KAM & CHUN - [2011] FamCAFC 125

FAMILY COURT OF AUSTRALIA

KAM & CHUN

[2011] FamCAFC 125

FAMILY LAW - APPEAL – Application for extension of time in which to file Notice of Appeal – Non-appearance – No merit in appeal – Appeal dismissed.

Family Law Act 1975 (Cth)

Hedley & Hedley (2009) FLC 93-413

APPLICANT:

Ms Kam

RESPONDENT:

Mr Chun

FILE NUMBER:	SYC	7832	of	2009
APPEAL NUMBER:	EAA	109	of	2010

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:	27 May 2011
LOWER COURT JURISDICTION	Federal Magistrates Court
LOWER COURT JUDGMENT DATE:	21 September 2010
LOWER COURT MNC:	[2010] FMCAfam 996

REPRESENTATION

THE APPLICANT:

No appearance

THE RESPONDENT:

No appearance

Orders

That the Notice of Appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kam & Chun is approved 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: EAA 109 of 2010
File Number: SYC 7832 of 2009

Ms Kam

Applicant

And

Mr Chun

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an appeal against an order of Walker FM, dismissing the appellant’s application for property orders against her former husband because the application was not brought within the time specified by the Family Law Act 1975 (Cth) (“the Act”), and no leave pursuant to s 44(3) of the Act had been sought or granted.
On 27 December 2009 the appellant applied in the Federal Magistrates Court for property orders against her ex-husband, the respondent to the appeal. That application came before Walker FM on 30 July 2010, and she dismissed the application. Her reasons are brief and I note at paragraph 5, Walker FM indicates that she advised the wife of the provisions of s 44(3) of the Act, that is the section that requires a grant of leave before proceedings can be brought out of time.
Her Honour said at paragraphs 6, 7 and 8 of the reasons:
It was explained to the wife that her application seeking property orders was very considerably out of time, and that she could make an application pursuant to section 44(3) but that apparently such an application had previously been made on her behalf many years previously.

It was further explained to the wife that such an application had come before a Judicial Registrar on 14 December 1993, that it was dismissed and then that the wife appealed that decision. It was noted that the Full Court upheld the decision of the Judicial Registrar on 13 June 1994. The wife did not appear to accept this previous history in the matter.
In the circumstances of the matter the Court has no option other than to dismiss the wife’s Application filed 22 December 2009, pursuant to Rule 13.10 of the Federal Magistrates Court Rules, because in the circumstances of the matter, she has no reasonable prospects of successfully prosecuting her claim.
The notice of appeal to the Full Court was filed on 25 August 2010. On 26 November 2010, I made procedural orders for the preparation of the appeal and set the matter down for hearing on 27 May 2011. The appellant was present on that occasion. On 2 December 2010 a letter was a sent to the appellant enclosing a copy of the procedural orders made by me on 26 November 2010.
The appellant is representing herself. English is not her first language. She has filed documents that broadly conform to the procedural directions and her grounds of appeal are set out in her documents.
On 27 May 2011 the appellant did not appear. I propose to dismiss her appeal.
The appellant is no novice to Court proceedings. She has spent many years litigating essentially the same issue in this Court both at first instance, the Full Court and the Federal Magistrates Court.
On 26 November 2011 when procedural orders were made in relation to this appeal, the appellant had another application before the Full Court, being an application for an extension of time to appeal two orders, one made by Gee J in 1984, and one made by O’Ryan J in December 1998. That application was refused on 2 December 2010, and reasons for that decision were delivered on that day.
I incorporate from that judgment, the chronology of this matter relevant to the appeal and the background to the matter generally.
It is relevant to an understanding of the history of this matter, that in 1988 the husband, the respondent to this appeal, married Ms I. They were divorced in November 1998. A decree nisi was pronounced on 9 November 1998, and that decree became absolute in December 1998. The appellant has brought a number of applications that directly concern Ms I.

Background

On 9 October 1984 the husband and wife were divorced. On the same day, the Court made orders by consent granting joint guardianship of the parties’ children, H (born in February 1971) and S (born in February 1972) and providing that the wife would have care and control of those children and the husband was to have reasonable access to them. An order was made that provided for the husband to pay maintenance to the wife of $30 per week per child.
Order 4 was in the following terms:
That by consent the Application for Lump Sum Maintenance contained in the Application for Injunctions, Custody, Access and Maintenance filed herein on the 14^th August 1984 by the Wife, be stood over generally with liberty to either party to restore to the list on seven (7) days’ notice.
The consent orders were made by a Deputy Registrar of the Family Court. Gee J pronounced the decree nisi of dissolution of marriage.
In May 1993, August 1993 and September 1993 the wife applied for leave to bring property proceedings out of time and sought orders about disclosure and the value of assets. Each application was dismissed by a Judicial Registrar.
The wife filed an application for review of the Judicial Registrar’s decision.
In June 1994 the review hearing was conducted by Coleman J who ordered the review application be dismissed and confirmed the order of the Judicial Registrar.
In March 1998 the wife made another application that, while apparently not clear as to its terms, was treated as being an application for property orders. In May 1998, that application was dismissed by a Registrar. The wife filed an application for review of the Registrar’s decision. It was heard by Brown J in June 1998. Her Honour dismissed the application for review and in her reasons for judgment observed that the Registrar had told the wife that she required leave to apply for property orders out of time. Brown J ordered that the wife be estopped from agitating the same application.
In December 1998, O’Ryan J heard the wife’s application for an extension of time in which to appeal against the orders of Brown J. In dismissing her application, his Honour said (at paragraph 16):
In this matter the wife has failed to provide any or any credible explanation for her failure to file a Notice of Appeal within time. Further the wife has given no evidence setting out with precision her complaints against what her Honour did. The wife for example, did not provide draft grounds of appeal …
In my opinion, there is no or very little merit in any complaint of the wife against the orders made by her Honour. In my opinion, the Application of the wife, namely that which was dismissed by the Senior Registrar was misconceived. As her Honour said, “the wife should have sought to appeal against the orders made by Coleman J in 1994”.
In May 2001 the wife brought another application seeking leave to appeal out of time. The matter came before Ellis J on a number of occasions for directions. His Honour made directions for service of the documents on the husband and that once he had been served, the matter could be relisted. Eventually in July 2001, there being no evidence of service in compliance with his Honour’s orders and no appearance by the wife, the matter was removed from the list.
In August 2001 the wife applied for an order that service on the husband be dispensed with. That application was refused. In October 2001, the wife again sought an order that service be dispensed with. It was again dismissed.
The Registrar ordered that the wife be restrained from filing another application unless it “is intelligible and is certified as having been read to the applicant by an interpreter before it is signed.”
In March 2003 the wife filed an application in the Federal Magistrates Court seeking injunctions restraining the husband from selling a home unit at B, being the home unit in which the husband and Ms I lived during their relationship.
In April 2003 she filed an application in the Federal Magistrates Court seeking an order for substituted service on the husband of her application for injunctions.
In May 2003 the wife’s attempt to file an application was refused because it did not comply with the Registrar’s orders made in October 2001.
In February 2004 the wife filed an application seeking injunctions against the husband in relation to the B unit.
In March 2004 the wife filed an application supported by an affidavit seeking an extension of time to appeal from the orders of O’Ryan J on 2 December 1998.
In April 2004 Ellis J granted leave to the wife to restore her application (in which she sought leave to appeal out of time the orders of O’Ryan J) by arrangement with the Registrar. The wife did not seek to restore the application to his Honour’s list.
In August 2004 the wife filed another application in the Federal Magistrates Court seeking injunctions against the husband in relation to the B unit.
On 11 August 2004 the wife filed an amended application in the Federal Magistrates Court again seeking injunctions and an order for tracing the husband’s residential address through his mobile phone number.
All of the applications filed in the Federal Magistrates Court were dismissed.
On 8 February 2005 the wife filed an Application in which she sought an extension of time to appeal the order of O’Ryan J dismissing her application on 2 December 1998. That application was heard and dismissed by Boland J in August 2005. Her Honour observed that the affidavit on which the wife relied in support of the application before her was brief and in which the wife said that she did not appeal in time from the orders of O’Ryan J because she was unrepresented and was seeking assistance from Legal Aid. She said that she was suffering financial hardship. She provided no information about her financial circumstances.
In her reasons, her Honour noted that O’Ryan J refused to extend time to appeal the decision of Brown J. It was thus a procedural decision against which no appeal can lie.
Her Honour also treated the wife’s application as being an application to extend time to appeal the decision of Coleman J.
Her Honour considered the principles relevant to an extension of time. In relation to each, she found against the wife.
Pertinently, her Honour noted that in 1984 the wife was legally represented and there was no evidence that the wife was unaware of the limitation period in which to bring an application for property orders.
Her Honour Boland J dismissed the wife’s application filed in February 2005 and her application to extend time to appeal the orders of Coleman J of 20 June 1994.

Discussion

As can be readily discerned from the background to the litigation in this matter, the appellant’s application to Walker FM for property orders was almost certainly bound to fail, because she had neither sought nor obtained leave to commence the property proceedings out of time.
Nonetheless, it is appropriate perhaps, that I briefly consider the appeal brought against the orders of Walker FM.
It seems from the documents filed by the appellant on the appeal that she is asserting that no leave is required for her to commence property proceedings against her husband because she commenced proceedings in 1984.
In her asserted grounds of appeal, the appellant wrote:
1. I’ve got the order of property settlement in 1984 9^th October. It since has been proceed till now.
…
3. Therefore, you can’t say the time limit.
Under the heading “Orders sought in the appeal” the appellant noted:
2. On 9^th October 1984 with divorce decree, got an order in. It will exist in forever til I give up the “claim”. The reason is .) it has been continue to til now
2. it by circumstances.
It seems that an application for lump sum maintenance was filed on the appellant’s behalf in 1984 and it seems, stood over generally. There is no evidence that it was ever prosecuted. That however, in my view, does not provide the appellant with any comfort. In Hedley & Hedley (2009) FLC 93-413 at 83,671, Boland J reviewed the authorities dealing with applications for property orders made out of time. Her Honour summarised the principles emerging from those authorities to include:
A party who institutes proceedings for final orders in time may not amend his or her application out of time to add a different cause of action without leave under s 44(3) (for example, amend a cause of action commenced under s 70 to include an application for spousal maintenance). The latter cause of action is the institution of new proceedings out of time.
The wife, having brought an application for lump spouse maintenance in time in 1984, is now not able to add another cause of action; one seeking property orders against her husband, without the necessary grant of leave, pursuant to s 44(3) of the Act. Therefore, I am of the view that this appeal against Walker FM’s dismissal of the application for property orders against the respondent would not have enjoyed success, and I therefore will dismiss the appeal by the reason of the appellant’s non-appearance.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 27 May 2011.

Associate:

Date: 10 June 2011