Cornwall and Cornwall - [2008] FamCAFC 177

FAMILY COURT OF AUSTRALIA

CORNWALL & CORNWALL

[2008] FamCAFC 177

FAMILY LAW - APPEAL - Application to extend time to appeal - where husband alleged material had not properly been considered by trial judge - application dismissed.

APPELLANT:

Mr Cornwall

RESPONDENT:

Ms Cornwall

FILE NUMBER:

MLF

6124

1999

APPEAL NUMBER:

2008

DATE DELIVERED:

21 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

20 November 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 February 2005

LOWER COURT MNC:

[2005] FamCA 1251

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

That the application of the husband filed 15 October 2008 seeking permission to extend the time to appeal orders of Joske J made 4 February 2005 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cornwall & Cornwall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 85 of 2008
File Number: MLF 6124 of 1999

Mr Cornwall

Appellant

And

Ms Cornwall

Respondent

REASONS FOR JUDGMENT

The applicant husband appears for himself in these proceedings, as he has done now for some time. Since orders were made by consent in November 2000 for property settlement between himself and his former wife the husband has been endeavouring to set them aside in one way or another. All of these applications have been unsuccessful, and the matter before me is but another attempt to change the original orders made by consent. On this occasion leave is sought out of time to appeal the orders of Joske J made 4 February 2005 striking out the husband’s application under s 79A of the Family Law Act 1975 (Cth) on grounds that it was frivolous and vexatious.
Many of the grounds and allegations have no legal foundation and are irrelevant to any possible ground under s 79A that could ever have existed.
I have read all of the material filed by the husband in this application and all of the relevant material filed by the parties dating back to the original orders in November 2000. I have explored in argument with the husband the nature of his concerns, endeavoured to indicate to him what matters could not possibly be relevant to his present application and to discern what evidence he had in support of his application to set aside orders made by consent. I explained to him that the gravamen of the relevant argument seemed to be that his wife had suppressed evidence which led to the making of consent orders which, he asserts, he would not have consented to had he known about the evidence which she allegedly suppressed.
Undoubtedly I did not persuade him that his other arguments were not relevant and I will deal with them in relatively short compass in these reasons, because it will be apparent immediately that they could not possibly support an application under s 79A, which is the section upon which he relies.
To understand the present application, it is necessary to consider the history of the proceedings to date. The parties were originally married in 1978 in New Zealand and subsequently came to Australia. They have two children who are now adults. The parties worked during their marriage and ultimately separated under the one roof in about July 1998. Shortly afterwards, in November 1998, the husband vacated the former matrimonial home following the wife obtaining an intervention order.
Negotiations took place between the parties and their lawyers following separation over their property division. The parties each filed affidavits and financial statements and the matter was listed for trial before Watt J on 22 November 2000. Before the matter proceeded, further negotiations took place and resulted in orders by consent. The relevant orders are as follows:
(5)That the wife pay to the husband the sum of $103,000 (“the payment”) on or before 22, February 2001 (“the date”).
(6)That contemporaneously with the payment, the husband do all acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all his right, title and interest in the former matrimonial home.
The order was put into effect late February or early March 2001. Both parties were represented by solicitors and experienced counsel.
On 7 March 2002 the husband made application, amended on 13 May 2002, to set aside the orders. The application sought the following orders:
(1)$12,996 the wife did not declare for Family Court hearing on November 22, 2000, she received this March 11, 2001.
(2)$2,013 she declared as a debt to her former solicitor but is a debt on her Shell Mastercard on her child support application April, 1999.
(3)$26,000 superannuation not declared only one scheme declared on her [affidavit] of documents which were Facsimile copies but not certified copies as required, Only front page was faxed to her solicitors.
(4)The wife be charged with minimum of three counts of perjury.
(5)Alternatively, $14,000 superannuation not declared as superannuation total at separation, only $20,000 declared.
Leaving aside the nature of the orders sought as drafted by the husband himself, a financial statement filed by the wife on 31 October 2000 discloses an interest in the Health Super superannuation fund of $32,402. Annexed to that document are two pages from Health Super Scheme (the wife’s employment being at a hospital) being her annual benefit statement as at 30 June 2000 and a contributory estimate at 7 September 2000. The statement indicates the closing account balance as at 30 June 2000 of $32,402.18. The document sets out a death and disablement benefit. The second page of the document sets out various entitlements, including an entitlement at resignation of $19,359.85, a death entitlement of $154,552.32, and a disablement entitlement of a full fortnightly pension of $495.36. It indicates a retrenchment entitlement of $41,014.21 and, importantly, a retirement entitlement which says:
Lump sum multiple
2.110 X salary at 55
2.610 X salary at 60
3.110 X salary at 65
As to the first of the matters raised by the husband, he explained in his affidavit sworn 15 April 2002 his assertion that the wife did not declare $12,997 after tax, being the value of her long service leave on her financial statement as required. The wife responded by explaining that at the time of the orders in November 2000 she was still employed at the hospital and was not intending to take long service leave. She did not have an entitlement until 15 years of recognised service. It was not until February 2001 that she applied and was successful in obtaining a part-time registered nurse position and on termination of her employment was paid out her long service leave entitlement of 19 weeks although she had requested a transfer of it to her new position.
The wife responded to the husband’s assertions regarding superannuation and explained that the amount of $32,402 declared in her financial statement dated 31 October 2000 was correct in accordance with the documents attached. That sum represented the combined total of her employer’s contributions as well as her own personal contributions. The preserved amount on the statement represented the accumulated total. The husband had asserted in his affidavit that her contribution of $26,000 had not been declared on her financial statement and that she had only disclosed $32,402 being the employer total of her superannuation.
From the documents attached, the wife’s explanation seems to be entirely accurate and to the extent that I could discern from the husband that he was now arguing that she had not declared the defined benefit fund that does not appear to be correct either, in that the form clearly states what multiple of salary is to be applied to reach her retirement entitlement.
The husband’s assertion in relation to moneys owed to the wife’s former solicitor is that she stated she owed $2,013 to her former solicitor but her application to Child Support in April 1999 had a total debt of $2,013 on her Mastercard. No further evidence appears to have been filed by the husband to support his contention that the wife did not owe the money to her solicitors or in any event that this was a relevant factor in him coming to the agreement with her that he reached.
The husband then filed a further affidavit in which he made numerous allegations about refusal to provide Mastercard documents, asking for information about how she paid for a new car and seeking that she be charged with perjury. One of the allegations he then made, pursued even now, is that her affidavit of evidence under the heading “Application for costs” contained evidence of negotiations between the parties, which were privileged and should not have been attached. This, it seemed he was asserting, vitiated the order arrived at consensually between the parties.
This was a matter which the husband pressed in argument before me with some vigour. I explained to him that whether or not there was an argument for exclusion of the documents on the ground of privilege, they were clearly annexed in support of an application that he should pay her costs. As the cost application was not pressed, because the judge did not have to hear the proceedings or make any findings, and the orders the parties themselves agreed to did not include an order for costs, the documents attached, whether properly admissible or otherwise, were simply irrelevant to the ultimate decision. Hence nothing further needs be said regarding these documents.
On 28 October 2002, before the husband’s application filed 7 March 2002 could be heard, the husband filed a Notice of Discontinuance. Nevertheless, and despite that Notice, on 26 May 2003 he filed another application seeking an order that the orders made in November 2000 “be dismissed” and that “Property settlement under the Rules of the Family Law Court of Australia be commenced”. This time the assertions in his affidavit in support of that application became somewhat more florid. He asserted that:
An illegal and corrupt and fraudulent Family Law Court of Australia case which does not comply with the Family Law Court Act 1975, any of the Family Law Court Rules or the Commonwealth Rules of Evidence Act and could not be presided over by a Family Law Court judge and disguised as a complaint against my solicitor using only some of the documents from her former lawyer without his knowledge and without him [being] at court, to create a situation that never ever occurred, and not including a Form 17 attached or in her affidavit of evidence, as there is not one.
He asserts that documents were rejected because of perjury and fraud, lack of evidence of her new car purchase or salary packaging account and that she and her lawyer did not turn up at the allotted time on 20 November 1998.
The husband says:
As well all these documents were signed without a Form 17 prior to any negotiations and the wife forgetting about extra money she demanded in a letter from her former solicitor which was also fraud and not declared Just as is everything else in her affidavit of evidence, fraud and perjury.
He requested the immediate intervention of the Attorney-General and the Federal Police so that the wife and her solicitors and barrister could be charged with perjury. He reiterated that she did not declare the correct amount of her superannuation, that her solicitors refused to allow inspection of her documents, that she had never told the truth in her entire life and all her documents had been illegally filed. He requested the suspension of her two solicitors and barristers for breach of professional conduct rules and repeated his assertion that the attachments to her original documents described in paragraph 14 of these reasons should have led to the judge disqualifying himself.
The wife’s more temperate affidavit responded that settlement negotiations had taken place prior to agreement being reached and the orders being made on 22 November 2000. She also indicated that the husband’s behaviour had required her to take out further intervention orders in March 2000 and April 2003.
The orders sought by the husband in that application were that the original orders be varied by increasing the amount payable by the wife to the husband from $103,000 to $303,000 payable within 30 days. It is not apparent from the husband’s affidavit how this calculation was sought to be justified.
This application came before Joske J on 4 February 2005 for hearing. His Honour described the background and the negotiations which led to the orders being made by consent on 22 November 2000. He described the first application and the Notice of Discontinuance. He explained the husband’s application was brought pursuant to s 79A(1) of the Act and said in his reasons for judgment:
Although he did not specify under which sub-section he proposed to proceed, it was clear that the only sub-section having any possible relevance to his application was sub-section A [sic, semble (a)]. Accordingly, the section pursuant to which the husband has made his application reads:
s. 79A(1)
[Miscarriage of justice]
Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:-
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
[…]
the Court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
His Honour went on to say that having read the husband’s affidavit purporting to have been sworn on 10 October 2005 and having heard him make submissions he was satisfied there was no merit in his application. His Honour went on to say “He has made what appear to me to be scandalous and mischievous allegations against his former wife, her solicitors, his former solicitors and the police.” He ordered that the husband be granted leave to amend his application, and that the application be struck out upon the ground that it was frivolous and vexatious.
The husband then filed another application on 18 July 2008 seeking orders under s 79A(1)(a) in exactly the same terms as he had sought when the matter was before Joske J. I do not need to detail the evidence in support of this application sworn by the husband, but suffice it to say that he made the same allegations and produced the same evidence and relied upon the same arguments upon which he previously relied. Although originally filed in the Family Court of Australia the matter was transferred to the Federal Magistrates Court pursuant to s 33B of the Family Law Act and was heard by Riley FM on 3 September 2008. The orders made by Riley FM dismissed the application on the grounds of res judicata and struck out an application for contempt on the grounds that it was irregular. The orders noted that the husband had orally advised the Court that the ground of the application under s 79A of the Family Law Act was that Joske J was said to have failed to consider the affidavit filed in support of the application which he dismissed on 4 February 2005.

The present proceedings

The husband has now filed an application seeking to extend the time in which to appeal the orders of Joske J. The grounds of appeal are that:
(1)Justice Joske was negligent in not reading the now ex-wife’s affidavit of evidence in chief and illegal attachments of letters that were wrongfully supplied for a document signed six weeks later, and illegal attachment of a document and complaining not filed with Form 17s she invented and super documentation she invented. Without an Application for Proposed Consent Orders as well.
It seems clear that despite the fact that all of his attempts to overturn the orders have been unsuccessful, the husband’s sole aim in this appeal is to continue on his path with the arguments becoming less and less relevant to the original issues and more and more diffuse. There is no evidence to suggest that Joske J did not read the affidavit of evidence in chief of the wife, although to be fair to the husband, and putting his case at its highest, Joske J found his material filed in the application filed before him (in 2005) to be vexatious and did not comment on any possible meritorious argument.
In considering the present application I have endeavoured to consider the arguments underlying the application and which were much more discernable when the husband first commenced his proceedings which he subsequently discontinued. I am mindful of the comments in the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 wherein the Full Court said:
A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil & Nott (1994) 121 ALR 148 at 150;.
To that end, in deciding this matter I have ignored the rhetoric and more florid allegations of the husband and endeavoured to go back to the original material.
The Full Court in Joshua & Joshua (1997) FLC 92-767 at 84,440 said:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the Rules will work an injustice to the applicant: Gallo & Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of the Family Court said in Coombs & More (1990) FLC 92-175 at 78,189:
The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.
Accordingly the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation.
The substantive matters raised by the husband regarding his concerns about the original consent orders appear in the earlier, but not later, material. However, considering those arguments, I am not satisfied that the applicant has established that there is a substantial issue to be raised on appeal. In my view, the only one of his grounds that could be said to have any substance is the wife’s superannuation and I am not satisfied on the material presented that he has demonstrated that there was any non-disclosure which led to the orders by consent being made in a form which would mean that they were not just and equitable as required by s 79 the Act.
In any event, there are many factors which impinge upon the way in which a settlement is structured. Normally the Court will not know what particular factor or factors have influenced a party in reaching a settlement. Concessions are made for all sorts of reasons and the Court will normally not know what they are. The Court’s obligation is, on the evidence before it, to be satisfied that the orders are just and equitable. The applicant has not demonstrated that he could, on appeal, establish that there was a substantial issue on which a Court might find in his favour.

I add further that as far as any delay is concerned and the reasonableness of any explanation for it, it is clear that the reason no appeal was lodged until 2008 was because the husband had sought to re-litigate the same issue that was before Joske J and failed. There is in any event a hiatus of three years between the dismissal of his application by Joske J and the reinstitution of proceedings on exactly the same grounds. These are parties of modest means. The original orders were carried out in early 2001 and the litigation should come to an end. In all the circumstances I am satisfied that the application of the husband for leave to appeal out of time against the orders of Joske J on 4 February 2005 is without merit and the application should be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant.

Associate:

Date: 21 November 2008