Cullen and Cullen

[2013] FamCA 768

FAMILY COURT OF AUSTRALIA

CULLEN & CULLEN [2013] FamCA 768

FAMILY LAW – Section 44(3) application granted well out of time.  Unusual circumstances.

Family Law Act 1975 (Cth)

Gallo and Dawson (1990) ALR 479

APPLICANT: Ms Cullen

RESPONDENT:	Mr Cullen
FILE NUMBER:	MLC	2366	of		2013

DATE DELIVERED: 6 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: McIntyre & Statton

COUNSEL FOR THE RESPONDENT: Mr Edmund

SOLICITOR FOR THE RESPONDENT: Lou Castellano Lawyer

Orders

1. That the wife have leave to appeal and file a notice nunc pro tunc out of time in respect of the orders of the Magistrates’ Court at Geelong.

2. That all interim applications and responses thereto are otherwise dismissed.

3. That all applications for final orders be adjourned for hearing before Justice Cronin in the list commencing on 6 March 2014 as the 2^nd case in the list but not before 11 March 2014 at 10 am as a one day matter and that the evidence in chief of all witnesses be given by affidavit.

4. That the matter be listed for mention before Justice Cronin at 9.00am on 28 February 2014 and if necessary by telephone.

5. That by 4 pm on 7 February 2014 the applicant file and serve upon all other parties:

   (a)   an amended application setting out with precision the orders to be sought;

   (b)   the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c) a financial statement that complies with chapter 13 of the Family Law Rules.

6. That the applicant pay all setting down and trial fees by 4 pm on 7 February 2014.

7. That by 4 pm on 21 February 2014 the respondent file and serve upon all other parties:

   (a)   an amended response setting out with precision what orders are being sought;

   (b)   the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

   (c) a financial statement that complies with chapter 13 of the Family Law Rules.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

10. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

11. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

12. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)   The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)   the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

13. That the practitioners for the parties file and serve electronically to ... by 4 pm on 4 March 2014 the following:

    (a)   a concise set of orders to be sought if different from those already filed;

    (b)   a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)   a list of assets and liabilities;

    (d)   a list of objections to evidence upon which rulings are required; and

    (e)   a bullet-point summary of argument in relation to the issues in dispute.

14. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

15. That both parties have leave to rely upon expert witnesses as they are so advised and to the extent that they do so rely, such experts confer and set out in writing where they agree and disagree.

16. That the wife pay the husband’s costs in relation to the application for leave by agreement and in default of agreement as otherwise assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons for judgment this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullen & Cullen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2366 of 2013

Ms Cullen

Applicant

And

Mr Cullen

Respondent

REASONS FOR JUDGMENT

1. I propose to grant the wife’s application with some considerable reservation. 

2. By application for consent orders filed in the Geelong Magistrates Court on 17 April 2012, the parties to this dispute sought orders that were ultimately made the following day – that is 18 April 2012.  Those orders apparently were made in open court, and at a time when both parties were represented by lawyers.  There is no transcript or reasons given by the learned magistrate, but I must conclude that based on the information provided to the court at that time, the learned magistrate was satisfied the orders were just and equitable. 

3. Now, by application filed on 30 July 2013, the wife seeks leave to proceed with an appeal out of time.  Indeed, I add, well out of time.

4. Section 96 of the Family Law Act (1975) (Cth) (“the Act”) provides that an appeal from a decree of a court of summary jurisdiction lies to this court, and it shall be instituted within the time prescribed by the standard rules of court.  Whilst I am not dealing with the appeal, it is important that I take into consideration here that if the appeal was to proceed, it would be heard on a de novo basis.  The court has the opportunity in that de novo hearing to contemplate the evidence, including the exhibits that might have been used in that proceeding.  As such, the application filed by the parties will no doubt become very important. 

5. Rule 22.03 of the Family Law Rules 2004 provides that a notice of appeal including one for which leave is sought must be filed within 28 days after the order appealed from was made. The wife is therefore out of time. She relied upon Rule 1.14 that says the court may shorten or extend the time fixed for a rule or a procedural order.

6. The wife relies on an affidavit filed on 30 July 2013.  In it she said the parties’ relationship had commenced in July 2002, they married in 2003 and separated in December 2011.  She made reference to the fact that there is one child, B, who was born in 2012, and therefore, at the time of separation, the wife was pregnant.  In her affidavit there is significant material in relation to the structure of the settlement.  In my view, much of that is of limited assistance.  What is important is that the wife said that at the time of the separation, as I indicated, she was pregnant.  She found the separation very difficult.  The husband, indeed, too, presumably found the same problem.  She said she was distressed, anxious and experienced difficulty sleeping and suffered from migraines.  She said that after her husband had travelled to the Country C for a month in February 2012, he returned back to Australia, then went to Queensland, and it was only after his return from Queensland that he told her that he wanted her out of the house.

7. The wife attached to her affidavit some evidence of some experts indicating what her psychological difficulties were at that time.  She indicated also that in addition to the psychological problems, she was having difficulty with the pregnancy with the child.  She had high blood pressure and there was a concern about a possible development of pre-eclampsia that ultimately led to the emergency caesarean delivery in April 2012. 

8. The wife then turned to the evidence of how the settlement came into existence and she said that her husband instructed solicitors to prepare papers for her to sign.  She said she told him repeatedly that she did not want to sign anything, but he insisted and told her that she needed to see a solicitor to sign those papers.  The evidence will be tested when this matter goes to trial.

9. The wife then said that she saw a solicitor, whom she named, in Geelong and that occurred on 4 April 2012.  She said and I quote:

   I do not remember much about that meeting.

10. She then said she paid for the solicitor’s account using the husband’s credit card which he had given her for that particular purpose.  Nothing turns on that, but the difficulty I then have, and which is why I have indicated some reservation about all of this, is that notwithstanding there was a meeting on 4 April, that same solicitor attended the hearing and signed a variety of documents indicating a number of very interesting things.  One of them was that he had given advice.  The consent order document that was given to the State Magistrates Court, and which the lawyer has endorsed his statement of independent legal advice on, was a document signed on 4 April by the wife.

11. In that document, she said, and I quote:

    For financial orders, I have read and considered in the case of a marriage section 72, section 79, and subsection 75(2), and whether as a superannuation interest, part 8(b) of the Family Law Act.

12. She then went on to say that she had given estimates in relation to the value of various things, and that those estimates had been given in good faith.  It is that information that the Geelong Magistrates Court no doubt relied upon for the purposes of ultimately deciding that the orders were just and equitable.  Before the wife gives evidence she will contemplate just exactly what she did mean when she signed that statement of truth back in 2012.

13. It is important to also note that at the time that the wife signed that document, she had received a valuation, as she described it, from an automotive consultant about the valuation of what seems to have been controversial assets in this particular case.  Whilst much of the evidence of both parties has been directed to that valuation issue, it does not assist me an enormous amount when I have to make the decision about the leave application.  To the extent that there is some relevance in those various facts, the wife went on to say that she received the money under the orders and she then purchased a unit and she furnished it.  She said she took very little by way of furnishings from the home.  She set out the price of the home and the fact that she has now borrowed money and secured the debt against that house.  She then said that the motor vehicle referred to in the orders was not provided to her, but it was sold and replaced with another motor vehicle, and delivered after the child was born.

14. The wife then set out in her affidavit that she consulted a firm of lawyers after the orders were made in relation to:

    …my concerns about the property settlement.

15. The consultation was in August.  There is no explanation as to why the delay occurred between May and August.  In addition, she then said that on her instructions, her solicitors wrote to the husband’s lawyers in January 2013 – again, a long period of time without really explaining why that occurred.  What was clearly then occurring was some negotiations on a without prejudice basis, and the details of that are not only not stated, but are unnecessary.  It is clear that there was something going on, but the question that that must be directed to is the question of delay.

16. To the extent of the husband’s evidence about any of these issues was relevant, he said he disputed the values placed on the assets by the wife, particularly those relating to what she now asserted was the reason for the review of the orders, and, in particular, denied that there was any incorrect information.  I am not entirely sure that I understand his position in relation to issue about the absence of materials set out in the document, but no doubt that is a matter that can be asserted and canvassed at trial.  Bearing in mind that on an appeal, had it been lodged within time in this case, the wife would have had a right to have the matter heard again.

17. On the question of leave out of time as fixed by court rules, the authority of the High Court in Gallo and Dawson (1990) ALR 479 is pertinent. McHugh J said that the rules of court provided the court the opportunity to enlarge the time for doing whatever act was necessary as the court considered had to be done, and the enlargement of that time could be ordered, although the application had not been made until well after the expiration of the time involved under the rule.

18. His Honour, however, pointed out that the grant of an extension of time under the rule was not automatic.  The object of the rule was to ensure that the rules which had, in fact, fixed time did not become instruments of injustice.  It is that issue that I am focussing on at the moment.  The discretion, according to His Honour, was to extend time for the purpose of enabling the court to do justice between the parties.  His Honour said that that meant that the discretion could only be exercised in favour of an applicant upon proof that strict compliance with the rules would work an injustice for her.  In order to determine whether the rules would work such an injustice, it was necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time.

19. In an application for an extension of time in which to file a notice of appeal, it is necessary to consider the prospects of the success on the appeal.  His Honour concluded by saying it followed that before the applicant could succeed in the application, there must be material that satisfied the court that the refusal would constitute an injustice.  Looking at those various concepts, and they can be described under a number of headings.  The first relates to the conduct of the parties.  The wife seems to assert an inability to make a clear decision back in 2012, bearing in mind that the husband’s solicitor drew the documents.  She said she did not remember what advice she had, and no doubt that will be carefully scrutinised because of the solicitor’s appearance at the court at that time.  For the wife to avoid an adverse inference, she will need to waive the privilege normally that would protect her right not to disclose the discussions with her particular lawyer.

20. The wife asserts that the husband was insistent about the orders, but it is not suggested that that amounted to duress.  It may be, and I am not in the position to so find – the wife’s ability to understand what was going on is the critical question.  As I perceive it, the wife did start negotiations to review that settlement, but it was well after the orders had been executed.  The conduct of the parties, therefore, is not at all of great note in this particular case.  The nature of the litigation in this case is a significant issue.  The proceedings which are the subject of the proposed appeal are principally directed to the division of some very modest assets in relation to a modestly short relationship, but ultimately, the function of the court is to only make an order if it is just and equitable to do so.  On the basis that it is important for there to be justice and equity subjectively determined by the court, it is clear that the problem that this court would not be reviewing what occurred, but rather dealing with it on its own assessed basis.  That has some weight in this determination of the exercise of discretion.

21. If leave was not granted in this case, it is quite clear that the parties’ property settlement is final.  The wife would therefore be denied the opportunity to argue that the decision was not just and equitable in the unusual circumstances of what the court was told and, what I perceive to be the wife’s case, as to what was specifically left out of the negotiations and the orders.  Ultimately the determining factor in this case is the question of the prospects of success.  They are very difficult to assess in this case because as it is a de novo hearing on leave being granted, valuations will be the critical factors.  Much of the landscape has also changed.  The wife seeks, on her calculations, another $120,000, whereas the husband, if his calculations are right, would suggest that such a payment would be at the very high end of the range of possible outcomes.  It is impossible for me, therefore, to say that the wife would not succeed, although I express reservations about succeeding in the sum of $120,000.

22. The important part is that I cannot exclude the possibility that the wife would not succeed, because I cannot determine the disputed factual issue between the parties on the evidence presented. 

23. The husband’s counsel very sensibly argued, and I think very strongly so, that granting leave in this case might open the floodgates for disaffected settlement litigants.  I am not so convinced that this is a case here because the wife is arguing that the outcome was not just and equitable based on the true evidence.  The evidence will only be clear about that if it is tested.  The unfortunate part about it is that if it is a de novo hearing, what occurred in the Magistrates Court may not be all that relevant.  Thus, whilst I have started these reasons as indicating that it is with some significant reservation that I make the order, I find on balance that the discretion should be exercised in the wife’s favour to allow her to at least test that evidence.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 September 2013.

Associate: 

Date:  27 September 2013