Merriett and Merriett - [2018] FamCAFC 225

FAMILY COURT OF AUSTRALIA

MERRIETT & MERRIETT

[2018] FamCAFC 225

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Explanation for the delay – Merits of the proposed appeal – Application dismissed.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004 (Cth) r 22.03, Sch 3
Federal Circuit Court Rules 2001 (Cth) r 10.05

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Merriett

RESPONDENT:

Ms Merriett

FILE NUMBER:

SYC

5335

2017

APPEAL NUMBER:

146

2018

DATE DELIVERED:

22 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDERS MADE:

10 August 2018

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Reeves

SOLICITOR FOR THE RESPONDENT:

McQiu Lawyers

Orders

The applicant pay the costs of the respondent fixed in the sum of $1,300.

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 Merriett & Merriett 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: EA 146 of 2018
File Number: SYC 5335 of 2017

Mr Merriett

Applicant

And

Ms Merriett

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 12 November 2018, Mr Merriett (“the applicant”) seeks an extension of time in which to appeal against orders made by Judge Boyle on 10 August 2018. The hearing of the application was urgently listed because the purpose of the application for an extension of time in which to appeal was that, if granted, an application would then be made to Judge Boyle, or to another judge of the Federal Circuit Court of Australia, to stay the orders made on 10 August 2018. This was because pursuant to those orders, a property owned by the applicant and Ms Merriett (“the respondent”) was to be sold by auction on 17 November 2018.
I heard the application on 16 November 2018 and dismissed it. Due to the urgency of the matter coming on before the Court, I was not in a position then to give reasons and I do so now. I also deal with the respondent’s application for costs.
In order to understand the application, it is necessary to give some history of the matter. That history had to be gleaned from the parties during the course of the hearing.
The parties resided in Australia where they owned a property at Suburb B, New South Wales (“the Suburb B property”). At some stage they returned to Ireland, where they separated. Parenting and property proceedings between them then ensued.
In July 2018, the Circuit Family Court of the Republic of Ireland (“the Circuit Family Court”) made parenting and property orders. Relevantly, the Court ordered:
4.An order directing the parties to take immediate steps to sell the former family home in [Suburb B] Australia, to appoint such professional advisors as are necessary to market and sell the property aforesaid and to receive the proceeds of sale and remit them to this jurisdiction. An order that the net proceeds of sale (after discharge of all costs and expenses relating to the sale of the property) be applied in the following way:- 20% of the net proceeds of sale or a sum of €150,000, whichever is the lesser figure, to be set aside as a fund for the maintenance and education of the children and given to the Applicant in trust for that purpose the balance of the net proceeds of sale to be divided equally between the parties.
A further order declared that the three children of the parties were habitually resident in the Irish jurisdiction and were not to be removed from the jurisdiction without the consent of both parties or an order of the Court. I was informed that orders were subsequently made providing for the children to live primarily with the respondent.
So as to give effect to the order for the sale of the property in Sydney, the respondent commenced proceedings in the Federal Circuit Court of Australia. That application came before the primary judge on 10 August 2018. On that day, her Honour made orders for the sale of the property, requiring the parties to do all acts and sign such documents as may be required to sell it. If that order was not complied with by the applicant within 14 days, the orders appointed the respondent as trustee for the sale of the property.
As foreshadowed above, the respondent, as trustee for sale, fixed the sale of the property for 17 November 2018.
At the request of the applicant, who indicated to the primary judge that he intended to appeal, the orders made on 10 August 2018 were stayed for seven days.
The matter again came before the primary judge on 29 August 2018. It appears that the applicant had emailed to the primary judge’s associate a draft Application in a Case seeking a stay of the orders and a draft Notice of Appeal. The primary judge informed the applicant that she was not prepared to deal with documents that have not been filed in the ordinary way and adjourned the matter to 12 October 2018, indicating she would deal with the application for the stay on that day. The respondent filed neither the proposed Notice of Appeal nor the Application in a Case seeking a stay.
Meanwhile, in Ireland, an application was made to the Circuit Family Court for a stay of its orders. On 15 October 2018, the application for a stay was refused.
On 18 October 2018, the applicant filed a Notice of Motion in the High Court Circuit Appeal, appealing the refusal of the judge of the Circuit Family Court to grant the stay. That application was dismissed on 12 November 2018.

Discussion

The principles to be applied in an application for an extension of time are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 at 480:
…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.
The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequence for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.
Any appeal from the orders of the primary judge had to be filed on or before 7 September 2018 (Family Law Rules 2004 (Cth) r 22.03).
In his affidavit, the applicant sought to explain the delay in this manner:
3.Due to personal difficultys I had with my previous Irish legal representation, I had to bring them off record, its now been brought to my attention by my newly appointed Irish solicitor, that in order to avoid difficultys within the irish legal system making new orders, that I should have also lodged a appeal to the Australian orders, which said orders contain the same property coming before the Irish high courts in December 2018.
(As per the original)
It is difficult to reconcile that statement with the request made to the primary judge on 10 August 2018 for a stay pending any appeal, the subsequent informal application for a stay and draft Notice of Appeal and the subsequent adjournment to enable those documents properly to be filed. The only inference that can be drawn is that the applicant was at all times aware of the need to seek a stay of the orders in Australia to prevent the sale from going ahead.
The applicant, in his submissions, made much of the fact that the appeal to the High Court is a hearing de novo. He says he hopes that as a result of the rehearing, the order for the sale of the Suburb B property will be set aside. Further, he hopes to obtain orders permitting the children to return with him to Australia. He therefore submits that it would be appropriate for there to be a stay of the Australian orders, so as to preserve that property for him and the children to live in, should the orders he seeks in the appeal be made.
There are two difficulties with that submission. First, having a much greater knowledge of the proceedings in the Irish courts than I do, a judge of the Circuit Family Court and a judge of the High Court have declined to grant a stay of the orders, notwithstanding the existence of the appeal. Secondly, even a stay of the orders made in Ireland would not effect a stay of the orders made by the primary judge.
So much seems to have been accepted by the applicant, hence the two foreshadowed applications for a stay made to the primary judge to which I have already referred. The applicant does not say why he did not file an appeal within the seven day stay period granted by the primary judge, or file the draft Notice of Appeal and Application in a Case that he forwarded to the primary judge’s associate on 29 August 2018. Having regard to that, it is, in my view, an insufficient explanation for the delay simply to assert that he filed the present application promptly upon the dismissal of his appeal against the judge of the Circuit Family Court.
I turn then to the merits of the appeal. I asked the applicant to identify what he said were the errors made by the primary judge in making the orders and he pointed to the following:
·The matter before the primary judge never went to a final hearing which the applicant, who like the respondent lives in Ireland, could attend in person; and
·The order denied the applicant his entitlement to attend a mediation in Sydney.
The submissions before me did not identify why what occurred before the primary judge on 10 August 2018 was not a hearing. The limited material available indicates that the application filed in the Federal Circuit Court for orders giving effect to those made in Ireland was heard by the primary judge on that day. The issues before the Court were limited and did not involve – and, quite properly, could not involve – a reconsideration of what parenting and property orders were appropriate, given that that had been determined elsewhere.
Pursuant to r 10.05 of the Federal Circuit Court Rules 2001 (Cth), a court may refer a matter to a conciliation conference. I do not know whether such a referral was sought and, if sought, whether it was refused. Certainly, under the Federal Circuit Court Rules, there is no entitlement to such an order. Further, one would have to query the utility of such an order, given that the parenting and property proceedings had, subject to the appeal, been concluded. I am not satisfied that there is any merit in the proposed appeal in this Court.

Conclusion

If leave to appeal out of time was granted, the respondent would face an application for a stay which would involve her in further cost and expense. If an extension of time in which to appeal was granted and a stay was sought and obtained, the auction proposed for 17 November 2018 would have to be abandoned. The applicant did not put before the Court any proposal as to how the effects of the abandoned sale could be ameliorated. There is an obvious prejudice to the respondent if the costs of the auction were wasted.
Finally, the extension of time may well be futile. Its purpose is to prevent the auction from proceeding. Section 94AAA of the Family Law Act 1975 (Cth) does not empower a judge of the appeals division of the Family Court to stay orders made in the Federal Circuit Court of Australia. Such an application must be made to the Federal Circuit Court and, if refused, an appeal may then be taken to the Family Court of Australia. Even if the application for an extension of time was successful, it is difficult to see how the applicant could file and prosecute an application for a stay in sufficient time to have any effect upon the sale. None of these considerations favour granting the relief sought by the applicant. It was for that reason that the application was dismissed.
A distinction is to be drawn between the orders made in relation to the sale of the property in Ireland and those made by the primary judge. As can be seen, the orders made in Ireland not only provide for the sale of the property, but the distribution of the proceeds of sale. The orders made by her Honour provide for the sale of the property and, after the payment of the expenses associated with the sale and the payment of any capital gains tax, that “[t]he balance be held in the trust account in the parties names … pending the resolution of the parties proceedings in Ireland” (sic). Those orders take account, therefore, of the appeal.

Costs

The respondent sought an application that her costs in the sum of $1,300, which were assessed according to the scale contained in Sch 3 of the Family Law Rules 2004 (Cth), be paid by the applicant on the basis that the application was wholly unsuccessful.
I accept the applicant’s evidence that he is currently not working in Ireland and is living on borrowed funds. However, he has an entitlement to funds pursuant to the orders of the Family Circuit Court. It is not suggested that if his appeal was successful, he would be left without significant assets (the property pool to be divided between the parties by the courts in Ireland was identified as being of the orders of $2 million). Accordingly, whilst he is presently income-poor, in due course he will be in receipt of considerable assets.
Taking these matters into account, there will be an order that the applicant pay the respondent’s costs fixed in the sum of $1,300.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 November 2018.

Legal associate:

Date: 22 November 2018