Percival and Percival - [2009] FamCAFC 32

FAMILY COURT OF AUSTRALIA

PERCIVAL & PERCIVAL

[2009] FamCAFC 32

FAMILY LAW – APPEAL - EXTENSION OF TIME TO FILE APPLICATION FOR LEAVE TO APPEAL – Leave to Appeal against the decision of a Federal Magistrate – Where the trial judge dismissed an application by the Wife in which she sought a stay of proceedings in relation to applications for final orders – Explanation for the delay not a relevant consideration - Application dismissed

Family Law Act 1975 (Cth)
Family Law Rules
Family Law Regulations

Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257
McMahon and McMahon (1976) FLC 90-038
Cassom and Cassom (1988) FLC 91-962
Tormsen and Tormsen (1993) FLC 92-392

APPELLANT:

Ms PERCIVAL

RESPONDENT:

Mr PERCIVAL

FILE NUMBER:

MLC

9146

2007

APPEAL NUMBER:

107

2008

DATE DELIVERED:

23 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

O'Ryan J

HEARING DATE:

12 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 October 2008

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant in person

SOLICITOR FOR THE RESPONDENT:

Ms Jenkins of Holding Redlich

ORDERS

The Application in a Case filed on 16 December 2008 on behalf of Ms Percival (“the Wife”) be dismissed.
The Wife pay the costs of the Husband of and incidental to the hearing of the application.
The costs are assessed in the sum of $964.50
The Wife pay the costs by 4:00 pm on 27 March 2009.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA

Appeal Number: SA 107 of 2008
File Number: MLC 9146 of 2007

Ms PERCIVAL

Appellant

And

Mr PERCIVAL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Before me for hearing is an Application in a Case filed on 16 December 2008 on behalf of Ms Percival (“the Wife”). The Respondent to the application is Mr Percival (“the Husband”). The Wife seeks the following:
Obtain an extension of time to lodge the Appeal document, (the order made by the Federal Magistrate on 30 Oct 2008) due to the prineters [sic] not being able to printed out in the the online Notice of Appeal.
The application is opposed by the Husband.
On 30 October 2008 Federal Magistrate McGuire made the following orders:
1.The matter be listed for final hearing on 19 and 22 December 2008 at 10.00 am.
2.That each party make, file and serve all affidavits and updated financial statements upon which they seek to rely by no later than 4.00 pm on 12 December 2008.
3. The final hearing listed for 30 and 31 October 2008 be vacated.
4.The Respondent pay the applicant’s costs of the adjourned final hearing of 20 October 2008 and 30 October 2008 on an indemnity basis, to the total quantum of $5,800.
5.The question of the date of payment of costs be adjourned to 19 December 2008.
The Court notes that:
This matter has been adjourned following a contested stay application made orally by the Respondent Wife and the matter will proceed to hearing on 19 December 2008.
The Wife appeared before me without legal representation and the Husband was legally represented.
In support of the application the Wife swore an affidavit on 15 December 2008. I also had before me an affidavit sworn by the Wife on 26 November 2008.
At all relevant times there were pending proceedings in the Federal Magistrates Court for settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth).

BACKGROUND

The litigation between the Husband and the Wife has a significantly protracted history. On behalf of the Husband I was provided with a schedule in which particulars were provided of the history of proceedings between the parties. I invited the Wife, if she wished, to make any changes by amendment or addition to the document, however she did not do so. In any event, for reasons for which I will shortly explain, I had before me reasons of Federal Magistrate McGuire of 19 December 2008 and in those reasons his Honour provided what he described as a history of the proceedings.
On 1 December 2006 the Husband filed in the Family Court an application for final orders.
On 22 January 2007 the application for final orders was listed, for what for case management purposes is called a Case Assessment Conference before a Registrar, and the Wife did not attend. The Conference was therefore adjourned to a procedural hearing on 14 February 2007.
On 7 February 2007 the Wife filed a response to the Husband’s application.
On 14 February 2007 the proceedings were listed before a Registrar and procedural orders were made. A Conciliation Conference was appointed for 23 April 2007. On 12 April 2007 the Wife filed an application to review the decision of the Registrar of 14 February 2007.
On 23 April 2007 the Wife did not attend the Conciliation Conference before a Registrar and it was therefore adjourned to 15 May 2007. An order was made that the Wife pay costs in the sum of $192.90.
On 4 May 2007 the Husband filed a response to the Wife’s application of 12 April 2007.
On 10 May 2007 the Wife’s application filed on 12 April 2007 seeking to review the orders of 14 February 2007 came before Dessau J and her Honour dismissed the application and made an order that the Wife pay the Husband’s costs. Her Honour adjourned the Conciliation Conference to 7 June 2007. On 6 June 2007 the Wife filed a Notice of Appeal against the decision of Dessau J of 10 May 2007.
On 7 June 2007 the Conciliation Conference was adjourned to 30 July 2007. On 7 June 2007 the Registrar made an order that the Wife pay the Husband’s costs in the sum of $96.50. On 6 July 2007 the Wife filed an application to review the decision of the Registrar on 7 June 2007.
On 30 July 2007 the matter was again listed for the Conciliation Conference and the Wife did not attend. On that date the proceedings were transferred to the Federal Magistrates Court.
On 21 August 2007 the Husband filed a response to the Wife’s application filed on 6 July 2007.
On 31 August 2007 the Wife’s application filed on 6 July 2007 to review the decision of the Registrar on 7 June 2007 was heard by Guest J and at the conclusion of the hearing his Honour dismissed the Wife’s application and made an order that the Wife pay the Husband’s costs in the sum of $771.60. On 27 September 2007 the Wife filed a Notice of Appeal against the decision of Guest J.
On 25 October 2007 the Wife filed in the Federal Magistrates Court a response to the application for final orders.
On 30 October 2007 the matter was listed in the Federal Magistrates Court before Federal Magistrate Riethmuller and he made procedural and other orders and adjourned the proceedings for final hearing to 20 October 2008 with an estimated hearing time of two days.
On 12 December 2007 Kay J, at a directions hearing, made procedural orders with respect to the Wife’s Notice of Appeal filed on 27 September 2007 against the decision of Guest J.
On 18 April 2008 the Wife filed an application in the Family Court to adduce further evidence at the hearing of her appeal.
On 7 May 2008 the Full Court heard the Wife’s appeal and on 20 June 2008 the Full Court delivered judgment and dismissed the appeal.
On 16 October 2008 an application was filed by the Wife in which she sought that the hearing on 20 October 2008 should be “revoked, suspended, or adjourned to the year 2015”. In support of this application the Wife swore an affidavit on 16 October 2008. The affidavit comprises four paragraphs. In the first paragraph something was said about an application being “illegal and unconstitutional procedure”. The second paragraph referred to proceedings in the Family Court and something about an appeal to the High Court. I do not understand the third paragraph. The fourth paragraph referred to an agreement which the Wife contended she and the Husband had made in July 2004, and as best as I can understand it, the Wife was contending that the hearing be adjourned to 2015 “until youngest girl finished high school”.
On 20 October 2008 the matter was before Federal Magistrate McGuire and on that day the Wife sought an adjournment of the proceedings until 2015 and the application was refused. The Federal Magistrate made the following orders:
1.The interim application of the Respondent for an adjournment filed 16 October 2008 is dismissed.
2.The matter be listed for a two day final hearing commencing 30 October 2008 commencing at 10.00 am
3.The Respondent file and serve an updated financial statement and any further affidavit material on which he seeks to rely by 4.00 pm on 28 October 2008.
4.The question of costs of the applicant of today is reserved.
In summary, the applications for final orders were listed for hearing commencing on 30 October 2008 and directions were made that the Wife file and serve affidavits and an updated financial statement by 4:00 pm on 28 October 2008.
The matter then came before Federal Magistrate McGuire on 30 October 2008 and on that date the Wife made an oral application for a stay of the proceedings and the application was dismissed. The applications for final orders were then fixed for final hearing on 19 and 22 December 2008. Orders were also made granting the Wife an indulgence namely that she file and serve her affidavits and financial statement by 4:00pm on 12 December 2008. Orders for costs were made against the Wife in respect of the adjournments of 20 and 30 October 2008.
On 16 December 2008 the Wife filed the application which I am presently dealing with.
There was put in evidence before me the reasons of Federal Magistrate McGuire of 9 February 2009. In summary, it appears that on 19 December 2008 his Honour heard the applications for final property settlement order on an undefended basis. In his reasons his Honour said that on 18 December 2008 the Wife corresponded directly with the Court and also with the Husband’s solicitors indicating that she would not be in attendance on 19 December 2008. The Federal Magistrate said that the Wife’s correspondence “appeared to indicate that she was contemplating either a number or appeals or collateral court actions against the Husband”. Further, that the Wife had stated that she was unwell although there was “no medical evidence or corroboration” provided. His Honour said that in the circumstances of the history of the matter and what happened on 18 and 19 December 2008 he acceded to the application by the Husband that the hearing proceed on an undefended basis.
His Honour came to the conclusion in the property settlement proceedings that a settlement of 60 per cent of the property of the parties in favour of the Wife would be appropriate and on 9 February 2009 he made an order pursuant to s 79 of the Family Law Act. Thus, subject to the outcome of any appeal, the property settlement proceedings have been concluded.
I also had before me a draft Notice of Appeal. In the Notice of Appeal, referring to the order made on 30 October 2008, the following orders are sought:
1.     The orders should dismissed [sic].
2.     The final hearing should after the High Court and Reconciliation conference.
3.     My ex-husband spent all children’s money $181,000. The final hearing should not proceed [sic] before the dispute has been resolved between my ex-husband and two children.
4.     Our case did not relate with the system of the Family Court. The Federal Magistrate should responsible for his misconducted at court room.
In the draft Notice of Appeal there are 11 grounds and I do not propose to repeat them in these reasons.
There was very little evidence from the Wife explaining precisely what happened subsequent to 30 October 2008. However it appears from a letter dated 4 December 2008 written by the Regional Appeals Registrar to the Wife that on about 27 November 2008 the Wife may have filed a Notice of Appeal and an application in a case and two sworn affidavits. In the letter of 4 December 2008 the Appeals Registrar referred to a facsimile transmission from the Wife on 27 November 2008, an email from the Wife on 27 November 2008 and further documents received on about 3 December 2008. The Appeals Registrar advised the Wife that the Notice of Appeal had not been accepted for filing. It was stated that paragraphs 1, 2, 3 and 5 of the orders sought to be appealed are interlocutory or interim orders in relation to a financial matter and that leave to appeal is required. Further that the facsimile transmission and email were each forwarded after the Registry had closed on 27 November 2008 and therefore the Notice of Appeal was taken to have been submitted on 28 November 2008 and after the 30 day time period for filing an appeal in relation to the orders made on 30 October 2008 had expired. It was also said that the Wife did not submit the filing fee or any application for waiver or exemption from payment of such fee. It was stated that if the Wife wished to proceed with the application for leave to appeal and / or the appeal then an application should be made for an extension of time in which to lodge the appeal documents. Other advice was given which I need not repeat.
In conclusion, I propose to proceed on the basis that the Wife is seeking leave to file out of time an application for leave to appeal against an order made by a Federal Magistrate on 30 October 2008, dismissing an application by the Wife in which she sought a stay of proceedings in relation to applications for final orders which were listed for final hearing on 19 and 22 December 2008.

RELEVANT PRINCIPLES

Section 94AAA(1) of the Family Law Act provides that an appeal from a decree of the Federal Magistrates Court exercising original jurisdiction under the Family Law Act or a decision of a Federal Magistrate exercising original jurisdiction under the Family Law Act rejecting an application that he or she disqualify himself or herself from further hearing a matter lies to the Family Court.
Section 93AAA(3) of the Family Law Act provides that the jurisdiction of the Family Court in relation to an appeal pursuant to s 94AAA(1) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction in relation to the appeal to be exercised by a single Judge. Section 94AAA(13) provides that the Judge need not be a member of the appeal division. Section 93AAA(12) provides that if an appeal is heard by a single Judge, no appeal lies to the Full Court from that Judge's determination. In effect the hearing before the Judge exhausts the appellate jurisdiction of the Family Court and any appeal from that decision would lie, with special leave, to the High Court.
Section 94AA of the Family Law Act essentially provides that leave is required before a party can appeal against a “prescribed decree” of the Federal Magistrates Court. Regulation 15A of the Family Law Regulations effectively defines a “prescribed decree” as an interlocutory decree. However, leave is not required for child welfare matters. Regulation 15A(3) provides that a "child welfare matter" is a matter relating to the person(s) with whom a child is to live, contact between a child and another person(s) or any other aspect of parental responsibility within the meaning of Pt VII of the Family Law Act for a child. The term "decree" is defined in

s 4(1) of the Family Law Act.
Section 94AAA(5) of the Family Law Act provides that an appeal from a decree of the Federal Magistrates Court is to be instituted within the time prescribed by the standard Rules of Court or such further time as is allowed in accordance with the standard Rules of Court.
Rule 22.01(1)(b) of the Family Law Rules (2004) provides that Chapter 22 of the Rules applies to appeals to the Family Court from an order of a Federal Magistrate, whether heard by the Full Court or a single judge. Rule 22.02(1) provides that a person may start an appeal by filing a Notice of Appeal. Rule 22.02(2) provides that if an appeal cannot be started without the leave of the court then leave must be sought in the Notice of Appeal. Rule 22.03 provides that a 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. Rule 1.14(1) however provides that a party may apply to the Court to shorten or extend a time that is fixed under the rules by a procedural order. In summary, this rule gives discretion to extend or shorten time.
Section 94AAA(10) of the Family Law Act provides that applications of a procedural nature including applications for an extension of time in which to institute an appeal from a decree of the Federal Magistrates Court may be heard and determined by a single Judge or by a Full Court.
In Gallo v Dawson (1990) 93 ALR 479 McHugh J said at 480 “The grant of an extension of time… is not automatic…” and citing the decision of McInerney J in Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262 said “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”. The discretion to extend time is given for the purpose of enabling the court to avoid an injustice and the court must determine whether justice as between the parties is best served by granting or refusing the extensions sought. The discretion is unfettered and must be exercised having regard to the facts of the case. In exercising the wide discretion various authorities have identified relevant considerations and they include the history of the proceedings, the conduct of the parties, the nature of the litigation, the right of the respondent to the application to retain the benefit of the judgment, the desirability of finality of the litigation; the consequences to the parties of the granting or refusal of the application, whether any hardship suffered by the respondent to the application may be able to be compensated for and injustice avoided by putting the applicant on terms; whether there is sufficient explanation for failure to file and serve a Notice of Appeal within time and whether the grounds of appeal raise a substantial issue, that is an issue that would materially effect the outcome of the case if resolved in the applicant’s favour: see Gallo v Dawson (supra); McMahon and McMahon (1976) FLC 90-038; Cassom and Cassom (1988) FLC 91-962 and Tormsen and Tormsen (1993) FLC 92-392.

CONCLUSION

The Wife appeared before me without legal representation and this was unfortunate.
I am of the view that in the circumstances of this matter an explanation for the delay is not a relevant consideration. I take into account that the Wife has no legal representation. Further, that she did attempt to file documents complaining about the dismissal of her oral application for an adjournment at or about the expiration of the time for filing an application for leave to appeal. There are however other matters that are relevant.
I have taken into account the history of the proceedings, the conduct of the parties, the right of the Husband to retain the benefit of the order, the desirability of finality of the litigation concerning the application and that hardship would be suffered by the Husband in that he would have to incur unnecessary cost and expense that may not be able to be compensated for. The Wife had every opportunity to participate at the hearing of the applications for final orders and there was no evidence before the Federal Magistrate that supported a delay in the finalisation of those proceedings.
However, the most important consideration in this matter is the nature of the litigation. The proceedings which the Wife was seeking be adjourned have now been finally concluded. If the Wife has a complaint it should be in relation to the order of 9 February 2009. In all the circumstances, I propose to dismiss the application.

COSTS

The Husband seeks an order that the Wife pay his costs assessed in the sum of $964.50. This was opposed by the Wife.
I do not propose to set out in these reasons the matters that I am required to take into account pursuant to s 117 of the Family Law Act. However, I am satisfied that the Husband has established a justifying circumstance namely that the Wife has been wholly unsuccessful in the proceedings. I have no evidence of the financial circumstances of each party however I note that in his reasons of 9 February 2009 the Federal Magistrate found that the total net assets, including superannuation interests, had a value of $1,710,714 and the Wife received a property settlement of 60 per cent of the “property”.
I propose to make the order sought by the Husband. I am satisfied that the amount sought, as explained by the solicitor for the Husband, is appropriate.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan.

Associate:
Date:23 February 2009.