Whitmore & Whitmore

Case [2022] FedCFamC1A 75

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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Whitmore & Whitmore [2022] FedCFamC1A 75
Case
[2022] FedCFamC1A 75
Decision Date

CaseChat Overview and Summary

The case involves an appeal in family law matters between Mr Whitmore, the applicant, and Ms Whitmore, the respondent. The applicant sought leave to appeal out of time from final orders made by the primary judge on 23 November 2021 concerning their child and property. The applicant filed an Application in an Appeal on 29 March 2022, which was dismissed by the appeal registrar. The applicant then filed an Application for Review to challenge the appeal registrar's decision. The court was required to determine whether the applicant could appeal out of time and, if so, under what conditions.

The court considered the principles applicable to extending time for an appeal, as outlined in Gallo v Dawson and Jackamarra v Krakouer. The applicant must demonstrate a substantial issue to be raised in the appeal. The court found that the proposed grounds of appeal concerning the parenting orders had no reasonable prospect of success, but the property orders challenged were discharged and replaced. The court concluded that there was no utility in appealing from the orders. However, the applicant's alternate oral application for leave to appeal out of time from more recent orders made on 2 March 2022 was granted, subject to conditions.

The court granted the applicant's oral application for leave to appeal out of time from the orders made on 2 March 2022, subject to certain conditions. The appeal must be confined to the substance of Grounds 4, 5, and 6 as contained in the draft Notice of Appeal. The Notice of Appeal must be filed and served within 14 days, and the sum of $15,000 is preserved as security for the respondent's costs of and incidental to the appeal. The court dismissed the respondent's application for costs of the review application. The form of the order is subject to entry in the Court's records and may be subject to review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 56 of 2022

NCC 657 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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