Cusack & Cusack (No 3)
[2024] FedCFamC1A 93
•3 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cusack & Cusack (No 3) [2024] FedCFamC1A 93
Appeal from: Cusack & Cusack [2023] FCWA 273 Appeal number: NAA 1 of 2024 File number: PTW 8313 of 2022 Judgment of: AUSTIN, SUTHERLAND & SCHONELL JJ Date of judgment: 3 June 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks to appeal from interlocutory financial orders – Where two of the orders the husband seeks leave to appeal are merely procedural directions and not judgments from which an appeal validly lies – Where the primary judge made an order restraining the parties from bringing any further interlocutory application without the grant of leave to do so – Where the primary judge dismissed all outstanding interlocutory applications not otherwise covered by the remaining suite of orders – Where the husband’s allegations do not vindicate the complaint of apprehended bias – Where the husband complains the primary judge denied him procedural fairness – Where the husband complains the primary judge intervened excessively when he was making submissions – Where the transcript reveals the interventions made by the primary judge were reasonable and proportionate – Where the husband alleges the primary judge failed to give adequate reasons – Where the primary judge correctly cited principles and sufficiently explained the outcome – Where the husband’s ground alleging legal, factual and discretionary errors by the primary judge is not a competent ground of appeal and has no merit – Leave to appeal refused – Notice of Appeal dismissed – Where the wife sought costs of the appeal – Where the husband was wholly unsuccessful – Where the husband conducted the appeal in such a disorganised way that the wife’s costs were increased – Where financial hardship is not a shield against a costs order – Husband to pay the wife’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt VIII, ss 74, 79, 114 and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 67 and 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 and r 13.23
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Family Court Act 1997 (WA) s 244
Family Court Rules 2021 (WA) rr 5, 6, 7, 8, 9, 83 and 171
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Mallory & Mallory [2020] FamCAFC 62
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Tsiang & Wu (2019) FLC 93-911; [2019] FamCAFC 128
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Number of paragraphs: 88 Date of hearing: 22 May 2024 Place: Heard in Perth, delivered in Newcastle The Applicant: Litigant in person Counsel for the Respondent: Mr Ashdown Solicitor for the Respondent: Jackson MacDonald ORDERS
NAA 1 of 2024
PTW 8313 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CUSACK
Applicant
AND: MS CUSACK
Respondent
ORDER MADE BY:
AUSTIN, SUTHERLAND & SCHONELL JJ
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 21 May 2024 is dismissed.
2.The oral application to amend the Notice of Appeal filed on 30 January 2024 is dismissed.
3.The application for leave to appeal is refused.
4.The Notice of Appeal filed on 30 January 2024 is dismissed.
5.The applicant shall pay the respondent’s costs of and incidental to the application for leave to appeal, fixed in the sum of $18,000 pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cusack & Cusack (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, SUTHERLAND & SCHONELL JJ
The parties to this appellate proceeding are engaged in litigation before the Family Court of Western Australia in relation to both their children and their property, which proceeding is not expected to be allocated trial dates for some time.
So far, the parties have engaged in multiple interlocutory disputes, the resultant orders from which have not seemingly served to abate their adversarial ardour.
On 28 November 2023, the primary judge determined the parties’ competing applications for another panoply of interlocutory orders of both substantive and procedural effect.
Subject to the grant of leave to do so, the husband appeals from some of those orders, but these reasons explain why leave to appeal should be refused.
BACKGROUND
The parties married overseas in 2006, moved to Australia in 2009, and finally separated in February 2022.
The underlying proceedings were commenced by the wife in October 2022, at which time she only sought financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The husband expanded the dispute to include the children, invoking Pt VII of the Act, when he responded shortly afterwards.
So far as the parenting dispute is concerned, interim orders were made consensually in September 2023 providing for the children to live with the wife and to spend time with the husband. The children’s permanent residence with the wife is not presently controversial.
In relation to the financial dispute, the primary judge observed this:
15.Notwithstanding the length of time the proceedings have been on foot, the volume of documents filed, and the amount spent on legal fees neither party has adequately defined the relief they seek in the financial case. Neither has even taken the obvious (and essential) step of seeking specific orders setting out which items of property they seek to retain, and which they propose should be retained by the other party. Given that an order expressed as being made pursuant to s 79 but which does no more than purport to divide property in particular percentages without descending into specifics is not actually an order for the alteration of property interests, it is at least arguable that neither party has a valid application pursuant to s 79 on foot.
(Footnotes omitted)
The proceeding was listed before the primary judge on 28 November 2023 for the parties’ outstanding interlocutory financial applications to be determined. Their respective applications were set out within Minutes of Orders, which they each filed shortly in advance of the hearing, and were referred to by the primary judge in the reasons for judgment (at [19]–[22]).
Relevantly for present purposes, the husband’s Amended Minute of Orders, in which all of his prior applications merged, proposed orders for:
(a)the transfer of joint ownership in a parcel of real property to the husband’s exclusive ownership, subject to him re-financing the mortgage with a loan of greater amount than was then owing to enable him to pay an outstanding tax debt, or alternatively, the grant of permission for the existing mortgaged loan to be increased and the extra capital used by the husband to pay the tax debt (Orders 1–2);
(b)the appointment of his adversarial expert as the single expert witness in the proceeding and the acquisition of an updated valuation report from her (Orders 3–10);
(c)an injunction to restrain depletion of the parties’ assets, save for meeting ordinary living expenses (Orders 11–13);
(d)disclosure of certain documents by the wife to the husband (Order 14);
(e)miscellaneous procedural orders (Orders 15 and 16);
(f)the dismissal of the wife’s interim application (Orders 17 and 21);
(g)the wife to pay the husband’s costs of the interim dispute (Orders 18 and 19);
(h)removal of the proceeding from the “Judge’s Defended List” (Order 20); and
(i)such further and alternative relief as the Court deems fit (Order 22)
Having heard their applications, the primary judge made these orders, for which ex tempore reasons were delivered:
1.The Conduct Agreement Order made on 12 October 2023 is received into evidence.
2.The husband is granted permission to adduce expert evidence as to the value of the wife’s interest in [an asset] from [his adversarial expert], and to file her affidavit sworn on 6 October 2023.
3.By 4.00 pm on 12 January 2024, each party must file and serve an undertaking as to disclosure in the usual form, annexing a complete list of the documents in that parties’ possession, custody or control to which the duty of disclosure applies.
4.By 4.00 pm on 23 February 2024, each party must file and serve a Minute setting out with specificity the orders they seek by way of alteration of property interests.
5.The Minutes to be filed pursuant to the immediately preceding order will stand as if a formal amendment of the relevant substantive application or response.
6.The file is to be referred to the presiding judge in chambers on 26 February 2024 for monitoring of compliance with the orders in paragraphs 3, 4 and 5.
7.Until further order, both parties are restrained by injunction from filing any application seeking interim or interlocutory relief in either the parenting or financial proceedings without permission of the presiding judge.
8.The permission required pursuant to the immediately preceding order may be sought by uploading:
(a) the proposed application;
(b)any affidavit proposed to be relied upon in support of the proposed application; and
(c)a letter marked the attention of the presiding judge, setting out the basis upon which the relevant party submits that permission should be given.
9.Any request for permission pursuant to the immediately preceding order will be considered and determined by the presiding judge in chambers.
10.All outstanding interim and interlocutory applications and responses in the financial case be and are otherwise dismissed, save as to costs.
11.The parenting proceedings stand adjourned for an interim hearing before [the primary judge] at 11.00 am on 7 March 2023, and the hearing listed before a magistrate on the same date and time is vacated.
12.The orders made by a magistrate and contained in paragraphs 11, 12 and 13 of the orders made on 12 September 2023 remain in full force and effect.
13.Costs of both parties reserved.
Following the grant of an extension of time within which to do so, on 30 January 2024, the husband filed a Notice of Appeal containing his application for leave to appeal from only a selection of those orders. He found it unnecessary to appeal from all orders because some of his applications were granted. For example: Order 2 concerning the single expert covered his proposed Orders 3-10; and Order 3 concerning disclosure covered his proposed Order 14.
Pursuant to interlocutory applications made by the husband in this appellate proceeding, he was twice (on 16 and 18 April 2024) granted leave to amend the content of the Notice of Appeal, provided any such Amended Notice of Appeal was filed and served by 24 April 2024, with which condition he failed to comply. At the time of hearing, the only filed appeal stood in the form of the Notice of Appeal accepted on 30 January 2024.
At the hearing, the husband orally applied for leave to rely upon an unfiled Amended Notice of Appeal dated 18 April 2024, which had been annexed to his affidavit filed on that date in support of his application to amend the appeal, but leave is refused. The terms governing his permission to rely upon any Amended Notice of Appeal were clear. It had to be filed and served by 24 April 2024. It was not. The husband is confined to the Notice of Appeal in its original form, which causes him little prejudice because his proposed amendments did not vary the grounds of the intended appeal, but rather revised the facts and circumstances upon which he relied to justify the grant of leave to appeal and the nature of the remedial orders he sought. However, leave to appeal is refused and so the proposed remedial orders become irrelevant.
BREADTH OF THE PROPOSED APPEAL
In the Notice of Appeal filed by the husband on 30 January 2024, he asserts that, subject to the grant of leave to do so, the appeal is brought from Orders 7, 8, 9 and 10.
However, Orders 8 and 9 are not “judgments” from which an appeal validly lies under s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) as they do not determine the parties’ rights in any material respect (Commonwealth v Mullane (1961) 106 CLR 166 at 169). Rather, they are merely procedural directions to regulate the future conduct of the proceedings.
To the extent that the husband wanted to expand the appeal to also challenge Order 13, he is not disadvantaged because it is not a “judgment” capable of supporting an appeal either. It does not determine the parties’ competing applications for the other to pay their costs of the interim dispute. Order 10 saved the costs dispute and Order 13 then reserved it for subsequent determination by the primary judge. The issue of liability for costs in respect of the interim dispute must instead be pursued with the primary judge in the exercise of original jurisdiction.
It necessarily follows that only Orders 7 and 10 are capable of being appealed.
Order 7 restrains both parties from initiating any further interlocutory dispute without the primary judge granting leave to do so, which order conceivably trammels the husband’s right to bring subsequent applications whenever he deems fit.
Order 10 dismisses all outstanding interlocutory applications not otherwise covered by the remainder of the suite of orders, which order had the effect of dismissing the husband’s sundry applications within his Minute of Orders for:
(a)interim property settlement orders, being proposed Orders 1 and 2 (referred to in the reasons at [19(a)], [19(b)] and [19(c)]);
(b)injunctions restraining the parties from depleting their assets, being proposed Orders 11, 12 and 13 (referred to in the reasons at [19(g)], [19(h)] and [19(i)]); and
(c)the removal of the original proceeding from the “Defended List”, being proposed Order 20 (referred to in the reasons at [19(l)]).
Both the Notice of Appeal and the husband’s Summary of Argument articulate vast complaints venturing well beyond challenges to Orders 7 and 10, so the parts which do stray past any relevance to Orders 7 and 10 are ignored.
Two days before the appeal hearing, the husband emailed another 30 pages of written submissions to the Court in respect of Grounds 1 and 4. The submissions were not filed and so, one day before the appeal hearing, the husband filed an Application in an Appeal seeking leave to rely upon the written submissions. The application was supported by his contemporaneously filed affidavit, which fails to explain the need for the additional written submissions.
The husband has already been granted two indulgences: first, by the appeal registrar allowing him to exceed the Summary of Argument page limit imposed by r 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”); and secondly by Austin J extending the time for him to file his Summary of Argument by several weeks. The Rules do not permit an appellant to file additional written submissions at whim, let alone so close to the hearing (r 13.23(1)(a)). The husband’s application was refused and is now formally dismissed. Irrespective, the husband repeatedly refused to comply with directions to confine his oral submissions to those which reasonably fell within the ambit of both the lengthy commentary contained within the Notice of Appeal and the submissions within his Summary of Argument (r 13.23(4) of the Rules). Our attempt to implement that tight procedural approach was consistent with the statutory imprimatur to deal with litigation quickly, inexpensively and efficiently (ss 67(1), 67(4), 69(1) and 69(2)(e) of the FCFCA Act). After nearly two hours of uncontained oral submissions, the husband was stopped.
LEAVE TO APPEAL
Order 7 is procedural in nature.
Order 10 is an order with blended substantive and procedural implications.
Both orders are “prescribed judgments” (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)) of a State Family Court, which require the grant of leave to appeal from them (s 28(3)(e)(ii) of the FCFCA Act).
The grant of leave to appeal ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
As the following discussion of the intended grounds of appeal reveals, there is no reason to doubt the correctness of the primary judge’s decisions. Nor could the husband point to any injustice, let alone substantial injustice, he would suffer by the operation of and his compliance with either Order 7 or Order 10. Therefore, leave to appeal should be refused.
THE PROPOSED APPEAL
The intended appeal comprises five grounds, pleaded as follows:
Ground 1: His Honour failed to afford procedural fairness and/or natural justice, having regard to:
1) There was excessive intervention by the Judge; and/or
2)The Judge erred in that he did not give the parties a reasonable opportunity to present their case on all applications for the hearing, and the parties was therefore denied procedural fairness; and/or
3)The assistance given to counsel for the wife during his submissions; and/or
4) The unnecessary admonition of the husband during the hearing; and/or
5)The judge’s demeanour towards the [husband] during the hearing; and/or
6)The Judge erred by exercising its power summarily to make orders 7 to 9, in circumstances where the Court had not satisfied itself that each party had filed and served the evidence relevant to the orders for injunction for filing new applications without leave; and/or
7) The judge erred:
i.by making findings that it’s “an administrative decision and not amenable to appeal” and as such no arguable issue of fact or law in circumstances where there are issues of fact and law that needed to be assessed; and/or
ii.in exercising his discretion by denying the respondent parties an opportunity to file and serve evidence in support of the matters of fact and law.
Ground 2: His Honour erred law which include inter alia a failure to give adequate reasons which render it impossible to determine error in law.
Ground 3: His Honour made mistakes of fact and/or law. He failed to consider relevant materials and considered submissions that could not be supported by evidence. He also incorrectly assessed relevant materials.
Ground 4: His honour had an apprehension of bias.
Ground 5: His Honour made a decision that was plainly wrong.
(As per the original)
The pleaded grounds are accompanied by a lengthy narrative, supposedly explaining why leave to appeal should be granted, which runs to about 27 pages in length. Only small portions of the narrative relate to Orders 7 and 10 – and only then under the cover of Grounds 1, 2 and 3.
The only submissions made in respect of Ground 5 are that Orders 7 or 10 are “plainly wrong” and so do not usefully elaborate the ground of appeal in any way. The ground remains a bare assertion and so may be disregarded.
Ground 4 is a complaint of apprehended bias and will be addressed first, as required (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612).
Ground 4 – apprehended bias
The particulars to Ground 4 in the Notice of Appeal only complain of an apprehension of bias arising from the contents of the reasons for judgment delivered by the primary judge and, in particular, where the primary judge makes reference (at [75]) to the husband’s application for his costs of the hearing being “problematic in circumstances where he is self-represented”. But in that respect, the primary judge was quite correct. The husband’s costs application was indeed “problematic” because he was self-represented and parties in litigation, even if qualified lawyers, are not entitled to their costs of the litigation (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [1], [3], [39], [57], [63], [93] and [99]). No reasonable apprehension of the primary judge’s bias against the husband could be rationally discerned from the correct recitation of a legal principle.
Despite multiple complaints of the primary judge’s undue interventions, adverse demeanour towards, and criticism of the husband during the hearing, yet to be addressed under Ground 1, the husband made no application for the primary judge’s disqualification on grounds of apprehended bias. The husband asserted in the appeal that such an apprehension of bias would have been perceived by a reasonable bystander at the hearing on that day. Without now implying any grounds validly existed for making such an application, even if they hypothetically did, the husband voluntarily abstained from making, and thereby waived, any disqualification application (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
Although this ground of appeal is confined to only the apprehension of bias, the husband’s Summary of Argument impermissibly implies an expansion of the complaint to the actuality of bias, which he contends is evident from his denial of procedural fairness and the “pervasive extent of errors of law and/or facts in the hearing”. When challenged in respect of that implication, the husband confirmed the complaint was confined to an apprehension of bias and disavowed any complaint of actual bias. Even so, such facile and unparticularised allegations do not vindicate the complaint of apprehended bias.
Ground 1 – denial of procedural fairness
The particulars to Ground 1 in the Notice of Appeal assert a series of broad-ranging generic complaints but, in so far as the complaint relates to Order 7, the particulars only:
(a)refer to one small portion of the transcript where the primary judge invites the parties to consider and then make submissions about whether an injunction should be made to restrain them from filing further interlocutory applications indiscriminately (at p.8–9 of the Notice of Appeal); and
(b)allege the primary judge erred by “exercising its (sic) power summarily to make [Order 7], in circumstances where the Court had not satisfied itself that each party had filed and served the evidence relevant to the orders for injunction for filing new applications without leave” (particular (6) to Ground 1).
Both complaints are demonstrably false.
The complaint of the primary judge denying the husband procedural fairness by summarily making Order 7 without him having been given the chance to adduce evidence in rebuttal is difficult to comprehend. The husband could not possibly have led any extra evidence on the issue to make any difference at all. The primary judge posited making the injunction due to the extensive litigious history, evident from the Court record, and the question of whether or not the injunction should be made hinged entirely upon the parties’ submissions about it.
The primary judge foreshadowed making Order 7 before the hearing even commenced and then afforded the parties the chance to be heard in respect thereof, as this excerpt of the transcript ably demonstrates:
HIS HONOUR: All right. I’m also considering an interim order restraining both parties from filing any further interim or interlocutory application in either the financial or the parenting case without my permission. And both parties might want to address that in their submissions.
…
HIS HONOUR: And for your benefit, what that means is not that you would be prohibited from trying to file an application. The door of the court wouldn’t be shut. But the application filed would be referred to me for consideration as to whether it should be accepted for filing or not. …
(Transcript 28 November 2023, p.8 lines 9–14 and lines 19–24)
Following that exchange, the husband began his submissions but said nothing about the primary judge’s proposal to make Order 7. That was his prerogative. The rules of procedural fairness only require a party to be given an opportunity to be heard. It is beyond the control of the judge whether the party avails him or herself of the opportunity (Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191).
The husband’s appeal is replete with allegations of the primary judge’s unwarranted interjections, but his Honour’s invitation for the parties to contemplate an order in the form of Order 7 was not an interjection because the husband’s submissions had not then even commenced – it was an issue raised before the hearing properly began.
The primary judge was not precluded from making Order 7 merely because neither party applied for an order in like terms, as the husband sought to contend. As the primary judge correctly observed, the Family Court Rules 2021 (WA) (“the WA Rules”) require litigation to be resolved in a just and timely manner at reasonable cost, which objective the litigants and the lawyers must help achieve (rr 5, 6, 7 and 8). More particularly, the Court may make orders of its own initiative to achieve that objective (r 9). When considering whether to make any interim order, the Court must consider the main purpose of the WA Rules (r 83(d)).
With respect to Order 10, the particulars of Ground 1 refer to tranches of the transcript where the primary judge challenged the husband about, first, the efficacy of his application for the injunction to restrain the depletion of assets and the sufficiency of the evidence adduced in support of it (at p.11–16 of the Notice of Appeal), and secondly, the legal principles which govern interim property settlement orders and the evidence about the tax instalment payment plan (at p.13–14 and 19 of the Notice of Appeal).
The flavour of the husband’s complaint is that the primary judge intervened excessively when he was making submissions, but the tranches of transcript the husband recited only show the primary judge debating the husband about the merit of his application and the sufficiency of the supporting evidence. As a general observation, his Honour interjected during submissions for clarification, to answer direct enquiries, and to identify deficiencies in both the evidence and the proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd at [111]–[112]; Antoun v The Queen (2006) 224 ALR 51 at [27]; Johnson v Johnson (2000) 201 CLR 488 at 493 and 504–505). The husband was not importuned. Occasional instances of mild exasperation aside, the transcript shows the interventions were reasonable and proportionate. We reject the submissions to the contrary.
This ground has no merit in respect of either Order 7 or Order 10.
Ground 2 – failure to give adequate reasons
With respect to the alleged inadequacy of reasons for Order 7, the particulars within the Notice of Appeal relevantly say this:
41.The judge erred to deliver adequate reasons in relation to making injunction orders, whereby the parties are not permitted to file new applications without permissions (Order 7-9 on 28 November 2023).
a.Noting at [67] of reasons his honour state “the husband’s approach to the litigation to date is not consistent with the main purpose of the Rules, and that his correspondence with the Court to date has been both frequent, and at times inappropriate.”, whilst notably at par [75] of his honours reasons for decision he stated: “At this point, criticism of the conduct of both parties as litigants cannot be confidently said to be misplaced.” His Honours’ findings were not only inconsistent, but demonstrated a lack of understanding the facts relevant in the proceedings as outlined in written evidence for the hearing.
b.Maintenance of the rule of law, should be administered in open, transparent and accountable courts, it is an essential party of the fight against injustice. This will right will be compromised under orders 7 to 9. The reasons for not providing permission to file a new application will not be known to the party seeking permission.
c.The significance of the restrictions warranted parties to be provided more extensive and appropriate reasons. The reason given is significantly inadequate as it fail to outline the judges process of thought, law, authorities, evidence and submissions considered and undermine natural justice. (Overlap Ground 1 and Ground 3).
(As per the original)
In his Summary of Argument, the husband submitted:
64.The [primary judge] failed to provide adequate reasons for making orders 7-9 on 28.11.2023 in circumstances where there were no applications for the orders and no statutory prohibition were applicable; and/or
65.The reasons failed to identify the jurisdiction applied, rendering it impossible to determine error in law …
(As per the original)
However, the primary judge said this about the injunction restraining the indiscriminate filing of further interlocutory applications:
66.The parties also both need to bear in mind the duty of the Court to manage its own resources to ensure that they are available to all litigants, and not merely those who make frequent demands on them. They also need to bear in mind that the main purpose of [the WA Rules] is to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”
67.The manner in which the proceedings have progressed to date is regrettable. Apportionment of responsibility for that between the parties, or (at least in the husband’s view) the court or particular judicial officers, would be futile. It may, however, fairly be noted that the husband’s approach to the litigation to date is not consistent with the main purpose of the Rules, and that his correspondence with the Court to date had been both frequent, and at times inappropriate.
68.I record, by way of what is simply the most immediate example, that this morning the husband foreshadowed making an interlocutory application for an order that the wife pay his costs to date on an indemnity basis. I alerted him to the obvious difficulties with such an application so that he could, in an informed manner, reconsider his expressed intention.
69.The parties are entitled to access to justice. They are entitled to seek to have applications heard. There is presently no order in place requiring them to seek permission to file any further interlocutory or interim application other than in the parenting case; in my view, in the absence of such an order the rejection for filing of applications unless they are obviously deficient in form is problematic.
70.I propose to make an interim order precluding both parties from filing any further application for interim or interlocutory relied without permission. That permission may be sought by filing the proposed application and any affidavit proposed to be relied upon in support of it, with a covering letter setting out the basis upon which the party applying asserts that permission should be granted. Any such request for permission will be considered by me in chambers.
Once it is accepted the primary judge had ample power, either expressly or impliedly, to make such an order to thereby enable the Court to act effectively within its jurisdiction (s 244 of the Family Court Act 1997 (WA); rr 5, 6, 7, 8, 9, 83 and 171 of the WA Rules; Williams v Spautz (1992) 174 CLR 509 at 518), we are unable to accept the husband’s submissions that such reasons are inadequate to explain the exercise of such power. The parties have evidently used a disproportionate share of the Court’s resources since the litigation started and the primary judge was entitled to curb their litigious vigour, which restraint was fairly explained. His Honour was only alerting the parties to their need to focus on the resolution of the substantive cause and avoid the proliferation of interlocutory skirmishes.
With respect to the dismissal by Order 10 of the husband’s application for an injunction to restrain the depletion of assets, the particulars in the Notice of Appeal relevantly assert this:
36.The judge erred to deliver adequate reasons for determining to dismiss the respondent husband’s application that:
i.The Parties, be restrained from depleting, transferring, spending, or otherwise disposing of any of the marital assets, whether held in joint or separate names, excluding necessary living expenses up to the normal expense levels, until trial and determination of this case. (Order 11)
ii.The parties be retrained from entering into any conduct or financial transactions that will adversely impact the net assets in the pool by greater than $40,000 without the express permission of the Court. (Order 12)
iii.The Applicant be restrained to utilise all profit share in excess of her fixed profit allocation of $260,000 per annum to discharge of the applicant’s tax obligations. (Order 13);
iv.Such further and alternative relief as the Court deems fit. (Order 22)
b.The Judge’s reasons stating the orders sought are to “vague” and evidence “insufficient to support the exercise of the discretion” at ([55]), is inadequate – which render it impossible to determine error in law and/or fact.
c.His honour did not adequately outline in the reasons why he founded the evidence (written and verbal) to be “insufficient” and orders sought to “vague”. Also refer Ground 3.
(As per the original)
In his Summary of Argument, the husband submitted:
40.The [primary judge] referred to relevant legal principles at [53] in his reasons, but then fail to refer to relevant evidence in front of the court, and fail to make any or all of the relevant findings of fact as outlined at [145] to [181] below, and/or the at [5.3] of Amended Notice of appeal filed on 18 April 2024, the judge failed to “enter into” to the fundamental issues of:
40.1The likelihood of success to justify in the circumstances the preservation of the status quo; and
40.2The danger or risk of dissipation of or dealings with assets which will frustrate any judgment in the husband’s favour; and
40.3The process of weighing the prejudice to each party on the alternative outcomes;
41.Furthermore, given the inadequate reasons, it is impossible for the parties to know whether the judge considered legal principles under s.34(1) of [the Act], s.23 of the Federal Court of Australia Act 1976 and Mereva orders, if at all, in exercising his discretion; and/or
…
43.The [primary judge’s] pathway of reasoning in exercising his discretion cannot be discerned, in the context of evidence and submissions made, it is unknown to the parties and not evident in the judgement what evidence and /or submissions were accepted or rejected and the basis for this, for example, evidence and submissions clearly pressed that the husband did not sought to dictate the wife’s use of her income; and/or the [primary judge’s] reasons for not using his power to amend the terms of injunctions sought, which he considered “vague” and/or “too restrictive” – despite the husband asking him to amend the wording of the relief sought as the judge see fit in the circumstances …
(Footnotes omitted)
In so far as the reasons for judgment address the husband’s application for the injunction to restrain depletion of the parties’ assets, the primary judge said this:
51.The husband seeks interim injunctions in the terms described earlier in these reasons. The injunctions sought at paragraphs 11 and 12 of his Minute filed on 14 November 2023 seek to restrain both parties from disposing of any property (which by definition would include money in bank accounts) other than to meet “necessary living expenses up to the normal expense levels”, and then to separately restrain them from taking any steps which would “adversely impact the net assets in the pool by greater than $40,000”. The injunction sought at paragraph 13 of the Minute seeks to direct the use by the wife of her profit share in excess of her fixed profit allocation, by requiring her to apply those monies to her tax obligations.
52. The relevant legal principles may be briefly stated.
53.The grant of an injunction is discretionary. One purpose can be to preserve the status quo pending resolution of the case. The [husband] must address the merits of the substantive application, first demonstrating “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”. He must then demonstrate that the balance of convenience favours making the injunction sought, including by showing that there is a “danger or risk of dissipation of or dealing with assets which will frustrate any judgment in [his] favour.” While the assessment of that risk involves the evaluation of future possibilities rather than the determination of past facts, the asserted risk must be real and not merely theoretical, and there must be an evidentiary basis.
54.Once those fundamental matters are established, the Court must then undertake the usual discretionary process of weighing the prejudice to each party on the alternative outcomes proposed. An undertaking as to damages will usually be required.
55.In the present case, no undertaking as to damages is proposed by the husband. The fact that the injunctions sought in paragraphs 11 and 12 of the Minute are proposed to be mutual is neither here nor there in that regard; he seeks to restrain the wife’s use of her own property. The terms of the injunctions sought at paragraphs 11 and 12 are unacceptably vague; it is an essential feature of injunctions that they be clearly expressed, so that strict compliance with them is both possible and readily discernible. In any event, the husband’s evidence is insufficient to support the exercise of the discretion even were those fundamental matters addressed.
56.The injunction sought at paragraph 13 of the Minute seeks to dictate to the wife the use to which she puts her income over and above her fixed profit allocation, presumably based on the husband’s own view as to how that income is best applied not only for her benefit, but for the eventual enhancement of the asset pool which he seeks to divide in his favour. There is no proper basis for the injunction sought.
(Footnotes omitted)
No complaint is made about the correctness of the primary judge’s characterisation of the husband’s application (at [51]). The reasons then given by his Honour for the dismissal of the application for injunctions (at [51], [55] and [56]) cogently and sufficiently explain why that result eventuated and, hence, discharged the duty to give adequate reasons (DL v The Queen (2018) 266 CLR 1 at [32]–[33] and [130]–[131]; Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463–464; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
With respect to the dismissal by Order 10 of the husband’s application for interim property settlement orders, the particulars in the Notice of Appeal relevantly assert this:
40.The [primary judge] erred to deliver adequate reasons for determining to dismiss the [husband’s] application that in the alternative to order 1, within 14 days of the date of these orders:
2.1The [wife] and the [husband] do all acts and sign all documents necessary to increase their indebtedness under the [Property B] mortgage by an additional sum of $90,000 (“the cash sum”).
2.2Upon the cash sum becoming available to draw upon, the [husband] shall apply the entirety of the cash sum in payment of his individual Australian Taxation Office debt currently under an ATO payment plan.
2.3Upon the [wife] and [husband’s] compliance with paragraph 2.1 and 2.2 of these orders, the [husband] shall meet the loan repayments under the terms of the [Property B] mortgage as and when they fall due. (Order 2)
a.At [35-36] of reasons [the primary judge] state “Suffice to say the position is less than crystal-clear” and “evidence falls well short of that required to satisfy me that it is appropriate to exercise the power to alter property interests on an interim basis”. [The primary judge] failed to adequately explain what he was not clear to him and where evidence falls “short”, [the primary judge] also failed to adequately articulate the thought process in applying his discretion in concluding to not provide alternative relief sought per order 22.
b.Authorities make it plain that reasons are inadequate if justice is not seen to be done, or a party or an appellate court is unable to ascertain the process of reasoning undertaken by the primary judge (see Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18; Misfud v Campbell (1991) 21 NSWLR 725). I contend that the reasons do not permit the parties to determine how the [primary judge] “considered and evaluated the relevant evidence, [and took] into account all relevant factors” (A v J (1995) FLC 92-619 at 82,232) for the respective matters as outlined above.
(As per the original)
In his Summary of Argument, the husband submitted:
48.The reasons are inadequate, it is impossible to determine to extent to which, if at all, the judge considered and/or evaluated s 80 of the Act which sets out a range of powers that the Court may exercise in proceedings for spousal maintenance and property settlement and/or s 117. Section 80 has been described as an “enabling provision” and not an independent source of jurisdiction. Thus when exercising one of the “primary powers” (Davidson) in Pt VIII, such as the maintenance power in s 74 or the property settlement power in s 79, a Court may exercise one of the powers in s 80 provided there is a “relevant connection or relationship” (Davidson) between the “primary power” and the exercise of one of the enabling powers; and/or
…
53.Lastly, the [primary judge] provided no reason for not making order 2 (14.11.23) sought by the husband, in circumstances where there was no objection by wife in relation to this order sought.
(Footnotes omitted)
The reasons for judgment deal with the husband’s application for interim property settlement orders in this way:
27.While there is but one valid exercise of the power under s 79 of [the Act], that exercise may be undertaken incrementally.
28.Where interim orders for the alteration of property interests are sought, there are two stages to the hearing. The first requires the Court to resolve whether to exercise the relevant power before a final hearing, bearing in mind that although the power under s 79 should ordinarily be exercised once only, circumstances (which need not be compelling) may arise where the power is exercised before there can be a final hearing. The second requires the Court, having determined to exercise the relevant power, to undertake consideration of the matters in s 79(4). That consideration may, however, be brief particularly in circumstances where it is likely that the eventual entitlement of the applicant will be sufficient to cover the advance.
29.The applicant should have “at least an arguable case for substantive relief which deserves to be heard.” That said, the mere fact that upon a final hearing the applicant would receive the property being sought, or a greater amount, is of itself not sufficient to establish an appropriate case for an interim order.
30.When those principles are understood, the difficulties with the husband’s present application are obvious.
31.First, as earlier noted, neither party has come close to satisfactorily defining the final relief they seek by way of alteration of property interests. The sequence of relevant findings by each party is:
(a)in her initiating application filed on 13 October 2022, the wife simply proposed a division of the assets of the parties so as to effect a “net overall distribution” of 60 per cent to her and 40 per cent to the husband;
(b)in his initial response to that application filed on 9 December 2022, the husband sought no final orders. On 13 December 2022, a Registrar ordered him to file an amended response by 31 January 2023;
(c)in his amended response filed on 31 January 2023, the husband simply sought leave to amend the orders sought on a final basis once the wife’s interest in [an asset] had been valued, or “in the alternative” a division of the assets of the parties so as to effect a “net overall distribution” of 55 per cent to him and 45 per cent to the wife;
(d)various minutes of interim orders sought were subsequently filed by each party, but they did not address the final relief sought by either;
(e)the husband’s amended substantive response filed on 24 July 2023 commenced the parenting proceedings, but did not amend the financial relief he sought; and
(f)the wife’s amended substantive application filed on 1 September 2023 did similarly.
32.That point alone is frankly sufficient to deal with the husband’s application insofar as it sought interim orders for alteration of property interests. Apart from the complete lack of definition of the relief sought, the husband seeks interim orders that he does not seek on a final basis.
33.Even were that not the case, the evidence adduced by the husband is not sufficiently clear to support the relief he seeks, nor to persuade the Court that it is appropriate to exercise the relevant power at this stage. The application is driven at least in part by an asserted need for a lump sum to meet tax liabilities, yet the husband has entered into a payment plan with the ATO. The payment plan is annexed to his affidavit filed on 29 September 2023. While that shows a tax debt of $98,000 as at 2 May 2023, it also shows that there is an agreement to pay instalments of $4,397 per month and that the payments for June to September 2023 inclusive were made. The payment plan provides for the final instalment to be paid on 22 April 2025.
34.In his Form 13 Financial Statement filed the same day, the husband shows an estimated weekly tax expense of $2,962, inclusive of that payment plan. On his evidence, the husband’s weekly expenses exceed his income by approximately $1,377. He says that he is making contributions to superannuation in the sum of approximately $591 per week, paying various insurances, and paying motor vehicle expenses of some $195 per week in relation to [Motor Vehicle 1] which he says is worth approximately $38,000. He has various credit card and personal loan expenses. I acknowledge that in submissions today he emphasised his cashflow difficulties, and his desire to restructure loans in a manner that would improve his cashflow without reducing the property available for division. That alone is not, however, determinative of the application.
35.In addition, as counsel for the wife points out, annexed to the husband’s affidavit filed on 29 September 2023 is an ATO activity statement showing that a payment of $78,000 was made on 31 July 2023. The husband says that observation is simplistic and refers to the other evidence he has provided in relation to his tax liability. Suffice to say the position is less than crystal-clear.
36.Even accepting for present purposes the husband’s submission that there is no risk of the order he seeks being incapable of practical reversal at trial, the evidence falls well short of that required to satisfy me that it is appropriate to exercise the power to alter property interests on an interim basis. That conclusion having been reached, it is unnecessary for present purposes to consider the evidence as it stands in relation to the assessment of the respective contributions of the parties, or the matters set out in s 75(2).
(Footnotes omitted)
Again, no complaint is made about the correctness of the primary judge’s characterisation of the husband’s application as being one for property adjustment. Although the husband now refers to the statutory power within s 117 of the Act to make costs orders and within s 74 of the Act to make spousal maintenance orders, the application was only pitched to the primary judge as one for property settlement pursuant to statutory power reposing in s 79 of the Act.
The reasons given by his Honour for dismissal of the application for interim property settlement orders in accordance with correctly cited principles again cogently and sufficiently explain why that result eventuated. The husband’s contrary submissions are rejected.
The husband’s assertion of the wife not raising any objection to the alternate proposal for him to be permitted to enlarge the existing mortgage by some $90,000 to pay a tax debt is not demonstrated by advertence to their respective applications, the wife’s written submissions, or the wife’s oral submissions. The wife apparently opposed all of the husband’s applications.
Given the husband’s omission to address, either orally or in writing, the additional dismissal by Order 10 of his residual application for the removal of the proceeding from the “Defended List”, it is unnecessary to say anything more in that regard.
This ground has no merit in respect of either Order 7 or Order 10.
Ground 3 – mistakes of fact, law and discretion
This ground is pleaded as follows:
Ground 3: His Honour made mistakes of fact and/or law. He failed to consider relevant materials and considered submissions that could not be supported by evidence. He also incorrectly assessed relevant materials.
(Emphasis altered)
As pleaded, it is a jumbled blend of alleged legal, factual and discretionary errors and is not a competent ground of appeal, though we will attempt to answer it in any event.
In so far as the ground pertains to Order 7, the particulars to the ground are just as opaque and assert this:
Injunction for filing applications without permission
83.That to the extent, if any, that the Court so determined, the Judge erred in failing to materially consider and evaluate, in applying his discretion legal precedent from, including, but not limited to: the Full Federal Court in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 [53 to 54] and International Finance Trust Company Ltd v New South Wales Crimes Commission (2009) 240 CLR 319, French CJ at [54], the factors outlined by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, Wilmoth as considered by the Full Court (“Full Court”) in the Marriage of V A Vlug and K O Poulous [1997] FLC 92-778 (“Vlug and Poulous”). In Vlug and Pulous Finn, Kay and Moore JJ referring to the decision of the Full Court in The Marriage of O’Sullivan [1991] FLC 92-216 emphasized (at [78-461]), Watson & Morton [2007] FLC 93-331 (at [6, 36-39]) and (at [44]), Finch [2020] FamCA 172 [9], NSWCA in Hamod v New South Wales [2011] NSWCA 375; and/or
84.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to identify that the refusal to consider the Authorities above he compromised the interests of justice; and/or
85.That the [primary judge], to the extent, if any, erred in failing to identify that the discretion applied to injunct the parties from filing new applications without permission compromised the maintenance of the rules of law, which should be administered in open, transparent and accountable courts, and that this is an essential part of the fight against injustice.
86.That the [primary judge] erred in law as the Court did not have in front of them evidence and/or submissions relevant to the matter …
(As per the original)
The husband then submitted this in his Summary of Argument:
234. The [primary judge] did not identify the relevant source of jurisdiction …
…
236.The order impose[d] different rights and ‘rules’ on the husband, such that the effect of the order unjustly and substantially compromise the rights of the parties …
237.There were no application from either party for such an order, and no statutory prohibition were applicable. The width of a statutory discretion is determined by the statute, it cannot be narrowed by a legal rule devised by the court to control its exercise …
(As per the original)
The premise for Order 7, as was explained by the primary judge in the reasons for judgment (at [66]–[70]), has already been addressed under Grounds 1 and 2.
We are not satisfied the primary judge erred at law by making Order 7. Aside from bare assertions of error, neither the particulars within the Notice of Appeal nor the husband’s written submissions explicate the nature of any legal error.
Both the particulars and the written submissions conspicuously omit any reference to alleged mistakes of fact in making Order 7, in which case the ground falsely alleges “mistakes of fact”.
The complaints of error by the primary judge “failing to identify” certain things are not complaints which competently particularise any discretionary error within the principles established by House v The King (1936) 55 CLR 499 at 504–505.
In so far as this ground pertains to the dismissal by Order 10 of the application for injunctions to restrain the depletion of assets, the particulars to the ground assert this:
Injunction to deplete asset pool
65.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to find that [the wife’s] liabilities has increased in excess of $300,000 over the 12 months since proceedings commenced, representing a substantial adverse impact on overall matrimonial net assets; and/or
66.That the [primary judge] erred in failing to find that [the wife] did not contend and/or refute the evidence and/or submissions that her liabilities has increased in excess of $300,000 since proceedings commenced; and/or
67.That the Primary Judge, to the extent, if any, misapprehended the evidence in support of the application for injunctions, and the submissions in support thereof; and/or
68.That the Primary Judge erred in failing to adequately outline his thought process in applying his discretion on this substantial matter; and/or
69.That the Primary Judge, to the extent, if any, erred in failing to materially consider and evaluate, in applying, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], Tsiang & Wu (2019) FLC 93-911 at [21] and Palmer v Parbery; QNI Metals Pty Ltd v Parbery (2019) 136 ACSR 26 at [119], the aggregate of each of the matters identified in support of the husbands application; and/or
70.That to the extent, if any, that the Court so determined, the Judge erred in failing to determine that all distributions the applicant wife receive from [an asset] are not “her income”, but include distributions that relate to PAYG to be held on behalf of the ATO (similar to GST by companies) and paid to the ATO when due; and/or
71.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to determine by way of weighing the prejudice to each party for alternative outcomes …
(As per the original)
Two of those paragraphs ([70] and [71]) comprise complaints of the primary judge erring by “failing to determine” certain things. No legal principle is advanced by the husband to explain why the primary judge was obliged to determine the issues he alleges were wrongly left undecided and, thus, the non-determination of the issues could not be errors of law, fact or discretion.
Two of those paragraphs ([65] and [66]) comprise complaints of the primary judge erring by “failing to find” certain facts. By definition, an unmade factual finding cannot be either right or wrong, so this ground cannot comprise an error of fact. Nor can it be an error of law to refrain from making a finding, unless some legal principle required the finding to be made, which is not contended here. Nor can there be any question of discretionary error, by either the failure to consider a relevant consideration or taking an irrelevant consideration into account, when the underlying complaint is about a failure to make a finding.
One paragraph ([67]) comprises a complaint that the primary judge “misapprehended the evidence…and the submissions” led and made by the husband in support of the application for an injunction restraining depletion of the assets, but the complaint is unadorned by any explanation as to how either his evidence or submissions were supposedly misapprehended.
One paragraph ([68]) is essentially a complaint about the adequacy of reasons given for making Order 10, but the adequacy of reasons is not the subject of Ground 3. The sufficiency of reasons for Order 10 has already been addressed under Ground 2.
The last paragraph ([69]) alleges error by the primary judge’s failure to “materially consider and evaluate” legal principles, which contention intrinsically alleges an error of law, but it is rejected as being misconceived. The husband cites Tsiang & Wu (2019) FLC 93-911, but it does not afford him any support. In that case, the Full Court said this, referring to other authorities also cited by the husband:
20.The grant of an injunction is discretionary and the basis on which such an order is made is well established. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy. An applicant must demonstrate first that there is a serious issue to be tried. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australia Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], the applicant must “show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.
21.Next the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
…
25.It is unnecessary to demonstrate a positive intention but merely the possibility of the event occurring. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence.
…
27.As to the determination of the existence of the risk and its magnitude, in Palmer v Parbery [2019] QCA 27 McMurdo JA (with whom Fraser and Gotterson JJA agreed) said:
119.The determination of whether there exists a sufficiently serious risk of the dissipation of assets involves the evaluation of future possibilities, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis. Where a fact is alleged by the plaintiff in support of its case about the risk, but there is contrary evidence from the defendant, must the fact be proved to the court’s satisfaction as if the application for the freezing order was the trial of the case? In my view, a plaintiff need not do so. A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order.
(Footnotes omitted)
The written submissions made by the husband were just as uncontained as the particulars within the Notice of Appeal. He contended:
145.The jurisdiction to grant interlocutory injunctions under [the Act] is a statutory jurisdiction derived from s.114(3) and/or s.34(1) of the Act. The latter compare s.23 of the Federal Court of Australia Act 1976 as applied by the High Court in Cardile & Ors v LED Builders Pty Ltd (1998-99) 162 ALR 294. Those two subsections provide: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate;
146.In essence, an applicant for an injunction must persuade the court –
146.1 that a serious issue to be tried exists between the parties; and
146.2 the balance of convenience favours the granting of the injunction
147.In High Court authority and authority of the Family court [sic] it has been held that the provision of an undertaking as to damages is not mandatory before an injunction may be ordered;
…
152.At least in part, I seek payment of a sum of money in substantive proceedings, not only transfer of property or any interest in the property owned or controlled by the wife. As such, I contend, the interlocutory injunctions sought by the husband could be considered akin to a Mareva injunction, as opposed to only consider an injunction to preserve property which is itself the subject, of a claim in the proceedings (under s. 79);
…
154.I contend it is constructive, in the context of this case, to have regard to the principles which have been developed in other jurisdictions, in relation to the grant or refusal of “Mareva” injunctions or orders, particularly as enunciated and explained by the High Court in the context of consideration of the power granted to the Federal Court by s.23 of the Federal Court of Australia Act 1976 (“the Federal Court Act”), which section bears a striking resemblance to s.34(1) of [the Act];
155.It is unclear the extent to which, if at all, the [primary judge] considered a “Mareva” order on 28.11.23 – given the inadequate reasons for judgement;
…
158.A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case;
(Footnotes omitted)
The primary judge correctly referred to the principles governing the grant of injunctions (at [53] and [54]). The husband’s application for the injunction was dismissed because its proposed terms were too broad and vague (at [51] and [55]), it was not supported by an undertaking as to damages given by him (at [55]), and was not impelled by the evidence led by him in support of it (at [55] and [56]). No error is evident.
Insofar as this ground pertains to the dismissal by Order 10 of the application for interim property settlement, the particulars to the ground assert:
87.That to the extent, if any, that the Court so determined, the [primary judge] erred in finding at reasons [73] that ATO payment plan instalments are only $4,397 per month; and/or
88.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to find that there has been a protracted imbalance in the access to matrimonial assets for the parties; and/or
89.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to find that the husband suffer financial hardship; and/or
90.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to find that the husband need access to funds to afford legal representation; and/or
91.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to find that order 2 sought in the husband’s application will have no impact on the parties respective entitlements and does not constitute a premature distribution; and/or
92.That to the extent, if any, that the Court so determined, the [primary judge] erred in failing to materially consider and evaluate, Hickey & Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [48], Gabel & Yardley (2008) FLC 93-386, Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, , the aggregate of the respective matters identified in support of the application for the husband. Noting the respondent wife tendered no evidence to refute the respondent husband evidence and / or submissions …
(As per the original)
The husband’s submissions within his Summary of Argument state:
185.The characterisation of an order as a maintenance order or a property order is important because a property order can only be varied in limited circumstances whereas a maintenance order is more open to variation. Vastly different criteria are necessary to consider in each. The distinction between a maintenance order and a property order was considered by the High Court in Mullane v Mullane. The High Court held that a property order involves an alteration of a party's legal or equitable interests in property whereas a maintenance order does not. A property order for the payment of a capital sum differs from an order for the payment of lump sum maintenance because maintenance is payable from any source including borrowings; and/or
186.It is impossible from the transcript and inadequate reasons of judgement, determine the relevant source of jurisdiction and/or relevant principles of law the [primary judge] considered/evaluated in relation to Order 2 per the husband’s application; and/or
187.I contend, that the [primary judge] erred in only considering s. 79, making an order for the provision of funds pursuant to s 80(1)(h) and independently of the power in s 117 (2) or a combination of s 80(1)(h) and s 117 (2) ought to have been stated as relevant jurisdiction and/or Mullane as relevant principle of law– potentially splitting the order into two parts. The [primary judge] failed to consider whether the husband had a “proper case in all the circumstances” to ensure justice; and/or
188.Order 2 sought by the Husband (filed 14.11.2023) would not have resulted in an alteration of the legal or equitable interests in the combined property of the parties or either of them (Mullane v Mullane). The wife only made submissions in relation to order 1, and the wife did not object to the husband’s order 2 sough on 14.11.23 …
(Footnotes omitted) (As per the original)
It is important to appreciate the application was only ever posited to the primary judge as an application for interim property settlement, so it is unsurprising his Honour only dealt with it upon that confined basis. It does not advance the husband’s cause in the appeal for him to contend the orders he proposed could have instead been made in the guise of spousal maintenance orders or costs orders. Absent exceptions which do not apply here, the husband cannot run a different case on appeal (Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton v Holcombe (1986) 162 CLR 1 at 7–8; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438).
As already observed under Ground 2, the primary judge correctly recited the legal principles governing the exercise of power under s 79 of the Act (at [27]–[29]). His Honour observed two problems with the husband’s application. First, the husband had not yet identified the ultimate property adjustment for which he applied, against which his interim application could be measured for proportionality (at [31]–[32]). Secondly, the evidence adduced by the husband failed to persuade that it was appropriate to grant the interlocutory form of relief he sought (at [33]–[36]). We are not convinced of any legal, factual or discretionary error in that analysis.
To the extent the husband now alleges that the primary judge failed to separately deal with his alternate proposal for an order permitting him to extend the existing mortgage by some $90,000 to enable his payment of a personal tax debt, as that proposal should instead be characterised as an order sought under s 114(1) of the Act rather than s 79 of the Act, it is not an error of law which had any material effect upon the outcome and therefore does not sustain his application for leave to appeal (Conway v The Queen (2002) 209 CLR 203 at 207–208, 217, 219–220, 232 and 244).
The primary judge acknowledged how the husband’s personal tax debt was the subject of an instalment payment agreement between the husband and the Australian Taxation Office (at [33]–[35]). It is inconceivable any Court could be convinced it would be “proper” in an interlocutory hearing to make a mandatory injunction under s 114(1)(e) of the Act compelling the wife against her will to submit to expanded joint and several liability (with the husband) under an existing mortgage by some $90,000 just to relieve the husband of his individual tax liability. In any event, there is no substantial prejudice suffered by the husband in having had his application for that alternate order dismissed because the tax debt is presently being paid by him in accordance with an instalment payment agreement.
This ground has no merit in respect of either Order 7 or Order 10.
DISPOSITION
Leave to appeal is refused and the Notice of Appeal filed on 30 January 2024 is dismissed.
On 1 March 2024, the appeal registrar made an order requiring the wife to file and serve a schedule of her costs no less than seven days in advance of the hearing if she intended seeking a costs order against the husband in the event of the dismissal of the appeal or the anterior application for leave to bring the appeal. The wife filed her costs schedule one day late, which minor defalcation is excused, notwithstanding the husband’s objection.
The wife sought her costs in the sum of $27,852.59, but that assessment was plainly calculated on a solicitor/client basis. We see no basis for an order for costs on anything other than a party/party basis, assessed at a lesser sum in reliance upon r 12.17(1)(a) of the Rules, which the wife conceded. She submitted costs in the range of $18,000 to $20,000 would be a fair assessment.
Taking into account the provisions of ss 117(1), 117(2) and 117(2A) of the Act, we are satisfied it is appropriate to order the husband to pay the wife’s costs in the fixed sum of $18,000, given the application for leave to appeal was wholly unsuccessful, the husband was not in receipt of a grant of legal aid, he is in paid employment, he is an equal owner of a parcel of real estate, and the disorganised manner in which he conducted the application for leave to appeal added to the wife’s costs of meeting it. The husband’s asserted financial hardship is not a shield against a costs order and does not outweigh the considerations which militate in favour of costs (Mallory & Mallory [2020] FamCAFC 62 at [9]).
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Sutherland & Schonell. Associate:
Dated: 3 June 2024
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