Ebrey-Miers and Miers
[2018] FamCAFC 34
•14 February 2018
FAMILY COURT OF AUSTRALIA
| EBREY-MIERS & MIERS | [2018] FamCAFC 34 |
| FAMILY LAW – APPEAL – PROPERTY – where the wife appealed final property orders – where the wife failed to comply with appeal directions – where the wife was notified in writing that her appeal may be dismissed pursuant to r 22.45 – where the wife did not appear at the appeal proceedings – where the appeal was heard undefended – where the Court determined to consider the merits of the appeal – where the appeal had no merit – appeal dismissed – wife ordered to pay costs. |
| Family Law Act 1975 (Cth) ss 79, 117 Family Law Rules 2004 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Gallo v Dawson (1990) 93 ALR 479 Lenova & Lenova (Costs) [2011] FamCAFC 141 Nada & Nettle (Costs) (2014) FLC 93-612 Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| APPELLANT: | Ms Ebrey-Miers |
| RESPONDENT: | Mr Miers |
| FILE NUMBER: | BRC | 1610 | of | 2016 |
| APPEAL NUMBER: | NOA | 33 | of | 2017 |
| DATE DELIVERED: | 14 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 14 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 1908 |
REPRESENTATION
| FOR THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENT: | JMW Legal |
Orders
The Appeal filed 4 August 2017 is dismissed.
The Appellant pay the Respondent’s costs fixed in the sum of $12,850 within thirty (30) days from the date of these orders.
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 Ebrey-Miers & Miers 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 33 of 2017
File Number: BRC 1610 of 2016
| Ms Ebrey-Miers |
Appellant
And
| Mr Miers |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]As indicated orally during the delivery of the reasons, the settled reasons will contain the quotations mentioned orally and citations for any cases, legislation or rules will be cited.
On 3 August 2017 Judge Vasta made orders for settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (‘the Act’). The wife appeals those orders.[2]
[2]On 31 January 2018 the Chief Justice made an order pursuant to s 94AAA(3) of the Act that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge and it was heard by me today on that basis.
The history leading up to the hearing this morning is somewhat checkered. On 9 August 2017, the wife filed an application to stay his Honour’s orders. On 14 August, on the hearing of that application, the wife failed to appear. Notwithstanding her non-appearance, his Honour considered the matter on the merits and found that there were no grounds for a stay of the orders.
On 21 August 2017 the wife filed a second application for a stay of the orders and on 29 August 2017 that application was heard. No new grounds for a stay were raised subsequent to the first application. His Honour dismissed that application for reasons which his Honour gave on 30 August 2017.
Subsequently a number of requirements on the wife were dictated by the provisions of the Family Law Rules 2004 (Cth) (‘the Rules’). In particular the wife was required to file a Summary of Argument and was also required to provide a transcript of the proceedings.
The wife failed to provide the Summary of Argument in accordance with directions and, in respect of the second direction to which I have just referred, filed a transcript only in respect of the first day of the trial proceedings.
On 11 January 2018 the Appeals Registrar advised the wife of the terms of r 22.45 of the Rules and she was given notice that consideration would be given by me at the hearing of the appeal today as to whether her appeal should be struck out by reason of her non-compliance with those directions. It should be noted that in the period preceding that letter (I am told today from the bar table), by reference to annexures now forming Exhibit 2 in these proceedings, there were a number of communications between 4 December 2017 and 19 December 2017 whereby the husband’s solicitor made requests of the wife to comply with directions. Plainly enough they were not complied with.
At the hearing this morning the wife failed to appear. The transcript of the proceedings before me this morning will record what occurred.
In broad summary, her name was called three times prior to the commencement of the proceedings. I required her name to be called three times again, which it was. At approximately 10.15 am out of an abundance of caution, I stood the matter down to 11.00 am to avail the wife of the opportunity to appear should she be, for example, running late.
Both counsel for the husband and his instructing solicitor kindly ascertained whether she was present in the precincts of the Court including looking into Judge Vasta’s courtroom in anticipation of her perhaps going to his Honour’s courtroom rather than this courtroom. Those investigations proved fruitless.
When the matter resumed at 11.00 am I had the court officer read into the record his attempts to contact the wife by telephone. Those communications went to voicemail and there has been no communication from the wife since.
All of the circumstances to which I have referred speak strongly of dismissal by reason of the wife’s non-compliance with the Rules and/or by reason of her non‑appearance this morning. However, I consider it appropriate, notwithstanding those matters, to enter upon the merits of the appeal and to decide this appeal accordingly.
The appeal is entirely without merit. By reason of the grounds and circumstances which will emerge, and because this appeal raises no issues of principle, my reasons will be short.[3]
[3] Family Law Act 1975 (Cth) s 94AAA(7).
Brief Overview
The parties married in December of 2014, having commenced a relationship in late 2012. They separated in early 2016. There are no children of the marriage. There was, on any view, significant conflict between the parties and throughout the relationship the parties had several periods of separation. The conflict was so acute that even on the evening of their wedding, a domestic dispute saw the wife in the watch house after the husband called the police to their home.[4]
[4] Trial Affidavit of the wife filed 6 May 2016, Annexure 15.
Properties were acquired and sold during the course of the parties’ relationship, and on separation the parties had interest in three real properties. His Honour assessed the net value of the interests in property of the parties or either of them as approximately $594,000, comprising the husband’s business, two commercial properties, one encumbered by mortgage, a residential property encumbered by mortgage, two motor vehicles, household contents and savings accounts.
In broad overview, his Honour ordered that the wife vacate the residential property, and return the motor vehicle in her possession to the husband, and that the parties each retain their own personal possessions and bank accounts. Again by way of broad summary, it might be said that his Honour’s orders in this very short relationship permitted each of the parties to retain the property with which they had entered the relationship.
His Honour’s ultimate determination rested in large part on his Honour refusing to accept an assertion by the wife that she had contributed $250,000.00 in cash in about May 2013. There was no documentary or other corroborative evidence of that asserted cash injection; the finding that was made turned on the wife’s evidence and also on the evidence of the husband.
Again speaking broadly, his Honour accepted the evidence of the husband and rejected the evidence of the wife. His Honour found that no cash injection as alleged by the wife occurred. In doing so his Honour made a specific finding that the wife was untruthful in so asserting. Reference to the evidence before his Honour reveals that this central finding was entirely open to his Honour.
A consequence is, of course, that all of the property of any substance in this short relationship was contributed to by capital contributions made by the husband.
The Grounds of Appeal
The wife was self-represented before his Honour, and appears to have represented herself in respect of all aspects of procedure related to this appeal. As drawn, her grounds of appeal are as follows:
1. I had no legal representation.
2. I did not understand the Court procedure.
3. Judge refused ‘leave’ to update and file, updated witness affadavits [sic].
4. Judge refused ‘leave’ to seek further evidence.
5. Judge refused to hear all my witnesses.
6. No Valuations were given to property.
7. Unit has another resident with lease.
8. No Cost should have been ordered.
As framed, and absent any particularity, none are recognisable as proper grounds of appeal.
By reason of the wife’s failure or refusal to comply with directions made for the appeal, and of course by reason of her non-attendance this morning, no further context for any asserted error or any reframing of any asserted error can occur.
As I have said, notwithstanding the wife’s non-compliance and her failure to appear, I determined to address those grounds of appeal as best I can. At the outset, I should say with all respect to her, the grounds themselves not only do not make sense to me, but I am unable to see what errors they advance.
Grounds 1 to 5 – Procedural Unfairness
Grounds 1 to 5 can conveniently, I think, be dealt with together as assertions of a lack of procedural fairness and, in particular, a lack of procedural fairness emanating from the wife’s self-representation below.
Taken together, Grounds 1 and 2 amount to little more than an assertion that she suffered from the disadvantage of not having legal representation. That disadvantage might be accepted, but it is not of itself sufficient to attract appellate intervention.[5]
[5] See, eg, Gallo v Dawson (1990) 93 ALR 479.
It is clear from the transcript of proceedings, or such of the transcript that the wife made available, that his Honour was acutely aware of the wife’s lack of representation. On at least four occasions, his Honour explained to the wife what was to occur and was occurring and ensured that she understood what was being said. She indicated on each of those occasions that she did understand. [6]
[6]Transcript, 1 August 2017, pp 6, 15, 30 and 40; Note that only the transcript for the first day of proceedings was provided by the wife.
The wife at no stage raised issues relating to the manner in which the proceedings were conducted. By reference to the only part of the transcript provided by the wife, she did not indicate to his Honour any lack of understanding in respect of any aspect of the proceedings that was not explained by his Honour, nor am I able to see from the transcript any occasions when the wife’s self‑representation required more of his Honour than what he availed the wife.[7] I am also unable to see any other evidence on the materials before me of his Honour not affording to her any aspect of procedural fairness.
[7]By reference, for example, to the guidelines provided in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
Grounds 3 to 5 all assert irregularities pertaining to what the wife alleges was evidence she sought to adduce at trial but which his Honour prevented from being adduced. The wife’s failure or refusal to comply with trial directions makes it necessary to examine such of the transcript as provided by her so as to put the wife’s assertions in their proper context.[8]
[8]Such failure to comply with trial directions caused the primary judge to say, with respect, not inaccurately: “Now, we’re just having to muddle along because you didn’t want to do what I asked. Okay?”; See Transcript, 1 August 2017, p 9 ln 9–10.
It seems the wife intended to rely upon the affidavits of three witnesses, apart from herself: Mr C, Ms R and her sister Ms F.[9] Their evidence consisted of statutory declarations appended to the wife’s affidavit. Mr Bunning of counsel who appeared for the husband at trial made it clear that he required those witnesses to appear in person at the hearing so that they might be cross-examined. It seems Ms R and the wife met in gaol during one of the wife’s incarcerations.
[9] Transcript, 1 August 2017, p 21 lns 1–10.
The wife asserted that both Ms R and Ms F would not attend the hearing to be cross-examined out of fear, due to threats from the husband. During the proceedings below, Mr Bunning made a call for those threats to be particularised, presumably so that he might cross-examine the witnesses about them. In fact, it transpired that Ms R appeared at the hearing – but she appeared as a witness for the husband. In simple terms her evidence did not assist the wife’s case.
Having seen Ms R appear and her having adduced evidence that did not assist the wife, counsel for the husband made a decision not to press the call for a subpoena for Ms F to appear. While discussing the issues of evidence sought to be explained by counsel for the husband, I should mention that the wife’s bank statements were also called for at the proceedings below. Those bank statements were central to an assertion by her that she had contributed the $250,000.00 to the relationship which she alleged. The bank statements were not produced by her.
It is, in my view, abundantly plain that his Honour had given both parties ample opportunity to file affidavits upon which they intended to rely; in particular the wife was afforded that opportunity. At no time did his Honour refuse to hear a witness whose affidavit, or evidence in another form, was apparently being relied upon by the wife. Indeed, in light of the wife’s non-compliance with trial directions, his Honour can be seen to have given the wife significant latitude in the evidence relied upon by her.
There is no merit in Grounds 1 to 5.
Ground 6 – Valuation of property
His Honour states at [17(e)] that “[t]he Respondent submits that [the unit] is worth more than [$280,000.00], but cannot tell me anything more than that”. That statement by his Honour is a convenient summary of the fact that the primary judge adopted the evidence of the husband as to the relevant values. Crucial to this alleged ground of appeal, at no time did the wife assert that she wished to call evidence of value. She was given ample opportunity to call evidence of value. She did not do so. In the transcript provided by the wife there is no discussion of the value of the property.[10]
[10] Transcript, 1 August 2017.
It was for the wife to assert and prove through admissible evidence any asserted value of any relevant property by which she sought to contradict evidence of the husband. She did not avail herself of the opportunity to present that evidence. There was no impediment to her doing so. She never at any stage, as seen in the transcript of proceedings filed by her, indicated any desire to adduce that evidence, nor is there any other suggestion that she intended to do so. The wife’s failure to adduce evidence of value did not result from any action or inaction on the part of the primary judge.
Again, this ground is without merit.
Ground 7
Not only does this ground reveal no appealable error it is, with respect, entirely meaningless.
Again, by reason of the absence of any written outline of argument and by the wife’s non-appearance this morning it is not elucidated further.
Ground 8 – Costs Order
The gravamen of the wife’s complaint is, it seems, that his Honour did not accept her arguments. That is not a proper basis for an appeal.
Despite the terms of s 117(1) of the Act, an order for costs is, by reason, of s 117(2) and (2A) in the discretion of the primary judge. His Honour gave particular emphasis, as with respect he was entitled to do, to three of the matters enumerated in s 117(2A). His Honour at [99] took account of an offer to settle that had been made by the husband and the contentions in the respective outline of case documents including that of the husband. Secondly, his Honour considered that the wife was “wholly unsuccessful” (s 117(2A)(e)) and his Honour took into account, as in my view he was entitled to do, what he found to be the wife’s “abject dishonesty” (at [101]; s 117(2A)(c)).
Each of the findings which his Honour made in relation to the issue of costs was, in my view, open to his Honour. Each was entirely relevant to the exercise of his Honour’s discretion. Nothing which I have seen suggests that his Honour failed to take account of relevant considerations or took account of irrelevant considerations or otherwise erred in a discretionary appellate sense.
There is no merit either in this ground.
Conclusion
The appeal will be dismissed. I will make such an order.
Costs
Mr Bunning sought, on behalf of his client, an application for what are frequently called indemnity costs. At least insofar as indemnity costs, properly so called, are sought, the relevant principles outlined by Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd[11] have frequently been cited in this Court as being those applicable to its proceedings, bearing in mind of course the provisions of s 117(1).
[11] (1993) 118 ALR 248.
The reference by Sheppard J, and other cases, to circumstances being extraordinary in order to justify an order for indemnity costs might be seen to apply all the more so by reason of s 117(1) of the Act.
Recognising each of those things Mr Bunning submits on behalf of the husband that, primarily, the wife’s conduct in and about this appeal justifies that conclusion.
In that respect Mr Bunning relies again upon the chronology which forms Exhibit 1 in these proceedings. In addition, Exhibit 2, which constitutes an email response to the letter from the solicitors for the husband, and the matters raised within it, is also relied upon. Among other things, that document indicates that the wife will continue with her appeal. Plainly enough she has not done so. She also indicates that she has engaged a solicitor: no solicitor appears for her; or has filed a Notice of Address for Service; or otherwise communicated with the Court.
Thereafter the email, in response to, what seems to me to be perfectly legitimate and proper enquiries made by the solicitors for the husband on his behalf in relation to the wife’s failure to comply with directions for the hearing of the appeal, can be essentially described as a series of threats. For example she indicates in that email that she has been “busy with a private investigator” and says after making a number of other statements: “so let the saga continue” (see Exhibit 2).
That email is relied upon in conjunction with matters already referred to in my reasons for dismissing the appeal. In particular it is said that it, in effect, summarises the wife’s conduct and attitude towards the appeal.
The wife has failed to comply with the directions of the Appeals Registrar as she did, in fact, at the trial of the proceedings. Despite indicating to the representative of the Court on Monday that she would appear at the proceedings, she failed to do so. Despite affording her an opportunity to appear, including an opportunity to appear significantly later than the scheduled time, she has failed to appear to prosecute her appeal.
In my view the appeal never at any time had any merit whatsoever. As I have already said, many of the grounds do not constitute proper grounds of appeal at all. Given that the wife is self-represented, had she attempted to file, as she was required to do, an outline of argument, and had she appeared by herself at the hearing of the appeal, attempts would have been made to reframe those grounds in the form of recognisable discretionary error. Her failure to do so is down to her own actions and inactions and nothing else.
In all of the circumstances, I consider that the circumstances in and about this appeal can properly be described as extraordinary. In doing so, I am cognisant of the principle that no order for costs, including orders for indemnity costs, or solicitor and own client costs, are to be seen as a punishment for the wife and nothing I have said suggests that they are being awarded in that fashion.
Rather, the husband has been put to significant expense in responding to an appeal that never had any merit and in circumstances where he has, through his solicitors, done everything within his power to either avoid the appeal proceedings, or if they were to proceed, have them proceed on a proper basis.
By reference to the Rules, I am unable to order indemnity costs unless I have before me relevant documentation outlining the proper bases for costs incurred by both counsel and solicitors.[12] In the former case that is provided by Mr Bunning tendering his costs agreement, which I will formally mark as Exhibit 3 in the proceedings, and by seeking leave to read and file an affidavit of his instructing solicitor which outlines the costs, their total, and the basis of them, being the client retainer and costs agreement annexed thereto.
[12] Family Law Rules 2004 (Cth), r 19.08(3).
In summary, the costs deposed to in the affidavit on the part of the solicitor, based on that retainer agreement, are $8,502.15 (including GST) – they being the costs incurred by the husband since the decision was handed down on 3 August 2017. Mr Bunning’s claimed fees are $3,500.00 plus GST for the day.
In addition to the matters deposed to by the husband’s solicitor, I am informed by Mr Bunning today that an additional $1,000.00 including GST is claimed.
In total then, is an amount of approximately $9,500.00 in solicitors’ costs and $3,500 plus GST for the husband’s counsel. Purely for ease of reference and recovery, I will fix the solicitors costs of and incidental to the appeal in the amount of $9,000.00 inclusive of GST, and I will fix counsel’s fees at $3,850.00 inclusive of GST, making it a total of $12,850.00.
I will order that the wife pay those costs within thirty (30) days.
I should add that I have no evidence before me of the financial circumstances of the parties. Again, that is at least partly a function of the wife not appearing this morning. The practice of this Court in appeals is to accept broad assertions of financial circumstances from each of the parties for the purposes of avoiding further appearance and cost to them in respect of costs arguments.
I think I can conclude from what I have read that the wife’s financial circumstances are modest to say the least, however as has frequently been said impecuniosity is not a bar to a costs order, including an indemnity costs order, because if it was litigants could litigate with impunity and immunity.[13]
[13]Nada & Nettle (Costs) (2014) FLC 93-612, 79,589; See also, Lenova & Lenova (Costs) [2011] FamCAFC 141.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 14 February 2018.
Associate:
Date: 28 February 2018
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