Strand and Strand
[2018] FamCAFC 74
•13 April 2018
FAMILY COURT OF AUSTRALIA
| STRAND & STRAND | [2018] FamCAFC 74 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a notice of appeal against property settlement orders – Adequate explanation for the delay – Held substantial issue to be determined on appeal – Time within which the applicant had to file a notice of appeal extended – Respondent’s application for costs reserved to the Full Court. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Strand |
| RESPONDENT: | Ms Strand |
| FILE NUMBER: | PTW | 520 | of | 2015 |
| APPEAL NUMBER: | WA | 5 | of | 2018 |
| DATE DELIVERED: | 13 April 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 13 April 2018 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2017 |
| LOWER COURT MNC: | [2017] FCWA 162 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Rynne |
| SOLICITOR FOR THE RESPONDENT: | Anthony R Clarke and Associates |
Orders
The time within which the applicant had to file a Notice of Appeal against the orders made by Acting Judge Moroni on 17 November 2017 be extended by 14 days from the date hereof.
Upon the filing of the Notice of Appeal and payment of the requisite fee, or upon the fee being waived, the appeal be listed before the Appeals Registrar for directions.
The Application in an Appeal filed 30 January 2018 be otherwise dismissed.
The Appeals Registrar obtain and provide to the parties and to the Full Court a transcript of today’s proceedings and the proceedings on 14 March 2018.
The respondent’s application for costs be reserved to the Full Court.
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 Strand & Strand 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 PERTH |
Appeal Number: WA 5 of 2018
File Number: PTW 520 of 2015
| Mr Strand |
Applicant
And
| Ms Strand |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court is that filed by Mr Strand (“the applicant”) on 30 January 2018, in which a large number of orders were sought. The only matter relevant today is what I will treat as an application for an extension of time within which to appeal property orders made by Acting Judge Moroni on 17 November 2017. The respondent to the application is Ms Strand (“the respondent”), who has been represented today and at the previous hearing on 14 March 2018 by Mr Rynne of counsel.
The application for an extension of time is opposed. The hearing before me has proceeded in a somewhat unsatisfactory fashion and I accept that procedural fairness was, initially at least, not afforded to the respondent. However, that has been rectified to some extent by the adjournment I granted on 14 March 2018 and the opportunity the respondent had to file submissions and an affidavit, which she did on 6 April 2018, setting out at least in part her side of the story.
The background to the matter is that the applicant was represented at trial and he tells me that both he and his lawyer were shocked by the outcome and wished to appeal. For reasons that I need not go into today, the appeal was not filed in an appropriate form within the prescribed time. The reason I do not need to go into that issue is that at the last hearing, Mr Rynne properly conceded that an acceptable explanation had been given by the applicant for the delay in filing the appeal. In those circumstances and taking into account the well‑known authorities, the issue then became whether there was a substantial issue to be determined before the Full Court; or put another way, whether there is potentially merit in the appeal the applicant wishes to prosecute.
The Court normally looks to the grounds of appeal as the starting point to see whether there is potential merit. I am told that the applicant had some legal assistance in preparing his grounds of appeal, but at the last hearing when I asked him to highlight the strengths of his appeal, he began to refer to matters that are not adequately identified in the proposed grounds of appeal.
In the course of the last hearing, it became apparent that one matter of real concern to the applicant was an issue that had been agitated before the Acting Judge relating to the provenance and accuracy of statement number 20 on a particular bank account. It is true, as the respondent has stressed, that this issue was ventilated at trial. It is also true that the applicant was given opportunities to meet a case that was put against him based upon the content of that document; and it is also the case that the applicant did not do what might reasonably have been expected to be done in meeting that case. In those circumstances, the Acting Judge made a determination about that document which, at least as presently advised, seems to me was well open to him.
However after the trial was concluded, and by the time the matter came before me, a further piece of the jigsaw had been provided which, in my view, cast some considerable doubt on the authenticity of statement number 20. The matter of greatest concern arising from this was not that it necessarily increased the asset pool, as Mr Rynne has said today, but rather it further placed in doubt the applicant’s credibility.
The respondent did not attend court at the last hearing before me and there was some suggestion that statement number 20 had come to the respondent prior to the trial via the applicant’s solicitors. However, it now appears from the respondent’s affidavit that it was the respondent herself who downloaded the document and it was she that introduced it into evidence in its altered form.
The respondent says that the document was in its altered form when she downloaded it. She asserts strongly that it was not she who amended the document, but now – I think for the first time – acknowledges very openly and clearly that it may be the case that the document is not authentic.
In his submissions today, Mr Rynne has effectively argued that the adverse credibility findings made against the applicant by the Acting Judge were based on many other matters besides the authenticity of this document, but there can be no doubt in my mind that the issue relating to this document was resolved against the applicant and that this must have played some part in his Honour’s credibility findings. It might be thought that it is speculation as to whether or not this issue was, in fact, an important part of the overall credibility finding. However, what I have said during the hearing today and what I said during the argument on the last occasion is sufficient, in my view, to make it appropriate to find that there is an issue here worthy of consideration by the Full Court.
I come to this view bearing in mind the fact that this is an appeal to the Full Court under the Family Law Act 1975 (Cth) which permits, at the discretion of the Court, the introduction of further evidence not available to the primary judge. Whilst I fear that the applicant may have difficulty as a self‑represented litigant in going about the processes of introducing that evidence, I am satisfied that it is possible he will be able to produce the further evidence. It will then be a matter for the Full Court to decide whether it would be appropriate to allow such further evidence to be introduced.
There was a secondary matter that the applicant referred to in his submissions at the previous hearing about his Honour’s treatment of an inheritance. I will say no more about that other than that I thought there were elements of that argument too that were worthy of consideration by the Full Court.
Accordingly, the delay having been adequately explained and there being one or two issues worthy of consideration by the Full Court, I will extend the time within which the applicant had to file a notice of appeal.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 13 April 2018.
Associate:
Date: 3 May 2018
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