DERN & FAIRMAN
[2016] FamCAFC 165
•17 August 2016
FAMILY COURT OF AUSTRALIA
| DERN & FAIRMAN | [2016] FamCAFC 165 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant did not attend the hearing – Where the matter proceeded on an undefended basis – Where counsel for the appellant conceded there was no appellable error – Where counsel agreed the more appropriate remedy for the appellant is pursuant to s 90SN of the Family Law Act 1975 (Cth) – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where the appellant resisted such order on the basis of impecuniosity – Where the appeals registrar raised with the solicitors for the appellant other remedies including r 16.05 of the Federal Circuit Court Rules 2001 (Cth) – Appellant to pay the respondent’s costs of the appeal, to be assessed if not agreed. |
| Family Law Act 1975 (Cth) s 90SN Allesch v Maunz (2000) 203 CLR 172 | ||
| APPELLANT: | Ms Dern | |
| RESPONDENT: | Mr Fairman |
| FILE NUMBER: | BRC | 2251 | of | 2015 |
| APPEAL NUMBER: | NA | 33 | of | 2016 |
| DATE DELIVERED: | 17 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 April 2016 |
| LOWER COURT MNC: | [2016] FCCA 1670 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kissick |
| SOLICITOR FOR THE APPELLANT: | Carswell & Company |
| FOR THE RESPONDENT: | Mr Fairman (in person via telephone) |
Orders
The Appeal be dismissed.
The respondent’s Application to adduce further evidence is dismissed.
The appellant pay the respondent’s costs to be assessed, if not agreed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dern & Fairman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA33 of 2016
File Number: BRC2251 of 2015
| Ms Dern |
Appellant
And
| Mr Fairman |
Respondent
REASONS FOR JUDGMENT
On 17 May 2016 Ms Dern (“the appellant”) filed a Notice of Appeal from property orders made by Judge Coates on 20 April 2016. The hearing proceeded before Judge Coates on an undefended basis as the appellant failed to appear. The orders made by his Honour effected a distribution of property as between the appellant and Mr Fairman (“the respondent”), which included assets of a business, a number of chattels and that the appellant pay the respondent’s costs.
The appellant seeks leave to appeal, and if leave is granted, has three grounds of appeal:
1.The [appellant] was denied natural justice.
2.The [appellant] didn’t get the opportunity to be heard.
3.The Judge failed to take into account all of the information.
As the orders were in the nature of final property orders leave is not required. If the appeal is granted, the appellant seeks that the orders made by Judge Coates on 20 April 2016 be set aside and the matter be remitted for a rehearing.
Having heard submissions from counsel for the appellant where he conceded that there was no appellable error apparent in the reasons or orders and that the more appropriate remedy is pursuant to s 90SN of the Family Law Act 1975 (Cth) (“the Act”), the appeal will be dismissed.
Background
It is convenient to set out the background to this matter, and the reasons of the trial judge.
The appellant filed her initiating application on 23 March 2015. On 18 May 2015 Judge Cassidy made a number of orders by consent, including that both parties provide additional disclosure and that the appellant make repayments on a business loan account. A claim for spousal maintenance was withdrawn by consent. Further orders were made for the parties to attend a conciliation conference. The matter did not settle and was adjourned until 19 August 2015.
Although the appellant did file some material, she failed to make disclosure as required by the orders made by Judge Cassidy. The respondent addressed this failure to disclose in his affidavits dated 23 October 2015 and 20 April 2016. In the affidavit dated 23 October 2015, the respondent notes that the appellant’s solicitors were put on immediate notice about the lack of disclosure. The appellant’s lack of compliance was set out in great detail in the respondent’s affidavit of 20 April 2016.
On 19 August 2015 the matter was adjourned to 29 October 2015. On 27 October 2015, the respondent filed an application in a case seeking an immediate return of some possessions, sale of the business and a number of other relevant orders. On 29 October 2015, Judge Cassidy made orders requiring the appellant to file and serve a response to this application, and adjourned the matter to 23 November 2015. The appellant did not comply with these orders.
On 23 November 2015, orders were made for the valuation of the business assets and also to appoint an expert. The appellant failed to comply with these orders.
On 22 February 2016 the appellant filed a Notice of Discontinuance of her application for property distribution.
On 23 February 2016, with the appellant’s solicitor present and the respondent in person appearing before the judge, his Honour made the following orders:
1.That this matter be adjourned for an Undefended Hearing at 9.00 am on Wednesday, 20 April 2016 in the Federal Circuit Court of Australia at Hervey Bay.
2.That the [appellant] appear in person at Court on 20 April 2016.
IT IS NOTED:
A.That in the event the [appellant] fails to appear in person at Court on 20 April 2016, the Court may make orders on a final basis in her absence.
It was not suggested by counsel that the appellant was unaware of the orders requiring her attendance and giving notice that the matter would be heard on an undefended basis.
Reasons of the Trial Judge
On 20 April 2016, the appellant did not appear in person in court. The respondent and his solicitors appeared on time for the hearing.
The judge gave substantial reasons for the property orders. The trial judge recorded that at the time of the hearing, the appellant was aged 44 and the respondent aged 47. The parties were in a de facto relationship which commenced in 2012 and ended in February 2015.
The appellant’s initiating application originally sought a division of property of 30 per cent in her favour, and spousal maintenance. As mentioned, the spousal maintenance component was discontinued by consent. It was noted that the parties shared a property, and had a business which was apparently in the appellant’s control following the separation.
As recorded earlier in these Reasons, but also by the trial judge at [16], the appellant did not comply with orders for appointment of experts or valuations of the property and business. The appellant also failed to disclose a number of matters relating to her financial circumstances.
At [20] it was found the parties had a net property pool of $160,022. At [23] the trial judge concluded that it would be appropriate to divide the property 75 per cent to the respondent and 25 per cent to the appellant. In making this finding, the trial judge noted:
24.As one can see, just reading the bare orders sought by the [appellant] in her Initiating Application, she sought 30 percent of the pool.
25.The problem for the court was that the court does not know what that 30 percent was based on, because she has simply failed to cooperate with the process.
26.I am entitled, in my view, to rely on the [respondent’s] evidence and he is entitled to have the court rely on that evidence because he complied with the proceedings and the directions orders and the wife did not comply with the proceedings and the directions given.
The appellant’s conduct was the subject of some examination by his Honour. At [29] the trial judge remarked:
29.It is difficult to try and make head nor tail of what her case is and what is to be taken into account, especially when one party just fails to take part meaningfully and when one party – and it is the wife in this case – takes part in a manner merely designed to delay, to manipulate, to force issues on her terms instead of allowing the court to make a decision on the law as stated in the Act.
Similar observations were made at [32] and [52] of the Reasons.
At [27] – [54] the trial judge makes a number of findings as to financial and non-financial contributions of both the parties. The respondent was found to have made the “major contributions financially” and the appellant was found to have made more “limited” financial contributions. These findings were based on the unchallenged evidence of the respondent:
54.Those orders, in my view, are just and equitable.
55.They are based upon the fact that the [appellant] has just failed to disclose, even though she has had numerous appearances and has had legal advice, and knew or must have known that she was to disclose everything if she disagreed with what the [respondent] was asking for. She was required to put a case which the court can consider.
The trial judge then considered the issue of costs. His Honour determined that this was a case that justified a costs order, being the appellant’s complete failure to cooperate. The appellant also apparently refused offers to settle the matter out of court. In light of these circumstances, the husband was awarded his costs of and incidental to the matter.
The Appeal
The basis for the appeal is that on the day of the hearing the appellant was unrepresented and sought legal advice from the duty lawyer usually located near the Registry. It was during this time that the appellant’s matter was dealt with in her absence. In the Notice of Appeal the appellant notes:
6.The [appellant] was present at the Federal Circuit Court Sittings in Hervey Bay from 9.00am until after the matter had been heard.
7.Once the Associate became aware of the Applicant’s presence in the court, she went to Judge Coates and asked if the matter could be re-heard on the basis that there had been a miss-communication [sic] however His Honour Judge Coates refused to hear the request.
These statements are telling because in the appellant’s summary of argument, the following is recorded:
7.The transcript of the proceedings of 20 April reveals that the matter was commenced in Court prior to 9am: The record demonstrates that the hearing commenced at 8.58am and it is clear that at a time prior to 8.58am the [appellant’s] name had been called.
It is not clear when the appellant arrived at the court. As Mr Kissick submitted, evidence in relation to these circumstances would be necessary to support her case. This evidence is likely to be controversial.
The respondent attempted to file an Application to adduce further evidence prior to the hearing of this appeal, and seeks leave during the appeal to file an affidavit. The affidavit describes the circumstances of the hearing on 20 April 2016 from the respondent’s point of view. In particular, the respondent disagrees with the appellant’s version of events on the morning of 20 April 2016 and does not agree the appellant arrived in time for the hearing.
The appellant’s summary of argument asserts that the appellant has a “fundamental right … to appear and be heard on the matter.” Reference was then made to the High Court authority of Allesch v Maunz (2000) 203 CLR 172 (“Allesch”) and in particular Kirby J’s reasons at [35], to support this argument.
Reference to the following paragraphs in Allesch explains that giving the appellant the opportunity to be heard is what is required. The appellant had that opportunity. The further quotes below from the decision of Kirby J are instructive:
38… Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40Nor 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), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(footnotes omitted)
The appellant is no doubt correct that she has a fundamental right to be heard. But the reality remains that the appellant was afforded a right to be heard, to disclose the relevant financial information to the court in the lead up to the hearing, and to be present. The appellant failed in each of these matters.
As properly conceded by counsel for the appellant, little is argued to demonstrate that the decision made by the trial judge is wrong. The summary of argument does not suggest any errors in the reasons, only that the appellant was denied an opportunity to be heard.
The respondent correctly argues that the appellant has failed to demonstrate any error on the part of the trial judge, or “that reopening the matter might reasonably produce a materially different result”.
The appellant argues that she did attempt to appear, but simply missed the notice the hearing had commenced. The appellant has not demonstrated any error on the part of the trial judge, and the appeal must fail. As discussed with counsel for the appellant, the better course for the appellant is to make an application pursuant to s 90SN of the Act seeking to set aside the property orders.
As there was no application that the appeal be adjourned until the hearing of the proposed s 90SN(1)(a) application and as there is no apparent merit in the appeal, it should be dismissed.
Costs
Although the respondent appeared for himself on the appeal, he explained that solicitors had prepared his submissions. The fees incurred were $2,890 excluding GST. Mr Kissick resisted an order for costs on the basis of the appellant’s impecuniosity. An order for costs should be made. It seems the Appeals Registrar raised with the solicitors for the appellant other remedies including r 16.05 of the Federal Circuit Court Rules 2001 (Cth). In addition, the appellant has been wholly unsuccessful.
It is therefore appropriate that the respondent’s costs of the appeal should be paid by the appellant, to be assessed if not agreed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 17 August 2016.
Associate:
Date: 17 August 2016
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