【Classic Cases】XXe & ZhXX [2010] FamCAFC X

ORDERS

(1) That the mother pay the father’s costs of and incidental to the mother’s application for an extension of time to appeal orders of 30 July 2009.

IT IS NOTED that publication of this judgment under the pseudonym XXe & ZhXX is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 1XX of 2009

File Number: SYM 4XX1 of 2006

Ms XXE 

Appellant

And

Mr ZHXX 

Respondent

REASONS FOR JUDGMENT

On 18 January 2010, for the reasons that follow, I dismissed an application by Ms XXe for an extension of time within which to appeal orders of Federal Magistrate Altobelli, made 30 July 2009. By those orders, Altobelli FM dismissed an application (filed in October 2005, three and a half years before) by Ms XXe against Mr ZhXX, for orders that he pay lump sum child support for three of their four children and lump sum adult child maintenance for their eldest child. Consequential orders made by the learned Magistrate required the repayment to the father of sums held for or received by the mother under earlier orders, and the mother was ordered to pay the father’s costs.

The mother did not attend court on the day of the dismissal of her application by the Federal Magistrate. She has claimed that she misapprehended the hearing dates.

The proposed grounds of appeal were:

That the appellant was denied natural justice in circumstances where she was not present at the hearing which proceeded on an exparte basis.

and

That the result embodied in the Federal Magistrate’s orders was unreasonable and plainly unjust.

Aspects bearing upon the request for an extension of time include:

(a) explanation for delay;

(b) prospects of success of the proposed appeal;

(c) prejudice to the father if an extension is granted;

(d) prejudice to the mother if an extension is denied.

but these are merely elements to be considered in deciding on what orders serve the overall interests of justice in the case.

Before the dismissal by Altobelli FM of the mother’s application, there had been much litigation between the parties. Some of the history of that litigation, and that subsequent to the 30 July 2009 dismissal, is pertinent, not only to the mother’s explanation for delay, but also to the prospects of success of the first of the grounds of appeal. Accordingly, I address that history now.

The course of the litigation

The mother’s application for lump sum child support and lump sum adult child maintenance had come before Housego FM on 7 March 2007. The father did not appear. The Federal Magistrate decided to proceed in his absence and made certain orders that day.

These orders included:

(1) The s.66L proceedings be adjourned until 10.00am on 18 February 2008 for hearing before me.

(2) The injunction made on 11 October 2005 continue and be extended in so far as the sum of $20,000 is concerned so as to preserve a fund for the payment of such order pursuant to s.66L as may be appropriate when that matter is determined before me on the adjourned date.

...

(6) I DIRECT that the partners at TILLXXRD & CALXXNAN do all acts and things necessary to cause the sum of $130,000 to be released within 14 days to the solicitors for the applicant.

...

(11) The applicant be paid costs in accordance with the scale from the date of commencement of the proceedings.

...

(13) The husband to pay to the wife, or as she may direct in writing, the costs thrown away on 9 June 2006, in the sum of $3,214.00.

(14) The husband pay to the wife, or as she may direct in writing, the costs thrown away on 18 December 2006, in the sum of $6,845.30, ...

...

(16) The sum of $130,000, as sought by the mother today for lump sum child support, be paid by the husband to the wife for the children [K] born [in] November 1997, [M] born [in] July 1992 and [A]born [in] December 1990.

...

THE COURT NOTES THAT:

(19) Order 16 herein can be satisfied by way of monies held in trust.

(20) It is envisaged that any order made will be in the form of a periodic sum to be drawn down in the retained funds.

By way of explanation of the terms used in the above orders, the s 66L proceedings were those for adult child maintenance. Mr CalXXnan, of TillXXrd and CalXXnan, had been the father’s solicitor and in the orders, was granted leave to withdraw.

A month later, on 8 May 2007, Federal Magistrate Housego ordered that the husband pay the mother $130,000.00, that solicitors holding monies release $130,000.00 to the solicitors for the mother and that, pending further order, solicitors for the mother hold the amount of $65,000.00 on trust for the mother and pay to her the balance of $65,000.00.

The orders of 7 March 2007 were successfully appealed. On 28 November 2008, Boland J sitting as a single judge on appeal, set aside order 6 (the order that the father’s former solicitors cause $130,000.00 to be released to the mother’s solicitors), order 11 (that the mother be paid costs from the commencement of proceedings), order 16 (that the father pay $130,000.00 lump sum child support), and paragraph 19 (the notation that order 16 can be satisfied by way of monies held in trust). The mother’s application of October 2005 was remitted for rehearing and thus, as seen, came before Altobelli FM in July 2009, when he dismissed it.

However, the orders of 8 May 2007 had long ago been put into effect, so that the mother had received (and, she said, spent) $65,000.00 and $65,000.00 was held by solicitors. The effect of Altobelli FM’s dismissal of the mother’s application for lump sums was that the mother might be called upon to refund $65,000.00 to the father, and the father was free to receive the $65,000.00 held by the solicitors.

In support of her application for an extension of time to appeal Altobelli FM’s dismissal of her application for lump sum child support, the mother deposed that she “ceased to retain legal representation due to financial difficulties...” in May 2009, at which time her application was listed for hearing in July 2009. She further started that, because she had forgotten the date, she telephoned the Family Court Registry on 29 July 2009, to enquire about the date fixed for hearing. She was told 31 July. On 30 July she received a call on her mobile from an interpreter at the Court. He told her she was late for court that day. The mother further deposed:

I said: “Does this mean that the Court will adjourn the case tomorrow?”

He said: “I don’t know. I am only the interpreter of the Court.”

At this time I was not told and I did not realize that I must attend the Court immediately. I was under the impression and believed that the matter would be re-listed for 31 July 2009.

The mother attended court on 31 July 2009. She was told that the hearing had been the day before, but she could send a letter to the court, explaining her non-attendance. She sent a letter that day.

As to his decision to proceed in the mother’s absence on 30 July 2009, Altobelli FM said:

The matter first came before me on 13 February 2009, and I note in this regard that the Full Court’s orders were made 28 November 2008. It is the practice in this court to seek to expedite the re-hearing of appeals from this court, to the extent that that is possible. The matter first came before me on 13 February 2009. The applicant was represented by her solicitor, Ms ChXX, and Ms WinXXeld of counsel appeared for the respondent. On that date I ordered the parties to attend a conciliation conference and set the matter down for hearing on 30 July 2009 at 10.00am for a two-day hearing. I also made directions about filing the amended application and possibly an amended response as well as a timetable for filing affidavits.

The matter then again came before me on 18 May 2009 and that was following a conciliation conference. The note of the conference indicates that the parties had reached an “in-principle” agreement but the wife needed the assistance of an interpreter and independent advice before orders were made. When the matter came before me on 18 May the applicant was appearing in person and again Ms WinXXeld appeared for the respondent. I had certain discussions with the applicant in court and there was no doubt in my mind that she was aware of what was going on, and certainly, on that day the hearing on 30 July, was confirmed.

Nonetheless, the matter was adjourned to 29 May, and that was in response to the applicant’s request that she wanted to get some legal advice. The matter came before me again on 29 May 2009. The applicant represented herself and Ms WinXXeld again appeared for the respondent, and the matter was confirmed for hearing today. That means there were three mentions before today. At two of these, the applicant was present in person.

In relation to the application for dismissal I deal with the following evidence. The wife’s interpreter gave sworn evidence today about a discussion that he had with the applicant. The interpreter, [Mr T], indicated to me in evidence that he spoke to the applicant this morning on her mobile and she indicated to him words to the effect that she did not realise that the hearing would take place today, and that she had taken the initiative to ring the court yesterday and was told to come to court tomorrow, 31 July.

In the conversation between [Mr T] and the mother there was also reference to the mother having rung the court as I have just indicated. As a result of that, I caused enquiries to be made with the National Enquiry Centre that is operated by the Family Law Courts. One of the operators of that service, [B], was able to give sworn evidence to the court in the following terms. [B] did have communication with the applicant, but it was not yesterday, it was the day before, namely, Tuesday 28 July. The applicant indicated to [B] that she wanted to confirm the court dates, and this was confirmed as being 30 and 31 July at 10 am. [B] indicated that nothing else relevant was said.

That is the evidence specifically in the context of the application for dismissal. ...

After addressing some other aspects of the matter, Altobelli FM came to “Consideration” of whether or not to dismiss the mother’s application. He said:

Firstly, I note that these proceedings were commenced four years ago. The impact of litigation on the parties must not be underestimated, let alone the cost to them. If I accept the respondent’s submissions and dismiss the wife’s application, it brings these proceedings to an end. The applicant has had five months’ notice of today’s date, and her absence is unexplained. The need to finalise this matter after such a long period of time is a weighty consideration in my mind.

Secondly, I need to take into account the nature of the application, and specifically, that it deals with child support for children. This is a lump sum child support application, but in circumstances where the evidence indicates that the respondent has been paying child support as assessed and the applicant has had access to $65,000 of lump sum child support already. I appreciate that fundamentally, in a child support matter, the needs of children need to be taken into account. However, there is nothing in the evidence that has been filed, even from the mother, which would indicate that these children are in urgent need or that they have special needs. Indeed, the passage of four years since proceedings have commenced indicates that insofar as the application deals with adult spouse maintenance, circumstances have changed, and the very child in respect of whom this application was made is now working full-time and, indeed, appears to have been working for quite a part of the period in question.

In relation to the lump sum child support application, one of the children, the subject of the order, has turned 18. Another is 17, and the youngest is 11. In reality, the case today is so different from what it was at the date of commencement that it is almost unrecognisable.

All of this leads me to conclude that there is nothing in the very nature of the application itself, that is, for child support and lump sum adult child maintenance, that would contraindicate dismissal of the application, if that is otherwise just under the circumstances.

Thirdly, are there factual matters relating to the case that influence the decision? As indicated before, the respondent husband has been paying child support as assessed. I am trying to do the best I can to ascertain the applicant’s concerns from her affidavits. It seems to be, firstly, that the respondent has not properly disclosed his true financial circumstances, and secondly, that there is a risk of him departing for overseas and not returning. The latter has not materialised over the last four years, and in relation to the former, the applicant has chosen not to participate in these proceedings and thus test the respondent’s evidence. The applicant was present on the last two occasions personally.

Having regard to the factual matters that are apparent before the court, there is nothing that would contraindicate dismissal of the proceedings, if that is otherwise a just outcome.

Fourthly, it is noticeable that the mother did not seek an adjournment, even though she was clearly aware of the proceedings. There is no mention of an adjournment to either the interpreter or to the operator at the National Enquiry Centre.

Fifthly, I take into account the factual inconsistencies in terms of what the applicant purportedly told the interpreter today and what the applicant told the National Enquiry Centre on Tuesday, and the inconsistencies do leave open at least doubts about the veracity of the applicant, insofar as it relates to her non-attendance today. 

Nextly, I note that one of the issues that I ought to take into account is the nature of disclosure that has been made by the parties. On the evidence before me, disclosure has been made by both of the applicant and the respondent, albeit some of it is dated and some of it is limited. 

Nextly, I need to take into account that if the applicant’s application is dismissed, there will be consequences that must inevitably flow, including the lifting of previous injunctions and the discharge of stay orders, the effect of which, I understand, will be that the respondent will get back $65,000 out of the moneys held in trust, and that the applicant will need to repay $65,000 to the respondent, being moneys that have already been advanced to her.

I have to assume that the applicant was aware of this consequence. It is inconceivable that she would believe that even if she did not pursue her application, she could keep the money that she had already received. It is clear from my discussions with the applicant in court on 29 May that she was aware of at least the possibility of having to pay money back to the respondent.

Nextly, I am required to take into account compliance with directions. Neither party has complied with the directions I have made. Neither of them. I record the fact that the respondent is not pressing an amended response that was filed two days ago and which has not even been served on the applicant. The applicant has not amended her application to take into account certain comments in the Full Court’s judgment about the form and substance of her application. In any event, both parties have not complied, and this is a neutral factor in determining whether to dismiss the application.

Nextly, I need to recognise the fact that the applicant is self-represented; that is, she is without legal advice, all in the context of proceedings that have drawn on for a long time and which are somewhat complex in nature. Nonetheless, the mere fact that she is a self-represented litigant does not necessarily mean that the application should not be dismissed in circumstances where that would otherwise be just.

Nextly, I need to consider prejudice, and I ask myself, what is the prejudice if I were to simply adjourn the application either to tomorrow, being day two of the proceedings, or to another date? Firstly, there is no application for an adjournment. Secondly, the evidence of the interpreter about the mother coming to court tomorrow is inconsistent with what she apparently told the operator at the National Enquiry Centre, and therefore I cannot reasonably expect her to attend tomorrow if she was not here today. The father will incur great cost, but this, of course, could be remedied by an indemnity costs order. I accept that. Nonetheless, litigation must come to an end after four years. In any event, from the court’s perspective, I have another final hearing and at least one interim application listed for tomorrow, and at least one of those would have to be postponed if the applicant chose to turn up. If the matter were to receive a fresh two-day hearing date with priority, that would not be until March or April at the very earliest, next year. Clearly, it is in the interests of justice both from a public and private perspective that this litigation come to an end, and I do not regard the fact that the prejudice to the husband might, in theory, be addressed by an indemnity costs order as a sufficiently weighty consideration not to make an order for dismissal in circumstances where it might otherwise be appropriate.

Lastly, I recognise that a dismissal of the application in this case may cause some inconvenience to the applicant, but it doesn’t necessarily mean that she cannot revisit these issues at a future time, either through the Child Support Agency or the courts. In short, the prejudice to the respondent if the proceedings are not dismissed is far greater than the prejudice to the applicant, and also, I think there is a significant public interest in finalising this litigation.

The mother deposed that, after she received a copy of the orders made on 30 July 2009, she re-instructed solicitors. On her behalf, they filed an application to set aside the Federal Magistrate’s orders of 30 July 2009. Altobelli FM dismissed that application on 16 November 2009.

The learned Federal Magistrate’s reasons for that dismissal are significant to the prospects of success of the mother’s first proposed ground of appeal. Those reasons included:

The application before me is that of the applicant wife, [Ms XXe], filed on 3 September 2009 and which comes before me in today’s duty list. She makes application under rule 16.05(2)(a) of the Federal Magistrates Court Rules that I set aside the order that I made on 30 July 2009. In the alternative, she seeks an order that my said order be stayed.

The wife’s case was argued by her counsel on the basis that the order should be set aside principally because her understanding of the English language was so limited that she, in effect, became confused about the hearing dates, made certain enquiries and was subsequently, in effect, misinformed and did not attend court until after her matter had been dealt with on the second day of the allocated hearing. The wife’s application was supported by her affidavit affirmed on 31 August 2009, a statement that she made today and which was subsequently confirmed in the oral evidence she gave, and by an affidavit of her solicitor Daniel Sheen, also affirmed on 31 August 2009. 

...

The history becomes very relevant in determining whether the wife has established a reasonable explanation for her absence at the hearing.

The wife gave evidence today and she was cross-examined. She agreed, for example, that she was in court on 13 February 2009 when the matter was first set down for hearing on 30 and 31 July 2009, that she went to a conciliation conference on 28 March when the matter was confirmed for hearing. She also indicated that she conducted the conciliation conference herself; that an agreement in principle was reached which she took away to get legal advice. She also agreed that she was present in court on 18 May when the matter was confirmed for hearing. She agrees that she was also present in court on 29 May when the matter was once again confirmed for hearing.

However, her evidence is that she rang the court before 30 July and spoke to a person named [B] from the National Enquiry Centre. I heard evidence from [B] on 30 July, and that evidence is set out at paragraph 8 of my reasons for judgment. There is a substantial difference in the evidence of [B] as compared to the evidence of the wife about what took place. As will be seen from paragraph 8 of the reasons of 30 July, [B] says that she confirmed the hearing dates as being 30 and 31 July, whereas the mother says that [B] indicated that it was 31 July. 

In any event, in her evidence the mother concedes that on 30 July, the date of what turned out to be an undefended hearing and the making of the orders sought to be set aside, that she did have a telephone conversation with an interpreter. Her evidence about this conversation is set out at paragraph 9 of her affidavit and paragraph 3 of her statement that was confirmed in evidence today. At paragraph 7 of the reasons for judgment, I set out the sworn evidence of [Mr T], the interpreter of the wife. 

Based on the wife’s evidence itself though, she asserts in her affidavit that the interpreter said to her words to the effect “No, you are coming to court today”. These words need to be understood in the context of the conversation that is set out by the wife at paragraph 9. At paragraph 3 of her statement however, the wife asserts that on no occasion did the interpreter tell her she had to come to court immediately. I indicated to Ms CaXX, the wife’s counsel, that I thought these two statements of the wife were inconsistent. 

Ms CaXX argues that they are not necessarily inconsistent and that the wife would not necessarily have formed the impression that she was required to come to court on 30 July as a result of the conversation with the interpreter. I beg to differ, and I think that any reasonable interpretation of the wife’s own evidence would lead to the conclusion that wife knew after the conversation with [Mr T] on 30 July that her matter was in court that day and that she was required to be there. Alternatively, I think it was an inescapable inference from this conversation that the wife ought to have known that she should have been in court on 30 July.

The wife gives evidence that on the day in question, she was undertaking a ... job at [L]. Interestingly, this evidence is not set out in her affidavit of 31 August, it is set out in her evidence of today’s date. It is quite a startling omission and for one thing, it has meant that the husband has been denied the opportunity to test the evidence of the wife. She says at paragraph 4 of her statement that she was working ... at the house at [L]; that she had no access to a car during that day whilst she worked at the house, and that it would have been impracticable for her to walk to [the] station.

However she agreed in cross-examination that she could have taken a taxi to get to the station, and that she chose not to. The evidence is that the wife, in fact, came to the court on 31 July and spoke to the receptionist, and as a result of that conversation, certain things happened, and letters were sent out as set out in the affidavit. 

The history of this matter leaves it beyond doubt that the wife knew or ought to have known that this matter was listed for hearing on 30 July. There were no less than three occasions, and probably four occasions, when this information was conveyed to the wife, either directly or through her solicitor.

I think there is a real doubt about the wife’s assertion that her understanding of English was so limited that she did not appreciate that the hearing was listed on 30 July. Where the wife’s evidence conflicts with the sworn evidence that [B] gave before me from the National Enquiry Centre and the sworn evidence of [Mr T] the interpreter gave me, I prefer the evidence of [Mr T] and [B], on the basis that they have no vested interest in these proceedings and they are impartial bystanders. In any event, even if it is the case that the wife was mistaken about the dates, I simply do not accept that she could not have attended court on 30 July after she had been telephoned by [Mr T], the interpreter. 

All the evidence leads me to form the impression that this is a case where what the wife did, for whatever reason, was notwithstanding notice of the proceedings, disregard the opportunity of appearing at and participating in the hearing, and now seeks to set the orders made aside. I don’t understand the reasons for that. I don’t know whether the wife thought that she would get some benefit out of doing so, but the issue that now confronts the court is whether she should be left to bear the consequences of this, or whether the matter should be set aside and remitted for a hearing at some future date.

...

However she has failed to establish to my reasonable satisfaction that she had a reasonable explanation for her absence at the hearing. ...

(a) The explanation for delay in bringing an appeal

The mother’s explanation for delay in seeking to appeal the orders of 30 July 2009 is that she tried another avenue, but failed. That avenue was really to try to achieve at first instance, acceptance of the same arguments, either presented or available to be presented, as she would now seek to present on appeal. Since there were factual issues about her non-attendance at court to be determined, the application at first instance was preferable to an appeal. However, the facts were found against her.

In my view, the explanation for delay militates against, rather than supports, an extension of time to the mother.

(b) Prospects on appeal

As seen, the mother’s first ground of appeal rests upon acceptance of her explanation for her absence from the hearing of 30 July 2009. Pursuit of that ground would seem to involve an appellate court receiving as further evidence the wife’s explanation for her non-attendance, but that explanation is contrary to the record of evidence from others and the factual issues arising in that conflict have been heard and determined by Altobelli FM. The mother does not appeal Altobelli FM’s decision of 16 November 2009.

In my view, there are virtually no prospects of the mother succeeding on proposed ground 1.

As to any injustice or inequity worked by the orders he made on 30 July 2009, Altobelli FM considered those questions in a fulsome way in his reasons of that day earlier set out, in particular, paragraphs 23 and 28, and again in his reasons of 16 November 2009, as follows:

I am very, very conscious of the fact that if I decline her application, she will have limited remedies available to her. One such remedy is to appeal against this decision. Another such remedy is to seek leave to appeal against the orders that I made on 30 July 2009. Another remedy may be to seek to resist the enforcement proceedings that may inevitably come as a result of any decision I make to dismiss her application. I fully understand the thrust of the submissions that are made by Ms CaXX that she would be denied the opportunity to present her case if I decline to make the orders that she has sought. Implicit in this submission is the fact that she would be denied natural justice.

But, as earlier seen, the Federal Magistrate balanced these factors against his conclusion that:

However she has failed to establish to my reasonable satisfaction that she had a reasonable explanation for her absence at the hearing. ...

In her affidavit in support of this application, the mother deposed that, during the past two years, she has expended monies received from the husband in support of the children and that she does not have monies available to make repayment.

Given the careful consideration of competing factors demonstrated in Altobelli FM’s reasons of 30 July 2009, I do not consider that this proposed ground has substantial prospects of success.

(c) Any prejudice to the father or to the mother [(c) and (d)]

Before me, the mother has not pointed to any form of prejudice, whether to her or the father, that was not considered by Altobelli FM or which was considered, but ought not have been. Similar factors, primarily the prospect of her having to repay monies spent on the children, bear upon the decision I must make but I would not substantially differ from what Altobelli FM said of these factors. While I recognise that the mother’s application was filed in October 2005, and an order might possibly be calculated from that time, refusal of the mother’s application for an extension of time within which to appeal the orders of 30 July 2009 means that the mother has lost the chance (which is a chance only, there being a number of hurdles in her path) to obtain some lump sum child support in respect of children now aged 19 years, 17½ years and 12 years.

In support of the “justice” of the mother’s position, her counsel, Mr HoXXson said that in the proposed appeal book would be material relating to alleged non-disclosure by the father of his true financial circumstances. But, as Altobelli FM pointed out, the mother lost her chance to explore those matters when she failed to appear on 30 July 2009. I think it unlikely a Full Court would be assisted by such material.

To the extent that the mother succeeded in her application for a lump sum, she would be relieved from repaying the father and could be entitled to receive a further sum.

On the other hand, if she cannot proceed with her application, she may or may not be required to repay monies.

On the father’s side, he has already once been called upon to meet the critical arguments that the mother wishes to put to a Full Court. It would in my view be unfair if he should have to meet those arguments again.

Conclusion

For these reasons, I considered the application one with little in support of it and that it should be dismissed.

Costs of the mother’s application for an extension of time

I accept that an order for costs will be a hardship to the mother. However, I consider an order should be made because the application was in respect of a third chance at litigating the mother’s application for lump sum, counting only from her failure to appear on 30 July 2009. The application has failed and did not in my view have strong prospects.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate: 

Date: 19 January 2010