ONGAL & MATERNS - [2010] FamCAFC 165

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2010] FamCAFC 165

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the application was filed 11 months after the time to appeal expired – whether there are adequate reasons explaining the delay – whether there is a substantial issue to be raised on appeal – consideration of the hardship or injustice to the parties – not satisfied an extension of time is necessary to enable the Court to do justice between the parties – application dismissed.

FAMILY LAW - COSTS – application for costs by the respondent – where the applicant has been wholly unsuccessful – financial circumstances of the parties – order for costs made.

Family Law Act 1975 (Cth) s 117

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

26 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

26 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 May 2009

LOWER COURT MNC:

[2009] FMCAfam 476

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Julie Margaret

Orders

That the Application in an Appeal filed by the father on 17 May 2010 be dismissed.
That the father pay to the Trust Account of the mother’s solicitor the sum of SIX HUNDRED AND SIXTY DOLLARS [$660.00] by way of costs, such sum to be paid within 28 days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Ongal & Materns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 29 of 2010
File Number: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

EX TEMPORE REASONS

I have before me an Application in an Appeal filed by the father on 17 May 2010, seeking an extension of time to file a Notice of Appeal. Mr Ongal filed an affidavit in support of that application and he has also filed a draft Notice of Appeal. He seeks, in effect, to appeal against orders made by Federal Magistrate Brown on 15 May 2009.
A Notice of Appeal must be filed within 28 days after the date the order appealed from was made. However, a party may apply to the Court to extend this time limit, and that is what Mr Ongal has done. The 28-day time period expired, obviously, towards the middle of June 2009, yet Mr Ongal has only filed his Application in an Appeal on 17 May 2010. He has thus taken 11 months or thereabouts to file this application.
The principles applicable to determining such an application are not in doubt and they emanate from a decision of the High Court in Gallo v Dawson (1990) 93 ALR 479. There McHugh J said this (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 and Agency Co. of Australasia Ltd. (1978) VR 257, at p 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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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 p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 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 p 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.
That decision has been followed in this Court, both at appellate and first instance level. At the appellate level, I refer to cases such as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392. In Tormsen (supra) the Full Court made a point of indicating that what should also be taken into account is the desirability in the public interest that there be finality of litigation.
In McMahon (supra), Evatt CJ described the factors that need to be considered in this way:
…that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on appeal, and that no hardship or injustice is caused to the respondent which cannot be compensated by orders as to costs or otherwise.
In summary, then, what the relevant authorities say in this area is that the fundamental issue for consideration is whether the grant of an extension of time is necessary to enable the Court to do justice between the parties and, in determining that issue, there are a number of factors to which regard should be had, and I have now identified those factors.
In this case, the relevant factors are, firstly, whether there are adequate reasons which explain the delay. Now, there are two periods of time which need to be addressed here. One is the 28-day period after the making of the orders, and the second period of time is the period of time between the expiry of that 28-day period and when, in fact, the application is filed.
As I have said, Mr Ongal filed an affidavit in support of his application. He subsequently filed a further affidavit, also in support of this application and I have closely read those affidavits. As I have pointed out to Mr Ongal today, though, and particularly with his second affidavit, a good deal of the information that he has deposed to is irrelevant to the issues that I have to determine.
I will not belabour the point by proceeding chapter and verse through that second affidavit, but the value of it, it seems to me, is only in two areas. One, it tells me what has happened in certain District Court proceedings which were on foot at the time the Federal Magistrate delivered his reasons for judgment. Also the affidavit tells me what has happened in relation to certain proceedings in the Administrative Appeals Tribunal which, as I understand it, were not on foot at the time of the delivery of judgment of his Honour but are proceedings commenced subsequently.
There is more substance in the father’s earlier affidavit, and by that I mean more relevant material in relation to the application that is before me today. For example, what he tells me in that affidavit is that he sought legal assistance from the Legal Services Commission of South Australia after the orders were made, but that was unsuccessful. He has annexed a letter from the Legal Services Commission dated 26 June 2009 which tells me that not only was his application for legal assistance refused but his appeal against that refusal was dismissed.
He then tells me in that affidavit that he sought assistance from a community legal centre, namely the Southern Community Justice Centre, but he was also unsuccessful in obtaining legal assistance from that source, and there is a letter dated 10 August 2009 to that effect.
There is nothing though, that the father has put in his affidavits which demonstrates any attempt by him to obtain legal assistance to pursue an appeal.
I observe that Mr Ongal, has appeared in person before me today. He appeared in person before Federal Magistrate Brown. He has appeared in person in the District Court proceedings, and he has appeared in person in the Administrative Appeals Tribunal. There was a period of time when he was represented but I understand that was at least two to three years ago. Thus he is someone who is now used to appearing on his own behalf, not only in the Federal Magistrates Court but in other courts and tribunals that I have referred to.
In a nutshell, what Mr Ongal has put today as his reason for the delay, and I have noted it specifically, is that he did not have the time to mount an appeal because of the other proceedings which were ongoing, namely, the District Court proceedings and the Administrative Appeals Tribunal proceedings.
He also said to me that he had received advice, and I initially took it to be legal advice but it in fact was not, that he should first proceed in the Administrative Appeals Tribunal to seek the overturn of a departure prohibition order which has been put in place by the Child Support Agency as a result of his failure to make payments pursuant to child support assessments and the accumulation of arrears as a result.
That prohibition order prevents him from travelling overseas and Mr Ongal has been at pains to point out to me in the affidavit material and in his submissions today that he wants to work but he cannot work without that order being lifted, given the nature of his work.
Thus that, in a nutshell and in summary form, is what Mr Ongal says are the reasons for him, firstly, not filing an appeal within time, but secondly, and perhaps more importantly, taking so long to file an Application in an Appeal. I take from that that he has consciously made a decision to proceed with the other matters, including the District Court matter, and put aside the proceedings in the Federal Magistrates Court, thinking that, “Oh, well, no-one would be too concerned about that. I can come back to that in my own good time when I feel that I am able to”. He forgets though that the respondent is entitled to the fruits of the judgment of Brown FM from May 2009. When reminded of that he candidly says, “No matter, the respondent is not prejudiced because I am not paying anything anyway, and by the way, I do not really need to pay because things have been taken care of by the fact that the District Court proceedings have now finalised.”
Those proceedings were between the father and the mother as well, and as a result the mother has received payment of $215,000 recently. Mr Ongal’s position is that that gives her money to support herself and to support the child.
That gives an indication of where Mr Ongal’s priorities lie and how he thinks that he can simply take his good time to challenge the decision made by the Federal Magistrate and force the respondent to wait for many, many months until he, on 17 May 2010, deigned to file his application. He now says, “Okay, I am now ready. Let’s get on with this so I can challenge the decision made by the Federal Magistrate.”
This approach of Mr Ongal does not impress me one bit.
Mr Ongal’s case is that he cannot work because of the prohibition order. That needs to be lifted, then he can work and pay child support. However what he fails to appreciate is that the Federal Magistrate made certain findings about his financial circumstances, and his Honour found that Mr Ongal did have the capacity to earn and he did have the capacity to pay. Mr Ongal, of course, challenges those findings by the Federal Magistrate but that does not mean that they are wrong, that does not mean they go away, that does not mean that no one else takes any notice of them. They are clear and concise findings by his Honour which I have to take into account.
The next factor which I consider is relevant to this application that is before me is whether there is a substantial issue to be raised on appeal. In that regard I have had the opportunity to read and consider the judgment of the Federal Magistrate delivered on 15 May 2009, and the draft Notice of Appeal prepared by Mr Ongal. For my part, the reasons for judgment appear to be, prima facie, sound. His Honour has recited the relevant law. He has made findings of fact which would appear to be open to him. Looking at the grounds of appeal, I cannot be definitive about it, but it seems to me that Mr Ongal will have extreme difficulty in succeeding in any of them. Thus I am not in a position to find that there is a substantial issue to be raised on appeal, which is of course how this factor was phrased by Evatt CJ in McMahon and McMahon (supra).
In terms of the hardship or injustice that might be caused to the parties, depending upon whether this application is granted or it is refused, and looking at the consequences to the parties in that regard, if the application is refused then that is the end of the opportunity for Mr Ongal to appeal against his Honour’s orders, and that is a significant consequence which I need to take into account. On the other hand, in terms of the respondent, if I allowed the application and granted an extension of time, the respondent would then be faced with having to deal with the appeal.
Now, those consequences are easily stated but, of course, they cannot be viewed in isolation. For example, taking the applicant’s position, it could easily be said. That he has brought this on himself because he has chosen this course. He had ample opportunity to proceed and there is nothing that he has put in his documents which would dissuade me from this finding. He has had ample opportunity to file, firstly, a Notice of Appeal within time, but more importantly, an Application in an Appeal seeking an extension of time. It is apparent that he busied himself to see if he could obtain legal assistance to appeal but what happened after that proved to be unsuccessful? Was there an application made? No. He left it for another nine months before he has done anything.
What I have said about the respondent’s position also cannot be viewed in isolation. The orders were made by the Federal Magistrate in May 2009. The respondent would have to marshal her forces and be prepared to deal with this appeal some year later, or more, because if I allow the extension of time this appeal may be heard this year, but it more than likely would not be heard until next year. Thus that is a significant consideration which I have to take into account as well.
In terms of the history of the proceedings, there is nothing much I need or can say about that. The application that was before his Honour was filed in 2008. His Honour heard the application and delivered reasons for judgment in 2009. There is nothing unusual in that timeframe and so there is nothing that I feel I need to make comment on in terms of the history of those proceedings.
The conduct of the parties - well, there is nothing that I need to say about that, save and except that the most relevant conduct of either party is the failure by the applicant to bring an application on appeal within a reasonable timeframe.
The nature of the litigation? It is about money, namely child support, but to repeat the father candidly says in his documents, “There is no prejudice to the other side. I am not paying anything here anyway, so what is the problem?” Mr Ongal needs to take a step back and think about that issue some more.
After considering those factors, the question then is whether the granting of an extension of time is necessary to enable the Court to do justice between the parties in light of those factors.
In my view, the application should be dismissed. That is where the justice of this case lies in the circumstances and on the basis of the factual material that is before me.
I now have an application for costs by the respondent and the amount sought is $990 including GST. That covers three court attendances and includes the work done in relation to those attendances, such as taking instructions and the like.
Mr Ongal has opposed that application primarily on the basis that he cannot afford to pay the amount sought. He has also, though, reiterated his position in relation to the application generally, which was that he brought the application bona fide and wanting to ultimately, as he said, return to work to be able to pay child support and meet other outstanding liabilities.
One issue that needs to be mentioned is that one of the three court appearances was, in fact, aborted because of Mr Ongal’s inability to attend Court at the time. It was a hearing - indeed, the initial hearing of this matter - set for 21 June 2010, and Mr Ongal was returning from H that morning after spending time with his children pursuant to orders made in the Federal Magistrates Court. The mother had counsel here and she herself was in attendance. She had come from H. Unfortunately, and this is not in dispute, the father was unable to be here because of fog at the airport and his flight was delayed, and as a result the hearing was adjourned to 23 June.
Ms Lee seeks the costs of that attendance as part of the overall costs that her client seeks on the basis that Mr Ongal should be responsible for all costs of and incidental to the application, given that he was wholly unsuccessful. That has some sense and logic to it but, equally, the position is that although Mr Ongal has been unsuccessful in his application his non attendance or his inability to attend on 21 June was beyond his control and thus I do not propose to order any costs in relation to that particular court appearance.
In my view, there are circumstances that justify an order for costs. Section 117 of the Family Law Act1975 (Cth) provides as follows:
Section 117
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The relevant factor is that Mr Ongal has been wholly unsuccessful in relation to his application. The application has been dismissed. Thus that provides a compelling circumstance which would lead to an order for costs.

However, there are other factors that I have to take into account and, primarily, in this case, the financial circumstances of the parties.
The mother’s position is that she is studying and she receives a Centrelink pension. The two children reside with her pursuant to orders of the Federal Magistrates Court. They spend time, and regular and frequent time, with the father, though.
The father is not paying and has not paid any worthwhile child support for some time. Mr Ongal has pointed out that he pays $40 per month child support, but that it is not a voluntary payment. It is automatically deducted from his Centrelink benefit and if Mr Ongal considers that $40 a month goes anywhere near to meet what is needed to support two young children then, again, his priorities need attention.
The father’s financial position, as he has explained to me and I will not repeat it in detail, is that he is receiving a benefit. He says he cannot work, as opposed to the finding of the Federal Magistrate. He says he cannot pay child support beyond what is deducted from his benefit; again, as opposed to what the Federal Magistrate has found in his reasons for judgment. All his energies and all his available funds go towards enabling him to spend time with his children, which is an admirable circumstance, but does not put food in the children’s mouths nor a roof over their heads during the time that they are with their mother.
In any event, he says he cannot afford $660. It would create difficulty in his household. His current wife works two days a week to provide income for the household and she has managed to obtain monies from her relatives to purchase the house in which they now live and which has led to the settlement of the District Court proceedings with a payment of $215,000 to the mother.
In my view there should be an order for costs. There are circumstances that justify an order being made. As I said, I do not consider it appropriate to make an order for costs in relation to the aborted hearing. Ms Lee has informed me that without that hearing the costs that her client seeks would be $660 including GST in relation to the hearing on 23 June 2010 and the hearing today. She tells me, and I can see for myself from those sums, that that is on scale and in my view it is appropriate to make an order in those terms.

I certify that the preceding 42 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 July 2010.

Associate