Hasek and Hasek
[2017] FamCAFC 231
•7 November 2017
FAMILY COURT OF AUSTRALIA
| HASEK & HASEK | [2017] FamCAFC 231 |
| FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the wife’s delay in filing the Notice of Appeal was adequately explained – where it could not be said that the appeal had no merit – application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Bant & Clayton [2014] FamCAFC 108 Paret & Paret and Ors [2017] FamCAFC 199 |
| APPLICANT: | Ms Hasek |
| RESPONDENT: | Mr Hasek |
| FILE NUMBER: | BRC | 9218 | of | 2015 |
| APPEAL NUMBER: | NOA | 52 | of | 2017 |
| DATE DELIVERED: | 7 November 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 7 November 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT MNC: | [2017] FCCA 2679 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Dodd |
| SOLICITOR FOR THE RESPONDENT: | Whitehead Crowther Lawyers |
Orders
Time be extended so as to permit the applicant to file a Notice of Appeal on 5 October 2017.
A directions hearing be held before the Appeal Registrar on a date and at a time to be advised in writing to each of the parties.
Each party bear their own costs of and incidental to the hearing of the application.
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 Hasek & Hasek 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
File Number: BRC 9218 of 2015
Appeal Number: NOA 52 of 2017
| Ms Hasek |
Applicant
And
| Mr Hasek |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]As was stated would occur when this judgment was delivered orally, citations quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons. Headings have also been added to the settled reasons for ease of reference.
On 30 August 2017, Judge Vasta made consent parenting orders and otherwise made orders for settlement of property. On 5 October, some eight days after the time limit for the filing of a Notice of Appeal, the applicant wife filed an Application in an Appeal seeking an extension of time to file that notice. Her application to extend time for the filing of the Notice of Appeal is opposed by the respondent husband.
The wife represents herself and prepared her own material, including the proposed Notice of Appeal. She also represented herself before the primary judge.
The wife’s application also sought an order that she be permitted to adduce further evidence. I clarified with her in the proceedings this morning that that further evidence did not relate to the application before me today, but to the appeal itself.
As the Family Law Rules 2004 (Cth) (“the Rules”) require, an affidavit was filed by the wife in support contemporaneously with her application. Her draft Notice of Appeal is attached to that affidavit. Part F of the Notice of Appeal states that:
2.When Reasons for Judgement are published that [the wife] have leave to amend [her] notice of Appeal.
(Errors as per original)
His Honour delivered ex tempore reasons for judgment on 30 August 2017. Subsequently, written reasons for judgment were published on 6 November 2017, that is to say, yesterday. The wife, who continues to represent herself, told me this morning that she had not received a copy of those reasons. Mr Dodd, who represents the husband, indicated that his solicitors had received a copy of those reasons yesterday.
The draft Notice of Appeal refers to an appeal against Orders 1, 2, 3, 4 and 6. His Honour’s orders start at one and are numbered in ascending order, in respect of both parenting and property.
The wife confirmed that in referring to those orders by number, she was, in fact, referring to the numbered orders in respect of settlement of property, and that the proposed appeal relates to the orders for settlement of property only.
Application for Extension of Time
Legal Principles
It is well settled that the principles governing an application for an extension of time to file a Notice of Appeal emanate from what McHugh J said in Gallo v Dawson.[2] Subsequently, in Joshua v Joshua,[3] Lindenmayer J set out some considerations that should apply when a court considers such an application.
[2](1990) 93 ALR 479 at 480.
[3](1997) FLC 92-767 at 84,440.
It is to be noted that Lindenmayer J applied what might be described as the fundamental issue in applications of this type, which is, namely, whether granting the application will enable the Court “to do justice between the parties”.[4] The considerations outlined by Lindenmayer J and in other decisions are “not to be treated as legislative directions” and, ultimately, it is a matter of judicial discretion.[5]
[4]Gallo v Dawson at 480.
[5]Bant & Clayton [2014] FamCAFC 108 at [10] – [11]; See also, Tormsen and Tormsen (1993) FLC 92-392 at 80,017-8.
In the Summary of Argument filed on behalf of the husband, the decision of Strickland J in Paret & Paret and Ors[6] is referred to and passages from it are cited. There, recognition is explicitly given to the disadvantage inherent in the granting of extensions of time to the respondent to such an application. Equally, reference is made to the disadvantages inherent in such an application if justice requires leave being given to file an application out of time so as to permit the appeal to be heard:
37.I have heard submissions as to the financial circumstances of the parties and how the respondents have incurred significant legal fees in relation to this matter. They recognise that if the appeal is allowed to proceed they will incur further legal fees in responding to the appeal, and that clearly must feed into the prejudice or hardship that they would experience if the application was successful.
38.On the other hand, if the application is refused, the husband will not be able to pursue his appeal. Significantly, there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia; however, that is a difficult exercise, and may not of course be warranted in this case. Thus, that is a serious consequence for the husband if the application is refused.
[6][2017] FamCAFC 199.
Explanation for the Delay
A significant consideration in the granting of an extension of time is whether an explanation is given for failing to file the Notice of Appeal within time and the reasons for that. The explanation given by the wife is contained within her affidavit filed on 5 October 2017. It is appropriate to quote from that at some length:
1/ I [Ms Hasek] am a SELF REPRESENTED LITIGANT (SRL). I AM HOMELESS AND ON CENTRELINK WITH LIMITED FUNDS AND ACESSES TO THE INTERNET/COMPUTERS. I have been miss informed by several Persons from the Federal Family Circuit Court Dated on the 25 and 27 September 2017 respectively.
2/ I [Ms Hasek] State that at the end of my Trial Dated 30 August 2017. I was informed by relative court officials that I could Email my Application of “NOTICE OF APPEAL” by or on 28 Days from the 30 August 2017 to Email address; brisbaneatfamilycourt.gov.au by 4pm.
3/ I [Ms Hasek] was also told on 27 September 2017 that I could Efile my Application “NOTICE OF APPEAL” BY THE FERDERAL FAMILY CIRCUIT COURTS PORTAL.
4/ I [Ms Hasek] would like to state, I was unaware of the proper “COURT PROCEDURES” and protocol to lodge the ‘NOTICE OF APPEAL” within the 28 day time frame allowed because of being misinformed by the relative government departments aiding myself through this process.
5/ Due to this misinformation given to me, I was not within the 28 day period of filing / Submitting my Application of “NOTICE OF APPEAL” for the case of [Hasek] vs [Hasek].
6/ I [Ms Hasek] as a SRL. [Self-Representative Litigant] have been “DISADVANTAGED” by this and throughout the whole court case of [Hasek] vs [Hasek] within the three years being in the Federal Family Circuit Court. I have experienced a lot of unnecessary stress and extremely overwhelmed, frustration, depressed and heighten emotions. I have felt intimidated, wrongly judged, degraded, frighten, disadvantaged, fearful, anxious, and bitter. I have been unable to provide myself proper representation nor did I qualify for legal aid as our asset pool was too large. I also had great difficulty with all other legal representatives including the court.
…
(As per original)
Mr Dodd on behalf of the husband argues with some force that when one has regard to what is said in the affidavit there is an absence of what might be regarded as a proper or expansive explanation for the failure to file within time.
In light of the wife’s self-representation this morning, I sought further details from her in relation to events that had occurred prior to her filing the instant application. She told the Court that she had been given what might be described as conflicting advice by some admittedly unnamed Registry staff. In particular, she indicated that she was told she could file the Notice of Appeal by email and file the same through the portal.
It is not the first time that the Court has heard that a litigant has been told that they might file a Notice of Appeal through the portal. That incorrect advice emerges, I suspect, from the fact that now, most, if not all, documents in respect of trial proceedings can, indeed, be filed electronically through the portal. It is perhaps understandable in an extremely busy Registry that the incorrect advice may have been given. In any event, it comes as no surprise and I certainly do not consider it to be inherently improbable.
As I have just indicated, unfortunately all documents in relation to an appeal cannot at the moment be filed through the portal.
The wife told the Court this morning that subsequent to attempting to file the Notice of Appeal in the manner in which she had been advised, she spoke to “Mike” and subsequently to “Teresa”, who gave her the advice which resulted in her filing the Application in an Appeal which I heard this morning.
I reiterate that by reason of the circumstances to which I have just made reference, that application is filed eight days out of time.
The husband’s Summary of Argument and the oral submissions made by Mr Dodd conceded fairly that the period of time is, in all the circumstances, a very short period of delay. Whilst the submissions made in respect of the explanation for delay given in the affidavit are by no means entirely persuasive when taken together with the matters raised by the self-represented wife this morning, I consider that the very short delay has been adequately explained.
Is there a substantial issue to be raised on appeal?
I think it is fair to say that particular emphasis is placed by the husband on the appeal having no merit. It should be accepted, I think, that, as is argued on behalf of the husband, the Notice of Appeal in its current draft form fails to particularise with any real clarity the asserted errors by the primary judge.
That said, it is in my view, possible to discern the broad thrust of the alleged errors asserted by the wife. I reiterate here that a self-represented litigant appeals from ex tempore reasons delivered in Court. She was present in Court, but of course the difficulties for any litigant (or indeed some practitioners) in framing grounds of appeal on the basis only of ex tempore reasons delivered orally in Court are considerable. In my view, the grounds of appeal as currently drafted should be seen in that light.
It is in my view important to note that the Notice of Appeal reserves, as is common, the “right” to amend those grounds of appeal once the written reasons for judgment have issued. Despite the period of about two months subsequent to the delivery of the oral reasons, I repeat that the written reasons were apparently issued only yesterday and, importantly, the wife has not yet had access to a copy of them. I shall at the conclusion of these proceedings facilitate arrangements for her to be provided with a copy of the written reasons today.
That is an important consideration in looking at the grounds of appeal as currently drafted and what might ultimately be the foundations for the argument in respect of appealable error to be made on an appeal if the extension is granted.
It is submitted on behalf of the husband that the grounds of appeal as drafted do not reveal a case on behalf of the wife that has merit and that this is a profoundly important matter in refusing her application.
I am not prepared to conclude that the grounds of appeal together with the Summary of Argument, albeit a discursive and somewhat difficult document to understand, should be taken to reveal that the appeal has no meaningful prospects. Whether that is right or not, it seems to me that there is on the face of the reasons for judgment significant prima facie concern that the primary judge has erred.
In that respect, I make reference to what has been said by the High Court of Australia in both Warren v Coombes[7] and in CDJ v VAJ[8] that the task of an appeal court in respect of an appeal which the statute requires to be by way of rehearing is to hear for itself the arguments and examine for itself the evidence and if injustice is indicated to act accordingly.
[7](1979) 142 CLR 531.
[8](1998) 197 CLR 172.
I seek to emphasise, of course, that in saying that I am not at all suggesting what might be the result of any appeal when it is pursued if the application is granted. Rather, I make those comments so as to indicate that in the exercise of the relevant discretion in respect of this application, there are factors which I take into account which I consider to be important in seeking to discern the overall interests of justice.
For those reasons, then, I propose to grant to the wife the extension of time sought in the application.
I cite two examples. The case outline filed on behalf of the husband before the primary judge refers quite properly to a number of matters that might be seen to weigh in the wife’s favour in respect of any s 79(4)(e) adjustment. In particular, the husband fairly and properly refers to the fact that the wife has been “diagnosed with depression”. He also refers to the fact that the husband’s “income and capacity to earn” was higher than the wife’s at that time. Importantly, he acknowledges in the balance of the document that the “value of the property to be divided is modest”. I am unable to see on reading his Honour’s reasons where his Honour has at all considered s 79(4)(e) of the Family Law Act1975 (Cth).
That is, of itself, a matter that might be raised on an appeal and, if pursued, might trouble an appeal court. It is, in my view, sufficient of itself to indicate that the appeal cannot be said to have no merit, particularly in light of the mooted amendment to the grounds of appeal resulting from receipt of the written reasons for judgment.
The second example is that his Honour’s brief reasons do not refer to a number of matters in relation to a trust which played a central role in the arguments as to the ascertaining of the interest in property that formed the basis of the s 79 application.
It may well be that there is a reason or reasons why those matters are not discussed in his Honour’s brief reasons, but, again, that fact is an indicator to me that the application cannot be dismissed as having no real merit.
Costs
At the conclusion of delivering the oral reasons for judgment in this application I sought submissions in respect of costs.
The wife is self-represented and does not claim to have incurred any legal costs in respect of the application.
Mr Dodd on behalf of the husband repeats the written submissions made on behalf of the husband in respect of costs. In those written submissions it is contended that the husband should have his costs of and incidental to the application, irrespective of whether the wife was successful which, it is submitted, should be assessed at $2,500 with the wife ordered to pay it from the sum the husband is to pay to the wife under the orders made on 30 August 2017.
I agree, with respect, with the submissions of Mr Dodd that the sum there claimed is reasonable.
However, in the circumstances of this case I am not persuaded there are any justifying circumstances, that justify an order for costs within the meaning of s 117(2A) of the Act, notwithstanding the fact that the wife has been successful in the granting of an indulgence by reason of failure to comply strictly with the Rules.
In that respect I repeat and rely upon the matters that I have referred to in my reasons, including the circumstances in which the written reasons for decision were delivered and the prospect of amending the grounds in light of those reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 7 November 2017.
Associate:
Date: 23 November 2017
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