Kivlen and Kivlen - [2009] FamCAFC 80

FAMILY COURT OF AUSTRALIA

KIVLEN & KIVLEN

[2009] FamCAFC 80

FAMILY LAW - APPEAL - Application to extend time to appeal - parties without legal representation - the Husband attempted to file a Notice of Appeal within the time prescribed by the Rules - the right of the Wife to obtain the benefit of the judgment and also the desirability of finality of the litigation – leave granted to extend the time within which to file a Notice of Appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Magistrates Court Rules 2001 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257
McMahon and McMahon (1976) FLC 90-038
Cassom and Cassom (1988) FLC 91-962
Tormsen and Tormsen (1993) FLC 92-392

APPELLANT:

Mr KIVLEN

RESPONDENT:

Ms KIVLEN

FILE NUMBER:

DGC

439

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

19 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

14 and 18 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 December 2008

LOWER COURT MNC:

[2008]FMCfam1282

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Husband in person

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Wife in person

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

The Husband be granted leave to extend the time within which to file a Notice of Appeal against the order for property settlement made by Federal Magistrate on 5 February 2009.
The Husband file by 4.00 pm on Friday 22 May 2009 the Notice of Appeal.

IT IS NOTED that publication of this judgment under the pseudonym KIVLEN & KIVLEN 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: SA 36 of 2009
File Number: DGC 439 of 2008

Mr KIVLEN

Appellant

And

Ms KIVLEN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an application by Mr Kivlen (“the Husband”) seeking leave to extend the time to file a Notice of Appeal against orders made by a Federal Magistrate. The Respondent is Ms Kivlen (“the Wife”).
On 14 November 2008 there was a hearing before Federal Magistrate Burchardt of applications for property settlement. At the conclusion of the hearing the Federal Magistrate reserved judgment.
In Reasons delivered on 16 December 2008 the Federal Magistrate said:
35It then falls to the Court to take a step back and consider whether a 77 ½ and 22 ½ percent split to the parties is just and equitable. In my view, this was a short relationship in which the Wife made the vast majority of the financial contribution. In my view a 77/23 split is appropriate.
36.The parties are to prepare minutes of orders to give effect to these Reasons for Judgment.
It was unfortunate the Federal Magistrate did not pronounce judgment given that he found that the assets of the parties consisted of the following:
$
·the Queensland Property  300,000.00
·the Victorian Property  306,000.00
·Superannuation of Wife  17,000.00
·Superannuation of Husband  6,000.00
Total  629,000.000
Less
·Mortgage, the Queensland Property                 152,000.00
·Mortgage, the Victorian Property   89,000.00
Total   (241,000.00)
Balance  388,000.00
No explanation was given by the Federal Magistrate as to why he was not able to pronounce judgment at the time his Reasons were delivered. In my view, ordinarily there should be some reason for why such an approach is adopted. As often happens when such a practice is adopted there are delays and problems can arise. In this case the parties returned to court and after hearing submissions on 5 February 2009 the Federal Magistrate made the following orders:
1.That the Respondent Husband pay to the Applicant Wife the sum of $64,000.00 ("the payment") on or before the 16^th February 2009 ("the date").
2.That contemporaneously with the payment:
(a)      The Applicant Wife do all acts and sign all such documents as may be required to transfer to the Respondent Husband at the expense of the Respondent Husband all of her interest in the property known as [The Queensland Property] in the State of Queensland being the whole of the land more particularly described in Title Reference [title reference] and having an agreed value of $300,000.00.
(b)    That the Respondent Husband refinance the Mortgage No. [mortgage number] secured on the said property by the Commonwealth Bank in the approximate sum of $152,000.00 into his name only and indemnify the Applicant Wife against any liability to the mortgage and all rates taxes and outgoings of or with respect to
3.In the event that the whole of the payment has not been made by the Respondent Husband by the payment date the parties shall do all acts and things and sign all deeds, documents and writings necessary to cause the home, to be sold by private treaty at a price agreed to by the parties in writing or failing agreement at a price nominated by an independent Estate Agent nominated by the President for the time being of the Real Estate Institute of Queensland. The proceeds of the sale shall be distributed as follows:
(a)     to pay all legal costs and expenses in relation to the sale;
(b)    to discharge the mortgage to the Commonwealth Bank;
(c)    to pay all outstanding taxes and council and water rates and charges;
(d)    so much of the payment as is outstanding together with interest thereon at the rate of 11% adjusted monthly from the date to the wife;
(e)    to pay the Husband the balance.
4.That the Applicant Wife retain her property known as [the Victorian Property] in the State of Victoria and being the whole of the land more particularly described in Certificate of Title Volume [number] Folio [number] and having an agreed value of $306,000.00, and the Applicant Wife indemnify the Respondent Husband against any liability pursuant to the mortgage registered on the property by the Commonwealth Bank in the sum of approximately $89,000.
5.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
(a)     Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders.
(b)    Insurance policies to become the sole property of the beneficiary named therein.
(c)    Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
(d)    Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(e)    Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
6,That the Application of the Applicant Wife filed on the 11 February 2008 and the Response of the Husband filed on 29 February 2008 be otherwise dismissed.
THE COURT NOTES:-
A.That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
On 5 February 2007 the Federal Magistrate also heard and determined an application by the Wife for costs. The Wife sought costs of the hearing on 5 February 2009 which arose because the parties were unable to agree to the form of the orders that should be made to reflect the Reasons of the Federal Magistrate. The Federal Magistrates said that the reason he required the parties to produce the minute was that the circumstances of the case were such that he felt it appropriate to give the parties every opportunity “to explore mechanisms which might be bought to bear to enable both parties to retain the property that they were primarily concerned with”. The Federal Magistrate noted that the parties were unable to agree and continued that the Wife was wholly successful because the orders she sought reflected, what in the absence of agreement, was a relatively straightforward outcome. However, the Husband had dissatisfaction with the Reasons and had articulated a number of critical matters in an email which he sent to the Federal Magistrate on 17 December 2008. Although the Federal Magistrate observed that the Husband was wholly unsuccessful, in “this aspect of the proceedings” both parties were “in many ways someway impecunious”.
On 5 March 2009 the Husband sent by pre-paid post a Notice of Appeal to the Appeals Registry of the Family Court of Australia in Melbourne which was received by the Court on 6 March 2009. By letter dated 10 March 2009 the Regional Appeal Registrar wrote to the Husband and advised that the Notice of Appeal could not be accepted for filing as it was not received within 28 days specified by r 22.03 of the Family Law Rules2004 (“the Rules”) and the Husband had also not provided the filing fee of $840.00 or applied for a waiver or exemption from payment. The Regional Appeal Registrar however told the Husband that the application was submitted one day after the specified time and suggested that he seek the Wife’s written consent to the late filing of the appeal. The Regional Appeal Registrar went on to give advice to the Husband as to what he should do in the event that such consent from the Wife was not forthcoming. The Wife informed me and I accept that at no time did the Husband approach her seeking her consent to the late filing of a Notice of Appeal.
Then on 24 April 2009 an Application in an Appeal was filed by the Husband in which he sought that he be “granted more time to lodge” a Notice of Appeal. The Application was supported by an affidavit sworn by the Husband on 21 April 2009.
In the affidavit in support, the Husband simply said that he was requesting that he be permitted to lodge the Notice of Appeal more than 28 days after the day the final orders were made and that he did not receive such orders from the Court until 3 April 2009. He testified that he was “instructed by a court proceedural [sic] officer” that he needed to send a copy of any orders he sought to appeal and that he had to wait until he received them from the Court. The Husband informed me that he did not receive from the Federal Magistrates Court a sealed copy of the orders of 5 February 2009 until on or about 3 April 2009. He also contended that he received legal advice that before he could file an application to extend time to file a Notice of Appeal he had to obtain a sealed copy of the orders of 5 February 2009.
On 24 April 2009 the Husband filed a proposed Notice of Appeal. In the Notice of Appeal there are six grounds of appeal.
In the event that he was successful, the Husband seeks the following orders:
1.That 15% loading be added to my percentage of the pool to provide for me in the future while my illness’s prevent me from working. Making a 62/38 in the wifes favour.
2.That $28,000 of debts to banks be paid before division of equity.
3.That $18,000 of debts borrowed from the husbands mother be Paid before division of equity.
4.That The super annuation i received during the relationship and the super annuatio [sic] I used to make Mortgage payments be refunded to me before division of equity.
4.That Remaing [sic] Equity be divided 62/38 in the wifes favour. With Both parties given the optunity to retain there respective house.
5.That the date for settlement be extended 2 months after any appeal hearing.
On 8 May 2009 a Response to an Application in an Appeal was filed by the Wife in which she seeks that the Husband’s application be dismissed. In support of her Response the Wife swore an affidavit on 6 May 2009.
The Wife testified that she received the final orders on 5 March 2009 and believed that the Husband should have received identical orders about the same time. The Wife testified that she believed that she would be prejudiced if the application was allowed because the bank is wanting to issue a power of sale over the Queensland Property and the Victorian Property. The Wife annexed to her affidavit a copy of a facsimile transmission sent to her solicitor on 24 April 2009 by the Commonwealth Bank in which it was said that there had not been receipted payments to home loan [home loan number] since 29 October 2008 and that the Bank proposed to issue power of sale notices. The Wife testified that the Husband had not made a mortgage payment since October 2008 and that was the reason why the Bank proposed to issue a power of sale. The Wife continued that she believed that the orders made on 5 February 2009 were “fair and reasonable”. She testified that on 7 April 2009 she arranged for a real estate agent from Queensland to go the Queensland Property so that it could be placed on the market for sale and the Husband refused to sign a sale authority.
Both parties appeared before me without legal representation. As well they appeared before me by use of telephone conference facility.

RELEVANT PRINCIPLES

In Gallo v Dawson (1990) 93 ALR 479 McHugh J said at 480 “The grant of an extension of time… is not automatic…” and citing the decision of McInerney J in Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262 said “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”. The discretion to extend time is given for the purpose of avoiding an injustice and the court must determine whether justice as between the parties is best served by granting or refusing the extension sought.
The discretion is unfettered and must be exercised having regard to the facts of the case. In exercising the wide discretion various authorities have identified relevant considerations and they include the history of the proceedings, the conduct of the parties, the nature of the litigation, the right of the respondent to the application to retain the benefit of the judgment, the desirability of finality of the litigation; the consequences to the parties of the granting or refusal of the application, whether any hardship suffered by the respondent to the application may be able to be compensated for and injustice avoided by putting the applicant on terms; whether there is sufficient explanation for failure to file and serve a Notice of Appeal within time and whether the grounds of appeal raise a substantial issue, that is an issue that would materially effect the outcome of the case if resolved in the applicant’s favour: see Gallo v Dawson (supra); McMahon and McMahon (1976) FLC 90-038; Cassom and Cassom (1988) FLC 91-962 and Tormsen and Tormsen (1993) FLC 92-392.

CONCLUSION

I accept that the Husband attempted to file a Notice of Appeal within the time prescribed by the Rules. I accept that the Notice of Appeal was received by the Court only one day after the expiration of the time within it should have been filed. I also accept the Husband’s explanation as to why he did not file until 24 April 2009 the Application in an Appeal seeking to extend the time within which to file a Notice of Appeal.
Although I have some concerns about the grounds relied upon in the Notice of Appeal, I accept that given the Husband does not have legal representation, a consideration of the grounds of appeal do reveal that the Husband complains about errors made by the Federal Magistrate including errors of fact.
I take into account the right of the Wife to obtain the benefit of the judgment and also the desirability of finality of the litigation. It does cause me concern that there may be ongoing litigation in circumstances where the parties only cohabited between April 2002 and September 2005 and they have what I propose to treat as a modest asset pool. I also observe that in his Reasons of 5 February 2009 in relation to the oral application for costs the Federal Magistrate considered that both parties “in many ways” are “somewhat impecunious”.
It is also not entirely clear to me what outcome the Husband is seeking to achieve. In his proposed Notice of Appeal he appears to be seeking that the net assets be divided as at 62/38 in favour of the Wife. The Federal Magistrate proposed an outcome whereby the Wife receives 77 per cent and the Husband receives 23 per cent. I accept however that there maybe controversy as to what the net assets comprise. I also observe that there are two young children who are primarily cared for by the Wife.
I also take into account that a mortgagee has given notice of intention to exercise a power of sale and this may result in the necessity for interim relief pending the hearing of any proposed appeal.
Notwithstanding my concerns about this matter, I have come to the conclusion that the Husband should be granted leave to extend the time within which to file a Notice of Appeal. On balance I cannot deny that he attempted to file a Notice of Appeal within the time prescribed by the Rules and that ultimately it was received only one day after the expiration of the time within which to file a Notice of Appeal. However, I emphasise that because the Husband has succeeded in this application he should not assume that this success is indicative to what may happen in relation to his proposed Notice of Appeal. It may be that he fails, in which event he may also then be liable to pay any costs.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: Michael Fogarty

Date: 19 May 2009