MARKELL & MARKELL
[2019] FamCAFC 118
•17 July 2019
FAMILY COURT OF AUSTRALIA
| MARKELL & MARKELL | [2019] FamCAFC 118 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXTENSION OF TIME – Where the husband seeks an extension of time in which to appeal the primary judge’s orders – Rule 22.03 of the Family Law Rules 2004 (Cth) –Where there is no order from which an appeal can be brought – No utility in granting an extension of time in which to appeal – Application to extend time dismissed – Where the husband seeks a stay of the primary judge’s orders – Where no application for a stay was made to the primary judge – Order for stay refused – Costs order in favour of wife. |
| Family Law Act 1975 (Cth) s79A(1)(c) Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 Markell & Markell [2019] FamCA 411 |
| APPLICANT: | Mr Markell |
| RESPONDENT: | Ms Markell |
| FILE NUMBER: | BRC | 6823 | of | 2012 |
| APPEAL NUMBER: | NOA | 42 | of | 2019 |
| DATE DELIVERED: | 17 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 July 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 March 2019 |
| LOWER COURT MNC: | [2019] FamCA 141 |
REPRESENTATION
| THE APPLICANT: | In person (via telephone) |
| SOLICITOR FOR THE RESPONDENT: | Mr Evans of Evans Brandon Family Lawyers (via telephone) |
Orders
The application for extension of time in which to appeal orders made on 14 March 2019 is dismissed.
Application for a stay of the orders made on 14 March 2019 is dismissed.
The applicant husband to pay the respondent wife’s costs of and incidental to the application in the sum of $2,800, such sum to be paid direct to the wife from the husband’s share of the proceeds of sale of the property at I Street, G Town.
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 Markell & Markell 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 42 of 2019
File Number: BRC 6823 of 2012
| Mr Markell |
Applicant
and
| Ms Markell |
Respondent
REASONS FOR JUDGMENT
Mr Markell (“the husband”) seeks an extension of time in which to appeal orders made on 14 March 2019 by a judge of the Family Court of Australia.
The orders sought to be appealed need to be seen in the context of the litigation between the parties.
On 7 August 2018, shortly before a hearing of the property settlement proceedings between the parties, they reached agreement and consent orders were made.
Relevantly those orders provided for the husband to transfer to the wife his interest in a property which had been the parties’ marital home subject to a mortgage debt which was to be no more than $600,000. The husband was further to pay $150,000 to the wife. The orders required the wife to refinance the mortgage debt over the marital home to her sole name so as to release the husband from any liability or responsibility in relation to that mortgage. The wife was given six months in which to effect the refinancing and, in default, the marital home would be sold, the mortgage liability repaid and the sale proceeds paid to the wife.
The orders provided for the husband to retain a property at G Town subject to him refinancing so as to be solely liable for any debt secured over the marital home in excess of $600,000, together with two other loans identified in the orders. The transfer to the husband of that property was also subject to him paying the ordered $150,000 to the wife, child support due or in arrears, any adult child maintenance payments due or in arrears and, finally a sum in payment of his legal fees.
The wife lodged a caveat over the G Town property and she was ordered to remove that once she was provided with evidence that the husband had given effect to the orders requiring him to refinance debts, in short when she would be certain of receiving the funds to which she was entitled under the orders.
The husband had six months in which to comply with the orders and pay the wife $150,000.
After six months had elapsed from making of the orders, neither the husband nor the wife had been able to effect the necessary refinancing. Thus the wife by application pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) sought further mechanical orders designed to provide a means for giving effect to the August 2018 orders.
The wife sought an order that the husband transfer his interest in the marital property to her so as to better enable her to sell it. She also sought an order that the G Town property be sold. The husband consented to transfer his interest in the marital home to the wife. However, he opposed the wife’s application that the G Town property be sold contending that if given more time he could refinance the debt in accordance with the August 2018 orders. He also sought that a restraint over a line of credit secured by a mortgage over the marital home be released, arguing it was necessary to effect the refinancing.
The primary judge noted that there was no opposition to the husband having more time to see whether he could refinance the debts but the wife opposed any order which allowed him to access the line of credit.
The primary judge gave the parties time in which to formulate orders which would give effect to their agreement as to the property.
His Honour acceded to the wife’s application and afforded her a further three months in which to give effect to the order, the three months commencing after the husband had paid to her the ordered $150,000 and when the husband has refinanced or paid out the debts for which he was made responsible under the original orders.
His Honour further made orders, as sought by the husband, that he have a further 30 days in which to attempt to refinance or discharge the debts and to pay the wife the money and the other debts. His Honour ordered that if the husband had not complied with the orders within that additional 30 days, the G Town property is to be sold by auction within a further 30 days.
On 19 February 2019 the husband filed a response to the wife’s application. In that application he sought orders to the effect that pursuant to s 79A of the Act several of the substantive orders made in August 2018 be set aside and other orders be made in their stead. The affidavit in support of that application, also filed on 19 February 2019, asserted that at the time of the making of those orders, the wife had failed to disclose relevant information, submitted a “fraudulent financial statement” and asserted that circumstances have arisen that make some of those August 2018 orders impracticable to be carried out.
Neither the application nor the affidavit in support of it was served on the wife’s solicitor who said that their existence was brought to his attention by the primary judge during the hearing. The solicitor said that he recalls receiving and reading the response document and making submissions on it, he does not recall receiving and reading the affidavit in support at that time. These documents have still not been served on him.
It is relevant to note that in the affidavit in support of the application, the husband says:
18. I have written to gain the consent of the PTQ, to bring an application to alter the orders of 7/8/18 …”
It seems that this is a reference to the Public Trustee in Queensland who has control of the husband’s affairs.
It may be that the husband’s response and affidavit were foreshadowing an application for revision of the August 2018 orders, rather than being a substantive application. Nevertheless, his Honour was not prepared to make further orders sought which were:
·That the amount he is obliged to pay to the wife be reduced from $150,000 to $100,000;
·That the amount of debt to be shouldered by the wife be increased from $600,000 to $950,000; and
·That the wife be compelled to withdraw the Caveat against the title of the G Town property on being provided with evidence that the husband had obtained approval of finance to give effect to the orders.
The primary judge records that the reason why the husband sought an order which, in effect caused the wife’s entitlement under the August 2018 orders to be reduced by $400,000 was the “spirit in which the consent orders were negotiated” and, his Honour interpreted that to be a submission that since the debt was secured by the marital home, the wife ought bear the burden of it (at [29]). The primary judge rejected the husband’s argument that the orders made in August 2018 did not reflect the intention of the parties and thus this amendment should be made. His Honour also noted that the husband sought the removal of the order made in August 2018 that required him to pay arrears or what was due of an adult child maintenance order.
In short, the primary judge refused these proposed amendments to the orders made in August 2018.
His Honour said:
30. The husband has made some other assertions that the wife did not frankly declare social security benefits she was getting at the time of the final consent Order, some money that she was receiving from her father at the time and a small amount of money he said she had in a bank account at the time. Even if that were true (and I can simply make no findings of fact about that), it would not in any way persuade me that there has been a miscarriage of justice that would require me to vary or set aside the order in the manner the husband proposes.
The proposed appeal
Turning then to the proposed appeal, the husband having received the orders made on 14 March 2019, prepared an Application in a Case and a supporting affidavit which was submitted for filling to the Court on 29 March 2019. He was informed on 10 April 2019 that given the issues being raised, he should file an appeal. On the 30 April 2019 the husband attempted to file a Notice of Appeal and an application to extend time in which to appeal. The application to extend time was apparently in the incorrect form and he was advised to bring an Application in an Appeal. In any event, the husband seeks leave to appeal against his Honour’s orders notwithstanding that the time for bringing the appeal has expired. The husband also seeks a stay of the primary judge’s orders.
Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals. Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
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.
The exercise of discretion also involves an assessment of prospects of success of an appeal that is, 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.
The husband explains the delay in bringing the appeal by reference to the fact that he is presently in prison, is self-represented and must deliver documents to the Court by post. I cannot comment on whether or not that adds an additional layer of complexity to attending to matters within prescribed time limits, however, in all the circumstances I am prepared to accept the explanation for the delay.
The wife contends that the extension of time should be refused because to permit the husband to appeal would result in her incurring further costs in respect of litigation which was essentially concluded in August 2018 with the making of consent orders. While her anxiety about incurring further costs is understandable, that, of itself would not cause the application to be refused all other things being equal. However, it ought not be thought that delay does not of itself bring about prejudice to the party affected by the late raised appeal.
I turn then to the merits of the husband’s proposed appeal as demonstrated by his draft Notice of Appeal.
Several of the proposed grounds challenge the orders which provided the means to give effect to the orders of August 2018. In the time between the listing and hearing of the husband’s application for extension of time there had been a further appearance before the primary judge and the wife had been appointed trustee for the sale of the G Town property. It was uncontentious that the property had in fact been sold, the wife had executed a contract for sale and it was accepted that the property would be sold in the usual way.
The husband conceded that, in that event, proposed grounds three, six and seven are no longer pressed. Ground 4 also relates to the sale of the property and therefore also falls away.
The balance of the proposed grounds contend that the primary judge failed to take into account the husband’s allegations that the wife had filed “fraudulent” financial documents on which the original settlement negotiations were based, failed to take into account that the wife had been receiving Centrelink payments which were “similar” to the child support payments that were subject of the consent orders and thus those child support orders should be dismissed and that his Honour erred in not finding that the “fraudulent” financial document and the receipt of payments amounted to a miscarriage of justice to the extent that the consent orders should have been set aside and the orders the husband proposed made instead.
The challenge articulated in the proposed Notice of Appeal is bald challenge that the primary judge ought to have taken the husband’s assertions into account. During his submissions on the point, the husband maintained that having provided “evidence” of discrepancies in finances that, of itself, required his Honour to make the orders sought.
There are a number of hurdles to the acceptance of that proposition, not the least of which is that the wife had not been served with the affidavit and response at the time of the hearing before the primary judge and thus had had no opportunity to consider the assertions.
However, in my view, the challenges are fundamentally flawed. While his Honour considered the husband’s allegations and found that they were not sufficient to cause him to vary the substance of the consent orders, neither did he dismiss the husband’s application as set out in his response. Thus there is no order or decree of his Honour from which an appeal can be brought.
I am therefore of the view that there is no utility in extending time in which to bring the appeal because the appeal would fail.
Stay
The husband sought an order that the Full Court of the Family Court stay the orders of the primary judge made on 14 March 2019. No application for a stay was made to the primary judge, a matter to which his Honour adverted in his reasons for the orders made on 3 July 2019. His Honour in those reasons (Markell & Markell [2019] FamCA 411) said that the husband was notified that any application for a stay of his Honour’s orders must made to him in the first instance. No such application was made nor did the husband indicate that a stay would be sought. In those circumstances, it could not be said that his Honour was not available for the purposes of seeking a stay and any such application should have been made to him.
I do not propose to order a stay of his Honour’s orders of 14 March 2019.
Costs
The wife, in her response to the husband’s application sought that there be an order for costs made in her favour if the husband’s application failed. The wife sought a sum in the order of $2,800.
The husband opposes that order and says it would be to his financial detriment. It is clear that shortly the husband will be in receipt of funds from the sale of the G Town property and the costs order could be met from those funds.
The husband has been wholly unsuccessful. He should pay the wife’s costs. I am unpersuaded that any financial burden to him in having to pay those costs would militate against such an order.
I thus propose to make a costs order in the wife’s favour in the sum sought and I will further order that such sum be paid to her from the husband’s share of the proceeds of sale of the G Town property.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 17 July 2019.
Associate:
Date: 17 July 2019
0
2
2