Findlay and Daniels - [2010] FamCAFC 169

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS

[2010] FamCAFC 169

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where there is no satisfactory explanation for the delay in filing the Notice of Appeal or the delay in filing an application seeking an extension of time – where the proposed grounds of appeal are incomprehensible and lack merit – where the history of the proceedings and the wife’s conduct as identified in the trial judge’s reasons are relevant – where the husband should be able to retain the judgment and not have to deal any further with the applicant’s conduct – where the justice of the case requires that the application be dismissed.

Family Law Act 1975 (Cth) s 94(2F)

Gallo v Dawson (1990) 93 ALR 479
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Findlay

RESPONDENT:

Mr Daniels

FILE NUMBER:

MLC

1996

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

7 September 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 August 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 March 2010

LOWER COURT MNC:

[2010] FamCA 195

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr A Combes

SOLICITOR FOR THE RESPONDENT:

Holt & Macdonald Pty Ltd

Orders

The Application in an Appeal filed by the wife on 29 June 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Findlay & Daniels is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 42 of 2010
File Number: MLC 1996 of 2008

Ms Findlay

Applicant

And

Mr Daniels

Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application in an Appeal filed by the wife on 29 June 2010 seeking in effect an extension of time to file a Notice of Appeal against orders made by Dessau J on 9 March 2010. Although that was not precisely how the wife expressed it in her application, at the commencement of the hearing I clarified that this was what she was wanting to achieve.
The application was supported by an affidavit filed on the same day and a Draft Notice of Appeal.
The application was opposed by the husband. On 12 August 2010 he filed a Response seeking that the application be dismissed, and two affidavits in support of that Response, one by him and one by his solicitor.
At the hearing the wife appeared without legal representation, but the husband was represented by counsel.

Background facts

On 5 March 2008 the husband filed an Application seeking orders for property settlement.
On 7 May 2008 the wife filed a Response to that application.
The final hearing took place before Dessau J over four days commencing on 30 November 2009 and concluding on 4 December 2009.
On 22 December 2009 Dessau J delivered her reasons for judgment. However, she was not able to make the final orders at that time because of the need for further evidence and submissions as to how the orders should be expressed. Thus, her Honour adjourned the matter to 4 February 2010 for those orders to be made.
On 4 February 2010 her Honour received further submissions and adjourned the matter to 19 February 2010.
On 19 February 2010 her Honour received further evidence and further submissions and adjourned the matter to 9 March 2010.
On 9 March 2010 Dessau J delivered her further reasons for judgment and made final orders including orders for costs.
On 7 April 2010 Forte Family Lawyers, ostensibly acting for the wife, forwarded to the Court, in triplicate, a Notice of Appeal against the orders of 9 March 2010 and the requisite filing fee.
On 9 April 2010 the Acting Regional Appeal Registrar sent a letter to Forte Family Lawyers returning the Notice of Appeal advising that the notice had not been accepted as it was not filed within the 28 days specified by the Family Law Rules (namely by 6 April 2010), and advising that if the wife wished to proceed with the appeal, she was required to file an application for an extension of time to lodge an appeal. The Registrar also suggested that alternatively the husband’s consent to the late filing of the Notice of Appeal be sought as the notice was only submitted one day late.
On 12 April 2010 Jane Dawnbush of Forte Family Lawyers telephoned Donald Ryan the husband’s solicitor and advised that she had received instructions from the wife to appeal against the orders made on 9 March 2010. She further advised that the documents had been prepared and filed but that they were out of time by “one day”. She indicated that she had instructions to seek the husband’s consent to the late filing of the Notice of Appeal, and Donald Ryan agreed to seek instructions from the husband and advise her of the same.
The husband instructed his solicitor not to consent to the late filing of the Notice of Appeal and on 12 April 2010 the solicitor forwarded a letter to Forte Family Lawyers advising of those instructions.
On 27 April 2010 Forte Family Lawyers sent a letter to the husband’s solicitors advising that they no longer acted for the wife.
On 28 June 2010 the wife sent a letter to the Court enclosing three copies each of an Application in an Appeal, an affidavit, a Draft Notice of Appeal and an Application Alleging Contempt.
On 1 July 2010 the Regional Appeal Registrar sent an email to the wife acknowledging receipt of the documents relevant to the proposed appeal, namely the Application in an Appeal, the affidavit in support and the Draft Notice of Appeal.
On 7 July 2010 the Regional Appeal Registrar sent a letter to the wife enclosing stamped copies of the Application in an Appeal, the affidavit in support and the Draft Notice of Appeal “for immediate service upon the respondent together with a copy of this correspondence”. In this letter the Registrar advised the wife that the application was listed for hearing on 26 August 2010.
On 10 August 2010 the wife filed an affidavit of Ms W.
On 12 August 2010 the husband filed a Response to the Application in an Appeal, and two affidavits in support. The wife had only served her documents upon the husband’s solicitor on 6 August 2010.

The law

The law in relation to applications for extension of time is well settled. The relevant principles are conveniently set out in the High Court decision of Gallo v Dawson (1990) 93 ALR 479. McHugh J said this (at 480):
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Those principles have been followed in a number of Full Court decisions including Tormsen and Tormsen (1993) FLC 92-392.
In summary, the relevant factors that need to be addressed are:
§The history of the proceedings;
§The conduct of the parties;
§The nature of the litigation;
§Whether there are adequate reasons which explain the delay;
§The prospects of the applicant succeeding in an appeal;
§If there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise; and
§The consequences for the parties of the grant or refusal of the application.
However, as the Full Court in Tormsen observed, and as is apparent from what McHugh J said in Gallo v Dawson, these factors are to be considered in the context of determining what the justice of the case requires.

Discussion

At first blush this would seem to be a relatively straight forward case, but in fact it is anything but.
The forces at play are perhaps best understood by reference to parts of the reasons for judgment delivered by Dessau J on 22 December 2009 and on 9 March 2010.
In the earlier judgment her Honour said this:
25.It is convenient to deal with [the wife’s] attitude to the litigation as a backdrop to my findings on the issues that follow.
26.She is clearly a bright woman and has been a competent accountant and business woman. She describes herself as an “entrepreneur”. Whether or not that is a valid description, she has been, and [the husband] readily acknowledged, the one who has run the parties’ financial affairs. They have built up reasonable assets. They have both worked hard. Her assertion that he has not, is simply not borne out on the evidence. He has been in paid work throughout the very long marriage, since about 1990 as a consultant earning fees for their company, [A Pty Ltd]. In fact, there were periods when he was the main fee earner, when she concentrated her efforts on charity work and/or on-going education, sometimes well in excess of paid work. I shall return to this below when considering contributions.
27.There is no question that every aspect of [the wife’s] conduct since separation has shown her deep sadness, and her incapacity to adjust to the fact that the marriage ended with [the husband] in a relationship. She was clearly distressed that he had deceived her even though his relationship with Ms [N] commenced in the final throes of their marriage. Her bitterness about [the husband’s] relationship with his Ms [N] weaves its way through all her material. In a financial case, to have repeated references to the husband’s new partner suffering from genital herpes (whether or not it is true) is profoundly unfair to her and her privacy. It also gives insight into the depth of anger within [the wife]. She refers to it in the written material in a number of places, and had to be steered away from the topic several times during the hearing.
28.Although in 2007 [the wife] struck up a relationship with a “childhood sweetheart” in France, Monsieur [C], and although she had hoped they would live together in [M], he has now returned to live in France. According to her, they retain a friendship and spend holiday time together, but cannot live with each-other due to language constraints. It is probable that is another disappointment for her.
29.Unfortunately for [the wife’s] own mental health, and for the husband’s well-being, her scorn has been directly reflected in her behaviour. She has conducted herself very poorly in the long period leading up to and during the hearing, and then, since the hearing as well. There are many instances of her poor conduct. By way of illustration, I shall refer to just a few.
30.Between January and May 2009, [the wife] had sent no less than 120 emails to [N Accountants] who were preparing the forensic accounting report in this case. Even making allowances for the fact that [the wife] is a chartered accountant, that she controlled the financial affairs of the parties, and she may have had a valid contribution to the report process, the volume of emails was completely unreasonable. So was the tenor of many, containing offensive or abusive material that was not pertinent or productive. [N Accountants], through Mr [U], reckoned that an extra $3,000 to $5,000 in fees was incurred because of the emails up until May 2009.
31.Her behaviour in the course of this case was reprehensible. On the fifth day of the hearing, she made the astonishing admission that on the previous day she had remained in the court building, and in the courtroom, for some hours after the court day had finished. She said that she simply asked one of the guards in the building if she could stay on to work for several hours, and that she “let herself out” of the building at 7.30pm. Later she said it was at around 6.30pm. In any event, she said she had gone through private papers the husband had left in the courtroom, and had taken out papers pertinent to a controversial issue surrounding the sale of the [T] property. She told me what a particular document said and what it proved. In fact it appeared to add little to the evidence I had already heard, and did not support what she purported, but her audacity was breathtaking.
32.She claimed to have “come across” other documents when, within hours of the hearing completing, she started sending emails to the husband’s solicitors purporting to renege on agreements made in the course of the hearing. She wrote (on Sunday 6 December 2009 at 8.39pm):
…I intend to re-instate every claim that I have made hitherto [sic].
33.At 9.33am on Saturday 5 December 2009 (the hearing having finished on Friday 4 December) she wrote:
I am shaking! Whilst packing all my papers to go home I came across a bundle of papers I did NOT RECOGNISE. Many of these are copies of emails between myself and the Applicant before I lost all my emails on [P Company].com. The Applicant’s lawyer refused to provide the emails to me (requested under Disclosure). Now I know why!
34.In addition to saying that she “came across” the bundle of papers, at another point in the emails she says that she must have picked up some of Ms Molyneux’s papers “in error” form the chair beside her in the hearing. It is hard to have any confidence in any version given by [the wife] which would place an innocent interpretation on how or when she “came across” papers, or even if she in fact had them in her possession all along but sought to raise them only once she reflected on evidence already given.
35.[The wife] sent emails to Holt & McDonald at 9.33am on 5 December, 7.44pm on Sunday 6 December, 8.39pm on Sunday 6 December, 9.16am on 7 December, 9.29am on 7 December, and 11.34am and 9.08pm on 8 December.
36.They were filled with insults to the husband’s legal representatives referring to their “dirty tricks” and “reprehensible” conduct. In one she said:
The Applicant always laughed at my ESP and ‘the angel on my shoulder’. I hope he is laughing on the other side of his face!
She referred to the husband as “a liar and a thief”. She finished one email with “Have fun!”, and when forwarded the husband’s affidavit seeking the matter to be re-listed before me, her response was “You actually jumped a bit too quickly! My legal advice was to wait and see what Her Honour decided….”
37.During the trial, the husband had acceded to the wife’s request to take over the winding-up of the companies as part of the final orders. These emails, sent between 5 and 8 December, further details of which I shall turn to in a moment, were sufficient to satisfy me, on the husband’s application, that there was fresh evidence showing that such orders were simply not feasible. She agrees that she sent them. I could not have any confidence of an end to proceedings if [the wife] conducts the winding-up.
38.The substance of the documents [the wife] “came across” purportedly related to events surrounding the sale of the [T] property and comprised mainly correspondence between herself and the husband or his solicitors when she was seeking to purchase the property. She was angry that he had not permitted her to do so. Although she had claimed $29,000 “wastage” as a result, she had to concede in evidence that if there were any wastage, it was very significantly less, around $3,330.
39.[The wife] sought to lead her own fresh evidence about this correspondence. I did not permit it. The expense of these proceedings was well out of hand and I could not justify new evidence in relation to such a small add-back. I was not confident that the material had not been available to her throughout the hearing, nor comfortable as to how she came by it if that were not the case. Moreover, I was not satisfied from what [the wife] told me that the documents would add sufficient to what I had heard, or were sufficiently pertinent to any substantial fact in issue.
40.[The wife] said they would prove her credibility which otherwise was destroyed by “the deceit” of the husband and his lawyers in not putting these documents before me. She was upset that Senior Counsel had suggested she had deliberately delayed the sale so the market would drop. The evidence did not sustain that motive. She did not need to disprove it. In any event, there were very many aspects of [the wife’s] conduct, behaviour, and evidence that put her credibility in doubt.
41.On the particular issue of the sale of [T], I accept that she made an offer to purchase the property but the husband went ahead with the auction. The 20 March 2008 orders did make it clear that the parties together were to determine the manner of sale and the details surrounding the sale. Contrary to that, the husband seemed to take over most of the dealings. He said that he did so because the first proposed auction date had to be deferred because the wife was not permitting proper access to the property. I accept his evidence about that and although I cannot condone his failure to strictly comply with the orders, it is easy to understand his genuine desire for the property to be sold in an orderly manner, and his valid concern that the wife would thwart that. In addition, he had already signed with an agent so would have to pay commission in any event.
42.It was not unreasonable for [the husband] to prefer to act at arm’s length. [The wife] could have but did not bid at the auction.
43.After the auction, [the wife] took a range of steps to interfere with the sale, causing embarrassment, irritation, and the expenditure of unnecessary monies. She contacted the purchaser directly, and made a report to the body corporate that unauthorised renovations had been conducted. Previously she had placed a caveat over the property without telling the husband. That caveat subsequently had to be removed by a court order with a Registrar signing the withdrawal when [the wife] was overseas.
44.[The wife’s] contact with the purchaser paints a graphic picture of what she conceded was a “massive tantrum” because she had not retained the [T] property. In early June 2008 she wrote three letters to the purchaser, in an effort to de-rail the sale. Each had its ugly elements. The third was the ugliest. It was as follows:
Dear Ms [K],
Sorry I do not have any decent paper left but I am keeping my last sheet to write to the A.T.O to investigate how a Nurse, on a pittance of a wage, can put up $46,510 as a deposit on purchasing an apartment in [T] and then find the balance!
Obviously, if I do not hear from you within 48 hours, I will assume that you are quite happy to have your finances investigated. You will certainly be in a better position than my cheat and liar of a spouse.
[wife]@[P company].com
Have a good life. I’m sure it will be better than my 40 years with a bastard.
[The wife] […] +++
with lots of friends in ATO
45.Unfortunately the “massive tantrum” has continued in one form or another, whether by her obstructive behaviour with [N Accountants], petty and unsustainable add-back claims that made this hearing longer than necessary, or when she took the husband’s private papers from the courtroom.

Then, in the second judgment her Honour said this:
[The wife’s] Conduct
24.At paragraph 4 of his affidavit sworn 2 February 2010, [the husband] referred to [the wife’s] expressed intent to run up the costs. In particular, he annexed the following emails to illustrate her attitude to the litigation.
25.On 20 January 2008 she wrote to him:
You can add up the potential cost of legal bills (and you will be charged for every email he reads and I can send thousands); court fees; continued appeals to higher courts;…
26.On 25 January 2008 she wrote:
I can drag this through court after court and dissipate your $1.4 million and mine too!
27.On 7 March 2008 she wrote:
I enjoy you running up costs.
28.On 28 March 2008 she wrote:
I really hope this costs Millions!
29.Mr Ryan, the husband’s solicitor, swore that he received in total 507 emails from the wife from the time he came into the case in January 2008. He swore that “much” of the email traffic was unnecessary, and had added significantly to the husband’s costs. He swore that the husband had incurred legal costs exceeding $146,000.
30.The 507 emails were not produced. At the hearing on 4 February 2010, counsel for the husband suggested that they would be served on the wife. I observed that it would most likely cause the costs and delay to keep mounting. Whatever the precise number may be, [the wife] did not deny that she sent many emails. She would say that they were necessary. The sample of emails above strongly suggests the contrary. So too did the evidence of Mr [U] from [N] Accountants. He swore that the volume of the wife’s emails to his firm unnecessarily increased the costs of preparation of the forensic report by approximately $3,000 to $5,000. In addition, I have seen the volume and nature of emails sent by [the wife] immediately after the hearing of this case. They were unimpressive.
31.Overall, there is ample evidence that many of [the wife’s] emails were not part of a productive discourse for the purposes of genuinely resolving outstanding issues. I do not need to know a precise number to reach that conclusion.
32.As to [the wife’s] conduct during the trial, she was criticised for running issues that she later dropped, or for changing her mind on the agreed approaches to orders. Both criticisms have substance.
33.She sought a large number of add-backs at the start of the case, then conceded many along the way, but, as I noted at paragraph 112 of my Reasons for Judgment, she then attempted a “back-flip” on agreements made in the course of the hearing, via the series of emails immediately after the hearing.
34.Similarly, she gave various assurances in the hearing that permitted the husband to agree that she could be entrusted with the task of winding-up the various companies, but her behaviour immediately after the trial made it clear her assurances could not be relied upon. In particular, there was her conduct in taking Ms Molyneux’s documents, made worse in the context of a serious reprimand from me when she had removed documents from amongst the husband’s papers just several days’ earlier.
35.I dealt with the communication from [the wife] to the husband’s solicitors after the trial at paragraphs 32 to 40 of my Reasons for Judgment. I made it clear that her conduct was such that I could no longer permit her to handle the winding-up of companies as had been agreed earlier in the course of the hearing.
36.In addition, at various times she changed her position as to whether or not she would sue the husband through particular entities for particular debts or losses that she said were incurred by him. Even as late as the final submissions on 19 February 2010, it was brought to my attention that, again via email, she had been threatening legal action against the husband, although at one stage in the course of the hearing she swore that she would not pursue such a course.
These findings provide important context to the wife’s Application in an Appeal that is now before me for determination.
Turning to that application, the starting point is perhaps the affidavit filed in support thereof. It is quite brief and reads as follows:
1.     That on 7^th April 2010 FORTE FAMILY LAWYERS lodged notice of appeal against the final PROPERTY ORDERS made 9^th March 2010. This was ONE DAY OVERDUE. [ANNEXURE 1]
2.     The husband’s solicitors refused to accept the appeal. [ANNEXURE 1]
3.     The Applicant wife was hospitalised from 3^rd April 2010 and unable to lodge the appeal on 6^th April 2010.
4.     The husband’s refusal to accept the appeal is unreasonable.
Prima facie, from this affidavit it seemed that the wife was relying on the fact that a Notice of Appeal was prepared by her solicitors but they were a day late in lodging it. In other words, there was very little delay involved.
However, bizarrely, at the hearing before me the wife was at pains to tell me that Forte Family Lawyers were not in fact acting for her and that she had not instructed them to file a Notice of Appeal.
The wife informed me from the bar table that on or about 20 March 2010 she contacted Forte Family Lawyers seeking advice from them and a Queen’s Counsel as to the prospects of an appeal, but at no stage did she instruct them to act for her. She says that the Notice of Appeal was prepared and forwarded to the Court without her authority. Indeed, she says that she did not even see the Notice of Appeal and did not know until mid April that Forte Family Lawyers had forwarded it to the Court.
The wife says that despite seeking advice from Forte Family Lawyers she was intending to prepare and file the Notice of Appeal herself. However, she was not able to do so because she was hospitalised on 3 April 2010.
Thus, in the end result, the wife was not in fact relying on the attempted filing of a Notice of Appeal by Forte Family Lawyers as the reason for extending the time, but rather she was relying on her hospitalisation.
In relation to her hospitalisation, the wife relied on an affidavit of Dr C sworn on 28 June 2010. It was not apparent from the court file that that affidavit had been forwarded to the Court by the wife, but that was eventually clarified and a copy was ultimately obtained from the doctor herself and was put before me. That affidavit tells me that on 3 April 2010 the wife was taken by ambulance to G Hospital and transferred on 4 April 2010 to M District Hospital where she remained for approximately six weeks. She then had two weeks in respite accommodation before returning home. Significantly though, the affidavit does not say why she was hospitalised in the first place. However, doing the best I can, it seems that it was related to her epilepsy.
At this point I want to briefly mention the affidavit of Ms W filed by the wife on 10 August 2010. It was filed in support of the application before me but I can see no relevance in its contents and I ignore it for the purposes of this exercise.
Turning to the factors that I need to consider in determining whether the granting of an extension of time is necessary to enable the Court to do justice between the parties, I have already touched on the history of the proceedings, I have referred to the highly relevant findings of her Honour in relation to the conduct of the wife, and I have also touched on the nature of the litigation. As to the issue of delay, that turns on what I make of the wife’s case that she was prevented from filing a Notice of Appeal within time by her hospitalisation. It is also relevant though to look at any delay in filing the application for an extension of time itself.
As to these matters, it is first relevant to note that the wife conceded during the hearing before me that she was well aware that she had 28 days to file a Notice of Appeal. Indeed, the timeframe for an appeal was raised by the wife with Dessau J on 9 March 2010, and that is referred to in paragraph 11 of her Honour’s reasons for judgment published that day.
There is of course no issue that she was hospitalised on 3 April 2010 but there is no evidence before me to say that that hospitalisation prevented her from filing her Notice of Appeal in time. She had had ample time before that to prepare and file a Notice of Appeal, and she had sought and presumably obtained advice from Forte Family Lawyers after 20 March 2010 as to the prospects of an appeal. She said that she was intending to prepare and file a notice herself, but there was no evidence to say that she could not have done that either prior to or post her hospitalisation, or at least arrange for it to be filed post her hospitalisation but still within time.
In any event, I do not accept that Forte Family Lawyers were not acting for her at all relevant times, and that she had not instructed them to file a Notice of Appeal. It is beyond comprehension that solicitors would take it upon themselves to act without instructions by preparing and attempting to file a Notice of Appeal, and further without the client even having seen the notice. I observe that not only did Forte Family Lawyers prepare and seek to file a Notice of Appeal, but they followed up the rejection of the notice by seeking the consent of the husband to the late filing. Indeed, in all the relevant correspondence and during the telephone conversation between solicitors the common understanding was that Forte Family Lawyers were acting for the wife.
Thus, and given the lack of evidence as to the effect of her hospitalisation, there is no evidence explaining to my satisfaction the delay in failing to file a Notice of Appeal within time.
Next, the wife did not file her Application in an Appeal until 29 June 2010. She says that she could not file the application before this because of her hospitalisation. However, there is no evidence to say that her hospitalisation in some way prevented her from preparing and filing the application or arranging for that to be done by solicitors on her behalf. Further, on my calculations she would have been back home by early June 2010 and thus there is still an unexplained delay in filing the application.
The next factor to address is “the prospects of the applicant succeeding in the appeal”, or put another way whether there is a substantial issue to be raised on appeal. In this regard I have carefully read the judgments of Dessau J, and I have considered the grounds of appeal set out in the Draft Notice of Appeal, and in my view there is no prospect of any of these grounds succeeding.
It is useful to set out the grounds in full as they appear in the Draft Notice, namely:
1.     Errors of both FACT and the application of relevant LAW by her Honour.
2.     Perjury and misleading evidence by both the husband and his lawyer.
3.     Application for Writ of Mandamus.
4.     Judicial opinion based on ignorance; misleading evidence and other matters.
5.     Unethical conduct by Counsel for the husband.
6.     Failure by the ‘Independent’ expert, [N Accountants], appointed by consent, to act without bias; to properly carry out the instructions of the Applicant wife to produce consolidated accounts for ALL entities; to comply with Code of Conduct.
7.     Other grounds of appeal to be detailed in formal Appeal to be prepared.
As can be seen, the notice does not disclose comprehensible grounds of appeal. It is suggested in ground 1 that there have been errors of both fact and law by her Honour, but there are no such errors identified. Ground 2 does not raise any error of the trial judge, ground 3 is unintelligible, ground 4 does not complain of any error by the trial judge, nor does grounds 5 or 6, and ground 7 does not assist.
However, at the commencement of the hearing the wife sought to tender, and I ultimately enabled her to do so, an affidavit sworn on that day, namely 26 August 2010, wherein she has attempted to expand on the grounds of appeal.
In relation to ground 1, the wife in this affidavit provides an example of a “failure by the trial judge to apply the law”. Her Honour, at paragraphs 63 to 67 of her reasons for judgment of 22 December 2009, dealt with a claim by the wife for money allegedly diverted by the husband to be notionally added back to the pool of assets. Her Honour said this:
[A Pty Ltd] client monies paid directly to the husband from December 2007 to September 2008, being $10,110
63.[The wife] asserted that [the husband] wrongly re-directed funds to himself for consultancy work that he did on behalf of [A Pty Ltd], and that the fees should have been directed to [A Pty Ltd].
64.[The husband] readily agreed that he invoiced a client, […], between December 2007 and September 2008, in his own name. He swore that he did so with [the wife’s] approval.
65.[The husband] produced an email (H4) in which he asked the wife on 6 January 2008 if it would be “fair” for him to charge that client directly, with her response of 7 January 2008 in which she said “Yes”.
66.It was only a few weeks later, after negotiations broke down between the parties in relation to their property settlement, that she seemed to take a different view.
67.I am satisfied that [the husband], acting properly and transparently, and with the wife’s consent, invoiced the client directly, when the marriage was over. The sum should not be added-back.
In her affidavit the wife alleges that there “her Honour has ignored the Family Law Act which requires that there must be a financial agreement that complies with the ACT”. After quoting s 90C of the Act the wife says this:
3. The matter of Fees in relation to [A] Pty Ltd and the wife’s agreement that the husband could invoice same in HIS name IS NOT A FINANCIAL AGREEMENT under SECT 90C(2) because the terms of SECT 90C are NOT MET. The wife was entitled to WITHDRAW her agreement BECAUSE the agreement was NOT EXPRESSED, by either party TO BE UNDER SECT 90C(1)(b) and this is PREREQUISITE in determining whether an agreement is a financial agreement for the purposes of the Family Law Act. The wife did withdraw her agreement [Annexure 1 para 66], and advised both the accountants and the lawyers for the husband, that the husband must comply with Corporations Law regarding the fees. The fees should have been PAID, by the husband, to the company, [A] Pty Ltd and be available for distribution (by dividend) to the parties. The accountants, [N Accountants] (who were appointed by consent) took their instructions from the husband’s lawyers and FAILED to include the amount of $10,110 as a Debtor in the accounts of [A] Pty Ltd. The wife contends that the amounts received by the husband, totalling $10,110 should, in equity and law, be a DEBTOR of [A] Pty Ltd and is recoverable, by the company, from the husband. The husband should be ordered to pay this money to the company.
Now, clearly this is errant nonsense.
In the affidavit the wife then provides another equally ill-informed and incomprehensible example of what she claims to be an error made by the trial judge in failing to notionally add back alleged unauthorised drawings by the husband. She then launches into a claim that as a director of two companies she “has an IRREFUTABLE right of access to the Books and Records of the companies”, and she refers to various sections of the Corporations Act 2001 (Cth). She claims that the husband has failed to respond to her requests for access to the books and that he has thereby breached the Corporations Act. The wife then alleges that the trial judge “has compounded the misdemeanour by REFUSING the wife access to the said books and has refuted the wife’s irrefutable rights”, and that in doing so her Honour is wrong in law.
In paragraph 14 of Dessau J’s reasons for judgment delivered on 9 March 2010 her Honour referred to the orders sought by the wife at that time with respect to discovery and further evidence, and which included an order that the husband “hand over a Dell computer”. These orders were sought in an Application in a Case filed by the wife on 4 February 2010, clearly after her Honour had delivered her reasons for judgment on 22 December 2009. In any event, her Honour dismissed the application saying as follows:
16.I do not propose making orders now for this new discovery or fresh evidence. It is acknowledged by [the wife] that these were generally documents already sought by her on or before the hearing. They were either ultimately not pursued by her, or were pursued without success. There is no basis for me to allow further discovery or fresh evidence at this point.
Although I have obviously not heard any submissions on this point, on the basis of the documentation I can find no error by her Honour in how she determined this issue.
I will not dwell any further on this affidavit tendered by the wife but what I have said so far provides the tenor and the flavour of the entirety of that affidavit. None of the other proposed grounds of appeal are addressed by the wife in the balance of the affidavit, and it does not assist in better understanding those grounds of appeal. They are still incomprehensible and lacking in merit.
The next factor to consider is the consequences for the parties of the grant or refusal of an extension of time.
In terms of the applicant’s position if I refuse to extend the time, that would almost certainly be the end of the matter. Section 94(2F) of the Family Law Act 1975 (Cth) provides that no appeal lies from such a decision. There is though the ability to seek special leave from the High Court of Australia, but that would not generally be a viable option. Thus the consequences for the applicant of a refusal would be significant.
In relation to the respondent, as McHugh J said in Gallo v Dawson, he has “a vested right to retain the judgment”, but also the husband suggests that if the application is granted he would suffer specific detriment. In paragraph 3.3 of his affidavit of 12 August 2010 he said this:
3.3 That I have acted on the Judgement [sic] of the March Orders to my detriment in that I have:-
(a)Purchased and paid for two return flights to the United Kingdom in October of 2010 along with travel insurance;
(b)Paid for deferred house improvement projects including a new fence, carpet and painting at a total cost of $2,500;
(c)Paid for the Applicant’s dental costs in the sum of $7,702.50 in accordance with paragraph 3 of the March Orders;
(d)Have rebuilt a small wine collection replacing the wine collection retained by the Applicant in the March Orders;
(e)paid my legal costs outstanding at the time of the March Orders in the sum of $120,197.73;
(f)Bought shares totalling $147,255 in the name of my new superannuation fund;
(g)Have authorised [N] Accountants to carry out the work authorised in the March Orders at a total cost of $25,025 of which $10,120 remains outstanding. In this regard [N Accountants] are well advanced towards finalising the works required pursuant to the March Orders.
In other words, there may very well be financial penalties visited on the respondent if the applicant is able to pursue an appeal and is successful, and I need to take that into account.
Now the final step in reaching my decision is to consider what the justice of the case requires taking into account the relevant factors that I have identified. In my view the justice of the case requires that the application be dismissed. I am particularly concerned about the history of the matter and the conduct of the wife as identified in the reasons for judgment of Dessau J and in these reasons. I am also not satisfied with the wife’s explanation of the delay and the failure to file a Notice of Appeal within time, and to a lesser extent the delay in filing the application for an extension of time. There is then the lack of merit in the proposed grounds of appeal, and finally in that context there is the right of the respondent to retain the judgment of Dessau J and not have to deal any further with the irrational conduct of the applicant which smacks very much of her looking to carry out the threats that she made in 2008 to prolong the litigation and cause the husband to spend substantial amounts on legal costs.

Thus, in all the circumstances I propose to dismiss the application.

I certify that the preceding fifty-seven [57] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 September 2010.

Associate :

Date: 7 September 2010