West & White (No 2) - [2011] FamCAFC 140

FAMILY COURT OF AUSTRALIA

WEST & WHITE (NO. 2)

[2011] FamCAFC 140

FAMILY LAW – APPEAL - APPLICATION FOR EXTENSION OF TIME

Family Law Act 1975 (Cth)

APPELLANT:

Mr West

RESPONDENT:

Ms White

FILE NUMBER:

NCC

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

23 May 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 November 2010

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant in Person

SOLICITOR FOR THE APPELLANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Mr Fox

Orders

That the husband’s application for an extension of time in which to appeal the orders of Cleary J made on 19 November 2010 is allowed.
That the time in which the husband may file a Notice of Appeal against those orders made by Cleary J on 19 November 2010 is extended until 4pm on 28 July 2011.
That the husband is to serve the Notice of Appeal referred to in order 2 and file and serve a draft appeal book index on or before 4pm on 12 August 2011.
That the Appeal Registrar will conduct a procedural hearing at a time and date to be advised, provided the husband complies with these orders.
I reserve the question of the costs of and incidental to this hearing either to the Full Court on appeal or to be relisted before me for argument at a later date.

IT IS NOTED that publication of this judgment under the pseudonym West & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Glanton & Holden.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 45 of 2011
File Number: NCC 3 of 2007

Mr West

Appellant

And

Ms White

Respondent

REASONS FOR JUDGMENT

The applicant husband seeks an extension of time in which to appeal orders made by Cleary J on 19 November 2010.
It is necessary to give some background to the application and the matter generally to give context to the discussion and consideration of this application.
As her Honour Cleary J noted in paragraph 9 of her reasons for judgment, on 1 September 2005 Mullane J made an order pursuant to s 118(1)(c) of the Family Law Act 1975 (“the Act”) in the following terms:
13. The husband must not without leave of a judge of this Court institute any further proceedings against the wife under the Family Law Act
14. Any such application for such leave is in the first instance to be listed before a judge in chambers without appearances and unless otherwise ordered is not to be served upon any other party.
In December 2008, during a contested property hearing between the parties, the husband and wife entered into consent orders for the sale of the marital home and for division of the resulting proceeds.
The orders have been the source of contention. Order 7a and 8 are as follows:
7a That in the event of any disagreement between the parties as to any aspect of the listing for sale, or sale or auction of the home, the Chief Executive Officer for the time being of the Real Estate Institute of NSW or his nominee (hereinafter referred to as “the CEO”) shall be and is hereby appointed to determine any such disagreement, and any costs incurred shall be borne equally between the parties, and the solicitors for the wife are authorised and directed by these orders to make any necessary adjustment from the parties’ respective shares of the proceeds of the sale pursuant to order 1 hereof.
8 The wife shall keep the husband informed of the progress of the marketing and sale of the home.
On 4 November 2009 the property was sold in accordance with the orders for $530,000.
In August 2009 the husband brought contravention proceedings against the wife alleging a failure to comply with order 7a of the consent orders. The application was heard by Federal Magistrate Coakes on 25 August 2009 who dismissed the husband’s application and ordered that he pay the wife’s costs.
The husband then appealed that decision and the appeal was heard by Coleman J. I have had the benefit of his Honour’s reasons on that appeal and they have significance to the matter before me.
His Honour noted that during the argument on the application before the Federal Magistrate, the husband asserted that the alleged contravention was the wife’s failure to consult with him. His Honour (at paragraph 11 of the appeal judgment) extracted from the transcript an exchange between the husband and the Federal Magistrate at paragraph 11 of the appeal judgment in which the Federal Magistrate said:
Well, sir, the issue then is if there is an issue, and I'm not satisfied there is at this stage whether the property has been sold for the best price reasonably obtainable in the current market. Is that the issue?
To which the husband replied:
No. The issue is point 7(a) – is that the wife is to consult with the husband on any aspects of the home being for sale.
The Federal Magistrate pointed out that order 7a was to have effect in the event of a disagreement between the parties about the sale or proposed sale.
The appeal from the Federal Magistrate’s decision was unsuccessful.
In the course of the decision on appeal, Coleman J said at paragraph 19:
19. His Honour identified correctly, there is no doubt, the application by the husband and the breach upon which the husband relied. His Honour having referred to Order 7(a) recorded that, “the husband adduces no evidence in his affidavit to support that contention”. With respect to his Honour, whilst if accepted, the evidence in the husband’s affidavit in support of his contravention application would have been capable of establishing at least at a prima facie level, a contravention of Order 8, he was correct in this court’s view in concluding as he did, with respect to the ability of the affidavit evidence to support the asserted contravention of Order 7(a).
Coleman J said at paragraph 34:
As a reading of the husband’s affidavit evidence in chief confirms, if accepted, the husband’s evidence would be capable of establishing, at least at the prima facie level, a breach of Order 8. It would not, however, on a balanced reading of the 11 paragraphs of the husband’s affidavit, be capable of establishing at even prima facie level, a breach of Order 7(a)…..
His Honour noted at paragraph 51:
Regrettably…. [The husband] picked the wrong order in the consent Orders of December 2008 as the basis of his contravention application. As the court suggested to the husband on a number of occasions during the course of oral submissions, had the application referred to Order 8 rather than or in addition to Order 7(a), its fate, at least in terms of summary dismissal may have been quite different.
On 26 October 2010 the husband sought leave of Cleary J to institute contempt proceedings. The application was supported by an affidavit sworn by the husband. In conformity with the 2005 order, her Honour dealt with the application in chambers and refused the husband’s application. Her Honour’s orders were made on 19 November 2010.
It is against her Honour’s refusal to grant leave to the husband that he wishes to appeal and in respect of which the time for bringing the appeal has expired.
The husband’s application for extension of time in which to bring the appeal was made on 14 April 2011. I observe that the application also sought an order that:
Further relevant evidence if available be allowed
During discussion on the application, the husband conceded that this application ought to more conveniently be raised at a later time.
The draft grounds of appeal proposed by the husband are:
The honourable jst erred in fact in assumeing that order 8 in concent orders issued 16.12.08 has previously been contended by applicant before Mgst Coakes Newcastle Registary on 25.8.09.
The honourable jst erred in procedal fairness in not addressing order 2.2 of orders issued 16.12.08
By an annexure to the draft notice of appeal the husband notes:
1. Orders dated 4.11.10 were lost at the Family Court Parramatta or Newcastle registry after repeat inquires to the Family Court administration they were located and received by me on 5.2.11
2. Due to financial restraints, legal advice was difficult to obtain within the time frame of twenty eight days.
I propose to treat this as the husband’s explanation for the delay in filing the appeal.
The application for extension of time to appeal was opposed by the wife who was represented by a solicitor and who appeared by telephone.
The principles applying to applications such as these are well known and emerge from Gallo v Dawson (990) 93 ALR 479 and may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.

Explanation for the delay

Accepting that the husband did not receive her Honour’s orders until February 2011 (and there is no reason not to accept his assertion), his application was filed on 1 April 2011 about a month out of time. As I have indicated, the wife appeared through a solicitor who argued that time ought not be extended because the husband being no novice to litigation, having appearing for himself in many, many hearings in this court, should have been able to marshal his resources and file the appeal within time.
Regardless of whether the husband has experience in appearing for himself, I am required to consider whether his explanation for this delay is adequate and, in this case, I am satisfied that he has given an adequate explanation for the delay.

Prospects of success of the appeal

It is necessary to consider the appeal and its merits. In considering this aspect of the matter, it is important to note that, for the purposes of this application, the applicant must show an arguable case not that he will necessarily succeed on the appeal.
In order to consider this aspect of the matter, it is necessary to have regard to the affidavit sworn by the husband on 27 October 2010 in support of his application to her Honour.
In paragraph 2 the husband asserts that the wife had not complied with orders 1.1, 7(a) and 8 of the consent orders which were attached to the affidavit.
At paragraph 5 the husband said:
Orders 7a and 8- This would include that I be a party to the periodically renegotiated (every 90 days) of “Real Estate Agents Agreement” this contains matters as:…
He further deposed (paragraphs 7 and 9) that on 13 August 2009 he noticed the house advertised in the window of a real estate agent and believed that the advertised price was lower than he expected it to be. On calling the agent he was told that the house had sold. The husband said that he had no notice from the wife about the sale or price before the house was sold. In paragraphs 18 and 19, the husband addresses the wife’s asserted failure to comply with order 8 of the consent orders.
At paragraph 30 of her Honour’s judgment, she considers the question of leave and noted that the husband’s application did not refer to the contravention application filed by him and dismissed by Federal Magistrate Coakes in August 2009 nor that an appeal to the Full Court of this court had been unsuccessful. She continued:
In this matter the contravention application brought by the applicant prior to the sale of the former matrimonial home has been heard, determined, appealed against and the appeal lost.
She concluded that there was no prospect of success of any application were his leave to be granted and dismissed the husband’s application.
It is this that the husband contends was her Honour’s misapprehension of the basis of his proposed application for contempt against the wife, that is, order 7a rather than including order 8.
The solicitor for the wife, while conceding that the husband’s proposed application was in relation to Order 8 of the consent orders, there was no merit in any appeal because it was “substantially” the same case being argued as that which was dismissed by Federal Magistrate Coakes. I do not agree with that characterisation of the proposed contempt application.
It is important to emphasise that this enquiry is to determine whether, so far as can be ascertained at this stage, the appeal against her Honour’s refusal to grant leave is arguable.
I am satisfied that there is merit in the appeal.

Prejudice

For the wife it was submitted that by granting an extension of time to the husband to appeal the refusal would operate as a prejudice to the wife in the sense that she would then be forced into continuing litigation with the husband. It seems that the history of litigation between these parties has been long and, no doubt fraught. The wife’s position adopted on this application is understandable.
However, given my findings in relation to the balance of the factors necessary to the exercise of this discretion, I do not regard the matters raised on behalf of the wife as being such that an extension of time to appeal her Honour’s refusal of the husband’s application should not be granted.
I propose to order an extension of the time in which the Husband may appeal against Cleary J’s orders.

_____________________________________________________________________

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29 June 2011.

Associate:

Date: 29 June 2011