Stages and Wenty
[2009] FamCAFC 31
•23 February 2009
FAMILY COURT OF AUSTRALIA
| STAGES & WENTY | [2009] FamCAFC 31 |
| FAMILY LAW – APPEAL - EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Leave to appeal against the decision of a Federal Magistrate – Whether Federal Magistrate erred in dismissing the application for an order of partition pursuant to the provisions of the Property Law Act 1974 (Qld) – Whether Federal Magistrate erred in dismissing the applications for final orders pursuant to s 79 of the Family Law Act that there be a separate hearing in relation to the Wife’s application for orders pursuant to s 78 of the Family Law Act – Consideration of principles applicable to exercise of discretion as discussed in Gallo v Dawson (1990) 93 ALR 479 - Whether merit in Wife’s proposed grounds of appeal - Whether the grounds of appeal raise a substantial issue – No grounds of appeal – Application to extend time dismissed |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257 McMahon and McMahon (1976) FLC 90-038 Cassom and Cassom (1988) FLC 91-962 Tormsen and Tormsen (1993) FLC 92-392 Tudor and Tudor (1992) FLC 92-273 Smith and Smith (1991) FLC 92-200 Catlin and Kent (1987) FLC 91-815 Mollier and Van Wyk (1980) FLC 90-911 Florie and Florie (1988) FLC 91-913 |
| APPELLANT: | Mrs STAGES |
| RESPONDENT: | Mr WENTY |
| FILE NUMBER: | MLC | 7283 | of | 2007 |
| APPEAL NUMBER: | SA | 6 | of | 2009 |
| DATE DELIVERED: | 23 February 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 12 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 December 2008 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Appellant in person |
| CASE GUARDIAN FOR THE APPELLANT | William Stages |
| COUNSEL FOR THE RESPONDENT: | Mr Kalimnios |
| SOLICITOR FOR THE RESPONDENT: | Andrew Burrows & Associates |
ORDERS
The application in an appeal filed on 28 January 2009 by the Litigation Guardian for Mrs Stages (“the Wife”) be dismissed.
The Wife pay the costs of the Respondent Husband of and incidental to the hearing of the application.
The costs are assessed in the sum of $450.
The costs in order 3 hereof be paid by the Wife within eight weeks of the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym STAGES and WENTY is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA |
Appeal Number: SA 6 of 2009
File Number: MLC 7283 of 2007
| Mrs STAGES |
Appellant
And
| Mr WENTY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an application in an appeal filed on 28 January 2009 by the Litigation Guardian for Mrs Stages (“the Wife”). The Respondent to the application is Mr Wenty (“the Husband”).
In the application the following is sought:
1. That this Honorable [sic] Court apply Family Law rule 1.12 so that an extension of time can be applied so that the Notice of Appeal can be allowed to proceed.
2. That notice of Appeal be listed for Hearing.
3. And any other Order this Honorrable [sic] court deems fit.
The application is opposed by the Husband.
In support of the application an affidavit was sworn by the Wife on 28 January 2009. I also had an affidavit of the Wife sworn on 24 October 2008 and a draft Notice of Appeal.
In the draft Notice of Appeal it was stated that the Wife seeks to appeal against “paragraph 2 dealing with application in a case filed on the 14th November 2008”. The relevant order was made by Federal Magistrate O’Sullivan on 1 December 2008. There is no separate judgment of the Federal Magistrate however the transcript of the hearing on 1 December 2008 reveals his reasons.
On 1 December 2008 the Federal Magistrate made the following orders and notations:
1.Pursuant to Rule 11.11 of the Federal Magistrates Court Rules 2001 Mr [Stages] be appointed as a litigation guardian for the applicant, [Ms Stages].
2.The application in a case filed 10 September 2008 and 14 November 2008 be otherwise dismissed.
And the Court notes:
A.The matter remains listed for trial on 20 March 2009 and the directions made on 18 February 2008 remain in full force and effect.
B.Paragraph 1 of these orders is not opposed by the Respondent.
BACKGROUND
In the Federal Magistrates Court there are pending proceedings between the Husband and the Wife for property settlement pursuant to s 79 of the Family Law Act1975 (Cth). The applications for final orders are fixed for hearing on 20 March 2009.
I have read the transcript of the proceedings before the Federal Magistrate on 1 December 2008 and a consideration of that transcript reveals some history.
The Husband and the Wife were married in 1983 and separated in 1993. They were divorced in 1994.
The Husband and the Wife are the registered proprietors as joint tenants of a property situate at C Street, in the State of Queensland.
At some point, proceedings for property settlement were commenced. According to the transcript of 1 December 2008 the applications were fixed for final hearing in the Federal Magistrates Court on 10 September 2008. However, on 4 September 2008 the trial date was vacated and the trial was then fixed for 20 March 2009.
On 10 September 2008 an application was filed by the Wife in which the appointment of a Litigation Guardian for the Wife was sought.
On 14 November 2008 an application was filed on behalf of the Wife in which the following was sought:
Decision:
To determine and state the Current Rights of Mrs. [Stages] as a Joint Tenant to the Title of [C Street], Queensland?
And
Proposed Final Orders
1. That the declaration of property [C Street], Queensland is declared under Section 78 of the Family Law Act 1975 as per Title stating that both parties are Joint Tenants and can be fully Assumed to be of equal shares 50/50.
2. That a warrant of possession be issued for the title of [C Street], Queensland, currently held by The Housing Queensland Housing Commission.
3. That a warrant of possession and sale for the property of [C Street], Queensland be issued.
4. That warrant of possession be immediately executed by the Marshall of the Federal / Supreme court of Brisbane.
5. That the property be sold and proceeds divided as per Property Title and/or other Court Orders.
6. That the Court date for 10th of March 2009 be vacated.
7. That [Mr. Wenty] be responsible for his legal Councils Cost.
8. And any other Order this Honourable Court deems fit.
The application filed on 14 November 2008 sought what was described by the Litigation Guardian as a “separate decision” in respect of the jointly owned real property in Queensland. In submissions on 1 December 2008 it was suggested by the solicitor for the Husband that the second application sought an order for partition pursuant to the provisions of the Property Law Act 1974 (Qld). I am going to proceed on the basis that what the Federal Magistrate was being asked to determine was whether or not before the hearing of the applications for final orders pursuant to s 79 of the Family Law Act, that there should be a separate hearing in relation to the Wife’s application for orders pursuant to s 78 of the Family Law Act. This view is confirmed by the wording of the orders sought as set out above, namely what was described as a “Decision” and the reference to “Proposed Final Orders”. Thus the Federal Magistrate simply dismissed the application for a separate decision.
In the affidavit of the Wife of 28 January 2009 she contended that she was still a joint tenant of the property in Queensland and entitled to 50 per cent of the value and ownership of the property. The Wife contended that the Husband owes her “occupational rent for last 16 years”. The Wife contended that a mortgage was paid out in September 1996 of $89,068.17. She said that this was equal to $107.05 per week for the last 16 years of occupation and that this is considered fair rental as current rental for a four bedroom and two bathroom home has been increasing and is currently $280 - $330 per week. She contended that in 1993 rental for a similar property was $185 per week. She went on to say that therefore any amount alleged to be owing by her has been taken up by 16 years of occupation by the Husband. In dealing with this current application I express no views in relation to the admissibility of what the Wife said. However, I have referred to what is in her affidavit in order to obtain some appreciation of the nature of the issues involved and the Wife’s contentions.
I have also considered what the Wife said in her affidavit of 24 October 2008 and although what is in this affidavit was also difficult to understand it may be that the Wife is concerned about a severance of the joint tenancy in relation to the Queensland property and thus the loss of the right of survivorship in the event of the death of the Husband.
On 1 December 2008 the Federal Magistrate dealt with the first application and made an order for the appointment of the Litigation Guardian for the Wife. It was not opposed by the Husband.
In relation to the second application it was opposed by the Husband. Submissions were made by the solicitor for the Husband and also by the Litigation Guardian. A consideration of the transcript reveals that the Federal Magistrate was not prepared to deal with the application. The Federal Magistrate said that there were pending proceedings for orders pursuant to s 79 of the Family Law Act and that what the Wife was seeking was that he first hear and determine the application by the Wife and that the outcome would effectively “…[m]ake final orders to determine the whole of the proceedings between the parties”. The Federal Magistrate said that he was not prepared to make the orders sought by the Wife.
In the affidavit in support of the current application the Wife contended that after the hearing on 1 December 2008 a copy of the Orders were sent out “as per normal processing” and contained a typographical error and had to be amended. The Wife annexed to her affidavit a copy of a letter dated 12 December 2008 from the Associate to the Federal Magistrate titled “Notice of slip rule amendment”. In the letter it was said that the Orders made on 1 December 2008 contained a typographical error and the trial date was incorrectly stated as 20 February 2009. There was enclosed with the letter a copy of orders said to be revised pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001. It was also said “We confirm the trial remains listed for 20 March 2009” and “if you have any queries regarding this matter please contact the undersigned”.
In her affidavit the Wife contended that this “added further time delays of these orders were not received back until the 16 December 2008, thus causing a delay as a copy of the correct orders had to be annexed to the Notice of Appeal.” It is confusing but I believe that what the Wife was referring to was a letter dated 16 January 2009, a copy of which was also annexed to her affidavit, written by the Regional Appeal Registrar. In this letter the Appeal Registrar returned the Notice of Appeal and application for exemption of payment of court fees received on 15 January 2009. The Appeal Registrar advised that the appeal had not been accepted as it was not filed within 28 days as specified by r 22.03 of the Family Court Rules namely by 29 December 2009. The Appeal Registrar went on to advise that if the Wife wished to proceed with the appeal then she should make an application for extension of time in which to lodge the appeal and gave other advice.
In her affidavit the Wife continued that it was recognised that the Federal Court Rules require the same 28 days in lodging an appeal against a decision but also include a particular rule which provides that in calculating the time fixed by the Rules or by any order fixing, extending or abridging time the period of 24 December to 14 January is excluded unless the Court otherwise orders. I infer that what was being contended was that the Case Guardian is relying upon provisions of the Rules of the Federal Court of Australia or a practice direction of that court which have particular provision for the calculation of time during periods of term vacations. The Wife went on to say that it was therefore assumed that the filing date of 15 January 2009 was an appropriate date to file the appeal. The Wife contended that the appeal was presented on 15 January 2009 and rejected.
In that part of the draft Notice of Appeal dealing with “Grounds of appeal” there are 10 paragraphs and in my view, with the exception of the first two paragraphs, which in summary contend that the Federal Magistrate did not hear and deal with the application of 14 November 2008, none of the other paragraphs disclose an appealable ground of appeal.
In the Notice of Appeal in that part dealing with “the orders sought” there are some eight orders sought and in paragraph one the following:
That the declaration of property [C Street], Queensland is declared under s 78 of the Family Law Act 1975 as per title stating that both parties are joint tenants and can be fully assumed to be of equal shares 50/50.
In paragraph five an order was sought that the hearing date set for 20 March 2009 be vacated.
In summary, notwithstanding some confusion, I have before me for hearing an application for an extension of time within which to file a Notice of Appeal against the decision of a Federal Magistrate. No submissions were made as to whether the order made by the Federal Magistrate was a prescribed decree and thus leave to appeal was required. In the Notice of Appeal, if the appeal is successful, an order is sought pursuant to s 78 of the Family Law Act.
RELEVANT PRINCIPLES
Section 94AAA(1) of the Family Law Act provides that an appeal from a decree of the Federal Magistrates Court exercising original jurisdiction under the Family Law Act or a decision of a Federal Magistrate exercising original jurisdiction under the Family Law Act rejecting an application that he or she disqualify himself or herself from further hearing a matter lies to the Family Court.
Section 93AAA(3) of the Family Law Act provides that the jurisdiction of the Family Court in relation to an appeal pursuant to s 94AAA(1) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction in relation to the appeal to be exercised by a single Judge. Section 94AAA(13) provides that the Judge need not be a member of the appeal division. Section 93AAA(12) provides that if an appeal is heard by a single Judge, no appeal lies to the Full Court from that Judge's determination. In effect the hearing before the Judge exhausts the appellate jurisdiction of the Family Court and any appeal from that decision would lie, with special leave, to the High Court.
Section 94AA of the Family Law Act essentially provides that leave is required before a party can appeal against a “prescribed decree” of the Federal Magistrates Court. Regulation 15A of the Family Law Regulations effectively defines a “prescribed decree” as an interlocutory decree. However, leave is not required for child welfare matters. Regulation 15A(3) provides that a "child welfare matter" is a matter relating to the person(s) with whom a child is to live, contact between a child and another person(s) or any other aspect of parental responsibility within the meaning of Pt VII of the Family Law Act for a child. The term "decree" is defined in
s 4(1) of the Family Law Act.
Section 94AAA(5) of the Family Law Act provides that an appeal from a decree of the Federal Magistrates Court is to be instituted within the time prescribed by the standard Rules of Court or such further time as is allowed in accordance with the standard Rules of Court.
Rule 22.01(1)(b) of the Family Law Rules provides that Chapter 22 of the Rules applies to appeals to the Family Court from an order of a Federal Magistrate, whether heard by the Full Court or a single judge. Rule 22.02(1) provides that a person may start an appeal by filing a Notice of Appeal. Rule 22.02(2) provides that if an appeal cannot be started without the leave of the court then leave must be sought in the Notice of Appeal. 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 after the date the order appealed from was made. Rule 1.14(1) however provides that a party may apply to the Court to shorten or extend a time that is fixed under the Rules by a procedural order. In summary, this rule gives discretion to extend or shorten time.
Section 94AAA(10) of the Family Law Act provides that applications of a procedural nature including applications for an extension of time in which to institute an appeal from a decree of the Federal Magistrates Court may be heard and determined by a single Judge or by a Full Court.
In Gallo v Dawson (1990) 93 ALR 479 McHugh J said at 480 “The grant of an extension of time… is not automatic…” and citing the decision of McInerney J in Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262 said “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”. Various authorities have established that in exercising the wide discretion, relevant considerations include the history of the proceedings, the conduct of the parties, the nature of the litigation, the right of the respondent to the application to retain the benefit of the judgment, the desirability of finality of the litigation; the consequences to the parties of the granting or refusal of the application, whether any hardship suffered by the respondent to the application may be able to be compensated for and injustice avoided by putting the applicant on terms; whether there is sufficient explanation for failure to file and serve a Notice of Appeal within time and whether the grounds of appeal raise a substantial issue, that is an issue that would materially effect the outcome of the case if resolved in the applicant’s favour: Gallo v Dawson (supra); McMahon and McMahon (1976) FLC 90-038; Cassom and Cassom (1988) FLC 91-962 and Tormsen and Tormsen (1993) FLC 92-392.
CONCLUSION
The Wife and the Litigation Guardian appeared before me without legal representation and as well they had no legal representation on 1 December 2008. This was unfortunate.
If the Federal Magistrate had decided that he would not hear the application separately and had simply adjourned it for hearing at the same time as the hearing of the pending applications pursuant to s 79 of the Family Law Act then in my opinion such an order would have been a prescribed decree and permission would have to be sought to appeal the order. However, the Federal Magistrate dismissed the application. It is possible that the order for dismissal of the application for a separate decision is interlocutory given that a decree is interlocutory if it leaves open the legal possibility of the application with which it deals being renewed, even though for all practical purposes the application is unlikely to succeed: Tudor and Tudor (1992) FLC 92-273. However no submissions were made in relation to this and thus I will proceed on the basis that it was not a prescribed decree.
The application sought a separate decision in relation to the proposed orders pursuant to s 78 of the Family Law Act and in discussion it was made clear to the Federal Magistrate that the ambition was that if there was a separate decision and an order made for the sale of the property and then that would determine the controversy between the Husband and the Wife in relation to the Queensland property. It would “determine the whole of the proceedings between” the Husband and the Wife.
I have no doubt that if, as the solicitor for the Husband had suggested in submissions, the Federal Magistrate was being asked to deal with an application pursuant to provisions of the Property Law Act of Queensland in circumstances where there were pending proceedings pursuant to s 79 of the Family Law Act in which orders are sought in relation to the property the subject of the application then the Federal Magistrate was correct in dismissing the application. The Federal Magistrate would have had no jurisdiction to deal with such relief. I am not going to expand upon why I have reached this conclusion.
However the Wife is seeking relief pursuant to s 78 of the Family Law Act as made clear in the draft Notice of Appeal. Section 78 allows the Court to declare interests in property and make certain consequential orders. The section refers to “proceedings between the parties to a marriage with respect to existing title or rights in respect of property”. The section confers power to consider all issues of law and equity relevant to the determination of the parties’ title and rights with respect to property. The section however, unlike the power contained in s 79, does not allow the Court to alter existing rights. Pursuant to s 78(2) the Court may, if it makes a declaration under s 78(1), make consequential orders, including orders as to sale or partition and interim or permanent orders as to possession. In summary, the power is limited to declaring existing rights and making consequential orders to give effect to the declarations. The Court however, retains discretion and the Court may refuse to make such an order or it may be unnecessary if the effect of a declaration is that only one party is entitled to the property.
There are a number of reported cases dealing with the relationship between s 78 and s 79 of the Family Law Act. As I have said, by contrast to s 78, proceedings pursuant to s 79 are not governed by ordinary principles of property law and the Court can make orders altering the interests of the parties in property having regard to the matters referred to in s 79 and also s 75. The importance of the distinction between s 78 and s 79 is illustrated by the decision in Smith and Smith (1991) FLC 92-200 in relation to an attempt to institute proceedings under s 78 and thus defeat the time limit in s 44(3) applicable to s 79 proceedings.
However, it is clear that proceedings may be brought under s 79 alone and that proceedings under s 78 are in no way a necessary accompaniment or preliminary to s 79 proceedings. It follows that in view of the wide powers under s 79 to alter property interests the situations in which s 78 proceedings will be used are limited. In Catlin and Kent (1987) FLC 91-815 (Evatt, Joske and Hase JJ) it was said at 76,152 “…[t]hat the Court has indicated its reluctance to embark upon a determination of sec. 78 issues alone, and why it leans towards linking sec 78 and 79 issues in one hearing (Good and Good (1982) FLC 91-249). The question of legal and equitable ownership and entitlements is always relevant in sec 79”: see also Smith and Smith (supra).
There is also case law dealing with the question whether a Court can make a declaration under s 78 in respect of property which has already been the subject of an order under s 79: see Mollier and Van Wyk (1980) FLC 90-911 and Florie and Florie (1988) FLC 91-913. One view is that parties may not apply under s 78 to declare their title or rights in respect of property which has already been the subject of an order under s 79, however other cases have left the point open or given it an affirmative answer. In the circumstances of this case I do not have to consider that issue. However, in my view what is relevant to consider is whether a court can make orders pursuant to s 79 in circumstances where between the same parties a declaration has been made pursuant to s 78 and consequential orders. In my opinion this could occur because s 79 confers a power to alter the interests of parties to a marriage in property irrespective of the legal and beneficial entitlements of the parties in their respective property interests. If an application is made pursuant to s 78 and the proceedings are defended then a respondent would either contest the legal entitlement upon legal or equitable principles or make an application to alter those legal entitlements under s 79. There may be circumstances where it is appropriate in proceedings between the parties to a marriage, and there are no interests of persons or entities who are not parties to the marriage, to hear and determine an application pursuant to s 78 before hearing and determining an application pursuant to s 79, however such circumstances would be very rare and nothing was put to the Federal Magistrate in this case to support such an approach. In this case there is a misunderstanding namely that if there was a hearing of the proposed application pursuant to s 78 it would render the proceedings under
s 79 redundant.
What is troublesome about this case, and it may be because of the lack of legal representation, is that it appears to be a waste of time and resources. There are pending proceedings for settlement of property pursuant to s 79 of the Family Law Act. The Wife wrongly believes that in relation to the jointly owned real property she can avoid the property settlement proceedings by seeking relief either pursuant to the provisions of the relevant State legislation dealing with the sale and partition of jointly owned real property, or a declaration pursuant to s 78 of the Act.
An explanation for the delay has been given in the affidavit of the Wife in support of the present application. I was not referred to any provision of the Rules of the Federal Court of Australia or any practice direction of that court in relation to law terms. However, although on one view the story could be considered incredulous, namely a reliance on the provision of the Rules of the Federal Court, I am prepared to proceed on the basis that given the lack of legal representation there is an explanation for the delay and that it may have some merit. However, there are other considerations which are also relevant.
I am of the opinion that the Federal Magistrate was correct in refusing to deal with any such application as a separate decision given the pending proceedings pursuant to s 79 of the Family Law Act and the failure to provide any evidence supporting an approach that the proceedings pursuant to s 78 be dealt with before the proceedings pursuant to s 79.
I have taken into account the history of the proceedings, the conduct of the parties, the nature of the litigation, the right of the Husband to retain the benefit of the judgment, the desirability of finality of the litigation concerning the idea of a separate decision, the imminence of the final hearing of the applications for relief pursuant to s 79, the consequences to the parties of the granting or refusal of the application which include that the Wife can still pursue relief pursuant to s 78 even though it may be of little utility and that even if there was a separate decision pursuant to s 78 it would not prevent the Husband from pursuing relief pursuant to s 79 and that hardship would be suffered by the Husband in that he would have to incur unnecessary cost and expense that may not be able to be compensated for given the financial circumstances of the Wife. The most significant matter however is the conclusion I have reached in relation to whether the grounds of appeal raise a substantial issue. In all the circumstances I propose to dismiss the application.
COSTS
The Husband seeks an order that the Wife pay his costs of the proceedings which costs were assessed in the sum of $450. Although the lawyer for the Husband participated by use of telephone conference facility I am of the view that the amount of $450 is a reasonable and appropriate amount.
I do not propose to set out what I am required to consider pursuant to s 117 of the Family Law Act in dealing with the costs application. It is sufficient to say that I am satisfied that a justifying circumstance has been established by the Husband namely that the Wife has been wholly unsuccessful in the proceedings. Although I have no evidence of the financial circumstances of each party I have assumed that their financial circumstances are both very limited and that the Wife is in receipt of a pension. I propose to make an order for costs.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 23 February 2009.