FINDLAY & DANIELS
[2013] FamCAFC 99
•13 June 2013
FAMILY COURT OF AUSTRALIA
| FINDLAY & DANIELS | [2013] FamCAFC 99 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks to extend the time to file appeal books by six months – where appeal books were required to be filed by 10 May 2013 – where the order for the filing of appeal books was made by the Appeals Registrar on 5 February 2013 – where the applicant made no application to extend the time to file until 10 May 2013 – where that conduct is typical of how the applicant has conducted the proceedings namely, to delay, to leave things to the last minute and to obfuscate – where the applicant says she is unable to file appeal books because of her poor health and the loss of her papers in a house fire – where there is no evidence before the court that indicates that the applicant was unable to comply with order for the filing of appeal books – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REVIEW APPEALS REGISTRAR’S DECISION – ADJOURN THE APPEAL – where the applicant seeks to review the exercise of power by the Appeals Registrar – where the applicant is well out of time to do so – where the applicant says there were extenuating circumstances why she did not file in time but does not explain those circumstances – where the applicant seeks to adjourn the appeal to “gather evidence” – where the applicant has not been able to accept the final orders for property settlement made in 2010 and has continued on a crusade to upset those orders by whatever means she can – where there is no appropriate or legitimate basis established to adjourn the appeal – application dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – COSTS – where the respondent seeks costs of and incidental to the two applications – where his solicitor prepared the documents filed on his behalf and has undertaken correspondence and telephone calls with the applicant – where the applicant opposes the application – where both applications filed by the applicant have been unsuccessful – where there are circumstances that justify an order for costs – costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 (Cth) – r 22.40 |
| APPLICANT: | Ms Findlay |
| RESPONDENT: | Mr Daniels |
| FILE NUMBER: | MLC | 1996 | of | 2008 |
| APPEAL NUMBER: | SOA | 79 | of | 2012 |
| DATE DELIVERED: | 13 June 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 June 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2012 |
| LOWER COURT MNC: | [2012] FamCA 864 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The application in an appeal filed by Ms Findlay on 10 May 2013 be dismissed.
The application in an appeal filed by Ms Findlay on 29 May 2013 be dismissed.
Ms Findlay pay the costs of Mr Daniels of and incidental to the applications in an appeal filed respectively on 10 May 2013 and 29 May 2013, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the Findlay & Daniels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 79 of 2012
File Number: MLC 1996 of 2008
| Ms Findlay |
Applicant
And
| Mr Daniels |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I note that Ms Findlay has initially raised issues about whether I should be hearing this matter. The two issues that she has raised are first, that I allegedly previously ignored medical evidence presented by her, and she is concerned that I will do the same again today. Secondly, she has made some vague suggestion that I have a relative who is a friend of Mr Daniels.
There is nothing before me to support either of those allegations. However, given the circumstances of this matter and Ms Findlay appearing by way of telephone, I will address them briefly. The first issue is simply not an issue that would lead to my disqualification, namely, how I proceeded on a previous occasion on a different application. As to the second issue, as far as I am concerned there is no basis for any suggestion that I have a relative who is a friend of Mr Daniels; it is simply not the case. That said, I observe that ultimately Ms Findlay wisely determined not to pursue that matter.
There are two applications in an appeal before the court. I record initially that Ms Findlay appears in person, without legal representation, and at her late request received only today I agreed that she could attend this hearing by way of telephone, which she has done.
Mr Daniels also appears in person today. He has solicitors on file though, and so I have required Mr Daniels to prepare and file a Notice of Address for Service to enable him to appear today and oppose the applications, which is what he seeks to do in the absence of his legal representative.
The first application before me is the application filed by Ms Findlay on
10 May 2013. That application, although it sought a number of orders, was only received on the basis of the first order being an order that could be pursued by Ms Findlay. There, Ms Findlay in effect sought that the requirement that she file appeal books by 10 May 2013, which was an order made by the Appeals Registrar on 5 February 2013, be extended for a period of six months.
Ms Findlay filed an affidavit in support of that application and I will come back to the content of that affidavit later in these reasons.
The second application before me is the application in an appeal filed by
Ms Findlay on 29 May 2013. There are three orders sought in that application. First, in effect an order that the exercise of power by the Appeals Registrar on
5 February 2013, insofar as the Registrar ordered that Ms Findlay obtain all of the transcript before the trial Judge, be reviewed and Ms Findlay only be required to obtain and provide to the court and to the other side extracts of transcripts. The second order sought was an order that the appeal be adjourned “sine di (sic) pending further matters to be lodged in the lower Family Court”. The third order sought was that “a single judge be appointed in the matter”. However, that is not an application that can proceed and Ms Findlay now recognises that. She says she understood that if the matter went to a bench of three appeal judges then she could not appeal to the High Court. I have disabused Ms Findlay of that notion and indicated that she has the ability to seek leave of the High Court to appeal against an order made by a Full Court comprising a bench of three. On that basis I need not address that order further.
Ms Findlay has also filed an affidavit in support of the second application.
Mr Daniels has filed Responses to those two applications, and in both of those he seeks that the applications be dismissed. He has also filed an affidavit in support of his response to the first application. His solicitor filed an affidavit in support of his response to the second application.
These applications are brought in the context of an appeal that has been filed by Ms Findlay. Justice Dessau made certain orders by way of enforcement on
4 October 2012 and delivered extensive reasons for judgment. Ms Findlay has appealed against those orders and her Notice of Appeal was filed on
1 November 2012.
Relevantly, as is the practice, there was a directions hearing subsequently held before the Appeals Registrar on 5 February 2013 when the Appeals Registrar made what I would call the usual orders for the preparation of the matter for hearing, including orders that Ms Findlay by no later than 10 May 2013 file four copies of the appeal books, with those appeal books to contain the transcript of the proceedings before Justice Dessau on identified dates, and the transcript of a hearing before Justice McMillan.
Background
This is a long-running matter in the Family Court of Australia which commenced in 2008. Final orders for property settlement were made in 2010 by Justice Dessau, and specifically on 9 March 2010.
In summary her Honour’s orders provided for a 50/50 division of the assets, with the husband to receive a cash payment equivalent to the value of the real estate, and shares to be retained by the wife. The forensic accounting firm N Firm was ordered to effect the winding up of the parties’ entities under the instruction of the husband’s solicitors, Holt & MacDonald.
Further relevant background is contained in Justice Dessau’s reasons for judgment delivered on 4 October 2012, the orders in respect of which are the subject of the appeal, and I set out that background below:
BACKGROUND
1.Mr Daniels is trying to enforce final property orders that date back to 9 March 2010.
2.Ms Findlay has obstructed their implementation at almost every turn, resulting in a number of enforcement applications by
Mr Daniels in 2010, 2011 and 2012, and orders and judgments broadly directed to her doing or not doing certain things, in order to implement those final orders.3.Along the way, Ms Findlay has launched several unsuccessful appeals, most recently against orders once again directed to the orderly winding up of companies in accordance with the final property orders. The Full Court dismissed that appeal on 25 June 2012, with an order that Ms Findlay pay Mr Daniels’ costs.
4.I will not repeat the history here. It can be read in the final hearing Reasons for Judgment of 22 December 2009, and then Reasons on
9 March 2010, 26 July 2010, 6 August 2010, 21 January 2011,
17 February 2011, 7 April 2011, 11 May 2012, and 25 May 2012, along with the Reasons of Macmillan J of 29 May 2012.I add that apart from a number of applications being filed by Ms Findlay and also a number of enforcement applications being filed by Mr Daniels, subsequent to the final orders of 9 March 2010 there was an application by
Ms Findlay to extend the time to appeal against those final orders. That application came before me and I dismissed it on 7 September 2010.
There were also a series of orders made by Justice Dessau in late 2011 and into 2012, which were the subject of an application for leave to appeal by
Ms Findlay, and if leave was granted, the subject of an appeal. That application for leave was heard by the Full Court on 8 March 2012 and judgment was delivered on 25 June 2012 dismissing the application.
It is pertinent to note that one of the orders made by Justice Dessau was that the wife be restrained from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) without leave of the Court. In her reasons for judgment delivered on 17 February 2011 her Honour acknowledged that it was a serious matter to preclude a party from freely commencing proceedings, but her Honour found as follows:
63.Ms [Findlay] has abused the court system with applications fixated upon her unhappiness with final orders, and directed towards obstructing their being given effect. She has made numerous and repetitive applications, some directed towards people who are not parties to the proceedings, some simply ill-founded, and some plain mischievous as illustrated above in relation to when she received the final orders.
The Full Court found no error by her Honour in making this finding.
The judgment delivered by Justice Dessau and the orders made on 4 October 2012 were an attempt by Justice Dessau to finally bring this matter to a conclusion, given its history, and the length of time that the proceedings had been on foot.
Discussion
As I have recorded the orders for the preparation of the appeal for hearing were made by the Appeals Registrar on 5 February 2013. As I have also recorded the order that Ms Findlay seeks to have extended was that which required the appeal books to be filed by her by no later than 10 May 2013.
It is plain that no application was filed by Ms Findlay following the orders made by the Appeals Registrar on 5 February 2013 until the application in an appeal, which is before me today, was lodged on 10 May 2013 seeking as I say an extension of time of six months to lodge the appeal books.
That was of course the very last day upon which Ms Findlay was able under the orders to file the appeal books. From my reading of the judgments delivered in this matter, and from my knowledge of the matter from hearing the application to extend time to appeal, and being part of the Full Court bench which determined the application for leave to appeal by Ms Findlay in 2012, that is typical of how Ms Findlay has conducted these proceedings. In other words, to delay, to leave things until the very last moment, and to obfuscate.
In any event on the very last day Ms Findlay filed this application.
In support of the application she has filed an affidavit, and in that affidavit she deposes to the home at M, in which she was residing, being burnt down in
March 2013. She initially said that all of her papers were lost in that fire, and that seemed to be one of the reasons that she was presenting to this court for seeking the extension of time to file the appeal books. I will come back to this in a moment.
She also deposed in the affidavit that she suffered, as she described it, “PTSD”, which I understand designates Post Traumatic Stress Disorder. She has annexed to that affidavit a report of a psychologist, Mr O, dated 16 April 2013. What that report tells me is that Ms Findlay was referred to Mr O by her doctor for a “mixed anxiety/depressive condition”. It records that the initial consultation took place on 4 April 2013 and that Mr O saw Ms Findlay on four subsequent occasions, obviously before he wrote his report of 16 April 2013. He describes her symptoms and he says they are “consistent with a diagnosis of Post Traumatic Stress Disorder of moderately severe degree”. He continues, “to complicate matters, she is suffering a wide range of medical complaints and her general health is poor”. Significantly in the final paragraph Mr O refers to his understanding that Ms Findlay “is in a dispute with her ex-husband and there is a hearing in the near future”. He proceeds on that assumption because he says that she is “unfit mentally to prepare for a court hearing”, and that “her health is quite impaired at present and most likely will remain so for three to six months”.
Ms Findlay, when queried as to what hearing is being referred to, could not enlighten me, because the fact is, there was no hearing that had been set to take place as at 16 April 2013.
Ms Findlay though, and I cannot recall the precise words she used, put to me that she did not indicate to Mr O that there was a hearing in the near future. However, the problem for Ms Findlay is that this report says there is a hearing in the near future, and that she is mentally unfit to prepare for that hearing. As I pointed out to Ms Findlay the obligation on her was to prepare appeal books, and neither prepare for a hearing, nor conduct a hearing. Mr O has said nothing whatsoever in his report as to Ms Findlay’s ability to prepare appeal books. Thus, this report does not support Ms Findlay’s claim that for medical reasons she has been unable to prepare the appeal books.
The other reason that I glean from her affidavit as to why she has not been able to prepare the appeal books in time, is that the house burnt down and she lost all of her papers. The problem with that is, as has been pointed out by
Mr Daniels in his responding affidavit where he annexes part of the report of the Fire Service, is that Ms Findlay came away from that fire with her computer, and Mr Daniels submits that she would have on that computer all the relevant documents to enable her to file appeal books.
Ms Findlay in my view opportunistically then responded by saying, “yes, I came away with the computer but I dropped it and I have been able to recover some of the material from it but not all of it”. I do not accept that explanation.
Ms Findlay also attempted to say to me that once a matter is finalised in the lower court the documents are disposed of and thus she could not obtain copies of the relevant documents. Ms Findlay has been a litigant in this court for many years. She has run cases herself and I do not accept that she is unaware that the court retains all of its records, and that all she needed to do was attend at the court and inspect the file, if it is correct as she says that all of the papers were lost in the fire and she cannot regain them from the computer that was damaged.
In short then, I am not satisfied that Ms Findlay did not have the ability to prepare the appeal books within the time allowed.
I also note that the fire occurred in March 2013, some days before the expiry of the time by which Ms Findlay was to file the appeal books. No application was filed by Ms Findlay in this court seeking an extension of time as a result of her alleged inability to file the appeal books. She left it until the very last day namely, 10 May 2013, which as I say, is typical of the way Ms Findlay has conducted these proceedings historically.
I record one other matter because I raised it myself during the hearing, and that is the question of Ms Findlay’s health generally. Justice Dessau has made comment on the fact that she accepts that Ms Findlay has poor health. I also accept that Ms Findlay has poor health. However, that does not and cannot excuse her failure to comply with orders of this court. I set out below paragraph 39 from Justice Dessau’s reasons for judgment delivered on
4 October 2012:
39.It is timely to note here that I am satisfied she has had health issues. I note too that her conduct has been at times unreasonable, at times dishonest, and often obstructive. However, there is no expert evidence to satisfy me that her health has caused that conduct, or in any way impeded her understanding of orders or her capacity to comply with them. To the contrary, her conduct, submissions and affidavits have shown a detailed understanding of orders and her deliberate and wily attempts to avoid finalisation of them.
I adopt those remarks by Justice Dessau. There is no evidence that I accept that indicates that Ms Findlay was unable to comply with the order for the filing of the appeal books. Thus, I propose to dismiss that application.
Turning to the second application filed on 29 May 2013. The first order sought, as I have recorded, is a review of the exercise of power by the Appeals Registrar on 5 February 2013. There is a time limit for such an application to be filed, namely 14 days, and Ms Findlay is well out of time in seeking that review (see Rule 22.40 of the Family Law Rules 2004 (Cth)).
Ms Findlay is aware that she is out of time because she refers to it in the affidavit filed in support of the application and in particular at paragraph 4. In effect, in that paragraph, she seeks an extension of time to file the application seeking a review, and she says there are “extenuating circumstances” why she did not file the application within time.
The difficulty for Ms Findlay, as I have pointed out, is that she does not explain those extenuating circumstances. The further problem for Ms Findlay is that she cannot use the two reasons she has set out in support of her application filed 10 May 2013 namely, the fire and her stress related illness. She cannot use them because the fire occurred in March 2013, and the stress disorder was diagnosed in April 2013, both well after the 14 days expired. Thus, they cannot be the extenuating circumstances as to why Ms Findlay failed to file the application for review within time.
On the basis that there is nothing before me whatsoever to explain why
Ms Findlay has not complied with the timeframe for filing such an application I propose to dismiss the application insofar as it seeks the order in paragraph 1 that I have adverted to.
The second order sought in the application is, as I have explained, an application to adjourn the appeal. In paragraph 4 of Ms Findlay’s affidavit she says this in support of her application :
4. … I just need time to gather the evidence that Justice Dessau has made many errors/slips and that [Mr Daniels] is guilty of perjury and has been assisted by his legal team. These are matters for the lower court.
That to me reveals the agenda that Ms Findlay has here and reminds me of a comment made by Justice Dessau in various of her judgments, namely, that
Ms Findlay has not been able to accept the final orders for property settlement made in 2010. She has continued on a crusade to upset those orders by whatever means she can. It has required the husband to take out numerous enforcement orders; it has led to unsuccessful applications to extend the time to appeal and an unsuccessful appeal.
In my view that is what this is all about. It is not about Ms Findlay having a stress disorder which prevents her from doing things, and it is not about the fire which destroyed the house. Ms Findlay wants to get back to the Family Court to try and pursue issues, regardless of the facts that the final orders have been made, that she is unable to pursue an appeal against those orders, and enforcement orders have now been made, hopefully finally as of October 2012, by Justice Dessau.
However, despite this being my view, I still need to deal with the application to adjourn.
Ms Findlay makes the application so that she can gather evidence to put before “the lower court”. That is not an appropriate or legitimate basis to adjourn an appeal. There were orders by way of enforcement made by Justice Dessau on
4 October 2012. Ms Findlay has sought to appeal against them as is her right, that appeal has had a directions hearing, and orders to prepare the appeal for hearing have been made. For Ms Findlay to come along on 29 May 2013 and say, “I want to adjourn the appeal because I want to gather evidence to pursue these other matters” is in my view an inappropriate basis, and indeed no basis at all, for adjourning the appeal.
Interestingly, in the context of not only this application, but also the other one, Ms Findlay says that although all of her papers were destroyed in the fire, not all of the papers of Mr Daniels were destroyed. They were saved from the fire and she has only found them by moving a cabinet after the fire and locating them. However, Ms Findlay has not described them in any way in her affidavit, she has not annexed them to any affidavit, and she has not put any detail to the court about that.
For these reasons I propose to dismiss the application to adjourn the appeal contained in the application filed by Ms Findlay on 29 May 2013.
Costs
I now have an application for costs by Mr Daniels. He of course appears for himself today but he seeks the costs of and incidental to the two applications that I have heard, and both of which I propose to dismiss. He says his solicitor has prepared the documents which have been filed on his behalf, and has also undertaken correspondence, and I presume, telephone conversations with
Ms Findlay in the context of those two applications.
Mr Daniels cannot give me a figure for the legal costs that he has incurred because he does not have that detail. That is not fatal to the application, it just means that it has to be dealt with in a certain way.
Ms Findlay opposes the application for costs.
As with any application for costs they are governed by s 117 of the Act. Relevantly s 117(2) provides that the court is able to make an order for costs if there are circumstances that justify it doing so. In s 117(2A) the factors that the court must take into account in determining whether there are circumstances that justify an order for costs, and if there are, what that order for costs should be, are set out.
I need go no further than record the fact that both applications filed by
Ms Findlay have been wholly unsuccessful. That by itself provides a circumstance justifying an order for costs, and I propose to make such an order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 June 2013.
Associate:
Date: 25 June 2013
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