GEORGE & GEORGE - [2015] FamCAFC 38

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE

[2015] FamCAFC 38

FAMILY LAW – APPEAL – APPLICATION IN A CASE – Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Court Rules 2004 – Where the husband was one day late – Where it is appropriate for the husband to pay the wife’s costs of the application – Application to extend time granted.

Family Law Act 1975 (Cth): s 75(2)
Family Law Rules 2004 (Cth): r 22.03

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr George

RESPONDENT:

Ms George

FILE NUMBER:

SYC

7612

2011

APPEAL NUMBER:

2015

DATE DELIVERED:

11 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

11 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 January 2015

LOWER COURT MNC:

[2015] FamCA 29

REPRESENTATION

FOR THE APPLICANT:

Mr George in Person

SOLICITOR FOR THE RESPONDENT:

York Law

Orders

That the application in an appeal filed by the husband for an adjournment of his application for the hearing of an extension of time be dismissed.
That the husband be granted an extension of time within which to file a notice of appeal against orders made by Watts J on 27 January 2015 provided that the notice of appeal is filed no later than 4.00 pm on 20 March 2015.
That the husband pay the wife’s costs of today in the sum of $2,000 within 28 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George 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 SYDNEY

Appeal Number: EA 21 of 2015
File Number: SYC 7612 of 2011

Mr George

Applicant

And

Ms George

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
This is an application by Mr George (“the husband”) for an extension of time to file a Notice of Appeal. The proposed appeal concerns property orders made in the Family Court of Australia by Justice Watts on 27 January 2015. The appeal concerns his Honour’s treatment of the matrimonial property, his treatment of a company called W Pty Ltd and orders that the husband pay non periodic child support, in addition to his periodic child support.
It needs to be made clear at the outset that although in the draft Notice of Appeal there is reference to orders concerning the parenting arrangements, it is acknowledged by the husband that the reference to the parenting orders as orders that he would seek to vary by this proposed appeal is a mistake.
Ms George (“the wife”) is the respondent in the proceedings. It is her position that the husband’s application for an extension of time be dismissed.
In addition to his application for an extension of time to file a Notice of Appeal, the husband also filed an application for an adjournment of this hearing to a date no earlier than three weeks hence. I did not formally rule on that application but as events have unfolded today it was apparent to all that I did not propose to grant an adjournment.

The applicable rules and principles

Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Rule 22.03 sets out the timeframe within which an appeal is to be filed.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of leave.

Discussion

In support of his application, the husband filed an affidavit on

25 February 2015.
The last day that the husband had to file a Notice of Appeal as of right was 24 February 2015, being 28 days after his Honour published his reasons for decision and made the orders which would be the subject of challenge in the appeal.
The husband’s evidence was that he arrived at court on the last day, that is, 24 February 2015 but was late and thus it was that he was unable to file the notice until the next day. So that it is clear, he says he was stuck in traffic and that he had been unable to find a parking spot (I assume that is a free parking spot because there is a very large parking station next to the court). He mistakenly believed that the Notice of Appeal needed to be witnessed by a justice of the peace and had spent time in the afternoon trying to get that done.
In response to submissions made on behalf of the wife that this explains his difficulties on 24 February 2015 but falls short of explaining why it was that he had not filed a Notice of Appeal in the preceding period, the husband gave evidence that he was somewhat unhappy with the advice he had taken from his legal representatives and had been unable to come to an arrangement whereby they would prepare a Notice of Appeal on his behalf.
He also claims to have health issues which impacted his ability to prepare the notice himself, but that is a matter in issue on the affidavit material and is something to which I have no regard in determining the outcome of the application.
Simply put, the husband gives evidence of genuine attempts, on

24 February 2015, to file a Notice of Appeal as of right and explains how it came about that he was a little late in presenting the Notice of Appeal in the court’s business hours. That the period of time is so brief and it is supported by a detailed account of steps that were taken on the day weighs heavily in favour of an extension of time.
In addition to the matters already mentioned that were raised on behalf of the wife against the grant of leave, she points to significant hardship which she says will be visited upon her if the husband is allowed to file his Notice of Appeal and of his failure to comply with court directions and timetables. It is not necessary to go into each of the matters contained in the wife’s detailed affidavit and sufficient to observe that in his Honour’s reasons for judgment there is reference to steps taken by the husband contrary to court directions and contrary to the applicable rules, which undoubtedly complicated the litigation. These are matters that would properly weigh against an extension of time, particularly if the duration of the default was considerably more significant than it is in this case.
In support of the argument concerning hardship, it is said that the wife is entitled to the fruits of the litigation. As a general proposition that is unarguably correct and of course as was clarified during exchanges, it is understood by all that an appeal does not operate as a stay. Even if an extension of time is given, unless the orders are somehow affected by a stay, in whole or in part, the wife remains entitled to the fruits of the litigation.
The husband has applied to his Honour for a stay of execution of his Honour’s orders. Whether or not a stay will be given is something that I cannot anticipate.
There are two other significant hardship factors relied on by the wife. The first is the personal toll on her of litigation that she thought was over being reactivated; albeit in another form. I accept as a general proposition that the personal strain of litigation of this type is enormous and that the submission to the effect that the court would not likely take a step which would prolong the strains and stresses of this type of litigation is well made. The other submission concerns the potential costs involved in an appeal which including the costs of the stay are said to be in the vicinity of $85,000 to $100,000. I have said all I wanted to say about costs of that magnitude in exchanges and it is sufficient to observe at this point that the husband concedes that in the event an order for costs in that magnitude is made against him, he has sufficient assets to meet them.
I pause to interpolate and observe for the husband that it might be useful for him to consider on the stay providing some form of evidence that might give his Honour some confidence that what he said to me today is, in fact, something that can be practically secured and guaranteed for the duration of this appeal.
The net effect then of the submissions advanced by the wife in opposition to an extension of time is that she has placed before the court matters worthy of careful consideration before an extension of time is given. However, as compelling as the matters raised by the wife are, the period of time is so small that it is difficult to see that the interests of justice could be served by anything other than an extension of time. In saying this, I am mindful of the nature of appeals to this Full Court and that the hurdles which the husband faces are significant. But, I am not, in the absence of transcript (and in any event would not), in a position to conduct a detailed analysis of the merits of the appeal and can do little more than observe that on their face the grounds seek to challenge the exercise of a judge’s discretion in relation to findings made as to contributions and to s 75(2) with the total error said to be in the vicinity of 7.5 per cent.
That might, in other circumstances, give real reason to pause in determining whether or not the appeal should be allowed to go forward, but as I understand the submissions made in support of the grounds of appeal there are also grounds that will seek to challenge various of his Honour’s findings in relation to the construction of the pool of property available for distribution between the parties. The effect of the grounds, as framed concerning the exercise of discretion and the property pool, suggests that the actual amount in dispute could be quite significant. With that in mind, the order will be to enable the husband to file a Notice of Appeal out of time.

Costs application

There is an application by the wife that the husband pays her costs of his successful application for an extension of time. Put simply, the submission is that the husband had 28 days within which to appeal as of right. Self-evidently he did not file a Notice of Appeal in time, as a consequence of which this application required consideration. The point being, it is solely as a consequence of the husband’s failure to comply with a rule of court that this application was necessitated. She has, as a consequence, incurred legal expenses unnecessarily and for which the husband should be responsible, if not entirely, then at least in part.
In response, it is submitted by the husband that any question of costs should be costs in cause. If that approach does not find favour he points out that it was open to the wife to concede that he should have the extension of time which I have ordered.
The submission by the husband is no answer to the fact that the default is his and the indulgence sought is as a consequence of his non-compliance. I have no doubt that the wife has incurred significant costs on this application. It is not my intention to make an order that she be indemnified in the entirety for her costs. Having regard to the material that has been filed and the complexity of the argument raised today, I am satisfied that I should depart from the ordinary rule that each party pays their own costs. and an order in the wife’s favour in the amount of $2,000 should be made.
As to the time, I suggested one month. The husband suggested not less than three months and pointed out that he would prefer to have the application for a stay determined before a timeframe for the payment of costs is settled. I do not propose to take that more expensive course.
His Honour found that the parties’ net property was worth some $3.7 million of which the husband received 52.5 per cent. I am satisfied that the husband has sufficient assets under his control to pay the $2,000 within a month and that will be my order.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 March 2015

Associate:

Date: 16 March 2015