LEISTER & LEISTER
[2019] FamCAFC 121
•18 July 2019
FAMILY COURT OF AUSTRALIA
| LEISTER & LEISTER | [2019] FamCAFC 121 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENTION OF TIME – Where the applicant husband seeks an extension of time in which to appeal the primary judge’s orders – Where the husband failed to attend the hearing before the primary judge – Where the husbands explanation is not sufficient to explain the delay in bringing the appeal – Prejudice to the respondent wife – Where the appeal has such limited prospects of success it would be futile to grant an extension of time – Application dismissed – Costs orders in favour of wife. |
| Family Law Rules 2004 (Cth) r 22.03 |
| Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; [1996] HCA 25 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Leister |
| RESPONDENT: | Ms Leister |
| FILE NUMBER: | BRC | 569 | of | 2016 |
| APPEAL NUMBER: | NOA | 38 | of | 2019 |
| DATE DELIVERED: | 18 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 11 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 January 2019 |
| LOWER COURT MNC: | [2019] FCCA 76 |
REPRESENTATION
| THE APPLICANT: | In person (via video link) |
| SOLICITOR FOR THE RESPONDENT: | Mr Hawkes of Hawkes Lawyers (via video link) |
Orders
The application for extension of time in which to appeal orders made on 25 January 2019 is dismissed.
The applicant husband to pay the respondent wife’s costs of and incidental to the application in the sum of $2,200 within 42 days of this order, failing payment in that time, such sum to be paid direct to the wife from the husband’s share of the proceeds of sale of the property at D Street, Suburb C, Queensland.
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 Leister & Leister 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: NOA 38 of 2019
File Number: BRC 569 of 2016
| Mr Leister |
Applicant
and
| Ms Leister |
Respondent
REASONS FOR JUDGMENT
Mr Leister (“the husband”) seeks leave to appeal against parenting and property settlement orders made by a judge of the Federal Circuit Court of Australia on 25 January 2019. The husband and Ms Leister (“the wife”) were married in 2003 having met in Country A in 2002. After their marriage the parties moved to live in Australia. There is one child of the relationship who is presently 14 years of age. The parties separated in 2015.
Relevant to the consideration of this issue is the history of the litigation which resulted in the orders from which the husband seeks to appeal.
The husband commenced parenting proceedings in relation to the child in January 2016 and interim orders were made by consent in March 2016 as to the husband spending time with the child. In about June 2016 the husband sought property settlement orders. Although the husband had been legally represented up to that time, he became self-represented in July 2016. Thereafter, as the primary judge’s reasons demonstrate, orders made requiring disclosure and for the parties to attend mediation were not complied with by the husband. In May 2017 the wife sought interim property orders and the husband attended on the return date of that application.
In preparation for the hearing of the property matters, the Court ordered that the various pieces of real estate situated in Australia, Country A and Country B be valued and the husband was ordered to provide details of the disposition of the proceeds of the sale of a property in Australia. Equally, the husband was non-compliant with the orders made by the Court to ready the parenting issues for hearing, failing to attend the interview necessary to the preparation of a Family Report.
Although the wife filed all of the necessary pre-trial documents, the husband did not. However, on the morning of the first day of the final hearing of both the property and parenting issues, the husband appeared before the primary judge and sought an adjournment. Her Honour’s reasons indicate that after allowing the matter to be stood down for a while to enable the parties to have some discussions, when the matter resumed the husband did not appear and the matter proceeded in his absence.
Although her Honour heard the matter in the husband’s absence, it is to be noted that she noted the orders sought by the husband both in relation to parenting and as to property and despite his non-compliance with directions for filing a trial affidavit, her Honour had regard to an application and, although it is not entirely clear, perhaps an affidavit filed by the husband in earlier proceedings. It is clear then that her Honour, to the extent that she could, took into account at least that much of the husband’s case.
As I have indicated, her Honour had the benefit of a Family Report in preparation of which the report writer had interviewed the mother and child. The father declined to make himself available on the nominated date to be interviewed and thus he was not interviewed. The Family Report recommended that the child live with the mother, the parties have equal shared parental responsibility and the child spend time with the father.
Her Honour made orders broadly in line with the recommendations of the Family Report writer, and further made property orders concluding that the husband pay $201,016 to the wife, in default that the property that was the parties’ marital home be sold and from the proceeds, the wife to receive the amount ordered.
Extension of time in which to appeal
Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals and r 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
The husband’s application for extension of time in which to file an appeal against her Honour’s orders was filed on 9 May 2019. The time limit expired on 22 February 2019. His application is thus some three months out of time.
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. McHugh J said at pages 480-481:
… 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)
Amongst the other matters to be considered in determining whether to grant such an extension, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before an applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
Explanation for the delay
The husband says, in explanation of the delay that he suffers chronic ill health both physical and mental. He asserts that at the time of the hearing before the primary judge, he was too unwell to attend the hearing and in his affidavit accompanying his Application in an Appeal said:
9. That the separation has exacerbated my health problems and taken up a lot of time due to the fact that for the past month and much longer I have been heavily involved in the preparation of documents for a two-day trial. I have given (sic) also psychological support and I am a witness.
10. That in my own trial last year I was so ill (medically supported) that I was unable to represent myself and the trial went ahead without me. It took me ages to recover from this and the results (Final Orders).
The husband annexed to his affidavit various documents in support of his assertions of ill health. The first such document is a letter dated 25 March 2019 from a general practitioner at the medical practice attended by the husband but who had not, apparently, seen the husband before. That doctor’s note reflects her perusal of the husband’s file. She notes some concerns about the husband’s physical health observing that it needs investigating. She continued:
…He has major depression and anxiety and this can sometimes manifest with some temporary mental confusion and loss of memory which has caused delay in him being able to compile the information towards the appeal in the required time frame.
Next, is a note from a psychiatrist who has been treating the husband for “Generalised Anxiety Disorder” since 2000. He said that the husband has a condition where, “under stress, he can become disoriented and temporarily confused”.
Annexed to a further affidavit of the husband is a letter written by the same psychiatrist dated 17 May 2019 to the Court in support of the husband’s application for an extension of time. The doctor notes that the orders of the Court which require him to pay a sum of money to the wife or in default, the house to be sold “has caused him acute anxiety”. He further opines that a forced sale of the house will cause the husband “major anxiety with the possibility of a major mental breakdown”.
While there is no reason to doubt the doctor’s diagnosis and his observations over the time of his treatment of the husband, he does not indicate that at any time the husband told him that he had been unable to prepare the appeal documents due to his condition. Nor does the doctor reflect on the fact that at least for a period in which the husband was under his care, the husband was an academic holding a position at a university.
In short, the doctor’s opinion does not address why the husband did not attend to the filing of the necessary appeal documents.
In his submissions on the application for an extension of time, the husband said that he had been assisting and supporting his present partner in her proceedings in the Federal Circuit Court of Australia. He contended that being of assistance and a witness in those proceedings did not require the same level of attention and focus as did the preparation of the appeal and, in effect, there was a material difference between his support of his present partner and preparing the necessary appeal documents.
The wife opposes the application, and noted that the husband had been involved in another matter being heard in the Federal Circuit Court and she says he has been attending Court with one of the parties to that litigation and assisting her with court documents.
The husband’s failure to attend the hearing before the primary judge was, he said, a result of his ill health, saying that he was not in a “good place” at the time. Whatever that might mean, it is clear that despite commencing parenting proceedings he did not attend the appointment with the Family Report writer nor did he attend the hearing.
As to the interviews with the Family Report writer, the husband contended that it was the rigidity of the report writer in making appointments that caused him not to be able to attend.
Her Honour, in her reasons, refers to the husband’s failure to attend the hearing and in particular referred to paragraphs 28 to 32 of the Family Report. It is worth reproducing those paragraphs:
28. Mr [Leister] did not attend the scheduled interview.
29. Mr [Leister] first spoke with me via telephone on 16 May 2018 after receiving his letter about the Family Report interviews. During this call he confirmed his attendance. He queried my qualifications to undertake the assessment, and also raised his suspicion around why his letter had arrived in his junk email folder and not his inbox. He also queried if I knew Ms [Leister]’s solicitor.
30. Mr [Leister] made further telephone contact with me on 13 June 2018. During this call he queried the existence of any Family Report occurring, reporting that he had communicated with the Court and was advised that no Family Report was listed to occur. I advised Mr [Leister] of the Orders of 26 February 2018 which provided for this assessment to occur. He was argumentative about the process and persistently enquired after the date the referral from Child Dispute Services was sent to me. He also requested a change to the scheduled date of interviews. Mr [Leister] was domineering in his communication style, speaking over the top of me at times, and disregarding the information I provided to him. He stated his inability to attend because his partner was in domestic violence accommodation and she would be unable to attend on that date. He refused any offer for her to participate over the telephone. Mr [Leister] terminated the call abruptly after informing me he did not want me to remain the allocated Family Consultant and alleging that my inability to move the interview date was simply to be obstructive towards him.
31. Later this same day, I had a cancellation of another Family Report. This provided for a vacancy in my calendar to change the interview date for the [Leister] matter. Subsequently, I emailed Mr [Leister] and Ms [Leister]'s legal representative, offering them a new interview date in July, and requesting that they reach mutual agreement about the change in date. I advised that the interviews would remain fixed for 18 June 2018 in the absence of mutual agreement.
32. On the 14 June 2018, Mr Darren Hugo of Hawkes Lawyers emailed to advise that Ms [Leister] was unable to participate on the new proposed date. Consequently, I emailed Mr Hugo and Mr [Leister] to advise that the interviews would proceed on 18 June 2018 as previously advised due to a lack of mutual agreement to change the date.
I have no doubt that the husband perceives his inability to attend for the interview with the Family Report writer as being a matter out of his hands, and such was the thrust of his submissions. The report writer’s view was clearly different. His recalcitrance in attending to the steps necessary to prosecute his parenting and property proceedings is a matter to be considered in determining whether an extension of time should be granted and whether the husband would attend to the prosecution of the appeal with more diligence.
I am of the view that the reports of his medical practitioners are unhelpful by reason of their generality and because neither addresses the husband’s capacity at the relevant time, nor it seems took into account his other activities in respect of the other litigation. Equally the reports throw no light on why the husband was unable to prepare for or attend the litigation concerning his property settlement with the wife.
It is difficult, and perhaps, in the result, unnecessary to come to a final conclusion on the effect, if any of the husband’s mental health on his failure to bring the appeal within time. However, on the husband’s submissions about his health and his ability to comply with procedural and other directions and to attend hearings, there is nothing to suggest that there has been a material change. It is entirely possible that if an extension of time was granted, the husband’s general health and other distractions might well prevent him from complying in a timely way or at all.
His failure to participate in the hearing before the primary judge, which in my view is significantly unexplained, is a matter of some weight in considering whether he ought to be permitted to commence the appeal out of time and goes to the question of whether, if leave is granted the husband would participate in any appeal hearing and comply with directions for preparation of the appeal
It is important too to understand that by failing to participate in the hearing, the evidence of the husband before the primary judge was limited. The time for filing that evidence is past, and an appeal, if an extension of time is granted, would be most likely limited to the consideration of the evidence before the primary judge.
Prejudice to the respondent
Lest it be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not (see Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1). It is well accepted that the fact of delay itself is prejudicial to a respondent who, the time periods have passed is entitled to understand that the result of the suit is finalised. In this case, the wife contends actual prejudice in that that she and the parties’ daughter are entitled to get on with their lives without the spectre of further litigation.
The husband argued that the wife’s desire to conclude this aspect of her life was not sufficiently relevant to be persuasive. Further, he argued that the child’s interests were not served in the orders about where she lives being maintained. He contends that he and their child had been the victims of longstanding and intense family violence from the mother.
I do not accept the husband’s argument. The actual and presumed prejudice flowing from his failure to bring an appeal within time is an important matter to be taken into account in coming to a determination on this issue.
Merits of the appeal
Turning then to the merits of the proposed appeal.
The draft Notice of Appeal which is attached to the husband’s affidavit comprises 22 paragraphs challenging the primary judge’s parenting and property orders. Rather than asserting relevant error, the “grounds” amount to a parsing of various passages in her Honour’s reasons. By way of example, the husband says:
5. Quoting from R&R, Judge Turner ignores the first sentence where it says that “indeed it is not the law” that even if “the child’s wishes are valid” the court has to act on them. There was no attempt to probe their validity despite [Ms G’s] reporting [the child] saying she was forced, “it was not her personal choice”, to live with the mother. [The child] wanting “to change from her existing living arrangements” is also edited out.
(As per original)
In relation to the property orders, the husband contends:
15. “The [Suburb C] property”, the most valuable asset, is valued by the Judge at $600,000, on the word of the ex-wife/lawyer, despite lesser values of up to $150,000 in affidavits. The ex-wife’s fixed cash share of $201,000 is based on this, and payment is within 90 days. If not sold then, a three-step process occurs – estate agent – auctioneer –wife’s possession. Each step lessens the value but not the wife’s payout figure; the Judge know the husband’s age and income (state pension), orders the impossible, so the three steps are automatic.
(As per original)
None of the purported challenges to her Honour’s orders raises a valid ground of appeal. In my view the appeal sought to be argued has such a limited prospect of success that it would be futile to grant leave to the husband to file the Notice of Appeal out of time. Even if there were some slight merit in the appeal, the other matters to which I have earlier referred drive the conclusion that to extend time would create a significant injustice to the wife and the parties’ child.
For those reasons, the application will be dismissed.
Costs
The wife’s solicitor sought an order in respect of his costs in meeting the application. The husband argued against those costs contending that it would be unduly harsh, saying he was on a pension. When the relevant property is sold, the husband will then be in funds sufficient to pay an order for costs, which in my view is an appropriate order.
I will fix the wife’s costs at $2,200.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
18 July 2019.
Associate:
Date: 18 July 2018
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