Kaiser and Kaiser
[2017] FamCAFC 59
•1 March 2017
FAMILY COURT OF AUSTRALIA
| KAISER & KAISER | [2017] FamCAFC 59 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the wife’s oral application to adjourn the proceedings on medical grounds was refused – Where there is no satisfactory explanation as to why the wife was unable to file her Notice of Appeal within time – Where none of the grounds of appeal relied on by the wife have any chance of success – Where the appeal has no merit – Application dismissed. |
| Family Law Act 1975 (Cth) – ss 75(2)(b) and 75(2)(o) |
Family Law Rules 2004 (Cth)
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Kaiser |
| RESPONDENT: | Mr Kaiser |
| APPEAL NUMBER: | SOA | 99 | of | 2016 |
| FILE NUMBER: | MLC | 5594 | of | 2013 |
| DATE DELIVERED: | 1 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 27 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1903 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Brown QC |
| SOLICITOR FOR THE RESPONDENT: | Septimus Jones & Lee |
Orders
The Application in an Appeal filed on 21 November 2016 be 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 Kaiser & Kaiser 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).
|
Appeal Number: SOA 99 of 2016
File Number: MLC 5594 OF 2013
| Ms Kaiser |
Applicant
And
| Mr Kaiser |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the court is an application in an appeal, filed by Ms Kaiser (“the wife”), on 21 November 2016. In that application the wife seeks an extension of time to appeal against orders made by Judge Small on 27 July 2016. The application is supported by two affidavits, first, an affidavit filed on 21 November 2016 and, secondly, an affidavit filed on 23 November 2016. And as is required the applicant has presented to the court a draft Notice of Appeal, being the Notice on which she would seek to proceed in the event that time is extended.
In response, Mr Kaiser (“the husband”) has filed an application in an appeal on 7 February 2017, seeking that the wife’s application be struck out, and that is supported by an affidavit, also filed on 7 February 2017.
I should note that the wife also filed an affidavit on 27 February 2017, in which she indicated that she was unable to attend the court today due to, and reading from her affidavit, “an acute dental issue”, and she attached a medical certificate on a form which appears to be used by Centrelink, which indicated that she was unfit for work/study from 16 February 2017 to 16 May 2017. The medical certificate is unfortunately bereft of any specific information, but it seems that the wife was suffering from pain associated with dental treatment, and that is the basis on which she indicated, at least initially, that she was unable to attend the court today.
Despite that affidavit, the wife has attended today, and she says that she has attended because of information she was given by the Registry about what might happen if she did not attend.
The wife, during the course of the hearing today, made an oral application to adjourn these proceedings on the basis that she had dental surgery on 30 January 2017, she is recovering from that surgery, and she is on medication, namely Panadeine Forte. That application was opposed and, in the end result, I refused that application and I have proceeded with the hearing today. I indicated at the time, and I repeat for the purposes of the reasons, that it seemed to me that the wife in her presentation today has been able to make submissions in a lucid fashion, and to understand what the relevant factors are, and to respond to my questions, specifically in relation to the merits of the appeal. On that basis, I have, as I say, allowed the hearing to proceed today and, having now concluded the hearing, my initial view about the ability of the wife to conduct the proceedings has been confirmed.
In any event, in relation to the application itself, as I said, the orders sought to be appealed against, if an extension of time is granted, are those made on 27 July 2016. The Family Law Rules 2004 (Cth) provide that a Notice of Appeal must be filed within 28 days of orders being made, or the delivery of judgment, if the judgment is delivered subsequent to the orders being made. Thus, without being precise about the timing, if the orders were made on 27 July 2016, as they were, then a Notice of Appeal against those orders would have had to be filed towards the end of August 2016, but as is plain, because of the application that is before me today, the wife failed to do that, and it was not until 21 November 2016 when she filed her application seeking an extension of time.
The principles applicable to an application such as this are well-known and well-established, and the High Court decision to which I generally refer when dealing with these matters, is that of Gallo v Dawson (1990) 93 ALR 479, and particularly the judgment of McHugh J 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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Not all of the factors referred to are present in each case, but in this case the primary factors are the reasons for the failure to file a Notice of Appeal within the time allowed, secondly, and importantly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon the result of the application.
There are other matters referred to by his Honour in Gallo v Dawson, such as the conduct of the parties, the history of the proceedings, and the nature of the litigation, but none of those matters have been argued before me today, and I do not see that they are necessarily relevant. Thus addressing the primary factors identified above, the first issue is the reasons for the failure to file the Notice of Appeal within time. In that regard, what the wife says is that she has had long-standing dental issues, and that during the relevant period, namely the 28-day period following the making of the orders, she was unwell due to severe dental pain and stress related to that.
The wife has annexed to her affidavit in support a number of documents from dental professionals and a counsellor, relating to her claim of suffering severe dental pain and stress during the relevant time. It is quite apparent from those documents, and also from a document tendered today which I received and now mark Exhibit 1, that the wife has suffered from dental issues, and she has now had surgery with extractions performed on 29 August 2016 and 30 January 2017. I referred earlier to the result of the latter of those extractions.
The difficulty that the wife has though, is there is no evidence that she presents to establish that the dental pain she says that she suffered, prevented her from preparing and filing a Notice of Appeal within time. As I say, I accept that she has had dental issues. I accept that she has suffered pain as a result, and of course, it is undoubted that she has now had surgery. But, to repeat, at the relevant time, namely during that 28-day period, there is no evidence before this court to demonstrate that because of those dental issues she was unable to prepare and file a Notice of Appeal. I note, of course, that the first surgery was performed on 29 August 2016, which was at the very end of the period. Indeed, if I calculate it correctly, it was after the 28-day period would have expired.
Thus, I am not satisfied with the explanation that the wife gives as to why she was not able to file the Notice of Appeal within time.
Turning to the merits of the appeal, this is a more significant issue in relation to this application, because to not put too fine a point on it, if there is no merit in the appeal then, regardless of any reasons for a failure to file within time, it would be pointless to allow the appeal to proceed by extending time for it to be filed. And in this case, it seems to me, that is where the focus should be.
The issues before the trial judge were property and spousal maintenance. It seems that the complaint that the wife has is in relation more to the property proceedings than the spousal maintenance proceedings and, in short and in summary, the wife’s case before her Honour was that the husband either had significant property, and/or access to significant and substantial funds which could be treated as his property or, at the very least, his financial resource. In the end result, the trial judge found that those claims were not established, and that left her Honour to deal with the property that was established before her, namely a motor vehicle worth, as her Honour said, about $8,000, the husband’s superannuation entitlements of, as her Honour said, some $39,000, and some farm equipment worth, as her Honour also said, about $5,000. Importantly, what her Honour said at [43] of her reasons for judgment was this:
The wife conceded at trial that she could not prove that Mr [Kaiser] owned any other property, and she never claimed that she owned any other property herself.
And further, the evidence it seems in no way established, or supported, the claims that the wife was making in relation to the husband, his property, and his access to funds.
Her Honour ordered, in the ultimate, that the husband sell the motor vehicle and provide the proceeds of that to the wife and, in relation to the superannuation, the wife was to get all of that. The husband, though, was to retain, it seems, the farm machinery. There were then orders made in relation to spousal maintenance, which provided for the husband to pay to the wife a number of expenses, including rent and gas and electricity for her rental property.
The wife, in her draft Notice of Appeal, has set out nine grounds of appeal. I have carefully taken the wife through those grounds of appeal, with a view to identifying with her, the specific complaints that she has.
In relation to the first three grounds of appeal, it transpired that what the wife was complaining about was a ruling, or an order, made by the trial judge on 7 July 2016, namely prior to her Honour delivering judgment and making her final orders. That related to access that the wife was seeking to certain financial accounts of trusts, which were the subject of evidence before her Honour.
It seems, from what the wife tells me, that she subpoenaed the trust deeds and the accounts of the trust. The trust deeds were produced and the wife was permitted to look at those trust deeds, although the wife complains about the time that she had to do that. Apparently, and this seems to be common ground, the wife was not permitted to peruse the accounts of the trusts and, thus, she says she was not able to present that evidence to the trial judge.
However, the difficulty that the wife has is that she has not appealed against the ruling or order made on 7 July 2016. Thus the complaints that she raises in her grounds of appeal in relation to that, cannot succeed, and that encompasses certainly grounds 1, 2 and 3 and, also, in my view, extends to ground 4 and, probably to ground 5.
In relation to grounds 4 and 5, the wife says that the accountant for the M Family Trusts gave evidence, but he changed his title in the witness box from Internal Accountant to External Accountant, and the wife says that indicates that he was not a reliable witness and, therefore, that the trial judge erred in accepting his evidence. As I indicated to the wife during submissions, I do not accept that that fact demonstrates that the accountant was not a reliable witness. Further, her Honour accepted the accountant’s evidence and, as is well-known, in terms of the assessment of a witness and a witness’s credibility by a trial judge, it is a difficult exercise for an appellant to establish that a trial judge has erred and, particularly here where it is a professional witness, namely an accountant. In my view, grounds 4 and 5 cannot succeed.
With ground 6, it was difficult to discern at first blush what the complaint of the wife is, but it seems that she is suggesting that her Honour erred by not taking into account, under s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”), what she describes as the husband’s manipulation or destruction of assets.
In my view, that is also a ground of appeal that cannot succeed. Her Honour only had the evidence before her to act on, and it is apparent from her Honour’s reasons that her Honour was well-aware of the case that the wife was presenting, both in terms of her allegation that the husband had assets other than, for example, what were disclosed, and other funds available to him, and that he was able to “manipulate or destroy” assets. Her Honour dealt with these claims and found against the wife, and it is not apparent that her Honour has erred in that finding. Thus ground 6, in my view, has no prospect of success.
Little needs to be said about ground 7. The wife says that her Honour erred in failing to apply s 81 of the Act when she made an order for continuing spousal maintenance. Her Honour did make an order for spousal maintenance, which would continue, but that is not what s 81 is directed to and, with all due respect to the wife, she has misunderstood, or misconceived the relevance of s 81. There is no error here by the trial judge and, thus, that ground cannot succeed.
In ground 8 the wife refers to the fact that the husband was able to pay a significant sum, by way of legal costs, in relation to the trial and the proceedings before the trial judge. The wife says it was in excess of $290,000. I note that the trial judge referred to this in her reasons for judgment at [56] where her Honour said:
[The husband] also conceded that his mother had paid about $133,000 to his lawyers for his legal fees in these proceedings.
Now, pausing there, the evidence before her Honour was that the husband’s mother had provided the husband with significant amounts of money. In [55] for example, her Honour set out that the husband received from his mother the sum of $50,000 a year by way of a gift.
Thus it was not new material, or surprising material, that the husband’s mother had paid the husband’s legal costs. Her Honour was aware of that and, plainly, her Honour took that into account in reaching her conclusion and making her order. Again, in my view, ground 8 cannot go anywhere. I did not pick this up earlier, but there are two grounds 8. The second ground 8, again, was a little difficult to follow but, as the wife explained to me, it addressed the issue of future prospects and financial resources. In other words, alleging that the trial judge failed to take into account s 75(2)(b) of the Act. This, again, was very much the wife’s case, she claiming that not only did the husband have property other than what was disclosed, but he had access to substantial funds which could be classified as financial resources. Again, the trial judge was well-aware of that claim and her Honour, on the basis of the evidence before her, was satisfied that that claim was not made out.
It is not apparent, and has not been demonstrated, how the trial judge has erred in relation to this matter. Indeed, my reading of her Honour’s reasons indicates that her Honour has not erred on the evidence before her, and the second ground 8 has no prospect of success either.
Ground 9 can be shortly dealt with. In that ground, the wife raises the recent High Court case of Hall v Hall [2016] HCA 23 and suggests that that set a precedent which could be applied in this case, and using some of the wife’s words:
The times are gone for families to hide behind a once impenetrable trust.
I indicated to the wife that is not my understanding of what Hall stands for, and, in my view, Hall has little or no relevance to the facts of this case. Thus, ground 9, if it can be treated as a ground of appeal, and that is perhaps debatable, also does not sound in any success.
In summary then, none of the grounds of appeal relied upon by the wife have any chance of success.
Pausing there, in terms of what needs to be shown on an application such as this in relation to merits, it is a low bar. In other words, if there is even the remotest chance of success in relation to any ground of appeal, then that is enough, and I have been mindful of that low bar when considering these grounds of appeal, but that low bar in this case is not satisfied.
The final matter is the question of prejudice. There is obvious prejudice to both parties, depending upon the result. If the application is allowed, then there is clearly prejudice to the husband, because as it stands, there is no appeal against her Honour’s orders, but if an extension of time is allowed, then the appeal can proceed and the husband would have to deal with it. On the other hand, if the application is dismissed, there is also clear prejudice to the wife, in that she would not be able to pursue her appeal. There is no appeal from an order dismissing such an application, save and except that the wife could, if so minded, seek special leave to appeal to the High Court of Australia, but that may not be feasible in the circumstances. Thus, realistically, the wife’s options would be virtually nil if I dismiss the application.
In conclusion, as I indicated earlier, and in referring to the authority of Gallo v Dawson, what is relevant here is whether, in considering this application, I can find that the justice of the case requires it to be granted. And in assessing the justice of the case, it is the factors that I have referred to, such as the reasons for any failure to file within time but, more specifically in this case, the merits of any appeal, which feed into and provide a basis for the consideration of where the justice of the case lies. Here I have found that I am not persuaded that there are adequate reasons for the failure to file a Notice of Appeal within time but, more importantly, and significantly, I am not persuaded that the appeal has any merit. Despite therefore, there being prejudice to the wife if I dismiss the application, in my view, that must follow.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 1 March 2017.
Associate:
Date: 4 April 2017
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