LARKINS & LARKINS

Case •

[2010] FamCAFC 145

•

13 August 2010

FAMILY COURT OF AUSTRALIA

LARKINS & LARKINS [2010] FamCAFC 145

FAMILY LAW - APPEAL – Application to extend time to appeal – Where there is a delay in the publishing of written reasons – Application opposed by the husband on the basis of prejudice and lack of merit –  Dispute over the calculation of the property pool and superannuation entitlements – Where justice ensures the right to appeal – Application allowed.

FAMILY LAW - COSTS – The wife to pay the husbands costs of the application for leave – Costs be paid from the wife’s share of the net proceeds of the former matrimonial home.
Family Law Act 1975 (Cth) s 75(2)
Clivery & Conway [2010] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
APPELLANT: Mrs Larkins
RESPONDENT: Mr Larkins
FILE NUMBER: TVC 215 of 2009
APPEAL NUMBER: NA 77 of 2010
DATE DELIVERED: 13 August 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: May J
HEARING DATE: 12 August 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 4 February 2010
LOWER COURT MNC: [2010] FMCAfam 646

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Carew
SOLICITOR FOR THE APPELLANT: South & Geldard Solicitors
COUNSEL FOR THE RESPONDENT: Mr Betts
SOLICITOR FOR THE RESPONDENT: Wilson Ryan Grose Lawyers

Orders

  1. That the wife be granted leave to file a notice of appeal against the order made on 4 February 2010 in the Federal Magistrate Court at Townsville within seven days of 13 August 2010.

  2. The wife pay the costs of the husband of the application for leave to be assessed. Such costs be paid by the wife from her share of the net proceeds of sale of the former matrimonial home.

IT IS NOTED that publication of this judgment under the pseudonym Larkins & Larkins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 77 of 2010
File Number: TVC 215 of 2009

Mrs Larkins

Appellant

And

Mr Larkins

Respondent

REASONS FOR JUDGMENT

Introduction

  1. An application was filed on behalf of the wife on 13 July 2010 asking she be granted leave to file an appeal out of time.

  2. The orders the wife seeks to appeal are those made on 4 February 2010 in the Federal Magistrates Court in Townsville by Federal Magistrate Coker. The orders were final property settlement orders.

  3. The husband in his response and supporting affidavit filed 9 August 2010 submits that leave should not be granted. As is observed in his written submission the appeal if filed would be four months out of time.

History

  1. After hearing the submissions of the parties on 2 & 3 February 2010 orders were made on 4 February 2010, ex tempore reasons were provided. Published reasons for judgment were delivered on 24 June 2010.

  2. Since the delivery of the judgment there has been communication between the solicitors in regard to the orders, with a view to agreement about the sale or transfer of the former matrimonial home.

Leave out of time application

  1. In Clivery & Conway [2010] FamCA 1435 the well known principles referable to such have applications was discussed:

    14.The principles emerging from Gallo v Dawson may be summarised as follows:

    ·The grant of an extension of time is not automatic.

    ·The object is to ensure that Rules which fix times do not become instruments of injustice.

    ·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.

    ·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.

The merits of the appeal

  1. As is obvious, if leave is not granted the wife will be unable to appeal.

  2. If an extension of time is given, the wife seeks to appeal orders 2, 5 and 7 of the order made by Federal Magistrate Coker on 4 February 2010. The orders relevant to the proposed appeal are as follows;

    (1)That the Husband, within sixty (60) days of today, transfer to the Wife his right, title and interest in the former matrimonial home described as [Lot 19] …

    (2)That in exchange for the transfer referred to in the preceding order, the Wife will, within sixty (60) days from the date of this order:

    (a)cause the mortgage number [7…] registered against the former matrimonial home in favour of the Australia and New Zealand Banking Group Limited to be refinanced so as to discharge the Husband from all liability thereunder; and

    (b)      will pay to the Husband the sum of $209,079.00.

    (3)That in the event that the Wife is unable to refinance the mortgage as required in order 2 herein, each of the parties shall at the expiration of the period of sixty (60) days from the date hereof do all things necessary to list the property for sale with such agents as the Husband and the Wife may agree upon at a listing price of no less than $460,000.00 or such higher listing price as the parties may agree up.

    …

    (5)That upon the sale of the former matrimonial home, the proceeds of sale shall be applied as follows:

    (a)As to such sum as is necessary to discharge all selling costs including agent’s commission, advertising including the reimbursement to either of the parties to advance monies for advertising and vendor’s legal costs.

    (b)As to such sum as is necessary to discharge the mortgage to the ANZ Bank.

    (c)As to the balance to be divided between the Husband and the Wife so as to effect a distribution of matrimonial property as between the Husband and the Wife upon the distribution as to 60 percent to the Husband and 40 percent to the Wife, such calculation to include retention by the Husband of property valued at $50,991 and retention by the Wife of property valued at $27,459.

    …

    (7)That pursuant to paragraph 90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the Husband’s interest in QSuper Superannuation Fund the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these Orders, in the sum on $92,136 and that there be a corresponding reduction to the entitlement the Husband would have had in the QSuper Superannuation Fund but for this Order.

  3. In the judgment the pool of assets was described as being agreed in value and identity and that the net value was $433,450. A schedule of assets would have been helpful. Ultimately, the Federal Magistrate found that the orders would reflect a 60/40 division in favour of the husband. This may have been properly within his discretion.

  4. It is submitted however that a particular problem is how the Federal Magistrate dealt with the superannuation.

  5. Counsel for the applicant and respondent devoted a considerable part of their written and oral arguments to the merits of the appeal. Counsel for the wife explained that the proposed notice, should leave be granted, would be amended to include a challenge to the adequacy of reasons. In essence, the grounds of appeal would:

    ·challenge the approach of the Federal Magistrate and the method with which he dealt with the husband’s superannuation;

    ·challenge the conclusions in relation to the contribution of the wife during the marriage;

    ·assert that the Federal Magistrate had failed to take into account a number of important factors, including the husband’s entitlement to long service leave.

  6. In response it was suggested by counsel for the husband that these merely amounted to challenges about matters of weight, especially the Federal Magistrate’s findings about s 75(2) matters. It was also submitted that the reasons were clear and that this was a “borderline case” in relation to the success of an appeal on the basis of merit.

  7. The grounds of appeal contained within the wife’s proposed notice of appeal disclose some proper arguments on appeal. In dealing with this application it is not necessary for me to come to any other conclusion. The real issues raised, relate to whether there is a proper explanation for the delay and the possible prejudice to the husband should leave be granted.

Explanation for the delay

  1. In the affidavit of the wife filed in support of the appeal she provided the following information. The wife and her legal representatives were not present in court on 4 February 2010 as they had returned to Rockhampton. With his Honour’s leave, the solicitor acting for the wife attended by telephone and heard the oral judgment.

  2. After receiving the judgment on 4 February 2010 the wife’s solicitor contacted the wife and informed her of the Federal Magistrate’s decision. The wife expressed her desire to appeal immediately. This was not communicated to the husband or his solicitor.

  3. Not surprisingly, the wife decided to wait for the reasons for judgment to be published before seeking her solicitor’s and counsel’s advice on the prospects of success of an appeal. One of the reasons for doing so was to avoid incurring any unnecessary costs by either party.

  4. On 15 February 2010 the wife instructed her solicitor to order the transcript of the proceedings, as the reasons for judgment had not yet been published. In addition the wife’s solicitors made numerous enquiries as to when the reasons for judgment would be made available. These included a phone call to the Federal Magistrate’s associate on 22 February 2010, a facsimile on 19 March 2010, and a phone call on 12 April 2010. The husband was also actively seeking the reasons for judgment.

  5. The reasons for judgment were eventually received by her solicitors on 24 June 2010 and advice was sought as to the prospects of an appeal.

  6. The husband in his opposition to the extension of time does not accept that the wife could not have considered the reasons given by the Federal Magistrate on 4 February 2010, and that the wife could not have filed an appeal in general terms. In addition, he did not become aware of the wife’s intention to appeal the orders until 8 July 2010; some five months after the reasons for judgment were given orally. This complaint about lack of notice is made in the context of letters between the solicitors after the judgment, with a view to settling the matter.

  7. The wife quite properly in her affidavit acknowledges that she was informed by her solicitor that she could file a notice of appeal prior to obtaining the reasons to “preserve her rights”. She was reluctant to do so as this may incur costs and be without the benefit of advice from counsel.

  8. I consider the explanation for the delay in filing the notice of appeal is satisfactory. It is however entirely understandable that the husband may have felt that there was an absence of good faith. That is not alone a reason for denying the wife an opportunity to appeal, especially in the circumstances of the matter, namely the settled judgement not being available. It is a reason, however for the wife paying the husbands costs of this application.

Possible prejudice

  1. A letter dated 6 July 2010, was sent to the husband’s solicitors informing him of the wife’s desire to file an appeal. It was requested that the husband consent to an extension of time to facilitate the filing of an appeal and that he identify any prejudice that may be caused. It was clear in the letter that the filing of the notice of appeal would not be accompanied by a stay and that it was intended that arrangements should continue about the sale of former matrimonial home.

  2. In response, the solicitor for the husband wrote on 8 July 2010 indicating that there would be opposition and giving particulars of how the husband would suffer prejudice.

  3. The husband submits that he has suffered prejudice and hardship from the delay. Namely, that he has not been able to obtain permanent accommodation and has consequently been paying rent. Further, by the wife not complying with the orders, the housing loan debt has increased and the husband has not been reimbursed for valuations and legal costs expended prior to trial. It is said that the husband’s financial circumstances have altered, for the worse.

Conclusion

  1. Without considering the merits of the appeal any more than is necessary for this application, it can be seen that the judgment may have some deficiencies.

  2. Whilst acknowledging that the delay of the wife in filing the notice of appeal has no doubt caused the husband inconvenience and financial loss, it cannot be said that if leave is granted there is prejudice to the husband. The former matrimonial home, which apparently will be sold, will remain on the market. The impact of the appeal on the husband will apparently cause no delay in the execution of the orders.

  3. It seems that the best case scenario should the wife’s appeal succeed is that the sum she would receive increase by $50,000. The risk of the result of the appeal is the wife’s, apart from issues of costs which may affect each of them.

  4. The period of delay is relatively slight. It may cause the wife a substantial injustice should she be deprived the opportunity to appeal.

Costs

  1. As already observed in these circumstances the wife should pay the costs of the husband. Counsel for the wife correctly submitted that it would be difficult to resist such an order. As the wife currently is without income or funds the payment should be made from her share of the net proceeds of the former matrimonial home.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate:

Date:  13 August 2010

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

1