JEANES & JEANES
[2015] FamCAFC 142
•24 July 2015
FAMILY COURT OF AUSTRALIA
| JEANES & JEANES | [2015] FamCAFC 142 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where final property orders were made at an undefended hearing – Whether the husband’s Notice of Appeal was filed out of time – Whether the time in which to file an appeal commenced to run when the orders were “made” or when said to “take effect” – Where the delay in filing the Notice of Appeal is material – Where the husband provided no adequate explanation for the delay – Where the proposed appeal has no merit – Where the wife would suffer injustice if leave be granted to the husband – Application dismissed. FAMILY LAW – APPEAL – Costs – Where the respondent wife sought that the husband pay her costs of the application – Where the application was wholly unsuccessful – Where the making of a costs order is warranted – Husband to pay the wife’s costs of and incidental to the application. |
| Family Law Act 1975 (Cth) ss 4(1), 79(4), 75(2), 81, 94A(1), Family Law Rules 2004 (Cth) rules 17.01, 22.03 |
| Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Edwards v Noble (1971) 125 CLR 296 Gallo v Dawson (1990) 93 ALR 479 Sedrak v Carney [1998] VSCA 114; [1999] 3 VR 95 |
| APPLICANT: | Mr Jeanes |
| RESPONDENT: | Ms Jeanes |
| FILE NUMBER: | SYC | 3625 | of | 2014 |
| APPEAL NUMBER: | EA | 71 | of | 2015 |
| DATE DELIVERED: | 24 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 7 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 385 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hanlon |
| SOLICITOR FOR THE APPLICANT: | Bowen Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ms Gordon of Gordon & Barry Lawyers |
Orders
Application for extension of time in which to appeal the orders of Le Poer Trench J made on 23 February 2015 be dismissed.
Husband to pay the wife’s cost of and incidental to the application in the sum of $5,500, such costs to be paid no later than 28 days from the date of this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeanes & Jeanes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 71 of 2015
File Number: SYC 3625 of 2014
| Mr Jeanes |
Applicant
and
| Ms Jeanes |
Respondent
REASONS FOR JUDGMENT
By application filed 18 May 2015, Mr Jeanes (“the husband”) seeks an extension of time in which to file an appeal against final property orders made by Le Poer Trench J on 23 February 2015. Ms Jeanes (“the wife”) opposes the application.
The husband and wife were married in 1968 and separated in December 2013. The husband is a professional who is presently conducting practice in O Town in the Northern Territory. The parties are in their early 70s.
The following matters are not apparently controversial.
By initiating application supported by an affidavit and a financial statement filed on 13 June 2014, the wife sought property settlement orders against the husband. The documents were served on the husband both electronically and personally. The husband filed no response nor any affidavit evidence.
A number of court events then followed. Although notified of each such event, the husband did not appear. Where directions were made at those events, the husband was notified of the directions by the solicitor for the wife.
Ultimately on 9 September 2014, the wife’s solicitor informed the husband of the listing and, further, that if he did not participate in the proceedings by filing documents, orders may be made in his absence, the husband sent an email to the wife’s solicitor in which he expressed the view that her requests that he provide financial information were “vexatious, harrasive (sic) and time consuming”.
On 26 November 2014, the wife’s solicitor notified the husband that the matter had been set down for hearing on 23 February 2015 and, further, that the wife would on that date ask the court to make the orders she sought. The husband responded to that letter by email in which he set out the way in which he thought the property ought be divided, but he did not then, or at any time, file any documents in response to those filed by the wife.
The matter came before the trial judge on 23 February 2015. There was no appearance by the husband. The trial judge made orders in terms of those sought by the wife. His Honour ordered, inter alia:
1. I make orders as sought in the Initiating Application filed by the wife on 13 June 2014 with the exception of paragraphs 4, 8 10.3 and 26 as sought therein and no longer pressed in the hearing today.
… …
8. I direct that the husband be served by email with a scanned copy of the orders made this day.
9. The orders made this day are to have effect as and from the expiration of 21 days from the date of service upon the husband of a sealed copy of the orders as required by these orders.
The orders were served on the husband on 20 March 2015.
The husband first attended his solicitor on 31 March 2015.
On 29 April 2015, the husband’s solicitor attempted to file a Notice of Appeal against his Honour’s orders of 23 February 2015 which was rejected by the Appeals Registry on the basis that the time for filing the appeal had elapsed and the husband must thus make an application for extension of time in which to file the appeal. That application was filed on 18 May 2015.
Was the appeal out of time on 29 April 2015?
As a preliminary issue, counsel for the husband contended that because the orders were expressed to “have effect” from the expiration of 21 days after service of them on the husband, the time for filing any appeal against those orders did not start to run until the elapsing of the 21 days, i.e. 10 April 2015. Thus it was argued that the 28 day period did not expire until 8 May 2015 and the appeal was attempted to be filed as of right and no leave was required.
Section 94A(1) of the Family Law Act1975 (Cth) (“the Act”) provides that an appeal lies to the Full Court of the Family Court from a decree of the Family Court. Decree is defined in s 4(1) as “decree, judgment or order”. Further,
r 22.03of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed “within 28 days after the date the order appealed from was made”.
Rule 17.01(1) of the Rules provides that an order is made in a hearing or trial: “when it is pronounced by the judicial officer…” and r 17.01(2) provides that an order takes effect on the date on which it is made “unless otherwise stated”.
There is a distinction necessary to be drawn between the making of an order and its coming into effect. Clearly there is contemplated within the Rules circumstances when an order, while made, is said not to take effect until certain events occur, a stay being the most obvious of these. It could not be argued that to stay an order means that it has not been “made” in accordance with the provisions of r 17.01.
Thus, although his Honour’s orders contemplated that the order would not take effect until a period had elapsed after the husband had been served with the orders, after which presumably the wife could take steps to enforce the orders, I do not accept the proposition that this order meant that time to appeal did not “run” as otherwise provided in the Rules, that is, 28 days after the making of the order.
The appeal was thus sought to be filed out of time and an order for the extension of time in which to appeal necessary.
Extension of Time in which to Appeal
The relevant principles to be applied by a trial judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.
In determining whether injustice would accrue if leave be not given, McHugh J said in Gallov Dawson at 480:
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…
The exercise of discretion also involves an assessment of prospects of a successful appeal.
Delay
The affidavit in support of the application for an extension of time was sworn by the husband’s solicitor. So much of it as is relevant to the application is as follows:
23. The Orders made the 23rd February, 2015, first came to the attention of the husband on the 20th March 2015.
24. The husband lives and works in [O Town].
25. The Husband’s Lawyer practices (sic) in Darwin.
26. The Husband first attended upon his Lawyer with a copy of the Orders on the 31st March, 2015.
27. The wording of the Orders in respect of when the Orders come into effect or become operational, is confusing.
28. The Husband’s appeal of the Orders is not without merit.
29. The Husband has explained the delay.
30. The Wife will suffer no prejudice if leave were granted.
I assume that the husband’s “explanation for the delay” is found both in the paragraph that refers to the “confusing” nature of the orders and that he lives in O Town and his lawyer works in Darwin.
The time for lodging an appeal commenced to run at the time of the making of his Honour’s orders 23 February 2015 and the orders were served on the husband on the day on which time expired, 20 March 2015. Had the husband moved with alacrity to bring an appeal, the delay itself may have been immaterial. However, it was not until 10 days later, 31 March 2015, that the husband met with his solicitor and it was not until 29 April 2015 that a Notice of Appeal was sought to be filed. I do not regard the time that passed between the husband attending on his solicitor and the attempted filing of the Notice of Appeal as immaterial. Nor do I consider paragraphs 24, 25 and 29 as providing any explanation for the delay.
In Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Mchugh J said at page 10:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
His conduct is of itself significant in the determination of whether an extension of time should be granted.
Merits of the proposed Appeal
In Sedrak v Carney [1998] VSCA 114; [1999] 3 VR 95 Chernov JA said:
16. In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This determination of the merit of the appeal must of necessity be confined by the documents available to the court on the application.
A draft Notice of Appeal on which the husband intends to rely if leave is given sets out the asserted challenges to his Honour’s orders.
It is useful first to consider his Honour’s reasons for the orders he made.
His Honour’s Reasons
After setting out the law relevant to the determination of the issues before him and, in respect of which no challenge is mounted, his Honour compiled a Balance Sheet in which he set out the property of the parties and each of them and referring to the values asserted by the wife to each of those items of property.
Turning then to a consideration of the s 79(4) contributions to the date of separation [56], his Honour referred to the evidence of the wife contained in two affidavits and thereafter sets out the matters taken into account by him. Equally, his Honour set out the matters to which he had regard in considering the matters relevant to s 75(2) at [77] and following. His Honour referred to the wife’s submission that the property should be divided so as to reflect a division in her favour of 68 per cent of the net property of the parties and each of them [92]. His Honour also referred to the email sent by the husband to the wife’s solicitor in which he set out the orders he sought [95].
His Honour noted that there was no evidence about the husband’s ability to remain in practice as a professional and if he no longer worked as a professional what other employment might nonetheless be available to him [96]. He then set out the matters of which his Honour was aware which were relevant to his consideration of the husband’s circumstances [97].
His Honour concluded:
98. The orders sought by the wife in the scheme of this relationship are not, in my view, outside the scope of available range for the Court exercising an appropriate discretion. I conclude that a significant adjustment under s 75(2) in favour of the wife is warranted. I am also entitled to take into account, and do so, that the husband, who is a highly educated and clearly articulate person, chooses not to engage in the court proceedings, having received proper and acknowledged notice of the orders sought by the wife in this proceeding. There is no evidence which might reasonably inform the Court of any impediment to the husband participating in the proceeding either personally or through representation.
Thus his Honour concluded to make orders in terms of those sought by the wife.
The judge then considered the wife’s application for a lump sum as spousal maintenance at [101]. His Honour set out the relevant law, and again, no challenge is made to the accuracy of the principles set out by him. After setting out the relevant evidence, his Honour determined to make an order which provided the wife with spousal maintenance, reflective of her needs as found by him, but which would be paid to her as a lump sum [117].
The Grounds of Appeal
The first ten asserted grounds contend that the evidence filed by the wife was incomplete or inadequate. They do not assert any error by his Honour.
For example, Ground 10 says:
10. The Affidavit in Support as filed by the Wife, at paragraph 5, and the Initiating Application as filed by the Wife, as paragraphs/items 18, 19 and 20 reveal that the Husband is a 71 year old [Professional] in the employ of [a] health service in the Northern Territory, however, such does not reveal whether the Husband was a tenured or contracted employee nor does it reveal what remains of his tenure or contract with that service, nor does it reveal how much longer a [Professional] in his 70’s was expected to continue in practice due to health and/or age considerations.
It may be that the first 10 “grounds” in fact form the basis for the challenge articulated in Ground 11, being:
11. There was insufficient or inadequate evidence before the Court for the Learned Trial Judge to hear and determine the Initiating Application for property orders and spouse maintenance of the Wife.
Of course, merely asserting that evidence was “insufficient” to form the basis of the orders made is not of itself a basis for appellate intervention, unless it is contended that the evidence before his Honour did not support the facts found by his Honour and on which his orders were based. If, taking a most benevolent approach to the first eleven asserted “grounds”, they can be thus regarded as being challenges to his Honour’s fact finding, those challenges cannot be made out.
The bar to appellate intervention as to factual determinations of a trial judge is set high. In Edwards v Noble (1971) 125 CLR 296 Barwick CJ said at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.
It is not suggested that the findings made by his Honour and on which
his Honour’s decision is based were not open to him. If the first 10 grounds assert such a challenge, they must fail.
To the extent that it is not already apparent, it was always open to the husband to file documents to put other or different circumstances to the court for its consideration in determining the wife’s application for property settlement orders. The affidavit of the wife’s solicitor demonstrates that she was punctilious in serving documents on the husband, informing him of each step undertaken and each direction made by the court as part of the orderly process for bringing matters on for hearing. The husband, in that knowledge, elected to take no step in the proceedings, other than to send a somewhat cursory email as to the orders he wished made to the wife’s solicitor, which she in the exercise of her duty to the court, brought to his Honour’s attention. In the event he filed no documents nor sought to adduce any evidence in the matter.
His Honour, as he was entitled, proceeded to determine the issues identified based on the information before him and, as part of that determination made findings of fact based on that evidence.
Turning then to Grounds 12 and 13, it is contended:
12. There was insufficient or inadequate evidence before the Court for the Learned Trial Judge to hear and determine the Initiating Application for property orders of the Wife, by reference to the preferred approach to the determination of an application brought pursuant to the provisions of s. 79(4) (the four inter-related steps) in that:-
(a) there was an error of principle at the second step in the failure to identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contributions based entitlements of the parties expressed as a percentage of the nett (sic) value of the property of the parties;
(b) there was an error of principle at the third step in the failure to identify and assess the relevant matters referred to in
ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements established at step two; and(c) there was an error of principle at the fourth step in the failure to consider the effect of those findings and determination and resolve what order is just and equitable in all of the circumstances of the case.
13. There was insufficient or inadequate evidence before the Court of the Learned Trial Judge to hear and determine the Initiating Application for spouse maintenance of the Wife, by reference to the provisions of s. 72 and s. 75(2) in that there was an error of principle in the making of an order for lump sum spouse maintenance in circumstances where each of the parties were well past ordinary retirement age and that the Husband was 71 years of age and that there was no evidence before the Court as to reveal whether the Husband was a tenured or contracted employee or what remains of his tenure or contract with that service, or how much longer a [Professional] in his 70’s was expected to continue in practice due to health and/or age considerations.
To the extent that these grounds assert error in his Honour’s finding because the evidence before him was inadequate, they must fail for the reasons given earlier.
However, as to Ground 12, it is clear from his Honour’s reasons that he did indeed assess the contributions of both parties to the extent that that evidence was before him. If the grounds purport to assert error because his Honour did not in some slavish way allocate percentages to the various “steps” in the determinative process, it is misconceived. In any event, his Honour’s reasons demonstrate that he did indeed take into account the matters relevant to a determination of the issues before him and concluded what adjustment in percentage terms flowed from those findings. Finally, his Honour concluded by specific reference at [99] that the orders he proposed to make were just and equitable.
This ground does not enjoy any prospects of success on appeal.
Ground 13 contends error in his Honour making an order without information from the husband as to how long he would work. His Honour was acutely conscious of the need to bring finality to the matters between the parties as he was obliged to do and, indeed he referred to s 81 at [116].
That there might have been other evidence to put before his Honour by the husband in circumstances where the husband declined to do so, cannot and does not amount to an error such as would invite appellate intervention.
Finally, it is to be noted that it is nowhere asserted that there was indeed other evidence that the husband would have put before his Honour nor indeed whether any such evidence would have caused his Honour to come to a different view.
Injustice
While it is baldly asserted that the husband would suffer prejudice if the leave to appeal was not granted, and equally baldly asserted that there would be no prejudice flowing to the wife if leave was granted, nothing was put to support those statements.
It is undoubted that the husband would like the opportunity to challenge the orders made, and perhaps to argue, although there is no evidence or submission to this effect, that the orders were so far out of the reasonable range of discretion that his Honour’s discretion miscarried.
However, the prejudice obtaining to the wife if leave be given far outweighs any prejudice that might occur through strict application of the rules as to time limits. She sought a determination of property issues from the court and sought the husband’s engagement in those processes in which he refused to participate. She received a determination. To put her to the cost of meeting an appeal which would otherwise fail, would work an injustice on her.
In all of the circumstances, that the appeal demonstrates no merit, the delay and the prejudice accruing to the wife if leave be given persuade me that the application should be dismissed.
Costs
At the conclusion of the hearing, the solicitor for the wife sought an order for costs. Counsel for the husband appropriately conceded that if the application failed he could not argue against a costs order. In any event, the application having been wholly unsuccessful, it is appropriate that the husband pay the wife’s cost of meeting the application.
The wife’s solicitor sought the sum of $5,500 by way of costs should the application fail. Counsel for the husband agreed that the sum was appropriate. A costs order in that amount will be made.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
24 July 2015.
Associate:
Date: 24 July 2015
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