SEYMOUR & SEYMOUR (APPEAL)
[2009] FamCAFC 209
•20 November 2009
FAMILY COURT OF AUSTRALIA
| SEYMOUR & SEYMOUR (APPEAL) | [2009] FamCAFC 209 |
| FAMILY LAW - APPEAL – EXTENSION OF TIME - Application to extend time to appeal where delay explained - Where arguable ground of appeal - Where extension of time is opposed - Extension of time granted FAMILY LAW - COSTS - Costs reserved to the hearing of the appeal |
Family Law Act 1975 (Cth), s 94
Family Law Rules 2004 (Cth) Rules 22.02, 22.03, 22.11 and 22.12
Child Support (Assessment) Act 1989 (Cth) ss 102A(1), 102A(4), 102A(9) and 102A(12)
Gallo v Dawson (1990) 93 ALR 479
McMahon & McMahon [1976] FLC 90-038
Tormsen & Tormsen (1993) FLC 92-392
Partington (aka Bande) & Cade (Extension of time) [2009] FamCAFC 78
| APPELLANT: | Ms Seymour |
| RESPONDENT: | Mr Seymour |
| APPEAL NUMBER: | SA | 85 | of | 2009 |
| FILE NUMBER: | LNC | 71 | of | 2008 |
| DATE DELIVERED: | 20 November 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 6 November 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 13 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 846 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Andrea Trezise |
| SOLICITOR FOR THE APPLELLANT: | Andrea Trezise |
| COUNSEL FOR THE RESPONDENT: | Mr Greg Richardson |
| SOLICITOR FOR THE RESPONDENT: | G A Richardson |
Orders
The time in which the wife may file a Notice of Appeal against the orders of Federal Magistrate Roberts made on the 13 August 2009 be extended to 4.00pm on 3 December 2009.
The appellant file and serve a Notice of Appeal and application seeking leave to appeal together with a draft appeal book index on or before 4.00pm on 11 December 2009.
The costs of and incidental to this hearing be reserved to the Full Court or the Single Judge hearing the appeal.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Seymour & Seymour (Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SA 85 of 2009
| Ms Seymour |
Appellant
And
| Ms Seymour |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By application in an appeal filed 25 September 2009 Ms Seymour (“the appellant”) sought an extension of time in which to file a Notice of Appeal against orders made by Federal Magistrate Roberts on 13 August 2009.
The proceedings before the learned Federal Magistrate was an application under the Child Support (Assessment) Act 1989 (Cth) (“Child Support(Assessment) Act”).
The parties had consented to an order made by Hannon J in 2004 for child support to be assessed in accordance with an agreed approach rather than pursuant to an administrative assessment.
The appellant sought a change to that assessment seeking periodic child support, private school fees, private health cover and further support. In his response, Mr Seymour (“the respondent”) sought orders that he pay child support in accordance with an administrative assessment and that he pay the children’s MBF health insurance.
The learned Federal Magistrate determined that the respondent should pay additional child support, school fees and medical insurance.
Both parties are aged in their forties and the respondent, a medical practitioner, earns an income in excess of $450,000 per year. There was no dispute that the respondent had the capacity to pay what the appellant was seeking.
The child support relates to their three children aged 15, 13 and 11.
The appellant was unhappy with the decision of the learned Federal Magistrate and instructed her legal practitioner to lodge an appeal. The legal practitioner filed an affidavit in support of the application and it seems not in issue that the following occurred:-
(a)Orders were made and judgment was delivered 13 August 2009;
(b)On 14 August 2009 the legal practitioner acting for the appellant took two weeks prearranged holidays and she did not return to her office until 31 August 2009;
(c)The legal practitioner for the appellant contacted another family lawyer to provide her with an opinion with regard to the likely success of the appeal;
(d)On 31 August 2009 the legal practitioner for the appellant telephoned her lawyer chasing up the opinion and again on 3 September 2009 reminding that lawyer of the time limits;
(e)On 6 September 2009 the legal practitioner for the appellant suffered a serious break to her right leg and was hospitalised. She was not discharged from hospital until 11 September 2009;
(f)While in hospital on 7 September 2009 enquiries were made of the notice of appeal and it was eventually filed at the Southern Appeals Registry on 11 September 2009 which was about two days late.
THE RELEVANT STATUTES AND LAWS
An appeal from a Federal Magistrate in respect of a determination under the Child Support(Assessment)Act lies with the Family Court. Section 102A(1) of the Child Support(Assessment)Act provides:-
An Appeal lies, with the leave of the Family Court, to the Family Court from:
(a)a decree of the Federal Magistrates Court, exercising original jurisdiction under this Act; or
(b)a decree or decision of a Federal Magistrate exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Section102A(4) provides:-
An application for leave to appeal under subsection (1) or (1A) is to be made within:
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed under the standard Rules of Court.
Section 102A(9) provides that application for an extension of time to file an appeal and application for leave to appeal may be heard and determined by a single Judge or by a Full Court.
Section 102A(12) provides that a single Judge referred to in respect of such applications need not be a member of the Appeal Division of the Family Court.
Chapter 22 of the Family Law Rules 2004 deals with appeals. The Rules apply to appeals to the Family Court from an order of the Federal Magistrates Court (whether heard by the Full Court or a single Judge). The chapter does not apply to an appeal from an assessment or decision under the Child Support (Assessment) Act that was not made by a Court. This decision was made by a Court therefore the chapter applies.
Rule 22.02 sets out how an appeal is commenced and 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.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED – APPLICATION FOR LEAVE TO APPEAL OUT OF TIME
The principles in relation to application for leave to appeal out of time are discussed in Gallo v Dawson (1990) 93 ALR 479. Leave is not automatic, it involves an exercise of discretion. Discretion to extend time is given to enable the court to do justice between the parties, and in determining whether the Rules will work an injustice, the court must have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or refusal of leave. It also includes an assessment of the prospects of success of the grounds of appeal.
The principles have been referred to on a number of decisions including McMahon & McMahon (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at 80,017 and Gallo & Dawson (supra) at 480 to 481 and more recently in Parrington (AKA Bande) & Cade (Extension of time) [2009] FamCAFC 78.
The grounds in the application for leave to appeal are somewhat different to the grounds set out in the notice of appeal. In the notice annexed to the affidavit of the legal practitioner for the appellant there are two grounds in which the appellant sets out that the learned Federal Magistrate incorrectly determined that the mother over estimated the children’s general day to day expenditure and that he rejected the appellant’s claim of the high costs of child care. The thrust of the appeal itself on the part of the appellant is that there is a fundamental argument with regard to the obligation upon high income earners who are payers under an assessment to pay child support in such a way as to maintain the standard of living of the child. The appellant submits that this is a matter of law which ought to be considered by a Full Court or a single Judge exercising the appellant jurisdiction of the Family Court.
Counsel for the respondent argued that the appeal is simply on matters of determination of evidence and as such are not grounds of appeal.
I am satisfied that there is prima facie a legal argument with respect to the grounds of appeal.
CONCLUSION
In summary, I am satisfied that there are arguable grounds of appeal and arguable grounds in relation to application for leave to appeal and that absent an extension of time the appellant would be denied an opportunity of advancing the appeal.
The reasons for the delay are more than adequately explained and there is no evidence of any prejudice to the respondent by the granting of the extension of time that could not otherwise be ameliorated by the payment of costs.
Exercising the broad discretion I have in this regard I determine that it is in the interest of justice to grant the extension of time.
Accordingly I will make the orders as set out above.
Counsel for the respondent argued that a different set of arguments applied to the leave application (albeit including grounds of appeal and the leave application) and as such the leave application should be determined separately. The leave application and the appeal contained common features.
Pursuant to s102A(9) of the Child Support (Assessment) Act a single Judge has jurisdiction to determine the question of leave on such appeal where a single Judge does not have that power under Part X of the Family Law Act.
Therefore, unless the Chief Justice makes a determination under s102A(2) of the Child Support (Assessment) Act, the situation is that it would be possible for a single Judge to hear the leave application but a Full Court would need to hear the substantive appeal.
As such I declined to hear the leave application separately as in this proceeding it would be sensible to hear and determine the leave application at the same time as the appeal itself.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 20 November 2009
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