Haines & Rader (No 8)
[2023] FedCFamC1F 466
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haines & Rader (No 8) [2023] FedCFamC1F 466
File number(s): SYC 1641 of 2019 Judgment of: CHRISTIE J Date of judgment: 8 June 2023 Catchwords: FAMILY LAW – PROCEDURE – Where the trial judge has stayed final orders pending the completion of an appeal on conditions – Where one of the conditions requires prosecuting the appeal expeditiously - Where the appellant has failed to comply with the order to file his Summary of Argument on the due date –Where a party seeks for the matter to be relisted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23 Cases cited: Gallo v Dawson (1990) 93 ALR 479 Division: Division 1 Number of paragraphs: 28 Date of hearing: 8 June 2023 Place: Sydney Solicitor for the Applicant: Dettmann Phair Lawyers Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Morson Law ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAINES
Applicant
AND: MR RADER
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
8 jUNE 2023
THE COURT ORDERS THAT:
1.That the oral application for discharge of the stay granted 7 March 2023 is dismissed.
2.If the appeal listed 26 June 2023 is vacated on the husband’s application, Order 1 of the Orders of 23 May 2023 will be discharged.
3.The appellant pay the respondent’s costs of and incidental to the relisting on a party-party basis as agreed or taxed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J
Final orders were made in this matter on 21 December 2023.
A Notice of Appeal was filed on 23 March 2023.
There is a partial stay of the final orders in place.
This matter comes before the court as a consequence of Order 7 of the Orders of her Honour Justice Brasch made 23 May 2023.
Order 7 provides:
In the event that the husband does not fulfil the condition of the stay set out in Order 6, the wife has liberty on 48 hours written notice to relist the matter for consideration of the continuation or discharge of the stays against orders set out in order 1 of these orders.
Order 1 provides as follows:
The following orders will be stayed pending the husband’s completion of the appeal being NAA73/2023 filed 27 March 2023:
(a)Order 7.3 of the orders of 21 December 2022
(b)Order 7.4(i) of the Orders of 21 December 2022
(c)Order 7.4(ii) of the Orders of 21 December 2022, but not orders 7.4(ii) (A), (B) and (D)
Order 6 of her Honour’s Orders provided as follows:
The continued operation of Order 1 is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal filed 27 March 2023 as expeditiously as possible including compliance with all timeframes to complete all acts required for the appeal hearing.
On 31 May 2023, the lawyers for the wife in reliance upon Order 7 of Orders 23 May 2023, sought that the matter be relisted. The matter comes before me on that relisting. The husband relies upon an affidavit by Charlotte Morson his solicitor in the proceedings. The wife relies on an affidavit by her solicitor Damian Phair. She also relies on documents annexed to a further affidavit of Mr Phair which include correspondence with the Appeal Judicial Registrar listing the husband’s Application in an Appeal for leave to rely on the Summary of Argument and to amend the proposed grounds of appeal. Leave is required because the appellant has filed the Summary of Argument. I am told that the summary addresses the proposed new grounds.
The wife’s position was outlined by her solicitor as follows:
·That the stay be discharged;
·In alternative that $262,000 be released; and
·That Order 8(a) be amended to provide that the expression “controlled monies account” be replaced with the expression “trust account”
The parties are involved in District Court proceedings commencing mid-2023 for 7 days. The wife seeks funds for payment of her lawyers.
I was not initially told by her solicitor that the wife’s application to review the decision of a Registrar (relating to the same subject matter – release of funds) had been dismissed by Justice Maguire yesterday.
Mr Phair said that the Review was a review of the decision of the registrar concerning listing urgency. In circumstances where another judge had determined the question of urgency against the wife, it would be improper for the application to be revisited by me and I decline to do so.
The husband accepts the appropriateness of the relisting in circumstances where the affidavit material makes plain that there has been a failure to comply with the terms of the stay.
Orders by the Appeal Judicial Registrar made on 5 May 2023 provided for the listing of the appeal on 29 June 2023. Order 6 of those orders provided:
The appellant filed and served a summary of argument and list of authorities in accordance with r 13.23 of the Rules with the National Appeal Registry Sydney on or before 4.30 pm on Friday 26 May 2023.
It is not controversial that the appellant failed to comply with that timeframe.
The Rules provide for the filing of the summary of argument at least 28 days prior to the first day of the appeals sitting in accordance with r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The Rules are supplanted if a specific order for filing is made. The intent however is to ensure that each of the parties to the proceedings has proper notice of the argument which is to be advanced at hearing. A party who is in default of the orders of the Appeal Judicial Registrar should file an application in an appeal for an extension of time within which to file the summary of argument. That has now occurred.
When such an application is made the judge sitting as the Full Court has the power to grant any extension arising out of r 15.06 of the Rules. This is a discretionary power and the grant of an extension of time under the Rules would not be automatic. However, parties are reminded of the dicta of the High Court in Gallo v Dawson (1990) 93 ALR 479 where his Honour Justice McHugh said at 480:
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 Bums 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.
I am not determining the application for leave now but 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 submissions were due to be filed on a Friday (26 May 2023) and they were filed after hours on 30 May 2023. The failure to comply has not delayed the hearing of the appeal.
I have had regard to the material contained in the affidavit by the appellant’s solicitor and to the extent that it is suggested that the delay may not be delay on the part of the appellant himself but it may be the delay on the part of the legal practitioner, I am minded that it is appropriate to make some further directions. The effect of which will be to use a colloquial expression “to give the appellant one further chance”.
The orders which were made by her Honour Justice Brasch were not self-executing orders. That is, if there were breaches in respect of the terms of the stay the remedy was relisting. It is plain that there has been a breach of conditions of the stay and the matter has been relisted.
Whilst it is now clear that I intend to dismiss the application for discharge of the stay, I intend to do so on condition. Should the hearing date of the appeal be vacated on application of the appellant, then there will be a self-executing order to the effect that the stay will be discharged.
The appellant has now filed the Application in a Proceeding. That application is listed on a date prior to the date on which the appeal is listed and therefore the wife cannot point to any delay.
I accept that Brasch J found at [125] and [127] that the husband may have been conducting proceedings in an effort to delay the family law proceedings until such time as the District Court proceedings were themselves completed.
However, the appeal remains listed for hearing on the original date.
The wife's solicitor sought to amend an order relating to the proceeds of sale of a property in Suburb J. The existing order provides that:
8.The proceeds of sale of the [Suburb J] property after the repayments required by Order 7.1 of the 21 December 2022 order, and Orders 12(g), (h) and (i) and Order 13 of the 7 March 2023 order, are [to] be retained on trust for the parties:
(a)In the trust account of [WW Company], but in the event [WW Company] declines to accept the retention of the proceeds, then;
(b) In the Controlled Monies Account of the wife’s solicitor; and
(c)In either case, both the husband and wife are restrained from directing [WW Company] or the wife’s solicitors from distributing any of the controlled funds other than as required by orders of the Court.
I was informed by the solicitor for the wife that he does not currently operate a controlled monies account. The application made orally to amend the orders was opposed by the husband. In circumstances where there is a distinction between a trust account and a controlled monies account and compliance with the existing order will only require the solicitor for the wife to open a controlled monies account, I decline the application.
The respondent to the appeal seeks her costs of the relisting. No costs are quantified. It seems appropriate having regard to the fact that a failure to comply with court directions has brought the matter back before the court to find that there are justifying circumstances which warrant a departure from the usual rule accordingly I intend to make an order for costs to the extent that there is some issue as between the appellant and the lawyers. As to the fault or responsibility, responsibility for payment of the costs order will be a matter as between them.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 8 June 2023
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