Lowin and Lowin
[2018] FamCAFC 55
•23 March 2018
FAMILY COURT OF AUSTRALIA
| LOWIN & LOWIN | [2018] FamCAFC 55 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Notice of Appeal filed shortly after prescribed time had expired but applicant had earlier taken steps to challenge the Magistrate’s decision – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – Although the Notice of Appeal has serious deficiencies, found there is a substantial issue to be raised on appeal – No relevant prejudice to the respondent – Held interests of justice would not be served by preventing the applicant from appealing – Time within which to appeal extended – Application otherwise dismissed. |
| Family Law Act 1975 (Cth) s 94AAA Family Law Rules 2004 (Cth) r 1.14 |
| Joshua v Joshua (1997) FLC 92-767 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Lowin |
| RESPONDENT: | Ms Lowin |
| FILE NUMBER: | PTW | 2445 | of | 2013 |
| APPEAL NUMBER: | WA | 28 | of | 2017 |
| DATE DELIVERED: | 23 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | In chambers |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 16 May 2017 |
| LOWER COURT MNC: | [2017] FCWAM 115 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The time in which the applicant had to appeal against the orders of Magistrate Sutherland made on 25 May 2017 be extended by 21 days from today.
The application in an appeal filed 1 September 2017 be otherwise dismissed.
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 Lowin & Lowin 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 PERTH |
Appeal Number: WA 28 of 2017
File Number: PTW 2445 of 2013
| Mr Lowin |
Applicant
And
| Ms Lowin |
Respondent
REASONS FOR JUDGMENT
By an application filed on 1 September 2017, Mr Lowin (“the husband”) seeks an extension of time within which to appeal orders made by Family Law Magistrate Sutherland (as her Honour then was) on 25 May 2017.
Ms Lowin (“the wife”) opposes the application.
Background
The husband and wife commenced living together in 2001, were married in 2005 and separated in 2012. They have one child who is now 15 years old.
The wife applied for property settlement in 2014, seeking 70 per cent of the parties’ assets. The husband responded, also seeking 70 per cent of the assets.
Following a trial in March 2017, at which both parties were self-represented, the Magistrate determined that the “known property interests of the parties” should be divided 70:30 in favour of the wife (reasons at [33]). Importantly, her Honour found that the husband did not make “full and frank disclosure” and she was “left in the position of simply being unable to make findings in relation to the composition and current value of the parties’ total property pool”, which she took into account “in a significant manner” (reasons at [30]).
Her Honour’s reasons were published from chambers on 16 May 2017 to allow the parties time to consider the reasons and proposed orders. The orders which are now the subject of the proposed appeal were made on 25 May 2017, substantially in the terms foreshadowed in her Honour’s reasons. The time for appeal commenced to run from the date of the orders, not the reasons.
Attempts to appeal/seek an extension of time to appeal
The husband continued to be self-represented following the trial. In his affidavit supporting his application for an extension of time within which to appeal, the husband asserts (errors in original):
1.
The reason for seeking an extension to my appeal is that the Family Court took issue with my Form 20 Notice of Appeal and as a result the 28 day prescribed time period expired.
2.
My Form 20 Application for Appeal was lodged to your court on the 15th of May 2017 and therefore lodged within the prescribed time period.
3.
I respectfully submit that as a result of an administration concern noted by the Perth Family Court my prescribed time period lapsed due to no fault of my own and therefore an extension should be granted.
4.
Since Magistrates Sutherland’s final report findings on 16th of May 2017 I have since located further documentation that I seek to be adduced into evidence.
The assertion that the husband lodged a “Form 20 Application for Appeal” on 15 May 2017 is improbable, since her Honour’s reasons were not published until the following day. Given that the husband is self-represented, I have deemed it appropriate to examine documents held by the Appeals Registrar in case they throw light on what occurred.
My examination of the documents reveals the following:
a)There is no document in the possession of the Registrar to support the assertion that the husband lodged an appeal on 15 May 2017;
b)On 4 July 2017, the Registrar wrote to the husband rejecting a Notice of Appeal received on 28 June 2017, on the basis that the time in which to appeal had expired;
c)In his letter of 4 July 2017, the Registrar gave advice to the husband about how to seek an extension of time, including the necessary content of an affidavit to support the required Application in an Appeal;
d)On 2 August 2017, the husband sought to file the Notice of Appeal again, this time with an affidavit;
e)On 14 August 2017, the Registrar wrote to the husband refusing to accept the Notice of Appeal for the same reason it had originally been rejected. The Registrar again explained that the husband needed to provide an Application in an Appeal seeking an extension of time;
f)By letter dated 23 August 2017, but received by the court on 1 September 2017 the husband provided the Application in an Appeal together with the Notice of Appeal he had presented on 28 June 2017.
The Application in an Appeal was accepted for filing together with two affidavits in support, one sworn on 13 June 2017 and the other on 31 July 2017.
The Notice of Appeal was retained on the file, pending the outcome of the application for an extension of time. I note that attached to the Notice of Appeal is a copy of a letter from the husband to the Principal Registrar of the Family Court of Western Australia dated 7 June 2017 in which the husband complains about the conduct of the trial and the outcome, and foreshadows an intention to appeal against the decision. In breach of the requirements of the Case Management Guidelines, the letter from the husband did not carry any indication that a copy had been provided to the wife.
It is apparent from the material that the husband had set about endeavouring to challenge the Magistrate’s decision during the 28 day time period in which he had to appeal. This included writing the letter of complaint foreshadowing an appeal and also involved the execution of an affidavit which the husband presumably thought would be of assistance in challenging the orders.
The evidence is silent on what the husband first did with the affidavit that was sworn before a Justice of the Peace on 13 June 2017, and which was ultimately filed with his application on 1 September 2017. Given the husband’s insistence that he did try to appeal within the prescribed time, it seems the husband may have presented the affidavit for filing and was advised that it was not the appropriate method of appeal. If this occurred, it could have been on 15 June 2017 (not 15 May 2017 as the husband has asserted).
Whatever did or did not occur, when the husband did finally file a Notice of Appeal using the proper form, he was just a few days late.
Relevant procedural history of the current application
The husband’s application came before me on 25 October 2017. The wife had only been served on 16 October 2017 and was not present when the matter was called. After contacting her by telephone, I ordered the wife to file responding documents on or before 23 November 2017, and adjourned to 30 November 2017.
Unfortunately, it became necessary for the hearing on 30 November 2017 to be vacated. There had been very great difficulty in finding a date suitable to both parties, and I decided for their convenience to hear the matter on the basis of written submissions. Accordingly, on 7 November 2017, the Appeals Registrar advised the parties that the application would be heard in chambers on the basis of submissions filed in accordance with this timetable:
(a)On or before 7 December 2017, the applicant file and serve written submissions in support of his application, not exceeding five (5) pages.
(b)On or before 21 December 2017, the respondent file and serve written submission in reply to the applicant’s submissions, not exceeding five (5) pages.
(c)If the applicant wishes to reply to the respondent’s submissions he shall file and serve such submission on or before 4 January 2018, not exceeding three (3) pages.
The husband sent a short letter to the Appeals Registrar on 7 December 2017 which the Appeals Registrar treated as written submissions pursuant to paragraph (a) of the timetable set out above.
The wife failed to comply with my order for her responding documents to be filed by 23 November 2017. However, on 28 December 2017, she filed a response and an affidavit, which I have treated as her submissions. In being prepared to receive these late filed documents, I have noted the explanation provided by the wife in her letter to the Appeals Registrar dated 10 January 2018.
On 5 February 2018, the documents were referred to me in chambers.
Relevant law and principles
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals against orders made by Family Law Magistrates of the Magistrates Court of Western Australia.
Pursuant to the Act and the Family Law Rules 2004 (Cth), the appeal should have been filed within 28 days after the orders were made. However, r 1.14 allows me to extend the time for filing an appeal, even though the time has passed.
Lindenmayer J discussed applications for extensions of time within which to appeal in Joshua v Joshua (1997) FLC 92-767:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: GallovDawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC ¶ 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC ¶ 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC ¶ 92-392.
In Tormsen, to which Lindenmayer J referred, the Full Court stressed that the fundamental issue is whether the extension will enable the court to do justice and that accordingly the discretion to extend time cannot be fettered by judge made rules. Thus, none of the factors ordinarily considered relevant to the exercise of the discretion are to be treated as hurdles to be satisfied before the extension can be granted. They are, instead, “mere factors to be considered in the overall light of what the justice of the case require[s]” (Tormsen at 80,017).
Is there a substantial issue to be raised on appeal
The proposed Notice of Appeal is seriously deficient in that it fails to provide grounds of appeal in a recognisable form. Acknowledging, however, that the husband is self-represented, I consider that the documents attached to the Notice of Appeal as constituting his grounds contain complaints that are at least capable of becoming proper grounds of appeal. Without in any way suggesting that there is merit in any of the complaints, I am satisfied that a substantial issue would be raised in the event the appeal proceeded.
Discretionary considerations
The husband’s evidence about the delay in filing his Notice of Appeal was woefully inadequate and was only able to be buttressed by reference to documents held by the Appeals Registrar. I am persuaded that they disclose that the husband took real steps to challenge the decision well within the time prescribed for appeal. The time between the expiration of the appeal period and the presentation of the Notice of Appeal was only a few days.
Although there was then further delay in the husband making his application for an extension of time, it is again apparent that he was doing what he could to provide the documentation in proper form. The process is not straightforward and a difficult one to navigate for a litigant without the benefit of legal representation. I also note, without placing a great deal of weight upon it, that the husband provided a medical certificate issued in July 2017 stating that he “has depression and currently ... is taking anti depressant medication” and as a result was “unable to work more than one day a week due to his symptoms”.
The wife has said in her affidavit in response that she understood that the time within which to appeal had lapsed and she was unaware of the husband’s application until 18 October 2017. She did in fact have notice a couple of days earlier according to the affidavit of the process server but it is true nevertheless that she would have proceeded for some months believing that the proceedings were over.
The wife asserts, presumably to demonstrate prejudice, that subsequent to the appeal period lapsing, she has “destroyed the majority of documents in my control”. This ought not, however, be an impediment to her defending the appeal as the husband will be obliged to prepare and provide to her Appeal Books containing all of the documentation that was before the Magistrate. All of these documents would therefore also be available to her in the event, for example, the appellate court orders a rehearing.
The wife’s affidavit in response to the husband’s application otherwise simply joins issue with assertions made by him. The matters she has raised will assume considerable importance on the hearing of the appeal (if the time is extended) but they are not properly to be taken into account in this application.
Apart from the “normal” prejudice associated with the prolongation of litigation, I am not satisfied that there is prejudice to the wife in granting the extension of time. In this context it is relevant to note that at trial both parties were self-represented and both continue to be self-represented.
There is, of course, a public interest in ensuring finality to litigation, but it is also the case that the law permits an appeal as of right against the orders of the Magistrate. Given his immediate sense of grievance with the outcome, it would be reasonable to assume that the husband would have lodged an appeal within time if he had the means to engage legal representation. I am not satisfied that the interests of justice would be served by preventing the husband from having his grievances aired in circumstances where his Notice of Appeal was only filed a few days outside the prescribed time.
Orders
For these reasons, I propose to extend the time the husband had to appeal by a period of 21 days from the date of my judgment. I have allowed 21 days in order to give the husband time to put his grounds of appeal into proper form.
The husband’s application sought to have further documentation adduced into evidence although it was not specific as to what that comprised. It has been unnecessary to consider this issue in determining the matter, but the husband should be aware that if he wishes the appellate court to receive any further evidence, it will be necessary to make an application in proper form not later than 14 days prior to the first day of the sittings in which the appeal is heard.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 23 March 2018.
Associate:
Date: 23 March 2018
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