Terrell and Connell
[2014] FamCAFC 157
FAMILY COURT OF AUSTRALIA
| TERRELL & CONNELL | [2014] FamCAFC 157 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is short – Where the proposed appeal could not be said to have no prospects of success – Where the respondent deposed to significant difficulties in the enforcement of the orders of the trial judge – Where the applicant had yet to pay previous costs orders in the proceedings – Application allowed, conditional upon the applicant paying to the respondent the costs of the application. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
Gallo v Dawson (1990) 93 ALR 479
| APPLICANT: | Mr Terrell |
| RESPONDENT: | Ms Connell |
| FILE NUMBER: | BRC | 11427 | of | 2011 |
| APPEAL NUMBER: | NA | 38 | of | 2014 |
| DATE DELIVERED: | 27 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 27 August 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 987 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Rosen (solicitor) |
| SOLICITOR FOR THE APPELLANT: | Rosen Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Appeared in person |
Orders
The applicant pay the respondent or her solicitors, Gall Standfield & Smith Solicitors, the sum of $3,000 being the costs of the respondent of this application on or before 4:00 pm 17 October 2014.
The applicant be granted an extension of time until 4:00 pm 17 October 2014 to appeal from the orders of Judge Spelleken made on 22 May 2014, subject to orders (1) and (3) hereof.
Upon the applicant producing to the Appeals Registrar evidence of the payment referred to in order (1) that is in the opinion of the Registrar satisfactory, the applicant be entitled to file a notice of appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Terrell & Connell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICATION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 38 of 2014
File Number: BRC 11427 of 2011
| Mr Terrell |
Applicant
And
| Ms Connell |
Respondent
REASONS FOR JUDGMENT
By way of application in an appeal filed on 1 August 2014, Mr Terrell seeks an extension of time to file a notice of appeal against property settlement orders made by Judge Spelleken on 22 May 2014 (“the substantive orders”). The respondent Ms Connell opposes the application.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. As the time limit expired on 19 June 2014, Mr Terrell is over a month out of time.
Ms Connell had sought an alteration of the parties’ property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). A declaration was made that a de facto relationship had existed, an issue of controversy between the parties. The orders of the judge provided, in summary, that:
·Ms Connell be entitled to 100 per cent of Mr Terrell’s interest in certain superannuation funds when a splittable payment become payable;
·Mr Terrell be restrained from dealing with two residential properties, a boat, a motor vehicle and a motorcycle;
·Mr Terrell pay to Ms Connell $69,723.75 within 30 days;
·In default of Mr Terrell’s payment to Ms Connell, Ms Connell be appointed a Statutory Trustee for Sale and the sale of two residential properties, the M property and the T property, be effected with the proceeds of sale distributed to meet sale costs, discharge the properties’ mortgages, pay off a debt to the value of $74,141.25, and any residual funds to be retained by Ms Connell;
·In default of Mr Terrell’s payment to Ms Connell, that Mr Terrell transfer to Ms Connell a boat, motor vehicle and motorcycle;
·Mr Terrell is to indemnify Ms Connell for any indebtedness that exceeds certain amounts for the mortgages over the two residential properties and a debt; and
·Mr Terrell pay Ms Connell’s costs, fixed in the sum of $25,673.81 within 30 days.
Although the application purports to be made “pursuant to Section 94AAA(i)(a) of the Family Law Act”, a section which does not exist, it appears that Mr Terrell intends to rely upon the discretion contained within r 1.14 of the Rules. The Act and Rules provide no criteria for the determination of applications of this kind. The principles for applications to extend time were considered in the well-known authority of Gallo v Dawson (1990) 93 ALR 479, where McHugh J held at 480 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”. His Honour then continued to consider three principles to have regard to in the exercise of discretion, which in summary are:
·Whether there is an adequate explanation for the delay;
·Whether the proposed grounds of appeal have some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
Delay
In an affidavit filed contemporaneously with his application, Mr Terrell deposes that he was working in a place outside a regional city as a contractor when the judgment was delivered. He says that he did not have access to his email, and because of this did not read the judgment until 18 June 2014. After telephone contact with his solicitor at the end of June, Mr Terrell said he gave instructions to file a notice of appeal on 12 July 2014, after the orders were explained to him. He then had to borrow funds to meet the filing fee for the application.
The solicitor for Mr Terrell correctly submitted in relation to the delay that the time in which judgment was reserved is a factor, there being some 14 months between the hearing and delivery of judgment.
Ms Connell agrees that Mr Terrell frequently works outside Brisbane for his employment, however asserts that Mr Terrell has exaggerated the lack of communication services available to him at the relevant time.
Correspondence from Mr Terrell’s solicitor dated 27 May 2014 raises issues with the operation of the orders and is annexed to Ms Connell’s affidavit filed 20 August 2014. The correspondence would certainly suggest that Mr Terrell was able to provide some instructions to his solicitor in the days following publication of the judgment. Ms Connell also deposes to Mr Terrell making telephone contact within the 28 day period following delivery of the judgment. Annexed to Ms Connell’s affidavit are also a number of screenshots of a Facebook account said to be controlled by Mr Terrell. The screenshots suggest that on 27 May, 11 June and 16 June (presumably in 2014) there was activity on this account. Ms Connell asserts that this demonstrates that Mr Terrell must have had some form of internet access, and hence access to the judgment.
Although the affidavit of Ms Connell was served last Wednesday, the solicitor for the applicant said he had no instructions to respond to the contents.
Ms Connell also provides a copy of orders made by the judge on 26 June 2014 and 4 July 2014 relating to the enforcement of the substantive orders (“the enforcement orders”). The enforcement orders issued warrants for the seizure of certain property and a warrant for possession of a residential property. Both of these orders record Mr Terrell’s solicitor as having appeared by telephone.
Although there are obvious concerns as to whether Mr Terrell became aware of the orders and reasons in time to give instructions to his solicitors, there is some explanation for the delay. In any event, in this case the delay is so minimal it could not be regarded, on its own, as a reason for refusing leave.
Merit
The proposed grounds of appeal are as follows:
1.The learned Judge erred in finding that a de facto relationship existed between the Appellant and the Respondent.
2.The learned Judge erred in holding that the motor vehicle registration transfer form purported [sic] the existence of a de facto relationship between the Appellant and the Respondent.
If a De Facto Relationship Existed:-
3.The learned Judge erred in failing to consider or properly consider the initial financial contributions made by the Appellant.
4.The learned Judge erred in not taking into account or properly taking into account contributions made by the Appellant during the course of the relationship.
5.The learned Judge erred in failing to consider or properly consider the contribution made by the Appellant post separation.
6.The learned Judge erred in awarding the Respondent 100% of the available distributable property as this was outside the range of reasonable discretion.
7.The learned Judge erred in failing to take into consideration or properly taking into consideration the provisions of Section 117 and the relevant subsections in making an award of costs.
I note that the summary of argument filed on behalf of Mr Terrell on 26 August 2014 provides different proposed grounds of appeal with new complaints regarding the orders appointing Ms Connell as trustee for the sale of the residential properties and the judge’s decision regarding costs.
A significant feature of the hearing was that Mr Terrell did not attend. The careful reasons of the trial judge explain how she concluded that there was a de facto relationship. On the face of the reasons it is difficult to see how the applicant might successfully challenge these findings on appeal.
As to the orders made, it is clear that Ms Connell is to receive the whole of the net worth of the property apart from some minor items. While this appears most unusual, the trial judge carefully explained how she reached that decision. It was a most unusual factual situation. While the decision may not be incorrect, such form of orders, particularly after a short relationship are arguably outside the range of discretion. In addition, the costs order was a substantial one and appears to have been made on an indemnity basis.
In this respect, it could not be argued that there are no prosects of success.
Prejudice to the respondent
Ms Connell explains in her affidavit the significant difficulties that she has faced in enforcing the substantive orders to date, and indicates that a further hearing for enforcement is listed in September 2014. It is understandable that she wishes to vigorously oppose the extension of time to appeal.
It appears that Mr Terrell has failed to comply with some of the substantive orders, and has made a persistent effort to frustrate Ms Connell’s attempts to take possession of entitlements pursuant to the orders. Annexure “MPC10” to Ms Connell’s affidavit contains a number of receipts showing expenditure of Ms Connell in repairing the M property, damage that Ms Connell asserts was caused to the property by Mr Terrell. She also deposes to Mr Terrell failing to pay outstanding costs orders made earlier in the proceedings.
These matters must be balanced with the short period of delay. It cannot be said that the prejudice to Ms Connell could not be compensated by an order for costs, at least in responding to this application.
Conclusion
I am mindful that, given this is an application of a procedural nature as provided in s 94(2D)(a) of the Act, should this application be refused, Mr Terrell will be unable to appeal this decision due to the restriction contained in s 94(2F). It follows that Mr Terrell may not be able to appeal the substantive orders. Given the short delay and the serious nature of the substantive orders, a refusal to grant leave could only work an injustice to Mr Terrell.
costs
At the conclusion of the hearing I asked the parties for their submissions as to costs. Ms Connell submitted that she had costs in the sum of approximately $3,000. Ms Connell produced a bill from her solicitors who prepared the material for this hearing. The solicitor for Mr Terrell said that he could not resist an order that his client pay Ms Connell’s costs and had no objection to the costs being fixed in that sum.
With the difficulties that Ms Connell has deposed to in mind, I intend to make orders allowing the application on the condition that Mr Terrell pay the sum of $3000 and provide the Appeals Registrar with sufficient evidence of his payment to Ms Connell of her costs in this application before a notice of appeal may be filed.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 August 2014.
Associate:
Date: 27 August 2014
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