back to me. I rang them stating that I don’t have any funds and explained my situation and they asked me to write to their external review officer which is where the application is at.
4.I had to travel to Canberra in December to see my sick and dying mother
5.I have no funds to afford a solicitor to do the appeal so unfortunately must do it myself with no legal training.
(errors as per original)
The husband asserts he has a range of medical problems, all of which have impacted on his ability to file an appeal in a timely fashion.
In her affidavit filed 30 April 2015, the wife responded to a number of the health issues raised by the husband. Much of the content of the affidavit is hearsay or based on observations from the past. For the purpose of this Application, I will rely only on the affidavit of the husband. In addition, the husband had no opportunity to respond to the wife’s affidavit, it being delivered to him on Friday of last week.
The affidavit of the son also asserted that perhaps the husband’s injury to his ankle was not as severe as suggested by the husband (Son’s Affidavit, 30 April 2014 [8]-[12]). Again, much of the affidavit is inadmissible and in fairness to the husband it should not be relied upon.
The son also advanced information to challenge the husband’s financial circumstances. He attached internet searches of a property allegedly owned by the husband (Son’s Affidavit, 30 April 2014 [6]). This material is not evidence that the husband owns such property and is inadmissible.
Despite the various assertions made by the wife and the son, I am satisfied that there is a proper explanation for the delay.
Merits of the Appeal
Although the husband appears to seek leave to appeal, mostly likely leave is not necessary as the orders finally determined his rights.
It is difficult to make out the grounds of appeal on which he intends to rely. On a fair reading of the material set out by the husband, his grounds of appeal can be summarised as follows:
a)The primary judge erred in his conclusions as to the financial position of the parties;
b)The primary judge erred in his reasons and did not take account of relevant facts in the husband’s failure to enforce the debt;
c)The primary judge erred in his conclusion that the husband only sought to enforce the debt as payback for owing child support; and
d)In some manner not well articulated, that the primary judge was biased.
The reasons of the primary judge reveal a careful consideration of at least 15 discretionary factors ultimately leading his Honour to reject the husband’s application seeking enforcement of orders.
Justice Tree found there were seven factors in favour of enforcing the orders of Coleman J:
a)the judgment in question in unequivocal, unchallenged and unsatisfied;
b)the wife made no attempt at compliance – in fact, she has made no explanation as to why she never complied [15(b)];
c)the sum in question is relatively small – the wife also received arrears of child support during a time when the judgment remained outstanding –[15(c)];
d)the husband never abandoned his claim;
e)the wife does not assert she changed her position in relation to the absence of enforcement;
f)the Queensland limitation period has not expired – Limitation of Actions Act 1974 (Qld) s 10(4); and
g)the wife “thumbed her nose” at court orders.
On the other hand, Justice Tree found there were eight factors against supporting an order to enforce the orders of Coleman J:
a)the husband had not sought enforcement for 11 years – despite the husband’s assertion he believed the wife had no funds to satisfy the judgment, there was an “air of opportunism in him bringing the proceedings now.” [16(a)];
b)the wife’s financial position had changed;
c)the husband’s position has improved over time;
d)the husband is “smarting from child support garnishees”;
e)the sum in question is relatively small – it reflects approximately 2 per cent of the net matrimonial pool at the time;
f)the husband has a poor history of child support payments;
g)the husband has litigated on other matters and did not seek to combine them with enforcement proceedings;
h)the Queensland limitation period has almost expired.
The oral submissions of the husband in this Application concentrated on the findings of Tree J noted at [25(b) & (c)] above, and he also raised an issue of bias. The husband argued that Tree J erred in finding the wife’s position had deteriorated and that his own financial position had improved, when in fact the case was the opposite. He referred to his recent injuries and his inability to pay his mortgage as evidence. Further, he argued the wife’s financial situation had not declined in the manner described by Tree J and she had, in fact, been in receipt of large sums of money over the years.
While the court appreciates the husband’s concerns about the failure of the wife to comply with an order, his own financial circumstances and the difficulties he is now in, he was unable to demonstrate that Tree J made any appellable error. Further, it is clear that his Honour was fully aware of the husband’s injuries and concerns regarding his finances as it was expressly addressed at [16(c)] of his reasons.
Turning to the issue of bias, it seems the husband misunderstood his Honour’s attempts to resolve the matter in relation to the child support dispute. He was unable to demonstrate how in a hearing of the appeal, Tree J showed any bias towards him or that there was any procedural unfairness.
In any event, these issues raised by the husband were not the only factors considered by Tree J. His Honour considered all the relevant factors in favour of and against enforcing the orders.
Conclusion
For the husband to succeed in the appeal he would have to demonstrate some appellable error. This is best explained by reference to the well-known quote from House v The King (1936) 55 CLR 499 at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
While another judge may have come to a different conclusion, it is clear that Tree J properly considered all relevant matters, made no mistake as to the essential facts and properly explained the basis of the discretion not to enforce the order. As his Honour said in his reasons:
17.Weighing those factors in the balance, and accepting that it is for the wife to persuade me that it would be inequitable to now enforce the judgment, I am nonetheless so satisfied. I particularly give weight to the lapse of time since the judgment was first made, in the context particularly of other litigation between the parties in this court, and that the sum in question is relatively small, and reflected only 2% of the net matrimonial assets as at 2001. I also give weight to the fact that the wife’s financial position has worsened over time and that on the evidence the only asset available to satisfy the judgment is her only motor vehicle.
18.In so concluding I do not overlook the fact that the wife, at least on one view, has simply ignored the orders of the court, without any apparent desire or inclination to comply with them. However upon balance, I am nonetheless satisfied that to now, given the lapse of time, to enforce such a relatively minor judgment, would be inequitable.
Apart from arguments about questions of weight attaching to the evidence, which rarely leads to a successful appeal, it cannot be seen that the appeal has any prospects of success. The prejudice to the wife is significant. For example, should the appeal be filed and after a hearing dismissed, the husband conceded that he had no capacity to pay an order for the costs of the appeal. Weighing the absence of any merit in the proposed appeal against the substantial prejudice to the wife, the sum of money in contention and the proper use of court resources, an extension of time should not be granted.
There is no serious legal question to be determined. It is useful to refer to what was said by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 256 (although in the context of a summary dismissal application):
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Costs
The Act provides that each party, subject to a number of considerations, bear their own costs (per s117(1)). The court may make an order for costs if it is of the opinion there are circumstances justifying an order for costs (s 117(2)).
The wife submits that the husband should pay her costs of this application.
Section 117(2A) provides a list of various factors. In this case, a relevant factor is that the application has been unsuccessful. However, the husband’s application before the primary judge was necessitated by the failure of the wife to comply with orders. In light of the limited financial circumstances of both parties and the factors referred to in the reasons of the primary judge, I would make no order as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 8 May 2015.
Associate:
Date: 8 May 2015
0
7
0