Kacher and Kacher - [2016] FamCAFC 249

FAMILY COURT OF AUSTRALIA

KACHER & KACHER

[2016] FamCAFC 249

FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband filed an application seeking leave to file a Notice of Appeal out of time – Where the husband appeals from final property consent orders, which he alleges he agreed to under circumstances of duress – Where the husband would be required to file substantial further evidence on the appeal to establish his claim – Where the relief he seeks would be better brought as an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) – The application is adjourned to allow the husband to first file a claim pursuant to s 79A of the Act per Arthurman & Arthurman (2008) FLC 93-389 and W and W [2006] FamCA 260 – Application adjourned – Costs be reserved.

Family Law Act 1975 (Cth) s 79A

Arthurman & Arthurman (2008) FLC 93-389
CDJ v VAJ (1998) 197 CLR 172

W and W [2006] FamCA 260

APPLICANT:

Mr Kacher

RESPONDENT:

Ms Kacher

FILE NUMBER:

BRC

8558

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

29 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

28 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 May 2016

LOWER COURT MNC:

[2016] FCCA 2250

REPRESENTATION

FOR THE APPLICANT:	Mr Kacher (in person)
SOLICITOR FOR THE RESPONDENT:	Ms Cornell of Senior Legal

Orders

The Application in an Appeal filed 9 September 2016 seeking leave to file an appeal out of time against the orders of Judge Howard made 9 May 2016 be adjourned, with liberty to either the applicant or respondent to approach the Appeals Registrar for relisting of the Application.
The Applicant Husband file and serve on the solicitor for the Wife an Application pursuant to s 79A on or before 12 December 2016 together with a supporting Affidavit.
The costs of the Respondent Wife, of and incidental to the Application be reserved.

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 Kacher & Kacher 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).

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

Appeal Number: NA64 of 2016
File Number: BRC8558 of 2013

Mr Kacher

Appellant

And

Ms Kacher

Respondent

REASONS FOR JUDGMENT

Introduction

An Application in an Appeal was filed on 9 September 2016 by Mr Kacher (“the husband”). He asks that the court extend the time to file a Notice of Appeal. The orders that the husband wishes to appeal were made by Judge Howard on 9 May 2016. The husband is therefore three months out of time.
It should be noted that the husband first filed an application on 17 August 2016 which was rejected by the Registrar because it failed to include a number of essential documents including a draft Notice of Appeal and there was no explanation for the reasons for the delay.
The orders from which the husband wishes to appeal were made by consent and were in relation to property settlement with Ms Kacher (“the wife”). It appears from the submissions made by the husband that the main issue is that he contends that both on the day of the hearing of the trial and previously he was subjected to a substantial injustice “I was bullied, threatened and coerced into signing and agreeing to their demands under threat of eviction.”
The husband would seek that if he is granted leave to file a Notice of Appeal and the appeal is allowed that the orders be set aside. In particular, the husband would seek that paragraph 8 of the orders be set aside whereby it was agreed that the property there described, being his place of residence, be sold.
It is apparent from the affidavit filed by the husband on 9 September 2016 that he claims that wife’s solicitors, by reasons of letters sent to him and an Application in a Case filed on 19 October 2016 where orders were sought that the husband vacate the home, placed him under considerable pressure and caused him distress.
However, as the solicitor for the wife correctly pointed out, the affidavit of the husband contains numerous contentions but there is no evidence. For example, it is asserted that the husband is suffering from serious medical conditions; that he had considerable difficulty in conducting the litigation for himself and that letters sent by the solicitors for the wife were threatening in nature. It is further alleged that in the past three and a half years, the husband has been subjected to harassment, bullying, threats and intimidation from his wife and her former solicitors and current solicitors. It is said by him that there are documents which would support his claim contained in letters, Police reports and Magistrates Court’s orders. Serious allegations are made against the wife’s solicitor, Mr Senior, including of professional impropriety. Overall it is contended that the orders made by consent were not just and equitable.
As the matter was settled, subject to one minor matter, there are limited reasons for judgment of the trial judge. The judge was asked to make a decision as to whether one property should be sold before the other about which I gather there is no particular complaint. The decision made by the judge provided that a property other than the husband’s home be put up for auction first to enable the husband to see if he could retain his house. The judge pronounced the orders and found in his reasons that they were just and equitable.
This being an application for leave to file the Notice of Appeal out of time, the husband has not yet reached the stage of providing a transcript. The solicitor for the wife maintained that this would reveal that the husband had properly consented to the orders.
I raised at the outset of the proceedings that consideration should be given as to whether the proper course for the husband is to file an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). The relevant provisions of s 79A are as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
It appeared quite apparent from what the husband said about his appeal that his claim is largely that he had suffered duress and that this could only be determined by evidence he wished to place before the court. It is also clear that such evidence would be controversial in the sense of being opposed by the wife.
The solicitor for the respondent indicated that they wished to resist the husband succeeding in his application to file a Notice of Appeal and that any evidence the husband had asserted would support his application to appeal would be contested.
I received substantial written submissions on behalf of the wife as to why leave should not be given to the husband to file his Notice of Appeal. This included that there was no adequate explanation for the delay in the filing of the Notice of Appeal and that the explanation of being self-represented and unaware of court processes were not proper reasons.
In resisting the husband’s application, the wife filed two affidavits. In one affidavit letters from her solicitors were annexed. Another letter referred to by the husband was not annexed, quite properly, by reason of the fact that it contained an offer to settle. In the affidavit it was said by the wife and repeated by her solicitor in oral submissions that the wife expected the matter had come to an end by reason of the consent orders and it would place her in difficult financial circumstances should the orders not be complied with as agreed.
In a further affidavit, the wife seeks that should the husband be granted leave to file a Notice of Appeal she would be seeking an order for Security for Costs.
It is not appropriate at this stage to say any more about the application for leave to file a Notice of Appeal out of time as I have concluded that the proper step is that the husband be given an opportunity to file an application pursuant to s 79A of the Act. The husband indicated that he would like the opportunity to file such an application. This appears to be the most efficient course.
Should the husband be given leave to file his appeal, it would be necessary for him to seek to adduce evidence to prove the allegations upon which he now wishes to rely. That application would be governed by the well-known principles contained in CDJ v VAJ (1998) 197 CLR 172. As already mentioned, such evidence would be controversial and would then require the solicitors for the wife to file their own material. In my view the issues raised by the husband in his appeal can be best resolved by a trial, regrettable as that may be for the wife.
Whilst it is correct that the Act does not provide in these circumstances that an application pursuant to s 79A should necessarily be heard before an appeal, it is apparent in the circumstances in this case that that is the proper course.
I gave the solicitor for the respondent the opportunity to consider the reasons given in Arthurman & Arthurman (2008) FLC 93-389 and W and W [2006] FamCA 260.
In Arthurman, after contested property proceedings a judge delivered reasons and made orders altering the interests of the husband and wife. The wife subsequently filed a Notice of Appeal. It later became apparent that the husband had failed to disclose an interest he had in a property in Sydney. The wife, in addition to the Notice of Appeal, filed an application pursuant to s 79A. The Full Court listed the matter to determine in which order the application and the appeal should be heard. As the evidence in relation to the property was contentious, and it became apparent that the wife should be afforded the opportunity to cross-examine the husband, noting that this is not an opportunity ordinarily afforded by the Full Court, it was decided that faced with this controversy, it was the better course to adjourn the hearing of the appeal, pending determination of the s 79A Application. As was observed at 83,077:
If the wife’s application under s 79A is ultimately found to have merit, the whole of the orders of the trial Judge may be set aside thus rendering an appeal unnecessary. If the wife is unsuccessful in the s 79A application no doubt an application for costs will be made on behalf of the husband, and if successful, will ameliorate any financial prejudice to him. …
Likewise in this case, it seems that the most expeditious and cost effective manner of determining the competing positions is to give the husband an opportunity to file a s 79A application. Similar considerations as may be found in this case were referred to by the Full Court in W and W. In that matter, an application was made for further evidence on appeal to be adduced to demonstrate that the husband’s evidence at the trial was untrue. It was asked that the Full Court receive the evidence and in light of it, allow the appeal and set aside the orders of the trial judge, and order a new trial. Counsel for the husband in that case submitted that the appropriate course was for the wife to make an application under s 79A and for the hearing of the appeal be adjourned.
After referring to the well-known passages in CDJ v VAJ it was said by Finn J (with whom the other judges agreed) that the “Court could not be satisfied, on the state of the evidence at this time, that the further evidence would have produced a different result, if it had been available at the trial.”
Of course, that must also be the case in this matter where the husband complains of the conduct of the wife, her family and her solicitors prior to the trial and on the occasion of the consent orders. Again it was emphasised in W and W, the need for such evidence being properly tested. The appellant wife (in that case) was given an opportunity to seek an adjournment of the hearing of the appeal to enable her to file the appropriate application under s 79A. In my view there is no doubt that that is the proper course to be taken in this case.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 29 November 2016.

Associate:

Date: 29 November 2016