What are the principles when appealing consent orders, even if its out of time?
In the recent case of Mawson & Coates  FamCAFC 186 May J granted an extension of time to file a Notice of Appeal against property orders of Spelleken J. The application was filed less than one month out of time.
The judgment provides a careful review of the relevant principles and their application in the unusual circumstances of a party seeking to appeal from orders made which that party consented to.
The parties engaged in a conciliation conference before a Court Registrar. Both parties were represented by solicitors. At the conclusion of the conference, all parties signed consent orders with the Registrar writing “orders approved date……..” and signed. The orders were made the same day as the conciliation conference by Spelleken J.
On the way home from Court, Ms Mawson read the consent order and realised no provision was made for the payment of monies from Mr Coates to her to effect the property division. Ms Mawson contacted her solicitor immediately and the solicitor said the consent orders had not been made and could be revoked.
The solicitor emailed the Judges Associate seeking to withdraw the consent orders. The Judges Associate responded that the matter had been finalised by the Registrar, a review was required pursuant to Rule 20 The Rules.
The Consent Orders
Section 32 of the Federal Circuit Court Act 1999 (Cth) provides a power to make orders in terms of an agreement reached by parties upon application by parties.
Rule 13.04 The Rules provides the procedure for making consent orders:
(1) The parties to the proceedings may apply for an order in terms of the agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party
(2) The draft consent must state it was made by consent
(3) The Court may make such orders as the Court considers appropriate in the circumstances.
(4) If the Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.
The Registrar had the power to make the consent orders. What was confusing was did the Registrar intend to make an order by writing “orders approved”
Rule 16.07 The Rules provides the circumstances in which the order must be “entered” including the order takes effect on the signing of the order and the order must be entered.
Rule 16.08 The Rules provides that orders may be entered under the seal of the Court signed by a Judge or Registrar, whether in the Registry, Court or chambers. It is implied that the making of an order is distinct from the process of signing and stamping a written order with the Court seal.
Rule 16.05 (1) The Rules provides that the Court may vary, set aside its judgment or order before it has been entered. If the Registrar did intend to make the order, it was never entered despite the requirement to do so, therefore, the order of the Judge is the appropriate order to be appealed.
The issue of delay was adequately explained by a combination of factors
- Confusion as to who made the orders
- Difficulties in communicating with the Court
- The applicants change of solicitors
- The inability of the applicants new solicitors to access the Court file.
The proposed grounds of appeal were:
The learned Judge failed to give any proper consideration to the relevant factors in 90SM (4) Family Law Act 1975 (Cth) (“The Act”)
- The Judge made final property orders without reciefving submissions from the parties as to how such orders were just and equitable. Further, the orders were not just and equitable.
- In Tomko v Palasty (No.2)  NSWCA 369 Hodgson JA found when considering the degree of merit required to be demonstrated in applications for leave to appeal out of time, that “if such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient.”
- Section 79(2) (90SM(3)) The Act provides that the court shall not make an order altering property interests unless satisfied that it would be just and equitable to do so. The factors in s 79(4) or 90SM(4) need to be considered to determine whether it is just and equitable to do so.
- Harris v Caldine  HCA 9 remains authority for the general proposition that an application for property orders by consent does not absolve a Judicial Officer from satisfying themselves of the statutory requirements ie the orders sought are just and equitable.
Reasons for Judgment
Rule 22.03 the Family Law Rules 2004 (“The Rules”) provides that a notice of appeal must be filed within 28 days after the date the order appealed was made.
Rule 1.14 of The Rules provides that a party may apply to extend a time that is fixed under The Rules, however, no guidance is provided by either the Family Law Act 1975 (Cth) or The Rules as the exercise of the discretion. The principles for consideration for an applications for extension of time is the decision of McHugh J in Gallo v Dawson  HCA 30 at 480.
The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. Its 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 if the grant or refusal of the application for extension of time as well as the prospects of the applicant succeeding in an appeal. It is also necessary to bear in mind that upon the expiry of time for appealing, the respondent has a “vested right to retain the judgment” unless the application is granted.
The following factors have been identified as being relevant to the exercise of discretion, including:
An adequate explanation for the delay
- The proposed grounds of appeal being of some merit; and
- Prejudice to the respondent may be compensated by an order for costs.
Made in favour of the husband, due to the wife seeking the indulgence of the Court, the Court saw no reason to delay the husband receiving the costs of this