Harrison and Harrison (No. 2) - [2011] FamCAFC 36

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON (NO. 2)

[2011] FamCAFC 36

FAMILY LAW – APPEAL - APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the applicant first sought an extension of time to appeal six months after the order was made – where there are adequate reasons to explain the delay – where there are reasonable prospects of a successful appeal – where the husband’s conduct in the proceedings is a relevant matter – consideration of the consequences for the parties if the application is granted or refused – where the justice of the case requires that the application be allowed.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004(Cth) rr 22.02, 22.03 & 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Harrison

RESPONDENT:

Ms Harrison

FILE NUMBER:

MLC

6568

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

1 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

9 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 June 2010

LOWER COURT MNC:

[2010] FMCAfam 663

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McFarlane

SOLICITOR FOR THE APPLICANT:

Perisic & Thomas Lawyers

COUNSEL FOR THE RESPONDENT:

In person

Orders

The time for the husband to file and serve a Notice of Appeal be extended to the close of business on Friday 4 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Harrison & Harrison (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 96 of 2010
File Number: MLC 6568 of 2008

Mr Harrison

Applicant

And

Ms Harrison

Respondent

REASONS FOR JUDGMENT

The husband filed an Application in an Appeal on 21 December 2010 seeking an extension of time to file a Notice of Appeal against orders made by Federal Magistrate O’Sullivan on 11 June 2010.
That application was heard by me on 9 February 2011 when Mr McFarlane appeared as counsel for the husband and the wife appeared without legal representation.
I had intended to finalise the application on 9 February 2011 by delivering ex tempore reasons for judgment and making appropriate orders, however, as a result of time constraints that became impossible. What I was able to do though was to deliver brief reasons for judgment indicating that I proposed to grant the application and make an order extending the time for the husband to file his Notice of Appeal, and that I would deliver my full reasons for judgment as soon as I was able to. I am now in a position to provide those reasons for judgment as follows.
In support of his application the husband relied on his affidavit filed on 21 December 2010 and his draft Notice of Appeal filed on the same date. The wife opposed the application and on 8 February 2011 she faxed to the Court an affidavit on which she sought to rely. Although there were difficulties with the form of that document I received it and allowed the wife to rely upon it. Unfortunately though, it was of little assistance to me.
At the commencement of the hearing I raised with the husband’s counsel whether the documents had been served on the second respondent in the proceedings, namely, K Pty Ltd. I was informed by Mr McFarlane that that company had not been served with any of the documents. However, neither party sought that the hearing of the application be delayed while that was attended to. In the circumstances, I agree with this course. That company is the corporate trustee of the Harrison Superannuation Fund, the assets of which were the subject of the orders made by the Federal Magistrate on 11 June 2010. However, the sole director of that company is the husband’s son, and I understand that he took no part whatsoever in the hearing before the Federal Magistrate despite the company being joined as a party and the hearing being delayed to enable proper notice of the proceedings to be given to the husband’s son. I also observe that it was the husband himself who formed this company in 2005, and he was initially the sole director. I also note that for the wife’s part she was not concerned about the absence of the second respondent given that her information was that the husband’s son was, in effect, no longer operating the trustee company and no one else was either.
Despite being prepared to proceed with the application in the absence of the second respondent, I suggested to the husband’s counsel that given the orders that were being sought in the proposed appeal directly impacted upon the assets of the superannuation fund that if the appeal proceeded the second respondent should be served.
The relevant statute law and rules in relation to the application before me are as follows:
7.1Section 94AAA(1) of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
7.2 Section 94AAA(5) of the Act provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
7.3 Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
7.4 Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
7.5Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
7.6Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 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.
The law in relation to applications for extension of time is well settled. The High Court case which is often cited is that of GallovDawson (1990) 93 ALR 479. In that case McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. 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 Burns 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. 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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, according to these authorities, the relevant factors which need to be addressed are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
The two factors which have been highlighted by the husband’s counsel here are, firstly, the question of the delay and the explanation for that and, secondly, whether there is a substantial issue to be raised on appeal.
Turning to the question of delay, the orders of the Federal Magistrate were made on 11 June 2010. The husband did not file a Notice of Appeal within the requisite 28 day period following the making of those orders and the delivery of the reasons for judgment of the Federal Magistrate, and it was not until 21 December 2010 that the husband filed his application seeking an extension of time. In short though, the husband’s explanation for the delay is that, given he was an undischarged bankrupt, he did not have the funds to be able to instruct his legal representatives to prepare the necessary documents, and given the complexity of the issues involved, he did not feel confident to attend to that himself. Thus, he bided his time until he did have sufficient funds to instruct his lawyers and immediately thereafter the application seeking an extension of time was filed. Unfortunately, the wife did not address this issue in her affidavit and her oral submissions were also of little assistance. In any event, I am satisfied that there are adequate reasons which explain the delay, and, importantly, the length of delay has not prejudiced the wife in preventing her from being able to enjoy the fruits of the judgment of the Federal Magistrate. That is because the wife is unable to access the superannuation for another three years without income tax consequences.
Turning to the issue of the merits of the appeal, I am not able to be definitive because I do not have the full range of documentation before me that an appeal court would have, but on the basis of the information that I do have, I consider that there are reasonable prospects of success. The proposed grounds of appeal are extensive, and I must say that having carefully read the reasons for judgment of the Federal Magistrate, there are a number of instances where it is arguable that the Federal Magistrate has erred in the exercise of his discretion. For example, it is not apparent whether his Honour was varying or setting aside the previous orders pursuant to s 79A of the Act, and in considering the further order that he made, it is not apparent how he arrived at his decision. In addition, there is a concern as to the basis on which his Honour allowed the matter to proceed undefended. In particular, there would seem to be an inconsistency between allowing the wife to file her documents late, but not the husband.
Doing the best I can in attempting to follow and understand the wife’s affidavit and her oral submissions, it seems that she was raising for consideration the history of the proceedings and the conduct of the husband in the proceedings. As the Federal Magistrate observed in his reasons for judgment, these proceedings have had a “sorry history, particularly of non compliance with Court orders” by the husband. I certainly have every sympathy for the wife given the husband’s conduct, and in particular his breach of court orders. They are certainly relevant matters for me to take into account in determining this application, and, of course, they militate against granting an extension of time.
The only other factor that I wish to mention is the consequences for the parties of the grant or refusal of the application. Clearly if the application is granted that will impose serious consequences upon the wife. She will have to deal with the husband’s appeal and that will only add to the stress that she has clearly suffered as a result of these proceedings to date. On the other hand though, there are also serious consequences for the husband if the application is refused. In that event, not only will he not be able to pursue his appeal, but no appeal lies from a refusal to extend time. The only course that would be open to the husband would be to make an application for special leave to appeal to the High Court. However, that is a difficult and costly exercise and it may not be a practical option for the husband.
I now come to the overarching principle, namely, where the justice of the case lies. As I have identified, there are factors in favour of granting the application and in favour of refusing the application. However, in my view the justice of the case requires that the application be allowed. Although these proceedings have had a “sorry history”, caused primarily by the conduct of the husband, I am persuaded that there are serious issues to be raised on appeal against the orders made by the Federal Magistrate. Accordingly, I propose to grant the husband an extension of time to file his Notice of Appeal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 March 2011.

Legal Associate:

Date: 1 March 2011