Yeates and Yeates
[2020] FamCAFC 132
•1 June 2020
FAMILY COURT OF AUSTRALIA
| YEATES & YEATES | [2020] FamCAFC 132 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where it is not clear why an order was made that the husband pay the wife $100,000 – Where there was a delay because the husband was initially unrepresented and focused on complying with disclosure of documents – Where short delay – Whether a condition should be ordered on the husband because he has not complied with the primary judge’s orders – Where the primary judge contemplated non-compliance – Where there is merit in the appeal – Where there is a reasonable explanation for the delay in filing a Notice of appeal – Application in an Appeal allowed – Order for extension of time – Order that the husband pay the wife’s costs. |
| Family Law act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 1.14 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25 |
| APPLICANT: | Mr Yeates |
| RESPONDENT: | Ms Yeates |
| FILE NUMBER: | BRC | 14808 | of | 2019 |
| APPEAL NUMBER: | NOA | 26 | of | 2020 |
| DATE DELIVERED: | 1 June 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 26 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS DATE: | 28 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGregor |
| SOLICITOR FOR THE APPLICANT: | Cornerstone Law Offices |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Evans Brandon Family Lawyers |
Orders
The Application in an Appeal filed 6 April 2020 be allowed.
The time for the applicant to file and serve an appeal from the orders of the primary judge made on 28 February 2020 be extended until 4.00 pm on 15 June 2020.
The applicant pay the respondent’s costs in the sum of $5,143 within twenty-eight (28) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeates & Yeates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 26 of 2020
File Number: BRC 14808 of 2019
| Mr Yeates |
Applicant
And
| Ms Yeates |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 February 2020, the primary judge made interim orders in relation to both the parenting and property aspects of the parties’ Federal Circuit Court proceedings. One of these orders required Mr Yeates (“the husband”) to pay Ms Yeates (“the wife”) the sum of $100,000, although no time for payment was specified.
No appeal from the orders made on 28 February 2020 was brought within the time limited for its institution. Now by Application in an Appeal filed 6 April 2020, the husband seeks to extend the time in which to file a Notice of Appeal.
On 26 May 2020 I heard the Application in an Appeal and reserved my decision. For the reasons which follow, the husband’s application should be allowed.
Background
The husband is an Australian citizen and the wife is a citizen of Country A. The parties first formed a relationship in Country B in 2009, married in 2013, and finally separated in October 2019. There was one child born to the relationship. Another child born to the wife’s previous relationship, whose surname was changed to that of the husband, also lived with the parties during their relationship.
The primary proceedings in which the husband only sought parenting orders, were initiated by him on 4 December 2019. By Response filed 5 February 2020, the wife sought orders relating not only to the children, but also financial matters, including an interim payment to her in the sum of $100,000 and interim spouse maintenance in the sum of $869 per week. However unlike the interim spouse maintenance application, the claim for an interim payment of $100,000 was not addressed in the wife’s affidavit also filed on that date; indeed it was not even mentioned.
On 19 February 2020, the then self-represented husband filed a Notice of Discontinuance, which he mistakenly thought would bring his application, and the wife’s response, to an end.
The first return date for the proceedings was on 28 February 2020, on which occasion the primary judge proceeded to make interim parenting and financial orders, including the order for the payment to the wife of $100,000. The matter was then adjourned “for mention/directions only” to 3 April 2020. By that date, the husband had not paid the $100,000.
Notwithstanding the intended nature of the 3 April 2020 court event, nonetheless further contested interim orders were then made by the primary judge (which were later amended on 7 April 2020). They included orders for the sale of two classic motor vehicles owned by the husband, in order to meet the unsatisfied 28 February order for the payment of $100,000, the appointment of the wife as their trustee for sale, and for the husband to deliver them up, albeit curiously, by 4.00 pm on 2 April 2020, ie, a date which had already passed. A further curiosity is that, in its terms, the order for delivery up contemplated non-compliance, in which event the husband would be obliged to pay the wife $500 per day until the vehicles were handed over.
A Notice of Appeal from the 3 April 2020 orders was filed by the husband on 6 April 2020. Subject to leave to appeal being ordered, that appeal remains extant and undetermined.
An application for a stay of the 3 April 2020 orders dealing with the sale of the vehicles was also filed by the husband on 6 April 2020, but later refused by the primary judge.
THE PROCEEDINGS OF 28 FEBRUARY 2020
Since by 28 February 2020, the husband had discontinued his Initiating Application, at that date, the only extant process before the Court was the wife’s Response filed 5 February 2020.
At the hearing of 28 February, the husband self-represented, whereas the wife was represented by counsel. On that occasion, she sought numerous interim parenting and property orders.
A transcript of the proceedings was in evidence before me. From that it appears as though shortly prior to the commencement of that hearing, counsel for the wife had circulated to the husband a draft of the orders he was going to seek. One of those orders was the interim payment of $100,000, as had been first foreshadowed in the wife’s response. Some of the proposed orders were agreed to by the husband, but others, including the order for the payment of $100,000, were not.
At the outset of the hearing, the primary judge was appraised of the recent developments, and particularly the fact that some orders were uncontentious, and counsel for the wife then proceeded to make submissions in support of the balance of the orders that the wife sought. In the course of doing so, he explained to the primary judge that the husband had failed to provide the disclosure that had been requested of him, and that was also then required of him, by virtue of that day being the first return of the wife’s application for interim spouse maintenance. There was an exchange between the husband and the primary judge in relation to that, during which there were several exhortations by the primary judge to the husband not to lie to him, seemingly because “if you lie to me once I can never trust you again” (Transcript 28 February 2020, p.9 lines 2–3).
The entirety of counsel for the wife’s submissions in support of the order for payment of $100,000, appear as follows from the transcript:
MR ALEXANDER: My client is in a position where she is in financial dire straits. I can tell you this from the bar table, she’s not even able to fund her own lawyers – her legal representation in this case without any orders made by the court for a release of funds…
(Transcript 28 February 2020, p.6 lines 26–29)
…
MR ALEXANDER: But the balance of convenience in this case, respectfully, your Honour would be satisfied on the evidence that you should order 30 and, in my respectful submission, the evidence before you – unchallenged by response material by [the husband] and, indeed, by reason of his refusal to provide disclosure as I’ve set out – enables your Honour to make the orders for the financial assistance that my client seeks…
(Transcript 28 February 2020, p.7 line 26 to p.8 line 1)
Given that the wife’s affidavit filed 5 February 2020 was entirely silent as to her claim for interim payment of $100,000, it will be appreciated that it was therefore quite unclear what was the ostensible basis upon which the $100,000 was being sought, and particularly whether it was by way of interim property settlement, spouse maintenance, a litigation funding order pursuant to s 117 of the Family Law act 1975 (Cth) (“the Act”), or something else.
During the course of submissions, the primary judge said to the husband:
HIS HONOUR: …You are doing whatever you can to avoid the responsibility that you must have now so that the court can look at the property of the marriage and make a just and equitable adjustment so that you and [the wife] can now just go on your way. You’re trying to frustrate that process by not cooperating. So when it is that they say “Yes. You can afford $100,000,” well, you’ve had all the opportunity in the world to show to me that you can’t and you haven’t done it.
(Transcript 28 February 2020, p.16 lines 4–9)
After that, the husband unsuccessfully attempted to say something, but was cut short by the primary judge, saying:
HIS HONOUR: You don’t leave me very much choice.
(Transcript 28 February 2020, p.16 line 13)
Ultimately the primary judge resolved to make the payment order. His reasons for doing so, in their entirety, were as follows:
HIS HONOUR: …With regard to financial matters, I’m going to order that [the husband] pay to [the wife] the sum of $100,000 and I will then decide how I will characterise that payment at some other time…
(Transcript 28 February 2020, p.18 lines 32–34)
The husband then informed the court that he did not have $100,000, to which his Honour responded:
HIS HONOUR: Do not interrupt me. I am ordering it because you haven’t proven to me that you haven’t got it.
…And you are going to have to prove it…
(Transcript 28 February 2020, p.19 lines 1–6)
The hearing shortly thereafter concluded.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Rule 1.14(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that “[a] party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.”
Whilst there are no criteria specified either in the Act or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480–481, McHugh J said:
[A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262. This means 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. In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v. Scott (1986) 12 FCR 187 at 194-195; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200, at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
(As per the original)
The following factors are established by the authorities as being potentially relevant:
·The nature and history of the proceedings;
·The length of the delay, and any explanation for the same;
·The merits of the appeal; and
·Any prejudice or other consequence for the respondent if leave is granted.
NATURE AND HISTORY OF PROCEEDINGS
The proceedings involve both property and parenting matters. They were commenced by the husband on 4 December 2019, albeit by their first return date, he had discontinued his Initiating Application.
As I have already noted, on 5 February 2020 the wife filed her Response. It was seemingly that, and perhaps particularly after the wife had issued some subpoena on 14 February 2020, which precipitated the husband filing the Notice of Discontinuance on 19 February 2020, together with two Notice of Objection to the subpoenas.
The proceedings are therefore still at a relatively early stage.
One significant matter is that although the husband has brought an appeal against the 3 April 2020 orders requiring him to deliver up the two motor vehicles, but failed to obtain a stay of those orders, he has nonetheless not complied with them.
LENGTH OF AND EXPLANATION FOR THE DELAY
The length of the husband’s delay is short, being, at most, some 10 days. The explanation for the delay is that initially he remained unrepresented, and although from 4 March 2020, he did have the assistance of lawyers, they and he were principally focussed upon complying with disclosure of documents, which had been a significant issue of contention before the primary judge on 28 February, and indeed the subject of a notation on the orders made that day. Also, because there was no time ordered for the payment of the $100,000, it appears that the husband may not have been much focussed on that order.
Particularly at paragraphs 30 and 31 of his affidavit filed in support of his application of appeal on 6 April 2020, the husband said as follows:
Even though I had retained lawyers to represent me by the time the appeal should have been filed, as the order for me to pay the $100,000 to [the wife] did not have a specified time, I turned my attention to collating my disclosure documents to send to [the wife’s] lawyer especially because of the notice the court had put me on about disclosure. I was focused on complying with my disclosure obligations to the best of my ability. I filed and served a List of Documents on 2 April 2020 setting out the documents I was able to disclose to [the wife]...
I was also focused on giving my lawyers instructions to draft and file my amended initiating application (including seeking interim orders for disclosure, valuation and mediation), affidavit and financial statement, so that the matter could proceed to a mediation.
A further court event occurred on 3 April 2020, as discussed above. By then, no appeal from the 28 February 2020 orders had been filed. I have also noted earlier, that despite that court event expressly being “for mention/directions only”, nonetheless the primary judge heard and determined contested matters, including making orders requiring two of the husband’s collection of classic motor vehicles to be sold, and appointing the wife as their trustee for sale. An appeal from the 3 April 2020 orders was brought on 6 April 2020, being the same day that this application was made. That appeal was, of course, filed within time.
Although not entirely satisfactory, I am nonetheless satisfied that there is a reasonable explanation for the delay in bringing the appeal.
THE MERITS OF THE APPEAL
The proposed grounds of appeal are as follows:
1.The appellant was not afforded procedural fairness in that:
a.The appellant was a litigant in person.
b.He had discontinued the parenting proceedings he commenced.
c.He mistakenly believed the proceedings were therefore at an end.
d.the learned Judge did not afford him an opportunity to get advice and put material before the Court.
2.The learned Judge interrupted the appellant excessively when he tried to make submissions and did not afford him a fair hearing.
3.As a consequence of the appellant discontinuing the [application] he filed (for parenting orders) the learned Judge refused to read the affidavit the appellant had filed, which also contained matters relating to contributions (financial, no financial and homemaker and parenting).
4.The learned Judge unfairly adopted a negative view of the appellant on the basis that he had not filed financial material.
5.In ultimately determining that the appellant should pay the respondent the sum of $100,000 (to be characterised at trial) the learned Judge:
a.did not have evidence which justified why the sum of $100,000 should be paid to the respondent on an interim basis.
b.was not able to identify a source of the funds from which the appellant was able to acquire the sum of $100,000.
c.failed to consider, or if he did so consider, then failed to give reasons for his decision, that the respondent would ultimately be entitled to receive a sum of $100,000 over and above the property already in her possession.
d.failed to consider that the respondent had access to rental income and would be able to sell properties held in [Country A] in order to put herself in funds if she needed them.
6.The learned Judge erred in ordering the injunctions contained in Order 15 of the orders.
(As per the original)
It is unnecessary to consider those grounds of appeal in detail. That is because, as I have recited above, there appears to have been a complete absence of reasons given for the order requiring payment by the husband of $100,000, and a total absence of any evidence to justify why that sum was ordered to be paid, whether by way of interim property settlement, capitalised spouse maintenance, a litigation funding order, or otherwise.
At least some aspects of Ground 5 of the proposed appeal therefore have apparent merit, and hence necessarily so does the proposed appeal.
PREJUDICE OR CONSEQUENCE FOR THE WIFE IF EXTENSION GRANTED
The primary judge has refused to stay his orders of 3 April 2020 insofar as they require the delivery up and sale of two of the husband’s classic motor vehicles. There is, however, an appeal from the substantive order for their sale. Given that the mechanism for the implementation of the payment of $100,000 is also under challenge, I cannot identify any prejudice for the wife if an extension of time were granted, other than the cost of funding her defence of this application.
EVALUATION AND OUTCOME
There is a reasonable explanation for the relatively short delay in which the husband sought to file a Notice of Appeal, and his now proposed appeal appears to have reasonable prospects of success, in relation to at least some aspects of one of the grounds. The combination of these factors weighs in favour of the exercise of the discretion in favour of the husband.
However the wife argued that a further relevant discretionary consideration was the fact that the husband remained in breach of the 3 April 2020 orders, insofar as they required him to deliver up the two motor vehicles.
In Watson & Watson (2013) FLC 93-530 at [36] the Full Court said this:
36. From the detailed discussion by the Full Court in Fahmi of the various authorities referred to, and the express or implicit acceptance of particular statements of principle or approach, the following propositions emerge as to the discretionary rule that a party in a contempt may not be heard when a court is exercising jurisdiction under the Act:
(a)Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;
(b)In courts exercising jurisdiction under the Act, the rule, when it operates, gives rise to a discretion not to permit a party being heard. That is, unlike other jurisdictions such as New South Wales and South Australia where the rule is to be applied as a strict rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd v Attorney General (unreported, Court of Appeal, Hutley JA, 11 December 1978); and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Short v Short (1973) 7 SASR 1 at 11);
(c)The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;
(d)The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred. If the application by that party is not in the same proceedings or in the same cause of action in which the contempt has been committed, no question as to the party in alleged contempt being heard arises;
(e)The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;
(f)No question as to a party being heard arises:
(i)if that party is defending, rather than bringing, an application;
(ii)on an appeal by the party to set aside the order on which the alleged contempt is founded;
(iii)where a party applies for the purpose of purging the party’s contempt;
(iv)where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.
(g)Where the discretion arises its exercise depends upon the balance between that party’s right to procedural justice, including the right to be heard, and public policy considerations. Those public policy considerations include that if the party’s disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth, or to enforce the orders which it may make, or the party’s further application constitutes an abuse of process in the circumstances, then the Court is unlikely to exercise its discretion in favour of hearing the party or entertaining the application of the party.
Based on these principles, the wife argued that, by analogy, the husband’s non-compliance was either a relevant factor against the exercise of the discretion in his favour, or informed that any exercise in his favour ought be conditioned upon the husband in fact delivering up the vehicles, as the 3 April 2020 orders required.
I have already remarked upon the curiosity that an aspect of the 3 April 2020 orders expressly contemplated non-compliance, by imposing a liability for the husband to pay the wife $500 for each day he failed to deliver up the vehicles. (No argument ensued before me as to the source of power to make such an order, and it is therefore inappropriate for me to consider that matter further).
In the course of argument, counsel for the husband suggested that a means of accommodating the wife’s concerns might be for the husband to deliver the cars to a nominated party, being a motor vehicle auction house, seemingly not for sale, but rather as an impartial bailee.
Although I confess to having been attracted to that option during the hearing before me, upon reflection, such a condition would implicitly sanction the husband’s continued non-compliance with the 3 April orders. Unless and until they are stayed, varied, discharged or set aside, tacit acceptance of non-compliance with court orders should not be countenanced.
I therefore am not persuaded to condition the orders in the way the husband contended.
The question then is whether I should condition them in the way the wife sought. As to that:
(a)The husband’s proposed appeal seeks to set aside the $100,000 payment order, which does, albeit not immediately, nonetheless directly, found the 3 April order in respect of which he is non-compliant;
(b)Whilst public policy would ordinarily suggest that courts should ensure that their orders are obeyed, curiously, the primary judge himself contemplated that his delivery up order may not be. Assuming it is lawful and enforceable, the penalty of $500 per day is, to say the least, generous to the wife; and
(c)The husband’s right to be heard in relation to the appeal from the 28 February orders is necessarily informed by the prospect of significant injustice being visited upon him, if he is not able to conduct his appeal, given its apparent merit. Certainly, there is nothing in the material which suggests, at least to my mind, that any appeal from the 28 February orders is in the nature of an abuse of process.
Weighing those matters in the balance persuades me against imposing any condition of the kind sought by the wife.
There will therefore be an extension of time in which the husband may bring the proposed appeal to 14 days from the date of these orders.
Costs
Notwithstanding the husband’s explanation for the delay in bringing the appeal, nonetheless this application was necessitated by his failure to comply with the time limits for bringing appeals, and therefore he needed to obtain an indulgence of the Court.
I am well persuaded that there is likely a financial disparity between the parties favouring the husband.
Although the husband has succeeded in his application, that success was only required by virtue of his failure in the first place to properly comply with the rules.
Weighing those factors in the balance tells in favour of there being an order for costs against the husband, and indeed he did not seriously otherwise contend.
The wife quantified her party/party costs in the sum of $5,143. I am satisfied that sum is reasonable, and will therefore so fix her costs, and order they be paid by the husband within 28 days.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 1 June 2020.
Associate:
Date: 1 June 2020
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