HASSEWELL & KROMZA
[2019] FamCAFC 188
•29 October 2019
FAMILY COURT OF AUSTRALIA
| HASSEWELL & KROMZA | [2019] FamCAFC 188 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the husband failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the husband seeks reinstatement of his appeal – Where the husband appealed against a finding that a defacto relationship existed –Where leave was granted to bring property proceedings out of time – Where there are no merits in the proposed appeal – Where there would be prejudice to the respondent wife if the application was allowed – Where it would be futile to reinstate the appeal – application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules (2004) r 22.13(2) |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPELLANT: | Mr Hassewell |
| RESPONDENT: | Ms Kromza |
| FILE NUMBER: | DUC | 90 | of | 2018 |
| APPEAL NUMBER: | EA | 65 | of | 2019 |
| DATE DELIVERED: | 29 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 22 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2019 |
| LOWER COURT MNC: | [2019] FCCA 1637 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The application to reinstate Appeal EA 65 of 2019 against the orders of Judge Dunkley made on 4 July 2019 is dismissed.
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 Hassewell & Kromza 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 SYDNEY |
Appeal Number: EA 65 of 2019
File Number: DUC 90 of 2018
| Mr Hassewell |
Appellant
and
| Ms Kromza |
Respondent
REASONS FOR JUDGMENT
On 4 July 2019 Judge Dunkley made orders granting leave to Ms Kromza (“the respondent”) to file an Initiating Application seeking property settlement and other orders notwithstanding that the time in which to bring that application had expired. Mr Hassewell (“the applicant”) appealed those orders.
Following the filing of his Notice of Appeal on 29 July 2019, the husband was advised by letter from the Appeal Registry that he should by 4 pm on 12 August 2019 file an Amended Notice of Appeal to rectify certain matters in the notice. In the same letter, he was further advised to file a draft appeal index no later than 4.30 pm on 21 August 2019. Whilst the husband filed his amended notice of appeal he failed to file the draft appeal index. Accordingly the appeal was subsequently deemed to be abandoned by operation of rule 22.13(2) of the Family Law Rules (2004) (“the rules”).
Background
In order to give context to the issues to be considered, it is helpful to set out some background to the proceedings taken from his Honour’s reasons.
The respondent asserted that she and the applicant had lived together in a de facto relationship which commenced in January 2007 and which ended in 2016. The applicant denied that they ever lived as a de facto couple but agreed that he visited her from time to time although said that they did live together in Australia for a very short period, a matter of weeks, less than six months before separating in August 2015.
The parties have three children and while they first commenced their relationship in Country A, where the respondent was then living, it was agreed that the respondent and their children lived in a house owned by the applicant. The parties moved to live in Australia in August 2015 where the respondent and the children lived in a house owned by the applicant in Town C in country NSW and where the respondent and the children still live.
In February 2016 the respondent obtained Australian citizenship. The respondent’s entry into Australia was on a spouse visa which involved her being sponsored by the applicant and by reason of their relationship.
The applicant contended to the primary judge that he and the respondent never lived together, had no public aspect to their relationship and shared no finances or bank accounts.
The primary judge found that by providing accommodation to the respondent and their children there was a degree of financial dependency on the applicant until their separation. His Honour rejected the applicant’s assertion that the respondent had no commitment to a joint life together, citing her decision to leave Country A and come to live with him in Australia. His Honour also found that in sponsoring the respondent’s visa application, the applicant held out a public acknowledgment of their relationship.
Otherwise the primary judge concluded that the evidence supported a finding that the parties had been living as a couple both in Country A and in Australia on a genuine domestic basis.
Having found that there had been a de facto relationship, his Honour then turned to whether leave to commence proceeding be granted notwithstanding the application was sought to be filed some two months out of time.
At this point, his Honour considered the applicant’s assertion that there was then in existence between him and the respondent a binding financial agreement which precluded the jurisdiction of the Family Law Act 1975 (Cth).
His Honour considered that there was a probability that the respondent would obtain a property settlement order in her favour and referred to the parties’ respective contributions.
Finally his Honour, whilst acknowledging prejudice to the applicant from an order extending time, concluded that it did not tip the balance against making an order that the respondent could bring an application for property and other orders.
Application for reinstatement
In support of the application for reinstatement the applicant says that he is a self-represented litigant who presently lives in Country B. He says in accordance with the email from the Appeal Registry he filed an amended notice of appeal. However he says that he did not realise he was also required to file a draft index to the appeal book. This is notwithstanding that this advice was also clearly set out in the same email dated 24 July 2019, a position that he accepts.
The respondent opposes the application and argues that the appeal should not be reinstated because, in effect, it has no prospects of success.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time in which to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). The central principle is that such applications should be allowed where to do otherwise may cause a substantial injustice. In Gallo v Dawson 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 … 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 … 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…
(References omitted)
It must be appreciated too, that in dealing with appeals that have been properly filed, but not appropriately prosecuted, the appeal will usually be reinstated unless some exception exists to the contrary. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at [7]:
…It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Emphasis added, footnotes omitted)
Thus it is necessary to consider the merits of the appeal.
The application for reinstatement was brought promptly and the applicant says that he overlooked the advice from the appeal registry that he needed to file a draft appeal index, but said that it was now prepared in the event that the appeal is reinstated.
Merits of the appeal
The applicant appears for himself and drafted the appeal grounds. Broadly however, he raises several contentions.
The first appears to be a denial of procedural fairness.
The applicant says that he while he filed an affidavit in the proceedings in the Federal Circuit Court, he did not receive the respondent’s affidavit, which he said was some 200 pages long, until shortly before the commencement of the proceedings. Although he concedes that the primary judge offered him an adjournment of three hours in which to read the affidavit, he declined on the basis of ill health saying he was suffering from gall stones and jaundice.
Although it seems the applicant had some time before the hearing requested an adjournment of the hearing on the basis of his ill health, he was however informed that the respondent’s solicitor opposed any adjournment.
Next the applicant contends that the respondent’s application for extension of time was served on him late. Although he said he gave the name of three lawyers in Country B who would accept documents for him, the solicitor for the respondent declined to send the documents to the nominated lawyers. The applicant conceded that none of those lawyers had filed a notice of address for service in the proceedings. It is little wonder then that the respondent’s solicitor declined to serve ostensible strangers to the proceedings.
Next, the applicant seems to challenge the primary judge’s conclusions based on a (or perhaps a number) of pre-nuptial agreements entered into between the parties.
Both in the grounds of appeal and in his oral submissions on the application, the applicant contended that he and the respondent had entered into an arrangement which ousted the jurisdiction of the Family Court. He contends that the primary judge declined to hear him on that issue and failed to take it into account. He further argued that he and the respondent could resolve these issues without recourse to the courts and the primary judge failed to take these into account.
The respondent alleged family violence in her affidavit before the primary judge and asserted that the spouse sponsorship aspect of her application for citizenship was waived because of family violence.
The applicant argues that the primary judge was incorrect to take that into account and argues that the respondent has fabricated these allegations.
Finally the applicant argues that the primary judge failed to take into account the hardship on him in making the orders.
First it has to be noted that his Honour’s determination was a threshold one – was there a de facto relationship of the relevant kind and secondly whether the respondent ought to be given leave to commence proceedings.
While the applicant contended a denial of procedural fairness, he was given an opportunity to read the respondent’s affidavit but declined, in those circumstances, he can hardly be heard to complain about the process. The other complaints to which I have referred do not amount to a competent challenge to his Honour orders.
Of the other matters contended in the Notice of Appeal, many if not all of them are issues which are properly matters for a full hearing between the parties and do not raise competent challenges to his Honour’s orders.
Thus I am of the view that there is no merit to the appeal and thus it would be futile to reinstate the appeal.
The application will thus be dismissed.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
29 October 2019.
Associate:
Date: 29 October 2019
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