Rafter & Rafter
[2011] FamCAFC 46
•10 March 2011
FAMILY COURT OF AUSTRALIA
| RAFTER & RAFTER | [2011] FamCAFC 46 |
FAMILY LAW - APPEAL – Application for an extension of time to file an appeal – Where the husband wished to appeal the orders for spousal maintenance – Where the husband thought he had filed an appeal by filing an application in a case – Where the substantial delay was not fatal to the application for leave to appeal out of time – Where the husband would have difficulty in obtaining leave to appeal the interim orders – Where leave to appeal was opposed by the wife – Where it was argued there was no merit in the appeal – Where an appeal would cause further delay and considerable legal expenses – Where the parties are not in affluent financial circumstances – Application dismissed.
FAMILY LAW - COSTS – Where the wife sought costs – No justifying circumstances found – Where the husband is not in affluent circumstances – Where the husband did not completely ignore the judgment of the Federal Magistrate – No order as to costs made.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
| Clivery & Conway [2007] FamCA 1435 |
Joshua v Joshua (1997) FLC 92-767
| APPLICANT: | Mr Rafter |
| RESPONDENT: | Mrs Rafter |
| FILE NUMBER: | BRC | 9414 | of | 2008 |
| APPEAL NUMBER: | NA | 123 | of | 2010 |
| DATE DELIVERED: | 10 March 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 8 March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 31 March 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 300 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Rostron Carlyle Solicitors |
Orders
The application of the husband filed 22 November 2010 be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Rafter & Rafter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 123 of 2010
File Number: BRC 9414 of 2008
| Mr Rafter |
Applicant
And
| Mrs Rafter |
Respondent
REASONS FOR JUDGMENT
Introduction
An application was filed by the husband on 22 November 2010 seeking leave to appeal out of time.
Should an extension of time be granted the orders the husband seeks to appeal are interim spousal maintenance orders made by Federal Magistrate Coates on 31 March 2010. In view of the nature of the orders, should an appeal be filed, it would be necessary for leave to be given for the appeal to be heard. The respondent opposes leave being granted for the appeal to be filed and would also resist leave being given for an appeal to be heard.
Background
The order was made on 31 March 2010 after a hearing on 26 March 2010. It was ordered that until further order the respondent pay spousal support to the applicant in the amount of $500.00 per week.
Final orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) were made by consent on 14 November 2008. It is common ground that the husband has not paid the wife the moneys she is entitled nor effected other distributions pursuant to those orders.
The wife apparently claims that she consented to the property orders because the husband agreed to continue to provide maintenance. The wife relies on an agreement between the parties that he would pay her $350.00 per week and meet other expenses.
It is not a part of the husband’s appeal that the Court has no jurisdiction to make orders for spouse maintenance by reason of the final orders for property settlement.
The Federal Magistrate in making the interim orders for spouse maintenance found that the wife is quite physically disabled from an injury and is only able to work some six hours per week at a supermarket. Her income of $392.00 per week included a disability support pension. Her expenses exceeded her income.
The Federal Magistrate clearly had difficulty in understanding the husband’s evidence describing it as “confusing” and found that his evidence did not “… explain in clear and concise language what his financial state of affairs had been in the immediate past and now” (Reasons paragraph 66).
The Federal Magistrate was influenced in his decision by the evidence that the husband is paying above the minimum amounts required to reduce credit card and other debts. It was assessed that the extra payments made by him amounted to $535.00 per week. Largely based on that figure together with the admitted fact that the husband had not met payments to the wife under the consent orders the Federal Magistrate made the interim orders.
Requirements for leave out of time applications
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such leave applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Mr Atkinson who appeared for the respondent also referred to Joshua v Joshua (1997) FLC 92-767 a single judge decision of Lindenmayer J. In that matter the judge considered the basis of the appeal and concluded that the Full Court would not be obliged to overturn the discretion exercised by the trial judge in a property matter. The delay in filing the notice of appeal in that case was some 19 months and Lindenmayer J found that there was a failure to provide adequate reasons for the majority of the delay. The application for leave was refused.
The applicant husband’s case – The explanation for the delay
The husband’s application is brought some three months after the expiration of the statutory time for appeal.
In support of the husband’s application he filed an accompanying affidavit. This affidavit outlines the procedural history of the matter and explains how the husband thought he had already filed an appeal against his Honour’s orders.
The husband explains that at the time the Federal Magistrate made the orders he was represented. He ceased being represented that day as he could no longer afford to have lawyers.
On 28 April 2010 the husband filed an application in a case. This is the document he thought to be an appeal from his Honour’s orders. The following orders were sought:
(a)That this application be determined as a matter of urgency.
(b)That the order of 31 March 2010 that the Applicant pay spousal support to the Respondent in the amount of $500.00 per week be discharged or stayed due to the Applicant’s hardship.
(c)That within seven days, the Respondent disclose details in relation to expenditure of the proceeds of the property settlement received by her pursuant to the orders on 14 November 2008 and provide disclosure of all documents in relation t her expenditure of those funds.
(d)That within seven days the Respondent provide outstanding disclosure items namely credit card statements, full disclosure in relation to all property held, sold, transferred, gifted or otherwise disposed of since separation up to the present date not so far disclosed.
(e)That the Respondent undergo an independent medical assessment, both physical and psychological, conducted by the Commonwealth Medical Officer or an appointed specialist.
(f)That the Applicant be permitted to subpoena the Respondent’s medical records from medial practitioners, medial specialist and medical institutions (hospitals).
(g)That in the even the Applicant’s application for interim orders and final spousal maintenance are not set aside/dismissed, the Applicant be at liberty to file an updated affidavit and other relevant documents including a Financial Statement once full disclosure from the Respondent is received and medial assessments and medical records are received.
(h)That the Respondent meet payment of the Applicant’s costs of and incidental to this Application.
On 30 April 2010 the husband, as advised by the “Court Filing Officer” sent a copy of the application in a case and the affidavit filed in support to the solicitor for the wife. A letter was also attached which indicated that it was expected that his Honour would consider the application on 4 May 2010.
To the extent that events subsequent to the orders made 31 March 2010 are relevant, the matter was adjourned by the Federal Magistrate on 4 May 2010 largely because the husband’s case was not ready and voluminous documents were served by him on the solicitors for the wife (see transcript 4 May 2010).
The husband explains that the Federal Magistrate had previously advised that he would provide the parties with dates for an urgent hearing of the matter. This did not occur and the matter was adjourned to 10 June 2010.
It should also be noted from the transcript of 4 May 2010 that the solicitor for the husband said that if the husband wished to take issue with the interim orders an appeal to the Family Court would be necessary. It was not until 22 November 2010 that the husband filed this application.
On 10 June 2010 his Honour referred the parties to a conciliation conference. This conference took place on 1 July 2010. Both parties asked for a trial date.
On 1 July 2010 the matter came back before the Federal Magistrate. His Honour transferred the matter to the Family Court in view of the complexity of the matter as he understood it.
The husband states that he does not know “when the final determination of this matter will be heard by the Family Court”. He explains that his financial circumstances are necessitous and that he is unable to continue to make spousal maintenance payments. He states that should he attempt to make these payments it will ultimately lead him to bankruptcy.
The husband in the conclusion of his affidavit reiterates that when the application in a case was filed on 28 April 2010 he was under the impression that he was appealing the Federal Magistrate’s decision. It is said that:
… At no time did His Honour disavow me of that or suggest at any time whatsoever that I should file a different document or in a different Court. It was only after the matter was transferred to the Family Court that, in proceedings before Registrar Coutts on 2 September 2010, the Registrar advised me that the document filed by me was not in fact an appeal and did not serve as such. On the day the Registrar further advised me that I should file an Application for an Appeal and it is in relation to that that I seek leave to appeal out of time. I have complied in full with the Registrar’s orders.
Although there is some gap in the explanation for the delay, that factor on its own in this case would not prove fatal to the application.
Merits of the appeal
Should leave be granted the husband’s proposed grounds of appeal are:
1. That in all the circumstances, Federal Magistrate Coates erred in finding that the Husband had the capacity to maintain the Wife.
2.That in all of the circumstances the Federal Magistrate erred in determining that the Wife was unable to support herself adequately.
The husband seeks that the orders be discharged and that any debt arising from the orders be waived. It can be seen that this is an appeal from the exercise of discretion by the Federal Magistrate. As already observed, a hurdle for the husband should the extension of time be allowed is the need to obtain leave.
The principles to be applied in dealing with an application for leave under s 94AA are well known. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177:
Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties.
The respondent wife’s case
The solicitor for the wife argued that there has not been an adequate explanation for the delay and emphasised that it was nearly 12 months since the order was made.
Secondly it was argued that the appeal had no prospects of success especially as it is necessary to first obtain leave to appeal. It was submitted that there was no substantial issue to be raised on appeal.
In conclusion Mr Atkinson referred to the wife’s poor financial circumstances and the history of the litigation.
In my view, there is considerable force in the submissions made on behalf of the wife.
Possible prejudice
The husband argues he will suffer should leave not be granted because he could not institute the appeal. By his own concession the husband will become bankrupt, should he pay spousal maintenance as ordered. Reliance is also placed on the affidavit of Mr B filed 25 March 2010 in this regard.
From the submissions provided in support of the wife’s position it can be seen that she has not received the maintenance as ordered. In addition, the husband is unlikely to be able to meet a costs order should the appeal fail and the wife has already incurred considerable legal expenses. An appeal will also involve further delay.
Conclusion
Without considering the merits of the appeal any more than is necessary to grant leave to appeal out of time, I am of the view that it is doubtful whether leave would be given to hear the appeal.
Having regard to all of the circumstances of this case, including what I regard as the limited prospects of success on appeal (including being allowed leave to appeal) and the potential for further delay and hardship to the wife, I am not satisfied that I should extend the time to appeal.
In any event, these were only interim orders, no real injustice is done to the husband in refusing his application as it is yet to be decided on a final basis.
Accordingly, I order that the husband’s application is dismissed.
Costs
An application at the conclusion of these proceedings was made on behalf of the wife for costs.
The application is made for a range of reasons including that the husband has been unsuccessful in these proceedings. Mr Atkinson in effect asks that the costs should follow the event.
Section 117 of the Act provides that there must be justifying circumstances for an order of costs to be made. In this case, the first of those would be that the application has been unsuccessful. However, in my view, an order for costs should not be made in this case in view of the husband’s financial circumstances as he presents them to the court, which is yet to be determined, together with the circumstances of his application.
I have taken into account that the husband has not completely ignored the judgment. He did file an application on 28 April 2010 which he thought was sufficient to deal with the interim orders that had been made for spousal maintenance.
In all the circumstances it seems to me that the proper order is that no order be made for costs.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 10 March 2011.
Associate:
Date: 10 March 2011
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