Kingston & Field
[2020] FamCAFC 171
•17 July 2020
FAMILY COURT OF AUSTRALIA
| KINGSTON & FIELD | [2020] FamCAFC 171 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – LEAVE TO APPEAL – Where the applicant husband appealed against a conditional interlocutory stay order – Where the husband failed to file the Draft Appeal Index in the prescribed time – Appeal deemed abandoned – Delay explained – Where it would be futile to reinstate the appeal – Where leave is required if the order is interlocutory – Where the grounds fail to raise sufficient doubt to warrant the grant of leave – Application dismissed. |
| Civil Procedure Act 2005 (NSW) Family Law Rules 2004 (Cth) Sch 3, r 22.13(2) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Rand & Rand [2009] FamCAFC 88 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 |
| APPLICANT: | Mr Kingston |
| RESPONDENT: | Ms Field |
| FILE NUMBER: | PAC | 2095 | of | 2014 |
| APPEAL NUMBER: | EAA | 62 | of | 2020 |
| DATE DELIVERED: | 17 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 April 2020 |
| LOWER COURT MNC: | [2020] FamCA 303 |
REPRESENTATION
| APPLICANT: | Mr Kingston (Litigant in person) |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg Lawyers |
Orders
The application to reinstate Appeal EAA 62 of 2020 against the orders of a judge of the Family Court made on 30 April 2020 is dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to the application in the sum of $3,300 within 42 days of the date of these orders.
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 Kingston & Field 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 62 of 2020
File Number: PAC 2095 of 2014
| Mr Kingston |
Applicant
And
| Ms Field |
Respondent
REASONS FOR JUDGMENT
On 30 April 2019, a judge of the Family Court made orders granting Mr Kingston (“the husband”) a stay of final property settlement orders made on 21 November 2019 in proceedings between him and Ms Field (“the wife”) pending the husband’s appeal against those orders. The stay was conditional upon the husband paying the wife a sum of $500,000 within eight weeks of the stay being granted. The husband sought to appeal those orders and filed his Notice of Appeal on 19 May 2020.
On 16 June 2020, the husband’s appeal against the stay orders was deemed abandoned by operation of r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) as the husband had failed to file his Draft Appeal Index within the prescribed time. The husband now seeks that the abandoned appeal be reinstated. The wife opposes the husband’s application.
Reinstatement
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 (“Gallo v Dawson”). Although that case dealt with an extension of time in which to appeal, the principles also apply to an application to reinstate an appeal (see Rand & Rand [2009] FamCAFC 88). The central principle is that such applications should be allowed where to do otherwise may cause a substantial injustice. In Gallo v Dawson McHugh J said 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… 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…
(Citations omitted)
It must be appreciated too, that in dealing with appeals that have been properly filed, but not appropriately prosecuted, the appeal will usually be reinstated unless some exception exists to the contrary. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at [7]:
… It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time…
(Emphasis added) (Footnotes omitted)
Reason for the delay
The husband said that he failed to file his Draft Appeal Index on time because during June 2020 he experienced serious problems with his email and computer so that some emails were being sent while others were not, and some emails were able to be opened while others were not. The first time that a technician was able to attend to his computer was 16 June 2020, the day the Draft Appeal Index was due to be filed. The problem was rectified on 16 June 2020, and the husband said he had a backlog of emails and work relating to the running of his retail business that he needed to attend to urgently.
The husband said that while he had sent the Draft Appeal Index to the Appeals Registry, he did not realise it remained unsent in his outbox until Saturday 20 June 2020, when he noticed an email sent by the Appeal Registry on 19 June 2020 advising him that the appeal was taken to be abandoned due to his failure to file his Draft Appeal Index within the prescribed time.
The husband sought the consent of the wife to the appeal being reinstated by email dated 22 June 2020. That consent was not given.
The application for reinstatement was brought promptly after the husband realised his Draft Appeal Index had not been filed and I am of the view that the extent of the delay is not particularly material and the omission is reasonably explained.
Merits of the appeal
The husband’s appeal is from an interlocutory order, and thus, he requires leave to bring the appeal (s 94AA of the Family Law Act 1975 (Cth) (“the Act”)). Thus when considering the merit of the proposed appeal, it must be done through the prism of the interlocutory nature of the orders sought to be appealed.
The test for granting leave to appeal from an interlocutory order is two-fold. First, that the decision in question is attended with sufficient doubt to warrant the grant of leave and a substantial injustice will result from a refusal of leave to appeal (see Medlow & Medlow (2016) FLC 93-692 at [57]).
The consideration of this aspect of the application is assisted by some background to the matter taken from the reasons of the primary judge in relation to the final property settlement proceedings.
The parties began to live together in either late 2001 or early 2002, married in February 2002 and separated in January 2011. There are three children of the relationship, the youngest of whom was 11 at the date of hearing before the primary judge. Since separation, the children have lived in a shared care arrangement with the parties.
His Honour identified the property of the parties or either of them and found the net value of that property to be $2,676,732 of which some $260,000 was in superannuation. His Honour found that the husband’s contributions should be reflected in a percentage division of 55 per cent and that of the wife, 45 per cent. After taking into account the matters to which s 75(2) of the Act relates, his Honour made a further adjustment of 2.5 per cent in the wife’s favour, coming ultimately to a division of those identified assets of 52.5 per cent in the husband’s favour. His Honour ordered the husband to pay $1,232,616 to the wife within three months of the making of the order. Thereafter, interest is to run on the sum ordered. In default of payment to the wife, the primary judge’s orders provide for the sale of the parties’ former matrimonial property and the payment to the wife from the net proceeds of sale.
In ordering the stay, the primary judge, after considering the grounds of proposed challenge to his orders and the parties’ respective submissions on the ordering of a stay, noted that there was no evidence that the husband had attempted to raise the funds necessary to meet the principal amount ordered to be paid to the wife pursuant to the orders. The reasons compare the then respective financial circumstances of the parties, his Honour finding that the wife’s position was inferior to that of the husband.
The primary judge granted a stay of his orders, conditional on the husband paying $500,000 to the wife and gave the husband eight weeks to comply with the order.
In adopting that figure, the primary judge referred to the husband’s position at trial which was that the wife should receive between 25 per cent and 30 per cent of the net property of the parties referrable to contributions, the husband contending that there should be no adjustment by reference to s 75(2) of the Act. The primary judge thus said that on the husband’s case at trial, the wife would receive a payment of $764,188.
The husband advances four challenges to that order:
1. The Learned Judge erred by denying me Procedural Fairness and [Natural] Justice.
2. The Learned Judge erred by not taking all the evidence into consideration before him.
3.The learned Judge erred by not providing adequate reasons for Judgement [sic].
4. The learned Judge erred by not standing aside and has allowed his former Colleague from the Parramatta Registry to participate in the proceedings in contravention of the law.
(As per the original)
The asserted grounds are couched in such general terms as to render it difficult to understand what error is being pursued. However in oral submissions on the application, the husband elaborated on those grounds.
Grounds 1 and 4
Grounds 1 and 4 are linked. The husband maintained that the wife’s solicitor, having been a Registrar of the Family Court, although having apparently left that position in 2017, had “broken the law” by acting for a party in Family Law proceedings. The husband asserted that the wife’s solicitor had been a “judicial officer” and thus subject to a restriction on appearing in court. In making that submission, the “law” which it is asserted was breached was the Uniform Procedure Act 2005 (NSW). The definition of “judicial officer” in that Act refers us to the Civil Procedure Act 2005 (NSW) and that Act notes that “judicial officer” has the same meaning as in the Judicial Officers Act 1986 (NSW) (“Judicial Officers Act”). Section 3 of the Judicial Officers Act (definition of “judicial officer”) does not include a Registrar of any state court and, axiomatically does not apply to judges of Federal Courts. There is no “law” that prevents a former Registrar of the Family Court appearing in a matter in that Court.
However, that is not the thrust of the challenge which is that the primary judge ought to have recused himself when the former Family Court Registrar acted for the wife instructing Senior Counsel in the proceedings before him. No application was made to the primary judge that he recuse himself. The husband was represented in the proceedings before the primary judge by very experienced solicitors and by Senior Counsel.
Nevertheless, the husband maintained two points – first, it was for the judge to maintain the “integrity of the court and its process” by recusing himself without application, and secondly, he did not at the time of trial before the primary judge have “sufficient evidence” on which to base an application.
What was the evidence? The husband contended that on a day of the proceedings, during his cross-examination, the primary judge adjourned for lunch at 1.00 pm and, having now obtained and viewed CCTV footage, the husband discovered that the former Registrar (his wife’s solicitor), Senior Counsel for the wife and another current Registrar of the court, left the building together, supposedly to have lunch.
The husband explained that this impacted the integrity and transparency of the trial process because the primary judge would have known about an association between the former Registrar, Senior Counsel for the wife and the current Registrar. Although somewhat murky, it seems that this imputed knowledge ought to have caused the primary judge to recuse himself, or perhaps the solicitor to withdraw from the proceedings.
The solicitor for the wife, the former Registrar, submitted that on two occasions applications were made in relation to her position neither of which was pressed.
Clearly then, those representing the husband would have pressed the application if they considered it appropriate.
Leaving that observation to one side, and taking the husband’s assertions at their highest, they do not speak of a need for the primary judge to recuse himself (whether of his own motion or on the application of the husband) nor do they speak to any want of transparency or interference with the proper course of justice.
Grounds 2 and 3
These two grounds may be considered together. Ground 2 contends that the primary judge failed to take into account all of the husband’s evidence and Ground 3 contends that the primary judge failed to give adequate reasons for his decision.
In elaboration of Ground 2, the husband argued that the primary judge called for written submissions on the question of the stay and the husband’s written submissions were not included in the judgment. It must be observed that a primary judge is not required to refer to each and every piece of evidence adduced in the trial (see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 at 385–386). However, what is clear from the reasons is that the primary judge made careful note of the husband’s contentions in support of a stay of his Honour’s orders. At [10] of the stay reasons, his Honour refers to the husband’s affidavit filed on 4 February 2020 in which he made submissions on the errors that affected the conduct of the trial (including I note in passing, the husband’s complaint about the conduct of the wife’s solicitor). Further, his Honour refers at [11] to the husband’s evidence in a further affidavit filed on 17 February which went further to the issue of the stay. That the husband’s submissions were not reproduced does not of itself speak to error especially in circumstances where the primary judge carefully set out the parties’ competing positions in the issue before him.
Ground 3 asserts that the primary judge failed to give adequate reasons for his decision to order a conditional stay.
Having considered the primary judge’s reasons delivered on making the stay, it seems that his Honour gave particular and careful consideration to the relevant statutory and legal constructs in determining the issue of the stay and the reasons do not appear to be wanting in the way suggested by the ground (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24).
Turning then to the test for whether leave to appeal should be granted, the husband’s grounds of challenge to his Honour’s orders do not demonstrate that the sufficient doubt attends the decision to warrant a grant of leave. This being the case, there is no need to consider the second aspect of the test which is that substantial injustice will occur if leave to appeal is not granted.
Even had leave not been required I am of the view that the husband’s grounds and asserted challenges to the primary judge’s orders, even read with a benevolent eye as having been drafted by a self-represented litigant, do not demonstrate sufficient merit and to otherwise reinstate the appeal would be futile.
The application for reinstatement of the appeal will be dismissed.
Costs
The solicitor for the wife sought an order for costs in the event that the husband’s application for reinstatement was dismissed. The amount sought is $3,300 which was assessed in accordance with Sch 3 of the Rules. The husband has been wholly unsuccessful in his application and it is appropriate that a costs order be made fixed in the sum sought.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 17 July 2020.
Associate:
Date: 17 July 2020
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