David & David
[2007] FamCA 88
•19 February 2007
FAMILY COURT OF AUSTRALIA
| DAVID & DAVID | [2007] FamCA 88 |
| FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – Application by wife for adjournment of hearing of property settlement proceedings refused by Federal Magistrate – Proceedings heard on undefended basis in absence of wife – Whether denial of natural justice to wife – Whether orders for property settlement made in absence of wife and on undefended basis were just and equitable – Appeal dismissed – Directions made for submissions for costs. |
| Family Law Act 1975 (Cth) s79(4) Allesch v Maunz (2000) 203 CLR 172 |
APPELLANT: David
RESPONDENT: David
FILE NUMBER: CAM 1872 of 2003
APPEAL NUMBER: EA 56 of 2005
DATE DELIVERED: 19 February 2007
PLACE DELIVERED: Sydney
JUDGMENT OF: Finn J
HEARING DATE: 9 September 2005
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 29 April 2005
| SOLICITOR FOR THE APPELLANT: | Mr Elmaraazey |
| Phelps Reid |
Orders
That the appeal against orders 1, 2, 3, 5 and 6 of the orders (being orders with respect to property settlement and with respect to contact) made on 29 April 2005 be dismissed.
(a) That each party be at liberty to file and serve any written submissions in relation to the appeal against order 4 (being the order with respect to costs) of the orders made on 29 April 2005 and in relation to the costs of the appeal against all orders made on 29 April 2005 within 28 days of the date hereof.
(b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
| FAMILY COURT OF AUSTRALIA |
APPEAL NUMBER: EA 56 of 2005
FILE NUMBER: CAM 1872 of 2003
| David |
Appellant
And
| David |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the wife against all orders made by Federal Magistrate Brewster on 29 April 2005. The orders which were made in proceedings between the wife and the husband, related to property settlement and costs; they also varied existing orders for contact between the husband and the child of the parties’ marriage.
The appeal is being determined by me as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
The orders which are the subject of the appeal were ultimately made in the absence of the wife and her solicitor, and thus they are challenged on a natural justice or procedural fairness basis and also on a substantive basis, being whether they are just and equitable and/ or properly made.
It will be convenient to address first the challenge based on natural justice considerations, and for this purpose it will be necessary to set out in some detail the history of the matter both prior to, and on the day on which the orders were made, being 29 April 2005.
The History Prior to 29 April 2005
There appears to be no dispute that the husband and the wife (who were aged respectively 35 and 29 as at the hearing on 29 April 2005) were married on 20 July 2002. A son was born to them on … May 2003, and they finally separated a little over a year later in July 2004. In his reasons for judgment of 29 April 2005, Brewster FM found that because of a separation during the marriage, the total period of cohabitation was “some 20 months”.
On the basis of the material before me, it appears that some orders for contact between the husband and the child were made by Brewster FM on 28 June 2004. Then on or about 9 September the husband filed further material seeking orders for property settlement and also orders for contact with the child (on the basis that the child would reside with the wife). The wife filed responding material on 13 September 2004.
The matter then came before Brewster FM on 14 September 2004 with both parties being legally represented. On that day there was only time to deal with the contact issue. Accordingly, in addition to making orders for the child to live with the wife and to have defined contact with the husband, his Honour set the property settlement matter for hearing on an “overlist” basis on 15 February 2005, and made directions for the filing of material.
On 1 November 2004 Brewster FM made orders by consent relating to the sale of the former matrimonial home. The engrossment of the orders indicates on its face that the orders were made in the presence of legal representatives for both parties.
On 10 January 2005 the legal representatives of both parties again appeared before Brewster FM. It emerges from the transcript of that hearing that its purpose was for the wife to obtain an extension of time to file an appeal against the contact orders made on 14 September 2004. The matter was adjourned on that day to 18 January 2005.
At the adjourned hearing on 18 January the solicitor for the husband appeared but the wife appeared without legal representation. The transcript reveals that the wife informed his Honour that she did not at that time have a lawyer acting for her because of financial problems. On that occasion his Honour re-made the orders originally made on 14 September 2004 in order, apparently, to provide the wife with an opportunity to appeal those orders within time. His Honour also further adjourned the matter to 25 January 2005.
When the matter resumed before his Honour on 25 January 2005 a new solicitor appeared for the wife. However it appears that by the conclusion of the short hearing on that day, that new solicitor was no longer instructed by the wife. Nevertheless his Honour made further directions for the filing of material for the hearing of the property settlement matter on 15 February 2005.
On 14 February 2005 the wife appeared without legal representation before Mowbray FM seeking an adjournment of the hearing on the following day, 15 February 2005. The basis of her adjournment application was that she did not have legal representation. In the event his Honour granted the adjournment, listing the matter for 3 June 2005, but made a costs order in favour of the husband on account of the costs thrown away by the husband’s having briefed Counsel for the following day.
Importantly for present purposes the following exchange occurred between Mowbray FM and the wife towards the conclusion of the hearing on 14 February 2005:
FEDERAL MAGISTRATE: And you want me to vacate the hearing date tomorrow?
MS D.: Yes, please.
FEDERAL MAGISTRATE: And set it down for when?
MS D.: Preferably around the week of 21 March just so I’ve got a solicitor that’s willing to do everything for me.
FEDERAL MAGISTRATE: It wouldn’t be able to be heard then. It’d have to be later in the year if I do that.
MS D.: Okay.
FEDERAL MAGISTRATE: But I wouldn’t be prepared, I mean this would be the last occasion.
MS D.: No worries, thank you.
FEDERAL MAGISTRATE: I’ll vacate tomorrow’s hearing date.
(Transcript 14/2/2005 - page 21)
On 3 March 2005 further orders were made by Mowbray FM apparently in Chambers and apparently on the basis of any email request from the solicitor for the husband, varying the orders of 14 February 2005, to provide for a hearing date of 29 April 2005 (instead of 3 June 2005) and also setting a revised timetable for the filing of affidavits.
I mention at this point that the making in the absence of the parties but at the request of one party only of this order which set the hearing for 29 April 2005, was an issue that received considerable emphasis at the hearing before me, and indeed was a matter of some concern to me initially.
However, having had the benefit now of carefully considering the transcripts of all the hearings which proceeded the hearing on 29 April, I am now satisfied that the manner in which the order of 3 March was made does not assist the wife’s appeal. I say this for the reason that on 14 March 2005 an application by the husband for contravention of contact orders and/or make-up contact came before Mowbray FM. On that occasion the wife was legally represented as was the husband. The transcript of that hearing reveals that on two occasions during that hearing, his Honour confirmed that the property settlement matter was listed for hearing on 29 April 2005, and also that there was no suggestion from the wife or her legal representative that she was not aware of that hearing date or could not be ready for it. I therefore now regard the order of 3 March 2005 as being in no different a category than a letter from the court to parties altering a particular listing in a matter. I am also satisfied that the wife had adequate notice of the new hearing date of 29 April 2005.
The matter then again came before the court on 21 April 2005 apparently in connection with the return of a subpoena issued at the request of the husband. Notwithstanding that the cover page of the transcript of that day states that the matter was before Mowbray FM, it is clear from the content that it was in fact before Brewster FM. The solicitor for the husband, Ms Reid, appeared but there was no appearance by or on behalf of the wife. On that occasion, the following exchange occurred between his Honour and Ms Reid:
FEDERAL MAGISTRATE: Friday week, yes. We’ve received a letter this morning, at least I first saw it this morning. It’s dated 20 April, that’s only yesterday, from Ms David saying that she wants an adjournment. So, I had expected that she’d be here today seeing there’s a subpoena returnable to ask for that, but I’ll ask you. I would assume that that’s not consented to?
MS REID: She’s already had an adjournment.
FEDERAL MAGISTRATE: Yes, I know that. I assume it’s not consented to.
MS REID: I haven’t taken instructions but I would imagine that my instructions would be that no, it’s not consented to.
…
FEDERAL MAGISTRATE: I’ll just glance at this now. She says – basically she says that because the hearing was brought back to 29 April from 3 June that she’s had no time to get affidavits done again.
MS REID: Well, your Honour ---
FEDERAL MAGISTRATE: But my view is that February to nearly the end of April is plenty of time. I propose to write to her and say that the Court will not be vacating that date and – yes, all right…
…
The Hearing on 29 April 2005
When the matter came before Brewster FM on 29 April 2005, Mr Nash of Counsel appeared for the husband and Mr Elmaraazey, a solicitor appeared for the wife. Having announced his appearance Mr Elmaraazey informed his Honour that he had only been instructed “around an hour ago”, and that he understood that the husband’s Counsel was opposing an adjournment.
His Honour then indicated that he wanted to make sure that the husband’s case was in fact ready to proceed that day. After he had satisfied himself that it was, his Honour referred to Mr Elmaraazey’s application for an adjournment:
FEDERAL MAGISTRATE: Well, Mr Elmaraazey - and I'm sure that
someone will correct me if I'm wrong, in fact Mr Nash can you just confirm
this; that this matter was originally set down for hearing sometime in
February.MR NASH: It was.
FEDERAL MAGISTRATE: That date was vacated at the request of your
client.MR NASH: Yes, it was.
FEDERAL MAGISTRATE: And it wasn't (indistinct) vacated but I
understand that she said that she was not in a position to proceed and wanted
to instruct lawyers.MR NASH: And I understand that application was made or acceded to on the
day before the hearing.FEDERAL MAGISTRATE: Yes. So she's already had one adjournment.
The Court has been put to significant inconvenience because Courts cannot
(indistinct) operate if parties just aren't ready for trials. There are many, many
litigants awaiting a hearing date, anxiously awaiting hearing date from me and
if I adjourn this there'll be two hearing days wasted because of your client's not being in a position to proceed. Why should I give her a second indulgence?MR ELMARAAZEY: I cannot reply to that, your Honour, because what I'm
saying is this; if there were - I just have to seek instructions. Maybe the client
has to pay for the adjournment of today if she wants really to insist.FEDERAL MAGISTRATE: Of course she'd certainly have to pay the costs.
That would go without saying.MR ELMARAAZEY: Yes. I mean, that's the point.
FEDERAL MAGISTRATE: But that's not - that may recompense Mr D. as far as money is concerned. I'm sure he's anxious, however, to get this part
of his life behind him and get on with things. Having litigation hanging over
one's head I daresay is not a pleasant prospect. So I can recompense him for
his financial loss or at least that which relates to his legal costs. There may be
losses involved of the property - I don't know. I'm just not on top of the facts
of the case at all. But what about the Court? I just quote from a case called
Saade(?) v SPC Limited, High Court Decision, 116 ALR 625, just quoting from the head note:In determining whether to grant an adjournment, the judge of a
busy Court is entitled to consider the effect of an adjournment on
Court resources and the competing claims by litigants in other
cases awaiting hearing in the Court as well as the interests of the
parties.So arguably I may be able to protect the husband's interests in some respects,
but what about the Court?MR ELMARAAZEY: Well, I am aware of Saade, your Honour, and I'm not
trying to be argumentative. I am in the same position as this Honourable
Court. I mean, it's a difficult situation for me.FEDERAL MAGISTRATE: I can't emphasise enough, Mr Elmaraazey. I do
not blame you for anything.MR ELMARAAZEY: It's just - I am instructed to seek an adjournment and
I'm not aware of really what was happening. Now, whether an adjournment
will be granted or not, I don't know.FEDERAL MAGISTRATE: Well, no, subject to one matter, it won't be.
This other matter occurs to me - and I'll go back to Mr Nash - are you in a
position to prove all these values, Mr Nash or (indistinct) to admit facts or
something of that nature or are we going to find that the case is not ready
proceed for that reason?MR NASH: Yes, your Honour, we have a valuation of the home by McCann's and the husband's superannuation has been valued.
FEDERAL MAGISTRATE: Should I take it that at the order 24 or the
conciliation conference that there was no dispute about values? Do I take it
you came to this Court with - - -MR NASH: I understand these are the valuations of the wife, your Honour.
FEDERAL MAGISTRATE: I see. Right, okay.
MR NASH: So I withdraw that. The McCann valuation is that of the wife
instructed by then Ellrington Boardman Allport(?) In relation to the
superannuation, we had a valuation done by Super Splitting and that has been
annexed to my client's affidavit.FEDERAL MAGISTRATE: Right.
MR NASH: Sorry, the other property has been sold and the amount of course
then is determined.FEDERAL MAGISTRATE: All right. That follows that. From your position
can proceed. All that you need to prove you can prove or have, you say,
proven?MR NASH: Yes.
FEDERAL MAGISTRATE: Yes, well, Mr Elmaraazey, is there anything else
you want to say?MR ELMARAAZEY: Well, there is nothing more than I have instructions to
request an adjournment.FEDERAL MAGISTRATE: I realise that but I've indicated my views on that.
Is there anything else you wish to say to change my mind you may do so.MR ELMARAAZEY: If the matter will not be adjourned on procedural
fairness grounds or natural justice grounds I am obliged to withdraw because I
have to be in another Court in 20 or 40 minutes.FEDERAL MAGISTRATE: Well, you have that leave, Mr Elmaraazey.
MR ELMARAAZEY: And if I be instructed to appeal I will.
FEDERAL MAGISTRATE: Your client has a perfect right to appeal.
MR ELMARAAZEY: Yes.
FEDERAL MAGISTRATE: And there is nothing I would want to say about
that.MR ELMARAAZEY: No, and it is up to my client and I'm going to be very
explicit in that from the moment I withdraw, how she will - she is prepared to
conduct her case or how to deal with it because I am really in the middle of
something that - - -FEDERAL MAGISTRATE: No, I don't expect you to remain. I'm grateful
for you giving the courtesy of the Court to come along and argue the wife's
adjournment application and as I say I blame you for nothing.MR ELMARAAZEY: That's all right.
FEDERAL MAGISTRATE: Mr Elmaraazey.
MR ELMARAAZEY: I just would like a short adjournment to speak to - - -
FEDERAL MAGISTRATE: You may have that. I'll go off the bench briefly
whilst you discuss the matter with your client. Is there anything - no, I'll do
that now rather than delay anything because you need to be in another place in
a little while. So I'll adjourn temporarily.After Mr Elmaraazey withdrew his Honour adjourned for about 10 minutes. When he returned to the bench the following exchange occurred between his Honour and the wife:
FEDERAL MAGISTRATE: Yes, I note, Ms D, you're representing
yourself?MS D.: Well, your Honour, if I can speak. I'm just asking for the
adjournment again. I just feel nothing that's happened had been done on
purpose. I didn't have $15,000 to give for a solicitor so they backed out on me
so I was forced to go and see this guy here.FEDERAL MAGISTRATE: Ms D., an application has already been made on your behalf for an adjournment and refused.
MS D: Yes, but it was put forward by you when we appeared in
Court a few months ago.FEDERAL MAGISTRATE: Well, Ms D., you heard what I said to
Mr Elmaraazey.MS D.: Yes, I did.
FEDERAL MAGISTRATE: But it's not just the interests of the litigants and I
assume for the moment that I could recompense Mr D. totally so far as
financial matters are concerned, couldn't insofar as this hanging over his head
is concerned, but this Court cannot operate on the basis that people can not
prepare their cases and come along and ask for an adjournment. This is a very
busy Court and we have long lists. We have many people anxiously awaiting
hearing dates and you've had the indulgence, a significant indulgence, an
adjournment in February. I'm not going to be caught up in it.MS D.: If I don't get the adjournment today I will be leaving and you
decide what's fair but I won't be sitting here to hear it.FEDERAL MAGISTRATE: That's entirely a matter for you. You're not
required to be here.MS D.: Okay.
FEDERAL MAGISTRATE: And if you wish to leave you may leave.
MS D.: Okay. Thank you.
FEDERAL MAGISTRATE: Thank you. Well, the matter now proceeds
undefended, Mr Nash.
The Grounds of Appeal Directed to the Federal Magistrate’s Refusal to Grant an Adjournment on 29 April 2005
In his written summary of argument in support of the appeal, the wife’s solicitor, Mr Elmaraazey, submitted that “the subject matter of the appeal … raises, inter alia four questions…” Those four questions were then set out. It is my understanding, however, that those four questions did not replace the grounds of appeal. Accordingly it is necessary that I consider both the grounds of appeal and the four questions.
Further while the first two of the four questions are clearly directed to the Federal Magistrate’s refusal to adjourn the hearing on 29 April 2005 and the second two are directed to the substance of the orders made, certain of the grounds of appeal and/or “the particulars” contained in the grounds of appeal, can be seen as directed both to the issue of the failure to grant the adjournment and to the making of the substantive orders. It is therefore necessary at this point to set out in full the grounds of appeal. They are as follows:
1.That breaches of the rules of natural justice occurred in connection with making the decision.
PARTICULARS
(a)The Federal Magistrate exhibited bias against the Appellant Mother. In conducting the hearing, the Federal Magistrate made partial decisions in favour of the Respondent Father by:
(i)failing to adjourn the matter to permit the Appellant to have appropriate representation;
(ii)failing to adjourn the matter to permit the Appellant to have appropriate representation despite the appellant’s mother [sic] submissions to pay the respondent father’ [sic] costs for the adjournment;
(iii)failing to provide an opportunity for the Appellant mother to have a fair opportunity to instruct her legal representative while the father was represented by a Counsel and an instructing Solicitor;
(iv)allowing the matter to proceed despite the respondent father’s failure to file and serve documents as required for the conduct of the hearing;
(v)allowing the respondent father to incorporate parenting matter unrelated to the hearing;
(vi)allowing the respondent father to incorporate parenting matter unrelated to the hearing without giving the appellant mother adequate notice or at all; and
(vii)assisting the respondent father to present his case notwithstanding that the mother was not similarly assisted to present her case.
(b)The Federal Magistrate failed to provide an opportunity for the appellant mother to have a fair opportunity in conducting the hearing.
(i)The Federal Magistrate failed to direct the legal representatives for the respondent father to file and serve documents on time or at all, and hence not given the appellant mother an opportunity to consider the same; and
(ii)The Federal Magistrate considered matters unrelated to the hearing but were prejudicial to the appellant mother.
2.That procedures that were required by law to be observed in connection with making the decision were not observed.
PARTICULARS
(a)The Federal Magistrate conducted the hearing in a way partial to Appellant Mother.
(i)the Appellant mother repeats particulars 1 (a) (i) to (vii) above; and
(ii)the Applicant repeats particulars 1 (b) (i) to (iii) above.
3.The decision of the Judge involved an error or errors of law.
PARTICULARS
(a)The Federal Magistrate failed to give reasons for his decision. His failure to do so amounted to an error of law contrary to the principles enunciated by superior appellate courts and consequently the trial, for this and other reasons, miscarried;
(b)The Federal Magistrate did not properly apply the provisions of the Family Law Act; and
(c)The Federal Magistrate made orders when the Appellant mother has not been given the opportunity to put her case before making those orders.
4.The making of the decision was an improper exercise of the power in that His Honour exercised the power in a way that constituted an abuse of the power.
PARTICULARS
(i)the appellant mother repeats the particulars 1 (a) (i) to (vi) above;
(ii)the appellant mother repeats the particulars 1 (b) (i) to (ii) above;
(iii)the appellant mother repeats the particulars 2 (a) (i) t (ii); and
(iv)the appellant mother repeats the particulars 2 (a) to (c) above.
The two of the four questions contained in the written summary of argument which relate to the natural justice complaint and which the solicitor for the wife argued should be answered in the affirmative are:
1.Whether on 29 April 2005 the Learned Trial Federal Magistrate upon the appellant wife’s request and/or submissions and/or her legal representative’s submissions erred in not adjourning the matter for a later date?
2.Whether on 29 April 2005 the Learned Trial Federal Magistrate upon the appellant wife’s withdrawal from participating in the proceedings erred in not adjourning the matter for a later date?
Consideration of the Complaints Concerning the Refusal to Grant an Adjournment on 29 April 2005
In essence therefore the wife asserts that his Honour erred in the appellate sense:
·in refusing an adjournment to the wife’s solicitor on 29 April 2005 to enable the solicitor to acquaint himself with the matter and to obtain proper instructions;
·in refusing an adjournment to the wife after her solicitor withdrew; and
·in then proceeding to hear and determine the matter in the absence of the wife or her legal representative.
In seeking to establish such errors, or errors, on the part of the Federal Magistrate, the wife relies also on the assertion that an adjournment could have been granted on the basis that the wife pay the husband’s costs, and further on the alleged unfairness to her which resulted from the husband being represented by Counsel and by an instructing solicitor and from the husband’s failure to file and serve required documents.
The challenge to his Honour’s decision to refuse an adjournment first to the wife’s solicitor and then to the wife and to proceed to hear the matter in the absence of the wife on an undefended basis, can be conveniently considered against the background of the two passages from the judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 which were cited in the written outline of argument provided by the solicitor for the wife in support of the appeal.
In the first of those passages, Kirby J explained the importance of the fundamental principle that a person must be given the opportunity to be heard before a court makes an order affecting that person:
38. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice". [Re Brook and Delcomyn (1864) 16 CB (NS) 403 at 416 per Erle CJ [143 ER 1184 at 1190]. The maxim is audi alteram partem, audiatur et altera pars. See Broom, A Selection of Legal Maxims, 10th ed (1939) at 65; cf Cameron v Cole (1944) 68 CLR 571 at 589; The Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396.] It is a rule of natural justice or "procedural fairness". [Kioa v West (1985) 159 CLR 550 at 583.] It will usually be imputed into statutes creating courts and adjudicative tribunals. [R v The Chancellor, Masters and Scholars of the University of Cambridge ("Dr Bentley's Case") (1723) 1 Str 557 [93 ER 698]; Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 [143 ER 414]; Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712.] Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden. [This point was made by Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 195 [143 ER 414 at 420] with reference to Genesis III:11.]
However, a little later in his judgment Kirby J made the following observations which, in my view, have particular application in the present case:
40. Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted) [Sali v SPC Ltd(1993) 67 ALJR 841 at 849; 116 ALR 625 at 636; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 153, 168; cf Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296.], the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation
It will be seen that in the last cited passage Kirby J relied on the earlier High Court decision in Sali v SPC Ltd and Another (1993) 116 ALR 625. It will be recalled that this decision was also relied on by Brewster FM when in responding to the submission that the husband might be compensated by a costs order, he observed that that was not the only consideration which he had to take into account when determining whether or not to grant the adjournment.
In Sali Brennan, Deane and McHugh JJ observed (at page 629):
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers [(1979) 27 ALR 330, at 337] this “may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
In the same case (and although in dissent on one issue) Toohey and Gauldron JJ emphasised that a decision by a court to grant or refuse an adjournment is an exercise of discretion and therefore is “a decision which will not be lightly set aside on appeal” (at page 632). Later in their reasons, their Honours elaborated on the reasons why an appellate court should be slow to interfere with such a decision:
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. [See GSA Industries Pty Ltd v NT Gas Ltd(1990) 24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketterman v Hansel Properties Ltd [1987] AC 189; Commonwealth v Verwayen (1990) 170 CLR 394 ; 95 ALR 321.] The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this court should not interfere with a decision made on such an application.
In the present case it must be remembered that the property settlement proceedings had originally been listed for hearing on 14 September 2004. On that occasion both parties were legally represented and, at least as I understand the situation, all necessary material had been filed to enable all matters to proceed. Unfortunately, there was only enough time on that day for his Honour to deal with the contact dispute, and thus the property settlement matter was adjourned to 15 February 2005.
Thereafter the wife changed solicitors on at least one occasion. However, she appeared before Mowbray FM on 14 February without legal representation, seeking an adjournment of the hearing scheduled for the following day (15 February) on the basis that she did not have legal representation. It is also important to remember that the extract of transcript quoted earlier of the hearing on 14 February shows that on that day Mowbray FM effectively warned her that it would be the last occasion that an adjournment would be granted.
Notwithstanding that warning from Mowbrary FM, it appears from the extract of the transcript of 21 April 2005, also earlier quoted, that on 20 April the court had received from the wife yet another application for an adjournment because of lack of time to prepare affidavit; and that application was to be refused.
Against this factual background, it is entirely understandable, in my view, that when the applications for an adjournment were made on 29 April first by the wife’s solicitor, and then by the wife herself, that Brewster FM refused such applications and immediately proceeded to hear the property settlement matter on an undefended basis.
It is clear from the extract of the transcript of the hearing on 29 April 2005 that his Honour took into account not only the history of the matter and the prejudice to the husband (a prejudice which could not necessarily be compensated for by means of a cost order), but also the state of the busy lists in his court and the interests of other litigants.
Against the background of the observations set out earlier of various members of the High Court in Sali, particularly in relation to the discretionary nature of a decision to grant or refuse an adjournment, the interference of this appellate court with his Honour’s decisions not to grant the adjournment and to proceed to hear the case on an undefended basis, could not be justified. I do not accept at least in relation to this case, the submission, which I understood to be made by the solicitor for the wife, to the effect that Sali would have not application to proceedings under the Family law Act because the interests of children are involved.
Once the conclusion is reached (as it had been by me) that his Honour’s discretion did not miscarry in refusing the adjournment and in proceeding to hear the matter on an undefended basis, there can be no substance in the complaint (contained in the grounds of appeal) that it was unfair to the wife that the husband had the benefit of counsel and of an instructing solicitor.
Nor can there be substance in the complaint that his Honour “assisted” the husband to present his case. A reading of the transcript shows that his Honour’s questioning of the husband’s counsel when he came to determine the property settlement was directed for the most part to requiring counsel to properly establish the husband’s case, thereby ensuring as far as possible in the context of an undefended hearing, a just and equitable outcome for the wife. It must be remembered that the wife chose not to participate in the proceedings after she had been refused an adjournment. Had she remained I have little doubt that his Honour would have “assisted” her to the extent appropriate to present her case.
As to the complaints concerning availability of the husband’s documents to the wife, it can be seen from the references which I have already made to the transcript of 29 April 2005 that his Honour did not reach his decisions to refuse the adjournment and to proceed on an undefended basis until he was satisfied that all the husband’s material was before the court. The wife’s solicitor was still present in court at that time. It is true, of course, that the wife’s solicitor had only been briefed shortly before the hearing and could not be expected to have familiarised himself with the material. But that situation was the result of the wife’s failure to have made arrangements earlier for her representation at the hearing on 29 April 2005.
To the extent that the grounds of appeal assert that his Honour failed to give reasons to his decision, it is true that his Honour did not deliver a separate judgment in relation to his refusal to adjourn the proceedings and to proceed on an undefended basis. However his reasons are absolutely clear from the transcript and indeed he expressly incorporated his observations on the transcript into his reasons for judgment (see page 32 lines 20 to 250 of the transcript of 29 April 2005).
I thus conclude that there is no substance in that part of the appeal which is directed to his Honour’s refusal to adjourn the hearing on 29 April and to his decision to proceed on an undefended basis.
The Justice and Equity of the Property Orders
I turn then to the assertion made on behalf of the wife that the property settlement orders made by Brewster FM on an undefended basis in the absence of the wife or her solicitor were not just and equitable.
There is, of course, no issue that when a court proceeds to make a property settlement order on an undefended basis that the court must adhere to the requirement in s 79(2) of the Act that it must not make an order under s 79 “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”, and also that in making the order, the court must take into account the contributions of the parties to their property and to the welfare of their family, as well as the other matters mentioned in s 79(4). It is clear both from the transcript of the hearing on 29 April 2005 and from his ex-tempore reasons for judgment delivered that day that his Honour was well aware of these requirements.
His Honour commenced his reasons for judgment by setting out briefly the factual background to the case in largely the same terms as I have used in paragraph 5 of this judgment.
He then, as he is required to do by the authorities, identified the assets of parties as being:
§Husband’s superannuation: $ 58, 645
§Wife’s superannuation: $ 3,883
§Equity in the matrimonial home: $267,514
§Husband’s car: $ 15,000
As his Honour found, this resulted in a gross pool of $345,042. From this pool his Honour deducted debts of the husband of $177,000 (being a debt to his parents of $170,500 and a credit card debt of $6,500). This resulted in a net pool of $168,042 which his Honour rounded off to $168,000.
His Honour then observed “apart from the wife’s superannuation the pool is the property of the husband”, and he then posed the following question for himself:
“The issue I am faced with is should I make an alteration in those interests in favour of the wife having regard to her contributions over 20 months, which were as a homemaker and after the birth of the child, a homemaker and parent.”
His Honour then answered that question by saying:
“I am satisfied that it is just and equitable to make such an alteration”.
He then referred to the specific contributions of the parties to which he had regard saying:
“I have regard to the contributions of the husband both initially in bringing in superannuation, one of his superannuation funds was totally pre-marriage, during the marriage, as I have indicated in an interchange with Mr Nash, and post separation in relation to payment of child support. And I also take into account, not just the wife’s contributions during the marriage as a parent but her post separation contributions in that respect too.”
I am prepared to accept having regard to the affidavit material of the parties, which I understood to have been before his Honour (see procedural orders made 13 July 2005), and to the discussion in the transcript of the hearing on 29 April 2005 between his Honour and Counsel for the husband (at p17 – 21), that when his Honour in the above quoted passage referred to “contributions of the husband both initially”, he was referring not only to the superannuation entitlement which the husband had at the beginning of the marriage, but also to the husband’s equity in a property described as “Cremorne Street” which his Honour was prepared to value at $94,500 as at the time of the marriage (Transcript p20). (As I earlier mentioned, that it is clear from an observation that he made at page 32 lines 20 – 25 of the transcript, that his Honour intended that the transcript form part of his reasons.)
His Honour then concluded that he would make a 10% adjustment in the wife’s favour on account of her contributions, saying:
“Overall, I am satisfied that a 10 per cent adjustment in her favour would be appropriate. It represents about a $34,000 differential, that is it gives her an amount of $34,000 more than the husband”.
His Honour then turned to the s 75(2) factors, ultimately concluding that he would make an additional 10% adjustment in favour of the wife on account of those matters. The s 75(2) factors which he took into account and his reasoning in relation to them was as follows:
“… I infer that there is a [sic] income earning differential between the parties in favour of the husband. However, the impact of that is greatly tempered by the fact that it was such a short marriage. Part of it, however, is referable to the care of the child. The wife gives evidence in her affidavit that she does not propose to work for another two years, which is entirely reasonable. She will also have the predominant care of the child post separation. On the other hand, the husband will continue to pay a significant amount of child support, such that it will cover a good deal more than half of the costs of maintaining the child. In addition, a substantial part of the property that he will receive will be superannuation, which is not utilisable and will not be utilisable for many years. Mr Nash submits that a 10 per cent adjustment in favour of the wife would be appropriate. These are undefended proceedings and I have no submissions made to the contrary. I accept Mr Nash’s submissions.”
Thus his Honour determined that he would divide the property 80% - 20% in the husband’s favour. He explained how he would give effect to this division in the following way:
The husband in his application seeks that he pay the wife $30,000 and that each party keep what they have. The $30,000 is pretty close to the 80/20 split and I therefore accede to his application and order that within 30 days he pay the wife the sum of $30,000 and that upon that payment, that any beneficial interest the wife has in the property [at] Cremorne Street, … will be [sic] force of these orders be extinguished. I will order that each party is entitled to possession of all chattels in his or her possession and choses-in-action in his or her name.
His Honour then proceeded in his reasons to deal with issues concerning contact between the husband and the child, and costs. I will refer again to those issues after considering the complaints contained in the grounds of appeal concerning the property settlement orders.
The terms of the orders made by his Honour in relation to property settlement were as follows:
1.THAT subject to Order 4 within 40 days the husband pay to the wife the sum of $30,000.
2.THAT upon compliance with Order 1 any beneficial interest the wife has in the property [at] Cremorne Street, … is by force of these Orders is [sic] extinguished. Thereafter the husband is to indemnify the wife in relation to any liability in respect of the mortgage on that property.
3.THAT as against the other each party retain the chattels in his or her possession and the chores in action in his or her name.
Order 4 which is referred to in Order 1 of the above orders is a costs order to which I will later refer.
The questions which the solicitor for the wife posed in his written outline of argument in relation to the property settlement orders were as follows:
3.Whether the orders made by the Learned Trial Magistrates [sic] on 29 April 2005 were equitable notwithstanding the non presence of the appellant wife and/or her legal representatives?
4.If the appellant and/or her legal representative been present on 29 April 2005, was it probable that a different outcome would have resulted and in particular to the costs order made against the appellant wife?
It was submitted for the wife that the first of those questions should be answered in the negative and the second in the affirmative.
Before I consider the more general issues raised by these two questions and by the wife’s grounds of appeal, I will consider a number of specific matters which the wife’s solicitor in his oral submissions claimed had not been properly considered by his Honour in reaching his judgment with respect to property settlement.
First, there was the issue of a property described as Kohlhagen Street, which as I understand it, had been purchased during the marriage largely with funds borrowed on the security of the property at Cremorne Street which the husband had brought into the marriage. The sale of the Kohlhagen Street property was the subject of the consent orders made on 1 November 2004. As I pointed out earlier, those orders were apparently made in the presence of the legal representative of both parties. Given that she was legally represented when those orders were made, it is not, in my view, open to the wife to complain on this appeal regarding the implementation of those orders.
To the extent that the wife may have a complaint about the disposition of the proceeds of sale of the Kohlhagen Street property, there was a settlement statement for the sale of that property annexed to the husband’s affidavit filed 27 April 2005. That statement shows that the balance due to the parties on settlement was $430,017.77, and that out of that sum, an amount of $428,356.74 was paid to the mortgagee bank, which was, of course, entitled to have its secured debt paid out of the proceeds of sale. Given the level of the debt, it seems to me that it could only have been in both parties’ interests to have that debt discharged at the earliest possible time.
The settlement statement shows that the small balance of the proceeds was used to pay government and legal fees and charges. It can be seen from the transcript of the hearing on 29 April 2005 (page 12) that the sale of this property and the distribution of its proceeds was a matter about which his Honour also satisfied himself.
The next specific issue raised by the solicitor for the wife concerned his Honour’s deduction from the gross value of the parties’ property of the debt of $170,500 owed to the husband’s parents and originally incurred by the husband in connection with his purchase of the Cremorne Street property. To the extent that the wife’s complaint is that his Honour should not have deducted that debt in calculating the net value of the parties’ property, there can be no substance in that complaint given that his Honour had before him the sworn evidence of both the husband and his father as to the existence of the debt which was evidence which he was entitled to accept. It is true that because the proceedings were conducted on an undefended basis and in the absence of the wife, she was denied the opportunity to cross examine the husband and his father about the existence of the debt and the likelihood that it would be required to be repaid. However that situation resulted from his Honour’s decision to proceed on an undefended basis in the absence of the wife. I have previously concluded that that approach was open to his Honour, and that he did not err in the appellate sense, in adopting that approach.
There was attached to the affidavit of the husband’s father an acknowledgement of debt dated 1 March 2000 and a notice of demand in relation to the debt dated 20 September 2004. Given that the date of that notice is close to the commencement of the property settlement proceedings, a court might well have treated that notice with considerable caution. But, in my view, the existence of reservations in relation to that notice does not lead to the conclusion that the discretion which his Honour clearly had to take account of, or to disregard the debt, miscarried because his Honour took into account the existence of the debt.
I understood it to be further submitted on behalf of the wife that if his Honour was prepared to deduct the debt in question in calculating the value of the parties’ property, his Honour should not then have given the husband as much credit, as he apparently did, for his initial contribution of the Cremorne Street property. However I consider that there can be no substance in this complaint given his Honour’s conclusion at page 20 (lines 30-32) of the transcript of 29 April 2005 that the value of the property which the husband brought into the marriage would not be taken to include the amount of the loan from the husband’s parents (that is, the debt in question).
There was also an issue raised on behalf of the wife that she should be given credit for cash amounts in the region apparently of $24,000 given to the parties as wedding gifts according to Italian custom. I understood that relying on cases such as Gosper (1987) FLC 91-818, Kessey (1994) FLC 92-495 and Pellegrino (1997) FLC 92-789, it was submitted that the wife should be given full credit for the introduction of these monies into the marriage. It is true that his Honour does not appear to have taken this matter into account, notwithstanding that it was raised in the parties’ affidavits. However, I am not persuaded that when regard is had to the other contributions of the parties and to the 90%-10% assessment of contributions made by his Honour in favour of the husband that the contribution by the wife constituted by the wedding gifts would have had anything other than a “negligible” effect on that assessment (see De Winter (1979) FLC 90-605).
The final specific matter raised on behalf of the wife was a complaint that in his filed material, the husband had not properly disclosed, at least as an investment property, the existence of one of the two real properties which the parties owned at the commencement of the proceedings. However, given that it was not established, nor even, it appeared to me, suggested that in his deliberations at the hearing on 29 April or in his judgment, his Honour had not had regard to both properties, or to the one remaining property and to the proceeds of sale of the other property, I am unable to find substance in this complaint.
Turning then to the more general complaints by the wife regarding the justice and equity of his Honour’s overall award, her solicitor referred me in both his written material and in his oral submissions to a great many decisions particularly of the Full Court of this court and particularly in relation to short marriages (as was the present case).
Every case must of course depend on its own facts. Furthermore, it is fair to say that it is generally acknowledged in this jurisdiction that the outcome of property settlement proceedings after a short marriage where one party has contributed most of the property but the other has the future responsibility for a young child of the marriage, is notoriously difficult to predict. Minds will vary greatly on what is a just and equitable outcome in such cases, and thus the discretion must be very broad. I am certainly not satisfied that the ultimate 80%-20% award which his Honour made in this case was beyond the “generous ambit within which reasonable disagreement is possible” (per Brennan J in Norbis v Norbis (1986) FLC 91-712 at 75,178.)
To the extent that the complaint concerning the adequacy of his Honour’s reasons contained in the grounds of appeal is intended to apply to his decision in relation to property settlement, I consider that when regard is had to the fact that his Honour incorporated into his reasons for judgment his observations recorded in the transcript of the hearing, there can be no substance in the complaint.
Finally there is the matter raised in the last of the four questions posed by the solicitor for the wife being whether, had the wife or her solicitor been present on 29 April 2005, “was it probable that a different outcome would have resulted”.
It is impossible to know what matters which would have affected the ultimate outcome might have emerged from cross examination of the husband or his father if the wife had been represented at the hearing. Similarly, it is impossible to know what submissions might have been made to his Honour by or on behalf of the wife that might have changed the result had the wife been represented at the hearing. These unknowns are always of concern in considering the result of an undefended hearing. However, I take considerable comfort from the fact that no matter was raised by the wife’s solicitor before me in his very thorough and exhaustive submissions, which has caused me to doubt, having regard to the broad ambit of the discretion in a case such as the present, that his Honour’s award was other than just and equitable to both parties.
In his written submission, the solicitor for the wife relied on observations by the High Court majority in Allesch v Maunz (at 25) concerning the discretion arising under the inherent power as discussed in Taylor (1979) 143 CLR 1 or arising under s79A of the Act, to set aside property orders made in the absence of a party. In my view those observations were essentially directed to the situation where an order is made in the absence of a party through no fault of that party.
As I earlier commented, in the present case the wife herself chose to leave the courtroom when his Honour refused her the adjournment after her solicitor was excused. As I also earlier commented, had the wife remained in Court, I have little doubt that she would have received appropriate assistance from his Honour to conduct her case. In my view little support for the wife’s case on this appeal can be gained from authorities such as Taylor and Allesch v Maunz, given that those cases were concerned with orders made in the absence of a party caused by no fault of that party.
I have thus found no substance in the wife’s appeal against the property settlement orders.
The Costs Order
Having determined upon the property settlement orders which he would make, his Honour proceeded to make a costs order in favour of the husband in respect of the costs of those proceedings, and in relation to costs which were reserved at the earlier hearings between September 2004 – April 2005.
However as one of the matters which his Honour had to take into account in determining the husband’s application for costs was an offer of settlement made by the husband, it is not appropriate that I be aware of any details of that offer, when determining the question of the justice and equity of the property orders. Accordingly the appeal against the costs order (if the wife wishes to pursue that appeal given my decision in relation to the property settlement order) will have to be subject of further brief written submissions following the delivery of this judgment. I will make the necessary directions for such submissions.
The Order Varying the Contact Orders
I also understand the wife to challenge some further orders made by his Honour on 29 April 2005 varying the existing orders relating to contact between the husband and the child on the basis, as I understood it, that the wife may not have had notice that those orders would be sought.
Leaving to one side technical issues concerning the right of the wife to challenge those orders given her decision to absent herself from the proceedings, I would not be prepared to allow the appeal against those orders (and to order a new trial which would have to be the result of allowing the appeal) even if it could be established that the wife had no knowledge that the husband was seeking the revised arrangements contained in the orders.
I take this view because it is always open to the wife to return to court to seek a variation of those orders if she can establish that the welfare of the child requires some further variation to the contact arrangements. (cf. The comments of the High Court Majority in CDJ v VAJ (1998) FLC92-828 at paragraph 119).
Conclusion in Relation to All Matters
For the reasons which I have given, I will dismiss the appeal against Orders 1, 2 and 3 (being the orders with respect to property settlement) and Orders 5 and 6 (being the orders with respect to contact) of the orders made on 29 April 2005.
I will make directions for the filing of submissions in relation to the appeal against Order 4 (being the order with respect to costs) of the orders of 29 April 2005, and in relation to the costs of the appeal against the orders with respect to property settlement and contact.
I certify that the preceding eighty-three [83] paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 20 February 2007
13
0