KHALID & KHALID
[2015] FamCAFC 134
•8 July 2015
FAMILY COURT OF AUSTRALIA
| KHALID & KHALID | [2015] FamCAFC 134 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the two-day delay of the father is not material – Where the trial judge made a self-executing order effectively enforceable at the discretion of the mother’s solicitor – Where the trial judge made orders for the splitting of the father’s superannuation without evidence and without hearing from the father or the Trustee of the superannuation fund – Where the trial judge made a costs order against the father without hearing evidence from him and with no itemised account of costs incurred by the mother’s solicitor – Where a refusal to extend time would cause injustice to the applicant father – Application granted. |
| Family Law Act 1975 (Cth) |
| Eure v Tidwell (1995) FLC 92-622 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gallo v Dawson (1990) 93 ALR 479 McMahon & McMahon (1976) FLC 90-038 Ridge Lane Pty Ltd & Ors v Gadzhis & Ors [2007] VSC 212 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Khalid |
| RESPONDENT: | Ms Khalid |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge |
| FILE NUMBER: | CAC | 128 | of | 2014 |
| APPEAL NUMBER: | EA | 59 | of | 2015 |
| DATE DELIVERED: | 8 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 23 June 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1597 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Heinze of Infinity Legal by telephone |
| SOLICITOR FOR THE ICL: | Mr Ridge of Barker and Barker by telephone |
Orders
That the time in which the applicant/father may file a Notice of Appeal against the orders of the Judge Neville made 20 March 2015 be extended until
6 August 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid 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 59 of 2015
File Number: CAC 128 of 2014
| Mr Khalid |
Applicant
And
| Ms Khalid |
Respondent
REASONS FOR JUDGMENT
Mr Khalid (“the father”), by application in an appeal filed on 17 April 2015, seeks an extension of time in which to file an appeal against orders made by Judge Neville on 20 March 2015. It was uncontentious that although the father filed a notice of appeal late on the last day within the time provided for filing appeals, he was apparently advised that he nonetheless needed leave to appeal out of time and so made such an application which was filed on 17 April, some two working days outside the time provided by the rules.
In those circumstances, and sensibly, the legal representative for the wife conceded that the extent of the delay in filing the appeal was not material.
Although at the commencement of the application the mother opposed the application, by the conclusion it seemed that the mother’s position was that she neither opposed nor consented to the granting of leave.
Orders sought to be appealed
The father and Ms Khalid (“the mother”) are parents of one child, A born in 2009. The mother also has an older child from a previous relationship, N, born in 2005. It is apparently uncontentious that the father was significantly involved in the parenting of N during the parties’ relationship. The mother and father have been engaged in litigation about the children for some time.
The background to the application is somewhat complex and it is necessary to set out some apparently uncontentious matters to give context to the application.
On 29 and 30 January 2015, the trial judge heard evidence over two days on the subject of the parenting applications between the parties. At the conclusion of the hearing the trial judge made interim orders in relation to time to be spent between the children and the father and made an order in relation to the children’s passports. At the same time, his Honour ordered the parties to make written submissions on the parenting issues heard by him.
The father did not file his written submissions in the time specified.
The matter was re-listed for further consideration on 17 March 2015. The father attended court on that day. The matter was then adjourned to
20 March 2015 on which day the father did not appear at court. It was on this date that the trial judge made the orders from which the father now seeks to appeal.
It is important to note and it is not contentious that although the mother had filed an application for property settlement orders sometime before, the matter before his Honour for his consideration were the parenting orders sought by the parties. Nonetheless on 17 March the trial judge ordered the parties to file minutes of the orders sought by them in both the parenting and property disputes. The father filed a minute of the orders he was seeking as did the mother.
The orders made on 20 March 2015 and from which the father seeks to appeal were:
1. That the Husband provide to the Wife’s solicitor, within 48 hours, the following documents, by way of financial disclosure:
a. A schedule of all assets and liabilities in which he has an interest including an estimated value of those assets, and any valuations or appraisals that he has obtained of each asset;
b. A schedule of assets that he has disposed of since separation, including any documentation evidencing the value of any asset disposed of by him and how the funds were dispersed;
c. Details in relation to any assets he owned at the commencement of cohabitation together with any documents evidencing the value of those assets at that time;
d. Tax returns and notices of assessment for the financial years ending 30 June 2014, 30 June 2013 and 30 June 2012;
e. His last five pay slips or pay advances;
f. Statements of any and all superannuation policies in his name or in which he has an interest, including any self- managed superannuation funds, for the last three years;
g. Bank statements or transaction histories for the last three years for any and all bank accounts in which he has an interest, whether held in his sole name, a company name or jointly with another;
h. Bank statements or transaction histories for the last three years for any and all credit card accounts for which he may be liable, whether held in his sole name, a company name or jointly with another;
i. Details of any and all mortgages that he may be liable for whether held in his sole name, a company name or jointly with another;
j. Details of any and all other loans or liabilities that he may be liable for whether held in his sole name, a company name or jointly with another;
k. Details including approximate values of any and all real property that in which he has an interest, whether held in his sole name, a company or trust or jointly with another;
l. Details including approximate values of any and all vehicles, boats, caravans or other major items of property;
m. Details, including approximate values, of and all shareholdings in which he has an interest, whether held in his sole name, a company or trust or jointly with another;
n. Details of any and all trusts in which he has an interest or may be a beneficiary under including a copy of the trust deed;
o. Details of any and all financial investments in which he has an interest, whether held in his sole name, a company or trust or jointly with another;
p. Profit and loss statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;
q. Assets and liabilities statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;
s. Details, including approximate values, of any and all other financial resources that he has or may have an interest in, whether held in his sole name or jointly with another.
2. That, within 7 days, the Husband provide to the Wife’s solicitor’s (sic) three appraisals of the following properties:
a. Volume [1] … [Suburb R] ACT;
b. Volume [2] … [Suburb G] ACT; and
c. Volume [3] … [Suburb M] ACT.
3. For the purposes of Order 2 above, the Husband shall do all things and sign all documents as necessary to ensure that following Real Estate Agents have access to the abovementioned properties to be able to complete the appraisals:
a. Mr [Q] of [Estate Agent X] Belconnen; and
b. [Ms C] from [Estate Agent Y] in Belconnen (…).
4. If the Husband fails to comply with Orders 1, 2 and 3 above, the following shall occur:
a. That, within 30 days of the date of these Orders, the following properties be listed for sale (“the sale”);
i. Volume [1] … [Suburb R] ACT;
ii. Volume [2] … [Suburb G] ACT; and
iii. Volume [3] … [Suburb M] ACT.
b. That for the purposes of Order 4 the Wife be appointed as Trustee for the sale of the properties;
c. That the properties be marketed for sale by a real estate agent as determined by the Trustee for the sale;
d. That the properties be sold by private treaty and if not sold within three months or such other time as the Trustee may determine, that there by an auction of the said property;
e.That the Trustee for the sale shall determine the listing price and the selling price after considering the valuation of the properties and the advice of the listing agent;
f.That the Trustee determine the conveyancing solicitor to be appointed to act upon the sale;
g.Upon completion of the sales, the proceeds of the sale be applied as follows:
i.Firstly, to pay all costs, commissions and expenses of the sales and to pay any council and water rates and maintenance levies outstanding in respect of the real properties;
ii. Secondly to discharge the mortgages and any other encumbrances affecting the real properties;
iii. Thirdly, the balance to be held in an interest bearing account subject to final determination of other Orders of the Court.
h.Unless as provided for in these Orders, the Husband be and is hereby restrained from dealing with the properties named at Order 3 above
i.That the Husband pay and keep up to date all payments and liabilities pursuant to the mortgages held over the properties described at 4(b)a-(c) above and all rates, taxes and outgoings, including Strata and Rates payments of or with respect to the real properties of whatsoever nature and kind excepting Gas, Water and Electricity bills;
j.That in default of the Husband doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of this Court at Canberra be appointed pursuant to s106A of the Family Law Act to execute all such documents in the name of the Husband and to do all acts and things necessary to give validity and operation to the said orders.
5.In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr [Khalid] from his interest in the Australian Superannuation Scheme, the Wife is entitled to be paid (by the trustee of the Australian Superannuation Scheme) 50% of the splittable payment, and there is a corresponding reduction in the entitlement Mr [Khalid] would have had but for these Orders;
6. The operative time for Order 5 is four business days after the service of these orders on the Trustee; and
7. The Husband pay the Wife’s costs of an incidental to her Application of 23 February 2015 fixed in the sum of $5,000.000 (to be paid to ACT Legal Aid) as well as associated costs of subpoenas, costs in relation to inspection and copying, filing fees and conduct monies within 48 hours of being provided with an invoice by the Wife’s solicitors.
On 15 June 2015 his Honour made final orders in relation to the children which effectively subsumed the interim orders in made on 20 March 2015. In his reasons for that decision, the trial judge made some reference to the orders made on 20 March 2015.
At the hearing of the application, the father abandoned his proposed appeal so far as it related to the procedural orders and the parenting orders. He thus confined his proposed appeal to the interim property orders which are still in effect, being Orders 4 to 7 as set out above.
Principles
The relevant principles to be applied 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.
The exercise of discretion also involves an assessment of prospects of a successful appeal.
The principles relevant to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon & McMahon (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 to 481 where McHugh J said:
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. 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. 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. 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. 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.
(citations omitted)
Delay
As I have indicated, given the circumstances in which the appeal was sought to be filed and the promptness with which the application for an extension of time was made, I am satisfied that the delay has been satisfactorily explained.
Merits of the appeal
The father said that although he had complied with Orders 1 to 3 requiring disclosure and giving access to the properties for the purposes of valuation, he said that the mother contended that not all documents had been disclosed. It was conceded by the mother’s solicitor that that was indeed the contention and, further, that an application had been filed on the mother’s behalf before his Honour seeking an order that the father hand over the keys to the properties to enable them to be sold in accordance with Order 4.
The father’s argument on appeal will be that his Honour’s order is effectively a self-executing order.
In relation to Orders 5 and 6 which his Honour styled as an “interim” orders and which provide for the splitting of the husband’s superannuation, the mother’s solicitor agreed that at the time that the trial judge made the orders there was no evidence before him of the value of the husband’s superannuation nor any evidence from the Trustee of the husband’s superannuation fund as to the proposed order. Further she agreed that the husband was not heard on the issue.
Finally in relation to Order 7, the order for the payment by the father of the mother’s costs of issuing subpoenas, it was conceded that the order was made without hearing argument from the father and further that the mother’s solicitor was not asked to nor did she make any attempt to itemise the costs incurred by her in coming to the figure of $5,000 for issuing subpoenas.
After hearing argument on the orders from which the father wishes to appeal, I am persuaded that there is merit in the proposed grounds of appeal.
I am further satisfied that significant injustice would be occasioned to the father if an extension of time was not granted and that order will be made.
Although it was argued for the mother that to grant an extension of time would incur further expense and delay which of course is a relevant matter, I am nonetheless satisfied that the order should be made.
I do however observe as I indicated to the father, that the Draft Notice of Appeal is wholly inadequate in articulating the proposed grounds.
Costs
The father appeared on his own behalf and incurred no costs. No other costs were sought and no order will made.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 July 2015.
Associate:
Date: 8 July 2015
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