Vanderlay & Theodopolos
[2008] FamCAFC 119
•8 August 2008
FAMILY COURT OF AUSTRALIA
| VANDERLAY & THEODOPOLOS | [2008] FamCAFC 119 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – Application to extend time to appeal – Wife’s explanation for delay of approximately 7 months inadequate – Prejudice to husband if leave to appeal granted not established – Applicant’s proposed appeal shown to have possible merit –– Denial of natural justice by Federal Magistrate proceeding in the wife’s absence not established – Denial of procedural fairness/and or reliance upon inadmissible evidence in finding the value of the matrimonial home established – Denial of procedural fairness by proceeding to make findings of fact in circumstances where the wife did not know, or have the opportunity to know, the husband’s allegations on the issue established – Not established that result could not have been any different had wife been afforded natural justice – Time to appeal extended – Appeal allowed – Orders with respect to property settlement set aside and proceedings remitted for rehearing – Costs certificates granted to the husband. Stead and State Government Insurance Commission (1986) 67 ALR 21 followed. |
| Family Law Act 1975 (Cth) Section 75(2) |
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Rutherford and Rutherford (1991) FLC 92-255
Allesch v Maunz (2000) 203 CLR 172
F and S (2005) FLC 93-208; (2005) 33 Fam LR 37
Stead and State Government Insurance Commission (1986) 67 ALR 21
| APPELLANT: | MS VANDERLAY |
| RESPONDENT: | MR THEODOPOLOS |
| FILE NUMBER: | PAM | 3589 | of | 2005 |
| APPEAL NUMBER: | EA | 27 | of | 2008 |
| DATE DELIVERED: | 8 August 2008 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J. |
| HEARING DATE: | 25 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 February 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1179 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Christie |
| SOLICITOR FOR THE APPELLANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Mr Schroder |
| SOLICITOR FOR THE RESPONDENT: | Marando |
Orders
That leave to appeal out of time against property orders of Federal Magistrate Donald of 22 February 2007 be granted.
That the wife’s appeal against the said orders be allowed.
That Orders 4, 5 and 6 of the Orders of 22 February 2007 be and are hereby discharged.
That the proceedings for settlement of property be remitted to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Federal Magistrate Donald.
That the Court grants to the Respondent Husband a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Husband in respect of the costs incurred by the Respondent Husband in relation to the appeal against the orders of Federal Magistrate Donald.
That the Court grants to the Respondent Husband a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Husband in respect of such part as the Attorney-General considers appropriate of any costs incurred by the Respondent Husband in relation to the new trial granted by these orders.
That the wife have liberty to apply for a costs certificate with respect to the appeal against the orders of Federal Magistrate Donald of 22 February 2007 and the rehearing of the property settlement proceedings between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Vanderlay & Theodopolos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA27/2008
File Number: PAM3589/2005
| MS VANDERLAY |
Appellant
And
| MR THEODOPOLOS |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 5 March 2008, Ms Vanderlay (“the wife”) sought leave to appeal out of time against orders made by Federal Magistrate Donald on 22 February 2007 in property settlement proceedings between the wife and Mr Theodopolos (“the husband”) on 22 February 2007 and, if leave be granted, that the orders then made be set aside and a new trial of the property settlement proceedings before a Federal Magistrate other than Federal Magistrate Donald be ordered.
The husband resisted the wife’s application for leave to appeal and/or her appeal if leave be granted.
Background
Some background to the application for leave to appeal and/or appeal is useful.
The following matters emerge uncontroversially from the judgment of the learned Federal Magistrate and the helpful case outlines provided by learned Counsel for each of the parties.
The parties married in April 1996 and separated on 14 June 2005.
There was one child of the marriage who was born in February 2001.
The parties travelled to the Netherlands in November 2004 with their child.
The husband returned to Australia in late February 2005.
The wife and the child of the parties remained in the Netherlands. In June 2005 the wife advised the husband that she did not intend to return to Australia or return the parties’ child to Australia. The wife has not returned to Australia since that time and currently resides in the Netherlands.
There followed proceedings instigated at the behest of the husband, pursuant to the Hague Convention.
The application for settlement of property which eventuated in the judgment of the Federal Magistrate of 22 February 2007 was filed by the husband on 27 July 2005.
In September 2005 the wife filed a response to the husband’s application, opposing the relief sought by him and seeking relief in the terms set out in such response.
In September 2005 the wife filed an affidavit in which she addressed property settlement issues. The wife filed an amended response in December 2005.
The husband relied upon an affidavit before the learned Federal Magistrate on 22 February 2007 which he had sworn and filed on 12 February 2007. There was no evidence before the learned Federal Magistrate, or before this Court, that the wife was served with that affidavit or ever saw it.
The wife contested the Hague Convention proceedings which, the child being in the Netherlands, proceeded in the Courts of that country. The first instance decision in the Netherlands favoured the wife, the child not being ordered to be returned to Australia pursuant to the provisions of the Hague Convention. That decision was however reversed on appeal by another Court in the Netherlands on 1 August 2006. The wife appealed that decision unsuccessfully, her appeal being dismissed on 1 December 2006.
The parties’ child was returned to Australia prior to the end of December 2006 and has remained with the husband in Australia since that time. The wife at all material times prior to the child’s return to Australia resisted the child’s return to Australia and, at least during pendency of the Hague Convention proceedings “ensured that the central authority did not know where [the child] and I were living”.
The property settlement proceedings came before the Federal Magistrates Court on 15 November 2006. There is no issue that the wife was aware that the proceedings were before the Court on that occasion. The proceedings again came before the Federal Magistrates Court on 29 January 2007. The wife claims to have had “no knowledge” of the proceedings being before the Court on that day although the wife appears to have been represented on that occasion.
The wife claims to have had “no knowledge” of the property settlement proceedings being before the Federal Magistrates Court on 22 February 2007, and to have first become aware of the orders of that date in May 2007. The wife retained her current attorneys during July 2007. It was not until March 2008 that the wife filed the application which has come before this Court for determination.
On 22 February 2007 the solicitor who undoubtedly had previously been the wife’s Australian solicitor appeared before the learned Federal Magistrate. As is apparent from the transcript of the proceedings on 22 February 2007 the solicitor announced her appearance on behalf of the wife. When asked whether the wife was now “defending” the property settlement application of the husband which was “supposed to be undefended”, the solicitor said “No, your Honour, I don’t propose to cross examine and I can’t assist the Court in any way. And we actually seek leave to withdraw”.
There followed discussion between the solicitor, his Honour, and Counsel for the husband in relation to a possible claim by the solicitors with respect to their costs of acting for the wife up to that time.
Later, the solicitor advised the learned Federal Magistrate that:
We have endeavoured to contact our client and she did have a firm of solicitors representing her in Holland. And we were in contact with them. They are no longer representing her and we have made substantial- - - .
On balance, the evidence does not establish that the wife did not know that the property settlement proceedings were to be before the Federal Magistrates Court on 22 February 2007. If the wife did not know that the proceedings were before the Court on that date, on balance, that was because the wife chose to put herself in the position where she could not know.
The husband’s property settlement application proceeded on an undefended basis before the learned Federal Magistrate who made orders in accordance with the husband’s July 2005 application, the substance of which was to vest in the husband the whole of the parties’ equity in their former matrimonial home.
The Judgment of the Federal Magistrate
The learned Federal Magistrate by way of the “background” to the matter which had “quite some history” in the Federal Magistrate’s Court, referred to the husband’s affidavit filed 12 February 2007 in support of his application for property settlement.
The learned Federal Magistrate then recounted a number of background facts, most of which have been outlined above. He recorded, accurately there is no doubt, that the parties’ child resides with the husband and will continue to do so, that the wife pays no child support and was unlikely to “ever pay any”.
His Honour recorded, by reference to the husband’s February 2007 affidavit, that he had expended $10 600 in relation to the Hague Convention proceedings, together with $28 818 with respect to “other legal costs” and an anticipated further $13 000 in legal fees “to finalise the matter”.
The history of contributions was then addressed by the learned Federal Magistrate. Subject to the matters to which reference will in due course be made in some detail, the current application does not appear to involve factual errors in the context of the learned Federal Magistrate’s consideration of the parties’ contributions.
His Honour recorded that neither party had “property” at the commencement of their relationship although the husband did have $25 000 in a term deposit that he had accumulated. Reference was then made to the employment histories of the parties and to their having “shared largely” in the care of their child.
The major asset of the parties, their former matrimonial home, was found to have been purchased in 1998 for $296 000. His Honour recorded that the deposit for the purchase (inferentially $29 600) had been paid from the husband’s “accumulated funds” and that the parties had “borrowed” money from the husband’s parents and also “from a loan organisation”. Reference was then made to subsequent renovations and improvements to the property both in terms of work done by the husband and his father and other tradesmen who were paid for their services.
The learned Federal Magistrate recorded that the husband’s parents were “owed $480 000 in relation to the former matrimonial home”. It is convenient to record at this point that the wife conceded that the husband’s parents had provided $350 0000 which was referrable to the former matrimonial home, albeit she contended that such sum had been gifted by the husband’s parents.
For his part, as is apparent from his learned Counsel’s case outline statement, the husband asserted that, exclusive of the acquisition cost of a Camry motor vehicle, he was indebted to his parents in the sum of $524 666. Neither Counsel who appeared before this Court could suggest the basis of the $480 000 to which his Honour referred and ultimately this is not a matter of great significance in any event as it is clear, from the transcript of the proceedings before him, that his Honour accepted the contention of Counsel for the husband that the asset pool was worth $130 738 net in any event.
The learned Federal Magistrate accepted the husband’s assertion that the wife was in a “permanent relationship with another person in the Netherlands and is working” and had no “intention to return to Australia”, concluding that the financial and non-financial “burden of caring for the child is going to fall fairly and squarely on the shoulders of the husband” with “little indication” that the wife would contribute to the financial costs of such burden.
Having made parenting orders which are not controversial for present purposes, the learned Federal Magistrate returned to consideration of the property settlement proceedings, recording that the parties assets were worth $130 738 net, that being the figure urged on behalf of the husband.
So far as contributions were concerned, his Honour referred to the duration of the cohabitation between the parties (1993-2005) and to the husband’s initial capital contribution of $25 000. His Honour referred to the periodic contributions of the parties thereafter and did not suggest that either party’s contributions in that respect were superior to those of the other.
His Honour accepted that the husband and his father “contributed significantly with the renovations” to which he had earlier referred. An “indirect financial contribution from the husband’s parents” was also accepted by the learned Federal Magistrate.
The contributions of the parties as homemaker and parent were regarded as equal, the contributions of the parties overall being assessed as favouring the husband by 70 per cent to 30 per cent on the part of the wife.
A section 75(2) adjustment of 30 per cent was made in the husband’s favour in reliance upon “the very small net pool of assets, the age of the child, the need to fully support that child throughout the child’s non-adult years and the unlikely situation of the wife contributing to the costs of the care of the child”.
His Honour thus ordered that the wife transfer her interest in the parties’ former matrimonial home to the husband.
The wife’s application for leave to appeal and, if leave be granted, appeal against the orders of the learned Federal Magistrate.
Counsel for the parties, sensibly in the Court’s view, agreed that, in order to determine the application for an extension of time within which to appeal, the Court would need to consider the merits of the wife’s proposed appeal. The principles governing applications for leave to appeal were agreed to be relevant. The approach taken by Counsel was consistent with the principles applied by this and other Courts in applications for leave to appeal (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170) in Rutherford and Rutherford (1991) FLC 92-255).
As was the case in Rutherford (supra), it is unnecessary in the circumstances of this case to determine whether the applicant must show an error or principle and that the decision appealed from caused her a substantial injustice or whether establishing either of these circumstances is a sufficient basis for the granting of leave to appeal.
In the circumstances of this case, as will become apparent, establishing a substantial injustice probably requires the establishment of an error or principle whilst if an error of principle is established, a substantial injustice almost certainly flows from it.
It is common ground that the present application is appropriately approached by reference initially to the merits of the wife’s proposed appeal.
If the wife’s proposed appeal is not shown to have possible merit, the application for an extension of time in which to appeal should be dismissed. If however the application is shown to have possible merit, it becomes necessary to determine whether to exercise the discretion to extend time to appeal. The two most significant matters of relevance in that regard are the wife’s explanation for her delay in appealing against the learned Federal Magistrate’s decision, and the prejudice to the husband if leave to appeal is granted.
Objectively, as learned Counsel for both parties at least tacitly acknowledged, the stronger the apparent merits of the proposed appeal, the less likely the discretion will be exercised by refusing leave to appeal notwithstanding that the explanation for delay and/or prejudice to the party resisting the proposed appeal may favour so doing.
In this case, save to the extent outlined in his learned Counsel’s Summary of Argument, the husband, fairly, does not assert any prejudice which, if leave otherwise be appropriate, would result in the refusal of leave. Conversely, it is readily apparent that the wife has not adequately explained her delay in commencing her proceedings for leave to appeal for a period of approximately 7 months (August 2007 to March 2008).
The submissions on behalf of the wife can be broadly categorised under three headings.
The first challenge sought to be raised by the wife asserted that she was denied natural justice by the learned Federal Magistrate proceeding in her absence on 22 February 2007.
The second challenge sought to be agitated by the wife relates to the Federal Magistrate’s acceptance of the figure of $620 000 as the value of the former matrimonial home. The wife contended that the learned Federal Magistrate denied her procedural fairness in allowing the husband to rely upon the figure of $620 000 in circumstances where it has not been established that she knew, or could have known, that the husband was seeking to do so.
In the alternative, it was submitted that the learned Federal Magistrate erred in the circumstances of the case before him in finding the value of the former matrimonial home to be $620 000. It was submitted that, on the evidence before him, the only figure to which his Honour could safely have regard was the figure of $700 000 which each party accepted in sworn statements previously filed by each of them.
The third challenge sought to be agitated by the wife was that the learned Federal Magistrate erred in accepting that the parties were indebted to the husband’s parents in the sum of $537 666 in circumstances where, at most, the wife in her affidavit evidence conceded that the husband’s parents had provided to the parties $363 000 and had disputed that such funds were provided by way of loan to the parties.
The wife contended that the learned Federal Magistrate’s acceptance of an interest component, quantified for the first time in the husband’s affidavit of 12 February 2007, constituted a denial of procedural fairness and/or an impermissible factual error on the part of the learned Federal Magistrate.
It was not established before the learned Federal Magistrate, and has not been established before this Court, that the wife ever saw, or had the opportunity to see, the affidavit of the husband of 12 February 2007 in which he asserted, for the first time, the liability to pay his parents interest in the sum of $34 666.
As is not in doubt, the husband had previously sworn that he and the wife owed his parents $340 000. The wife thus asserted that allowing the husband to rely upon the affidavit which she had not seen in support of his assertion that his parents were owed more than $180 000 more than he had previously sworn to be the case was a denial of procedural fairness.
In the alternative, the wife asserted that, she having put in issue, by her affidavit in September 2005, the nature of the provision of funds by the husband’s parents and the absence of any interest referrable to it, the learned Federal Magistrate erred in finding as he did.
The denial of natural justice complaint
The chronology of events prior to the hearing of the property settlement proceedings in the Federal Magistrates Court on 22 February 2007 does not establish, on balance, that the wife did not know that the proceedings were to be heard on that date or that, if she in fact did not know, that her ignorance was not the result of her own actions.
It is clear beyond doubt on the wife’s own evidence in the present application that for approximately 18 months prior to December 2006, the wife was, as learned Counsel for the husband submitted, “incommunicado”, and remained so, for the clear and tacitly acknowledged purpose of defeating the husband’s attempts to procure the return of the parties’ child to Australia.
As is not in doubt, those attempts were unsuccessful despite the wife’s best endeavours, both at law and otherwise. The statements made by the solicitor who appeared for the wife briefly before the learned Federal Magistrate on 22 February 2007, to which reference has earlier been made, are revealing for present purposes, and consistent with the Court’s conclusion that, if the wife did not know that the proceedings were before the Court on 22 February 2007, that was because she chose not to know.
The evidence suggests that the wife terminated contact with the solicitors acting for her. On the evidence to which this Court has been referred, the learned Federal Magistrate was entitled to proceed in the absence of the wife. As Kirby J has explained in Allesch v Maunz (2000) 203 CLR 172, it is the opportunity to be heard which is fundamental to natural justice. In Allesch (supra), Kirby J said:
…
38.…Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the family Court ….
There is a limit to the extent to which Courts can be expected to protect the rights of a litigant who chooses to value such rights as lightly as the evidence reveals the wife in this case to have done.
Concluding that the learned Federal Magistrate was entitled to proceed to determine the property settlement proceedings on 22 February 2007 does not however conclude the matters which require consideration by this Court.
As this Court has said on other occasions, simply because a party impermissibly fails to appear does not mean that the Court is thereby absolved from affording that party procedural fairness (see F and S (2005) FLC 93-208; (2005) 33 Fam LR 37).
The valuation of the former matrimonial home.
As is not in contest, the only basis upon which the learned Federal Magistrate could have found the value of the former matrimonial home of the parties to be $620 000 was the affidavit of the husband of 12 February 2007. There are difficulties with that affidavit. It has not been established that the wife knew of the affidavit or had the opportunity to know of it.
The husband was not qualified to give expert opinion evidence as to the value of the former matrimonial home. The only figure, absent admissible expert opinion evidence, upon which his Honour could in the circumstances rely was the figure of $700 000 which emerged as the lowest valuation of the matrimonial home to which the parties had agreed in their previous sworn statements.
With respect to his Honour, and with the benefit of hindsight, his Honour erred in finding the value of the former matrimonial home to be $620 000. It remains to consider the significance of that error. If the outcome of the case could not have been any different had his Honour not so erred, then appellate intervention would not be enlivened and the application to extend time to appeal would be dismissed.
The effect of including the former matrimonial home of the parties at a value of $700 000 rather than $620 000, would have been to inflate the asset pool by $80 000 to $210 738.
In Stead and State Government Insurance Commission (1986) 67 ALR 21 the High Court said:
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
To the extent that his Honour erred, whilst that error might lead to the Court allowing the appeal and the discretion of the learned Federal Magistrate being re-exercised, unless so doing would produce the same outcome as that determined by the learned Federal Magistrate, the error demonstrated on behalf of the wife would enliven appellate intervention.
It could not realistically be said that such an increase was inconsequential. Nor in this Court’s view could it be said that the result of the case would have been no different had his Honour proceeded on the basis that the net asset pool was worth $210 738. His Honour may have come to the same conclusion having regard to his findings with respect to contributions and s 75(2), but this Court is not prepared to go so far as to say that he would or should have done so.
In his outline of case statement to the learned Federal Magistrate, learned Counsel for the husband sought an outcome, based on the net asset pool of $130 738, which would have seen the wife receive $4687 on the basis there set out.
If the net asset pool were $210 738, that figure would become $24 687, $20 000 more than the husband himself sought that the wife receive. Albeit a modest sum, it could not in this Court’s view be said that an additional $20 000 in this case would be so unsubstantial as to refuse the wife the opportunity to challenge the learned Federal Magistrate’s decision.
In this Court’s view, on the material before him, the learned Federal Magistrate denied the wife procedural fairness and/or relied upon inadmissible evidence, in finding that the former matrimonial home of the parties was worth $620 000 when, on the material before him, he could not have found its value to have been less than $700 000.
As this Court does not conclude that the outcome of the case would have been no different had his Honour relied upon the figure of $700 000, this proposed challenge can be seen as having merit.
The learned Federal Magistrate’s finding with respect to the husband’s indebtedness to his parents.
As noted earlier, the wife did not dispute that the husband’s parents had provided at least $350 000 to the parties together with a further $13 000 for the purchase of a motor vehicle, a total of $363 000.
The husband in his sworn material appeared to suggest a not dissimilar figure, ultimately, in his affidavit of 12 February 2007, asserting that his parents had lent monies to him and the wife totalling $390 000 in respect of which interest was payable, his total indebtedness to his parents, exclusive of the $13 000 provided for the purchase of the motor vehicle being $524 666.
The husband’s affidavit of 12 February 2007 raised two issues which had not previously been raised by him in any affidavit material to which this Court has been referred, they being the quantum of the advances made to him by his parents, and the provision of interest.
As is not in doubt, there was no evidence before the learned Federal Magistrate of either of the husband’s parents in relation to the husband’s alleged indebtedness or the basis of it. The evidence does not establish that the wife knew, or had the opportunity to know, of the husband’s allegations in relation to the components or quantum of his alleged indebtedness to his parents. The wife was thus denied procedural fairness in relation to this issue.
It is necessary however to determine whether, had the wife been afforded procedural fairness, the outcome of the case could have been any different. It is common ground that the husband’s parents “provided” $350 000 to the parties in relation to the former matrimonial home. The wife did not assert that any part of that money had been repaid, nor would she, given that she alleged that the relevant transactions involved gifts. Also unsurprisingly, the wife did not suggest that interest had ever been paid on those monies.
Whether the funds (whatever their quantum) were provided by way of gift, and thus required consideration within the context of contributions “by or on behalf” of the husband, or by way of loans, which reduced the quantum of the asset pool, not a great deal may have ultimately turned on which parties’ contention was preferred, although clearly there is a material difference between the provision of $350 000 and $390 000.
The resolution of the factual dispute as to the amount of money provided by the husband’s parents would have impacted upon the exercise of discretion by the learned Federal Magistrate, as would, albeit perhaps to a lesser extent, his resolution of the gift versus loan controversy. This Court need not speculate about what the outcome of the case might have been on the various eventualities, it being sufficient to record that this Court cannot accept that the result would or should have been no different had his Honour afforded the wife procedural fairness.
Subject to determining whether $350 000 or $390 000 had been provided by the husband’s parents, his Honour might ultimately, and permissibly, have exercised his discretion in substantially the same way as he did, albeit by a somewhat different process of reasoning depending upon whether he accepted that funds had been gifted or loaned, but that would not inevitably have been the case on the evidence before him and the findings of fact to which this Court has had regard.
This proposed challenge accordingly has substance.
Conclusion with respect to proposed challenges.
Two of the three broad proposed challenges to the learned Federal Magistrate’s exercise of discretion have been found by this Court to have merit. It remains however to consider two particular matters raised on behalf of the husband.
The first of those was, in essence, that the learned Federal Magistrate’s conclusions with respect to contribution based entitlements of the parties and s 75(2) factors was sustainable, even if the Court accepted that the net asset pool should have been valued at $210 738, and the wife’s contention that $350 000 had been gifted by the husband’s parents.
Whilst the Court concedes that, on that factual scenario, the learned Federal Magistrate may have come to the same conclusion, particularly having regard to his Honour’s ability pursuant to s 75(2)(o) to have regard to the legal costs and other expenses incurred by the husband in successfully securing the return of the parties’ child to Australia, the Court is not persuaded that his Honour would or should necessarily have reached the same conclusion.
It is apparent that, once a denial of natural justice has been established by an appellant, or applicant for leave to appeal, the respondent to such appeal or application bears a heavy onus having regard to the terms in which the High Court has expressed that onus in Stead (supra).
The second matter which requires consideration relates to what might broadly be termed the wife’s conduct throughout the proceedings. There are two elements to that conduct.
The first element of the wife’s conduct relates to her actions in the 18 months prior to the child’s return to Australia in December 2006, during which, it is clear that, whilst pursuing the legal avenues properly available to her, the wife rendered herself “incommunicado”.
There is force in the submission of learned Counsel for the husband that the wife’s actions over that period of time disentitle her to any sympathy from the Court.
The second aspect of the wife’s conduct upon which learned Counsel for the husband properly relied was the unexplained failure to take any steps to seek to challenge the learned Federal Magistrate’s decision of 22 February 2007 over the 7 month period prior to March 2008. But for the apparent merit of the challenges sought to be agitated by the wife which have been considered earlier, and the absence of any demonstrable prejudice to the husband, other than the usual prejudice in not having litigation finalised, this delay might assume significance in the exercise of the Court’s discretion. On balance, it is not a sufficient basis for declining to exercise the discretion to extend time to appeal.
So far as the wife’s earlier conduct is concerned, had the child not been returned in accordance with Court orders prior to 22 February 2007, this Court may come to a different conclusion to that which it has reached. It would be difficult to readily recognise a litigant’s entitlement to natural justice and procedural fairness in circumstances where that very same litigant was herself on the other side of the world defying international law.
Given however that the child was returned to Australia in accordance with the final decision of the courts of The Netherlands by the end of December 2006, not without some misgivings, the Court does not consider the wife’s conduct should disentitle her to the relief to which she has otherwise established an entitlement.
Conclusion
The wife having demonstrated merit in the proposed challenges to the learned Federal Magistrate’s decision, and the matters relied upon by the husband not disinclining the Court to exercise the discretion to extend time within which the wife may appeal his Honour’s decision, that leave should be granted.
Having accepted that the challenges sought to be agitated in such appeal have substance, the Court will allow the appeal.
Consequences of allowing the appeal
It is common ground that if the appeal is allowed the orders of the Federal Magistrate with respect to property settlement should be set aside and the proceedings remitted for rehearing before another Federal Magistrate.
The husband is clearly entitled to a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 with respect to both his appeal to this Court and the costs of the re-trial of the proceedings in the Federal Magistrates Court.
The Court would not however award costs certificates to the wife. As the wife’s learned Counsel sensibly submitted, at best liberty should be reserved to the wife to apply for costs certificates. The conduct of the wife relied upon by Counsel for the husband and referred to earlier in these Reasons militates strongly against exercising the discretion to award the wife costs certificates.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.
Associate:
Date: 8 August 2008
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