Grantham and Crawley
[2011] FamCAFC 217
•10 November 2011
FAMILY COURT OF AUSTRALIA
| GRANTHAM & CRAWLEY | [2011] FamCAFC 217 |
| FAMILY LAW ─ APPEAL ─ Applications for leave to extend time to appeal regarding consent orders ─ Leave refused as proposed appeals had no prospect of success |
| Family Law Act 1975 (Cth) s 79A |
| APPELLANT: | MS GRANTHAM |
| RESPONDENT: | MR CRAWLEY |
| FILE NUMBER: | NCC | 2760 | of | 2007 |
| APPEAL NUMBERS: | EA | 124 | of | 2011 |
| EA | 125 | of | 2011 |
| DATE DELIVERED: | 10 November 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 9 November 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 January 2010 and 28 September 2010 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | N/A |
| SOLICITOR FOR THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
That the Applications in an Appeal numbered EA 124 & 125 of 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Grantham & Crawley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
APPEAL NUMBERS: EA 124 of 2011 & EA 125 of 2011
FILE NUMBER: NCC 2760 of 2007
| MS GRANTHAM |
Appellant
And
| MR CRAWLEY |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 20 October 2011, Ms Grantham, (“the wife”), filed an application for leave to appeal out of time against two sets of orders made by Ryan J in the Family Court at Newcastle in 2010 in the context of financial proceedings between the wife and Mr Crawley, (“the husband”). The husband resisted the wife’s application to extend time within which to appeal against Ryan J’s orders. Although there are two applications relating to the two different sets of orders, the wife has supported those applications with a single affidavit. There is nothing wrong with doing so.
The first set of orders against which the wife seeks an extension of time to appeal principally, if not entirely, relates to order 6 of the orders made by Ryan J on 22 January 2010. That order provided that the remuneration of a court-appointed expert for preparing a report for the court’s assistance, and being paid if attending court.
Her Honour’s orders provided that, within 40 days there was to be paid to the Legal Aid Commission of New South Wales (“Legal Aid Commission”) an amount of $4,400.00 to be held in trust and to be used to towards the parties’ equal share of the costs of obtaining a single expert. Her Honour further ordered that the parties within seven days of the date of order for the single expert, provide to the Legal Aid Commission an irrevocable authority that each party would pay his or her equal share of any additional costs of the single expert report, and any monies payable in relation to any appearances as a witness of the single expert within seven days of receiving a written request to do so from the Independent Children’s Lawyer (“ICL”).
Although the trial Judge’s order appears to have necessarily been made in relation to parenting proceedings, it was an order for costs, and although nothing turns on it for present purposes, the wife would thus need, not only an extension of time within which to appeal but leave to appeal against that order, it being interlocutory and not of a kind which is exempt from the requirement of leave.
In Attachment “A” to the Applications in an Appeal, the wife’s grounds of appeal in relation to the order of 22 January 2010 were expressed in the following terms:
On 17 December 2010, the date which it became apparent that the Husband had misled the Honourable Court in not fulfilling his obligations under Order 6 made on 22 January 2010.
In the Husband not paying equally for the Expert Report writer fees, he consciously did an act of deceit which leads to fraud as he received a greater portion of the asset pool without the consent of the Court.
In relation to the orders of 22 January 2010, in her affidavit in support of her applications the wife asserts that payment for the expert report was made by the parties drawing down a sum of $17,957.50 from a joint credit or redraw facility from A Bank which was secured over jointly owned property at W. That property was the subject of the second set of orders to which reference will shortly be made. After deductions to which the later orders referred, the wife was to receive the proceeds of sale of the W property. The wife alleges that as a result of the husband’s default, the terms of the 28 September 2010 orders (which were actually made on 8 October 2010), effectively required her to pay the full amount of the redraw, which was applied to pay the single expert expenses, as the husband refused to repay his share of the redraw on the loan.
The difficulty which the application for leave to appeal out of time against the orders of Ryan J of 22 January 2010 has, is that, as is not in doubt, the wife’s complaint is not about the making of the order as such, but arises from what she asserts to have been the husband’s conduct subsequent to the making of the order.
It is clearly the wife’s assertion that the husband failed to comply with the 22 January 2010 order. As a result a disproportionate burden of paying for the single expert was alleged to have been cast upon her. With respect to the wife, nothing to which she has referred in her affidavit, if accepted, and this Court is in no position to know the truth or otherwise of those allegations, would demonstrate appealable error on the part of Ryan J. Subject to what follows, it may be that if the wife’s allegations were accepted or proved, she would have grounds for enforcing the orders of 22 January 2010 as against the husband. That is a separate matter and one which necessarily would flow from an application to a single Judge to enforce the orders of 22 January 2010.
As is not in doubt, to be successful, appeals to this Court from the orders of single Judges require that it be demonstrated that the Judge who made the order, erred in some relevant way. Nothing to which the wife has referred or, with respect to her could the wife refer, suggests that Ryan J’s orders of 22 January 2010 may have been erroneous, either as a matter of law or as a matter of discretion. That application cannot succeed. The refusal of leave to appeal against those orders could not visit an injustice upon the wife if the facts alleged by her are correct however.
Passing then to the second application, that application seeks leave to appeal out of time against what might be called the “final property orders” made by Ryan J on 28 September 2010.
As is not in doubt, those orders, at least so far as Ryan J was entitled to be concerned, were made by consent. The wife’s affidavit material makes clear that she alleges that her consent to those orders was anything but a willing and voluntary consent. Reference will shortly be made to those matters.
The orders which are sought to be appealed against out of time, provided that upon the settlement of the sale of the matrimonial home at W, the proceeds of sale were to be disbursed in the following order:
(i) In Payment of all monies due and owing pursuant to the mortgage secured against the title to the home;
(ii) In payment of the reasonable legal / conveyancer’s fees and disbursements of sale;
(iii) In payment of any municipal rate adjustment;
(iv) $25,000.00 to the husband;
(v) The balance to the Wife as directed by the [H] Centre (being the solicitors for the wife) (subject to subparagraph 32).
The orders further provided that pending the sale of the home, the parties equally ensure that all instalments were made with respect to the mortgage, the council rates, the water rates, the home insurance. As is not in doubt, there is a nexus between the wife’s desire to appeal against those orders, and what she submits to be the consequences of the husband’s asserted failure to comply with Ryan J’s orders of 22 January 2010. Attachment “A” annexed to the Applications in an Appeal contains a number of grounds or complaints which the wife raises with respect to her, as is readily apparent from reading them.
Most of the grounds of appeal which the wife seeks to agitate are either not grounds of appeal or capable of being grounds of appeal, or are patently unable to be made out. The first three grounds, however, require some comment. The first ground (1), asserts that Ryan J erred on 28 September 2010:
…as she was self absorbed in criticising the main carer of the child of the marriage relying upon uncontested evidence in doing so.
Nothing raised by the wife raises the slightest prospect of that challenge being made out. The orders were made by consent at a time the parties were represented. There was nothing to indicate to the trial Judge that the orders were other than what the parties wanted and had entered into in the exercise of informed consent.
Perhaps the real complaint is that which appears in paragraph 3 of the proposed grounds of appeal, which asserts that a major error was committed by her Honour agreeing to the order which provided for the payment in full of all monies due and owing pursuant to the mortgage secured against the title to the W Property. The wife’s contention was that the order:
...should have been “In payment of all monies due and owing pursuant to the mortgage secured against the title to the [[W] property], less the credit facility of which the parties must payout equally on or before the conveyancing settlement date of the property.”
In her affidavit, the wife relevantly [at paragraphs 95, 100 and 103] reiterates the crux of the complaint, and explains why she did not appeal within time. In short, and relevantly for present purposes, nowhere does the wife assert, nor with respect to her, could she assert that Ryan J knew or ought to have known, if it be the fact, that the husband had not complied with the orders of 22 January 2010. Her Honour was entitled to rely upon the minutes of order which were presented to her, the fact that the parties were represented, that there was no reason not to think that they knew and understood and intended what the terms provided, and that the purported settlement had been reached after a not insignificant course of litigation.
It was, with respect to the wife, for her or someone on her behalf to either object to the terms of the consent orders being as they were in relation to the mortgage, or to raise the issue before Ryan J. It may be, although the Court does not suggest that it necessarily would, that if the wife has a grievance about the orders that were then made, that would be a matter which she could productively take up with the attorneys who represented her. The Court is not in a position to know about that. What is able to be said with confidence is that the proposed challenge to the order Ryan J made with respect to the mortgage could not possibly be successful.
No error on her Honour’s part could be demonstrated in relation to that. It was for the wife and those advising her to either insist upon the terms of the consent orders rectifying the situation, if it was the fact that the husband had failed to comply with his obligations under the earlier orders, as a condition of settlement. If the husband would not agree to do so, and it was considered to be material to any proposed settlement, the wife could have declined to settle and have the matter adjudicated upon by Ryan J. It is a rare case where an Appeal Court will criticise a trial Judge for not doing something which no one asked him or her to do, or for not being aware of something which nobody made him or her aware of, or not being aware of something which his or her Honour had no reason to suspect or inquire about. This is not one of those rare cases.
As with the first application, the real complaint with respect to the orders of 28 September 2010 is, when properly understood, that they perpetuated a breach of the earlier orders instead of rectifying that breach. As with the earlier orders, the complaint is not about anything which the trial Judge did or failed to do, but rather about things which the husband allegedly failed to do. It may be that the wife would have grounds under section 79A of the Family Law Act 1975 (Cth) (“the Act”) for having the 28 September 2010 orders set aside and new orders made. It may be that such an application, if agitated and determined on its merits would not succeed, but that an application in the alternative for enforcement of the 28 September 2010 orders would be successful.
The Court does not need to speculate about these matters but simply to record that to decline to extend leave to appeal, when there is no point in doing so, does not mean that if the wife’s allegations are correct that she is left without the prospect of a remedy. On the contrary, if the wife’s allegations are correct, she would have arguable grounds for either setting aside the orders and or varying them, pursuant to section 79A of the Act, or enforcing them. On the evidence presented by the wife there would not appear to be necessarily any difference in the outcome which she seeks, whether that be pursuant to section 79A or pursuant to an enforcement application. The Court is comforted by the reality that refusing an extension of time to appeal does not mean that a citizen who may have a meritorious claim for relief with respect to the orders of 28 September 2010 is thereby deprived of the opportunity to pursue a claim to achieve a just outcome.
It is necessary to refer, finally and briefly, to the complaints of the wife, particularly paragraphs 38 and 39, that contrary to her instructions and under considerable duress, she entered into the consent orders of 28 September 2010.
It may be, duress being a ground for setting aside orders under section 79A of the Act, that if accepted, the wife’s allegations would provide an additional basis for relief under that section to that which was referred to earlier. The Court does not need to speculate about that, however, it being sufficient to record in the context of this application that nothing to which the wife has referred or with respect to the wife, probably could refer, establishes that the topic of duress and the allegations which the wife makes about the signing of the consent orders, could on the evidence presented result in a successful appeal. If those allegations have substance, they are likely to be effective pursuant to section 79A of the Act. Perhaps ironically, the wife herself refers to section 79A in her own material.
For those reasons and without doubting the bona fides of the wife in filing her applications, the Court cannot uphold either of them. To do so would be to fuel expectations in the wife which could not be fulfilled and to expose both parties to litigation which would serve no useful purpose and defer finalisation of their financial dealings with each other. For those reasons, each of the applications filed 20 October 2011, will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 10 November 2011.
Associate:
Date: 18.11.2011
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