Austwick and Leandros
[2019] FCCA 3846
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTWICK & LEANDROS | [2019] FCCA 3846 |
| Catchwords: FAMILY LAW – Dispute as to jurisdiction based on contested date of separation – where matter listed for hearing to determine whether a section 90RD Declaration can be granted which establishes jurisdiction – Where separation found to have occurred more than two years prior to the date of filing of the Initiating Application – Where s.44(6) considered as to whether leave to apply out of time should be granted – Where the total nett value of assets found to be approximately $1,000 – where there is no utility in leave to apply being granted in those circumstances – where applicant appears by telephone from overseas – where adjournment sought and refused – where injunctive relief was obtained at the first Court event – injunctions discharged – costs sought and considered – costs ordered. |
| Legislation: Family Law Act 1975, ss. 44, 44(1), 44(2), 44(3), 44(4), 44(5), 44(6),78, 79A, 79, 81, 90RD, 90SF, 102NA, 117, Evidence Act 1995 (Cth), ss.50 |
| Cases cited: Stanford & Stanford [2012] HCA 52 Tate & Tate(No.3) (2003) FLC 93-138 Tamaniego & Tamaniego [2010] FamCAFC 254 Riordan & Riordan [2012] FMCAfam 1297 Oxenham & Oxenham [2009] FamCAFC 167 Whitford & Whitford (1979) FLC 90-612 Frost and Nicholson (1981) FLC 91-051 Althaus & Althaus (1982) FLC 91-233 John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848 |
| Applicant: | MR AUSTWICK |
| Respondent: | MS LEANDROS |
| File Number: | BRC 4393 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Canberra |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Austwick in person |
| Counsel for the Respondent: | Mr Stagg |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ORDERS
Pursuant to section 90RD of the Family Law Act 1975, a declaration be made that a de facto relationship existed between the parties commencing mid-2012 and concluding no later than 15 August 2016.
On the basis of the above declaration, THE COURT NOTES THAT the proceedings commenced by the Applicant are “out of time” and leave pursuant to section 44(6) of the Family Law Act 1975 is required for the proceedings to be initiated or continued.
Leave to commence the proceedings out of time, or to continue or to maintain them out of time, is refused.
All extant Applications and Responses are dismissed.
The injunctions made by this Court on 9 May 2019 are discharged such that Ms Leandros is entitled to forthwith instruct her attorneys, Farrar Gesini Dunn, to release to her the totality of funds presently held by them in trust pursuant to the Orders which were made 9 May 2019 and now discharged.
The Applicant shall pay the Respondent’s costs of, and incidental to, these proceedings fixed in the sum of $17,206, with such costs to be paid within 28 days of today’s date and, failing payment within that period:
(a)Interest shall then accrue upon the sum at the rate fixed by the Federal Circuit Court Rules 2001 from time to time; and
(b)Ms Leandros shall be entitled to commence proceedings for recovery of that sum, interest accrued thereupon and any costs of recovery in a Court of competent jurisdiction.
Any material held by the parties and/or their lawyers is to be returned to the Registry or securely destroyed at the expiration of the appeal period and absent any appeal having been filed.
IT IS NOTED that publication of this judgment under the pseudonym Austwick & Leandros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
BRC 4393 of 2019
| MR AUSTWICK |
Applicant
And
| MS LEANDROS |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for hearing.
The hearing of the matter has proceeded on a somewhat unusual basis.
The subject matter of the proceedings is, on its face, an application for adjustment of interests in property, with respect to a de facto relationship. There is no dispute between these parties, Mr Austwick, the applicant and Ms Leandros, the respondent, that they were engaged with each other in a de facto relationship. The only dispute is when the relationship commenced and concluded.
The applicant alleges the relationship commenced in or about August 2014 and that it concluded July 2017. Thus, on the basis of the date of filing of the application, 16 April 2019, the applicant’s application is filed in time.[1]
[1] Per section 44(5) Family Law Act 1975
The respondent alleges that the relationship was for a not dissimilar period of time, but commencing and concluding earlier than the applicant alleges. That has some relevance, in that some transactions of moment in this case occurred between mid-2012, when the respondent alleges that cohabitation commenced, in 2014, when the applicant alleges the cohabitation commenced.
The respondent alleges that separation occurred in July – August 2016. The respondent goes on to indicate, in her evidence, that the parties were attempting some reconciliation of their relationship shortly after they physically separated but, to her mind, and as she had communicated clearly on her evidence, (which I accept), that by 15 August 2016, she had both determined for herself that the relationship would not reconcile and had communicated that unequivocally to the applicant and to the world at large. I will deal with those issues shortly.
I have referred to the proceedings being dealt with today on a somewhat unusual basis for a number of reasons.
The respondent appears in person, and is represented by competent Counsel. The applicant appears in person and is unrepresented.
Mr Austwick is, for the totality of this hearing and, it would seem, for the totality of the life of these proceedings before this Court, ordinarily resident in the Country A, where he has a new partner, a new child, and is expecting a second child of that relationship. Accordingly, Mr Austwick has participated in the case today by AAPT link.
Material considered in dealing with the proceedings today
I have read and considered the following material.
In the case of the applicant I have considered his Application Initiating Proceedings, financial statement and affidavit all filed 16 April 2019, together with a further affidavit, which has been filed in Court today, the document not being sworn but, I accept, that it is intended by Mr Austwick to be his evidence on oath. It is one of the several unusual aspects of the case. Mr Austwick had indicated that he had sought to upload the document and file it electronically this morning, but that it had been rejected. If that is so it is appropriate. The document is not sworn and could not be accepted for filing. It is admitted with leave. It is not objected to, although I do not suggest that there would not be valid basis for objection to have been taken.
There is also a document, exhibit R1, an email chain between Mr Austwick and my chambers, not considered prior to the commencement of this hearing, and which sets out a number of matters which might be taken as submissions in support of adjournment. Again, I will return to that shortly.
In the case of Ms Leandros, I have read and considered her Amended Response filed 4 November, 2019, her affidavit of evidence, sworn or affirmed 31 October 2019 and filed 4 November 2019, together with the financial statement of Ms Leandros which was also filed on 4 November 2019.
There were also a number of exhibits, most of which are in the nature of aide-memoires, comprising exhibit A, B and C. Exhibit D comprises a notice to admit facts, and response thereto. Exhibit E is a clear photocopy of a bank cheque requisition, relating to a loan to Ms Leandros’ grandmother, the subject of some controversy in these proceedings.
I have also had regard to an affidavit from Ms Leandros’ grandmother, also filed 4 November 2019.
The aide-memoires are particularly helpful, being analogous to a section 50 Evidence Act 1995 summary. Exhibit A sets out the present holding of property, if it might be so described, or at least prior distribution of property, alleged by Ms Leandros. Exhibit B comprises a table, setting out the allegations of Ms Leandros and the paragraphs of her affidavit and of the notice to admit facts or other documents which speak to that evidence. Exhibit C is a chronology of events.
The evidence in the proceedings can be conveniently summarised by reference to exhibit C, which I incorporate herein.
| Date and event | Evidence |
| 2016 parties move into rental property in Suburb B | Wife's Affidavit (paragraph 26) |
| 17 June 2016 Joint Bendigo Bank account Closed | Bendigo Bank subpoena documents (account …32) |
| 1 August 2016 parties separate | Wife's Affidavit (paragraphs 28 and 29) |
| 1 August 2016 Respondent moves in with her parents in Suburb C | Wife's Affidavit (paragraphs 28 and 29) |
| 15 August 2016 parties separate on a final basis, Respondent remains with parents at Suburb C | Wife's Affidavit (paragraphs 29) |
| 30 August 2016 Applicant applies for job with D Pty Ltd under the name Mr E | Wife's Affidavit (paragraph 7 and Annexure E) |
| 31 August 2016 Respondent organises Lite and Easy deliveries to her parent's home in Suburb C | Wife's Affidavit (paragraph 35 and Annexure AA) |
| 1 September 2016 Respondent tells university about separation | Wife's Affidavit (paragraph 30 and Annexure V) |
| 14 September 2016 Applicant tells Respondent he is going to the Region S | Wife's Affidavit (paragraph 33) |
| 14 September 2016 parties ' dog is injured, taken to vet and then taken to Respondent's new home with her parents | Wife's Affidavit (paragraph 33) |
| 15 September 2016 to 20 December 2016 multiple entries in Bendigo Bank account in the name "Mr Austwick" in Town F, Town G, Town H, Town J, Town K, Town L | Bendigo Bank subpoena documents (account …77) |
| 22 September 2016 Respondent tells GP about separation | Wife's Affidavit (paragraph 30 and Annexure W) |
| 30 September 2016 Respondent applies for return of Bond for Suburb B property | Wife's Affidavit (paragraph 32) |
| 6 October 2016 Respondent receives payment into her St George account labelled “D Pty Ltd”' | Wife's Affidavit (paragraphs 38 and 53 and Annexure LL) |
| 11 October 2016 Respondent sends a text message to a friend about the separation | Wife's Affidavit (paragraph 36 and Annexure BB) |
| 26 October 2016 Applicant send text message to Respondent about earing $1600 per week | Wife's Affidavit (paragraphs 38 and Annexure CC) |
| 27 October 2016 Applicant receives four payments into Bendigo bank account in the name “Mr E” labelled “D Pty Ltd” | Bendigo Bank subpoenaed documents (account …11) |
| 27 October 2016 Applicant applies for accounts with Bendigo Bank under the name “Mr E” using NSW License and address at Town M NSW | Bendigo Bank subpoena documents |
| 28 October 2016 Applicant withdraws $7,000 in cash from Bendigo Bank account in the name “ Mr E ” | Bendigo Bank subpoena documents (account …45) |
| 29 October 2016 Applicant send text message to Respondent about his tax file number | Wife's Affidavit (paragraph 5 and Annexures A and B) |
| November 2016 Wife changes vet from Suburb N to Suburb O | Wife's Affidavit (paragraph 34 and Annexures Y and Z) |
| 5 November 2016 to 25 December 2016 multiple entries in Bendigo Bank account in the name “ Mr E ” in Town K, Town J, Town F, Suburb P, Suburb Q, Town G, City R, etc. (Region S) | Bendigo Bank subpoena documents (account …11) |
| 10 November 2016 Applicant receives payment into Bendigo bank account in the name “ Mr E ”" labelled “ D Pty Ltd ” | Bendigo Bank subpoena documents (account …11) |
| 14 November 2016 parties exchange messages about who is keeping the dog | Wife's Affidavit (paragraph 40 and Annexure EE) |
| 22 November 2016 Applicant tells Respondent he is living in a rural location | Wife' s Affidavit (paragraph 41 and Annexure FF) |
| 24 November 2016 Applicant receives payment into Bendigo bank account in the name “ Mr E ” labelled “ D Pty Ltd ” | Bendigo Bank subpoena documents (account …11) |
| 7 December 2016 Applicant receives payment into Bendigo Bank account in the name Mr Austwick labelled “Ctrlink Newstart” | Bendigo Bank subpoena documents (account …77) |
| 8 December 2016 Applicant receives payment into Bendigo bank account in the name “ Mr E ” labelled “ D Pty Ltd ” | Bendigo Bank subpoena documents (account …11) |
| 9 December 2016 Respondent receives two payments into her St George account labelled “ D Pty Ltd ” | Wife's Affidavit (paragraphs 38 and 53 and Annexure LL) |
| 19 December 2016 Applicant receives payment into Bendigo Bank account in the name Mr Austwick labelled “Ctrlink Newstart” | Bendigo Bank subpoena documents (account …77) |
| 22 December 2016 Applicant receives four payments into Bendigo bank account in the name “ Mr E ” labelled “ D Pty Ltd ” | Bendigo Bank subpoena documents (account …11) |
| 25 December 2016 to 20 June 2017 multiple entries in Bendigo Bank account in the name “ Mr E ” in Suburb T, City U, Suburb V. Suburb W, Suburb X, Suburb Y, Suburb Z, Suburb AA, Suburb BB, Suburb CC, Suburb DD, Suburb EE etc. (QLD) | Bendigo Bank subpoena documents (account …11) |
| 30 December 2016 Applicant receives payment into Bendigo Bank account in the name “ Mr Austwick ” labelled “Ctrlink Newstart” | Bendigo Bank subpoena documents (account …77) |
| 19 January 2017 to 5 September 2017 multiple entries in Bendigo Bank account in the name “ Mr Austwick ” in Suburb X, Suburb V, Suburb AA, Suburb WW, Suburb FF, Suburb GG, Suburb DD, Brisbane,etc (QLD) | Bendigo Bank subpoena documents (account …77) |
| July 2017 date Applicant claims the parties separated | Applicant's Affidavit filed 16 April 2019 |
Each of the allegations contained therein are found as fact by the Court. It is germane, however, to discuss the evidence to some extent, albeit briefly. Following that, I propose to address the issues that are raised for consideration by reference to certain questions that are helpfully and usefully posed in a case outline document, provided by Counsel for Ms Leandros’ evidence.
What is clear and apparent is that in seeking to identify the present legal and equitable interests in property of these parties, there is great controversy. As the High Court was clear in Stanford & Stanford [2012] HCA, it is the fundamental starting point of the inquiry.
What is beyond dispute is the fact that there is a sum of $54,940, presently held in trust by the solicitors for Ms Leandros, and subject to injunctive restraints that were imposed by order on 9 May 2019, the proceedings having been commenced only a few weeks prior by Mr Austwick.
On that occasion, (9 May, 2019) the first Court event, the matter came before the Brisbane Registry of the Court. Injunctions were granted, which precluded the proceeds of sale of a nominated property in Suburb HH in the ACT from being dealt with, other than to deposit them to and hold them in trust with the wife’s solicitors. The proceedings were otherwise then transferred to the Canberra Registry, listed for hearing before this Registry, and trial directions made requiring that both parties file and serve their affidavit material, sufficient to enable address of the matter on 6 November 2019. At that point, the parameters of the trial to occur were not clearly delineated. That is no criticism of the order, it is merely observed.
The matter was dealt with in chambers on 30 August 2019, and for the purpose of varying the trial date, moving it forward a week or so. It was noted, on that occasion, that the issues that would be determined today related to jurisdiction, and subject to such findings as might be made my reference to section 90RD, an application for leave to apply out of time.
Ultimately, the date that was offered with respect to the proceedings was confirmed by the then-legal representatives for both parties as convenient and available. At the point in time that this change occurred Mr Austwick was legally represented. Those solicitors filed a notice of intention to cease acting on 23 October 2019, and have more recently, within the last week, filed a notice of in fact ceasing to act. On that basis, amongst others, application is made by Mr Austwick for adjournment of this trial. That is the first question that will be dealt with.
In relation to the evidence of the parties, it is best addressed by reference to the chronology and filed affidavits. Until such time as leave was given to Mr Austwick to rely upon the unsworn document that is now before the Court, the only evidence filed by Mr Austwick was that which was filed with the Initiating Application. I am conscious in that regard that the affidavit filed at the commencement of the proceedings was intended to serve two purposes. Firstly, to address Federal Circuit Court Rules requiring that an affidavit be filed, sufficient to identify issues in dispute.[2] Secondly, it was intended to support an application for ex parte injunctive relief, leading to the restraints referred to above. Of course, any such application is governed by the principles discussed by the Full Court in Stowe & Stowe (1981) FLC 91-027,[3] requiring full and frank disclosure of all matters that would be germane to the determination of relief. I would have some concern that the affidavit did not meet the necessary or requisite standard in that regard, although nothing turns upon it. The relief was granted, and the matter is now determined at the earliest opportunity.
[2] Rule 4.05 Federal Circuit Court Rules 2001
[3] And Rule 5.03 Federal Circuit Court Rules 2001
The affidavit filed with the Initiating Application is somewhat difficult to follow, but I accept that submitted by Mr Austwick, at least in part, that it was prepared hurriedly. To the extent that Mr Austwick seeks to explain away dramatic inconsistencies between that contained within the initial affidavit and subsequent evidence of submissions, I am not so generous. The document is sworn and on his oath. Mr Austwick avers to its truth. Thus, when there are inconsistencies, and there most assuredly are, they do not assist Mr Austwick’s credit.
Mr Austwick refers to the primary assets of these parties, to the best of his knowledge and recollection, comprising four parcels of real estate, or their proceeds of sale. The reality would appear to be that at the time that the application was made, the parties did not own any real estate. It had all been sold. Mr Austwick refers to his understanding of the sale of those properties. To the extent that there may be inconsistencies and inaccuracies involved in the amounts alleged, that might be explicable, noting that the parcels of real estate were held in the name of the respondent. That was, it would seem from the evidence, by design as between the parties, whether as a consequence of certain business dealings or otherwise intended to ensure the properties were safe from attack by creditors of Mr Austwick or otherwise.
As the Full Court has observed in Mayne & Mayne [2011] FamCAFC 192, it is not the Court’s role to conduct an audit of the relationship. Also, as the High Court has observed in Stanford, again, the Court must first ascertain the legal and equitable interests in property of the parties before determining any other aspect and referable to a determination as to whether it is just and equitable for any order to be made.
In relation to the property at Suburb HH, that which gave rise to the application for injunctive orders, it being the last property sold or disposed of, Mr Austwick describes that he believes the net proceeds of sale of that property were in the vicinity of $190,000. That simply is not so. The net proceeds of sale of that property are in fact $54,940, after payment of mortgage and a number of other expenses.
Mr Austwick refers to the sale of a property or properties at Suburb JJ for $300,000. It is the evidence of the respondent, corroborated by documents relating to the sale and dispersal of funds, that the net proceeds of sale, after paying the amount of expenses, were $236,298.06, of which, $120,000 was paid to or retained by the applicant. $100,000 was paid to the respondent’s grandmother, who was owed a sum of money and $16,298 was retained by the respondent. She deposes that this was largely consumed by many credit cards and other debts.
Thirdly, Mr Austwick refers to the proceeds of sale of a parcel of property at Suburb KK, although in reality, it would seem common ground that the parcel comprised seven options. Mr Austwick refers to the sale proceeds being “…about $350,000”.
The evidence of the respondent, again, I am satisfied corroborated by material annexed to her affidavit, puts the figure at $173,000 received in two separate transactions, one, on settlement and one in an accounting by the agent. Those funds were deposited to a St George bank account in the name of the respondent, but accessible by the applicant. It is suggested that the proceeds were distributed as to $55,000 in payment to the respondent’s grandmother, thus leaving $45,000 repayable to her, $54,583 retained by the respondent and the balance or portions thereof, retained by the applicant.
Fourthly and lastly, it is suggested that a total of $200,000 arose from the sale of four separate properties during 2016.
In addition, Mr Austwick indicates that he is aware that the respondent has unknown superannuation, his own superannuation and that there is a “land rent block” in the ACT held by the applicant under which he asserts he has no equity. Indeed, his financial statements suggest that he is indebted in the sum of $150,000 with respect to arrears of payments with respect to that property.
There is also reference to cars and motorbikes suggested to be in the respondent’s possession. There is no evidence that it is so. There were certainly a number of motor vehicles, some of which were purchased from proceeds of sale of one or other of the above properties, but they have since been sold and, for reasons that will be further articulated, I accept the evidence of the respondent that the proceeds of sale of those assets, particularly a motor vehicle 1, were retained by the applicant. A further vehicle was destroyed, it would seem, and no claim for insurance has yet been made. The applicant asserts that as the vehicle was registered in the respondent’s possession, it is possible for her to do so. Whether it is or not, there is no evidence.
References also made by Mr Austwick in his initiating affidavit to the existence of, “Mr Austwick Proprietary Limited as trustee for Mr Austwick Family Trust.” Mr Austwick’s evidence is clear that the respondent is the sole corporate trustee and that Mr Austwick is the sole beneficiary and the sole shareholder in the company. It has been asserted by Mr Austwick (it is inferred from the affidavit but put directly in submissions today) that the respondent remains the sole director of that company.
The company has been wound up or, in some other fashion, has ceased trading, and it would appear clear from documents produced and annexed by Mr Austwick to his material that the respondent ceased to be a director of that company in April 2016.
With respect to the corporate trustee and the trust itself, the closest one comes to evidence with respect to it, assuming for one moment that it is the vehicle through which the applicant has previously conducted his business affairs, that being a building venture trading as LL Pty Ltd, that business, trust and corporate trustee would not appear to have any value. That is derived from paragraph 9 of the applicant’s affidavit, leave for the filing of which was granted today, which states:
After paying the expenses of moving and depleting the little money I had left at the time –
after the winding up of that business.
The respondent asserts that the collapse of that business and whatever endeavours it has engaged in left a significant indebtedness, whether in the corporate name, Mr Austwick’s name or otherwise, a sum of $2,697,217. Whether that is so or not, I need not pursue, save to observe that it is not suggested that the business or trust have any value at present, nor do they continue to trade.
A significant issue arises as to the acquisition of the Suburb HH property. The applicant’s evidence is that it was purchased in 2012 and that he paid the deposit and that it was acquired in the name of the trust. There is no dispute with respect to the latter. Whether it is the same transaction or otherwise, evidence is led by the respondent (and it is agreed by the applicant that it is so) that $20,000 was transferred by her to the applicant and applied for some purpose.
The applicant asserts that he suffers a disability having been diagnosed with post-traumatic stress disorder, severe depression and anxiety, and that at the time of those diagnoses in or about 2014, corresponding with the collapse of the business, the respondent became the sole director of the trustee corporation and, in fact, became – whether in any form or capacity or otherwise – the applicant’s carer. I will return to that issue also. It is relevant to a number of the questions that require answer.
The applicant asserts, at paragraph 35 of his initial affidavit, that at the time that the parties began living together that he held combined assets worth more than $2 million dollars consisting of a property portfolio, cash, and bank and term deposits. One can only infer by reference to paragraph 9 of the latter affidavit that none of that continues to exist. The other possibility is that some of it may, although there is no specificity whatsoever of what is suggested to comprise that wealth, and nothing further can be gleaned from it. That is an issue of some relevance by reference to authorities such as Burgoyne & Burgoyne (1978) FLC 90-467, Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338.
The applicant asserts that the respondent was, at the commencement of the relationship, a student and owned nothing but a motor vehicle 2. The respondent denies that the vehicle has ever been registered in her name, but was loaned or gifted to her by her family. She does assert, however, that she held savings of $33,000 at the commencement of the relationship, which is certainly consistent with her ability to transfer $20,000 to the respondent shortly after the relationship commenced and in 2013. Indeed, that transaction itself corroborates the existence of the relationship at that point.
The parties are somewhat at odds as to the nature of their relationship and lifestyle. The applicant asserts, (paragraph 36), that he had a significant income and that the parties lived a lavish lifestyle. The respondent denies that is so. The applicant asserts in his more recent affidavit that whilst the respondent was employed and earning an income of $60,000 to $70,000 per annum, that her monies were used for luxuries for herself, such as spas and massages.
The respondent’s evidence, which I accept, is that she contributed her funds (indeed, it is irresistibly so after the collapse of the business in 2014) towards servicing debts of the parties, including the mortgage in relation to the Suburb HH property, the mortgage being in the respondent’s sole name and, thus, she being solely liable for it.
Mr Austwick refers to the purchase in 2017 of the Motor Vehicle 1. The respondent agrees that is so. She asserts that it was purchased with the proceeds of sale of one of the various properties that had been sold.
At paragraph 37 of his first affidavit, the applicant asserts that the proceeds of sale of that vehicle were divided equally. During submissions, he asserts that the respondent kept the lion’s share of those monies but also in submissions asserted that he had kept the majority. It is inconsistencies of this nature that contribute to my acceptance of the respondent’s evidence wherever there is controversy between them.
The balance of evidence led by Mr Austwick in his initial affidavit does not assist a great deal nor speak to the issues that must be determined and the questions that must be answered.
The evidence contained within the second affidavit assists little, save and except to the extent that it corroborates certain aspects of the respondent’s evidence.
At paragraph 37, Mr Austwick again refers to the sale of the Motor Vehicle 1. The vehicle was clearly registered in the respondent’s name and the respondent signed a document, annexure G, permitting its sale by Mr Austwick.
Mr Austwick asserts that the totality of the proceeds were transferred to the respondent’s account. That may be so. He does not identify which account the funds were suggested to have been transferred to.
What is clear is that the applicant had access to a number of accounts that were in the respondent’s name. It is on that basis that the respondent has commenced her evidence, up and until paragraph 24, referring to those very factors - the opening and operation of various accounts, of one sort or another, in the respondent’s name but established and operated by the applicant, including post office boxes, storage units, bank accounts and email accounts.
Accordingly, things cannot necessarily be taken on face value (i.e. that a transaction from an account in one person’s name is necessarily affected by the person in whose name the accounts is held). Again, I accept the respondent’s evidence in that regard.
Complaints are raised by Mr Austwick that various items have either been retained by the respondent or have been destroyed but the respondent being able to claim insurance and waiting until these proceedings are concluded to do so. There is no plausible or probative evidence that would permit such a finding to be made.
The material that is annexed also, as I have indicated, provides some support to the respondent’s version of events, particularly with respect to the relationship.
As regards Mr Austwick’s assertion of disability, he annexes to his material, commencing page 21, a report of a Mr MM, psychologist, dated 19 January 2016. It is a two-page document addressed “To Whom It May Concern”, but headed “Application For Disability Support Pension”. There is no controversy that Mr Austwick has never received a disability support pension. I need not enquire further into the basis for it. It is simply sufficient to acknowledge that it is so.
The report prepared by Mr MM refers to Mr Austwick residing alone. Certainly, the report refers to his being involved in significant interpersonal conflict with various persons, and that Mr Austwick would make a better recovery over a longer period of treatment, referring to various treatments or medications that might be of value.
The second page of the report indicates Mr Austwick is not currently in a relationship:
(He has) very limited social contacts and involvement. Mr Austwick experiences severe anxiety and panic attacks with paranoid ideation. His only interpersonal interactions are with family members and his close friends. Without those persons being involved, Mr Austwick will be socially isolated and withdrawn from (and) interpersonal relationships.
The report concludes with the affirmation that Mr Austwick is unable to attend work or educational training sessions other than for extremely short periods of time. It is not necessary for me to determine whether Mr Austwick continues to experience a disability, save and accept with respect to the issue of adjournment. I will, accordingly, address the issue further at this point and in dealing with that question.
Suffice to observe at this point that:
a)There has been a substantial change in Mr Austwick’s circumstances since the report. He is now a resident in the Country A with his new partner, child and expected child;
b)The report that is provided is now nearly four years old. As to whether it is current or not, I cannot determine.
I am satisfied, however, that Mr Austwick has been able to conduct his affairs today, and it has not been asserted that, for example, Mr Austwick requires a case guardian or anything of that nature.
I do not propose to canvass the evidence in any further detail at this point, but I will touch upon certain aspects of it in addressing the questions which must be answered and addressed in these proceedings. That is, save and except to observe a number of matters that are raised by the respondent which are not addressed in any fashion in the material provided by the applicant.
Firstly, and perhaps significantly, the respondent asserts that a debt of some $80,000 existed at separation or shortly thereafter, being a loan which had been made by either Mr Austwick or the parties jointly, or some entity controlled by Mr Austwick, to a real estate agent, Ms NN. Suit was taken in an ACT Court to recover that debt. The respondent’s evidence is that the judgment was entered, possibly a default judgment, for $80,000, and those monies were repaid to the applicant. The respondent paid the bill for Mr Austwick’s solicitor $2,320.50.
The evidence of the respondent was with the applicant well and truly before his most recent affidavit and the absence of reference thereto, I am satisfied, permits me to accept the respondent’s evidence thus there is a further sum which may well have come into existence in the hands of the applicant.
It is also the evidence of the respondent, that of the $54,940 presently held in trust (representing the remaining proceeds of sale of the Suburb HH property) that those funds or the majority of them are “earmarked”. The respondent’s grandmother Ms OO is still owed $45,000. There is a capital gains tax debt with respect of the property which will consume all but about a thousand dollars of those funds. Thus, the pool that presently exists, accepting that the property which previously existed can be taken into account for the purpose of proceedings for adjustment of interest in property, is potentially as little as a thousand dollars.
Against that background I now turn to and propose to address the questions that are enumerated within the Case Outline provided by counsel for the respondent.
Whether the final hearing should be vacated and an adjournment granted on the application of the applicant;
The first notice of any application for adjournment was received by chambers and, I accept, copied to the solicitors for the respondent on 19 November, 2019. That is one business day ago. The basis for adjournment set out within that document can be summarised as:
a)The applicant is not ready to proceed and wishes to place further material before the Court;
b)The applicant is not present within the jurisdiction and will have difficulty appearing other than by telephone;
c)The applicant is not in a position to afford to travel to Australia for the hearing. I should be clear there is no evidence of any point in time in the future when he will;
d)The applicant has made application for Legal Aid and is expecting to receive a response as to whether a grant will be made in his favour two to three weeks hence;
e)That adjournment is sought to enable preparation for the hearing and engagement of legal representatives subject to and conditional upon Legal Aid being granted. I have some concern as to whether Legal Aid would or could be granted on a means and asset test basis. It is certainly probable that Legal Aid could be made available through operation of section 102NA. There is a final personal violence order in which the respondent is the PINOP and the applicant the defendant. Accordingly, section 102NA precludes cross-examination by the applicant of the respondent and that would trigger the obligation upon Legal Aid Commissions to provide funding;
f)The applicant asserts that he suffers a disability and is unable to represent himself adequately or appropriately. I do not accept that that this is so. No evidence is led that would support that position save the one report of some years of date.
In relation to each of the above I am conscious of that which was stated by Lord Aitkin in Ras Behari Lal v The King-Emperor (1933) LR 60 Ind App 354; referred to with approval and adopted by the High Court in Smith v Western Australia [2014] HCA 3: “Finality is a good thing, but justice is a better”. Justice however, the affording of due process to both parties, must be seen in the above context. It is for both parties, not just one. It must also be seen in the context of what would be achieved by adjournment.
As the High Court has discussed in Allesch & Maunz [2000] HCA 40, what is required to afford due process is a reasonable opportunity to both parties to participate in proceedings.
One complaint raised by the applicant is that his legal representation has only very recently withdrawn. Indeed, their notice of ceasing to act as opposed to their notice of intention to cease acting was filed only one week ago. However, it was filed after the date upon which material was to be filed. Since these proceedings were listed for hearing the applicant has been somewhat delinquent in his obligations with respect to preparation. The respondent has not prepared. Since the matter was commenced on 16 April 2019 the applicant has not filed a single document.
The respondent has prepared her case and thoroughly so. Her material is before the Court. It was, in fact, filed prior to the date fixed by the Court. A rare and unique event in this Court’s experience. That material has been served upon the applicant and it is only one working day before the trial that anything is raised with respect to adjournment or an inability to proceed.
To the extent that the applicant indicates he desires an opportunity to engage in preparation and gathering of evidence, it has been made clear to him on a number of occasions and I repeat, at this time, it is not an opportunity it is a further opportunity.
This matter was listed for hearing expeditiously. The delays in this Court are well known. Those delays have existed for at least 28 years as observed by Brennan J and Harris v Caladine (1991) 172 CLR 84. With the resourcing of the Court only scant lip service can be paid to its lofty objects and principles. Indeed, with its present level of resourcing, workloads having increased dramatically, if not, exponentially since Brennan Js comments, it is not generally possible for a matter of this sort to be brought on for hearing within 18 months.
This matter has reached a hearing in six months. That of itself is not directly relevant to Mr Austwick or the application he makes. But the Court must, in considering any application for adjournment, be conscious of its obligations as discussed in Aon Risk Services & ANU [2000] HCA 27 as well as other High Court authorities of similar nature. The Court’s obligation is to manage its resources for the benefit of all litigants, not just individual litigants.
In this case I am satisfied that a reasonable opportunity has been afforded to Mr Austwick to prepare for hearing. It is a matter for him whether he retains legal representation or not. It may be that he cannot afford to do so. It is one of the complaints. His solicitors in Brisbane were doing the matter, as it were, on spec although that would, based on the evidence as it now sits, be thoroughly ill-advised. That may well have been something that has been discussed but I need not venture into that area of client lawyer privilege.
The complaint is raised by Mr Austwick that if the proceedings had not been transferred from Brisbane that he may well have been able to retain his lawyers. That may be so, but they have been transferred. They were transferred by an order made on the first return date and the matter listed directly to hearing rather than simply transferred for mention and directions.
Mr Austwick has been aware of this listing date for six months. For the entirety of that period he has been outside of the Commonwealth. I do not criticise him for that. He has a family. He is with them, he wishes to be with them, and so he should be. But that does not derogate from his obligation, as the applicant, in these proceedings. A person who has invoked the Court’s jurisdiction ought to use its resources appropriately and expeditiously, he has not.
There has been no impediment to Mr Austwick in preparing his case. Certainly, he has had the difficulty of being self-represented, at least recently, although the notice of intention to withdraw was given at least four weeks ago. Prior to that, and noting that the notice of intention to withdraw was given only a week or so before the date for filing of affidavits, one might expect that something might have begun as regards to preparation. Clearly, it had not.
The other concern that arises, and there are potentially several of them, is the question of what will be served by adjournment. Taking all of the evidence, including the evidence of Mr Austwick, on its face is more probably correct than not, there is little if anything to gain from adjournment. It is irresistible that the legal and equitable interests in property of these parties at this point in time, (as best as they can be understood and ascertained, and in that regard, it is Mr Austwick’s lack of engagement and commitment that makes that task questionable) is around a thousand dollars net.
Adjournment of these proceedings, when there are issues of declarations of relationship under section 90RD, leave pursuant to section 44(6) consequent upon each of those determinations, determination of a substantive property adjustment claim, albeit with net assets of a thousand dollars or potentially so, it is difficult to understand why adjournment would be granted or even sought. Also, importantly it is to be observed that Mr Austwick has been less than diligent not only in preparation but in cooperation.
Litigants have a duty of disclosure as authority such as Burgoyne, Black v Kellner and Weir v Weir make clear, let alone Parts 24 and 14 of the Federal Circuit Court Rules.
In an attempt to prepare the matter and have material available, the respondent has not only prepared her material but has issued a raft of subpoena to produce material that is relevant and which, again, corroborates her allegations of fact. The opposite is the case as regards Mr Austwick.
A notice to admit facts was served upon Mr Austwick seeking to at least limit issues in dispute. Mr Austwick’s response thereto was somewhat contrary to the spirit of disclosure and discovery and mutual cooperation so as to identify, limit and resolve issues. The response provided was, “I will make no admission”. That includes, curiously, admitting things that one would think are entirely non-contentious such as the applicant’s date of birth. All of those factors obviate against adjournment.
In summary:
a)There would appear to be little to be gained by adjournment either as to the merits of prosecution of any claim or the likely preparation of the case on the part of Mr Austwick. If Mr Austwick cannot now afford to travel, there is nothing to suggest that there will be a change in circumstances that will permit him to do so in the future;
b)Secondly, he has had a significant opportunity to prepare; six months. It is his case. He commenced this litigation, not the respondent;
c)Thirdly, I am not satisfied that the other matters raised, such as an adjournment to await determination of an application for Legal Aid funding or a suggested inability to conduct his own affairs are made out, or to the extent that they are they would be balanced against and outweighed by the hardship to the respondent. In that regard one would ordinarily grant adjournment if there was any concern that injustice might arise. I accept and appreciate that Mr Austwick is entitled, should he wish to, to further agitate complaint as to a refusal of adjournment, based upon his suggested disability or incapacity and his desire to obtain representation or otherwise. But one would think that if he wanted those matters taken into account to the full extent that he desires, such as to obtain adjournment, that he might have demonstrated some degree of self-help and cooperation. He has simply done nothing at all. To adjourn proceedings in those circumstances would, I am satisfied, deny due process to the respondent and be an affront to the Court and justice and other litigants.
As the Full Court discussed in Tate & Tate(No.3) (2003) FLC 93-138 an order or direction as to the filing of a document or the provision of a document is an order of the Court with which compliance is expected.
There is no explanation offered other than solicitors could not assist because the proceedings were now in Canberra and Mr Austwick was impecunious and could not meet fees as to why nothing has been done. But the doing of nothing includes not only a complete absence of action in attending to disclosure, discovery, or preparation of evidence or its gathering through issuing of subpoena but an abject obstruction responding to a notice to admit facts by simply saying, “I will admit nothing”. That is not the expectation of litigants in the conduct of litigation before this or any Court.
The other aspect that would arise is the remedy of disadvantage to the respondent by costs.
It would be trite to observe that Mr Austwick is, on his own evidence, a “man of straw”. An order for costs is unlikely to be ever met. All that would lead to is potentially the continuous suspension or stay of these proceedings until such time as the order for costs is met as rule 13.03B would authorise and permit. That would impose even further injustice upon not only the applicant but the respondent. Her life on hold whilst all of this awaits action on the part of Mr Austwick. Accordingly, and for those reasons, I am satisfied that the question must be answered in the negative.
The date the relationship ended and whether a declaration pursuant to section 90RD(2)(d) of the Family Law Act should be granted
A declaration can be made. Indeed, it will be made. However, it will be based upon the evidence of the respondent. The 90RD declaration issue has proceeded on the basis of the evidence of the parties been taken as probably correct than not. It is, essentially, a determination that does not require cross-examination although that is not to suggest that such a determination could not benefit from cross examination in some circumstances.
The only evidence that is available is assertion on the part of Mr Austwick, but corroborated evidence on the part of the respondent. The applicant purports to address corroboration by annexing four letters or emails from friends seeking to suggest that he has suggested that the date of separation suggested by him is correct. That, of course, is not evidence. These are financial proceedings in which the rules of evidence apply. Indeed, the affidavit relied upon by Mr Austwick is not sworn evidence either. The Court has extended some largesse or generosity in that regard.
The evidence of the respondent with respect to the relationship demonstrates action that is entirely consistent with separation at the date she alleges being no later than 15 August, 2016. The respondent’s evidence in relation to the date she asserts for separation commences at paragraph 25 of the affidavit and continues in earnest from paragraph 28 onwards. She makes clear that the parties physically separated on 1 August when she left the then shared accommodation and moved back to her parent’s home where she continues to live. She deposes to certain conversations and a desire, perhaps mutual, to reconcile the relationship.
She gives clear indication, however, of what might be referred to as a severance of the consortium vitae on 15 August 2016 making it abundantly clear in a message to the applicant that things were done. She gives evidence as to changing addresses, changing doctors, changing vets and various other actions that are all entirely consistent with her allegation. Accordingly, that is the date that I accept and prefer as to when the relationship concluded and a declaration will be made, in due course, pursuant to section 90RD that a relationship subsisted between the parties commencing mid-2012 and concluding no later than 15 August, 2016. Thus, the application is out of time.
Whether the proceedings should proceed undefended.
It is not necessary to answer this question. However, the respondent would be entitled to proceed undefended as I have observed already. It is only through the Court’s largesse and a desire to assist the applicant in placing material before the Court, material which he desires to agitate, that his unsworn document, received shortly before the lunch adjournment, has been admitted at all.
Whether leave should be granted for the application to proceed out of time
The answer is no. That is based upon a consideration of the relevant case law and to that extent I incorporate herein commencing at paragraph 163 my understanding of the relevant principles arising from authorities such as Tamanego (supra), Riordan & Riordan [2012] FMCAfam 1297, Morgan & Flanagan [2014] FamCA 348 and others as set out in my earlier decision of Holden & Holden [2015] FCCA 788:
163. In dealing with the substantive issue of leave I am greatly assisted by the decisions referred to above and which have been highlighted by Counsel in their closing submissions. To that end I incorporate paragraphs 145 – 163 (inclusive) of the decision in Tamaniego [2010] FamCAFC 254 as well as paragraphs 25 – (27) inclusive) of Riordan [2012] FMCAfam 1297 together with paragraphs 6 – 14 of Morgan & Flanagan [2014] FamCA 348 all of which are set out below and all of which, I am satisfied, provide a clear and concise identification of the matters which I must address in determining these proceedings.
Tamaniego & Tamaniego [2010] FamCAFC 254
Institution of proceedings out of time
145. In relation to the approach to be taken to the determination of an application pursuant to s 44 of the Act for leave to institute proceedings for property settlement pursuant to s 79, subject to some additional observations, I will repeat some of what I said in Oxenham & Oxenham [2009] FamCAFC 167 (15 September 2009).
146. Section 44(1) of the Act provides that proceedings under the Act shall be instituted by application. Section 44(2) provides that a respondent may, in an answer to an application, include an application for any decree or declaration under the Act.
147. Section 44(3) of the Act provides:
Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 and 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)--the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)--the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
148. Section 44(4) of the Act provides:
The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
149. Proceedings of a kind referred to in paragraph (ca) of the definition of “matrimonial cause” in s 4(1) of the Act are “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them”.
150. As to the procedure to be adopted in hearing an application under s 44(3) of the Act, in Whitford and Whitford the Full Court observed at 78,143:
The hearing of an application for leave to institute proceedings under sec. 44(3) is not intended to be the final hearing of a matter. We do not consider it necessary or desirable to lay down any definitive procedural rules for the conduct of such an application. Generally, the applicant should file adequate affidavit evidence from which the facts appertaining to the relevant issues appear. The respondent should have an opportunity to file an affidavit to answer the applicant's allegations and to adduce material showing why leave to institute the proceedings should not be granted. In appropriate cases, the applicant should have an opportunity to file an affidavit in reply. Cross-examination of either party on his or her affidavit material should be permitted, and there may be occasions, when some oral evidence supplementing the affidavit evidence might be received. If the Court considers it necessary, it may allow an applicant to conduct some investigation into the financial position of the respondent. The parties and the judge hearing the matter will no doubt bear in mind that the only question to be determined is, whether leave should be granted enabling the applicant to institute proceedings, and the extent of the proceedings and any investigation should be regulated accordingly.
The procedure to be adopted was summarised by Boland J in Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413 (per Finn, Boland and Cronin JJ) at 83,676.
151. In Neocleous and Neocleous Fogarty and Nygh JJ observed at 79,914 that: “It has also long been recognised that a hearing of an application under s.44(3) should be summary in character”. Their Honours also observed:
As we see it, the essence of the remarks in Whitford as further exemplified by decisions such as Jacenko, is that the judge must always bear in mind that the only question to be determined is whether leave should be granted to enable proceedings to be instituted and this should govern the procedure before him or her. For that reason it will often be undesirable to allow cross-examination on any issue which will or can be fully litigated at the principal hearing or on any issue which is not immediately relevant to the question of granting leave.
152. In Neocleous and Neocleous, Lindenmayer J observed at 79,917 that it was not necessary for the applicant to be cross-examined about matters going to a prima facie case, but in his view, the trial Judge’s refusal to allow a cross-examination on other issues of delay and hardship, was a denial of natural justice.
153. Although s 44 of the Act does not state what principles should guide the exercise of the discretion to grant or refuse leave to extend time, the discretion is not wholly unfettered. As the Full Court observed in Whitford and Whitford at 78,144 “two broad questions may arise for determination”. First, the discretion is subject to the requirement in s 44(4)(a) of the Act that the court must not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted. Thus, if such hardship is not established then the application for leave must be dismissed. Second, if the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted or refused: see also Hall and Hall and Cox and Cox (1981) FLC 91-068.
154. In summary, there are two questions that have to be considered and the applicant for leave bears the onus on the balance of probabilities. As the Full Court also observed in Whitford and Whitford at 78,145:
If the Court is satisfied that hardship would be caused if leave were not granted, the Court may exercise the discretion which is conferred upon it by sec. 44(3) to grant leave or it may refuse such leave. Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused.
155. In relation to the first question, as to what constitutes hardship, there is considerable authority. In Whitford and Whitford the Full Court said at 78,144:
The hardship referred to in sec. 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
156. In Whitford and Whitford the Full Court went on to consider what the word “hardship” in s 44(4) means and observed at 78,144: “In our view the meaning of ‘hardship’ in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment”. The Full Court then observed at 78,145:
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
157. In Whitford and Whitford the Full Court observed at 78,145: “In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value”. Further, the Full Court observed that the applicant may establish hardship although the applicant is not in poor or necessitous circumstances: see Frost and Nicholson at 76,423. However, the inquiry is not concerned per se with whether the applicant for leave may be suffering hardship. Hardship is not established by showing that the applicant would be marginally better off if leave were granted.
158. In Hall and Hall the Full Court (per Evatt CJ, Fogarty and Yuill JJ) said at 78,627-28:
The case[s] ... have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.
Fundamental to that is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J., 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J. described it as “a reasonable probability of the claim being successful in some measure”.
These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court. It is not necessary to further categorize the nature or quality of that claim, subject, however, to the qualification referred to by Lindenmayer J. in Perkins’ case at p. 78,054 when he said:
I would add only this qualification, that if the applicant’s evidence as to merits of his or her proposed claim is in itself inherently improbable or self contradictory in important respects, or if it is clearly shown by other impeachable evidence (such as undisputed documentary evidence or the testimony of independent witnesses) to be false, then the applicant may be held to have failed to establish a prima facie case notwithstanding that if his or her evidence were accepted there would be a reasonable probability of success.
As Lindenmayer J. said, an application under sec. 44 is not intended to be a detailed hearing of the merits of the proposed claim itself. In Whitford’s case the Full Court also referred to this and indicated the sort of procedure that would generally be involved on such an application (see p. 78,143). It is not a proceeding to determine whether and to what extent the proposed application will ultimately be successful. It is a procedure to determine whether the applicant would suffer hardship if leave were not granted and whether otherwise it is appropriate to grant leave.
Similarly it needs to be borne in mind that the prospect of success need not relate to the whole of the proposed claim. It is sufficient if it relates to some part or aspect of it which in the context of the facts of the individual case is of significance.
It is therefore an inquiry as to whether in the particular circumstances of the case in question the applicant would suffer hardship by the refusal to grant leave which sec. 44(4) permits the court to grant. As all of the authorities point out, the fact that the applicant demonstrates that he or she has a reasonable claim to present to the court is not necessarily the same thing, although that is an important aspect of the matter. That circumstance must then be considered in the light of all of the facts in determining whether at this particular stage the applicant would suffer hardship by the application being refused. That involves amongst other matters some consideration of the then financial and other circumstances of both parties.
If hardship of the required type is established then the court may grant the leave but it has a discretion to refuse to do so and in considering the exercise of that discretion it would take into account any other relevant matters, but basically the question whether there is a reasonable explanation of the delay and the question of prejudice which may have occurred to the respondent as a consequence. Other facts may be relevant in an individual case, such as, for example, any prior order or provision made, and the discretion has to be exercised on the basis of the facts of that particular case. (italics in original)
159. In Frost and Nicholson Nygh J said at 76,424:
I have already indicated my view that had she brought action in time she would have been entitled to a substantive order even if falling short of 50 per cent of the joint assets. To deprive a party of a right to institute proceedings is not per se hardship, but to deprive the wife of a right to action in the present circumstances is to work an injustice, and that is a “substantial detriment”. As the Full Court said in Hall and Hall (1979) FLC 90-679, at p. 78,627, fundamental to the enquiry as to hardship is the question whether the applicant has a reasonable claim to be heard by the court. That is not by itself necessarily the same thing as hardship, but the stronger the applicant’s prima facie claim, the greater the likelihood of hardship if leave were refused. The issue depends on the circumstances of each case, as Strauss J. so aptly pointed out in Mackenzie and Mackenzie (supra). (italics in original)
See also Althaus and Althaus (1982) FLC 91-233 at 77,267 per Evatt CJ.
160. In summary, in order to establish hardship in the relevant sense, the applicant for leave must have a prima facie case to be heard by the court on the merits. This does not require a detailed hearing of the merits of the substantive application, but a consideration of whether there exists a prima facie case on the strength of the applicant’s material.
161. I observe that Dr Anthony Dickey in Family Law (Thomson Lawbook, 5th edition, 2006) observed at page 633:
What constitutes a “substantial detriment” depends upon the circumstances of each case. In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances. The detriment need not, however, be exclusively financial (citations omitted).
162. As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time. The authorities and principles were discussed in Tormsen and Tormsen (1993) FLC 92-392: see also McMahon and McMahon (1976) FLC 90-038; Van der Kreek and Van der Kreek (1978) FLC 90-421 and Coombs and More (1990) FLC 92-175. In summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.
163. Dr Anthony Dickey in Family Law at page 634 set out a useful summary of various considerations that a court may take into account when exercising the discretion to grant or refuse leave including “the strength of the applicant’s case”. Dr Dickey observed:
164. The decision whether to grant leave under s 44(3) ultimately involves a weighing of two competing principles. The first is that spouses should ordinarily commence any proceedings for spousal maintenance or alteration of property interests within 12 months of the date of the divorce or the annulment of their marriage, or within 12 months of their financial agreement or approved maintenance agreement seeking to have effect if this is later. The second is the clear intention evinced by s 44(4) that proceedings for such relief should nonetheless be permitted out of time in order to avoid hardship to a spouse or a child. (citations omitted)
See also Whitford and Whitford at 78,146.
Riordan & Riordan [2012] FMCAfam 1297
25. Section 44(4) of the Act provides two alternative conditions without one of which, leave to institute the proceedings under subsection (3) cannot be given. Section 44(4) states:
“(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.”
26. Section 44(4) makes it a preliminary hurdle for the granting of leave that hardship (or the limited alternative referred to above in the case of maintenance) must be proved. The proof of hardship (or the limited alternative referred to above) is therefore necessary for the success of an application under s.44 of the Act. Upon proof of hardship, the Court is required to consider whether the leave should or should not be granted. It is an exercise of discretion.
27. In Whitford and Whitford (1979) FLC 90-612 at p.78,144 the Full Court of the Family Court of Australia stated:
“[O]n an application for leave under sec 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.”
Morgan & Flanagan [2014] FamCA 348
6. Sections 44(3) and (4) of the Family Law Act 1975 (Cth), in summary, provide that such proceedings cannot be commenced without leave of the Court after the expiration of 12 months after a divorce order takes effect.
7. The Court may grant leave at any time, even if the proceedings have already been instituted, however, such leave shall not be granted unless the court is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.
8. In Whitford & Whitford (1979) FLC 90-612 the Full Court held:
[O]n an application for leave under s 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings...
9. Hardship in the context of the wife’s application means substantial detriment (Hall & Hall (1979) FLC 90-679) and the Court will consider a number of factors:
a. whether on the Applicant’s evidence she has a reasonable case to be heard;
b. the financial and other circumstances of both of the parties; and
c. any other facts of the case relevant to the issue of hardship.
10. After considering the question of hardship, the question to be determined is whether the Court should, in the exercise of its discretion, grant or refuse leave to bring proceedings out of time. Pertinent considerations are:
a. the length of the delay in bringing proceedings;
b. whether there has been a reasonable explanation for the delay;
c. the prejudice that may be caused to a respondent to the application if permission is granted; and
d. any other facts of the case relevant to the exercise of the Court’s discretion.
11. The absence of any reasonable or other explanation for delay in commencing proceedings is no more than one of the relevant considerations. The absence of an explanation does not mean that leave will not be granted (Neocleous [1993] FamCA 44; (1993) FLC 92-377; Carlon & Carlon (1982) FLC 91-272).
12. As the Full Court said in Whitford (supra), having regard to the nature of the jurisdiction which the Court exercises, the power to extend time should be exercised liberally in order to avoid hardship but, nevertheless, in a manner which would not render nugatory the requirement that proceedings should be instituted within a year from the divorce decree.
13. Pursuant to s 81 of the Act the Court has a duty to end the financial relationship of parties to a marriage as far as practicable, and to therefore make such orders to finally determine the financial relationship between parties to a marriage and avoid further proceedings between them where possible. But this is to be balanced against the Court’s power to grant leave to institute proceedings out of time if it is satisfied that not to do so would cause a party to a marriage financial hardship, as referred to above.
14. The questions for determination are:
a. Whether the wife has demonstrated hardship as contemplated by the statutory provision?
b. If hardship is demonstrated then should leave be granted for the wife to commence proceedings for property and/or spousal maintenance out of time?
What is abundantly clear therefrom is that there must be led by the applicant (and the applicant bears the burden of proof) evidence of:
a)A reasonable explanation for delay – that can be addressed shortly. On the basis that the parties each assert different dates and without a specific finding that one party has mischievously or disingenuously asserted at a latter date I would be prepared to accept that the factor is appropriately addressed through that genuinely belief. But,
b)That there was a hardship to the applicant. How that is made out is discussed particularly in Whitford as set out above. It must be made to appear to the Court that the applicant would probably succeed in obtaining an order, not necessarily the order that is sought but an order of some importance, such that the hardship that they would suffer would arise from being denied the ability to prosecute that application to finality.
c)Thirdly, it must be shown that the hardship that the applicant might suffer out ways any hardship the respondent might suffer, although, the hardship of the applicant alone might, in some circumstances, be sufficient.
The applicant seeks to prosecute an applicant whereby an order is sought as follows:
that the property of the parties, [whatever that might be] be divided between the parties so as to achieve an overall division of 95 per cent in the applicant’s favour.
The balance of relief that is sought is not relevant and it either cannot be granted or events have overtaken it, (ie, that an order is sought for sole occupation of the Suburb HH property which has been sold or orders for the resignation of the applicant as a director of the trustee corporation discussed above which occurred some years ago and was fully known to the applicant at the time that he framed his relief through his then legal representatives).
In dealing with hardship it is necessary to have some preliminary consideration of the matters discussed by the High Court in Stanford.
As the High Court was clear – commencing at paragraph 37, and I incorporate the relevant portions of that decision hearing – the Court cannot proceed on the basis that because an order has been sought that it is just and equitable for an order to be made.
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong: “The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
41. Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42, In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
43. By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.
44. When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.
It is not, I am satisfied, a threshold test whereby a party must demonstrate that the case is made out before the case can proceed. That would be nonsensical. A party would need to present and test all evidence before they were then permitted to run their case. It could not be so. What the High Court clearly meant and observed is two-fold.
Firstly, there are circumstances in which it may be inappropriate to deal with proceedings even if the Court is otherwise seized of jurisdiction, (i.e., the parties are married and not separated or are a de facto couple and not separated). Their Honours were dealing with a specific circumstance in that case and addressed it through their comments by observing, as would be apparent from the above portions, that in most circumstances the separation of the parties and, thus, the ending of their ability to jointly use property which they have previously jointly used, irrespective of its registered ownership, would be sufficient to found jurisdiction.
Secondly, as their Honours made clear it is not a matter of entertaining an application merely because it is brought. It must be shown that the applicant has some prospect of successful prosecution. A number of matters touch thereupon.
Firstly, as I have observed to Mr Austwick and counsel from Ms Leandros, throughout I am conscious of the Full Court’s decision in Mayne v Mayne. It is not this Court’s duty to conduct an audit of the relationship once it has ended. As their Honours opined, particularly, Faulks DCJ, the time to remedy such complaints is during the relationship.
The significant issues in the mind of Mr Austwick would appear to be – to paraphrase his positions – that:
a)He came into the relationship with over $2 million of assets and, thus, should not be left with nothing at the end. There is ample authority from the Full Court and High Court that this approach could not succeed. It is clear from the evidence that the $2 million of assets – unparticularised as they are but tied with and incorporated in the trust and business operated by Mr Austwick – have ceased to exist through no fault of the respondent.
b)Secondly, Mr Austwick asserts that he was promised certain things by the respondent. One might infer that this was that he would receive the net proceeds of sale of the Suburb HH property and thus he “deserves” to receive those funds. This Court does not deal with the adjustment of interest in property under the Family Law Act by seeking to enforce contract or promise (although the respondent denies it was so). The Court proceeds on the basis of assessing present legal and equitable interests in property, financial resources and debts and assessing contributions and other adjustments as appropriate by reference to section 90SF.
c)In this case, Mr Austwick also, thirdly, asserts that he has made the sole contribution to any of the tangible assets, all of which have now ceased to exist save and except the sum of $54,940 presently held in the trust account. However, I accept the evidence of the respondent that those funds are very much earmarked. I accept that there is $45,000 outstanding to the respondent’s grandmother and that there is a capital gains tax liability in relation to the proceeds of sale of the Suburb HH property, that which is represented by the trust funds, payable by the respondent and the respondent only, she having been the registered proprietor of the property. In those circumstances, accordingly, the present, legal and equitable interests, to the extent they can ascertained, are, in all probability, a thousand dollars, or thereabouts, plus the party’s very modest superannuation entitlements.
The further compounding difficulty is the abject failure by the applicant to take any necessary or appropriate step to give disclosure, to cooperate, to prepare or to otherwise enable this matter to be properly assessed and progressed. I am particularly conscious of that discussed by the Full Court, again, in Burgoyne, Black and Kellner and Weir v Weir. When a party has so abjectly fails to give disclosure, to cooperate in any way or to place material before the Court that assists the Court in understanding their position, the Court should not be overly cautious in its approach. Accordingly, I accept that in all probability the only asset that can be properly identified, assessed and taken into account in these proceedings is the sum of a thousand dollars or thereabouts.
There is the potential that there may be insurance claims that can be prosecuted but they are, at best, a financial resource. It is possible that there are or were funds held by Mr Austwick. To that extent I refer to exhibit A, the document which purports to set out the distribution between the parties of the proceeds of sale of the various properties. That would make clear that from what is known, and there is much that is not known, but could have been known with Mr Austwick’s better preparation, participation and cooperation, that Mr Austwick has received 87 per cent of the net available property and Ms Leandros, 13 per cent. On that basis alone, noting that the properties that have been sold were held by Ms Leandros as the sole registered proprietor, there has already been something of an adjustment in interests between them. That, of course, is not the end of the matter as the issue that is addressed is whether leave is to be granted to proceed out of time, but it is highly relevant to a consideration of the issue of hardship.
The property that presently exists is extremely modest to the extent that it is known. The property that has been disposed of, and to which I am satisfied both parties have contributed financially, non-financially or otherwise, has been divided between the parties informally. The hardship, thus, that would be suffered by Mr Austwick is difficult to quantify.
What he would lose is the opportunity to prosecute, if it were, ultimately, found to be, a pool of property of $1,000. I am satisfied that the pool can and should be found, at this point, to comprise roughly $1,000 as Mr Austwick has had a more than sufficient opportunity to conduct the enquiries he says will cast light upon issues and demonstrate a lack of credit on the part of Ms Leandros, (although, I make clear no such lack of credit is apparent to the Court). Mr Austwick suggests that given time he would demonstrate that further and additional funds were received by Ms Leandros from the sale of properties which sales she has disclosed. The difficulty with that proposition is, as is set out at paragraph 5 of Mr Austwick’s affidavit he indicates “given time”.
Mr Austwick has had time. He commenced these proceedings and has then done absolutely nothing. Ms Leandros has done everything required of her even though she did not instigate the proceedings. Further, Ms Leandros annexes to her Affidavit documents which, on their face, are not challenged and which corroborate her allegations.
In those circumstances I am not satisfied that hardship is made out at all. To the extent that it might be argued to be made out – lest I am wrong in my assessment that it is not – I am satisfied that the hardship to Ms Leandros would outweigh it. Ms Leandros is trying to get on with her life having met significant and crippling debt.
Certainly, it would seem Mr Austwick also has, whether directly or otherwise, serious and significant issues with debt - in excess of $2.6 million suggested by Ms Leandros to remain outstanding following the wreckage of the building business. They are matters that can be addressed in other fora. Nothing that could be done in these proceedings could possible take into account debt of that magnitude.
To the extent that there might be complaint that the loan from Ms Leandros’ grandmother is not real then, again, the evidence overwhelmingly makes clear that it is. Indeed, there is no dispute raised by Mr Austwick that $200,000 was received. The only issue is whether it was advanced to the business, now not trading, or to Mr Austwick personally.
A bank check was clearly requisitioned and made out in the name for Mr Austwick. He was not, at the time, a director of the trustee company, although he may well have remained a director of the building enterprise. Indeed, it his evidence that he was the sole director of the company which operated the building enterprise. Irrespective of whether the documents that are suggested to be an acknowledgement of debt and personal guarantee are real or not, (Mr Austwick asserts they are not), what is clear is the transaction - $200,000 was advanced and repayable.
Mr Austwick asserts that certain matters should be taken into account to “off-set” that debt. However, whilst this Court does not enforce contract or promise, the repayment of a debt is a matter for contract unless there is evidence to suggest that there was agreement between the lender and lendee that such works or transactions would have off-set the debt. There is no basis for this Court to take them into account in that regard. Accordingly, I accept Mr Austwick’s evidence that the debt is and has been repayable, demand has been made for repayment and that $45,000 remains outstanding. Thus, the property available is extremely modest. I
In all of those circumstances and by reference to the authorities discussed above, I am satisfied that leave should, indeed, irresistibly must be refused.
Whether the initiating application should be summarily dismissed.
I need not answer the question.
Section 17A of the Federal Circuit Court Act invests a specific power to summarily dismiss proceedings. However, irrespective of the power in the Act or any rule of Court, or any common law basis to guiding the approach summary dismissal, I am not satisfied that it is necessary or appropriate. If leave is not granted there is nothing to dismiss. Further, on the basis of the evidence that the parties have led, and accepting it on the basis that it is more probably correct than not, albeit that I accept the evidence of the respondent whenever there is controversy, the matter could be determined on its merits.
I am satisfied that this is one of the few and rare cases in which an argument could be made that the high Court’s decision in Stanford would suggest that the only order available, in light of the present distribution of known assets, 87 per cent in favour of the applicant, would be to dismiss the proceedings. I could not be satisfied that it is just and equitable to make any further order for adjustment in property, that property being $1,000 nett.
That may well fall hardly upon Mr Austwick, who continues to stridently assert that he has made the sole contribution. It ignores a number of reality. It ignores, as is submitted, the reality that Mr Austwick’s own evidence is that from 2014 until separation, which I am satisfied was no later than 15 August 2016, that Ms Leandros was, formally or otherwise, his carer and that he was significantly incapacitated as a consequence of the matters referred to by Mr MM. Accordingly, during that period there was a heightened homemaker and parent contribution and non-financial contribution by Ms Leandros. During that period she was the sole or predominant income earner. She serviced the debts of the parties, including the mortgage encumbering the Suburb HH property.
Thus, thus by reference to authorities such as Jabour & Jabour [2019] FamCAFC 78 and those discussed by the Full Court in Jabour (supra), the myriad of contributions to be balanced must find that Ms Leandros has made contribution. Indeed, it would be probable, that the contribution that would be found would be in excess of the 13 per cent of assets that she has, in fact, received especially bearing in mind she was the sole registered proprietor holding indefeasible title in the parcels that were sold. That was a circumstance that came about with the knowledge and agreement of the parties. It does not preclude an order for adjustment in interest in property being made, but it would speak adversely to the justice of any further adjustment being made by reference thereto.
I am also conscious that the denial of any financial contribution by Ms Leandros is simply disingenuous. She contributed her income, she serviced debt, she introduced savings of $33,000, of which $20,000, as evidenced by receipt of 2 July 2013, passed from her hands to Mr Austwick’s. It is one of many transactions. I do not suggest it is special or requires specific address. It is simply part of the myriad contributions. But it speaks truth to the untruth asserted by Mr Austwick that Ms Leandros has made no financial contribution at all. She clearly has.
Whether costs should be awarded in favour of the respondent, and, if so, whether on an indemnity basis
I am not satisfied that the conditions discussed by the Full Court in Prantage & Prantage (Costs) [2013] FamCAFC 105 would apply in this case. Certainly, there would be an argument to be mounted that it might be so - Mr Austwick’s application has been so ill considered, both as to its timing and that which is sought, a 95 per cent adjustment of a non-specified pool of property. However, I am satisfied, for a number of reasons that I will endeavour to articulate, that it would be preferable to consider the matter by reference to section 117 and on a party/party basis.
Subsection (1) creates what the High Court has referred to in Penfold & Penfold (1980) FLC 90-800 as the general rule that each party bear his or her own costs. That is subject to the discretion reserved by subsection (2) that if the Court is satisfied that it is justified and just that an order for costs might be made. The Court must, in determining each of those issues, have regard to subsection (2a), the prescriptive but non-exhaustive list of considerations.
I need not have any regard to subsections (3), (4), (4)(a) or (5) dealing, as they do, with applications by or involving independent children’s lawyers or child welfare agencies.
I will deal with each of the relevant factors individually.
Financial circumstances of the parties
On its face, accepting that which is led by each party in their statement of financial circumstances, Ms Leandros is in a stronger financial position. She is in paid employment. She has a very slight excess of income over expenses. But it is very slight. She is not earning a substantial wage. She is very much earning an average weekly wage. She could not be described as being financially strong.
She has been somewhat devastated by this relationship. Perhaps not to the same extent as Mr Austwick, whom, if one accepts that the building enterprise operated by him through the company and LL Pty Ltd has come to ruin with a loss potentially of $2.67 million. Comparatively, the loss by Ms Leandros of her $33,000 of pre-cohabitation savings is, at best, modest. But all is relative. She has lost everything as well. She leaves this relationship, accepting her financial statement as truthful, which I do, with little if any savings, extremely modest superannuation and living with her parents, (although I do not suggest that this causes her discomfort or unpleasantness in any fashion).
The funds that are held on her behalf by her solicitors, pursuant to the restraints imposed by this Court, are earmarked for other purposes by and large. The financial circumstances of the parties thus do not assist.
Whether the parties are in receipt of a grant of legal aid
Neither is.
The conduct of the parties
This has real relevance, particularly with respect to justification. Mr Austwick has not done anything required of him to conduct his litigation as litigation is intended to be conducted. He has been obstreperous at the very least in his refusal to make any admission of fact. Particularly when he advances so few facts himself and has filed little evidence.
He has commenced the proceedings omitting from his material placed before the Court, very much contrary to the obligations discussed in Stowe & Stowe, significant aspects of evidence which, if the Court had known that evidence, may well have led to the relief sought being refused. I do not suggest that the Court was misled, but the evidence given by Mr Austwick was less than complete. Certainly, no undertaking as to damages would appear to have been given and it has meant that Ms Leandros has been deprived of the use of the funds available to her, including at a time when she has an assessable capital gains tax bill to pay and potentially a general interest charge accruing. I am satisfied conduct justifies an order for costs. As to whether it is just, that is a difficult proposition. It might involve a fundamentally philosophical discussion of justice. I do not propose to engage in it.
I am satisfied it is just by reference merely to the fact that Ms Leandros has been put to significant expense although I accept that the cost that are agitated on an indemnity basis, $20,000, are modest. The case has been well-prepared, thoroughly prepared and prepared in accordance with the Court’s orders and directions. It is only Mr Austwick who has failed in that regard.
Whether the proceedings have been required by the failure of the party to comply with the previous order
Not relevant.
Whether a party has been highly unsuccessful
Mr Austwick has been. His proceedings, predominantly as to that which he seeks, are misguided. He has not understood the approach that the Court would take in the assessment of contributions in section 90SF adjustments, assuming they are even relevant when at best there is a $1,000 nett potentially available between these parties. He has, however, failed to obtain any order and thus must be described as unsuccessful.
To the extent that Ms Leandros has, from the outset, opposed the proceedings and sought their dismissal, she has been successful. Whilst it is not specifically enumerated in the section, I am conscious as the Full Court has been clear that it is still permissible, indeed, appropriate to consider it.[4]
[4] See for example Davida & Davida (Costs)[2011] FamCAFC 61
Whether a party has made an offer in writing
It would seem there has been ongoing settlement negotiation and discussion with respect to the matter. That has not achieved any resolution. The Court is not specifically taken to any offer of settlement, and that which is suggested to represent settlement discussion is difficult to understand as being that.
What is in fact shown in relation to the matter is an ongoing stream of emails addressed predominantly by Mr Austwick to Ms Leandros, or the solicitors retained by her, which become increasingly oblique, tangential, and offensive (although Ms Leandros from text messages annexed to Mr Austwick’s affidavit is not averse to using foul language in addressing him). However, it is difficult to ascertain any clear offer of settlement and the material that is filed by Ms Leandros, including an email forwarded by her former legal representatives to Mr Austwick, makes clear that that ineffective communication has led to a complete breakdown to resolve matters. Indeed, on 17 April, page 37 of Ms Leandros’ material, an email was sent indicating:
My instructions are:
(1) you have no entitlement to claim further money from Ms Leandros, from the proceeds of sale of Suburb HH or in any other basis.
(2) Ms Leandros will not be making any offer to pay you to “settle” your claims as you were not entitled to receive anything further from her.
Thus, negotiations would appear to have broken down at the very commencement of these proceedings, indeed prior to them.
I am conscious of authorities such as John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848, (albeit determined under the New South Wales Civil Uniform Procedures obligations to engage in matters in a particular fashion, presently absent from the Family Law Act) that such conduct might be a matter that obviates against an order for costs. Whilst it is, perhaps, not reflective of a genuine attempt or desire to find compromise, it is explicable. Bearing in mind that it is that volume of emails and their increasing hostility sent both to Ms Leandros and her lawyers that have predominantly given rise to family violence proceedings in the Magistrates Court. I need not become engaged with the facts of those proceedings, simply to observe that would appear to be the basis of them.
In all of those circumstances, I am satisfied that an order for costs is, as indicated above, justified and just. It is to some extent a pyrrhic victory. It is improbable that Mr Austwick would ever make any payment of costs. Indeed, one of the complaints raised by Ms Leandros is that in prior proceedings involving Mr Austwick and the building company operated by him, that he has been ordered to pay costs in various ACT Supreme Court judgments and has not. That may well be the case on this occasion.
However, it does have some benefit and value. It may be possible, at some point, for Ms Leandros to enforce the order. It may be that if there is further controversy between these parties with respect to these issues, that Ms Leandros might then be entitled to seek to invoke rule 13.03B of the Federal Circuit Court Rules and seek a stay of proceedings until such time as the costs as previously ordered have been paid, thus operating, effectively, as a security for costs in the event of future controversy.
It is not on that basis that the order is made. It is on the basis that the proceedings are simply so ill-considered and prosecuted so poorly and with such misunderstanding of the relevant issues that would be addressed by the Court, that it would be unjust and inequitable for an order to not be made.
In dealing with the quantum of costs that might be ordered by reference to Division 21 of the Federal Circuit Court Rules and schedule 1, I am satisfied that the following items would apply.
a)Item (2) opposing an application, including interlocutory or interim relief up to and including the first return date: $2,802.
b)Court attendance on that date, I would propose to allow, by reference to item 13, a half day attendance: $1,120.
c)Preparation for the hearing, the relevant item for a one day hearing is $4,775, however, I propose to allow additional preparation on the basis of the item for additional days: $1,268. That is on the basis that the abject lack of cooperation and compliance by Mr Austwick has increased the need for preparation on the part of this respondent.
d)There would be the costs of today. It is certainly a full day hearing. It is a matter in which counsel is appropriate and I so certify it. The allowance that is made by item 13 is for the day and without any distinction in relation to counsel. I am satisfied that there should be some allowance not only for counsel but instructing solicitor. It would be inappropriate in a matter of this nature for counsel to appear uninstructed. Counsel is, after all, retained by the solicitor not directly by the client, thus, the person providing instruction must also be present. I propose to allow the solicitor’s fees by reference to item 12: $2241. Rather than an advocacy loading under item 12, I propose, instead, to allow an amount of $4,000 for counsel’s brief fee and preparation.
There would also be disbursements. There has clearly been a volume of photocopying, service fees, conduct money and the like. I do not propose to seek to calculate a specific amount by adding up each page of each document and multiplying it by the rate provided by the rules. That would be artificial and onerous.
What I propose to do is simply to make a broad and general allowance to accommodate service fees on numerous subpoenas, the conduct money paid and photocopying and other incidental expenses in a rounded sum of $1,000. Those amounts total $17,206 and that is the amount I propose to allow and fix.
Accordingly, and for those reasons, orders are made as follows.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Date: 10 February 2020
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