Wife Appeals Interlocutory Orders

Greer & Shui [2022] FedCFamC1A 77 (25 May 2022)

The applicant wife proposes to appeal against an interlocutory and discretionary decision by the primary judge.  The primary judge dismissed the wife’s response to the respondent husband’s application for property settlement orders and granted leave to the respondent to proceed on an undefended basis.  The Court, in resolving this dispute, relied upon FamilyLaw Act 1975 (Cth).

Facts:

By Notice of Appeal filed 20 December 2021, the applicant wife proposes to appeal against an interlocutory and discretionary decision by a judge of the Family Court of Western Australia (“the primary judge”) dated 26 November 2021. 

The primary judge dismissed the wife’s response to the respondent husband’s application for property settlement orders and granted leave to the respondent to proceed on an undefended basis.  The orders which are the subject of the proposed appeal were made pursuant to r 172 of the Family Court Rules 2021 (WA) (“the rules”).  The primary judge determined that such orders were necessary and appropriate having regard to the history of the proceedings, including the length of delay, the inadequacy of adequate explanation provided by the applicant for that delay and multiple instances of the applicant’s failure to comply with case management orders up to and including the hearing on 26 November 2021.

The Form 2 application filed by the applicant on 2 March 2022, was ultimately determined and dismissed by the primary judge on 10 March 2022.  There is no appeal (with or without an application for leave) from that dismissal order made on 10 March 2022.  On 10 March 2022, the primary judge proceeded to hear the substantive proceedings on an undefended basis, in relation to which judgment is still reserved. 

Issue:

Whether or not the appeal should be granted.

Applicable law:

Baghti & Baghti [2013] FamCAFC 194 - relied upon in holding that these proposed appeal proceedings are therefore a futility.

 

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 - provides that the applicant for leave retains an entitlement, as of right, to challenge in an appeal from the final property settlement orders that may be made by the primary judge and any earlier interlocutory order, including the order which is the subject of the current proposed appeal, and which she may contend has affected the final result.

 

House v The King (1936) 55 CLR 499; [1936] HCA 40 - where the orders the primary judge made in the context of those findings were well within the proper exercise of the primary judge’s discretion.

 

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that the test as to whether such leave should be granted is a conjunctive one, namely, whether firstly, the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, secondly, whether a substantial injustice would occur if leave were not granted.

Analysis:

The orders of the primary judge related to matters of practice and procedure.  In the proceedings before the primary judge, counsel for the applicant for leave acknowledged that the primary judge was “quite right to be critical, very critical” of the applicant’s conduct in the litigation.  His Honour was not satisfied with the explanations provided by the applicant as to her reasons for failing to comply with orders on a number of occasions and the considerable delay in complying with orders on other occasions.  The orders of the primary judge did not extinguish or finally determine the rights of the applicant.

Conclusion:

The Notice of Appeal filed on 20 December 2021 is dismissed.  The applicant is to pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $15,000.  Payment pursuant to Order 2 be postponed to a period of 7 days subsequent to delivery of judgment by the primary judge in respect to the Part VIII proceedings in which respect he has currently reserved judgment.

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