Paret and Paret & Ors
[2017] FamCAFC 199
•18 September 2017
FAMILY COURT OF AUSTRALIA
| PARET & PARET AND ORS | [2017] FamCAFC 199 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory explanation as to why the applicant was unable to file his Notice of Appeal within time – Where none of the grounds of appeal relied on by the applicant have any chance of success – Where the appeal has no merit – Where there is prejudice to all parties no matter what the decision – Where the lack of any adequate explanation of the failure to file within time and the absence of any prospect of success of the proposed appeal outweigh any prejudice to the applicant in refusing his application – Application dismissed. FAMILY LAW – COSTS – Where the respondents seek their costs thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondents. |
| Family Law Act 1975 (Cth) s 117 |
| Family Law Rules 2004 (Cth) r 22.03 Bevan & Bevan (2014) FLC 93-572 |
| APPLICANT: | Mr Paret |
| FIRST RESPONDENT: | Ms Paret |
| SECOND & THIRD RESPONDENTS: | Mr Macold & Ms Macold | ||||
FILE NUMBER: | ADC | 827 | of | 2016 | |
| APPEAL NUMBER: | SOA | 62 | of | 2017 |
| DATE DELIVERED: | 18 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2016 |
| LOWER COURT MNC: | [2016] FCCA 3271 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Kari |
SOLICITOR FOR THE FIRST RESPONDENT: | Rosey Batt & Associates | ||||
| Ms Ross Mildwaters Lawyers |
Orders
The application in an appeal filed on 18 August 2017 be dismissed.
The applicant pay the costs of the first, second and third respondents of and incidental to the application in an appeal filed on 18 August 2017 such costs to be taxed in default of agreement.
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 Paret & Paret and Ors 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).
|
Appeal Number: SOA 62 of 2017
File Number: ADC 827 of 2016
| Mr Paret |
Applicant
And
| Ms Paret |
First Respondent
And
| Mr Macold & Ms Macold |
Second & Third Respondents
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 18 August 2017 by Mr Paret (“the husband”). The application seeks in effect an extension of time to file a Notice of Appeal against orders made by Judge Heffernan on 20 December 2016.
The application is opposed by Ms Paret (“the first respondent”) and Mr Macold and Ms Macold (“the second and third respondents).
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:
22.03A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
Note 1 Rule 17.01 sets out when an order is made.
Note 2 A person may apply for an extension of time to appeal or to make an application for leave to appeal (see rule 1.14)
In this matter the relevant orders were made on 20 December 2016, and they were made at the same time as judgment was delivered. Thus, in accordance with the Rules, a Notice of Appeal, if one was to be pursued, needed to be filed within 28 days of that date. In this case, that did not occur, and as a result the husband has now filed the application which is before the court today.
Relevant principles
The principles applicable to the determination of an application for an extension of time are helpfully set out in the oft-quoted judgment of Gallo v Dawson (1990) 93 ALR 479, and particularly in the judgment of McHugh J 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.
Accordingly, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in addressing that issue a number of factors are relevant.
The three major factors are first, whether there are adequate reasons explaining the failure to file a Notice of Appeal within the time provided in the Rules, secondly, the prospects of success of an appeal if an extension of time is granted, and thirdly, the prejudice or hardship that each of the parties will suffer, depending on whether the application for an extension of time is granted or dismissed.
I now address those major factors in turn.
Adequate explanation
In his affidavit filed on 18 August 2017 in support of the application, the husband’s reasons for the failure to file a Notice of Appeal within time are set out.
In summary, the husband says that although he was aware of the requirement to file a Notice of Appeal within 28 days, he felt at a loss with the reasoning of the trial judge and he took no action. He says though that subsequently new information came to his attention in the context of his Honour considering applications for costs by the respondents, and that new information was contained in affidavit material filed by the respondents on or about 17 March 2017.
The new information was, in effect, as the husband describes it, a concession that he did not know of the sale of the property the subject of the proceedings until 2014, and in that context the husband refers to the Full Court decision of Bevan & Bevan (2014) FLC 93-572, which judgment was cited to his Honour, and referred to by his Honour in his reasons for judgment. The husband says that that concession highlighted the difference between this case and the facts in the case of Bevan. I will return to that issue shortly.
In my view, none of that provides an adequate explanation for the failure to file a Notice of Appeal within time.
There is in fact no new information which came out of the costs proceedings, or more particularly the affidavits filed by the respondents, and at [32] and [33] of his reasons for judgment his Honour said this:
32.On 29 May 2010, the wife transferred Property K to the second and third respondents for an amount of $395,000. The wife asserts that she applied the proceeds of the sale to paying off the […] loans in full, legal fees, rates and taxes, accountancy fees, and the repayment of other small loans and expenses.
33.The husband says that he retired during the course of 2011 and commenced to receive the aged pension. He said in his evidence that he only found out about the sale of Property K when he met with the wife in a coffee shop. He later conducted a property search on or about 16 June 2014. On the husband’s version, this does not appear to have prompted him to contact the wife. The wife states that she made contact with the husband in July or August of 2014 to tell him that his mother was in hospital. He returned to South Australia and the parties met for a cup of coffee at about this time. On the wife’s version, which I do not understand to be disputed by the husband, this was the first time they had seen each other in about 7 years. Approximately 15 months later, on 16 November 2015, the husband instructed solicitors to represent him with respect to a property application. He lodged a caveat over Property K in December 2015. This caveat was removed in about March 2016. In March 2016, the husband filed his Initiating Application in this matter.
(Footnote omitted)
His Honour addressed this issue as follows:
120.In considering the merits of the husband’s application the following matters are relevant:
a)Whether there is evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transfer of Property K to the second and third respondents was not bone fide (was it made to defeat an existing or anticipated order in property proceedings?);
b)If there is not evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transfer was not bone fide, the interests of the second and third respondents;
c)If there is not evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transfer was not bone fide, the need to protect the interests of the second and third respondents;
d)If there is not evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transfer was not bone fide, the capacity of the applicant and or the first respondent to indemnify the second and third respondents for any loss sustained in setting aside the transaction, if I am satisfied that it is necessary to do so;
e)If there is not evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transaction was not bone fide, would the transaction if undisturbed, nonetheless be likely to defeat any property orders I might reasonably be likely to make;
f)If there is not evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transaction was not bone fide, whether protection of the interests of the second and third respondents requires the s.106B application to be dismissed;
g)The significance of any delay on the part of the applicant in bringing property proceedings; and
h)Whether there is evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that supports a conclusion that it would be just and equitable to make an order pursuant to s.79.
121.I am not satisfied that there is evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the transfer of Property K to the second and third respondents was not made bone fide. At the time of the transaction, it is undisputed that the parties had been separated for about 3 years. The wife was the sole director of G Pty Ltd and the husband was living interstate with a new de facto partner. There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the applicant husband did anything other than walk away from the property, the marriage and the debts. There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the husband genuinely believed that Property K would somehow be preserved to be shared equally as a form of superannuation by him and the wife. There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the husband believed during the period of separation that the property was financially self-sufficient and that the wife was managing tolerably well in the absence of any significant financial contribution from him. There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the husband made, as he asserted in his affidavit and oral evidence, significant financial contributions to the marriage after separation. In that regard, I note that “…-4” tendered by the husband establishes that after separation, he paid a total of $800 directly to the wife. He also paid the amount of $1,700 to O Industries, who held one of the mortgages over Property K, with the last payment being in August 2008. Conversely, post separation, the husband paid an amount of about $28,000 to solicitors on behalf of his daughter, between September 2007 and August 2008. He also paid an amount of $9,600 to Ms T, who I understand to be his de facto partner, between June 2008 and August 2008 for reasons not disclosed on the materials.
122.The husband stated in his evidence, with respect to the wife’s financial position during the long period of separation, that “the phone was always available”. There is no evidence reasonably capable of belief that the husband would have been prepared to, or been capable of, making any significant financial contribution towards the residual debts after he made his final payment to O Industries and prior to the transfer of Property K, or at any later time, had the wife sought his assistance.
123.A reasonable inference would be open, on the basis of the husband’s admitted conduct and the acknowledgement in his affidavit that he did not seek a property division at an earlier stage because (inter alia) it would not have been in his interests to do so, that he had washed his hands of the assets and liabilities of the marriage, and had gone on with his life at least until he was satisfied that the financial situation had been substantially improved by the wife alone.
124.In my view, the husband has provided no adequate explanation for the very lengthy delay in instituting proceedings in this matter. He has provided no explanation for his delay after conducting the property search in 2014. If his oral evidence as to the “coffee shop meeting” is accepted, the lack of explanation for delay is even more egregious because the delay is significantly longer. In the period since separation, the evidence suggests that the wife had moved on with her life and made pragmatic decisions in an attempt to deal with her difficult financial circumstances, including the transfer of Property K in order to clear the majority of the debts of the marriage. On the husband’s own case, that debt was also his. He has accordingly derived a benefit from the wife’s decision. It is remarkable that the husband should now criticise the wife in his submissions for having sold Property K at less than what he regards as a proper market value. I am satisfied that there is evidence reasonably capable of belief that the first, second and third respondents conducted themselves bone fide with respect to the sale of Property K and that the wife in effect had no other realistic option open to her but to sell the property on the basis she did.
125.Having considered the husband’s affidavit material, oral evidence and submissions, I am not satisfied that there is evidence of sufficient quality and weight to enable him to succeed at trial.
In my view, those paragraphs make it abundantly clear that the claim by the husband that the information that he says only became apparent in March 2017 was new information, is not correct.
Moreover, as counsel for the first respondent has emphasised to me today, even if there was some new information coming out of those proceedings, there is no explanation provided by the husband to explain the delay between March 2017 and August 2017 in bringing the application in an appeal which is now before the court.
The merits of the appeal
I note here, that at the commencement of the hearing today, the husband sought to tender a further affidavit. That was opposed, and I was referred specifically to his Honour’s reasons for judgment, where his Honour set out in the history of the proceedings, examples of where the husband had sought to present documents to the court quite late in the piece. That aside, I received the affidavit and the annexures thereto for the purposes of determining the relevance of the material, and having done that, found that there was no basis for that affidavit to be received. In any event, as conceded by the husband, the material in the affidavit was much the same as that in his affidavit filed on 18 August 2017. There was some additional material, for example, a so-called opinion by a solicitor, but I immediately returned that to the husband indicating that it was quite inappropriate to present such a document to this court. For those reasons I refused to receive the affidavit and annexures thereto, and I returned the same to the husband.
It is not usually possible for me in an application like this to be definitive in assessing the merits of a proposed appeal. Invariably I have limited documentation, and for example, in this case, I have the reasons for judgment of the trial judge, the draft Notice of Appeal filed by the husband, and the husband’s affidavit filed on 18 August 2017. Importantly, what is not before me, is the transcript of the hearing before the trial judge, as well as all the documents which were before the trial judge, and the summaries of argument from the parties, which would be before a Full Court if the appeal was allowed to proceed.
In those circumstances, the only question for me is whether there is an arguable case on appeal demonstrated by the documents that I do have, and the oral submissions of the parties. Indeed, where it appears that there is even the remotest chance of success, then that is enough. In this regard the exercise is somewhat similar to the exercise required in determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then, subject to where the justice of the case lies, the appeal should be allowed to proceed.
Here, in my view, to use that phraseology, the appeal is hopeless and doomed to fail, and I am able to make that assessment from what I have before me.
There are four grounds of appeal in the draft Notice of Appeal. At first blush it is quite difficult to identify within those grounds of appeal the specific errors alleged to have been made by the trial judge. There is in effect a summary of the four grounds of appeal in the draft Notice of Appeal itself, and there is a document attached to that draft Notice headed “Grounds of Appeal” which traverses the four grounds of appeal, but to repeat, it is quite difficult to discern what the particular alleged errors are.
Doing the best I can, the first ground of appeal raises the issue of the Full Court decision in Bevan, to which I have referred earlier in these reasons. It seems that what the husband is complaining of is that the trial judge treated that case, and the facts of it, as determinative of the matter before him, and he bases that primarily on his Honour’s use of the word “apposite” in his reasons for judgment.
With all due respect to the husband, that is misconceived. The Full Court decision in Bevan is an important decision of the Full Court, and it is often referred to by trial judges in their decisions, but referred to in the sense of applying the legal principles emanating from Bevan to the facts confronted by those trial judges, and that is precisely what occurred here. For example, his Honour said this:
126. As the Full Court of the Family Court observed in Bevan’s case :
“The basis upon which it can be concluded in many cases that it is just and equitable to make orders interfering with existing interests in property following the breakdown of marriage is because it is no longer appropriate to proceed on the basis of the stated and unstated assumptions between the parties to the marriage in circumstances where they have not expressly considered whether, or to what extent, there should be some different arrangement of their property interests (Stanford at [41] ). In the present matter, however, over a long period of time after the end of their marriage, the parties did give express consideration to what should become of their property. In such circumstances we consider the husband must do more than point to the end of the relationship in order to persuade us that there is some principled basis upon which we should interfere with an existing state of affairs created by the consent, or at the very least, acquiescence of the parties.
The present state of affairs between the parties did not arise as a result of any duress or even agitation by the wife, but rather by the voluntary act of the husband. We do not consider it useful to engage in any detailed speculation about why the husband considered it appropriate to allow the wife to retain all of the assets that had been built up over many years. It is the case, however, that the husband elected to leave Australia, initially travelling the world by boat, at a time of severe financial crisis in the family. Given the matters referred to in paras 58 and 59 of the wife’s trial affidavit, there is at least some basis for the submission made by senior counsel for the wife at trial (Transcript, 4 December 2012, p 9 and following) to the effect that it was the husband’s unilateral action which brought on, or at least exacerbated, the financial crisis. In the ensuing years, the wife was largely left to deal alone with what her evidence suggests was debilitating, protracted litigation involving financial dealings with the husband’s brother in law.”
(emphasis added)
127.I regard those observations as apposite to an assessment of the merits of the husband’s application in this matter.
(Footnote omitted)
Again, the husband has misconceived his Honour’s use of the word “apposite”. His Honour is not saying that the case of Bevan is the same as the case at bar, and thus should be decided in the same way. His Honour is applying the principles in Bevan to the facts of this case; nothing more, nothing less.
It seems the husband’s particular concern about Bevan is that there was a period of some 18 years when the husband in that case did nothing, compared to this case where the husband says the relevant period was 18 months. That is true, there is that factual difference, and indeed the husband raised that with the trial judge. At [109] his Honour said this:
The husband said that a distinction should be drawn between his circumstances and that in the case of Bevan. The timeframe in Bevan was 18 years, but for him it was a mere 18 months between finding out that the property had been sold and lodging his caveat. …
Plainly then, his Honour was well aware of what the husband was saying, but it was not relevant to his Honour’s decision and how his Honour applied Bevan.
Thus, this is a ground which has no prospect of success.
Ground 2, and again, doing the best I can, challenges his Honour’s description of a submission made by the husband as being disingenuous. His Honour said this at [110]:
The husband submitted that one of the reasons his application had merit, was that he and the wife still had unfinished business between them and the debts that were outstanding from the property have yet to be dealt with. I regard that submission as disingenuous.
And at [113] his Honour said this:
… I repeat, I regard the submission of the applicant that these proceedings are in part motivated by a desire to settle debts that, on his own case, he walked away from almost a decade ago, to be disingenuous. …
In my view, that description by his Honour was open on the evidence, and there is no error by the trial judge in that regard.
Thus, this is also a ground which has no prospect of success.
In relation to Ground 3, the husband raises the issue of a phrase appearing in his Honour’s reasons, namely “self-sufficiency”, in relation to the superannuation of the parties, and the question of payments of the mortgage over the relevant property being met.
Unfortunately I have extreme difficulty understanding the complaint that the husband makes in this so-called ground of appeal. There are a number of references in his Honour’s reasons to self-sufficiency in the context of superannuation and mortgage repayments, but the paragraphs which most seem to fit that description, and contain that reference, are [62] and [121]. Those paragraphs are as follows:
62.The husband says that he looked forward to sharing “that super” with Ms Paret “down the line”. He said that there was not a lot of money in the kitty but their superannuation was the property, and the property was self-sufficient in terms of income versus repayments. He said that he did not expect the property sale in 2010. He states that he only found out about it in 2014.
…
121.… There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the husband genuinely believed that Property K would somehow be preserved to be shared equally as a form of superannuation by him and the wife. There is no evidence reasonably capable of belief (and from which reasonable inferences favourable to the applicant can be drawn) that the husband believed during the period of separation that the property was financially self-sufficient and that the wife was managing tolerably well in the absence of any significant financial contribution from him. …
Again, in my view, those findings were perfectly open to the trial judge and no error is demonstrated.
Thus, Ground 3 has no prospect of success.
I will give Ground 4 short-shrift. This ground suggests there is a conspiracy. According to the husband the trial judge asked him at some stage whether he thought there was a conspiracy. However, nowhere in his Honour’s reasons does his Honour address this in the context of suggesting that his Honour was thinking, or considering that there was a conspiracy. Clearly the husband thinks there is, but there is no basis for suggesting that the trial judge shared that view, and there can be no basis for suggesting any error in how his Honour dealt with that issue.
Thus, again, there is no prospect of success in relation to Ground 4.
The consequences of the granting or refusal of the application
If the application is granted, then the appeal will be allowed to be filed and it will be able to be pursued by the husband. The respondents will need to deal with it. They will need to spend time and inevitably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the respondents given that currently there is no appeal before the court, and they are entitled to proceed on that basis, and as has often been said, they are entitled to the fruits of the judgment of the trial judge.
I have heard submissions as to the financial circumstances of the parties and how the respondents have incurred significant legal fees in relation to this matter. They recognise that if the appeal is allowed to proceed they will incur further legal fees in responding to the appeal, and that clearly must feed into the prejudice or hardship that they would experience if the application was successful.
On the other hand, if the application is refused, the husband will not be able to pursue his appeal. Significantly, there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia; however, that is a difficult exercise, and may not of course be warranted in this case. Thus, that is a serious consequence for the husband if the application is refused.
Conclusion
As the authorities recognise, a consideration of the relevant factors here informs the court in determining the fundamental issue, namely where the justice of the case lies. Here there is no adequate explanation for the failure to comply with the Rules, there is no prospect of the proposed appeal succeeding, and the only factor left to consider is the consequences to the parties of the granting or refusal of the application.
As I have identified, there is prejudice whichever way the decision goes, but given there is no adequate explanation for the failure to file within time, and no prospect of success, those factors outweigh any prejudice to the husband in refusing his application, which is what I propose to do.
Costs
I now have applications for costs by the respondents given the order that I have made in relation to the application.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs the applications for costs that are now made. What has to be demonstrated to obtain an order for costs is that there are circumstances which justify an order for costs being made, and s 117(2A) sets out the factors that the court needs to consider in determining whether there should be an order for costs.
In my view there are circumstances here that justify orders for costs.
The application has been wholly unsuccessful and, in my view, just like the proposed appeal, the application was doomed to fail from the outset. However, the application was filed and pursued. The respondents have instructed their legal representatives to oppose the application and appear today, as they are entitled to do, and as is appropriate. Thus, as a result of the dismissal of the application the respondents have incurred legal costs unnecessarily.
The husband has raised the issue of financial circumstances in his opposition to the applications for costs.
I am required to take into account the financial circumstances of the parties under ss 117(2A)(a) of the Act, and I do so.
Submissions have been made about the respective financial circumstances of the respondents, and I accept, albeit from the bar table, that the husband is in poor financial circumstances. However, this court has said on many occasions that impecuniosity is not a bar to an order for costs being made where there are circumstances which justify such an order, (see for example D & D (Costs) (No 2) (2010) FLC 93-435), and that is the case here. To repeat, the only reason the respondents have had to incur legal costs is the application made by the husband which was doomed to fail from the outset, and that is what has transpired.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 September 2017.
Associate:
Date: 26 September 2017
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