Guinness and Guinness (No. 2)

[2007] FamCA 386

FAMILY COURT OF AUSTRALIA

GUINNESS & GUINNESS (NO 2) [2007] FamCA 386

FAMILY LAW - APPEAL - Application to extend time to cross appeal – Delay in filing cross appeal minimal – Appropriate to grant extension of time – Application allowed. 

Family Law Act 1975 (Cth), s 94
Family Law Rules 2004, Ch 22

House v The King (1936) 55 CLR 499

APPLICANT: Guinness

RESPONDENT: Guinness

INDEPENDENT CHILDREN’S LAWYER: Turner Whelan

FILE NUMBER: SYF 3422 of 2002

APPEAL NUMBER: EA 15 of 2007

DATE DELIVERED: 19 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 19 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance required

SOLICITOR FOR THE APPLICANT: Bizannes & Associates

COUNSEL FOR THE RESPONDENT: No appearance required

SOLICITOR FOR THE RESPONDENT: Anne Marie Proctor & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: No appearance required

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Turner Whelan

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Guinness v Guinness (No 2).

Orders

1. It is noted that on 1 March 2007 an extension of time was granted to the husband to file an appeal out of time against orders made by the Honourable Justice Cohen on 30 June 2006.

2. To the extent it may be deemed necessary in reliance on the Family Law Rules 2004 for an extension of time to be granted to the wife to file a Cross Appeal in respect of the husband’s appeal against orders of the Honourable Justice Cohen of 30 June 2006 and 5 January 2007 such an extension is granted.

3. The wife’s Notice of Cross Appeal filed 12 March 2007 be heard at the same time as the husband’s document described as Notice of Appeal filed 2 February 2007 in respect of which an extension of time for filing was granted on 1 March 2007.

4. That the Appeals Registrar is requested to conduct a procedural hearing to settle the appeal book index for the cross appeal at a time and date to be notified to the parties.

5. That the application to adduce fresh evidence in relation to the cross appeal be stood over to the Full Court. 

IT IS NOTED:

1. That at the procedural hearing before the Appeals Registrar, leave is granted to Ms Proctor, solicitor for the respondent wife, to appear via telephone.

2. The independent children’s lawyer should be notified of the time and date of the procedural hearing. Ms Saltoon will advise the Appeals Registrar on or before the procedural hearing date whether or not the independent children’s lawyer will participate in the cross appeal.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15  of 2007
File Number: SYF 3422  of 2002

Guinness

Applicant

And

Guinness

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 12 March 2007 the mother seeks the following orders:

   1.That in the event that leave is required, leave be granted to file a cross appeal in relation to the Orders made by Justice Cohen on 30 June 2006 out of time.

   2.That leave be granted to file fresh evidence in relation to the cross appeal.

2. No response to the Application has been filed by or on behalf of the father.

3. These reasons deal only with the relief sought in paragraph 1 of the mother’s application, as any application to adduce fresh evidence in relation to the appeal (if leave is granted) is a matter for the Full Court hearing the appeal.

Evidence

1. The mother’s application is supported by her affidavit sworn on 6 March 2007.  

Background

1. The relevant background is set out in my reasons for judgment delivered 1 March 2007 when I dealt with the father’s application to extend time in which to appeal parenting orders made by the Honourable Justice Cohen on 30 June 2006.  These reasons should be read in conjunction with that judgment.  

Relevant statute law and rules

1. Section 94 of the Act provides for appeals to the Family Court from courts other than the Federal Magistrates Court.  Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D), (2E) and (2F) are also relevant.  They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   (b)for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

   (c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or

   (e)for an extension of time within which to file an application for leave to appeal; or

   (f)for security for costs in relation to an appeal; or

   (g)to reinstate an appeal dismissed under a provision of the Rules of Court; or

   (h)to adjourn the hearing of an appeal; or

   (i)to vacate the hearing date of an appeal; or

   (j)to expedite the hearing of an appeal;         

   may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

   (2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

3. Chapter 22 of the Family Law Rules 2004 deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.

Do the rules require the applicant to obtain leave to file a cross appeal?

1. The mother’s application comes before the Court in somewhat unusual circumstances.  On 30 June 2006 the trial Judge after defended property  and parenting proceedings heard in October 2005 made parenting orders but did not deliver reasons for judgment. On 5 January 2007 the trial Judge delivered reasons for judgment in both the parenting and property matters, and made orders in the property proceedings.

2. On 2 February 2007, that is within the time frame provided in the rules, the husband appealed against the trial Judge’s property orders.  Rule 22.08 provides that a cross appeal must be filed within 14 days after service of an appeal.  There is no evidence on the file as to when the Notice of

   
   

   Appeal was served on the mother’s solicitors.  The mother’s cross appeal was filed on 12 March 2007.  If the father’s appeal against the property orders was served shortly after it was filed, it appears the mother’s cross appeal in respect of the property orders was not filed in the time provided in the rules.

3. On 1 March 2007 I made orders the effect of which was to grant an extension of time to the father in which to file an appeal against the parenting orders, deemed time to be extended to 1 March 2007 and that the Notice of Appeal which had been filed on 2 February 2007 (and which contained grounds challenging both the parenting and property orders) be the Notice of Appeal.

4. The mother filed her cross appeal (which is an appeal against both the parenting and property orders) on 12 March 2007.  I am satisfied that the cross appeal insofar as it challenges the trial Judge’s parenting orders was filed within time.  It appears to me that the mother is probably out of time in respect of her cross appeal against the property orders. 

Relevant legal principles – application for leave to appeal out of time

1. In dealing with the husband’s application to extend time in which to appeal the trial Judge’s parenting orders, I set out the relevant legal principles to be applied in such an application.  I incorporate those paragraphs of my judgment of 1 March 2007 into these reasons.

Evidence in this application

Will strict compliance with the rules work an injustice on the applicant?

(a)      History of the proceedings

1. I have already set out the circumstances in which orders were made at different times, and the delay in providing reasons for the parenting orders.  I also take into account the delay occasioned by the father not filing his appeal against the parenting orders in the time provided by the rules.

(b)     The conduct of the parties

1. As I have already noted the mother’s affidavit appears to me to be directed to her application to adduce further evidence on the appeal, rather than in support of this application.  The affidavit is silent as to matters relevant to the property orders.

(c)      The nature of the litigation

1. The parties’ litigation has had a lengthy history.  Otherwise I do not find any relevant matter to take into account in the exercise of my discretion.

(d)      Consequence for the parties of the grant or refusal of the application for extension of time

1. Unless leave is granted to the mother she will be precluded, absent any properly brought application under s 79A, from challenging the property orders made by the trial Judge.

(e)      The prospects of success of the appeal

1. This is often the most relevant matter to be considered when determining whether or not to grant an extension of time in which to appeal.

2. In her proposed ground 2 the mother seeks to challenge the exercise of discretion by the trial Judge in making an adjustment of 3 per cent in her favour for relevant s 75(2) factors.  A successful challenge to the exercise of discretion by a trial Judge on appeal is not without difficulty (see House v The King (1936) 55 CLR 499).

3. Ground 3 puts in issue the trial Judge’s consideration of the wife’s superannuation.  Without extensive examination which would not be appropriate, it appears that this raises a potentially arguable ground of appeal.

4. Overall I am satisfied that the mother’s proposed cross appeal cannot be said to be entirely hopeless.

(f)       Can hardship or injustice to the respondent be compensated by an order for costs

1. As I found in dealing with the father’s application for an extension of time, both parties appear to have the capacity to meet any costs order made at the conclusion of the appeal/cross appeal.

(g)       Delay by the father and explanation for the delay

1. I am satisfied the delay in this matter, if any, is minimal.

Conclusions

1. The father now has a competent appeal against all orders made by the trial Judge. The mother’s delay in filing a cross appeal in quite unusual circumstances was minimal.  Her proposed grounds of appeal appear to have some substance, and she would suffer prejudice if an extension of time in which to cross appeal the property orders is not granted.  No additional costs are likely to be incurred by the filing of a cross appeal.  In all of these circumstances I find it is appropriate in the exercise of my discretion to extend time to permit the mother to cross appeal the trial Judge’s property orders.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  19 April 2007