Shee and Hale
[2020] FamCAFC 140
•5 June 2020
FAMILY COURT OF AUSTRALIA
| SHEE & HALE | [2020] FamCAFC 140 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the delay is extensive – Where the delay is not satisfactorily explained by the evidence – Where the proposed appeal does not have sufficient merit to justify an extension of time in light of the lengthy delay – Application for an extension of time dismissed – Applicant to pay the respondent’s costs of the application as agreed or assessed. |
| Family Law Act 1975 (Cth) ss 4AA, 90RD, 117(2A) Family Law Rules 2004 (Cth) rr 1.14, 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129 |
| APPLICANT: | Ms Shee |
| RESPONDENT: | Mr Hale |
| FILE NUMBER: | SYC | 2311 | of | 2017 |
| APPEAL NUMBER: | EAA | 56 | of | 2020 |
| DATE DELIVERED: | 5 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via videolink) |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 28 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 84 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPLICANT | York Law Family Law Specialists |
| COUNSEL FOR THE RESPONDENT: | Mr Fowler |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
Orders
The Application in an Appeal filed on 11 May 2020 is dismissed.
The applicant is to pay the respondent’s costs of the application as agreed, or in default of agreement, as assessed.
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 Shee & Hale 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 SYDNEY |
Appeal Number: EAA 56 of 2020
File Number: SYC 2311 of 2017
| Ms Shee |
Applicant
And
| Mr Hale |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 11 May 2020, Ms Shee (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against orders made by a judge of the Family Court of Australia on 18 February 2020. Mr Hale (“the respondent”) opposes the application.
In the proceedings before the primary judge, the applicant sought a declaration pursuant to s 90RD of the Family Law Act (1975) (Cth) (“the Act”) that she and the respondent were in a de facto relationship from March 2010 to August 2016. The respondent contended that the de facto relationship between the parties spanned only from March 2007 to March 2010, after which “the parties maintained a friendship and also a working relationship but that no genuine domestic relationship reformed” (at [2]).
In order to ascertain and assess the nature of the relationship between the parties, the primary judge divided the parties’ relationship history into “three distinct periods” of time (at [9]). The first period, in which the parties both agree that they were in a genuine domestic relationship, was from March 2007 to March 2010 (“the first period”). Throughout the first period of the relationship, the parties’ lived together in the respondent’s unit, shared a bedroom and a sexual relationship, went on holidays together and attended functions as a couple. The parties did not maintain a joint bank account and separately owned property, although it was during this period of time that the parties became business partners in a commercial property development (“the D Town development”).
The second period of the parties’ relationship commenced after what the respondent contended was the parties’ separation in March 2010 and continued until July 2012 (“the second period”). The applicant left the respondent’s unit in March 2010 and moved into a unit with her daughter from a previous relationship. During this period of time, the primary judge found that the parties’ ceased their sexual relationship and noted that “[the applicant’s] lack of commitment to a shared life was evidenced by [the respondent] as well” (at [61]). The primary judge found:
63.The significant number of telephone calls; occasions where they had meals together; and use of endearment in emails, I find is more consistent with the ongoing friendship; business connection through the [D Town] development and the “arrangement” that [the respondent] would provide advice to [the applicant], than sufficient to establish an ongoing de facto relationship.
64.In the circumstances, I find that no de facto relationship between the parties existed, within the meaning of the Act, between March 2010 and July 2012.
(Emphasis in original)
The third and final period of the parties’ relationship spanned from when the applicant returned to live with the respondent in July 2012, until after the settlement of the D Town development in August 2016 (“the third period”). The primary judge inferred that this occurred because it was convenient to work on the D Town development. While the applicant was again living with the respondent, the primary judge found that the parties lived separately under one roof (at [75]). The applicant and the respondent did not share a bedroom and the applicant paid rent to the respondent for a period of 12 months during this time. However, the friendship between the applicant and the respondent continued during this period (at [66]) and they purchased each other birthday presents and shared meals and family events together.
His Honour ultimately made a declaration that the applicant and the respondent had been in a de facto relationship from March 2007 to March 2010 (Order 1). His Honour also ordered that the matter be listed for a case management hearing to then determine whether leave should be granted for the applicant to file an application for property division outside the time permitted by the Act (Order 2). The applicant proposes to appeal both of these orders.
Application for an extension of time
The principles to be applied in an application for an extension of time in which to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) at 480-481, where McHugh J 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: see Hughes v National Trustees Executors & 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 194-5; 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the Family Law Rules 2004 (Cth) (“the Rules”) will work an injustice.
Explanation for the delay
The applicant’s evidence is that in the primary proceedings, from April 2019, she was unrepresented and as such she was unaware that she only had 28 days from the date of the delivery of judgment to lodge an appeal against the orders (r 22.03 of the Rules) (a Notice of Appeal should have been filed by 17 March 2020). That is unfortunate but, of itself, is no explanation for the delay in filing a Notice of Appeal.
The applicant said that following the delivery of judgment she became depressed with the outcome, which was worsened by her mother’s failing health. The applicant’s mother, who lived in Country E, was diagnosed with cancer in February 2020 and subsequently passed away on … 2020. The applicant travelled to Country E on 4 May 2020 and must remain there until 1 July 2020 due to international travel restrictions related to the COVID-19 pandemic.
The applicant submits that Australia’s lockdown due to the COVID-19 pandemic has also affected her ability to find and retain legal representation in relation to her appeal. The applicant signed a Cost Agreement with her current solicitors on 27 April 2020, however her previous solicitors’ file is still held by them due to a dispute as to their fees.
The applicant also contends that her ability to give instructions has likewise been affected by her limited command of English.
I accept that English is not the applicant’s first language but she has been able to practice in the property industry in Australia for some 20 years. An email that she wrote to the primary judge’s associate on 21 April 2020 can only be described as articulate. It is not disputed that the applicant’s daughter, with whom she has apparently lived since August 2016, was admitted as a solicitor. It appears likely that she travelled with her mother to Country E in May 2020.
Whilst I do not accept the respondent’s submission that it is more likely than not that the applicant’s daughter would have discussed with the applicant her rights of appeal (because that would be impermissible speculation), nonetheless, the daughter did remain an available and potentially helpful source of information for the applicant. The applicant does not offer any evidence as to seeking assistance from her daughter.
The applicant’s evidence as to investigating her rights of appeal is vague. She simply says that she found her current solicitors in mid-April 2020 (a date which is established by the respondent’s evidence to be 16 April 2020) and signed a Cost Agreement on 27 April 2020. The applicant does not say when she came to the view that she would like to pursue an appeal, when she started looking for lawyers, what steps she took to obtain legal assistance and what, if any, difficulties she faced in obtaining assistance, when she became informed of the time limit to file a Notice of Appeal and, when she decided to bring the present application.
The COVID-19 pandemic is not a complete explanation for the applicant’s delay because the national emergency response plan to the virus was only activated on 27 February 2020. In any event, apart from a bold assertion that the pandemic made things more difficult for the applicant, no evidence is given to establish that proposition.
Whilst the applicant’s mother’s illness, which no doubt was most upsetting for the applicant, is some explanation, it leaves the above questions unanswered. The delay is extensive, being nearly two months, and it is not satisfactorily explained by the evidence.
Merits of the proposed appeal
As outlined above, the dispute between the applicant and the respondent relates to the period of time in which they were considered to be in a de facto relationship for the purposes of a declaration under s 90RD of the Act.
It is suggested by the applicant that his Honour erred by “isolating” the parties relationship into three periods of time, rather than having regard to the relationship as a whole (Grounds 1, 2 and 4).
The applicant’s proposed Ground 3 contends that the primary judge failed to engage with the applicant’s case, particularly in regards to her evidence in relation to the third period of the relationship, and erroneously reduced the parties’ relationship to a business one as opposed to a de facto relationship.
Further, the applicant submits that his Honour erred by not taking into account “the endless scope for differences in human attitudes and activities which exist in relationships” and “substituted his prism in relation to what should constitute the nature and form of relationships in coming to the conclusion the parties were not in a de facto relationship in respect of two of the three periods” (Ground 5).
Lastly, although it is not presently a ground of appeal, it is submitted by the applicant that the primary judge did not give reasons for believing the respondent’s evidence as to the sexual relationship between the parties during the second period of the parties’ relationship (at [57]).
It has to be said at the outset that the applicant seeks to appeal an evaluative finding as to whether or not the parties were in a de facto relationship for a particular period of time, where it is not suggested that the primary judge has made an error as to the primary facts, or that his Honour’s findings were not open on the evidence. Hence, this appeal faces some difficulties at the outset (see, for example, Sinclair & Whittaker (2013) FLC 93-551).
Recognising this, senior counsel for the applicant focused his submissions on the manner in which his Honour approached the determination of the proceedings, which was to break up the relationship into three periods of time. The respondent points out that this approach accords with the applicant’s written submissions before the primary judge filed on 9 November 2018, which the respondent quotes as stating: “it is of assistance to consider the relationship in [three] distinct periods” and “[t]he three distinct periods of the relationship are referred to throughout these submissions” (Respondent’s affidavit filed on 26 May 2020, paragraph 6(a)).
Notwithstanding that, the error of the primary judge is said to be that each period was dealt with as if it was a separate relationship and not by looking holistically at the periods as being aspects of one relationship.
It is correct that at times in the reasons for judgment, his Honour did refer to the three periods as separate relationships. For example, by using the subheading “duration of relationship” when discussing the second period and the third period.
However, the primary judge also said “[e]ven though these distinct periods shape the analysis of the evidence, I accept that the Court must look at the “relationship” as a whole (at [10]) (Emphasis in original).
The primary judge discussed the important issues of the D Town development and the evidence of emails, phone calls and text messages between the parties generally, without reference to the three periods of time. Finally, s 4AA of the Act was specifically applied to each of the three periods.
It is difficult dealing with the merits of a proposed appeal without access to all of the evidence and the transcript and without the benefit of considered submissions on that material. However, having regard to the above submissions and the evidence before me, it appears that the grounds of appeal as described above, are arguable but, in my opinion, not strongly so.
The remaining grounds of appeal are little more than assertions that a different result could, or should, have been found. That may be so but that does not establish error.
Finally, whilst it is correct that on two occasions the primary judge preferred the evidence of the respondent to that of the applicant in relation to particular issues of fact, without saying why, it is most unlikely that even if error is established, that it would be found to be material.
I am not satisfied that the appeal has sufficient prospects of success to justify an extension of time in the light of the lengthy delay.
Prejudice
The respondent did not identify any particular prejudice that would arise if an extension of time to file a Notice of Appeal was granted to the applicant, although the respondent did point out his age, his retirement, and that he has so far spent over $320,000 defending the proceedings.
The respondent, of course, does not need to demonstrate a prejudice. The expiration of the time in which to file a Notice of Appeal means that the Court will presume that the respondent will be prejudiced by any extension of time.
Conclusion and Costs
Taking all these matters into account, I am of the view that the Application in an Appeal should be dismissed.
The application was wholly unsuccessful (s 117(2A)(e)). The material indicates that each party has access to significant assets, although there is more than a suggestion that the respondent is wealthier than the applicant (s 117(2A)(a)). The appropriate order is for the applicant to pay the respondent’s costs of the application, as agreed, or in default of agreement, as assessed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 June 2020.
Associate:
Date: 5 June 2020
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