HALFORD & HALFORD
[2019] FamCAFC 43
•13 March 2019
FAMILY COURT OF AUSTRALIA
| HALFORD & HALFORD | [2019] FamCAFC 43 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the matter was listed for trial in August 2018 – Where a trial judge rejected the husband’s application for an adjournment made via email the day prior to the hearing on the basis that he was unwell and proceeded on an undefended basis – Where a trial judge made final orders for property settlement and lump sum spousal maintenance – Where the husband filed an Application in a Case seeking those orders be set aside – Where another trial judge set the orders aside and listed the matter for another trial – Where the wife attempted to file a Notice of Appeal but was rejected for being out of time – Where the wife filed an application for extension of time four weeks after the time for filing the appeal had expired – Where it is difficult to discern what the judge found to be the specific material arguments available to the husband which were said could lead to the making of different orders – Where the judge did not identify any argument made by the husband in respect of the wife’s lump sum spousal maintenance claim – Where there are reasonable issues to be raised on appeal – Where the wife’s delay in filing the application was not inordinate – Application allowed. |
| Family Law Act 1975 (Cth) ss 94AAA(5), 117(2) Family Law Rules 2004 (Cth) rr 1.14, 17.01, 22.03 |
| Clifford & Mountford [2006] FMCAfam 450 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Malak & Malak (2016) FLC 93-718; [2016] FamCAFC 114 Molloy & Molloy (2016) FLC 93-754; [2016] FamCAFC 264 Pendleton & Pendleton [2018] FamCAFC 203 Tormsen and Tormsen (1993) FLC 92-392; [1993] FamCA 151 |
| APPLICANT: | Ms Halford |
| RESPONDENT: | Mr Halford | ||||
| FILE NUMBER: | BRC | 11853 | of | 2017 | |
| APPEAL NUMBER: | NOA | 12 | of | 2019 |
| DATE DELIVERED: | 13 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 8 March 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 3823 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Cooper, Cooper Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hartwell (Direct brief) |
IT IS ORDERED:
The time for filing a Notice of Appeal from the orders made by Judge L Turner in the Federal Circuit Court of Australia on 11 December 2018 be extended until 4.00pm on Friday 22 March 2019.
The costs of and incidental to the wife’s Application in an Appeal filed 4 February 2019 be reserved to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Halford & Halford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 12 of 2019
File Number: BRC 11853 of 2017
| Ms Halford |
Applicant
And
| Mr Halford |
Respondent
REASONS FOR JUDGMENT
On 9 August 2018 Judge Jarrett made orders for settlement of property and lump sum spousal maintenance in proceedings at which the husband did not appear. On 11 December 2018 Judge L Turner ordered that those orders be set aside.[1] Judge L Turner’s reasons for that order were delivered in Court on 11 December 2018 but sent to the parties on 21 December 2018.
[1] Pursuant to Federal Circuit Court Rules 2001 (Cth), r 16.05(2)(a) (“the FCC Rules”).
On 15 January 2019, the wife attempted to file a Notice of Appeal from her Honour’s orders. The Notice of Appeal was rejected because it was out of time. It should have been filed by 8 January 2019,[2] her Honour’s order taking effect on the day it was made.[3] It will be observed that, if time ran from the date the parties received the reasons, the Notice of Appeal would have been filed within time.
[2] See Family Law Act 1975 (Cth), s. 94AAA(5) (“the Act”) in conjunction with Family Law Rules 2004 (Cth), r 22.03 (“the Rules”).
[3] The Rules, r 17.01.
On 4 February 2019, the wife filed an application for an extension of time within which to appeal,[4] which is opposed by the husband. The wife’s application was filed about two and a half weeks after the Notice of Appeal was rejected by the Registry and about four weeks after the time for filing the appeal had expired.
[4] The Rules, r 1.14.
It is that application to which these reasons relate.
The Context For The Orders Sought To Be Appealed
The husband’s absence from the proceedings before Judge Jarrett was sought to be explained by an email sent by the husband to the Court the day prior to the hearing. That email attached a medical certificate and requested an adjournment. Judge Jarrett refused to adjourn the trial for reasons which his Honour gave.
Judge Jarrett’s orders provided that:
(1)The husband shall pay to the wife by way of lump sum spousal maintenance the sum of $51,681.
(2)Pursuant to s.77A of the Family Law Act 1975, the amount of $51,681 held by the wife in her [D Bank account] be attributable to her maintenance, and her retention of such sum shall be complete discharge of order 1 herein.
(3) Of the monies held in the trust account of Cooper Family Law:
(a) $504,632.56 be paid to the wife; and
(b) $236,597 be paid to the husband.
(4)The parties do all things and sign all documents to close the [E Bank Account] with the husband to retain any proceeds therein at the time of closure.
(5)The parties otherwise retain all assets, vested or contingent, real or personal, including any superannuation fund standing to their name as at the date of these orders.
(6)The parties keep safe and indemnify the other for all liabilities standing to their name, or in the name of a related entity, as at the date of these orders.
(7)The husband pay the wife’s costs of and incidental to the proceedings from 18 April, 2018, fixed in the sum of $7,984.50, such sum to be retained from the sum payable to the husband pursuant to order 3 herein, and thereafter paid to the wife.
(As per original)
What Principles Apply To The Application?
The discretionary power to extend time for the filing of a Notice of Appeal pursuant to r 1.14 of the Rules has typically been referenced to the well-known statement by McHugh J in Gallo v Dawson[5] in respect of an analogous power.
[5] (1990) 93 ALR 479, 480 (“Gallo”).
A successful application for extension of time denies the respondent the benefit of a judgment which, in the ordinary course of events, is unimpeachable upon the expiration of the time limit for filing an appeal. Thus, a successful application for extension of time speaks of injustice for the respondent. The rejection of an application for extension of time denies the applicant a fundamental right within the modern judicial system, namely the right to correct error founding the orders as made. Thus an unsuccessful application to extend time speaks of injustice for the applicant.
The tension thus created founds judicial statements that, in considering an application for extension of time within which to appeal, “it is always necessary to consider the prospects of the applicant succeeding in the appeal” and that “[t]he grant of an extension of time … is not automatic”.[6]
[6]Gallo, 480.
While the discretion is at large, the applicant establishing a substantial issue to be raised on an appeal and satisfactorily explaining the default and any subsequent delay have typically been emphasised as central to the exercise of the discretion.[7]
[7] See Pendleton & Pendleton [2018] FamCAFC 203 at [6]–[9] per Kent J and the cases cited therein.
A Substantial Issue to Be Raised On Appeal?
Establishing for the purposes of the instant application that there is a substantial issue or issues to be raised on appeal should not be a pre-judgment of the prospective appeal.
The question is not whether I am satisfied that the wife will succeed in establishing, to an appeal court’s satisfaction, that Judge L Turner erred in the exercise of her discretion in setting aside Judge Jarrett’s order. Rather, the question is whether I am satisfied that the wife raises an issue or issues of sufficient substance that they should, as a matter of justice, be ventilated on an appeal.
The wife asserts that Judge L Turner’s discretion miscarried by reason of material errors of fact and a failure to take account of relevant considerations. It is also said that her Honour’s reasons were inadequate. The grounds for the prospective appeal are:
1.That the discretion of the Court miscarried in the application of Rule 16.05 of the Federal Circuit Court Rules in that the Court found that the Respondent had a reasonable explanation for his absence on 9 August 2018, when no such reasonable explanation could be found.
2.That the discretion of the Court miscarried in the application of Rule 16.05 of the Federal Circuit Court Rules in that the Court found that the Respondent had material arguments available to him that might reasonably lead to the making of orders different to the orders made by the Judge Jarrett on 9 August 2018, when no such arguments were available.
3.That the discretion of the Court miscarried in the application of Rule 16.05 of the Federal Circuit Court Rules in the Court found that the following issues were not considered by Judge Jarrett on 9 August 2018 when Judge Jarrett did consider those issues, being:
(a) The study debt;
(b) The benefit to the Appellant of having a degree; and
(c) The inheritances brought into the marriage by the Respondent.
4.That the discretion of the Court miscarried in the application of Rule 16.05 of the Federal Circuit Court Rules in the Court found that the issue of spousal maintenance should be agitated at a final hearing, when it was necessary for the Court to identify first what arguments the Respondent had to agitate at a final hearing, and that
(a)The Court did not identify those arguments; and
(b)The Respondent had no such arguments as might lead the Court to make an order different to those made by Judge Jarrett on 9 August 2018.
5.That the discretion of the Court miscarried in the application of Rule 16.05 of the Federal Circuit Court Rules as the Court failed to identify, or failed to give adequate reasons identifying, the material arguments available to the Respondent that might reasonably lead to the making of orders different to the orders made by the Judge Jarrett on 9 August 2018.
(As per original)
In the event that her application for leave to appeal and appeal is successful, the wife seeks orders setting aside Judge L Turner’s orders made 11 December 2018 and reinstating Judge Jarrett’s orders made 9 August 2018.
The principles governing the exercise of Judge L Turner’s discretion can be seen discussed in Malak & Malak.[8] There, the Full Court cited with approval the criteria identified in Clifford & Mountford[9] to be considered by a trial judge when determining whether to set aside orders pursuant to r 16.05(2) of the FCC Rules.[10] The first two of those three criteria are relevant to the wife’s prospective appeal:[11]
1.Is there an adequate explanation proffered by the absent party for their failure to appear? If not, principles of the importance of finality would ordinarily see the relief pursuant to the Rules refused (Nicholson v Nicholson [1974] 2 NSWLR 59 at [64]; Maxwell-Smith v Donnelly [2012] FCA 154).
2.The necessity for an applicant to demonstrate an arguable case for the relief sought. That is, a case which is credible with real prospects of success (Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation (in liq) (1995) 58 FCR 125). In other words, material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside.
[8] (2016) FLC 93-718 (“Malak”).
[9] [2006] FMCAfam 450.
[10]Malak, 81,557.
[11]Malak, 81,563–81,564.
Ground 1 – Adequate Explanation for Failure to Appear
Judge L Turner referred to this aspect of the application before her at [30(a)] and [30(b)] of the reasons. Her Honour acknowledged that the medical certificate provided by the husband to the Court on 8 August 2018 was “sparse in its explanation as to the husband’s illness”.[12] However, the husband had since filed an affidavit from his medical practitioner deposing to the fact that the husband had suffered from gastroenteritis on 8 August 2018, culminating in vomiting and diarrhoea.
[12] Reasons at [30(a)(ii)].
Her Honour said that while it was “unfortunate” that the husband did not inform the wife’s solicitors of his illness until the morning of 9 August 2018,[13] her Honour found that there was “nothing to indicate that the husband was not truthful in his position of being ill or that the husband was using his illness as a delay tactic”.[14] In the latter respect, her Honour emphasised that the husband had, until 9 August 2018, cooperated with the Court process by attending every Court event and filing his trial material in accordance with trial directions, save for a Case Outline.[15]
[13] Reasons at [30(a)(v)].
[14] Reasons at [30(a)(vi)].
[15] Reasons at [30(b)(i)].
The husband was then self-represented. While Judge Jarrett referred adversely to the husband’s failure to formally seek an adjournment, only doing so by way of email, Judge L Turner considered that the husband may not have known that he was required to formally seek an adjournment of the trial or of the serious repercussions for his failure to do so. Nothing in the trial directions indicated that the matter would proceed in the absence of one of the parties.
I have some difficulty in seeing how it is said that there is an arguable issue on appeal that Judge L Turner’s discretion miscarried in respect of this aspect. In my view, the ground and the argument amounts in truth to no more than an assertion that her Honour arrived at a conclusion different to that for which the wife contended and contends.
Grounds 2, 3, 4 and 5 – Arguable Case for Relief Sought
As has been seen, Grounds 2, 3, 4 and 5 of the wife’s draft Notice of Appeal asserts that Judge L Turner erred in finding that the husband demonstrated an arguable case, or material arguments that might reasonably lead to a different order by reason of her Honour’s failure to:
a)identify the arguments the husband had to raise;
b)find that those arguments were material; and
c)find that those arguments might reasonably lead to a different order being made.
Ancillary to those arguments, the wife further contends that her Honour failed to provide adequate reasons for her determination that there were material arguments available to the husband (Ground 5).
Paragraph 30(c) and (d) of Judge L Turner’s reasons for judgment set out what her Honour found to be the material arguments available to the husband that might reasonably lead to the making of a different order.
Those reasons are brief and can be set out in full:
(c)Material arguments are available to the husband that might reasonably lead to the making of an order different to that sought to be set aside:-
i) The husband sought an order for 55% in his favour and 45% in the wife’s favour.
ii)The wife sought an order for 55% division in her favour and 45% division in the husband’s favour together with lump sum spousal maintenance.
iii)In her case outline, the wife was prepared to accept a 50/50 division together with lump sum spousal maintenance.
iv)The reasons provided by Judge Jarrett are (on his own acknowledgement) brief with Judge Jarrett commenting that the husband can apply to reopen the proceedings if he is dissatisfied with the orders ([17] reasons for judgment).
v)In summary it appears that a 50/50 division of the matrimonial pool was ordered ([22] reasons for judgment).
vi)This was based on a 10% adjustment in the husband’s favour for contributions and a 10% adjustment in the wife’s favour for section 75(2) factors, considering the wife’s inability to work ([21]) and her needs due to the difference in financial positions between the parties ([22]).
vii)It appears that there were a number of issues raised that were not considered by the court as to the property division as a whole that may well have influenced the outcome of the hearing including the study debt, the benefit to the wife of having a degree and the inheritances brought into the marriage.
viii)In addition to the division of the property pool a decision was made that the wife receive $51,681 held in her bank account as spousal maintenance ([23] to [25] reasons for judgment).
ix)The husband has always refuted the wife’s claim for lump sum spousal maintenance and I find that this is a position that needs to be agitated at a final hearing.
(d) Costs were ordered:-
i) The wife never sought costs in her initiating application.
ii)I, therefore, find that the husband would have had material arguments available to him that may have led to a different order been made as to costs.
(As per original)
The wife asserts that her Honour’s reasoning at [30(c)] and [30(d)] was flawed as it failed to specifically identify the material arguments to be raised, particularly once regard is had to the husband’s evidence filed in the lead up to the August trial.
In addition, the wife asserts that Judge L Turner erred in finding:
a)at [30(c)(vii)] that Judge Jarrett had failed to take relevant material into account including “the study debt, the benefit to the wife of having a degree and the inheritances brought into the marriage” (Ground 3); and
b)at [30(c)(ix)] that given the husband had always refuted the wife’s claim for lump sum spousal maintenance, the husband’s position “needs to be agitated at a final hearing” (Ground 4).
The particularised grounds and arguments by the wife do not turn merely on the attribution of weight or on an assertion that reasons should have been more extensive than what they were.
At paragraph 11.16 of the husband’s written submissions in support of his Response to an Application in an Appeal, he summarised the issues he asserts he raised before her Honour on 5 November 2018 in respect of the wife’s student HELP debt, the husband’s initial contribution comprising a property received by inheritance and relevant s 75(2) factors. The husband relies for example on [28] of the reasons in which her Honour records that “consideration has been given to the material filed, the reasons for judgment, the oral submissions of the wife and the written and oral submissions of the husband”.
However, a reading of her Honour’s reasons for judgment suggests that the wife can reasonably argue that it is difficult to discern what her Honour found to be the specific material arguments available to be advanced by the husband which were said to lead to the making of an order different to that made on 9 August 2018.
Further, it can be reasonably argued that her Honour did not identify any argument made by the husband in respect of the wife’s lump sum spousal maintenance claim, or whether any such argument was material or might lead reasonably to different orders being made.
There are in my view reasonable issues to be raised by reference to Grounds 2 to 5.
The husband argues that her Honour’s orders are interlocutory in that they do not finally determine rights. The point was not fully argued and I express no concluded view. On the assumption that leave to appeal is required, I am of the view that the issues reasonably arguable on appeal are reasonably arguable as supporting leave to appeal.
Explanation for Delay?
As explanation for her delay, the wife relies on:
a)the fact that Judge L Turner’s reasons for judgment were not received by her solicitors until 21 December 2018;
b)the closure of her solicitor’s firm over the Christmas holiday period for a period of 16 days; and
c)the mistaken belief that the wife’s Notice of Appeal was not out of time on 15 January 2019 when it was attempted to be filed (arising it seems from the erroneous belief that time ran from when the reasons were received).
The combination of those factors led to the unsuccessful attempt to file the Notice of Appeal on 15 January 2019. The wife’s solicitor was informed by the Court on 17 January 2019 that the appeal was out of time. As a result, the wife’s solicitor obtained instructions to prepare and file the subject Application in an Appeal which occurred approximately two and a half weeks later on 4 February 2019.
The husband contends that the explanation offered by the wife’s solicitor is inadequate to explain a delay of almost four weeks following the expiration of the prescribed time period.
It is well settled that explanation for delay is a factor to be weighed in the balance but it is not necessarily, of itself, determinative.[16] There is a symbiosis between establishing a reasonable issue to be raised on appeal and an explanation for delay. For example, a relatively lengthy period of delay may have less moment in respect of an appeal where reasonable issues on appeal are plainly evident but delay may be a much more important consideration where the reasonableness of the issues are less clear.
[16]Tormsen and Tormsen (1993) FLC 92-392, 80,017.
The weight to be attached to delay as a relevant consideration in the exercise of the discretion does not in my view derive from a day-by-day analysis of what was or was not done during the relevant period. Other factors inform the importance of delay – for example, whether it can be said that a party has sat on their rights or acted with disregard to asserting those rights. No such suggestion can in my view be levelled reasonably at the wife here.
Here, 12 working days separated the Registry’s notification of the rejection of the Notice of Appeal and the filing of the wife’s application. The delay was not in my view inordinate.
The wife’s attempt to file the Notice of Appeal was not referenced to the relevant Rules. It should have been. The failure to file in time would appear to lie in the wife’s solicitor’s error and not with any action or inaction by the wife. In Molloy & Molloy[17] the Full Court held that a solicitor’s failure to file appeal books on time should not prejudice the client. I consider that a similar principle should apply here.
[17] (2016) FLC 93-754.
I am not satisfied that either the delay in filing the application or the wife’s explanation for that delay militates against the grant of an extension of time.
Other Considerations
Delay can in some cases be linked to specific asserted prejudice by a respondent, for example a change of position relying upon the expiration of the appeal period. No such specific prejudice is asserted by the husband.
There is undoubtedly prejudice to the husband; such prejudice is axiomatic in being unable to rely upon orders that are not subject to appeal within the mandated period. If, ultimately, it is decided that the wife’s appeal should be dismissed, the husband has available to him the argument that, as a matter of long-standing practice, complete lack of success in an appeal is considered to be a particularly important factor in invoking s 117(2) of the Act so as to seek costs against the wife.
Conclusion and Costs
I am persuaded that an extension of time is necessary to do justice between the parties and prevent injustice.
The wife’s application is allowed.
In the event her application was successful, the wife sought that costs of the application be reserved to the appeal. That seems to be me to be the appropriate course.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 13 March 2019.
Associate:
Date: 13 March 2019
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