RAMSEY & RAMSEY

[2017] FamCAFC 116

FAMILY COURT OF AUSTRALIA

RAMSEY & RAMSEY [2017] FamCAFC 116

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file Notice of Appeal – Where the applicant wishes to file a Notice of Appeal almost four months out of time – Application of principles in Gallo v Dawson (1990) 93 ALR 479 at 480 –– Where the magnitude of delay is considerable and the reason for it unpersuasive – Where the grounds of appeal argue a lack of reasons –Where an extension of time is granted due to the undoubted merit of the appeal – Application allowed.

FAMILY LAW – COSTS – Where the applicant conceded in the event the application was successful it would be appropriate that he pay the respondent’s costs – Costs ordered.

Child Support (Assessment) Act1989 (Cth) s 136(2)(d)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo v Dawson (1990) 93 ALR 479

APPLICANT: Mr Ramsey

RESPONDENT: Ms Ramsey

FILE NUMBER: SYC 1968 of 2008

APPEAL NUMBER: EA 202 of 2016

DATE DELIVERED: 3 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 31 January 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 26 July 2016

LOWER COURT MNC: [2016] FCCA 1894

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Beth Oliak

SOLICITOR FOR THE APPLICANT: KHQ Lawyers

COUNSEL FOR THE RESPONDENT: Dr Martha Barnett

SOLICITOR FOR THE RESPONDENT: Monardo Legal

Orders

1. The time in which to file an appeal against the orders of Judge Scarlett made on 26 July 2016 be extended to 4.00 pm Friday 3 February 2017.

2. The draft Notice of Appeal received on 15 December 2016 be taken to be the Notice of Appeal.

3. The applicant to pay the respondent’s costs of and incidental to the application for extension of time, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of agreement or assessment.

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 Ramsey & Ramsey 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 SYDNEY

Appeal Number: EA 202 of 2016
File Number: SYC 1968 of 2008

Mr Ramsey

Applicant

and

Ms Ramsey

Respondent

REASONS FOR JUDGMENT

1. Mr Ramsey (“the applicant”) and Ms Ramsey (“the respondent”) entered into a binding child support agreement in March 2010 in relation to their two children, one of whom was born in 1999 and the other in 2001.

2. The parties entered into the agreement as part of a resolution of parenting and property settlement proceedings commenced by the applicant in 2009.

3. In September 2011 the respondent sought enforcement of the applicant’s obligations under the agreement and, in October 2011 the applicant applied to have the binding child support agreement set aside pursuant to s 136(2)(d) of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”). As part of that application, he sought orders that the operation of the agreement be stayed and the enforcement proceedings also be stayed.

4. The application came before a judge of the Federal Circuit Court who dismissed both the applications for a stay of the operation of the agreement and the enforcement proceedings on 14 August 2012.

5. However, the parties between themselves agreed that pending determination of his application his obligations under the agreement so far as they concerned non-periodic payments would by stayed subject to him continuing to make the periodic child support payments required by the agreement.

6. The application to set aside the agreement was heard on 9 April 2014 and concluded with oral submissions on 11 April 2014.

7. On 26 July 2016 the judge dismissed the application to set aside the child support agreement.

8. The applicant presently lives and works overseas.

9. The applicant wishes to appeal his Honour’s decision but requires an extension of time in which to lodge the Notice of Appeal.

10. The respondent opposes the application.

Application for an extension of time

1. The application seeking an extension of time in which to appeal was filed on

   
   

   15 December 2016, almost four months after the time prescribed by the Family Law Rules 2004 (Cth) (“the Rules”) for the filing of an appeal had elapsed. Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.

2. The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479. In the judgment of McHugh J his Honour said at 480 – 481:

   …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. 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. 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. 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. 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…

   (Citations omitted)

Merit of the appeal

1. The draft Notice of Appeal broadly contends that the trial judge erred in that he failed to give reasons for his decision and that he failed to properly apply the provision of s 136(2)(d) of the Assessment Act.

2. His Honour’s reasons are brief, comprising some 36 paragraphs, all but four of which set out the background to the dispute, the procedural history and the documents on which the parties relied.

3. His determination appears at [33]:

   Setting aside a Binding Child Support Agreement

   33. Section 136 of the Child Support (Assessment) Act deals with the power of the Court to set aside a child support agreement. Subsection 136(2)(d) provides that the court may set aside the agreement on application if the court is satisfied:

   (d)      in the case of a binding child support agreement – that          because of exceptional circumstances, relating to a party to         the agreement or a child in respect of whom the agreement is           made, that have arisen since the agreement was made, the          applicant or the child will suffer hardship if the agreement is           not set aside.

   Conclusions

   34. It is the Applicant’s case that because of a significant downturn in his finances, which impelled him to become bankrupt by filing a Debtor’s Petition on 4th October 2012, he would suffer hardship if the Binding Child Support Agreement were not set aside.

   35. The Applicant has made out a case of hardship, but what he has not done in shown that this hardship arises from exceptional circumstances. I am not satisfied that a financial downturn impelling the Applicant to make himself bankrupt, can be classified as a circumstance of such an unusual or exceptional nature that it can be regarded as “exceptional circumstances” within the meaning of

   
   

   s.136(2)(d).

   36. Consequently, the Application will be dismissed.

4. The appeal ground contending failure to give reasons has, in my view, merit and so much was conceded by counsel for the respondent.  That, however, is not the conclusion of the consideration of the application.

Explanation for the delay

1. Annexed to the applicant’s affidavit is correspondence between him and the solicitor who was acting for him at the time of the determination.

2. The applicant says that he was advised of the time period in which he could lodge an appeal from the determination and of potential appeal grounds on

   
   

   29 July 2016, three days after the decision was made.  However the thrust of the communications between the applicant and his solicitor concern whether he was liable to repay to the respondent the child support payments which were the subject of the stay and which the respondent paid during the stay.

3. During the period of the stay the respondent paid in the order of $259,000 in school fees for the children, fees that the applicant would have been responsible for but for the stay.

4. The correspondence shows that the applicant’s solicitor advised him that he was not liable to repay to the respondent the non-periodic child support payments shouldered by her during the stay.  The correspondence between the applicant and his solicitor, and a partner in the firm, continued over some months with no apparent resolution of the issue of whether the applicant was obliged to repay those payments to the respondent.

5. On 11 October 2016 the applicant received an email from the partner advising that he wished to do more research into the question.  Thereafter, despite numerous emails to the partner, the applicant received no reply from the partner although he was advised by his solicitor of the date for hearing of the respondent’s application for costs of the applicant’s dismissed application.

6. On 14 November 2016 the applicant changed solicitors and counsel was briefed and the application for extension of time was filed on 15 December 2016.

7. It is clear from the correspondence and the applicant’s affidavit that the decision to appeal depended on whether he was liable to repay the

   
   

   non-periodical child support payments made during the stay period. Indeed the applicant said at paragraph 23 of his affidavit that “…the only reason that I did not lodge an appeal was due solely to her advice that I was not liable for the school fees paid by the Respondent during the period of the Stay Order.”

8. In submissions, counsel for the applicant argued that he was, in effect, a victim of the incorrect legal advice given him by his solicitor. That is, having been told that he was not liable to repay the money to the respondent, he did not pursue the appeal.

9. The correspondence attached to the applicant’s affidavit makes it clear that he knew of the time limit in which an appeal must be lodged and he was informed of the potential grounds of appeal.  Further, in an email (annexure “RR-06” to the applicant’s affidavit filed on 15 December 2016)  to him from his solicitor on 26 September 2016, she notes that the issues involved are “complex” and confirms her “earlier advice that you should seek Counsel’s advice regarding the next steps.”  The applicant makes no mention of acting on that advice or of attempting to obtain counsel’s advice.  I do not regard the applicant’s delay as being solely the fault of his solicitor and her advice to him.

10. The applicant submitted that if an extension of time is not granted he will suffer significant financial hardship because, he says, he cannot meet the responsibilities arising under the agreement.  In October 2012 the applicant became bankrupt on his own petition.  He said it was brought about by his inability to meet the obligations under the agreement.  He says, however, that if leave to appeal is not granted, he will again have to present his own petition for bankruptcy.  In that event he contends that he will become ineligible to hold his present company directorships which will affect the financial viability of his present employer.  He further says that if an extension of time is not granted and the respondent successfully seeks enforcement of the applicant’s obligations under the agreement, he will not be able to travel to Australia in the future which itself will impact on the business of his present employer.  It seems that if an extension of time is not granted, the applicant will not otherwise submit himself to the jurisdiction of the Australian courts.

11. Of course, whether or not an extension of time in which to appeal is granted, avoidance of the consequences of which the applicant speaks rest on his being granted leave to appeal followed by a successful appeal and a successful outcome of any remitted hearing.  Extension of time in which to appeal is but one step in that process.

12. The applicant’s position baldly put then is that he chose not to appeal within the time provided by the Rules because he understood he was not required to repay the respondent the money she had outlaid on school fees. When that proved unlikely, he then moved to appeal.

13. Lest it be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not.  In Brisbane South Regional Health Authority
     v Taylor (1996) 186 CLR 541 at 553, McHugh J said apropos the limitation periods imposed for the commencement of civil proceedings, which is entirely apposite here:

    A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

14. The respondent contended that she does not have the finances necessary to be legally represented on the appeal and there is no reason to doubt that position.  It is also to be recalled that she shouldered the financial burden of the children’s expenses during the period in which the stay was in force and the costs outlaid were considerable.  There is undoubted prejudice to a respondent where a limitation period has expired, not least of which is the expectation that the time limit having expired, the litigation is at an end.  That the respondent cannot afford to participate in any appeal, whilst regrettable, is based on her evidence a matter not occasioned by the applicant’s delay.

15. The applicant chose to ignore the limitation period in favour of determining whether he was liable to repay the non-periodical payments, clearly considering that if he was not liable then he would not appeal.  In adopting that course the time limit expired.  That he may require leave to commence the appeal was recognised by him in the correspondence.  In my view, the magnitude of the delay is considerable and the reason for it is unpersuasive.

16. Were it not for the undoubted merits of the appeal, I would dismiss the application.  However in the circumstances I will grant an extension of time in which to lodge the appeal.

Costs

1. Counsel for the applicant conceded that if the application was successful it was appropriate that he pay the respondent’s costs of the application given he was seeking an indulgence from the court through his dilatory attention to the requirements of the Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
3 February 2017.

Associate: 

Date:  3 February 2017