Whitmore & Whitmore
[2022] FedCFamC1A 75
•20 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Whitmore & Whitmore [2022] FedCFamC1A 75
Appeal from: Whitmore & Whitmore [2021] FedCFamC2F 432 Appeal number(s): NAA 56 of 2022 File number(s): NCC 657 of 2019 Judgment of: AUSTIN J Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of Decision – Where the appeal registrar refused to extend the time for the applicant to appeal from final orders – Where the applicant seeks to challenge both parenting and property settlement orders – Where the proposed grounds of appeal concerning the parenting orders have no reasonable prospect of success – Where the property orders challenged were discharged and replaced – Where there is no utility in appealing from the orders – Application in an Appeal dismissed – Oral application for an extension of time to pursue an appeal from the later property settlement orders – Where the applicant should have leave subject to conditions confining the grounds of appeal and an order for security for costs – Order made– No order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIIAB, ss 75, 79A, 117 Cases cited: Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Whitmore & Whitmore [2021] FedCFamC2F 432
Whitmore & Whitmore [2022] FedCFamC2F 489
Number of paragraphs: 34 Date of hearing: 20 May 2022 Place: Newcastle The Applicant: Litigant in person Solicitor for the Respondent: Koulouris & Associates The Independent Children's Lawyer: Excused from attendance ORDERS
NAA 56 of 2022
NCC 657 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WHITMORE
Applicant
AND: MS WHITMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 11 May 2022 is dismissed.
2.The applicant’s oral application for leave to appeal out of time from the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 2 March 2022 is granted, subject to fulfilment of these conditions:
(a)the appeal must be confined to the substance of Grounds 4, 5 and 6 as contained in the draft Notice of Appeal annexed to the applicant’s affidavit filed on 29 March 2022;
(b)the Notice of Appeal must be filed and served within 14 days hereof; and
(c)the sum of $15,000 is preserved as security for the respondent’s costs of and incidental to the appeal which, in the event of dismissal of the appeal, shall be paid to the respondent from the applicant’s share of the net proceeds of sale realised on the sale of the real property pursuant to orders made by the primary judge on 2 March 2022.
3.The respondent’s application for costs of the review application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitmore & Whitmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court for consideration is the applicant’s application to review the appeal registrar’s decision on 12 April 2022, refusing to extend the time for the applicant to appeal from final orders made on 23 November 2021 by a judge of the Federal Circuit and Family Court of Australia (Division 2) and ordering the applicant to pay the respondent’s costs of the failed application.
For the following reasons, the review application is dismissed though the applicant’s alternate oral application for leave to appeal from more recent orders made on 2 March 2022 by the same judge is granted, subject to him meeting certain conditions.
Background
On 23 November 2021, the primary judge made orders to finally determine the disputes between the applicant and the respondent over their only child and their property under Pt VII and Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) respectively (Whitmore & Whitmore [2021] FedCFamC2F 432).
The property settlement orders required the former family home to be sold (Orders 1–5), entailing the rejection of the applicant’s proposal for him to retain the home as his exclusive property. However, other orders concerning superannuation interests, personal property and liabilities (Orders 6–13) did not excite the applicant’s interest for present purposes.
The orders requiring the sale of the former family home were not implemented and so the respondent applied, by way of an Application in a Proceeding filed on 25 January 2022, for consequential orders to enforce the substantive property settlement orders.
The applicant filed a Response to the Application in a Proceeding on 11 February 2022. He opposed the respondent’s application and sought to vary the original orders made on 23 November 2021, allowing him to retain sole ownership of the former family home and to instead pay to the respondent a fixed cash adjustment.
The enforcement hearing was listed before the primary judge on 18 February 2022. Judgment was reserved after the hearing and, on 2 March 2022, orders were made and reasons published by the primary judge to resolve the dispute (Whitmore & Whitmore [2022] FedCFamC2F 489).
Relevantly, Orders 1–5 earlier made in November 2021 were discharged. Both parties had submitted for the discharge of those orders, though they had quite different alternate proposals (at [6] and [9]). Substitute orders were made for the applicant to vacate the former family home, for a warrant to issue enabling possession of the property to be forcibly taken from the applicant if he refuses to vacate, for the respondent to have sole occupation of the home, for the respondent to have carriage of the sale of the property, and for the net proceeds of sale to be divided in a way which would ensure their equal entitlements (Orders 1–15).
The primary judge expressly acknowledged the absence of power to vary the substantive property settlement orders, other than pursuant to s 79A of the Act (at [22]–[25] and [44]), but considered the orders made at the respondent’s request were instead consequential orders to enable the enforcement of the substantive orders (at [27], [37], [38], [48] and [53]).
Evidently again dissatisfied with the orders made on 2 March 2022, the applicant then filed his Application in an Appeal on 29 March 2022, seeking leave to bring his appeal out of time from the original orders made in November 2021.
The appeal registrar dismissed that application on 12 April 2022.
By an Application in an Appeal filed on 11 May 2022, the applicant seeks the review of the appeal registrar’s decision. The application was filed a day late, but such a slight indiscretion ought not preclude the application from being entertained.
Evidence
To prosecute the review application, the applicant relies upon:
(a)the affidavit filed on 29 March 2022 in support of his application to extend the time for filing the appeal;
(b)the affidavit filed on 11 May 2022 in support of the review application; and
(c)the affidavit he filed on 16 May 2022.
The first affidavit annexes a copy of the draft Notice of Appeal which the applicant intends to file, should an extension of time be granted to file it.
The respondent relied upon her affidavit filed on 1 April 2022.
Legal principles
The review requires hearing de novo of the application to extend time to appeal. The applicant need not prove error by the appeal registrar, as the respondent contended.
Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Disposition
The applicant’s draft Notice of Appeal purports to challenge both the parenting orders and the property settlement orders made on 23 November 2021.
The applicant plans to challenge the parenting orders on the basis that:
(a)the primary judge did not deliver a timely judgment, given the trial concluded in April 2021 and judgment was not delivered until seven months later in November 2021 (Ground 1); and
(b)the primary judge erred in making two particular orders (Orders 4 and 5) precluding the child from having any form of contact with the applicant, given that they maintained a meaningful relationship, supervised visits had gone “reasonably well”, the applicant had engaged in parental education courses, and by wrongly finding that nothing turned on the mother’s denial to police in November 2018 of ever being assaulted by the applicant (Ground 2).
The applicant plans to challenge the property orders on the basis that:
(a)the delay of seven months in the provision of judgment meant the values attributed to assets were no longer accurate (Ground 3);
(b)the primary judge failed to provide adequate reasons for ordering the sale of the former family home in the face of the applicant’s desire to retain it (Ground 4);
(c)the primary judge gave insufficient weight to the applicant’s post-separation contributions (Ground 5); and
(d)the primary judge erred by finding the wife receives $12 per week by way of child support and by hypothesising that the applicant may be motivated to avoid or reduce the child support payments (Ground 6).
The delay of seven months in the delivery of judgment is not itself an appealable error. Moreover, no application was made to the primary judge to re-open and lead updated valuation evidence concerning the parties’ assets or liabilities, so the alleged staleness of the valuation evidence can hardly now be the basis of an appeal. Accordingly, Grounds 1 and 3 have no reasonable prospect of success and it would be futile to extend time to appeal on those two grounds.
The proposed ground of appeal concerning the orders precluding any contact between the applicant and the child could easily have formed the basis of an appeal filed within time. The only reason advanced by the applicant for his delay in filing an appeal was his decision to first apply to the primary judge to vary the property settlement orders in one particular respect. The hearing pertaining to the enforcement and/or variation of the property settlement orders in February 2022 had no apparent influence upon the applicant’s decision to abstain from appealing from the parenting orders made in November 2021. There is no explanation, let alone a persuasive one, for why the applicant delayed appealing from the parenting orders.
Even if some rational reason was advanced, an appeal from the parenting orders is destined to be an arduous battle for the applicant. The primary judge was cognisant of the circumstances emphasised by the applicant within Ground 2, which the applicant imputes were given insufficient weight, but nonetheless found:
212.For the reasons set out herein it is simply not in [the child’s] best interests at this juncture for them [the child and the applicant] to have a relationship. In what is a tragic case I make the orders set out earlier herein, which are based upon exhibit 14.
That finding was made in the face of an extensive review of relevant chronological events (at [29]–[172]), which included “family violence” by the applicant, his abduction of the child from one professional supervisor, and another professional supervisor’s cancellation of services due to the applicant’s misconduct, so no material facts were critically overlooked. The discretionary decision of the primary judge is strongly presumed to be correct (Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627) and no aspect of Ground 2 gave the applicant any scope for optimism about his success on that ground. No reason is demonstrated to extend time to pursue an appeal based on Ground 2.
It follows that there should be no extension of time within which to appeal from the parenting orders made on 23 November 2021.
In respect of the property settlement orders, there was and is no apparent dispute over the identification of the parties’ assets and liabilities. The applicant contended for his contribution-based entitlement to a 65 per cent share, whereas the respondent contended for her contribution-based share of 40 per cent. They were therefore only five per cent apart on their respective assessment of contributions. The primary judge adopted the respondent’s proposal, regarding it as conservative. The primary judge also agreed with the respondent’s proposal for a 10 per cent adjustment in her favour on account of the factors prescribed within s 75(2) of the Act. The net property was therefore adjusted on an equal basis.
Ground 4 challenges the probity of Orders 1–5 made in November 2021, requiring the sale of the former family home contrary to the applicant’s wishes, but those orders no longer exist. They were discharged and replaced by Orders 1–15 made in March 2022, which compel the same outcome. Any appeal premised upon Ground 4 must instead lie from the orders made in March 2022. When asked if he instead wanted an extension of time within which to appeal from the orders made on 2 March 2022 for the same reason, the applicant said he did.
The applicant conceded it was not his intention, by reliance upon Grounds 5 and 6, to vitiate Orders 6–13 made in November 2021 dealing with superannuation, personal property and liabilities, which orders remain in force because they were not discharged in March 2022. But, as is the case with Ground 4, if Grounds 5 and 6 are directed to the orders which govern the possession and sale of the former family home, then they must form part of an appeal from the orders made on 2 March 2022.
It follows that there is no utility in appealing from the property settlement orders made on 23 November 2021, so the review application will be dismissed. The applicant made no submission at all about the costs order made against him by the appeal registrar, so there is no reason to disturb the orders made by the appeal registrar on 12 April 2022. However, that is not the end of the matter.
While Grounds 4, 5 and 6 ostensibly have little merit in challenging the orders made on 2 March 2022, it cannot be said at this early juncture that they are without any reasonable prospect of success at all. Since they at least appear arguable, attention must turn to delay and prejudice as influential factors in the decision as to whether any appeal may be brought late.
The time for filing an appeal from the orders made on 2 March 2022 expired on 30 March 2022, but the applicant filed his application to extend time to appeal the day before on 29 March 2022. So, from before the limitation period for an appeal from the orders made in March 2022 even expired, the respondent has been on notice of the applicant’s desire to contest orders which force the sale of the former family home against his wishes. The respondent could not point to any tangible prejudice in having to meet an appeal from orders made on 2 March 2022 which dictate that outcome. She will incur costs in opposing the appeal, but her worry about not being able to recover costs from the applicant should the appeal fail, as she contends it eventually will, can be cured by an order securing her costs. As I understood it, the applicant did not ultimately resist that alternative.
I am persuaded the applicant should have leave to file an appeal out of time from the property orders made on 2 March 2022, subject to certain conditions which will protect the respondent from prejudice, being these:
(a)the appeal must be confined to the substance of Grounds 4, 5 and 6 as contained in the draft Notice of Appeal annexed to the applicant’s affidavit filed on 29 March 2022;
(b)the Notice of Appeal must be filed and served within 14 days hereof; and
(c)the sum of $15,000 will be secured against the applicant’s share of the net sale proceeds of the former family home as security for the respondent’s party/party costs of and incidental to the appeal, in the event that the appeal is dismissed.
There should be no order for costs in respect of the present application. Although the formal review application failed, the applicant has nonetheless been granted leave to appeal out of time and so was not wholly unsuccessful. The respondent did not demonstrate why, by reference to the factors within s 117(2A) of the Act, she was entitled to costs of $1,148.43 in meeting the application. There is no reason to depart from the usual rule enshrined in s 117(1) of the Act. The respondent’s costs application is dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 May 2022
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