Nhan and Vuong
[2017] FamCAFC 165
•17 August 2017
FAMILY COURT OF AUSTRALIA
| NHAN & VUONG | [2017] FamCAFC 165 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – where the husband failed to comply with the requirement to file a draft appeal index – where the husband’s appeal was deemed abandoned –where the husband applied to reinstate the appeal – where there was no merit in the appeal – where the wife would have been put to the expense, stress and inconvenience of resisting an unmeritorious appeal had the application been allowed – application dismissed – order for costs. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth)
| de Lasala v de Lasala [1980] AC 546 Gallo v Dawson (1990) 93 ALR 479 Harris v Caladine (1991) 172 CLR 84 Jackamarra v Krakouer (1998) 195 CLR 516 Kohan & Kohan (1993) FLC 92-340 |
| APPLICANT: | Mr Nhan |
| RESPONDENT: | Ms Vuong | ||||
| FILE NUMBER: | BRC | 8257 | of | 2009 | |
| APPEAL NUMBER: | NA | 60 | of | 2016 |
| DATE DELIVERED: | 17 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 2 and 6 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1944 |
REPRESENTATION
| THE APPLICANT: | In person (with the assistance of an interpreter) |
| COUNSEL FOR THE RESPONDENT: | Mr Munsie |
| SOLICITOR FOR THE RESPONDENT: | H & N Lawyers |
Orders
The Application in an Appeal filed by the husband on 7 November 2016 be dismissed.
Mr Nhan pay the costs of Ms Vuong of and incidental to the appeal proceedings in NA 60 of 2016, including of the Application in an Appeal filed on 7 November 2016, on a party and party basis.
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 Nhan & Vuong 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 60 of 2016
File Number: BRC 8257 of 2009
| Mr Nhan |
Applicant
And
| Ms Vuong |
Respondent
REASONS FOR JUDGMENT
Mr Nhan (“the husband”) applies pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the FLR”) for reinstatement of his appeal from orders made by Judge Jarrett in the Federal Circuit Court on 29 July 2016.
By operation of rr 22.13(2) and (3) of the FLR the husband’s appeal from those orders was deemed abandoned as a consequence of the husband’s failure to file a draft index to the appeal book.
Ms Vuong (“the wife”) opposes the husband’s application, primarily on the contention that the appeal had no prospects of success.
Context of the orders made on 29 July 2016
On 4 February 2014 the wife was granted leave, pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to commence proceedings for alteration of the property interests of the parties pursuant to s 79 of the Act.
Also on 4 February 2014 the parties, each then respectively represented by solicitors and counsel, entered into consent orders by way of property settlement. Relevantly, those property settlement orders included these:
BY CONSENT, THE COURT FURTHER ORDERS THAT:
2.Subject to obtaining finance, within 28 days the Husband shall pay the Wife the sum of $20,000 immediately upon the receipt of that finance such sum to be paid to the Wife’s solicitor by electronic funds transfer to the flowing [sic] account:
[The wife’s solicitors trust account]
3.Subject to the respective Trustee of [the named] Super Fund being giving no less than 28 days notice of these proposed orders and after such notice, not objecting to such orders, then
a.The base amount of $36,000.00 be allocated to the Wife out of the Husband’s interest in the [named] Super Fund.
…
12.If the Husband does not fulfil either orders 1 or 2, then the parties agree the matter should proceed to a hearing.
Whilst Order (12) refers to “orders 1 or 2” it is uncontroversial that Order (12) actually refers to the first two property settlement orders made by consent, that is, Orders (2) and (3) as Order (1) in the orders as entered in the Court’s record is the order granting leave under s 44(3) of the Act.
Plainly, Order (12) reflects the parties’ apparent agreement at the time that if the husband was unable to raise finance to pay the wife the sum of $20,000 within 28 days of the orders, then in addition to the superannuation splitting order of the husband’s superannuation in the wife’s favour in “[t]he base amount of $36,000.00”, that the “matter”, that is, the wife’s application for property adjustment orders, “should proceed to a hearing”.
There was no appeal by either party from the consent orders made on 4 February 2014. Nor did either party ever seek any extension of time for the carrying out of any obligation under those orders. Importantly, the husband never made any application to extend the 28 day period provided for in the orders in which he was to obtain finance in order to pay the wife the sum of $20,000.
It is uncontroversial that the husband did not pay the wife the sum of $20,000. That obviously had the consequence that Order (12) took effect.
On 16 July 2014 the wife filed an application for contravention of orders directed to the husband’s failure to pay her the sum of $20,000. In April 2015 the wife filed her further application pursuant to s 79A of the Act to have the consent orders set aside and another s 79 order made in substitution. That application was pursued either on the basis that Order (12) of the consent orders constituted the “consent” of the parties, within the meaning of s 79A(1A); or that the husband had defaulted in carrying out an obligation within the meaning of s 79A(1)(c).
On 29 July 2016 Judge Jarrett dismissed the wife’s application for contravention of orders. The reasons for judgment record that the husband contended that he had not paid that sum because he had been unable to obtain finance to so do, as the orders contemplated (at [3]).
Judge Jarrett accepted the wife’s contention that the terms of Order (12) constituted “consent”, within the meaning of s 79A(1A) of the parties to varying or setting aside the consent orders or, alternatively, that s 79A(1)(c) was engaged. Thus his Honour determined that the jurisdiction to vary or set aside the consent orders, and make another order under s 79, had been enlivened (at [4]).
Judge Jarrett thus proceeded to hear and determine property settlement orders under s 79 of the Act. The orders made on 29 July 2016 relevantly left unaffected the split of the husband’s superannuation in favour of the wife as provided for in the February 2014 consent orders, which had been effected, but required the husband to pay to the wife $94,000 within 28 days of those orders. In default of that payment being made, the orders further provided for the former matrimonial home to be sold, and for the net sale proceeds (after deduction of costs of sale) to be divided equally between the parties.
On 24 August 2016, and thus within the prescribed time period, the husband filed a Notice of Appeal from the orders made by Judge Jarrett on 29 July 2016.
Whilst it is only that appeal (NA 60 of 2016) with which the application currently before the Court is concerned, reference ought be made to the other appeal proceedings which have been pursued by the husband.
On 29 November 2016 on application by the wife, Judge Jarrett ordered that the wife be appointed trustee for sale of the subject property and a warrant for possession was also to issue in default of the husband delivering up possession of the subject property.
On 8 December 2016 the husband filed a Notice of Appeal with respect to the 29 November 2016 orders (NA 88 of 2016).
On 12 December 2016 Judge Jarrett refused the husband’s application for a stay of the warrant of possession. On 14 December 2016 the husband filed an appeal from that refusal (NA 89 of 2016).
On 21 December 2016 Judge Jarrett dismissed a further application by the husband seeking relief from the operation of the previous orders referred to. On 22 December 2016 the husband filed an appeal from that dismissal (NA 94 of 2016).
In the event, the warrant for possession of the subject property was executed on 12 January 2017. Settlement of the sale of the property was effected on 3 February 2017.
On the hearing of this application the Court was informed that the solicitors for the wife were holding the sum of $101,161.27 on trust for the husband representing his share of the proceeds of sale but that the husband had refused to cooperate with their efforts for him to receive a cheque in payment of that sum. The husband contended to the effect that he was not interested in money, his only interest being in recovering the former matrimonial home. Attempts by the Court to explain to the husband that in circumstances where execution has resulted in sale of that property meant that no outcome of the various appeals wold see the property returned to the husband, did not meet with success.
The current application
On 7 November 2016, approximately six weeks after the appeal was deemed abandoned by operation of the FLR, the husband filed an Application in an Appeal seeking to have this appeal (NA 60 of 2016) reinstated.
Both parties are Vietnamese by origin. English is not the first language of either party. Judge Jarrett’s reasons for judgment refer to the fact that the husband suffered a brain injury in a fall in 2006 and that the husband receives a disability support pension as well as working on a casual basis.
I interpolate here that the Court arranged an accredited and independent interpreter in the Vietnamese language to be available to assist the husband on the hearing of his application. That interpreter was available via video link. However, for much of the hearing of this application the husband seemed to prefer communicating himself directly in English rather than conveying communication via the interpreter and seemed to prefer to respond directly without first having the benefit of interpretation. Without being critical of the husband, and whether this was a symptom of his head injury, he was prone to angry outbursts where his speed and nature of language was difficult to comprehend.
In support of his application, the husband filed an affidavit which asserts (in its entirety):
Because I do not know the appeal papers documents, and nobody to tell me to do for appeal but the receptionists only said to me go for legal help and private lawyers but I am the pensioner & don’t have the money to hire a lawyer other hand the Mike (Registra, he said so) he said to me he’d call Vietnamese interpreter for me within a week, but all week long he’s said to me he could not organize the Vietnamese interpreter for me. That very suspicious because with Vietnamese interpreter only 48 hours, you can have one, but this is all a week long time, so more and more late my appeal, at last he said that he could not call in one interpreter.
That all truth and correct
Your faithfully
[Signature]
(Errors and omissions as in original)
It appears that the husband’s affidavit is to be treated as an assertion that the husband’s lack of legal experience and poor understanding of the English language hindered him being able to understand what was required of him in the preparation of the appeal books, and as such he requires an extension of time within which to comply with the requirements of the draft index of appeal.
Relevant principles
It is well settled that four considerations are of central relevance to, but are not necessarily exhaustive of, the considerations relevant to the discretion to be exercised; namely, the length of delay, the reasons for delay, whether there is an arguable case and the extent of any prejudice to the respondent.
There is an obvious distinction to be made between cases where the Court is considering an application for an extension of time to file an appeal and a case such as this where the question is whether time for taking a step in prosecuting an appeal should be extended. In particular, in the former case the respondent has a vested right to retain the judgment, unless the application is granted so that for an applicant to succeed on such an application there must be material upon which the Court can be satisfied that to refuse the application would constitute an injustice. That generally requires an applicant to demonstrate that an appeal will have merit. In the latter class of case, such as this, once an appeal has been lodged within time the merits are not a relevant consideration in an application for an extension of time to comply with procedural rules unless the Court can be satisfied that the appeal is devoid of merit, such that it would be futile to extend time (Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516).
Length of, and reasons for, delay
Whilst counsel for the wife conceded that the length of the delay prior to the husband filing his current application was not significant, counsel asserted that the reasons for the delay were not adequate and did not support the husband’s case.
As already noted, it can be seen that the husband’s contention concerning his failure to file the draft index of appeal is to the effect that he was advised by the Appeals Registrar that because he was a self-represented litigant the Registry would not accept for filing any “paperwork” he attempted to file unless an interpreter was available to explain the processes. His essential contention is that the Registry was not able to arrange for such an interpreter and as such he did not file the relevant documents.
Whilst the length of the subject delay is not substantial, there is some force in the submissions on behalf of the wife that the delay is not adequately explained by the husband. The explanation offered by the husband is difficult to reconcile with, not only, the inherent unlikelihood of the Appeals Registrar having contributed to the relevant delay in the manner and respects in which the husband asserts, but also with the feature that no similar difficulty appears to have attended any of the other (multiple) appeals filed by the husband.
That noted, even if the proper conclusion be that the husband has not adequately explained his (relatively short) delay before filing his current application, that would not of itself, in my judgment properly result in refusal of the application. I do not consider that the subject delay can be characterised as intentional or contumelious or to have, in and of itself, produced any material prejudice to the wife.
Merits of the appeal
The husband’s Notice of Appeal filed on 24 August 2016 particularises only one ground of appeal as follows:
1.I believe the order made was unfair because I believe that there had already been settlement when they already withdrawn out $36,000.00 from my […] Super and $20,000 from the bank but the bank refused. So they breach the agreement.
The husband did not require leave to appeal what was a final order. However, insofar as the husband’s basis for seeking leave to appeal in his Notice of Appeal is considered a substantive challenge to his Honour’s orders, the husband contends that he “was not legally represented at the hearing on 29/07/2016.”
On its face, a generous (to the husband) interpretation of his sole ground of appeal as expressed, referring to the orders made as being “unfair”, might be construed as a complaint that the primary judge’s property settlement orders went beyond a legitimate exercise of the s 79 discretion in the wife’s favour, having regard also to the wife having received the benefit of the $36,000 splitting order of the husband’s superannuation.
However, in arguing this application, asked to identify what error or errors he contended the primary judge had made, the husband sought to emphasise that he was not contending that errors were made by the primary judge. The husband contended that on the hearing before the primary judge the wife’s legal representatives “cheated”. This was clarified with the husband as meaning that the conduct of the legal representatives comprised of, according to the husband, the wife’s legal representatives having, in effect, misrepresented the terms of the February 2014 consent orders before the primary judge, in asserting that the wife had an entitlement to return to Court on the husband’s failure to pay the $20,000 sum particularised in the consent orders.
It bears repetition that the February 2014 consent orders were entered into by the husband at a time when he was legally represented by both solicitors and counsel. Whilst Order (12) of those orders might be characterised as unusual or somewhat unconventional, the correct interpretation of that order and the only interpretation of that order reasonably open, is that interpretation which was adopted by the primary judge.
As is reflected in the reasons for judgment of the primary judge, before his Honour the husband argued that because he was unable to obtain finance to pay $20,000 to the wife he should simply be regarded as being relieved of that obligation with no further or other orders being made. Such an absurd interpretation of the subject orders was properly rejected by the primary judge. However, it is that interpretation which the husband seeks to re-agitate on appeal if his appeal is reinstated. That is, in fact, the only challenge the husband seeks to mount on appeal.
Indeed, it became increasingly apparent during the course of the husband’s argument of his application that his complaint is in relation to the terms of the February 2014 consent orders, although there was no appeal from those orders and the husband has never sought an extension of time to file an appeal from those orders.
Moreover, it appears that the husband did not contend before the primary judge any complaint to the effect that the consent orders were incorrect in the sense of not reflecting the husband’s agreement or intention at the time. In any event, it is obviously the terms of the consent orders to which legal effect had to be given by the primary judge, that no longer being dependent upon the agreement of the parties once the curial order was made. Moreover, in the making of the earlier consent orders on 4 February 2014, Judge Jarrett exercised a discretion as to the propriety of the provisions (de Lasala v de Lasala [1980] AC 546 per Lord Diplock at p 560 and Harris v Caladine (1991) 172 CLR 84). It may readily be inferred that propriety of the subject consent orders was achieved, in part, by Order (12) providing as it did for the Court to determine the wife’s application for s 79 orders in the event that either the splitting order, or the order for the husband to pay the wife $20,000, went unperformed.
Even if the husband at all times operated under a misconceived interpretation of the consent orders it obviously was not one shared by the wife or her legal advisors, or indeed the Court. That is, it cannot be assumed that the wife would have entered into consent orders providing that if the husband could not obtain finance, his obligation to pay was at an end. That being so, if there had been no agreement or consent orders, the matter would have proceeded to a judicial determination, which is what occurred.
As to his lack of legal representation in the proceedings before Judge Jarrett leading to the 29 July 2016 orders, there is nothing the husband points to or identifies as even suggesting, let alone establishing, some denial of procedural fairness to him or a lack of natural justice. In the hearing of this application the husband was fixated solely upon the erroneous interpretation of the effect of the February 2014 consent orders for which he contended, and which he sought to have Judge Jarrett adopt, and seeks by his appeal to have adopted.
In my judgment, having regard to the sole challenge the husband seeks to
re-agitate on appeal as to the proper interpretation of the subject order, it can readily be concluded that this appeal is so devoid of merit that it would be futile to extend time.
Prejudice to the wife
The reasons for judgment delivered by the primary judge reflect that the property of the parties, or either of them, is exceedingly modest in value.
Relevantly, the primary judge found that the wife bore primary responsibility for the three children of the marriage prior to the parties’ final separation in 2006 and that the wife has essentially borne sole responsibility for the children subsequent to the parties’ separation. The primary judge found that the youngest child suffers a disability requiring “particular services and special education to assist her to deal with her disabilities. [The wife] is responsible for dealing with those issues. [The husband] provides no assistance” (at [50]).
The husband was, at trial, in receipt of a disability support pension and was found by the primary judge to be capable of only modest casual employment to supplement his pension, although he has re-partnered and has had another child with his partner. The primary judge found the wife to be reliant upon a single parent pension having no skills for employment and no child support from the husband. His Honour found at [51]:
…There will be significant call on her resources to care for the parties’ three children. She will have to do that without assistance from [the husband]. That is a matter of considerable significance particularly where the asset pool in this case is very modest and their youngest child is still young.
That brief summary suffices to highlight that the wife has exceedingly limited means to meet further legal costs. They would have to be funded from her modest capital and would reduce her capacity to provide for the children, a matter of particular significance in the case of the youngest child with special needs and the absence of any assistance, including financial assistance via child support, from the husband.
So too it is the case that the husband is of very limited financial means, albeit that he is self-represented and does not incur legal costs in pursuing litigation.
The singular lack of merit in this appeal does not justify the wife being put to the expense, stress and inconvenience of resisting it. It cannot be assumed that the wife, even if wholly successful, would receive an order for indemnity costs and would thus suffer the prejudice of diminishment of her already limited capital in resisting an appeal which was without merit.
Costs of the application
I am satisfied that in circumstances where the appeal was without merit and the husband has been wholly unsuccessful on this application (within the meaning of s 117(2A)(e) of the Act) that there are justifying circumstances, within the meaning of s 117(2) of the Act, for an order for costs to be made in the wife’s favour.
However, I am not satisfied that consideration of the factors referred to, or any other of the s 117(2A) considerations, results in the conclusion that an order on an indemnity basis, recognised as a very great departure from the usual costs order (see, for example, Kohan & Kohan (1993) FLC 92-340) is justified.
There should be an order that the husband pay the wife’s costs of and incidental to the appeal proceedings in NA 60 of 2016, including of this application, on a party and party basis.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 August 2017.
Associate:
Date: 17 August 2017
0