HENARE & HENARE
[2018] FamCAFC 62
•9 April 2018
FAMILY COURT OF AUSTRALIA
| HENARE & HENARE | [2018] FamCAFC 62 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the husband did not file his Notice of Appeal within 28 days – Where the proposed appeal relates to interim spousal maintenance orders – Where the husband requires leave to appeal that interlocutory decree – Where leave to appeal is an important consideration in the exercise of the discretion to extend time – Where the explanation for delay was inadequate – Where the delay was short and did not prejudice the wife – Where dismissing the application did not finally determine the husband’s rights – Where the husband did not establish that his application for leave to appeal involved any error of principle or substantial injustice – Where the husband’s application for leave to appeal had little prospects of success – Application dismissed. FAMILY LAW – COSTS – Where the husband was wholly unsuccessful – Where the wife sought indemnity costs – Where the circumstances were not exceptional so as to warrant an order for indemnity costs – Where the Court ordered that costs be fixed in the sum of $2,500. |
| Family Law Act 1975 (Cth) ss 72, 75, 79, 83, 94AA, 117(1) Family Law Regulations 1984 (Cth) reg 15A Family Law Rules 2004 (Cth) r 1.21(1) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32 |
| APPLICANT: | Mr Henare |
| RESPONDENT: | Ms Henare |
| FILE NUMBER: | BRC | 9218 | of | 2017 |
| APPEAL NUMBER: | NOA | 11 | of | 2018 |
| DATE DELIVERED: | 9 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 14 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3243 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blond |
| SOLICITOR FOR THE APPLICANTS: | Stockley Pagano Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dodd |
| SOLICITOR FOR THE RESPONDENT: | Parry Coates Family Law |
Orders
The Application in an Appeal filed 18 January 2018 is dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to the application fixed in the sum of $2,500 including GST.
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 Henare & Henare 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 |
File Number: BRC 9218 of 2017
Appeal Number: NOA 11 of 2018
| Mr Henare |
Applicant
And
| Ms Henare |
Respondent
REASONS FOR JUDGMENT
On 30 November 2017 Judge Turner ordered, relevantly, that the husband pay interim spousal maintenance in the sum of $380 per week. In order to appeal that order,[1] the husband needed to file an application for leave to appeal within 28 days of that order. He did not do so.
[1]The proposed Notice of Appeal refers on its face to appealing Orders 3, 4, 5 and 9 in addition to the order for interim spousal maintenance. Counsel for the husband confirmed that it was only the latter Order which was subject to the proposed appeal.
Consequently, the husband needs leave to extend the time for the filing of his application for leave to appeal. His application to that effect was filed on 18 January 2018. The wife opposes the application.
The husband does not appeal as of right; his proposed appeal is from an “interlocutory decree” and leave to appeal is necessary.[2]
[2] Family Law Act 1975 (Cth) (“the Act”) s 94AA; Family Law Regulations 1984 (Cth) reg 15A.
The Applicable Principles
The husband’s task in an application of this type is to persuade the Court that the justice of this particular case should see the indulgence he seeks being granted. McHugh J said in Gallo v Dawson[3]: “[t]he discretion to extend time is given for the sole purpose of enabling the court … to do justice between the parties”. His Honour went on to identify a number of specific considerations[4] that have been consistently applied in this Court.
[3] (1990) 93 ALR 479 at 480.
[4]Ibid.
In Joshua v Joshua,[5] Lindenmayer J placed particular emphasis upon whether “there is a substantial issue to be raised on appeal”, saying that, if there is not, “the application must fail”. There can be no doubt that the merits of the proposed appeal is an important consideration, but his Honour’s statement, as it respectfully seems to me, could not be intended as fettering the discretion otherwise applicable in deciding the justice of the case which, as McHugh J points out, comprises a number of relevant considerations.
[5] (1997) FLC 92-767 at 84,440.
Applications of this type will almost invariably involve an inherent prejudice to both parties. Where an applicant appeals as of right, he or she will lose that right if the application is refused. If the application is allowed, the respondent will lose the entitlement to have the judgment in their favour carried into effect.
Where, as here, the mooted appeal is from an “interlocutory decree”, the applicant does not lose a right to appeal. He loses the opportunity to argue that leave to appeal should be granted.
That in turn requires the Court to consider the merits of the discretion pertaining to the grant of leave. That will, in turn, impact upon the other components of the discretion to extend time. The merit of a prospective appeal is central to a consideration of the grant of that leave. However, the exercise of the discretion granting leave to appeal involves more specific considerations relating to errors of principle and substantial injustice.
Delay
The arguments on behalf of the husband place considerable emphasis upon the fact that her Honour’s Reasons for Judgment were not delivered until shortly prior to the expiration of the time limited for appeal.
It is understandable that an appellant would wish to see the reasons prior to settling finally the grounds of appeal. However where, in the interests of expediency or the like, reasons are delivered subsequent to the pronouncing of orders, an almost invariable practice is for a prospective appellant to file a Notice of Appeal reserving to him or herself the amendment of those grounds (and, in some cases, amending the outline of argument) once the reasons are delivered and received.
The Affidavit of the solicitor for the husband filed in support of the application offers no proper explanation for the failure to file a Notice of Appeal immediately consequent upon receipt of the reasons, notwithstanding that correspondence was sent to the solicitors for the wife indicating that an appeal would be filed. The reasons for the delay submitted by counsel for the husband is “delay in receiving the reasons and the transcript coupled with the Christmas break and the ability to obtain instructions contributed to the delay in filing the Notice of Appeal”.[6]
[6] Husband’s Written Submissions filed on 2 March 2018 at paragraph 31.
Counsel for the wife points out, with respect correctly, that reference to the mooted grounds of appeal makes it difficult to understand why the reasons were required before the application for leave to appeal was filed.
As to the reference to the “Christmas break”, it should be observed that “[t]ime in a case runs during a period when the filing registry is closed”.[7]
[7] Family Law Rules 2004 (Cth) r 1.21(1).
The delay in filing the application for leave to appeal is not adequately explained. However, I am cognisant of the fact that the period of delay is short and that the wife does not point to any specific prejudice resulting from that delay.
Notwithstanding the failure to explain adequately the delay, I attach little weight to that factor.
Leave to Appeal
Where leave to appeal is required, the Notice of Appeal requires a prospective appellant to address the principles governing leave to appeal. Part C of the Notice of Appeal provides: “[s]tate briefly the facts relied on in support of the application for leave to appeal and which establish an error of principle or a substantial injustice”.
The husband’s intended Notice of Appeal manifestly fails to do either.
In answer to the Notice of Appeal’s requirement just quoted, what is said is:
1. Whilst the Order was made on 30th November 2017 the Reasons for Judgment were not made available to the parties until 19th December 2017.
The statement is factually correct but, with respect, does not at all advance a case for leave to appeal.
On 7 February 2018 the Appeals Registrar made procedural orders among which was an order that the husband file and serve any written submissions in support of his application by 4.00pm on Friday 23 February 2018. The written submissions filed by counsel on behalf of the husband contain no arguments addressing the principles relevant to a grant of leave to appeal.
No other document forwarded by counsel or his instructing solicitors on behalf of the husband contained or foreshadowed any argument in support of a grant of leave to appeal.
The husband’s counsel sought to advance arguments orally in support of leave to appeal without any prior notice having been given of those arguments or that intention. The wife’s counsel did not object to him doing so, plainly enough, because doing so was likely to involve delay and/or additional cost to his client, and because those arguments could be advanced adequately in oral submissions in response.
The Proposed Grounds of Appeal
If leave to appeal is granted, the husband seeks to rely upon five grounds of appeal.
Broadly, the grounds assert errors in relation to procedural fairness, inadequate reasons and apprehension of bias. The procedural unfairness is said to lie in her Honour’s reliance upon an unsworn statement of financial circumstances. The husband also seeks to assert errors of fact in relation to 11 findings her Honour made in her Reasons for Judgment. Those errors appear, for the most part, to devolve from the complaint about the use of the unsworn Financial Statement and assert that her Honour made findings not available on the evidence. Other arguments attack the relative weight given to evidence.
The written submissions enunciate correctly the principles relevant to an application to extend time and the authorities from which they emanate. However, those same submissions do not at all address the particulars of the grounds of appeal in a manner that allows an assessment to be made – within the confines of the instant application – of the merits or otherwise of those grounds. The only submission in relation to merits is that the grounds “raise a number of substantial issues”.[8] What those issues are, or might be, is not elucidated.
[8]Husband’s Written Submissions filed on 2 March 2018 at paragraph 32.
Again, counsel for the husband sought to adduce oral arguments in respect of those matters without any prior outline of those arguments having been given to the representatives for the wife. Again, and for the same reasons, no objection was taken.
Merits: Leave to Appeal and the Appeal if Leave is Granted
The arguments ultimately advanced orally by counsel for the husband in respect of leave to appeal need to be seen in the light of the nature of the order appealed.
The challenges pertain to an order for interim spousal maintenance. Proceedings seeking final orders for settlement of property are on foot and, in the absence of agreement, will be determined at a forthcoming trial.[9] The amounts paid, or not paid, in respect of spousal maintenance in the interim are highly relevant to the justice and equity of orders for settlement of property and what orders, if any, for spousal maintenance will be made at that trial.[10]
[9]Neither counsel was able to predict with any confidence when that trial would occur. What was effectively a “best guess” suggested that it might be heard in December.
[10] The Act s 79(2); (4)(c) and (e) and, for example, s 75(2)(b),(d),(e),(g) and (o).
The husband says he does not have the capacity to meet the interim order and, consequently, will not comply with it.[11] If, as he foreshadows, the husband does not comply with the interim order (or, presumably, any part of it) before the trial, his failure to do so will be taken into account in the proceedings for final financial relief that await (as will any compliance with it).
[11]A letter written on his behalf and presumably on his instructions indicates that the husband lacks “the financial resources to comply with such Order so far as it related to spousal maintenance”: See the Affidavit of the husband’s solicitor filed 18 January 2018 at paragraph 8.
In any event, the failure to grant leave to appeal does not finally determine the husband’s rights in respect of interim spousal maintenance; the Act specifically provides for a contrary possibility.[12]
[12] The Act s 83.
Both of those matters are important considerations in the exercise of the discretionary grant of leave to appeal, and consequently, the exercise of the discretion to grant an extension of time.[13]
[13]See, for example, McHugh J’s reference to “the consequences for the parties of the grant or refusal of the application for extension of time” in Gallo v Dawson at 480.
As the oral arguments in respect of leave to appeal unfolded, they appeared to comprise, first, an assertion that there was a substantial injustice to the husband by reason of the potential for the wife to bring, as it was expressed, “contravention, contempt or enforcement proceedings”. Those proceedings can, of course, only arise from the husband’s failure or refusal to comply with the order. The argument merely needs to be stated in order for it to be rejected as untenable; the asserted injustice to the husband arises (if it can properly be described as such) from the husband’s own failure to comply with the order.
A second argument appeared to assert substantial injustice by reason of an assertion of (presumably apprehended) bias on the part of her Honour. The merits of any such argument in the instant context suffer from the uncontroversial fact that no issue of bias was raised before the primary judge; her Honour was not at any time asked to recuse herself and no submissions were made to her Honour at any time relating to any such assertion.
It was also submitted, it seems as an instance of substantial injustice and/or as an error of principle, that counsel for the husband was denied the opportunity to cross-examine the wife in relation to the wife’s unilateral sale of items of property. The husband conceded before her Honour that the wife had a need for maintenance; the issue was his capacity to pay and the quantification of that capacity.[14] The instant argument has as its premise that a person with an admitted need for spousal maintenance should sell assets so as to relieve the other party of their obligation to pay maintenance in accordance with their assessed capacity. That argument has no foundation and is contrary to principle. See for example Mitchell and Mitchell:[15]
…The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”…
[14] The Act s 72.
[15](1995) FLC 92-601 at 81,995.
Particular emphasis was given by counsel for the husband to an argument based on asserted procedural unfairness. Again, as the oral argument unfolded, it appeared to involve an assertion, relying particularly on [33] of her Honour’s reasons, that her Honour relied upon the unsworn Financial Statement of the husband in circumstances where no forewarning of the intention to rely upon the document was given and, accordingly, no submissions could be made in respect of it. That argument should be rejected.
Her Honour, at [5] states that she had regard to “[t]he material as marked on the court file” as well as “[t]he exhibits” among other things. The wife’s Affidavit, filed 1 September 2017, contained the unsworn Financial Statement as Annexure A. Exhibit “D” in the proceedings is correspondence from the husband’s solicitors to the wife’s solicitors referring to the “attach[ed]” Financial Statement (although no such attachment appears in the actual exhibit).
It is clear her Honour had the unfiled and unsworn document before her, albeit that its status as such would well have affected its weight. In addition it is clear, given the document was annexed to the wife’s Affidavit, the husband was, or at least should have been, on notice that the wife intended to rely upon it and had an opportunity to respond to it and advance such arguments as he might choose (including as to its admissibility and/or weight).
Finally, and I think very importantly, the submissions made on behalf of the wife as to role of this document in her Honour’s ultimate findings should be accepted. It is argued that her Honour’s reasons demonstrate clearly that the findings made by her Honour in respect of the husband’s income resulted from a disparity between a tax return and payslips provided by the husband himself. There was no evidence given by the husband explaining the disparity between those documents. I am unable to see any substantive merit in an argument that her Honour’s finding in respect of the husband’s capacity to pay interim maintenance depended upon the unsworn statement; indeed a fair reading of her Honour’s reasons suggests that the document received no weight at all in her Honour’s determination.
It needs to be emphasised that her Honour’s findings and ultimate orders were made in the context of the limited and abridged hearing within which interim spousal maintenance applications are heard.
Conclusion As To Merits
The husband does not establish that his application for leave to appeal involves any error of principle and/or substantial injustice.
The husband does not establish that there is substantive merit in the application for leave to appeal.
Conclusion As To The Application To Extend Time
For the reasons I have sought to outline, I conclude:
·The explanation for the delay in filing the application for leave to appeal within time is inadequate. Nevertheless the period of delay is short and the wife points to no prejudice arising specifically from that delay;
·The fact that the husband does not appeal as of right is a very important consideration in the exercise of the discretion to extend time;
·The rejection of the husband’s application does not finally determine his rights; nor does it finally determine his rights in respect of interim maintenance. This, too, is a very important consideration;
·No substantial injustice and/or error of principle is articulated such that an application for leave to appeal has substantive merit;
·Specific assertions of error on the part of her Honour as articulated orally are, with respect, misconceived or contrary to principle; and
·What would appear to be the husband’s primary argument in support of leave to appeal has insufficient prospects of success so as to engage the prejudice to the wife inherent in the grant of leave; and
·Specifically, the asserted lack of procedural fairness is not demonstrated to have played any determinative part in arriving at the challenged order.
The husband’s application should be refused.
Costs
The wife seeks indemnity costs. The relevant principles outlined by Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd[16] have frequently been cited in this Court as being applicable to its proceedings. The reference by Sheppard J, and other cases, to circumstances being extraordinary in order to justify an order for indemnity costs might be seen to apply all the more so by reason of s 117(1) of the Act.
[16] (1993) 46 FCR 225.
The Rules require that I have before me relevant documentation outlining the proper bases for costs incurred by both counsel and solicitors. The solicitor of the wife filed an Affidavit on 16 February 2018 which annexes the costs agreement between the solicitors and the wife, as well as the costs agreement between the solicitors and Mr Dodd of counsel. It is estimated that the costs total $8,195.00 including GST.
In the alternative counsel for the wife seeks costs on a party and party basis fixed in the sum of $2,500.00 including GST.
Counsel for the husband submits that each party should bear their own costs if the application is successful and that if the application is unsuccessful he accepts that he cannot resist an order for costs and accepts party and party costs fixed in the sum of $2,500.00.
I am not satisfied that the circumstances here are exceptional as referred to in the authorities. I reject the application for indemnity costs.
I consider the concession by counsel for the husband to be appropriate. The husband has been wholly unsuccessful and my comments about the ramifications of refusing or failing to comply with the order being taken up at the trial of financial issues or in alternative proceedings; and the fact that the orders do not finally determine the husband’s rights all apply.
I will order that the husband pay the wife’s costs of and incidental to the application fixed in the sum of $2,500.00 including GST.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 April 2018.
Associate:
Date: 9 April 2018
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