Mawson and Coates
[2014] FamCAFC 186
•1 October 2014
FAMILY COURT OF AUSTRALIA
| MAWSON & COATES | [2014] FamCAFC 186 |
| FAMILY LAW – APPLICATION IN AN APPEAL – APPLICATION FOR AN EXTENSION OF TIME TO FILE A NOTICE OF APPEAL - Where the applicant seeks to appeal final property consent orders – Where the consent orders were made by a judge of the Federal Circuit Court without submissions by the parties following a conciliation conference with a registrar – Application of the principles in Gallo v Dawson (1990) 93 ALR 479 - Where the delay is short and adequately explained – Where the proposed appeal concerns the principles enunciated in Harris v Caladine (1991) 172 CLR 84 – Where the respondent was on notice of the applicant’s issue with the consent orders shortly after they were made – Where any prejudice to the respondent can be compensated by an order for costs – Application granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Circuit Court Rules 2011 (Cth) Federal Circuit Court Act 1999 (Cth) |
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45
| Gallo v Dawson (1990) 93 ALR 479 Harris v Caladine (1991) 172 CLR 84 Stanford v Stanford (2012) 247 CLR 108 |
| APPELLANT: | Ms Mawson |
| RESPONDENT: | Mr Coates |
| FILE NUMBER: | BRC | 2929 | of | 2013 |
| APPEAL NUMBER: | NA | 41 | of | 2014 |
| DATE DELIVERED: | 1 October 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2014 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Cassandra Pullos (solicitor) |
| SOLICITOR FOR THE APPELLANT: | Cassandra Pullos Lawyers |
| COUNSEL FOR THE RESPONDENT: | Greg Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Greenhalgh Pickard Solicitors |
Orders made on 23 September 2014
The applicant is granted an extension of time until 4.00pm on 26 September 2014 to file a notice of appeal against the orders of Judge Spelleken made on 27 June 2014.
The applicant pay the respondent’s costs of this application, to be assessed if not agreed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mawson & Coates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 41 of 2014
File Number: BRC 2929 of 2013
| Ms Mawson |
Appellant
And
| Mr Coates |
Respondent
REASONS FOR JUDGMENT
On 23 September 2014 I made orders granting the applicant, Ms Mawson, an extension of time to file a notice of appeal against orders made by Judge Spelleken on 27 June 2014 and reserved my reasons for judgment. I now provide my reasons for granting the application.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. The application was filed on 18 August 2014, less than one month out of time.
Rule 1.14 provides that a party may apply to extend a time that is fixed under the Rules. No guidance is provided by either the Family Law Act 1975 (Cth) (“the Act”) or the Rules as to the exercise of discretion. The principles for consideration of applications for extensions of time in the civil jurisdiction (applicable also to this court) are well known. The decision of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 is often referred to:
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.
It can be seen that an extension of time should be given if it will do justice between the parties. Several factors have been identified as being relevant to the exercise of discretion, including:
·An adequate explanation for the delay;
·The proposed grounds of appeal being of some merit; and that
·Prejudice to the respondent may be compensated by an order for costs.
At the hearing of the application counsel for Mr Coates sought leave to file a response and supporting affidavit. Leave was granted to file the response however the solicitor appearing for Ms Mawson objected to the filing of the affidavit, or at least to portions of it. Much of the affidavit is immaterial to the application before me. I have only had regard to the portions of the affidavit that are not objectionable and relate to the conciliation conference of 27 June 2014, and where Mr Coates deposes to his medical conditions as relevant to the consideration of prejudice to him from the grant of this application.
Background
There was significant confusion after the making of consent orders. This in part explains the delay and the basis for the appeal.
It is uncontroversial that on 27 June 2014, a Friday, the parties engaged in a conciliation conference before a registrar of the court. Both parties were represented by solicitors. At the conclusion of the conciliation, the parties signed consent orders. Annexure “BAM-1” to Ms Mawson’s affidavit is a copy of the consent orders signed by both parties with handwritten amendments. It is common ground that the registrar has handwritten “orders approved 27.6.14” and signed underneath at the top of the first page.
Despite the registrar’s involvement in the matter, Judge Spelleken made the orders sought to be appealed. The order was made some time on the day of the conciliation conference. The orders of Judge Spelleken dated 27 June 2014 made the consent orders pursuant to r 13.04 of the Federal Circuit Court Rules 2011 (Cth) (“the FCC Rules”) in the terms of an attached document entitled “Minutes of Consent Exhibit 1”, being an engrossed copy of the document “BAM-1”. Interestingly, the order is noted to have been made “UPON APPLICATION TO THE COURT by Mr Hollis appearing as Solicitor for the Applicant and Ms Bulyk appearing as Solicitor for the Respondent”, despite no court event or application being made before the making of the orders. It is agreed that the parties did not appear before Judge Spelleken nor were any agreed set of documents or submissions that the orders were just and equitable sent to her chambers.
In an affidavit filed 18 August 2014, Ms Mawson says she suffers from post-traumatic stress disorder, for which she is prescribed medication and that she has difficulties functioning in high stress situations. Ms Mawson says that she was told by her then solicitor that the agreement reached divided the property between the parties so that Ms Mawson received a division equivalent to 65 per cent of the net pool of assets.
Whilst travelling home from court, Ms Mawson says that she read the consent order and realised that no provision was made for the payment of monies from Mr Coates to her, presumably to effect a 65 per cent division in favour. Ms Mawson goes on to explain in the affidavit that she immediately contacted her then solicitor, who assured her that the consent orders had not yet been made and could be revoked.
Ms Mawson deposes that her former solicitor emailed the judge’s associate on 30 June 2014 (the Monday) purporting to withdraw consent to the orders of 27 June 2014. On 10 July 2014, Ms Mawson’s then solicitor received an email from the associate to Judge Spelleken requesting that the consent orders be engrossed. Ms Mawson says that when the email of 30 June 2014 was forwarded to the judge’s associate, the associate responded that as the matter had been finalised by a registrar, a review was required pursuant to r 20 of the Rules.
On 16 July 2014, Ms Mawson’s former solicitor informed her that the firm was ceasing to act on her behalf. On 17 July 2014, Ms Mawson attended upon her current solicitors. Ms Mawson asserts that her current solicitors attempted to inspect the court file, but there was some difficulty. An attempt was made on 24 July 2014 to file an application for review of the registrar’s orders, however the registry did not accept the application, the court file recording that the orders were made by Judge Spelleken.
On 18 August 2014, this application was filed.
The consent orders
The applicant submits that the consent orders were made by Judge Spelleken. Counsel for the respondent maintained that whether the registrar or the judge made the orders was not entirely clear.
The power of the Federal Circuit Court to make orders is contained in s 15(1) of the Federal Circuit Court Act 1999 (Cth) (“the FCC Act”), being a power to make orders of such kind as the Court “thinks appropriate” in relation to matters in which it has jurisdiction. In Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 the High Court at 64 defined judgments, decrees, orders and sentences as “operative judicial acts”, distinguished from reasons, which provide no operative effect.
Section 32 of the FCC Act provides a power to make orders in terms of an agreement reached by parties upon application by the parties.
Section 102(2)(m) of the FCC Act provides that “the power to make an order the terms of which have been agreed upon by all the parties to the proceedings” may be exercised by a registrar if directed by the Federal Circuit Court. Section 103(1) of the FCC Act provides that the FCC Rules may delegate to registrars any of the powers of the Federal Circuit Court. Item 2 in the table contained in r 20.00A(1) of the the FCC Rules delegates the power contained in s 102(2)(m) of the FCC Act to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power. Such exercise of delegated power by a registrar “is taken, for all purposes, to have been exercised by the Federal Circuit Court of Australia or a Judge” pursuant to s 103(2).
Rule 13.04 of the Federal Circuit Court Rules 2011 (Cth) (“the FCC Rules”) provides the procedure for making consent orders:
(1)The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.
(2)The draft consent order must state that it is made by consent.
(3)The Court may make such orders as the Court considers appropriate in the circumstances.
(4)If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.
It is therefore clear that the registrar had the power to make the consent orders. What is confusing is whether the registrar by writing “orders approved” on the front cover of the draft consent orders intended to make an order.
Section 74 of the FCC Act provides that an order of the Federal Circuit Court “must… be in writing; or… be reduced to writing as soon as practicable”. Subsection (2) goes on to provide that an order may be “authenticated” in a manner specified by the Rules.
Rule 16.07 of the FCC Rules provides the circumstances in which an order must be “entered”:
(1) An order must be entered if:
(a) the order takes effect on the signing of the order; or
(b) the order is to be served; or
(c) the order is to be enforced; or
(d) an appeal from the order has been instituted or an application for leave to appeal has been made; or
(e) some step is to be taken under the order; or
(f) the Court directs that the order be entered.(2) However, an order need not be entered if it merely (in addition to any provision as to costs):
(a) makes an extension or abridgment of time; or
(b) grants leave or makes a direction:(i) to amend a document (other than an order); or
(ii) to file a document; or
(iii) for an act to be done by an officer of the Court other than a lawyer; or(c) gives directions about the conduct of proceedings.
Rule 16.08 provides that an order may be entered under the seal of the Court signed by a judge or registrar, whether in the registry, in court, or in chambers. The implication is therefore that the making of an order is distinct from the process of signing and stamping a written order with the court seal.
Significantly, r 16.05(1) provides that “the Court may vary or set aside its judgment or order before it has been entered”. If the registrar did intend to make an order, it was never entered despite the requirement to do so. The order of the judge is the appropriate order to be appealed.
Delay
The period of delay is relatively insignificant and has been adequately explained by a combination of factors:
·Confusion regarding who made the orders;
·Difficulties in communicating with the court;
·The applicant’s change of solicitors; and
·The inability of the applicant’s new solicitors to access the court file.
Counsel for Mr Coates took issue with the portion of the applicant’s explanation for delay relating to the confusion over which judicial officer made the orders. Mr Shoebridge submitted that, even if the applicant had been correct in her initial belief that the registrar had made the order, no attempt was made to file an application for review of that order within the 7 day time limit provided for in r 20.01(1)(b). Despite this difficulty, I am satisfied that the applicant has proffered an adequate, distinguished from a complete, explanation for the short period of delay.
Merit
The proposed grounds of appeal are as follows:
1.The learned Judge erred in that she failed to give any or any proper consideration to the relevant factors contained in s 90SM(4) of the Family Law Act (Cth):
(a)Her Honour failed to satisfy herself that the provisions of the Consent Orders were just and equitable.
(b)There was insufficient evidence before Her Honour for her to have been able to find that the consent order was just and equitable in accordance with requirements of s 90SM(3);
(c)Her Honour’s discretionary judgment miscarried;
(d)Her Honour erred in approving the Consent Orders.
It is the contention of Ms Mawson that the judge made final property orders without receiving submissions from the parties as to how such orders were just and equitable. Further, that the orders were not just and equitable.
In Tomko v Palasty (No. 2) [2007] NSWCA 369, Hodgson JA found, when considering degree of merit required to be demonstrated in applications for leave to appeal out of time, that “[i]f such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient” (at [14]).
Section 79(2) (in relation to parties who have been married) or s 90SM(3) (in relation to parties who have been in a de facto relationship) of the Act provides that the court shall not make an order altering property interests unless satisfied that it would be just and equitable to do so. In deciding whether it would be just and equitable to make an order, regard must be had to the factors contained in s 79(4) or s 90SM(4). The recent High Court authority of Stanford v Stanford (2012) 247 CLR 108 placed particular emphasis on the mandatory nature of these statutory requirements.
The High Court decision of Harris v Caladine (1991) 172 CLR 84 remains authority for the general proposition that an application for property orders by consent does not absolve a judicial officer from satisfying themselves of the statutory requirements, namely that the orders sought are just and equitable having regard to the enumerated factors.
Counsel for the respondent submitted that leave should not be granted as the appeal is unlikely to succeed. In particular, that the judge was entitled to have regard to the registrar’s approval of the orders, the registrar having knowledge of the proceedings after participating in the conciliation conference with the parties. Mr Shoebridge also made submissions regarding the application of the principles contained in Harris v Caladine in circumstances where both parties are legally represented.
The submissions of both parties regarding the merits of the proposed appeal are, on their face, arguable. The reasonable inference drawn from this is that the applicant has demonstrated the necessary degree of merit.
Prejudice
It appears that Mr Coates’s solicitors were informed that Ms Mawson had taken issue with the consent orders on 30 June 2014, when Ms Mawson’s former solicitors wrote to both the court and the solicitors for Mr Coates attempting to “withdraw consent” to the orders.
In his affidavit, Mr Coates details his significant health difficulties. Although these circumstances are serious, they do not pose a bar to the granting of this application. They do, however, require that this matter be resolved with a degree of urgency, which necessitated the making of orders without first publishing reasons for judgment.
Any prejudice to Mr Coates may be compensated by an order for costs, which I shall deal with now.
Costs
At the conclusion of the hearing counsel for the respondent made application for costs.
The solicitor for Ms Mawson asked that the question of costs be reserved to the determination of the appeal. The applicant submitted that the circumstances regarding delay required further investigation and that further evidence as to the financial circumstances of the parties was required.
It is not unusual in these applications that costs are ordered in favour of the respondent as a consequence of the applicant seeking an indulgence of the court. I see no reason to delay Mr Coates receiving the costs of this application. The outcome of the appeal would make no difference to the reality that Mr Coates has incurred costs because the applicant wishes to appeal out of time.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Justice May delivered on 1 October 2014.
Associate:
Date: 1 October 2014
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