Radel and Radel
[2020] FamCAFC 105
•1 May 2020
FAMILY COURT OF AUSTRALIA
| RADEL & RADEL | [2020] FamCAFC 105 |
| FAMILY LAW – APPLICATON IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where the husband has repeatedly failed to engage in proceedings – Where there is no reasonable explanation for the delay – Where the appeal is wholly without merit – Application dismissed – Order for the husband to pay the wife’s costs. |
| Family Law Act 1975 (Cth) s 79 Family Law Rules 2004 (Cth) r 1.14 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Radel |
| RESPONDENT: | Ms Radel |
| FILE NUMBER: | BRC | 1099 | of | 2010 |
| APPEAL NUMBER: | NOA | 5 | of | 2020 |
| DATE DELIVERED: | 1 May 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 25 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3115 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE RESPONDENT: | Biggs Fitzgerald Pike |
Orders
The husband’s Application in an Appeal filed 9 January 2020 is dismissed.
The husband pay the wife’s costs in the sum of $8,836.59 within twenty-eight (28) days 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 Radel & Radel 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 5 of 2020
File Number: BRC 1099 of 2010
| Mr Radel |
Applicant
And
| Ms Radel |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 December 2019, the primary judge made final orders effecting a property settlement between the parties. Mr Radel (“the husband”) did not appeal from that decision within the 28 days in which he could do so as of right. Now, by Application in an Appeal filed 9 January 2020, he seeks an extension of time in which to bring such an appeal. That application is opposed by Ms Radel (“the wife”). For the reasons which follow, the application must be dismissed.
BACKGROUND
The parties commenced cohabitation in September 1989, and separated on a final basis in February 2018. Their relationship therefore lasted something in the order of 28 years. There were two, now adult, children born to the relationship.
As at the time of the hearing before the primary judge, the wife was 58 years of age and the husband 61. It was not clear whether the husband was then in employment, although the wife had then been out of the workforce for a significant period of time.
The wife first commenced property proceedings on 1 May 2018, although the husband did not file any responsive material. When the matter first came before Judge Jarrett on 17 July 2018, there was no appearance by, or on behalf of, the husband. For reasons which are unclear, notwithstanding the husband’s failure to engage, the wife discontinued those proceedings on 26 July 2018. She then commenced fresh proceedings on 1 November 2018, and these were again served on the husband. The matter then came before the primary judge on 24 January 2019, and again the husband did not appear. Orders were made requiring the husband to file material in response by 18 February 2019, and in the event that he did not do so, or did not attend court on 25 February 2019, those orders permitted the wife to be at liberty to seek final orders on an undefended basis.
As it transpired, although the husband did not file any material, the matter did not thereafter proceed on an undefended basis, likely because the husband did appear at the next court event. Rather, orders were then made for a conciliation conference. However for reasons which do not need to be traversed in this judgment, that conference did not eventuate, and when the matter was next listed before the primary judge on 20 May 2019, the husband again did not appear. The solicitor for the wife raised with the Court the husband’s contention that he was then unwell, in consequence of which the primary judge directed that, by 17 June 2019, the husband was to file and serve an affidavit of his psychologist and/or other treating health professional, to provide evidence of his inability to participate in the proceedings. That did not occur. When the matter was again before the primary judge on 21 June 2019, the husband again did not appear, and hence it was adjourned for an undefended hearing on 13 September 2019, although that hearing was later adjourned to 22 October 2019.
At [21] of the reasons, her Honour recorded:
The husband did attend on 22 October 2019. On that day I made inquiries of him as to whether he had filed any documents or attempted to file any documents including a response, affidavit, financial statement and/or any affidavit or report from a medical practitioner. He indicated that he had not. I then asked whether he intended filing any material in these proceedings and I placed on the record that he indicated that he would not be filing any documents.
Given the husband’s attendance and submissions at the hearing on 22 October 2019, it cannot properly be said that it proceeded on a strictly undefended basis, but nonetheless it proceeded only by reference to the material filed by the wife.
Ultimately, in the primary judge’s reasons, her Honour made findings in relation to the parties’ respective contributions and considerations under s 79 of the Family Law Act 1975 (Cth) (“the Act”), and concluded that the net pool of assets should be divided so that the wife receive 49.4 per cent, and the husband 50.6 per cent.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Rule 1.14(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that “[a] party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.”
Whilst there are no criteria specified either in the Act or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480–481, McHugh J said:
[A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. 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 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 194-195; 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
(As per the original)
The following factors are established by the authorities as being potentially relevant:
·The nature and history of the proceedings;
·The length of the delay, and any explanation for the same;
·The merits of the appeal; and
·Any prejudice or other consequence for the respondent if leave is granted.
NATURE AND HISTORY OF PROCEEDINGS
The proceedings before the primary judge were for the final division of the parties’ property. Their history, in broad terms, is of the husband not filing any material, and only spasmodically appearing. He has, from time to time, corresponded with the solicitors for the wife, albeit in somewhat inflammatory terms.
LENGTH OF AND EXPLANATION FOR THE DELAY
The Notice of Appeal was required to be filed and served by 6 January 2020. In fact the Application in an Appeal was filed 9 January 2020. The length of the delay therefore is extremely short. The justification for the delay was sought to be explained in the husband’s affidavit filed 9 January 2020, as follows:
1.My modulation demodulation unit has been broken and I could not afford to replace it until now so could not email and therefore seek an extension to appeal this miscarriage of justice
(As per the original)
No explanation was proffered as to why it was that, seemingly only three days later, the husband had nonetheless been able to afford to repair the unit, nor any explanation as to what other attempts he had made – for instance using a public computer – to access his email. Further, there is no explanation as to why some means other than email could not have been utilised by him, in order to file a Notice of Appeal within time.
I am not satisfied that there is a reasonable explanation for the delay in bringing the appeal, notwithstanding the very short period of time in question.
THE MERITS OF THE APPEAL
The husband’s draft Notice of Appeal signed 7 January 2020 extends to three grounds, as follows:
1.Prejudice against me personally because of my male sexuality
2.Inadequate investigation by the judge into my personal circumstances prior to my marriage
3.Prejudice against me because I did not have my own legal [counsel] and represented myself
(As per the original)
These grounds may be dealt with swiftly. There is no basis to conclude that the primary judge was in any way influenced by the husband’s “male sexuality,” or indeed, his gender. Ground 1 is wholly without merit.
The second proposed ground of appeal seems to work from the mistaken assumption that there was an obligation on the primary judge to undertake an investigation of the parties’ financial history, absent the husband filing any material whatsoever in response to the wife’s application. There was not. The primary judge was obliged to act upon the material before her. The husband chose to put no material before the Court, and therefore he cannot now legitimately complain that the primary judge failed to adequately explore relevant matters. This ground is wholly unmeritorious.
As to the third ground of appeal, it is likewise without merit. The fact is that the husband has acted with a long history of cynicism towards, and disinterest in, the proceedings. There is no basis for any suggestion that the primary judge permitted that to affect her in any way, much less to be influenced by the husband’s lack of legal representation. The primary judge was entitled to take the husband at face value, particularly his failure to contradict the wife’s material, and his lack of engagement in the case.
I should say that, before me, in his written submissions filed 6 March 2020, the husband appeared to mount an argument that he was medically incapacitated during 2019, and that was the reason why he was unable to properly represent himself before the primary judge. However, not only did he not put any such material, or make such a submission, before her Honour at the hearing on 22 October 2019, but he had failed to comply with her Honour’s orders to put such material before her by 17 June 2019.
Moreover, it must accepted that the husband was not incapable of advancing arguments on the day of the hearing before the primary judge, as recorded in the primary judge’s reasons themselves. The far more compelling inference from the material the husband now relies on, is that he is unhappy that his long marriage has concluded in this way and that the inevitable consequence of that is that there needs to be a division of the parties’ property, and unhappy because he perceives that he has been somehow exploited by the wife in that process. None of that, however, suggests that the primary judge in some way erred.
PREJUDICE OR CONSEQUENCE FOR THE WIFE IF EXTENSION GRANTED
The proceedings have been on foot now for something in the order of two years. The husband has repeatedly failed to engage in them, and the wife is entitled to move on with her post separation life. The effect of extending the time for the husband to appeal is likely to be to further protract the resolution of the proceedings. There is no guarantee that the husband will engage in any more meaningful way in any appeal, than he has in the proceedings before the primary judge, or indeed, even if he were to succeed in his appeal, engage in any re-hearing with greater enthusiasm either.
EVALUATION AND OUTCOME
There is an insufficient explanation for the admittedly very short delay in which the father sought to file a Notice of Appeal, and the proposed appeal is wholly without merit. Those two factors alone compel the conclusion that the application for an extension of time in which to bring an appeal must be refused.
Costs
In the event that the Application in an Appeal was refused, the wife sought an order for costs on an indemnity basis. In support of that application, she relied upon the husband having initially failed to serve the application, his lack of prospects of success in the application, his making of allegations of bias against a judicial officer without foundation, and his failure to comply with the Registrar’s orders to file and serve written submissions. Additionally she points to the fact that the applicant has a financial capacity to pay costs, and has been wholly unsuccessful in the application.
Whilst I am satisfied that those factors require that there should be an order for costs in this matter, I am not satisfied that the circumstances justify an order for indemnity costs, and therefore I decline to make such an order.
By reference to an affidavit of the wife’s solicitor filed 13 March 2020, the costs in accordance with the itemised scale were said to be in the sum of $8,836.59. I am satisfied that those costs are reasonable, and will therefore make an order that the husband pay them within 28 days.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 1 May 2020.
Associate:
Date: 1 May 2020
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