DELANEY & DELANEY (No.2)

[2021] FCCA 574

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANEY & DELANEY (No.2) [2021] FCCA  574

Catchwords:
FAMILY LAW – Ruling on latest trances of long-running dispute – court endeavouring to bring the matter to finality.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 79A

Federal Circuit Court Rules 2001 (Cth) r.13.10(a)

Cases cited:

Delaney & Delaney [2020] FCCA 2960

Applicant: MS DELANEY

Respondent: MR DELANEY

File Number: DGC 2723 of 2020

Judgment of: Judge Burchardt

Hearing date: 2 March 2021

Date of Last Submission: 2 March 2021

Delivered at: Dandenong

Delivered on: 26 March 2021

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Not Applicable

ORDERS

1. Each of the parties do all acts and things and sign all such documents as are necessary to sell C Street, Suburb D (“C Street, Suburb D”) on the following terms:

   (a)By an agent as agreed between the parties and failing agreement, as appointed by the President of the Real Institute of Victoria for the time being (“the selling agent”) and the terms of the sales authority with the agent be in accordance with the standard terms;

   (b)At a reserved price of $1,600,000 or such lower price  as recommended by the selling agent;

   (c)The settlement period be 30 days, or such other period as the Agent may recommend;

   (d)The method of sale be public auction or such other method as recommended by the Agent.

2. Upon settlement of the sale of C Street, Suburb D, the proceeds of sale be applied in the following manner:

   (a)First, to pay all costs, commissions and expenses relating to the sale;

   (b)Secondly, pay the B Bank such amount as required to discharge the C Street, Suburb D Mortgage;

   (c)Thirdly, to pay the husband the sum of $332,628, together with interest at the rate prescribed by the Family Law Rules from 4 November 2020 until the day of settlement;

   (d)Fourthly, the sum of $134,859.70 be held on trust by A Pty Ltd pending resolution of the extant County Court proceeding ...;

   (e)Fifthly, to pay the husband 40% of the net proceeds of sale of C Street, Suburb D over $1,630,000; and

   (f)Sixthly, the balance, if any, to the wife

3. Otherwise all extant applications are dismissed.

THE COURT NOTES THAT:

A.This order replaces order 11(c) of the orders made on 1 May 2019 and the amending order made on 4 November 2020.

B.Orders 15 and 16 of the Orders made 1 May 2019 as to implementation remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Delaney & Delaney (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2723 of 2020

MS DELANEY

Applicant

And

MR DELANEY

Respondent

REASONS FOR JUDGMENT

1. The matters presently before the Court in this long-running saga are constituted by no less than three discrete applications. The first in time was an application for final property orders made pursuant to section 79A of the Family Law Act1975 (Cth) by the wife (the parties are divorced but it is still useful to use the nomenclature) on 8 December 2020, subject to an amended application on 23 February 2021 in which parenting orders were also sought.

2. The second in time is the husband's contravention application filed 22 December 2020 in which he seeks that the wife be dealt for alleged contravention of extant property orders.

3. The third in time is the wife's contravention application filed 23 February 2021 alleging contravention of parenting orders.

4. The matter is now bedevilled by the fact that the husband and wife are both self-represented and their materials filed from time-to-time are deficient in a number of ways.

5. For the reasons that follow I am going to summarily dismiss the wife's section 79A application and her parenting application and her interrelated contravention application in respect of parenting orders on the grounds that they have no reasonable prospects of success and/or are an abuse of process. The underlying complaint that has driven the husband's contravention application is clearly made out, but he has not articulated in any meaningful way precisely what remedy he seeks. I propose to issue enforcement orders to ensure that the former matrimonial home in C Street, Suburb D is sold and the proceeds distributed as has been ordered for a considerable period of time.

Background

1. In an earlier ruling on 4 November 2020, I observed paragraph [47]:

   It is readily apparent that this dispiriting case, which has been going on for some six years, is perhaps not anywhere near as much finalised as one might have hoped.  I very much feel that the parties will litigate for some time to come, not least in the County Court.  Nonetheless as between the parties, the position is that they finalised the matter in May 2019 and should be made to perform that agreement subject to reserving, as is in my view I repeat is entirely appropriate , Ms A's funds.

2. My observation that the parties would continue to litigate has, of course, been shown to be prescient as we now have no less than three applications before the Court (and a further application in a case by Ms A also before the Court).

3. To put this matter into proper context, it is appropriate to outline (and it is an outline only) the very sorry history of this matter.  As long ago as 29 August 2014, the husband filed an application seeking orders in respect to property and parenting issues.  That ultimately lead to a six day trial before Judge Small who made orders determining the matter on 2 June 2017.

4. An appeal by the wife in respect to property matters was allowed by the Full Court on 8 March 2018 and the matter was remitted for trial by a different judge.

5. I heard that matter over some four days in November 2018 and gave judgment on 18 January 2019.  Orders reflecting those reasons for judgment were taken out on 27 February 2019.

6. The applicant filed an application in a case seeking a stay and lodged an appeal on 3 April 2019.  On 8 July 2019, however, she filed a notice of discontinuance.

7. That notice of discontinuance followed orders made by consent on 1 May 2019.  It should be noted that from materials properly filed before the Court it is apparent that those orders were entered into by the parties at a time when they were legally represented and clearly represented a compromise of all extant property issues.  Relevantly, they provided for the wife to pay the husband $332,628 to purchase out his interest in the former matrimonial home on or before 20 June 2020.  Should she fail to do so there was an option to the husband to purchase within the defined period of time.

8. The wife did not purchase out the property on or about 20 June 2020, nor did the husband exercise his option within the time that the orders provided for.  The orders made on 1 May 2019 relevantly provided by clause 11(c) for a default option in the event that the husband did not exercise his option in time.  The default option was the sale of the former matrimonial home, and upon settlement, proceeds to be applied in a fashion to reflect the compromise that the parties had reached.

9. On 10 August 2020, the husband filed an application seeking in effect to extend the amount of time to enable him to exercise the option to purchase the matrimonial home.  He asserted, inter alia, that following the exhaustion of funds the parties had by agreement set aside to be applied to the mortgage he was now paying the mortgage from 21 March 2020 onwards.  He also deposed at paragraph 42 that all four of the children of the relationship were living with him since about August 2017.

10. The wife filed a response and an affidavit on 2 September 2020.  She now sought to retain the C Street, Suburb D property unencumbered, an order that the husband withdraw a caveat he had filed over the property and that he pay her $250,000 for her legal fees and HECS debt.  I note that at paragraph 54 of her affidavit the wife attacked the earlier decision of the Full Court that was favourable to the husband, and she repeated claims made in the currency of the proceeding as to alleged perjury by the husband.  At paragraph 108 of the affidavit, she sought to "reassess" the material in the 2018 trial because of an alleged understatement of income by the husband.  She deposed that child support assessments now showed an income of $284,034 for the 2018 year, not the $94,276 previously alleged.  She exhibited as 1 child support assessments in support of this assertion.

11. It should also be noted that amongst the other objectionable aspects of the wife's affidavit material, she sought to rely upon a report by an accountant which I had ruled to be inadmissible at the trial.

12. On 4 September 2020, the wife filed an application for contravention.  In large part this asserted that the husband had contravened extant orders by not permitting the two children, X born in 2006 and Y born in 2004, to live with her pursuant to the extant orders.  She also asserted that the husband had contravened the orders by taking food to the wife's household or delivering food to the children while they are in her care.  She also stated, inter alia, that the husband had contravened the extant orders by not allowing her to sell the C Street, Suburb D property.  The wife subsequently withdrew alleged contraventions in respect of Ms E and Mr F who were both effectively over 18.  Her affidavit in support is prolix (as has often been the case) and ran to some 142 paragraphs.

13. On 8 September 2020, the wife filed a further affidavit in part objecting to a foreshadowed possible joinder to the proceeding by Ms A.  She went on to complain about poor academic performance on the part of the children.

14. On 18 September 2020, Ms A filed an affidavit in which she referred to a judgment in her favour in the County Court of Victoria in the sum of $134,859.70, and a warrant of seizure and sale dated 10 February 2020.  The affidavit noted that on 8 September 2020, the wife had sought in the County Court to set those orders aside.

15. The husband filed written submissions on 21 September 2020 which noted, inter alia, that the husband had paid the mortgage since 21 March 2020 with the wife having ceased all contributions on 26 April 2020. The submissions noted that the wife was legally represented when the orders were made on 1 May 2019 and that there was no application before the Court pursuant to section 79A of the Act.

16. In response to any assertion made that the husband had not properly disclosed his income, the written submissions noted at paragraph 25.4 the sworn material in the husband's trial affidavit at paragraphs 26 to 28 and his income from Employer G at item 11 of his financial statement filed 13 November 2018.  The evidence given in the affidavit reads as follows:

    In 2016, I began working at Employer H earning $78,000 per annum.  I'm still employed in this position. 

    In 2017, in addition to my position at Employer H, I began working as a Manager at Employer J earning approximately $102,000 per annum.  In 2018, my employment at Employer J was terminated.

    In 2017, in addition to my position at Employer H, I began working as a sales representative at Employer K.  My position was not extended past the six month probation period and, therefore, my role was terminated In 2018.  At times I was working three roles simultaneously. 

    Currently I am only working for Employer H.  However, as a result of my past work history, the wife has threatened that she will tell Employer H I have worked for other employers whilst working for them in an attempt to blackmail me.

17. The husband's financial statement disclosed a total average weekly income of $2,558 which included at item 9 salary of $1,537 (consistent with the $78,000 disclosed) and $276 from Employer G (the two together being, together with rent received, the figure disclosed in the financial rental income received, together being the figure in the financial statement).

18. On 21 September 2020, the wife filed a further affidavit largely responding to Ms A's application.  I note, however, at exhibit “-2” she had asserted in 2019 that she had not been able to pay her legal fees because the financial split had not settled and asked for a further three months.  By 18 June 2019, she was clearly asserting that she refused to pay any of the outstanding costs.

19. Having heard these matters on 22 September 2020, I made a number of orders when I issued judgment on 4 November 2020.  Relevantly, I joined A Pty Ltd as a party as second respondent and I made orders designed to effect the order for the sale of the property.  I granted liberty to apply in respect of the implementation of the orders.  I also listed the wife's then extant contravention application before Judge O'Sullivan on 7 December 2020.

20. At paragraphs [36]-[37], I relevantly said:

    I notice that one of the matters said to support a re-examination of the matter is Annexure “-1”, an apparent assessment from the Child Support Agency dated 24 July 2020 which asserts not only higher income than that found by the Court during the trial but substantially adjusted income for the 2018 and 2019 tax years.  While these figures seem prima facie to be at variance with what I recall the Court being told during the trial, I know nothing about the circumstances that have given rise to these figures.  There are no reasons for judgment attached.  Taken on their own these figures do not in my view justify further investigation by the Court.  Any such matter would need to be brought properly pursuant to section 79A.  All the other matters raised by the wife are, in my view, irrelevant.

    It is immediately apparent, taking the wife's materials as a whole that in substance she simply does not like either the original resolution that the Court produced or the bargain that she subsequently made through her solicitors.

21. On 7 December 2020, Judge O'Sullivan dismissed the wife's contravention application pursuant to rule 13.10(a) of the Court's rules.  This was, of course, the parenting orders contravention brought on 4 September 2020 which in large part complained of the living arrangements for the two children who are still under 18.

22. Unsurprisingly this was not the end of the matter. On 8 December 2020, the wife filed an application expressly pursuant to section 79A of the Family Law Act.  She sought:

    Pursuant to section 79a of the Family Law Act, a reassessment of trial materials from the November 2018 Trial be ordered because of the miscarriage in justice arising from the husband's suppression of evidence and failure to disclose an accurate assessment of his income at Trial in the order of more than $200,000 per annum.

23. The wife’s supporting affidavit went on to repeat her assertions as the suppression of evidence by the husband and re-annexed copies of the child support agency assessment to which I have referred.

24. On 22 December 2020, the husband lodged a contravention application.  In substance (he was self-represented and the contravention is not properly drawn) he alleged a failure by the wife to comply with the orders for the sale of the property.  His affidavit in support plainly does show that the wife had failed to comply with any endeavours to cooperatively sell the former matrimonial home.

25. On 23 February 2020, the wife filed an amended application as earlier indicated.  This again sought re-assessment of the trial materials but now added an application for parenting orders such that X and Y live with her full time and spend time with the husband one weekend per month from Friday after school until Sunday.

26. The wife also filed on the same day a contravention application in which she complained that Y and X were not living with her pursuant to the Court orders, that the husband had inappropriately delivered food to her home while the children were with her, and that he had failed without reasonable excuse to do everything necessary to sell the C Street, Suburb D property.

27. The wife's affidavit in support deposed at paragraph 4 that the children had been living with the husband full time since at least April 2019, apart from a period in January 2020, but went on to assert that Ms E had been living with the mother since October 2020.

28. The wife sought at paragraph 5 by way of compensation for the husband's alleged conduct that the children - all four children - should live with her, default interest on her entitlement of the sale of the C Street, Suburb D property and other penalties.  I note that at paragraph 6, the alleged contraventions in relation to the provision of food appear to have been birthday cakes.  It is also asserted that the children's school grades had significantly declined while in the care of the father.

29. This is not the end of the litigation.  Ms A has filed an application in a case on 25 February 2021 seeking to increase the amount of moneys to be withheld from the sale of the property which has been adjourned.  Whether these reasons for judgment can be delivered before that adjournment remains open to question.

An Endeavour to Bring Some Order into this Chaos - The Wife's Section 79A Application

1. In substance, the wife's section 79A application is based squarely upon the child support assessment shown as $284,034 for the 2017 to 2018 year, and provisionally for the 2018 to 2019, $291,987, against previously assessed incomes of $102,002 and $123,403 respectively. In order to understand the force of this assertion, it is appropriate to look in more detail at my original judgment.

2. At paragraph [18], I noted that the husband worked two jobs for at least a period of 2012 to 2014.  He lost both his jobs by no later than November 2014 and his prior income of approximately $250,000 per annum was significantly reduced.  He was then largely unemployed until 2016 and had devoted much of his energies to the development of the business named Employer G.

3. I noted in paragraph [19] that the husband was employed by Employer H and earned approximately $70,000 per annum.

4. An examination of the text of the judgment shows that the extensive cross-examination did not put in issue what the husband had had to say in his affidavit and financial statement (reproduced earlier above) as to his income from work, although the wife did allege the husband had funds secreted away and had perjured himself.

5. At paragraph [153] I expressly found that the husband had not concealed funds in undisclosed bank accounts. I noted at paragraph 154 that the wife had a job paying some $80,000 per annum and private tuition income as well.  I noted at paragraph 155 that the husband earned about $70,000 a year but had a car fully paid as part of his employment.

6. I noted at paragraphs [156] to [158] that while Mr F was living full time with the father the position of the other children was less clear.  I noted that:

   it seems entirely probably the children are in fact being driven to live with the father by the unrelenting criticism that the mother, as I find offers, to the children of him. 

   Thus it is likely that, foreseeing the future as best one can, the father will have the care of at least two of the children for some time.  Of course, their ages means that they will relatively soon cease to be a financial burden.  Those living predominantly with the wife will be longer. 

   Taking all these matters together, the parties' future needs should be assessed as a weighty five per cent in favour of the husband.

7. Looking at the materials anew, and in rather greater detail than I evidently did when I gave my judgment in November 2020, it is apparent that the husband's unchallenged evidence was that he had three jobs but the by the time of trial had only one.  This, indeed, is what is said in his oral submissions when the matter came on before the Court.  He disclosed his income from Employer G as well.  The combined totals of his income are, in my view, commensurate with the figures given as the provisional income in the child support assessment.  This additional income plainly relates back to a period when the husband had three jobs and the provisional assessment for the latter year is simply an indexation of the previous figure.

1. There are several points to be made.  First, all parties are prima facie bound by their conduct at the trial.  Accepting that the wife was self-represented, she made no real challenge at that time to the husband's assertion as to what his income was, nor his recitation as to how that came to be. Rather she concentrated on his alleged concealment of funds and the alleged understatement of the value of Employer G.

2. The wife has said that she only became aware of the child support figures in 2020 and I am prepared to accept in her favour that that is so. In oral submissions the wife repeated her assertions that the husband has hidden his income and assets and perjured himself in doing so.

3. The question that needs to be considered, of course, is whether, prima facie, the wife has any real prospect of making good her claim that the husband supressed evidence in the fashion that she asserts.  In the face of the husband's original explanation and in the face of the child support figures, I am completely unpersuaded that if the matter were to be reopened the wife would be able to prove the suppression of evidence that she alleges.  The figures are not incomprehensible and are already explained by the husband's sworn evidence in the trial. Insofar as the wife otherwise seeks to revisit the issue of concealment of funds, this is a clear attempt to reagitate a matter conclusively dealt with in my judgment. It is a clear abuse of process.

4. In my view, the application brought pursuant to section 79A should be dismissed pursuant to section 45A of the Family Law Act, which relevantly provides:

   Section 45A

   Summary decrees

   No reasonable prospect of successfully defending proceedings

   (1)  The court may make a decree for one party against another in relation to the whole or any part of proceedings if:

   (a)  the first party is prosecuting the proceedings or that part of the proceedings; and

   (b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

   No reasonable prospect of successfully prosecuting proceedings

   (2)  The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

   (a)  the first party is defending the proceedings or that part of the proceedings; and

   (b)  the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

   When there is no reasonable prospect of success

   (3)  For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)  hopeless; or

   (b)  bound to fail;

   to have no reasonable prospect of success.

5. In the face of my conclusions above it is clear that the s79A application has no reasonable prospects of success.

The Parenting Application Brought by the Wife both in her Amended Application and in her Contravention Application

1. It should be noted that these applications are essentially repetitions of the contravention application that was dismissed pursuant to rule 13.10 of the Court's rules by Judge O'Sullivan last year.  His Honour dismissed that application as a result of the numerous technical deficiencies contained in it. Those difficulties are by no means wholly removed in the current application.

2. Accepting that some parts of the contravention application might be capable of being properly put to the father, and noting that the amended initiating application parenting orders are almost entirely in substance the same, nonetheless they are, in my view, such as to have no reasonable prospects of success.  The two children with whom we are concerned are 16 and 14 (rapidly approaching 17 and 15) and have clearly voted with their feet.  They have been living with the husband, it would seem, full time since 2017.  Any endeavours to force change upon them given their age would have, in my view, no reasonable prospects of success.  This puts the matter shortly but, in my view, it is sufficient to dispose of this aspect of the application.

The Husband's Contravention Application

1. The contravention application is so poorly crafted as to be incapable of giving rise to any operative orders.  Contravention applications are applications involving penalties in part that are known to the criminal law system.  Laxity in expression cannot be permitted.  While it is clear that the wife has refused to cooperate with the sale process, the answer to this is enforcement of the sale process itself.

The Disposition of the Sale Controversy

1. It will be noted that I granted the parties liberty to apply in respect of the implementation of the orders made in November 2020.  In the circumstances, I will treat the contravention as in effect enlivening that liberty to apply.

2. This matter has gone on far too long and must come to an end.  Given the wife's refusal to cooperate in the sale process, I am going to make the necessary orders of my own motion that will enable the sale of the property.  If the wife continues to be obdurate, the liberty to apply will still be available for use.

Conclusion

1. I have said before and repeat that this is a dispiriting case.  The wife's obsession with the husband's alleged misconduct (putting the matter in a very global way) is not in any sense abating and is regrettably unlikely to do so.  She needs to understand, however, that this matter really is concluded.  Subject only to the disposition of Ms A's application, the sale of the property must take place and the proceeds must be distributed in the fashion I have earlier determined

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 26 March 2021