Pekkanen & Pekkanen
[2024] FedCFamC1A 97
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pekkanen & Pekkanen [2024] FedCFamC1A 97
Appeal from: Pekkanen & Pekkanen [2024] FedCFamC2F 46 Appeal number: NAA 73 of 2024 File number: MLC 751 of 2022 Judgment of: AUSTIN J Date of judgment: 18 June 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time – Where the applicant provides no adequate explanation for why the appeal was not brought within time – Where the proposed appeal evinces no reasonable prospect of success – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter and De Winter (1979) FLC 90-605
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Number of paragraphs: 15 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) ORDERS
NAA 73 of 2024
MLC 751 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PEKKANEN
Applicant
MS PEKKANEN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 7 June 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pekkanen & Pekkanen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 22 January 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) determined a financial cause between two former spouses under Pt VIII of the Family Law Act 1975 (Cth).
The time within which to file any appeal from that judgment expired on 19 February 2024. No appeal was filed.
About six weeks later, on 2 April 2024, the husband filed an Application in an Appeal seeking leave to file an appeal out of time. The application was listed for hearing, but was adjourned twice due to the husband’s non-appearance and his failure to properly serve the wife. The application was ultimately heard by the appeal registrar on 6 May 2024 and dismissed the following day.
The time within which to file any application to review the appeal registrar’s decision expired on 28 May 2024. No review application was filed.
About a week later, on 7 June 2024, the husband filed an Application in an Appeal seeking to review the appeal registrar’s decision, subject to the grant of leave to entertain the review application out of time.
Within the application form, the husband indicated his preference for the application to be determined on the papers in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which request is granted.
The review application is entertained out of time, which then entails the de novo consideration of the husband’s application to bring an appeal out of time from the orders made on 22 January 2024, but it is dismissed for two reasons: first, there is no adequate explanation for why the appeal was not brought within time; and secondly, the proposed appeal evinces no reasonable prospect of success and so it would be futile to allow it to be brought. Those conclusions follow from application of the principles enunciated in Gallo v Dawson (1990) 93 ALR 479.
Material relied upon
The husband relied upon:
(a)the Application in an Appeal filed on 7 June 2024, supported by his affidavit filed on 7 June 2024; and
(b)the underlying Application in an Appeal filed on 2 April 2024, supported by both his affidavit filed on 2 April 2024 and the draft Notice of Appeal dated 27 February 2024 he intends to file, if allowed to do so.
Disposition
If permitted to bring the appeal, the husband intends to prosecute three grounds of appeal which contend for:
(a)a mistake of fact by the primary judge in finding the husband owned a parcel of real property in Country B (Grounds 1 and 2); and
(b)an assertion the husband spent compensation of $42,500, which he received in 2022 (Ground 3), though the primary judge found exactly that.
The primary judge acknowledged the husband’s contention at trial that he does not own the subject property in Country B (at [3] and [65]–[66]), but his contention was not accepted (at [46]–[47] and [67]) because he did not adduce any evidence or disclose any documents to verify his assertion (at [4], [14], [32]–[33], [53], [55] and [58]). He tendered documents as exhibits (at [44]), but no documents to verify his sister’s alleged ownership of the Country B property. The wife conversely adduced evidence to inferentially prove the husband’s ownership of the Country B property, which the primary judge accepted (at [62]–[64] and [68]).
The husband now wants to adduce as further evidence in the appeal a document written in Arabic to support Grounds 1 and 2, which supposedly proves the husband’s sister’s ownership of the Country B property, but the husband is confronted by three problems. First, the document is not translated and is meaningless in its current form. Secondly, assuming the document would prove what he alleges if translated, its provenance is unverified. Thirdly, he gives no explanation for why he did not adduce the translated document in evidence at the trial.
The original proceedings were commenced in January 2022 and not finalised until January 2024, so he had plenty of time within which to prove he had no proprietary interest in the Country B property. The principles established by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 would preclude admission of the document in evidence in the appeal, without which Grounds 1 and 2 would inevitably fail.
The husband deposed, though without much attendant detail, that he encountered difficulty in acquiring the document from Country B because of the unstable political situation there, but he was able to procure it little more than a month after the delivery of the judgment with which he is dissatisfied, which only begs the question of why it was not procured earlier when he well knew the wife was conducting her case for relief on the premise of his ownership of the Country B property. The husband contends he delayed filing the appeal until the document was to hand, but that alone is an unsatisfactory explanation for the delay.
The primary judge also acknowledged the husband’s admission of receiving the compensation of $42,500 in 2022 and not disclosing it to the wife (at [72]), they having separated in 2017 (at [10]). The primary judge accepted the money had been spent, but not reasonably so, given the husband’s failure to give proper financial disclosure (at [75]). Instead, it was inferred the money was spent by the husband gambling or by sending it to his relatives in Country B (at [76] and [104]–[107]). Accordingly, the money was added-back as a notional asset and formed part of the husband’s share of the parties’ property interests, consistently with well-known authority (at [77]–[78]). If there was a trivial $52 mistake as to the total value of the compensation payment, the error is immaterial to the result (De Winter and De Winter (1979) FLC 90-605).
The review application is dismissed, in which event the registrar’s orders made on 7 May 2024 stand.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 June 2024
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