STIRLING & GRANT - [2011] FamCAFC 55

FAMILY COURT OF AUSTRALIA

STIRLING & GRANT

[2011] FamCAFC 55

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the husband filed a Notice of Appeal against a divorce order and related orders – where the appeal was deemed abandoned after the husband failed to file a draft appeal index within the time required by the Family Law Rules 2004 (Cth) – where there is no adequate explanation for the delay – where there is no substantial issue to be raised on appeal and no merit in any ground of appeal – where the husband’s conduct and the history of the proceedings are relevant – consideration of the consequences for the parties if the application is granted or refused – application dismissed.

FAMILY LAW - COSTS – order for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) ss 48, 58 & 94
Family Law Rules 2004 (Cth) rr 22.13, 22.44 & former r 22.57

Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Stirling

RESPONDENT:

Ms Grant

FILE NUMBER:

SYC

7296

2008

APPEAL NUMBER:

165

2010

DATE DELIVERED:

18 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Strickland & Ainslie-Wallace JJ

HEARING DATE:

17 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 August 2010

LOWER COURT MNC:

[2010] FMCAfam 1245

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Morabito

SOLICITOR FOR THE RESPONDENT:

Wyatt Attorneys

Orders

The Application in an Appeal filed by the husband on 22 February 2011 be dismissed.
In default of agreement, the husband pay the wife’s costs of and incidental to the application, such costs to be assessed.

IT IS NOTED that publication of this judgment under the pseudonym Stirling & Grant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 165 of 2010
File Number: SYC 7296 of 2008

Mr Stirling

Applicant

And

Ms Grant

Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application in an Appeal filed on 22 February 2011 by the husband in these proceedings. The application, in effect, seeks that the husband’s appeal filed on 9 December 2010 be reinstated. There are other orders sought, but they appear to relate to issues raised in the appeal itself, and thus not only do they need to await the outcome of the reinstatement application, but they can only be dealt with in the context of the appeal.
The appeal was taken to be abandoned on 6 January 2011 pursuant to r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). The husband failed to file a draft appeal index as required by r 22.13(2) within 28 days after the filing of the Notice of Appeal.
The application for reinstatement is opposed by the wife.

Background

The relevant history of this matter is as follows:
4.1The parties were married in the United States of America in February 1985.
4.2On 9 December 2008 the wife filed an Application for Divorce alleging that the parties separated on 7 December 2007.
4.3The husband filed a Response to the Application for Divorce on 25 June 2009, inter alia, disputing the jurisdiction of the court and the date and fact of separation, alleging that the wife did not communicate to him any intention to or reasons to separate, and claiming that the marriage had not broken down irretrievably.
4.4On 13 August 2009 the divorce order was granted.
4.5On 7 September 2009 the husband filed an Application for Review of the exercise of power by the registrar in making the divorce order.
4.6On 23 December 2009 the wife filed a Notice of Discontinuance of the Application for Divorce.
4.7On 25 January 2010 the wife filed an Amended Application for Divorce, but still alleging separation on 7 December 2007.
4.8On 31 March 2010 the husband filed a Response to Divorce seeking that the application be dismissed on the basis, inter alia, that the wife had not communicated to him an intention to separate, that the marriage was not irretrievably broken down, and there had not been a 12 month period of separation.
4.9On 30 August 2010 Federal Magistrate Baumann made a divorce order.
4.10On 27 September 2010 the husband filed an Application in a Case seeking, in effect, that the divorce order be rescinded pursuant to s 58 of the Family Law Act 1975 (Cth) (“the Act”), and that the proceedings be adjourned to allow the parties an opportunity to consider a reconciliation.
4.11On 10 November 2010 the wife filed a Response to the Application in a Case seeking, inter alia, that that application be dismissed and costs.
4.12On 11 November 2010 Federal Magistrate Baumann made the following orders:
1.The Application in a Case filed by the Husband on 27 September 2010 be summarily dismissed.
2.The divorce order made on 30 August 2010 is stayed pending the filing by the Husband of an intended application for leave to appeal and an appeal.
3.If the Husband fails to file an application for leave to appeal and an appeal within 14 days than [sic] the stay on the divorce order shall expire.
4.The Husband be granted urgent leave to relist before Federal Magistrate Baumann for any application for a stay if the application for leave to appeal and an appeal is filed.
5.The Husband pay the costs of the Wife in the amount of $800 within 30 days.
4.13On 9 December 2010 the husband filed a Notice of Appeal against the divorce order and against paragraphs 1, 3, 4 and 5 of the orders made on 11 November 2010.

The law

Section 94 of the Act provides:
(2D) Applications of a procedural nature, including applications:
…
(c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
…
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Rule 22.44 of the Rules provides that a party may apply to have an appeal taken to be abandoned under Chapter 22 of the Rules reinstated.
We observe that there are no specified criteria in the Act or the Rules for the exercise of discretion to reinstate an abandoned appeal. We note that the forerunner of r 22.44, namely former r 22.57, set out a number of factors that the Court may consider in determining an application for reinstatement.
In the recent Full Court decision of Bemert & Swallow (2010) FLC 93-441, this issue was considered at length, and the Full Court concluded at paragraph 154:
… in our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
That said, it was also confirmed in Bemert & Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-cited judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. McHugh J said this at 480:
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.
Thus, the fundamental issue is whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant time frame, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.

Discussion

Turning to the relevant factors in this case, the first issue is whether there is any adequate explanation for the failure to file the draft appeal index by 6 January 2011. The husband filed an affidavit on 22 February 2011 in support of his application, but he failed to set out any reason, let alone any adequate reason, for his non-compliance with the rule. He did say, in paragraph 8, that on 22 December 2010 he received “a damaged package” from the Court enclosing three copies of his Notice of Appeal. Then, in oral submissions, he claimed that the letter dated 13 December 2010 which accompanied those documents was not in the package. That letter advised that the husband should ensure that a draft index to the appeal books is filed and served no later than 4:30pm on 6 January 2011, and that a failure to do so will result in the appeal being deemed abandoned pursuant to r 22.13(3). The letter also provided instructions and enclosed precedents for use in serving the Notice of Appeal on the wife, brochures, copies of the relevant rules, and a sample draft appeal index.
Thus, it seems that the husband is suggesting that his reason for non-compliance was that he was unaware of the requirement to file a draft appeal index within a certain time, and of the consequences of not doing so. We find that submission difficult to accept given that even assuming that the letter was for some reason not in the “package”, that does not say anything about the brochures, the copies of the relevant rules and the sample draft appeal index which would have also been in the “package”. In any event, the husband has been very assiduous throughout these proceedings in researching the Act, the Rules and relevant authorities, and quoting from them, and it would seem to us extraordinary that the husband would be unaware of the requirement to file a draft appeal index. Finally, we observe that the husband, in his affidavit, says that after receiving the package, he set about attempting to serve a copy of the Notice of Appeal on the wife’s solicitors. Now, to repeat, the instructions in relation to service were in fact in the letter of 13 December 2010, and that casts further doubt on the husband’s claim that he did not receive that letter.
In these circumstances, we do not consider that the husband has provided any adequate explanation for failing to comply with r 22.13(2) and file a draft appeal index by 6 January 2011.
The next relevant factor to be considered is the merits of the appeal. In that regard, we observe that we have limited documentation before us, and, importantly, we do not have the full range of documents that would be before a Full Court hearing an appeal in this matter. We have the reasons for judgment of the Federal Magistrate, the Notice of Appeal filed by the husband, his application and his affidavit in support, the wife’s response and an affidavit of the wife’s solicitor. We do not have though any transcript of the hearings before the Federal Magistrate, nor do we have all of the documents that were before his Honour. Thus, we are not able to assess in any depth the merits of the appeal, and our analysis must necessarily be limited to the documentation that we do have before us, together with the oral submissions of the husband and counsel for the wife. That said, these documents and, in particular, the reasons for judgment and the Notice of Appeal provide us with sufficient material to understand and appreciate the complaints that the husband has in relation to the orders made.
There are seven grounds of appeal relied upon by the husband. They are prolix and, frankly, inappropriate in parts, and we propose to summarise them rather than set them out in full.
Before proceeding further, it is also necessary to set out in full ss 48(1) and (2) of the Act, given that much of the appeal centres around those subsections. They provide as follows:
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
The first ground is headed “Alleged Date of Separation”. In short, the husband’s case here appears to be that the parties did not separate on 7 December 2007, that at all times the parties were in an amicable relationship, and that although physically separated, the requirements of s 48(2) of the Act were not satisfied. The husband attempts to draw a distinction between “separated by distance” and “separated under law” which he describes as “as required by s 48(2)” of the Act.
However, nothing to which we have been taken, nor any submission made by the husband, persuades us that the Federal Magistrate was in error in finding that the parties separated on 7 December 2007. We consider that finding was open on the evidence before his Honour.
The second ground is headed “Failure of communication of intention to separate”. This ground, in effect, alleges that the wife did not in fact form an intention to separate, and in any event there was no communication of such an intention until May 2009. Thus, it is said, there was not the period of separation required by s 48(2) of the Act prior to the filing of the Application for Divorce.
The Federal Magistrate made it clear in his reasons for judgment that he was “satisfied that the wife did communicate that the marriage was at an end repeatedly and at least on occasions more than 12 months prior to the filing” of the Application for Divorce.
Again, nothing to which we have been taken nor any submission made by the husband persuades us that his Honour erred in that finding. His Honour was clearly aware of the husband’s case in respect of this matter, yet he determined to accept the evidence of the wife. It seems to us that that was open to the Federal Magistrate.
The third ground of appeal is headed “Unconscionable conduct”. This ground relates to the application for rescission pursuant to s 58 of the Act filed by the husband on 27 September 2010. It is said that the wife has engaged in “unconscionable conduct” in relation to her intention to separate. However, this claim was not accepted by the Federal Magistrate either at the hearing of the divorce or on the subsequent application, and again there is nothing to which we have been taken, nor any submission by the husband, which persuades us that the Federal Magistrate was in error in summarily dismissing the application.
The fourth ground of appeal is headed “Miscarriage of justice”. This ground is, in effect, a repeat of the previous grounds, albeit specifically in relation to the order of the Federal Magistrate dismissing the husband’s application for rescission. It raises again the question of whether the parties had been separated either at all or in any event for the requisite 12 month period within the meaning of s 48(2) of the Act. Nothing new is raised in this ground, and again, we are not persuaded that the Federal Magistrate erred in summarily dismissing the application for rescission.
Ground 5 is headed “Sections 58 and 117 of the Family Law Act 1975 (Cth)”. This ground seems to address the husband’s challenge to the order for costs made by Federal Magistrate Baumann on 11 November 2010. It is said that the Federal Magistrate failed to address the “perjury issues” raised by the husband in his application for rescission. However, the plain fact of the matter is that the Federal Magistrate dismissed the application, and on the basis therefore that the husband had been wholly unsuccessful, an order for costs was justified. Once again, we are not persuaded that the Federal Magistrate erred in making this order.
Ground 6 is headed “Asset division / Property settlement”. This ground relates to the husband’s claim that the application for divorce came about because of “financial duress” that the wife and the husband were suffering, and because of the parents of the wife exerting “controlling parental coercion” on the wife in relation specifically to the division of assets by way of property settlement.
It seems that the husband’s complaint is that neither in relation to the making of the divorce order, nor in relation to the dismissal of his application for rescission, did the Federal Magistrate address these issues.
It is apparent from the reasons for judgment delivered by the Federal Magistrate when making the divorce order that he was well aware of the claim by the husband that the Application for Divorce had resulted from influence and pressure by the wife’s parents. However, his Honour rejected that claim.
In relation to the issue of “financial duress”, although it is apparent that the husband raised this issue, it did not feature as highly in his submissions as did the issue of parental influence. In any event, once again, there is nothing to which we have been taken, nor any submission of the husband, that persuades us that the Federal Magistrate erred in his approach to either of these issues. It was clearly open on the evidence before the Federal Magistrate to make the findings that he did.
The seventh ground is headed “Alleged irretrievable breakdown of marriage”. This ground challenges the finding by the Federal Magistrate that the marriage had broken down irretrievably as required by s 48(1) of the Act. Specifically, the husband submits that the Federal Magistrate failed to take into consideration the ongoing amicable relationship between the parties and the reasonable possibility of a reconciliation between them.
In his reasons for judgment, his Honour was quite clear as to his findings in this regard, and it seems to us that they were open on the evidence. Nothing new is raised in this ground of appeal, and once again we are not persuaded that the Federal Magistrate has made an error.

On the basis of this analysis of the grounds of appeal, we are not satisfied that there is any substantial issue to be raised on appeal and, indeed, we do not consider that there is merit in any of the grounds of appeal.
The next relevant factors to consider are the history of the proceedings, the conduct of the parties and the nature of the litigation. It is the wife’s submission that the husband has done everything that he can to delay the finalisation of these proceedings and the making of the divorce order. In the affidavit in support of the response to the application, the wife’s solicitor has incorporated a helpful chronology which reveals a sorry history of delay on the part of the husband. In particular, it is alleged that the husband has avoided service and, for his part, failed to serve documents upon the wife’s solicitors. It seems there may be substance in this submission by the wife’s counsel, and the relevance of this is that in the application that the husband is now making, he is seeking the indulgence of the Court as a result of his failure to comply with the Rules of Court.
The final factor to be addressed is the consequences of refusing or granting the application. If the application is granted, the appeal will be reinstated and the wife will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. However, we suspect that the major prejudice to the wife will be that there will be a further delay before the issue of whether she can obtain a divorce or not is determined.
On the other hand, if the application is refused, then the husband will not be able to pursue his appeal, and further there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case. In any event, it is clear that there would be serious consequences for the husband if his application is refused.
We need to balance these consequences in determining this application.
Our consideration of these relevant factors informs us in determining the fundamental issue in this case, namely, where the justice of the case lies. In our view, given that there has been no adequate explanation of the failure to comply with the Rules, that none of the grounds of appeal have any merit, and taking into account the history of the proceedings, the conduct of the parties and the nature of the litigation, as well as the consequences of either refusing or granting the application, the interests of justice require that the application be dismissed.

Costs

At the conclusion of the hearing, the wife’s counsel made an application for costs in the event that the application was dismissed. Although the wife’s counsel indicated that the amount of costs sought was $2,500, she was not able to provide us with a schedule or note detailing these costs. The husband, quite correctly, indicated that he could not respond to the application until that detail was provided.
In the circumstances we consider that an order for costs in favour of the wife is justified given that we propose to dismiss the application and thus the husband has been wholly unsuccessful. However, we propose to order that, in default of agreement, the husband pay the wife’s costs of and incidental to the application as assessed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Ainslie-Wallace JJ) delivered on 18 March 2011.

Legal Associate:

Date: 18 March 2011