PERREN & PERREN

[2020] FamCA 634

FAMILY COURT OF AUSTRALIA

PERREN & PERREN [2020] FamCA 634

FAMILY COURT – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal in relation to Consent Orders made at a Local Court on 26 September 2017 – Where consideration of applicable principles – Where time to file Notice of Appeal extended

Family Law Act 1975 (Cth) ss 79, 96
Family Law Rules 2004 (Cth) rr 1.14, 22.03

Blakeley & Jaine [2020] FamCAFC 114

APPLICANT: Mr Perren

RESPONDENT: Ms Perren

FILE NUMBER: DUC 82 of 2020

DATE DELIVERED: 3 August 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Coleman SC

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Ms Tabbernor

SOLICITOR FOR THE RESPONDENT: Neil Jones Solicitors

Orders

1. That the time for the applicant husband to file a Notice of Appeal from orders made in the Local Court of New South Wales on 26 September 2017 be extended to the close of business on the seventh day after the date of these orders.

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 Perren & Perren 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 82 of 2020

Mr Perren

Applicant

And

Ms Perren

Respondent

REASONS FOR JUDGMENT

1. On 26 September 2017 the Local Court of New South Wales made property orders by consent on the application of the husband and wife in the present proceedings.  The husband now seeks leave to file a Notice of Appeal out of time in respect of those orders.

2. At the time of the Consent Orders the wife was represented by solicitors and the husband was unrepresented.

3. In summary, the Consent Orders provided:

   a)that the husband pay to the wife the sum of $3,720 per fortnight and that such payment continue until such time as there was a payment by the husband to the wife representing one half of the husband’s lump sum superannuation payout plus the sum of $100,000;

   b)that upon the husband attaining the age of 60 years or otherwise becoming eligible to access his superannuation entitlements as a lump sum he do all things necessary to apply to the trustee of his fund as to the value of such lump sum entitlement;

   c)that upon the husband receiving advice as to his lump sum entitlement the husband transfer to the wife a sum equivalent to 50 per cent of his net lump sum entitlement as valued plus $100,000; and

   d)that within 28 days the husband transfer to the wife his interest in the real estate property situate at C Street, D Town in the State of New South Wales and concurrently with such transfer the wife discharge or refinance into her name the mortgage then secured over that property.

4. Otherwise, the Consent Orders relevantly noted:

   a)that the property at D Town had an agreed value of $850,000 and was subject to an outstanding mortgage at that time of $580,000;

   b)that the husband’s superannuation scheme was currently in the payment phase at the rate of $3,720 per fortnight and that at the age of 60 years the husband has the ability to receive his superannuation as a lump sum agreed by the parties to be approximately $1.165 million; and

   c)that there was agreement that neither party was in a position to refinance the real estate property mortgaged into their sole names until the husband is eligible for his lump sum superannuation payment.

5. On 26 September 2017 the order of the Local Court was in the following terms: “Orders made in accordance with terms of settlement filed on 15/09/2017.  Attached and marked annexure A”.

6. On 28 February 2020 the husband made an application for an order pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) that the orders made on 26 September 2017 be set aside and that the assets of the parties be divided equally.

7. In his Amended Initiating Application filed 27 March 2020 the husband sought alternative relief as follows:

   a)that the time for lodging a Notice of Appeal against the orders of the Local Court of New South Wales of 26 September 2017 be extended to 5.00 pm on the date of the making of this order;

   b)that pursuant to the previous order the husband have leave to file a Notice of Appeal against the Local Court orders asserting that the orders were infected by jurisdictional error, constituted a constructive failure of the Local Court to exercise jurisdiction and were erroneous in principle in that, on the evidence before it, the Local Court could not reasonably have found or inferred that making the orders was just and equitable; and

   c)otherwise, the husband maintained the relief sought by him under s 79A of the Act.

8. The respondent wife on 10 March 2020 filed a Response in effect seeking a dismissal of the husband’s Initial Application.

9. The proceedings were initially commenced in the Federal Circuit Court of Australia.

10. On 30 March 2020 that court relevantly ordered that the husband within 24 hours pay into the trust account of Campbell Paton and Taylor, if he has not already done so, the balance of funds he commuted from his superannuation account being approximately $580,000 and that the husband be restrained from further commutation of his superannuation monies.

11. On the same day, the Federal Circuit Court transferred proceedings to this Court.

12. On 12 May 2020 the matter was listed for judicial case management and directions were made as follows:

    (1)The Applicant husband file and serve any further affidavit material to be relied upon by him in support of his application for an order extending time to file a Notice of Appeal in relation to orders made at the Local Court on 26 September 2017 with such affidavits to be filed and served by no later than Tuesday, 26 May 2020.

    (2)The Applicant husband file and serve written submissions in support of his application for an order extending time by no later than Tuesday, 26 May 2020.

    (3)The Respondent wife file and serve written submissions in response to submissions of the husband and in support of her opposition to such leave by no later than Tuesday, 9 June 2020.

    (4)The Applicant husband file and serve any short submissions in reply to those of the wife by no later than Tuesday, 16 June 2020.

    (5)Upon completion of submissions, judgment is reserved to chambers.

    THE COURT NOTES THAT

    (6)The parties will request that the file from the Local Court be sent to this registry for the purpose of the present application and upon receipt of the file it will be marked into the exhibit registry which will facilitate both parties inspecting same and the parties are informed by the Court today that this Court will refer to that file, if necessary, in considering judgment in this matter.

13. On 29 May 2020 the parties were granted leave to inspect documents produced by the Local Court of New South Wales.

14. Subsequently, on 3 June 2020 further interim orders were made by consent as follows:

    (1)That the parties immediately do all such acts and things and sign all documents necessary to establish a transaction account in the joint names of the parties and to transfer to that account from the F Bank Account number …70 the sum of $50,000 and invest the remaining balance in a control money account in joint names of the parties.

    (2)That pending further order, the parties shall do all such acts and things and sign all such documents necessary to pay from the account established in accordance with Order 1:

    (a)all repayments on the G home loans accounts numbered …6/1 and …6/2 as and when they full due; and

    (b)all repayments on the F Bank personal loan account numbered …01 as and when they fall due.

    (3)That pending further order both parties are restrained from dealing with the funds in the account established in accordance with Order 1 for any purposes other than those described in Order 2 without the written consent of the other party.

15. On 23 June 2020 following the completion of submissions, judgment was reserved.

16. The husband relied upon the following documents:

    a)his Amended Initiating Application filed 27 March 2020;

    b)his affidavit filed 27 March 2020;

    c)his further affidavit filed 25 May 2020;

    d)the affidavit of Dr H filed 25 May 2020;

    e)his updated Financial Statement filed 27 March 2020; and

    f)his tender bundle marked P – 1.

17. For her part, the respondent wife relies upon the following documents:

    a)her Response filed 10 March 2020 to the Initiating Application;

    b)her affidavit filed 10 March 2020; and

    c)her tender bundle.

The husband’s evidence

1. The husband is presently aged 60 and the wife aged 57.

2. The parties commenced cohabitation in 1986 and married in 1987.  They separated in May 2017 after about 30 years of cohabitation.  The parties were divorced in 2019.

3. There are two children of the parties’ marriage who are now aged 26 and 22.

4. The husband says that at the commencement of their relationship neither party had any assets of significance. 

5. At the commencement of cohabitation the husband was working as a public servant with the New South Wales Government .  He remained in employment with the New South Wales Government until 2009.  The wife was also a public servant at the commencement of cohabitation and remained in that employment until 1999, shortly after the birth of the parties’ second child.  Thereafter, the wife obtained part-time work until about 2012 at which time she ceased employment.

6. The husband commenced employment with the New South Wales Government in early 1981 until retiring in February 2009.  At the time of his retirement the husband had obtained a promotion.

7. The husband proffers detailed evidence as to the impact that his employment had on his mental and psychological health that resulted in a diagnosis of Post-Traumatic Stress Disorder and depressed mood leading to his retirement in 2009.

8. Subsequent to his retirement, the husband received a pension initially equivalent to about 73 per cent of his then income.  The pension was subject to annual CPI adjustments.  At the age of 60 the husband was able to commute his pension to a lump sum.

9. On the husband’s retirement in February 2009 he received a lump sum payment of accumulated employment benefits totalling about $203,000 with those funds paid into the parties’ joint account at that time.

10. In 2011 the husband commenced civil proceedings in the District Court of New South Wales seeking damages against the State of New South Wales. In December 2012 judgment was entered in the husband’s favour in the sum of $520,000.  A net sum of about $415,000 was paid to the husband in February 2013 and deposited to the parties’ then joint account.

11. In May 2013 the parties jointly purchased the property at D Town, New South Wales using funds from the lump sums received by the husband and a mortgage from G home loans.  Otherwise, the parties purchased a new car.  Subsequently, the mortgage on the property was extended to facilitate some renovations and improvements to the property.

12. Subsequent to separation, the wife has remained in occupation of the property and remains in that property to date.

13. As to the Consent Orders made in the Local Court, the husband was at that time unrepresented and the orders were made only four months after the parties’ final separation in late May 2017.

14. The husband asserts that he was unaware as to his entitlements under the Family Law Act 1975 and asserts, otherwise, that he agreed to the orders by reason of emotional pressure put on him by the wife including her threats to self-harm.

15. Brief evidence from the husband’s then general practitioner is indicative of the husband continuing to suffer difficulties from his Post Traumatic Stress Disorder and depressive symptoms at the time of separation and thereafter. 

16. The husband asserts that his understanding was that the final property settlement would be an equal division.  Yet draft documents received by him reflected a percentage division of 63/37 in favour of the wife.  He asserts that the wife represented that she would make an adjustment payment to him at the time of sale of the matrimonial home and that if he insisted on an equal division the wife threatened suicide.  He asserts that at the time he signed the documents on 12 September 2017 the wife insisted that the effect of the agreement was an equal division of their assets and that when the home was sold he would receive half of what was received on sale.

17. The husband asserts that there was no exchange of any financial documents prior to making of the orders nor were there any valuations undertaken as to the value of the home or the value of his superannuation interest.  At the time of the orders the husband was employed in another public servant position on an income of about $68,000 per annum.  Thereafter the husband obtained employment with J Organisation.

18. Subsequent to the orders, the husband’s superannuation pension continued to be paid into the parties’ joint account and applied to mortgage repayments and was drawn against by the wife for her living expenses and, otherwise, not accessed by the husband.  The husband asserts that the effect of the orders was that the wife received approximately $1.678 million in net assets and that he received about $545,000 in net assets giving to the wife about 76 percent of the asset pool.

19. The husband asserts that he continued to suffer from the effects of his mental health difficulties and depression and did not seek legal advice in relation to the Consent Orders until early January 2020.  He attained the age of 60 years on 27 February 2020 and at that time had a one-time opportunity to make an election to commute all or part of his then pension to a lump sum at some time between 27 February 2020 and 27 August 2020.

20. On about 25 December 2019 the husband received written advice from his superannuation fund as to exchanging his incapacity pension to a lump sum.  At that time the value of the husband’s gross fortnightly pension was $4,417 and the value should he commute his pension to a lump sum was $1.258 million.

21. The husband had significant concerns as to his long-term ability to support himself in the event that he commuted the whole of his pension.  As a consequence, the husband preserved $2,000 net per fortnight as an ongoing pension and the remainder of his pension was commuted to a lump sum of $644,282.  Part of that lump sum has now been preserved by reason of the interim orders referred to above.

22. The Application for Consent Orders: the husband exhibited to his affidavit the Application for Consent Orders filed in the Local Court on 15 September 2017.  It is noted in respect to that application:

    a)that the husband was unrepresented;

    b)that the husband did not receive any independent legal advice in respect to the proposed orders;

    c)that the husband represented that as at the age of 60 his expected lump sum entitlement from his superannuation would be approximately 1.165 million;

    d)that the effect of the parties’ representations in the application and the orders was that there was significant inequality in the result proposed to be achieved by the orders in that the wife would ultimately receive the former matrimonial home unencumbered and the husband would primarily be left with half of his lump sum commutation in the sum of about $558,000.

The wife’s evidence

1. The wife acknowledges that the husband at the time of the Consent Orders was not legally represented although “he was strongly encouraged to seek independent legal advice”.

2. The husband, she says, was reminded of his obligation to comply with the Consent Orders in terms of commutation of his pension by letter from her solicitor dated 3 December 2019.

3. Subsequently, on 3 January 2020 the husband communicated to the wife his disquiet in relation to the Consent Orders, he “felt he had been overly generous”.

4. On 9 January 2020 the wife’s solicitors wrote to the husband reminding him of his obligation to pay to her the sum of $729,261 pursuant to the Consent Orders.  Subsequently, on 13 January 2020 the wife’s solicitors received correspondence from the husband’s solicitors seeking to vary the financial arrangements made pursuant to the 2017 Consent Orders.  The wife opposed any such variation.

5. The wife expressed concern as to the prospective disposition by the husband of that part of his pension that he did commute as referred to above.  That concern resulted in the injunctive orders referred to above.

6. The wife asserts that the parties contemplated the wife being able to retain the rural property that formed the matrimonial home and hence the arrangements provided for in the Consent Orders was made.

7. The wife does not take much issue with the background financial history of the marriage as asserted by the husband although she asserts that her mother provided funds to the parties during the relationship to assist them financially.  Subsequent to separation, the wife inherited about $177,000 from her late mother’s estate.  Some of those funds she says were expended by her in improvements and maintenance to the home that continues to be occupied by her.

Discussion

1. It is readily apparent that the husband’s hurt on duty pension and thus ultimately his ability in whole or in part to commute that pension to a lump sum is an entitlement to which the wife could not be regarded as having made any substantial contribution.

2. Otherwise, prior to separation the husband obtained a verdict of common law damages and although the various components of that verdict are not readily apparent it is likely that it would be regarded that that entitlement also had little or no relationship to any contribution made by the wife.

3. It is further readily apparent that there was significant disparity in the result achieved by the consent orders with that disparity favouring the wife.

4. Section 96 of the Act relevantly provides:

   (1)An appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under this Act to the Family Court or to the Supreme Court of that State or Territory.

   (1A)An appeal under subsection (1) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

   …

   (4)The court hearing an appeal under this section:

   (a)shall, subject to subsection (5), proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and

   (b)may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.

5. It is trite to say that in the event that the husband was granted leave to appeal from the orders made in the Local Court of New South Wales, it is simply a matter for him to, in the context of that appeal, withdraw his consent and the orders would be rendered nugatory.

6. Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:

   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.

7. Rule 1.14 of the Rules provides:

   Shortening or extension of time

   (1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

   (2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

   (3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party's costs in relation to the application.

1. The principles relevant to an application for leave to appeal out of time are well settled.

2. In Blakeley & Jaine [2020] FamCAFC 114 Ainsley-Wallace J set out succinctly the applicable principles:

   [5]The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480–481, his Honour said:

   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. 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. 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. 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. 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.

   [6]As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the wife and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail.

   [7]It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.

   [8]This being an appeal from an interim financial order, leave to appeal must be granted. In determining leave to appeal, the applicant must show that that the decision in question is attended with sufficient doubt to warrant the grant of leave and that a substantial injustice will result from a refusal of leave to appeal (Medlow & Medlow (2016) FLC 93-692).

   [9]The assessment of whether leave would be granted, as with an assessment of the merit of the appeal rests as I have indicated on a consideration of the documents supporting the application. I am of the view that sufficient merit is demonstrated in the proposed appeal that it could not be said to be futile to grant leave to commence the appeal, all other things being equal.

3. As to the merits of the proposed appeal, it is contended by counsel for the applicant that the Local Court could not on the evidence before it have made the necessary jurisdictional and evaluative findings which the law required of it.

4. Otherwise, it is contended by counsel for the applicant that at the relevant time the applicant was not represented and had not received legal advice, there was deficiencies in the evidence before the lower court in that the outcome of the Consent Orders reflected significant inaccuracy in the ultimate percentage entitlements contemplated by the parties.

5. Of course, as set above, should the applicant be granted leave to file an appeal out of time it is only incumbent upon him to thereafter withdraw his consent to the orders.  Notwithstanding the question of consent or otherwise, on the evidence before this Court and regardless of some factual matters in dispute between the parties as to the history of their financial relationship, it would be difficult for this Court to come to the conclusion should the appeal proceed that the orders made by consent were in all the circumstances just and equitable and they would not be affirmed on appeal. 

6. It is also readily apparent that on the evidence before this Court that ultimately orders may be made that are more properly reflective of the various contributions asserted by each of the parties in their evidence for the purposes of the present application.  Hence, the granting of an extension of time to file an appeal would not be futile.

7. The Court must consider the question of delay.  In this context the applicant, when becoming aware of the ultimate impact of the orders on his proposed commutation of the entirety of his pension in December 2019, took a different course in relation to commutation and made prompt application to the Court seeking to impugn the Consent Orders upon attaining legal advice.

8. Otherwise, the Court must consider any prejudice to the respondent wife in granting to the husband leave to appeal out of time.  Clearly, the wife would be deprived of the benefit of the orders made by consent.  However, as referred to above, the overall appropriateness of those orders and whether they in all the circumstances were just and equitable such that they should have been made is indicative of leave being granted so that the property entitlements of the parties can be ascertained appropriately.  In this regard it is readily apparent that there are significant issues of fact in dispute between the parties arising from the financial history of the relationship.

9. It is contended by counsel for the applicant that the requirement of strict compliance with the rules would work an injustice. Should the applicant’s present application for leave to appeal out of time be refused, the Court would then need to proceed to hear and determine the applicant’s s 79A application in respect of which much the same evidence as is before this Court in the present application would be relevant.

10. It is contended by counsel for the wife that the prejudice to the wife in granting the leave sought by the husband is significant.  It is contended that the husband by his own conduct has complied with the orders made by consent until early this year when he expressed his dissatisfaction with the ultimate operation of those orders. 

11. It is further contended by counsel for the wife that the husband has not provided an “acceptable explanation for delay” before commencing the current proceedings.  Yet it is readily apparent that the ultimate ascertainment of the commutation value of the husband’s periodic hurt on duty pension would not be known until February 2020.  Otherwise, the husband’s mental health issues are not much in dispute and provide a background to the overall question of delay.

12. Counsel for the wife complains that there is futility in taking a course that would permit the husband to engage in s 79 proceedings on the merits in circumstances where he has not asserted what ultimately his entitlements might be.  This is referred to above in having regard to the nature of the parties’ respective contributions to the husband’s hurt on duty pension and his subsequent common law damages.  Overall, the ultimate result obtained by the Consent Orders was significantly weighted in favour of the wife being a result that it appears was not contemplated by either of the parties.

13. In all of the circumstances it is appropriate that leave be granted to the husband to file a Notice of Appeal out of time from the subject orders.  Orders will be made accordingly.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 August 2020.

Associate: 

Date:  3 August 2020