Amberg and Amberg and Ors
[2012] FamCAFC 19
•13 February 2012
FAMILY COURT OF AUSTRALIA
| AMBERG & AMBERG AND ORS | [2012] FamCAFC 19 |
| FAMILY LAW – APPEAL – Application for an extension of time – Appeal against final property orders and an order for costs – Where the husband asserted an equitable interest in a property in the name of the wife’s parents – Where the husband failed to make proper disclosure and properly prepare for trial – Where the Federal Magistrate ordered that the property proceedings proceed undefended – Where although “undefended” the Federal Magistrate considered the husband’s affidavit and offered the husband an opportunity to cross examine the wife FAMILY LAW – APPEAL – Application for an extension of time – Where there was no proper explanation for the significant delay – Where the grounds of appeal were incomprehensible – Where in addition to the appeal material the affidavits before the Federal Magistrate and transcript of proceedings were considered– Where there was no evidence to support the husband’s assertions – Where the appeal lacked merit and there was significant prejudice to the respondents – Where no error was apparant – Application dismissed FAMILY LAW – APPEAL – Application for an extension of time – Appeal against parenting orders and an order for costs – Where the orders sought to be appealed were made by consent – Where it was submitted the orders made were “not working” – Where it was explained to the husband the appropriate procedure would be to file an application seeking a variation of the orders or alternatively to file a contravention application – Application dismissed FAMILY LAW – COSTS – Appellant husband ordered to pay respondents’ costs fixed in the sum of $5,000.00. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981(Cth) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Clivery & Conway [2007] FamCA Gallo v Dawson (1990) 93 ALR 479 In the marriage of Greedy (1982) FLC 91-250 House v The King (1936) 55 CLR 499 In the marriage of Robinson (1991) FLC 92-209 Weissensteiner v The Queen (1998) 178 CLR 217 |
| APPELLANT: | Mr Amberg |
| FIRST RESPONDENT: | Ms Amberg |
| SECOND RESPONDENT: | Mr Vonstein |
| THIRD RESPONDENT: | Mrs Vonstein |
| FILE NUMBER: | BRC | 6912 | of | 2008 |
| APPEAL NUMBER: | NA | 64 | of | 2011 |
| NA | 97 | of | 2011 |
| DATE DELIVERED: | 13 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 February 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 March 2011 & 9 December 2012 |
| LOWER COURT MNC: | [2011] FMCAfam 205 [2011] FMCAfam 206 [2010] FMCAfam 1528 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENTS: | Fitz-Walter Lawyers |
Orders
The application in an appeal NA 64 of 2011 be dismissed.
The application in an appeal NA 97 of 2011 be dismissed.
The applicant pay the respondents’ costs of and incidental to the applications for leave fixed in the sum of $5,000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Amberg & Amberg and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 64 of 2011 & NA 97 of 2011
File Number: BRC 6912 of 2008
| Mr Amberg |
Appellant
And
| Ms Amberg |
First Respondent
And
| Mr Vonstein |
Second Respondent
And
| Mrs Vonstein |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern two applications filed by the husband for an extension of time. The husband is self represented and the respondents are all represented by Fitz-Walter Lawyers.
The first respondent is the husband’s former wife. The second and third respondents are the wife’s parents, who are joined in the proceedings as the husband seeks orders which would affect them. In particular, he seeks a declaration that property held in their name be included as property for the purpose of the property distribution between the husband and wife. It is asserted that the parents hold the property in part on trust for the husband and wife.
The first application (NA 64 of 2011) concerns two sets of orders made by Federal Magistrate Coker on 4 March 2011. The Federal Magistrate decided that the matter proceed on an “undefended basis”, and then made final property orders. Those property orders provided:
(1)That the Husband shall pay to the Wife the sum of NINE THOUSAND FIVE HUNDRED DOLLARS ($9,500) by way of reimbursement for half of the joint credit card liability at separation.
(2)That each party shall retain all items of personal and real property in their respective names and/or possessions including but not limited to household chattels, bank accounts, motor vehicles and superannuation funds.
(3)That the Husband shall pay the Wife’s costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.
(4)That the Husband shall pay the Second and Third Respondents’ costs in the fixed amount of FIVE THOUSAND DOLLARS ($5,000) within twenty-eight (28) days of the date of these Orders.
(5)That all other applications in the proceedings be dismissed.
The second application (NA 97 of 2011) concerns orders made by Federal Magistrate Purdon-Sully on 9 December 2010. Those orders were final parenting orders made by consent, and an order concerning costs.
During oral submissions the husband explained he was seeking to appeal the parenting orders as the children were not being made available to him pursuant to the orders. It was apparent that there was no basis to challenge the orders rather, that as the husband said, “they were not working”. It was explained to the husband that an application could be filed in the Federal Magistrates Court seeking a variation of the parenting orders, rather than an appeal. It was also explained that the husband could file a contravention application, although this alternative may be undesirable.
The husband appeared to understand the appropriate procedure to facilitate a variation of the parenting orders. Consequently, the only order made by Federal Magistrate Purdon-Sully that the husband continues to pursue on appeal, is the order for costs. That order provided:
20.That within six (6) months from the date of these Orders, the Applicant pay to the Trust Account of the First, Second and Third Respondents’ Solicitors, Fitz-Walter Lawyers, a fixed sum of FIVE THOUSAND DOLLARS ($5,000) towards the costs of these proceedings.
In response to the husband’s applications it is asked that the applications be dismissed with costs, or alternatively that the husband be given leave to proceed but that he provide $25,000 by way of security.
The solicitor for the wife and other parties agreed that the security application need not be heard if leave is not given.
Background
The appellant husband was born in 1966 and the first respondent wife in 1971. The husband is a resident entertainer and the wife a care coordinator.
The second and third respondents are the wife’s mother and father respectively.
The husband and wife married in August 1995 and separated in October 2005. They resumed cohabitation in February 2006 and finally separated in July 2007, divorcing in November 2008.
The husband and wife have two children X born July 1998 and Y born
May 2001. Both the children live with the mother.
In order to appreciate the context in which these applications are made, it is useful to reproduce the chronology of the proceedings as provided in the affidavit of Ms Miller, the solicitor for the respondents:
…
4.The proceedings were characterised by [the husband’s] failure throughout to comply with the Rules and the orders and directions made by the Court to progress the proceedings.
5.[The husband] did not comply with his disclosure obligations pursuant to the specific orders made by Federal Magistrate Purdon-Sully on 20 July 2010. …
6.As a consequence of that failure, F.M. Purdon-Sully made further disclosure orders on 4 October 2010. Her Honour made specific comment to [the husband’s] solicitor with respect to compliance with Orders. …
7.[The husband] failed to comply with Orders with respect to the filing of affidavit material and with respect to disclosure prior to the first trial dates on 8 – 9 December 2010.
…
9.The proceedings had been listed for a two day trial commencing on 8 December 2010.
10.On 8 December 2010, at the commencement of the trial, [the husband] sought an adjournment on the basis that he had applied for Legal Aid. There was no evidence produced to the Court to support [the husband’s] request.
11.The proceedings were adjourned to the following day, at which time the parties reached consent orders with respect to the parenting matters.
12.Federal Magistrate Purdon-Sully set a new trial date on 4 March 2011 for the financial matters.
13.Her Honour specifically outlined to [the husband] his obligations with respect to disclosure.
14.Her Honour made it clear to [the husband] that, if he failed to comply with his disclosure obligations, [the respondent’s solicitor] could apply to have the proceedings heard on an undefended basis at trial.
15.Orders were made in accordance with the agreed parenting orders and a costs order in the amount of $5,000 was made against [the husband] to compensate the respondents for the costs thrown away because the trial could not proceed as listed.
16.[The husband] was given six months to pay the $5,000 costs.
17.They have not been paid.
…
19.Prior to the trial on 4 March 2011, [the husband] failed to serve material on the respondents. He did not serve a sealed affidavit, a Case Outline Document nor did he comply with his disclosure obligations.
20.As foreshadowed, on 4 March 2011 in the trial before Federal Magistrate Coker [the respondent’s solicitors] applied to have the proceedings heard on an undefended basis.
21.[The wife’s solicitor] was successful in that application. …
22.Notwithstanding that the proceedings were to be heard on an undefended basis, I made the respondents available to [the husband] to be cross-examined on their evidence.
23.[The husband] left the court room without participating in the balance of the trial.
…
26.Following the final orders being issued, my client receive an email from [the husband] dated 11 July 2011 stating that he had appealed the decision. …
27.As at the date of swearing this affidavit, [the husband] has failed to comply with the orders made on 4 March 2011 and with the costs order made on 9 December 2011 despite repeated request being made of him.
…
I would add that on 4 October 2010 the husband was not present and was represented by Mr Steele, described by Federal Magistrate Purdon-Sully, as an experienced family lawyer. Federal Magistrate Purdon-Sully made orders to advance the matter to trial and further directions in relation to disclosure (following argument from the parties on the day) and further orders in relation to lodgement of tax returns and subpoena of documents.
Her Honour made disclosure orders specifically so the husband could comply, and explained to his solicitor that the matter would precede on an undefended basis if orders were not complied with.
On 9 December 2010 Federal Magistrate Purdon-Sully found that the husband had not complied with her previous orders. It was emphasised by her Honour that although now self represented, the husband was represented over the course of the three hearings which dealt with disclosure and setting down of the trial.
Her Honour determined that between that day and the husband’s departure the following Tuesday, he should have been able to attend to some of the disclosure matters. Further orders were made affording the husband a further opportunity to prepare the matter for trial, whether he obtained legal aid or not. It was suggested by her Honour that the husband select a person in Brisbane who could act as an agent to facilitate his preparation for trial.
Although the husband attempted to argue that he had disclosed all the documents in his possession it is apparent from the reasons of Federal Magistrate Purdon-Sully and Federal Magistrate Coker that his attempts were deficient.
Leave out of time principles
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such leave applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
In this matter the explanation for delay will be discussed first, followed by a consideration of the consequences for the respondents if leave is granted.
In my view the husband’s applications would fail on both these grounds. However, bearing in mind the consequences of refusing leave in this case, it is the possible merits, which requires the most attention.
Explanation for the delay
The orders were made on 9 December 2010 and 4 March 2011. The applications were filed on 6 December 2011 so that in relation to the final parenting orders the husband is eight months out of time.
In the affidavit filed in support of the husband’s application for leave to appeal out of time it is said at paragraph 16:
I am contracted with … as an entertainer, and as such, have limited communication resources because of either being at sea or at ports with limited access and time to legal resources. … Documents, affidavits and subpoenas that I sent to be filed to the court were returned without being filed. I was not informed of this until I returned to the Gold Coast some months later. I have requested when filing documents that I be notified by way of email if there were any discrepancies, as this is the only form of communication I have on a reasonably regular basis, though I was never informed via email of forms being returned and unfiled.
During his oral submissions the husband explained that it was his initiating application filed in 2008. He commenced employment with his current employer in 2009 and that since this time he has been out of the country for extended periods of time and limited by a lack of resources and legal representation.
In response it was submitted that the husband’s explanation for the delay was unsatisfactory. Reference was made by the solicitor for the respondents to the husband’s own statement to the Social Security Appeals Tribunal in child support proceedings that he worked “for about seven months of the year”. It was said that as the husband is on land for approximately five months of the year, he had more than adequate time to comply with directions and correspond effectively.
The husband conceded that when on board ship some email facilities were available to him.
Although the explanation for the delay is not adequately explained, the element of delay on its own would not impede the husband’s application, rather it requires a consideration of the other relevant principles, in particular, the prejudice to the wife and the merits of the appeal.
Possible prejudice
The impact of leave on the wife and her parents
The husband submitted that there is no prejudice to the respondents and that “defending an untruth is open to them”. Rather, he submitted the prejudice is to him. It was said that the matter could have settled earlier, but that now the matter has progressed it should be properly heard and the evidence should be tested.
The husband conceded he does not have a capacity to pay the costs of the respondents should his appeal fail. He conceded he has no assets, other than the alleged interest in the property, registered in the wife’s parent’s names, and that he relies solely on the income he receives as a resident entertainer.
Ms Miller submitted that the time since the initiating application was filed by the husband on 6 November 2009 has been traumatic for the respondents. She explained that she advised her clients that as the husband was self-represented he was able to “get away with more than he should have”. It was submitted however, that the husband should not be permitted to continue to have no regard to the Rules and procedures of the courts.
It was said that the husband’s conduct during the proceedings was upsetting for the respondents, particularly the second and third respondents, who are elderly and of ill health. Particularly so it was said, when the respondents had been diligent in filing quality, well supported material, which was commended by his Honour the Federal Magistrate.
The prejudice to the respondents is manifest, especially to the wife’s elderly parents. Such prejudice however, could be overcome, in part, by a consideration of the respondents’ application for security for costs, should it be determined that there is merit is the husband’s appeals.
Merits of the appeal
In order to ascertain whether there is any merit in the proposed grounds of appeal, it is necessary first to consider the reasons for judgment in respect to each proposed appeal.
Reasons of Federal Magistrate Coker (4 March 2011)
Reference will first be made to the reasons allowing the application on behalf of the respondents to proceed, despite the failure of the husband to comply with orders.
Decision to proceed undefended
Federal Magistrate Coker commented that the matter had a “checkered career”, with numerous orders and directions being made to progress the matter to trial.
Appreciating the serious consequence of a failure to grant the husband an extension of time to appeal, it is necessary to comprehensively reiterate the history of the matter. His Honour did so effectively and accurately in his reasons:
5.On 20 July 2010 Purdon-Sully FM made orders in relation to what might be called, readying the matter for hearing and additionally made orders with regard to the parties’ attendance at a conciliation conference. The orders that were made by Purdon-Sully FM included as follows, order 3:
That both parties produce to the other twenty-eight (28) days prior to the conciliation conference all relevant documents as prescribed in Annexure A to this order.
6.Annexure A was then a lengthy recitation of documentation relating to both financial issues and also children’s issues. The matters in relation to children’s issues are of course not relevant in relation to this proceeding but with regard to the financial matters the following documentation was required and it was in a dot point form:
· List of all bank accounts
· Details of account numbers
· Passbooks and bank statements for the previous 12 months
· Details of Credit Union Building Society or other like deposit passbooks and statements for the previous 12 months
· Details and records of any investment including stocks and shares
· Income tax returns and assessments for the previous three financial years
· Social security pension or payment details
· Details, records of long service leave accrued
· Details, records of a overtime worked in the previous 12 months
· Superannuation documentation including a completed superannuation information required for Family Law matters form or a form which substantially complies with that form
· Valuation of real estate
· Valuation of chattels including cars
· Records and details of any life insurance or disability insurance
Thereafter the particulars sought related to issues with regard to the matters of the parenting of the children.
7.The conciliation conference report is dated 20 July 2010. It notes that at the conciliation conference on that day, the conference proceeded, the parties attended but no agreement was reached in relation to the issue of property as between the parties. The matter was then, subsequent to the conference, referred back to Purdon-Sully FM for trial directions.
8.The trial directions included the listing of the matter for 2 December 2010 for mention on that date to confirm that it was ready in all regards to proceed to trial. So as to ensure that the matter was ready to proceed to trial, Purdon-Sully FM made extensive directions in relation to information to be provided and also provided extensive directions in relation to the responsibilities associated with obtaining such information.
9.The Court orders 1 through 5 are relevant in relation to this matter. The orders were in this terms:
1.That within seven (7) days of today’s date, the Respondents provide the Applicant a list of any relevant documents outstanding that have been sought by way of disclosure.
As I understand it, such information has been requested and references made to that in the affidavit of Margaret Catherine Miller, the solicitor on record for the wife and her parents. Order 2 then goes on:
2.That within a further (14) days thereafter, the applicant also provide to the Respondents the following:
a. Form 6 Superannuation Information Form attached to an affidavit in relation to his interest in the [A] and [B] superannuation funds and any other superannuation funds held by him and not disclosed by him to date;
b.documents evidencing all income received by him since 1 July 2009, including any Social Security benefits received;
c.a market appraisal of any real estate in dispute;
d.a valuation of any chattels in dispute;
e.details and records of any investments held by him, including stocks and shares;
f.details and records of any long service leave accrued;
g.details and records of any overtime worked in the previous 12 months;
h.documents evidencing the contributions as outlined by him in paragraph 10 and paragraphs 51 – 53 of his unsworn affidavit provided to the Respondents on 29 September 2010;
and shall otherwise provide the documents as requested by the Respondents in Order 1 hereof, and if the requested documents are not in his possession, power or control he shall advise them accordingly.
10.As best I understand it the document referred to in order (2)(b) there is in fact the affidavit that was subsequently sworn on 1 November 2010 and filed by the husband. The paragraphs referred to therefore are, paragraph 10 which is in these terms:
At the date of cohabitation I owned the business [G]. This business became a proprietary limited company in 2002. The company had plant and equipment at the date of cohabitation, the value of which I estimate was approximately $70,000.
The order of Purdon-Sully FM of 4 October 2010 required that the husband produce evidence in relation to that estimated valuation. As best I understand what has been put in relation to this matter, such documentation has not been provided.
11.Additionally the order required that the husband provide documents evidencing the contributions as outlined in paragraphs 51 to 53 of that affidavit. Paragraphs 51 to 53 of the husband’s affidavit, now filed 3 November 2010 is in these terms:
51.The average income I earned per week via contracting out my services as a music teacher and performer as well as other positions throughout the course of the relationship was as follows:
(a)1995 - $1,400
(b)1996 - $1,825
(c)1997 - $1,400
(d)1998 - $925
(e)1999 - $850
(f)2000 - $1,250
(g)2001 - $1,475
(h)2002 - $1,800
(i)2003 - $2,100
(j)2004 - $2,300
(k)2004 - $2,600
(l)2006 - $2,900
(m)2007 - $3,300
(n)2008 - $1,200
(o)2009 - $900
(p)2010 - $1,650
Paragraphs 52 and 53 are then in these terms:
52.There were approximately 120 days when my services were not contracted during the time that the first respondent and I lived in the [L] property.
53.In April 2000, I was contracted to teach ... I remained as a contractor for this firm for a number of years. I used to teach between 80 and 90 students per week at an average of $25 per student.
12.Order 2(h) of the orders of 4 October 2010 required the production of documentation in relation to such information and finally concluded that the applicant was to otherwise provide the documents as requested by the respondents in order 1 and if the requested documents are not in his possession, power or control he shall advise them accordingly.
13.It is noteworthy that of course it is not only documentation in his possession but also documentation which is in his power or control which is required, because of course, there is often a situation where documentation is held by accountants, lawyers, financial advisors and others but who are required to act upon the direction of the person who is ultimately the owner of such documentation.
14.Additionally order 3 of those orders to which I have referred provides that the applicant shall attend to the lodgement of income tax returns for the previous three financial years and provide the respondents will copies of same, including any assessment within six weeks of today’s date. Six weeks of 4 October 2010 is of course mid-November 2010 and as best I understand what appears to have been provided in very recent time to the legal representatives for the wife and for her parents, are documents which have been prepared for lodgement but there is no indication that lodgement has occurred and there is certainly no indication of an assessment received from the taxation office.
15.Further, order 4 requires that within 14 days of the date, in other words by 18 October 2010, the applicant subpoena any relevant documents evidencing the contributions alleged to have been made by him during the course of the relationship. That has not occurred and again, as best I understand it, the applicant’s explanation in relation to that is that he was not legally represented from the time shortly after the making of those orders, that he was attempting to lodge documentation including subpoenas, but there was some technical fault in that respect, and that when he returned to Australia and appeared on or about 9 December 2010 he was not then in a position where he had the time or the capacity to lodge such subpoenas and therefore to seek the information that he was directed to seek, in relation to contributions said to have been made.
16.Finally it is noteworthy that order 5 requires that, in the event that there was no agreement reached in relation to any property in dispute, a single expert shall be appointed to report on the value of the property. It is not necessarily a relevant consideration in respect of this matter but again as best I understand the evidence in relation to the matter, there does not appear to have been any step taken with regard to the dispute, in relation to valuation of property.
17.What has flown from the making of those orders and the general concerns which are said to be expressed by the wife and her parents in relation to this matter, is that the husband has to all intents and purposes failed to comply with any and all directions in relation to production of documentation.
18.The affidavit which was filed by the solicitor Ms Miller on 22 November 2010 is in these terms:
(2) I refer to the Orders made by the Court on 4 October 2010 that required the applicant husband to make certain disclosure.
(3) I further refer to the List referred to in Order 1 of the orders, a copy being annexed to this affidavit and marked with the letters “MCM-1”.
(4)With respect to the disclosure ordered by the Court, the husband has not disclosed the following:
And then goes on to detail in subparagraph (a) (i) through (xvi) the documents that were required to be produced and have not been produced.
(a)Of the List provided to both the husband’s former solicitor and then forwarded to the husband upon being advised he had terminated Mr Steel’s retainer (Annexure”MCM-1”):
i.Pay slips for the last 12 months;
ii.Employment contracts for the last 3 years (only his current contract provided)
iii.Source documents used to prepare tax returns including group certificates, pay slips;
iv.The husband’s file held by the Bankruptcy Trustee for both bankruptcies during the marriage;
v.Child Support records showing child support records of payment from 2007 to the present time;
vi.Documents relating to the husband’s present claim against his parents’ estate;
vii.Company [G]’s financial accounts during marriage;
viii.Documents relating to the transfer of company [G] to the husband’s brother including any consideration paid;
ix.Documents relating to [J] Pty Ltd including income, expenditure and business plan referred to at paragraph 74 of the husband’s unsworn affidavit;
x.Rental agreements for husband for the last 12 months;
xi.Copy of the husband’s passport showing entries and departures for the last 12 months;
xii.Documents relating to the alleged [T] liability (on Husband’s Financial statement);
xiii.Documents relating to payments received from [Mr/Mrs M] (being large, regular credits on husband’s bank statements);
xiv.Documents relating to the value of the household contents;
xv.Documents relating to the alleged loan from [Mr A] (on husband’s Financial Statement);
xvi.Documents relating to alleged loans from [Ms/Mr F], [Ms/Mr E] and [Ms/Ms N] (on husband’s Financial Statement.
19.In paragraph 4(b) Ms Miller goes on to indicate that of the items in order 2 of the orders made by her Honour on 4 October 2010, further documents have not been disclosed and again they include documents numbered at (i) through (iv):
i. Form 6 Superannuation Information forms in relation to interest in [A] and [B] superannuation funds (but he has disclosed the most recent statements)
ii.Documents evidencing income received since 2009 (but has disclosed copies of 2009 and 2010 tax returns without supporting documents)
iii.Any valuation of chattels in dispute
iv.Documents evidencing contributions outlined in paragraph 10 and paragraphs 51-53 of the unsworn affidavit provided on 29th September 2010.
20.Additionally, it was noted that with respect to order 3, which related to the lodgement of tax returns and the provision of assessments, that such documents have not been provided nor did it appear and it is certainly the case that subpoenas have issued as a result of steps taken by the husband.
(own emphasis in bold)
His Honour summarised the submission of the respondents:
21.On behalf of the wife and the 2nd and 3rd respondents therefore, it is submitted that there has been inordinate delay and consequent expense incurred by the wife and her parents as a result of the actions, perhaps more realistically described as the inactions of the husband, in relation to this matter.
His Honour then considered the submissions of the husband, being that he had “extreme difficulties” due to the withdrawal of his legal representation and the difficulty he had in obtaining any of the required material. The Federal Magistrate, although accepting that the husband “had since 9 December 2010 only one day, or at least weekday available to him within the Commonwealth of Australia, to take steps with regard to obtaining documentation and therefore he has been unable to provide the information in respect of the matter” said:
23.The fact is however, and it overrides much in relation to this matter, that the husband is the applicant in these proceedings. There is an inherent obligation that falls upon all parties to proceedings, but one would think perhaps because they commenced the proceedings the more overriding obligation is to ensure that the applicant, whether represented or not represented is able to fully present their case and more particularly to comply with all directions made in relation to proceedings.
24.Understandably the wife’s position and the position of her parents in relation to this matter is to say that, whilst the husband contends as he does and in particular as is contained within his affidavit of 3 November 2010, that he made significant contributions, that he earned significant income and that there were many financial dealings as between he, the wife and her parents, the obligation then fell upon him to produce documentation, in respect of the matter.
25.To rely as he does on bland statements of income, which even with the very limited information appears not to cross relate to taxation assessments which as I understand it have been provided for the years 1996 and 1998 and then to suggest that in any event there was inaccuracies there, but they were not the husband’s fault, gives rise to enormous difficulties experienced understandably, on the part of the wife and her parents.
26.The husband has the onus of pressing and prosecuting his claim. He has failed to comply repeatedly with directions of the Court. He has been advised of the intent of the Court with regard to proceeding on an undefended basis in relation to the matter particularly if there was, as is now the case, failure to comply in any respect of any real nature whatsoever, with the directions in relation to provide information of a corroborative nature.
(own emphasis)
In concluding his reasons the Federal Magistrate said:
29.In my assessment there would be a greater injustice to the wife and to her parents if there was either an adjournment in relation to the proceedings or more particular allowance given to the husband to seek to rely upon uncorroborated evidence and statements made by him in relation to the affidavit which was filed on 3 November 2010.
30.I intend therefore to accede to the application made on the part of the wife and her parents, in relation to this matter proceeding on an undefended basis. Of course reliance can and will be placed upon material that has been filed in relation to proceedings but there is the obvious consequence for the husband that where there is dispute as to issues in relation to proceedings the weight that must be given to corroborated evidence provided by the wife and her parents would far outweigh the uncorroborated evidence of the husband in relation to these proceedings. The matter will proceed on an undefended basis.
(own emphasis)
It was rather a misnomer that the proceedings were said to be conducted on an undefended basis. The Federal Magistrate had the affidavit to be relied on by the husband at trial, which included a reply to the affidavit of the wife and a reply to the affidavit of her parents. The husband was present and invited to participate.
Property orders
At the commencement of his Honour’s reasons the orders sought by all parties were outlined. It is of some interest to see what the husband asked:
1.Pursuant to section 78 of the Family Law Act 1975 (Cwth), a declaration be made that the second and third respondents hold 50% of the [M] property on trust on behalf of the applicant and first respondent.
2.That the first respondent pay to the applicant the sum of $412,500 within 90 days of the date of this order.
3.In the event that the first respondent does not make payment to the applicant in accordance with order 2 above, the [M] property be forthwith listed for sale and the sale proceeds of that property be dispersed firstly to the applicant in the sum of $412,500.
4.That except as otherwise provided in this Order, the husband and wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements, and personal effects currently in the possession or control of each of them respectively.
5.Each party shall indemnify the other with respect to any expenses, outgoings and liabilities related to those items of property which they retain or receive pursuant to these order.
(original emphasis)
The position of the respondents was summarised by his Honour:
7.The wife and her parents responded to the application by the husband. There has been a generally consistent position taken in relation to the position of the wife and her parents. Quite simply they accept as I understand it that each party should retain property in their name and possession and that each party should indemnify the other in relation to liabilities attaching to that property but that otherwise the property settlement that should be effected between the parties was as follows:
1.That paragraphs 1, 2 and 3 of the father’s further amended application filed the 1/11/2010 be dismissed.
2.That the husband pay to the wife the sum of $9,500.00, being half of the parents’ joint credit card debts at separation.
3.Other than as specifically provided for in these Orders, the parties are solely entitled to the exclusion of the others to all items of personal and real property in their respective possessions including but not limited to household chattels, bank accounts, motor vehicles and superannuation funds.
(original emphasis)
It was explained by the Federal Magistrate that although the trial was proceeding undefended that the husband was still present in court, when Ms Miller called the wife, and “[w]hilst it would not normally have been the case” the husband was provided with an opportunity to cross examine the wife. Of the husband’s refusal it was said:
… Not surprisingly he declined to do so indicating that he was, I assume, somewhat disappointed with the previous ruling that I had given in relation to the matter proceeding as I had determined and that he intended to lodge an appeal.
His Honour said:
12.It was noteworthy that the husband was in fact able to quote the sections of the Family Law Act addressing the right to bring an appeal in relation to any determination of proceeding and one can only conclude that the husband, whilst not complying with the many directions that were given with regard to production of documentation and certainly provision and disclosure of source documents with regard to income and matters of that nature, had been able to avail himself of opportunities to consider the contents of the Family Law Act and to indicate what he anticipated would be next step to be taken, in relation to proceedings.
13.In any event that is a matter for the husband and one would hope that it would not be the course of conduct followed in relation to the matter, simply because there has already been significant expenditure on the part of the wife and her parents in relation to these proceedings and it would be a distressing outcome in the extreme for them to be put into a position of further expense being incurred. But in any event, that is a matter for another time.
…
15.One can only assume, I think quite fairly, that the reason that that course was taken was because the husband had determined that there was nothing that he could ask of the wife and certainly nothing that he could produce to the wife which would in any way give rise to a concern as to the veracity of the statements that she had made within her affidavit.
16.He indicated that he would not remain and whilst he had the opportunity to do so declined that opportunity and left the Court before there was even a suggestion of [the second and third respondents] being called for the purposes of evidence and cross-examination, if he chose to do so. I draw as I believe I am entitled to do, an inference from that position taken by the husband in relation to the matter, that he accepted that there was nothing that could be put or suggested to either the wife or to [the second and third respondents] which would in any way give rise to a concern as to the correctness of what they said and it was noteworthy that of course they in significant documents, have sought to corroborate the position taken by them, in relation to these proceedings.
In considering the respondents’ material his Honour said that he had “no doubt whatsoever as to the genuineness and the veracity of what is set out in [their] affidavits”. It was said where there was a divergence between the parties evidence “without any hesitation whatsoever” the evidence of the respondents was accepted. In the circumstances of the husband failing to cross examine the respondents this inference was properly open to the Federal Magistrate (see Weissensteiner v The Queen (1998) 178 CLR 217).
Correctly the Federal Magistrate said:
… The unfortunate but obvious finding of these proceedings is that the parties quite clearly have acquired very little if any assets during their marriage of about 12 years, they h aving finally separated in 2007 and commenced their relationship in or about 1995.
He continued:
19.The parties married in August of 1995 and commenced cohabitation at that time. It is interesting that the husband in his material suggests that he had assets, he says through his company [G], of about $70,000. Not a skerrick of evidence was produced in that regard and the wife says and I accept, that in fact it was a situation where neither of them brought any real assets into the relationship, other than perhaps those of a limited extent, including older style motor vehicles, personal items and the like. The husband in any event, if he were to suggest that he brought significant amounts in to the relationship lost those amounts through two bankruptcies during the period of the marriage in 1999 and again in 2006.
20.It seemed to be a recurring theme, that the husband was quick to lay responsibility for any difficulties, including the failure to provide documentation at the feet of others. Having read the material filed in relation to this matter it appears clear that the indications given by the husband to the wife and I accept that this occurred, was that the husband had been the subject of unfortunate business dealings and other transactions, which led to his bankruptcy.
21.The fact is of course that the husband produced nothing in relation to verification of those statements and I am unfortunately far more inclined to the view that the husband did not earn significant amounts but unfortunately was quick to spend as much as he could and through the good graces of [the second and third respondents], not wishing to see their daughter or their grand children in a situation of need, provided funds. I am satisfied that there is without doubt an overwhelming preponderance of evidence as to the significant contributions made therefore by [the second and third respondents], during the period of the marriage.
22.There were two principal purchases made during the relationship. The parties it would appear lived in rented accommodation for a period of three or four years but leading up to the birth of the parties’ first child, [the second and third respondents] understandably decided, being caring and concerned parents of the wife and grandparents to a soon-to-be-born grandchild, to make arrangements to purchase a residence to provide accommodation for their daughter, their grandchildren and of course, their son-in-law.
23.It is clear however, that the only documentation in relation to the purchase of that first property, being what I might describe as the [L] home, was a purchase in the name of [the second and third respondents] and in the name of their daughter. It was an interest-free arrangement, provided however that what might be considered to be reasonable rental was paid for the use and occupation of the property. The evidence again seems overwhelmingly to the effect that only a few payments were made before the financial circumstances of the husband and the wife were such that there were no further payments made.
24.The husband suggests that there was an interest acquired by him in relation to the property and that flows from the fact that the wife had an interest in the property, but there was none held in his name. It would be remiss of me to suggest that if that were to be the case, it would be in my assessment a grave injustice to the wife and certainly the gravest of injustices to [the second and third respondents] and the greatest windfall one could imagine in relation to the husband.
25.The contribution by the wife and the husband was virtually nothing. The evidence of [the second and third respondents] is, that notwithstanding their assistance continuing to be provided to the husband and the wife, there were always what I might call money troubles and shortages and these difficulties continued so that they had to provide ongoing assistance. To suggest, as the husband does, that in some way he acquired an interest by way of resulting or constructive trust would be as I say the gravest of injustices to the wife and certainly to [the second and third respondents] and I reject any such suggestion, out of hand.
26.The husband was a bankrupt. He was a bankrupt early in the marriage. He was a bankrupt at the time of separation. He had no assets. He acquired no assets and the overwhelming indications, particularly from the husband’s own failure to provide documentation, would be to indicate that there was little income earned.
27.In that regard I note that as an aide memoire and it is of course only an aide memoire, assistance was provided with regard to the best indications of what the husband’s superannuation entitlements might be between 1992, three years before marriage and 2010, three years after separation. The total of the husband’s superannuation entitlements is $22,214.50 and if in fact it were the case, that that was acquired through contributions made of an employer contribution nature, then at the very most there could be suggested an income of about $260 or thereabouts per week.
28.That is a far more accurate reflection I would think of the income received by the husband than any of the uncorroborated and unsubstantiated suggestions contained within his affidavit of 3 November 2010. In any event there appears to be that overwhelming impression that the husband has no one to blame but himself when it comes to not corroborating the financial details in relation to proceedings.
29.I was as I say, very impressed with [the second and third respondent’s] evidence and the evidence of the wife and unfortunately was just as unimpressed with the limited information provided by the husband. The husband seemed to portray a position of entitlement arising from the fact that he was fortunate enough to marry a woman whose parents did not wish to see her in a situation of need. It gave rise to no entitlement on his part but of course gave rise to very real concerns as to the genuineness and the appropriateness of the stance taken by the husband, in relation to these proceeding.
His Honour then correctly considered the law applicable to such applications. In the application of the legal principles it was said:
37.The fact is that apart from some entitlements that both the husband and the wife have in relation to superannuation and apart from clothing, personal items and a few chattel items there is nothing for distribution between the parties. The wife’s proposal is that as the husband left the relationship with debts which could properly be attributable to she and he, that he should pay one half of those debts back to her, because she took on the responsibility of the repayment of those debts and took on a liability, to ensure that they were repaid. I could not agree more.
38.The parties commenced the relationship with little or nothing. Tragically from the perspective of the wife and unfortunately of course the children they have concluded their relationship with virtually nothing and were it not for the wonderful assistance provided by [the second and third respondents], it would be a dreadful situation for all to be in, including of course the two young children of the relationship. The parties had little. They contributed in their own way but I have no doubt that the wife’s contribution both financial and non-financial far outweighed any thing financial or non-financial provided by the husband, in relation to the support of the family and provision for the family.
39.It was, as I have already indicated, a situation where without the assistance and support of the maternal grandparents, there would have been a tragedy in the making. The parties left with little at the conclusion of their relationship. As I have indicated there were some superannuation entitlements and some limited amount of personal chattels. There may have been a few furniture items and whilst there appears to have been little if any information provided in that regard, again I would find that they were of little or no real value.
40.The only immediately available asset is in fact not an asset but a liability. There was a debt held by the wife at the time of separation in her name, as a result of the use of credit cards but they were credit cards operated by the wife because the husband was a bankrupt and could not have credit facilities available to him. I find that they were a joint liability of the parties and it is appropriate that, whilst there may be extreme difficulty in receiving any repayment in relation to those liabilities, that the husband has an obligation in relation to repayment and that it should be affected.
41.There is nothing else to distribute between the parties. A splitting order would be of little assistance in relation to superannuation because of course at least one of the policies held by the husband is less than $5000 and therefore statutorily protected. The other is only a matter of a hundred or so dollars greater than $5000 and would not be probably of any real benefit to the wife. The greatest of the superannuation policies is one with [A] of a little under $16,000 and the wife to her great credit does not seek at least at this time to deprive the husband of what little there might be, in relation to future provision for his own support.
42.She suggests that she having worked primarily on a full-time basis during the relationship and subsequent should retain her entitlements in relation to superannuation and I would think that that is an appropriate course to follow. The contributions made by the parties to the relationship were no doubt the best they could do in the circumstances but clearly the contributions by the wife, in light of the apparent difficulties that continued to dog the husband in relation to his own financial difficulties, meant that her contribution was greater.
43.I find that that was the case and that it is certainly appropriate that there be a division of the liability as between the parties and that therefore the order sought by the wife with regard to a payment by the husband to her of $9500, toward the payment out of the liability already met by her is appropriate in all the circumstances. The husband’s suggestion that there was some acquired interest in the [L] property of the wife and her parents and a developing further interest in the [M] property, owned only in the name of [the second and third respondent’s] is in my view, without any base or entitlement whatsoever.
44.One could not imagine a more opportunistic stance than that which is sought to be taken by the husband. He was bankrupt twice during the relationship. There is not a skerrick of evidence as to any contribution by him. The best that can be assessed is, as I understand the indications given by the solicitor for the wife and [the second and third respondents], that during a period of about four years some $3200, 16 payments of $200 were made to the account of [the second and third respondents] from the account of the husband. He suggested before departing Court that many payments were made in cash but of course the onus fell upon him and falls upon him in that regard to prove that and he was not in a position to do so, nor did he challenge the evidence of [the second and third respondent’s] or the wife.
45.His opportunistic stance in relation to any interest in the [M] property does him no credit whatsoever. There is no basis upon which there could be any interest shown and without any hesitation I intend to otherwise dismiss any and all applications by the husband in relation to any claim as to an interest in such property.
In regards to costs, his Honour made reference to s 117 of the Family Law Act 1975 (Cth) (“the Act”), and the general rule that each party to family law proceedings bear their own costs. His Honour found that “it would be wholly appropriate” in this case, the exception to such an order ought be rebutted by virtue of the husband’s conduct and the fact that he was entirely and “spectacularly” unsuccessful in relation to his application.
Reasons of Federal Magistrate Purdon-Sully (9 December 2010)
As the only order of Federal Magistrate Purdon-Sully sought to be pursued on appeal is the costs order, it is necessary to only consider those parts of the reasons relating to costs. Her Honour said:
43.… I am not satisfied, notwithstanding the explanation afforded to me by [the husband] in relation to his non-compliance with orders and the other issues raised by Ms Miller, that he did near enough to prosecute the application that he brought on a timely basis. An I have taken into account, in that regard, his work arrangements, which have him on a cruise ship.
44.As I said, our courts would be in a state of disarray if applications were made by litigants who then did not prosecute those applications on a timely basis. And I do not accept that there would not be, notwithstanding the fact that [the husband] was not always legally represented, that there were not some arrangements that he could have put in place with a friend, relative, or some third party to whom he could, through his iPhone or Skype or telephone or some other mechanism, be able to indicate that he needed certain documents obtained, tax returns lodged, and all of the other sorts of things: documents filed in court, documents provided to Ms Millar, all of those sorts of things, to at least keep his application moving.
…
46.So I have taken into account conduct. I am satisfied that the adjournment of this matter has really come about as a consequence of, as I said, failure of [the husband] to comply with previous orders. And that is part of it. He is wanting, obviously, legal advice, which is the main reason that I am affording him an opportunity, but he is really not ready to proceed, in any event. So taking into account all of those matters, I am satisfied that I should make a costs order in favour of the wife, and I do that. And I am satisfied that the sum of $5000 is more than a reasonable amount of costs in the context of Ms Miller’s preparation for trial.
Submissions of the parties
In the proposed notice of appeals filed by the husband, the grounds of appeal and the orders sought are incomprehensible. The husband’s complaints as explained during his oral submissions are that the costs order was not based on evidence, that the Federal Magistrate misunderstood the evidence and that the property orders were not made on the “true” facts. In addition, it was said that the Federal Magistrate ought to have known that the husband was asserting an equitable interest in the property and therefore should not have ordered that the trial proceed undefended. It is quite clear from the reasons that the Federal Magistrate understood the husband’s claim and the alleged factual foundation.
The husband submitted that he had complied with all disclosure requirements to the extent that he was able.
The husband asserted that the respondents have told “fibs” and that “the evidence shows the opposite”. The husband also complained that the respondents failed to make proper disclosure.
Ms Miller, on behalf of the respondents submitted that the husband had been provided every opportunity to file material in the proper form. It was explained that Federal Magistrate Coker provided the husband with the litigant in person guidelines and that Federal Magistrate Purdon-Sully clearly explained to the husband what would happen if he continued to not comply with directions.
It was said the husband simply ignored his obligation to make full and frank disclosure and that the transcript of the various proceedings will support such a submission.
In response to the husband’s submission that the respondents did not comply with the disclosure requests of the husband, it was said that all reasonable requests were complied with.
By reference to the costs order made by Federal Magistrate Purdon-Sully it was submitted on behalf of the respondents that the order made was appropriate and within in the range of discretion of the Federal Magistrate. It was explained that the amount awarded was less than the actual costs “thrown away” as a consequence of the adjournment, and considerably less than the amount that was sought.
Ms Miller also explained that an offer had been made that each party pay their own costs if the husband withdrew his application against the wife’s parents. The husband rejected such offer.
As to Federal Magistrate Coker’s decision to proceed with the property hearing undefended, Ms Miller submitted that the proceedings were not strictly undefended as the Federal Magistrate had the husband’s material and provided the husband with an opportunity to cross examine the wife, an opportunity which was not taken by the husband. As stated earlier the husband did leave the court room, and elected not to participate in the balance of the trial.
In response to the submission of the respondents that the husband could have participated in the hearing, the husband submitted that he was under the impression that “undefended hearing” meant just that and anything he said subsequently would not be taken into account.
It can be seen from the transcript that there was no rational reason for the husband being of this opinion:
HIS HONOUR: … [The husband], whilst the matter proceeds it proceeds on an undefended basis, but if you have any questions or matters that you wish to put to [the wife], you would have the opportunity to do so now, sir.
[THE HUSBAND]: Sorry, I was under – sorry, your Honour. I was under the understand once it became an undefended basis that I have no right in that, so therefore my only step from here is an appeal under the Family Law Act – I believe it’s number 93 or 95.
HIS HONOUR: Yes. I’m not able, nor is it proper for me to give you legal advice, but there is that option. I provide the opportunity, however, if you do wish to ask question or questions, if you wish to do so. If you don’t wish to do so, that’s perfectly in order, and it’s a matter entirely for yourself as to what course you might follow.
[THE HUSBAND]: I will follow the prior.
...
Conclusion
In addition to the material filed in respect of each proposed appeal I have read the trial affidavits of the parties in an endeavour to ascertain whether, even if there could be a reframing of the grounds, there is some basis for an appeal. I have also obtained and considered the transcript of the proceedings before the respective Federal Magistrates.
The affidavit of the wife and the joint affidavit of the second and third respondent’s were littered with complaints about the husband’s dishonesty since the beginning of their relationship.
In this court evidence is put before a trial judge or Federal Magistrate by way of affidavit. The onus was on the husband, whose application it was for determination, to put the best evidence he could before the court.
In relation to a central issue in the matter, being the assertion of an equitable interest, the husband annexed to his trial affidavit filed 3 November 2010 one “rent receipt”, documenting a payment of $200.00 from the wife to the third respondent. The receipt showed a due balance of $129,100.00 and an amount owing of $128,900.00. This was the evidence upon which the husband asked the Federal Magistrate to determine that there was a trust or some enforceable agreement between him and the wife’s parents to obtain an interest in the land. It was the submission of the respondents that this receipt was a forgery.
The orders made by both Federal Magistrates were proper in the circumstances. The orders made prior to trial in the nature of case management were essential to the orderly conduct of the litigation. The order to proceed with the case “undefended” was the only possible option for the court.
It is as well to recall what was said by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175:
92.The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
93.Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali Toohey and Gaudron JJ explained that case management reflected:
[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard …
(footnotes omitted)
The legal principles governing appeals from discretionary judgments are well known. In House v The King (1936) 55 CLR 499 it was said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
An order for costs is a highly discretionary decision and is difficult to overcome on appeal (see In the marriage of Greedy (1982) FLC 91-250 and In the marriage of Robinson (1991) FLC 92-209).
No grounds of appeal as proposed, or any other likely grounds, would demonstrate that an appeal could succeed from any of the orders.
In view of the circumstances of this case I am of the view that the applications should be dismissed.
Costs
At the conclusion of the hearing submissions as to costs were heard.
Should the applications be allowed the husband asked that the wife and the second and third respondents pay the husband’s costs of and incidental to the applications. In the event that the applications were dismissed the husband asked that no order as to costs be made.
The solicitor for the respondents submitted that should the husband be unsuccessful in his applications that he pay costs fixed in the sum of $5,000.
As the applications have been entirely unsuccessful and taking into account the nature of the applications, the husband should pay the respondents’ costs. To avoid the expense of an assessment process, the costs should be fixed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 13 February 2012.
Associate:
Date: 13 February 2012
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