Lagana and Lagana - [2020] FamCAFC 95

FAMILY COURT OF AUSTRALIA

LAGANA & LAGANA

[2020] FamCAFC 95

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Spousal maintenance – Unexplained and extensive delay – Where the prospects of success of the appeal are limited – Written and oral reasons for judgment – Where it is unclear whether the written reasons for judgment are an edited version of the oral reasons or an entirely separate set of reasons – Application dismissed – Applicant to pay the respondent’s costs in a fixed sum.

Family Law Act 1975 (Cth) s 94AA

Family Law Rules 2004 (Cth) r 22.03

Family Law Regulations 1984 (Cth) reg 15A

Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
O’Connor & Healy [2016] FamCAFC 111
Quant & Bonde (2018) FLC 93-853; [2018] FamCAFC 150
Sanders & Sanders [2020] FamCAFC 42
Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419

APPLICANT:

Mr Lagana

RESPONDENT:

Ms Lagana

FILE NUMBER:

CAC

1995

2018

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

24 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

9 April 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 August 2019

LOWER COURT MNC:

[2019] FCCA 3862

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney (via videolink)

SOLICITOR FOR THE APPLICANT:

Walsh & Blair

COUNSEL FOR THE RESPONDENT:

Mr Howard (via videolink)

SOLICITOR FOR THE RESPONDENT:

Farrell Lusher Solicitors

Orders

The Application in an Appeal filed on 23 March 2020 for an extension of time is dismissed.
The applicant pay the respondent’s costs of the application fixed in the sum of $4,200.85.

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 Lagana & Lagana 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 35 of 2020
File Number: CAC 1995 of 2018

Mr Lagana

Applicant

And

Ms Lagana

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 23 March 2020, Mr Lagana (“the husband”) seeks an extension of time in which to file a Notice of Appeal against the orders of a judge of the Federal Circuit Court of Australia made on 29 August 2019. On that date, his Honour had before him, interim spousal maintenance proceedings brought by Ms Lagana (“the wife”).
At the time of the hearing before the primary judge, interim consent orders were in place which required the husband to pay the wife $730 per week (Order (1) made on 12 December 2018), together with mortgage payments on the property in which the wife was living, the wife’s telephone costs and the private health fund costs for the wife and the parties’ child (Order (2) made on 12 December 2018).
On 29 August 2019, his Honour ordered that, by way of spousal maintenance, the husband pay the wife $1,100 per week. His Honour said at [50] of the written reasons for judgment that “[t]his figure excludes any mortgage or health insurance payment. The focus of the Court is on spousal maintenance, not mortgage or any other payment” (Emphasis in original).
Counsel for the husband accepted that this paragraph indicates that his Honour had in mind that the mortgage payments, the wife’s telephone costs and the private health fund payments were to continue, in addition to the $1,100 per week for spousal maintenance. This is consistent with the fact that his Honour did not discharge the earlier interim consent orders made on 12 December 2018 to that effect and therefore they continued to apply.
However, counsel for the husband did not accept that that paragraph accurately recorded what was said at the time that oral reasons for judgment were given.
This requires an explanation as to the status of the written reasons for judgment provided to the parties, about which, in my opinion, there is considerable doubt.
It is common ground that his Honour gave oral reasons for judgment at the time that the orders were made on 29 August 2019.
According to the submissions made on behalf of the husband, the husband made a commercial decision not to appeal those orders because, as he understood his Honour’s oral reasons, the sum of $1,100 per week included the mortgage payments, the wife’s telephone costs and the private health fund payments.
The wife, however, came to the opposite view and a dispute arose between the parties as to the meaning of the orders in light of the oral reasons.
A conciliation conference was unable to resolve the matter.
On 11 October 2019, the wife sought enforcement of the orders made on 29 August 2019, by filing an Application in a Case seeking recovery of what she claimed the shortfall to be based on her understanding of the orders.
On 12 December 2019, the husband instructed his solicitors to ask the primary judge to provide written reasons for the decision. Accordingly, on that date, his solicitors wrote to the associate to the primary judge and after putting the husband’s position said “[w]e request that his Honour provided [sic] written reasons for his Orders of 29^th August 2019. That may resolve this matter for the parties without the need for a further interim hearing” (Emphasis removed) (at [7]).
It is not clear to me why the parties or the solicitors for the husband did not seek to relist this matter before his Honour to remove any doubt as to the intent of the orders.
His Honour obliged with a set of written reasons for judgment which were provided to the parties on 25 February 2020, although the written reasons are described as having been delivered on 29 August 2019. Self-evidently, reasons in that form could not have been given at that time. This is because at [1]–[11] the primary judge deals with the husband’s request to provide written reasons and his Honour’s displeasure at what he regarded as an “improperly, flagrantly and [seemingly] languidly delayed request” (at [11]). At [12]–[15], his Honour then points to the difficulties in providing written reasons for judgment so long after the hearing. These parts of the judgment could not have formed part of his Honour’s earlier oral reasons and it raises the real question as to whether the balance of the judgment is an edited version of the oral reasons given on 29 August 2019 or whether it is an additional and entirely separate set of reasons.
In my opinion, if they are the latter, then they have no status as reasons for judgment whatsoever. See the discussion of authorities generally in Sargent & Selwyn (2017) FLC 93-812; Quant & Bonde (2018) FLC 93-853 at [19]–[24]; and the authorities discussed below.
The usual course to be followed in relation to obtaining a written version of oral reasons for judgment is that a request is made to the judge to provide a copy of the reasons. That judge then obtains a copy of the transcript, settles it and provides a copy of the written reasons for judgment to the parties. That settlement by the judge does not involve re-writing the judgment, but merely a very limited form of editing. As the following authorities make clear, a judge is entitled to correct matters of expression and the clarity of the reasons but cannot make any changes to their substance (Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 at [193]–[195]; Todorovic v Moussa (2001) 53 NSWLR 463 at [41]–[42]; O’Connor & Healy [2016] FamCAFC 111 at [17]–[19]); Sanders & Sanders [2020] FamCAFC 42 at Addendum [1]–[10]).
It is also clear from those authorities that in any particular proceeding only one set of reasons for judgment may be provided.
I am informed, however, that apparently the practice of providing a separate set of written reasons for judgment is common place in the Federal Circuit Court of Australia. In my view, that is not a correct procedure for the above reasons.
Nonetheless, despite these misgivings, both parties presented their arguments as to the merits of the appeal on the basis of the written reasons for judgment. I shall return to that aspect in due course.

Application for an extension of time

The principles to be applied in an application for an extension of time in which to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) at 480-481, 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: 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the Family Law Rules 2004 (Cth) (“the Rules”) will work an injustice.
Any appeal from the primary judge’s orders should have been filed on or before 26 September 2019 (r 22.03 of the Rules).
The husband explained his delay by saying that he has acted promptly by bringing this application within 28 days of the written reasons for judgment becoming available to him. Ordinarily, this is a circumstance which would carry considerable weight as it can hardly be expected that a person can form a considered view as to whether to appeal or not until they have available to them the reasons for judgment in a form that can be properly considered – that is to say, the reasons in writing.
This is not, however, a usual case. Having had the benefit of hearing the reasons for judgment delivered orally and receiving the orders on 29 August 2019, the husband made a considered decision not to appeal, which he said was for “commercial reasons”. The husband formed a view as to what the orders meant, in light of the oral reasons and he was happy to proceed on that view. He maintained that view after being challenged by the wife’s solicitors and even after the wife filed an enforcement application which sought payment of arrears, consistent with her understanding of the orders.
It was only approximately a month later, on 12 December 2019, that the husband asked his solicitors to seek written reasons for judgment. By that stage, over three and a half months had passed since the orders were made. That is an extensive delay which is not explained at all.
To complete the history, the wife’s enforcement application came before another judge of the Federal Circuit Court of Australia on 18 March 2020 and orders were made that were consistent with the wife’s application.
I turn to the merits of the appeal.

Merits of the appeal

As I have already recorded, there is a dispute between the parties as to whether the order for the payment of spousal maintenance in the sum of $1,100 per week, was in addition to the payment of the mortgage, the wife’s telephone costs and the private health fund payments for the wife and the parties’ child. However, the only sensible reading of paragraph [50] of the written reasons for judgment (outlined above), as properly accepted by counsel for the husband, is that the spousal maintenance was to be paid in addition to those payments. This is consistent with there being no order discharging the interim consent order made on 12 December 2018 requiring them to be paid.
There was a suggestion by counsel for the husband that this paragraph or a similar paragraph did not appear in the oral reasons for judgment. There was no evidence to that effect, such as an affidavit from a person present at the time that the oral reasons were given. The transcript of the oral reasons, as settled by the primary judge, was not sought. In exceptional cases, the unedited transcript can be obtained by an appellate Court. The unusual procedure followed by both the husband’s solicitors and the primary judge to obtain a copy of the reasons has added to the confusion. It is not clear whether the bulk of the written reasons for judgment produced by his Honour consists of the settled oral reasons or are a fresh set of reasons.
The position is, therefore, for many reasons, most unsatisfactory, however I can only proceed on the basis of the material before me. Therefore, it cannot be asserted in my view that there was any confusion in the orders that would give rise to an appealable error.
It is suggested by the husband that his Honour failed to characterise the other payments (the mortgage payments, the wife’s telephone costs and the private health fund payments) being made (presumably, as to whether they were spousal maintenance or a payment made on some other basis), in either the orders made by his Honour on 29 August 2019 or, importantly, the earlier interim consent orders made on 12 December 2018. It is true that the consent orders made on 12 December 2018, as to both the $730 per week and the mortgage payments, the wife’s telephone costs and the private health fund payments, were “to be characterised at the interim hearing” (Order (1) and (2) made on 12 December 2018).
Whether a subsequent judge would take up that invitation is a matter for that judge. I do not see how a judge could be obliged, by an earlier order, to follow such a course. Further, subsequent interim consent orders made on 5 April 2020, provided that the payments be characterised at the final hearing, which is a more common and obvious course to follow.
I do not see that an appealable error arose because the primary judge failed to characterise the payments pursuant to the consent orders made on 12 December 2018.
It is then submitted by the husband that the written reasons for judgment are inadequate because they do not deal with the reasonable needs of the wife and the husband’s capacity to pay any shortfall between the wife’s needs and income.
This, of course, was an interim spousal maintenance hearing, where the reasons for judgment need not be as extensive as one might expect in a final hearing. Nonetheless, the primary judge recorded at [31] that “the [h]usband has conceded that the first step in such application of establishing ‘need’ has been met in the current circumstances. Respectfully, he could hardly do otherwise.”
Further at [42] of the reasons, his Honour expressly dealt with particular expenses claimed by the wife, which the husband said were not reasonable.
The primary judge then said “[n]ow that the threshold issue of need has been conceded, the Court’s concerns and focus must necessarily be on questions of capacity and what is appropriate to pay in all of the circumstances” (at [45]).
The primary judge subsequently turned to deal with what was said by his Honour to be a significant lack of disclosure by the husband (at [48]).
In order to understand the following passage from his Honour’s reasons, it is necessary to understand that the husband was self-employed and running a business. The business records, therefore, would give a good indication of the husband’s financial capacity. His Honour said:
48.Not only is the lack of disclosure a significant concern, but (as just mentioned) equally so is the lack of explanation for it. Why there have been no bank statements since March was not explained. Why there has been no information regarding the Husband’s situation with the ATO also remains unexplained. In my view, these are very concerning gaps in the evidence before the Court. There may be simple and straightforward explanations, but I am not aware of them. I am concerned also because the Husband complains regularly that he cannot afford to pay spousal maintenance to the Wife, at least in the amounts sought by her.
His Honour also had before him, the husband’s Financial Statement filed on 12 December 2018, which showed that he had a surplus of income over expenditure in the sum of $467 per week.
Taking the lack of financial disclosure, particularly bank statements, and that figure into account, his Honour determined that the husband had the capacity to make a payment to the wife of $1,100 per week. In doing so, his Honour obviously accepted the husband’s expenditure, as outlined in his Financial Statement, to be reasonable.
The reasons for the orders can therefore be readily discerned.
Due to the uncertainty as to the husband’s financial position, his Honour could not actually identify the income of the husband or quantify his actual financial capacity. However, if the position was as the primary judge found it to be and the issue of non-disclosure precluded such a course, then his Honour was entitled to proceed as he did.
Accordingly, I consider that there is little weight in the husband’s submission that the above findings were contrary to the primary judge’s intention not to make any relevant findings at the hearing of an interim application, which needs to be seen in its full context. His Honour said:
40.In the circumstances here of an interim application, I cannot and do not make any relevant findings. At its highest, it seems to me I can observe however, as already noted, that there are significant gaps in the Husband’s evidence and in his disclosure. This is so despite repeated requests by the Wife’s lawyers for the Husband to provide specific information regarding, for example, access to taxation records. The reason, or reasons, for the lack of disclosure have again not been explained, save for a less than detailed comment during argument by the Husband’s Counsel that everyone had been “deluged” with paper. Whatever the nature and extent of that “deluge”, unfortunately there appears to be still a significant number of parched areas where the deluge has not sated the relevant ground of disclosure.

The prospects of success of any appeal, as identified above, are low.

Conclusion

This is an appeal from an interlocutory order which is not a child related matter and, accordingly, leave to appeal is required (s 94AA of the Family Law Act 1975 (Cth); reg 15A of the Family Law Regulations 1984 (Cth)). Relevant to the issue of whether any substantial injustice has occurred, is the significant delay by the husband in seeking the written reasons for judgment, as explained earlier. I also take into account that this is an interim spousal maintenance order and that if the parties’ circumstances have changed, so that they justify a different order, the Court can be approached accordingly.
Although, I am not satisfied that any appeal by the husband would be futile, for the reasons that I have explained, it has limited prospects of success. Whilst I have misgivings about the status of the written reasons for judgment, no reliance was placed upon those concerns.
The delay in seeking a written version of the reasons for judgment before considering a possible appeal was extensive and taken only after a number of further Court events relating to the enforcement of the relevant orders. The wife was, of course, put to expense in those proceedings.
Further, the husband had earlier made a deliberate decision not to appeal for “commercial reasons”.
These considerations weigh very heavily against granting the husband an extension of time to file a Notice of Appeal.
Taking these matters into account, I am not satisfied that the interests of justice require an extension of time to be granted and the husband’s application will be dismissed with costs.
In the event that the application for an extension of time was dismissed, it was conceded that an order for costs will be appropriate. The parties subsequently reached an agreement that the husband will pay the wife’s costs of the application fixed in the sum of $4,200.85.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 April 2020.

Associate:

Date: 24 April 2020