Acharya & Bhatt

[2016] FamCAFC 192

FAMILY COURT OF AUSTRALIA

ACHARYA & BHATT [2016] FamCAFC 192

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the wife seeks expedition of her application for leave to appeal and appeal against interim financial orders – Where the wife contends she is suffering undue stress and financial hardship as a result of the ongoing litigation – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

FAMILY LAW – COSTS – Where the applicant was wholly unsuccessful – Where the respondent sought costs in an amount that bore no relationship to the scale for party/party costs – Where there was no basis for an order for indemnity costs in circumstances where the respondent has complied with r 19.08(3) of the Family Law Rules – Where the circumstances justify an order for costs on a party/party basis – Costs to be paid out of the applicant’s entitlement to a property settlement.

Family Law Act 1975 (Cth): s 94(2D)(j)
Family Law Rules 2004 (Cth): rr 12.10A, 19.08(3), 19.50

APPLICANT: Ms Acharya

RESPONDENT: Mr Bhatt

FILE NUMBER: SYC 5732 of 2015

APPEAL NUMBER: EA 62 of 2016

DATE DELIVERED: 21 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 21 September 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 April 2016

LOWER COURT MNC: [2016] FamCA 374

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

1. That Application in an Appeal filed on 30 August 2016 be dismissed.

2. That the applicant wife pay the respondent husband’s costs of and incidental to this application on a party/party basis and as agreed or assessed.

3. That the costs payable pursuant to the above order be paid from the wife’s entitlement to a property settlement made by way of final order pursuant to s 79 of the Family Law Act 1975 (Cth).

4. Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify for counsel that it was reasonable for the respondent husband to engage counsel.

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 Acharya & Bhatt 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).

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

Appeal Number: EA 62 of 2016
File Number: SYC 5732 of 2015

Ms Acharya

Applicant

And

Mr Bhatt

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Acharya (“the wife”) and Mr Bhatt (“the husband”) are engaged in property settlement proceedings undertaken pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) and related proceedings.

2. By an Application in an Appeal filed on 30 August 2016, the wife seeks an expedited hearing of her application for leave to appeal and, if leave is given, her appeal against certain interim financial orders made by Loughnan J on 27 April 2016, in accordance with her Notice of Appeal filed on 29 April 2016.  It assumes some importance in these reasons that the orders which are the subject of the application for leave to appeal are self-evidently interlocutory. 

3. The orders under appeal provide for the husband to pay the wife $1,800 per month by way of interim spousal maintenance (Order 2), and for the wife’s Further Amended Application in a Case and any responding interim documents filed by the husband to be otherwise dismissed (Order 3).  In addition, Order 1 was made in accordance with the husband’s proposed minute of order, and provided for the discharge of a previous order requiring the parties to provide particular disclosure and for the husband to be restrained from selling or further encumbering a property situated at Suburb C, New South Wales.  The order also prevented the husband from increasing the line of credit secured over that property other than in respect of certain payments specified in the order.

Relevant background

1. So as to give this application context, it is necessary to refer to some brief background facts.  These are largely taken from his Honour’s reasons and the documents filed in support of this application.

2. The parties are both 53 years of age. They married in around 1989 and separated in November 1998.  Their divorce became final in December 2001.  The parties have two now adult children who are approximately 23 and 20 years of age.

3. The wife’s Further Amended Initiating Application came before the primary judge for hearing of the interim matters on 27 April 2016.  On that occasion, his Honour made the orders which are the subject of the application for leave to appeal and delivered ex tempore reasons for judgment.

4. On 29 April 2016, the wife filed her Notice of Appeal and also an application for expedition of the appeal.  On 6 May 2016 the wife filed an application for the provision of a transcript at the Court’s expense.  Those applications came before me for hearing on 19 May 2016, at which time the ex tempore reasons for judgment delivered by the primary judge on 27 April 2016 had not yet been settled and published.  As a consequence, I made orders adjourning the wife’s applications to chambers and upon publication of the settled reasons of the primary judge, ordered the wife to file submissions in support of the merits of her proposed appeal and for the husband to file submissions in response.  I also made an order that the wife have leave to access the audio recording of the hearing before the primary judge.  It appears the settled reasons of the primary judge were distributed on around 20 May 2016.  However, no submissions were filed in accordance with my orders. Subsequently, on 17 June 2016, the wife filed Notices of Discontinuance in respect of each of her applications.

5. On 13 July 2016, a Registrar made directions for the filing of the appeal materials.  Included in those orders is a notation which reads “[t]he appeal may be placed in a reserve list and called on for hearing at short notice in the event that an earlier than expected hearing date becomes available.”  From submissions made this morning by the wife, it would seem that the application for leave to appeal and the prospective appeal are, indeed, placed in the reserve list. 

6. On 30 August 2016, the wife filed the instant application.  As I will further explain, it assumes some significance in these proceedings that the wife has previously filed an application for expedition of the same appeal which was then discontinued.

7. I note the substantive proceedings are next listed for a directions hearing on 19 October 2016.

Discussion

1. Section 94(2D)(j) of the Act provides that the Court may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.

2. However, r 12.10A of the Rules deals with applications for an expedited trial and provides a useful guide to the approach that might be taken in relation to expedition of an appeal. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule and which are also relevant to appeals will be discussed.

3. As I move through the relevant provisions, I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other litigants.

4. Sub-section (a) is concerned with whether the wife has acted reasonably and without delay in the conduct of the case.  There is no doubt that in relation to the appeal the wife has moved promptly and done what is required to prosecute her appeal.  However, with respect to the application for expedition, it cannot be said that the wife has indeed moved as promptly.  As earlier noted, she previously filed an application for expedition on the same date as her Notice of Appeal, however, chose to discontinue the application for expedition.

5. Sub-section (c) concerns prejudice to the respondent, in this case the husband.  There appears to be no factor which would occasion prejudice to the husband if the appeal were to be expedited.  The application of the sub-section is moot.

6. Sub-section (d) requires consideration of circumstances which would justify this case being given priority to the detriment of other cases.  This is a particularly important factor in this appeal given, as I have said earlier, it is an appeal against interlocutory orders.  When I say the detriment of other cases, I mean to other cases that have been filed earlier and would be called on for hearing in the ordinary course, but not if this case was expedited.  Importantly, it also includes to the detriment of other cases where the orders under appeal are final orders rather than interlocutory orders. 

7. Examples of what constitute a relevant circumstance are set out in r 12.10A(4)(a) – (g). On the evidence before me it cannot be said that any of the examples listed therein apply here. However, that is not the end of the matter because the list of factors contained in the sub‑rule does not purport to be exhaustive.

8. In support of her application for expedition the wife has filed an affidavit which alleged that she and her adult children are suffering from psychological stress and depression caused by the ongoing court proceedings and allegedly fraudulent conduct of the husband.  The wife also contends she is suffering financial hardship and, as a result of the orders of the primary judge which discharged an earlier order requiring disclosure by the parties, she has not been receiving ongoing disclosure from the husband concerning his obligations to meet the mortgage repayments of the Suburb C property where she resides.  Thus, the wife contends that the only way to relieve herself from the “oppressive situation” in which she finds herself is to have the matter expedited and dealt with as early as possible.

9. Of course, while it is unfortunate that the wife is enduring mental health stresses as a result of the court proceedings, the same can be said of many litigants who find themselves caught in court processes following the breakdown of their marriage or relationship.  That factor in and of itself is therefore not sufficient to dislocate other appeals, particularly in circumstances where, as has already been mentioned, this is an appeal in relation to interlocutory orders and the wife earlier discontinued an application for expedition of the same appeal.

10. With respect to her financial distress, by virtue of the orders made by the primary judge, the wife is receiving $1,800 a month from the husband by way of interim spousal maintenance.  This is in addition to his payment of the mortgage and rates for the property in which she resides.  It has already been observed that the substantive proceedings are next listed for a directions hearing on 19 October 2016 and that even if these appeal proceedings were to be expedited, there remains the ongoing stress associated with the resolution of the proceedings at first instance.  On balance, I am not persuaded that the circumstances upon which the wife relies should give rise to an order for expedition.

11. Finally, it is necessary to consider the grounds of appeal.  All that needs to be said at this point is that the wife raises a number of challenges to his Honour’s reasons and the exercise of discretion.  It is difficult to see on the grounds as presented that the putative appeal is presented on such strong grounds that this Court should dislocate other appeals so as to give priority to this application for leave to appeal and the underlying appeal.

12. As earlier noted, the Appeals Registrar has taken steps to place this appeal in the reserve list.  Thus, in the event an early date becomes available and the appeal is ready to proceed, that is, the wife has done all which needs to be done, then, without dislocating another appeal awaiting hearing, it is possible that this appeal could be brought on earlier than would otherwise be the case.

Conclusion and costs

1. Notwithstanding the matters that weigh in favour of expedition, in my view, the case for this appeal to be given priority over all other appeals awaiting a hearing has not been made out.  Consequently, the application for expedition should be dismissed and I will order accordingly. 

2. On the dismissal of the wife’s application for expedition, the husband sought an order that she pay his costs incurred in relation to the unsuccessful application. It was initially intimated that the range for costs was somewhere between $7,000 - $10,000. On enquiry from the Court, it became clear that those costs bear no relationship to party/party costs contained in the Rules. When submissions were invited about why the Court would contemplate an order for indemnity costs in these circumstances, nothing persuasive was said in support of it.

3. It behoves practitioners who appear and instruct to be familiar with the Rules and to not present argument and/or make claims for orders with a total disregard of the Rules. It does nothing to enhance individual reputations or the reputation of the jurisdiction. Suffice to say, there is no basis upon which an order for costs in the amount sought could be made by reference to an undisclosed costs agreement and without compliance with r 19.08(3). I hope this situation does not arise again.

4. In any event, the fall-back position is that costs should be ordered on a party/party basis.  The application is predicated on two bases.  First, that the wife has been wholly unsuccessful in this application which is unarguably correct, and provides justifying circumstances for an order for costs.  Secondly, and, in my view, of particular significance, is this is the second time the husband has faced an application for expedition. 

5. An order for costs is therefore appropriate, notwithstanding what would seem to be the financial disparity between the parties.  To a degree, that disparity is offset by the sensible approach taken by the husband that any costs awarded in his favour would be met from the ultimate entitlement gained by the wife in the substantive property settlement proceedings. 

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 September 2016.

Associate:

Date:  4 October 2016