Hoa & Tan
[2024] FedCFamC2F 2
•9 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoa & Tan [2024] FedCFamC2F 2
File number(s): SYC 373 of 2023 Judgment of: JUDGE STEWART Date of judgment: 9 January 2024 Catchwords: FAMILY LAW – PROPERTY – Application for extension of time to file Application for Review – Application granted – Senior Judicial Registrar’s final property orders – Husband’s failure to comply with procedural orders – Application for Review allowed – Written submissions as to costs Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.02, 10.27 Cases cited: Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86
Bande & Earley [2015] FamCAFC 147
Burns v Grigg [1967] VR 871
Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustees Executors & Agency Co of Australasia Ltd. [1978] VR 257
Jess v Scott (1986) 12 FCR 187; 70 ALR 185
Mitchelson v Mitchelson (1979) 24 ALR 522
Morgan & Valverde [2022] FedCFamC1A 133
Re F: Litigants in person guidelines (2001) FLC 93-072
Vilenius v Heinegar (1962) 36 ALJR 200
Zane & Allan (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 7 December 2023 Place: Melbourne Counsel for the Applicant: Ms Winfield Solicitor for the Applicant: Brighton Lawyers Counsel for the Respondent: Mr Brickwood Solicitor for the Respondent: Lawside Lawyers ORDERS
SYC 373 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOA
Applicant
AND: MS TAN
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
9 JANUARY 2024
THE COURT ORDERS THAT:
1.The time for the Applicant Husband to file an Application for Review be extended to 6 November 2023.
2.Order 1 and orders 3-12 inclusive of the orders made by a Senior Judicial Registrar on 17 August 2023 be discharged.
3.That each of the parties forthwith do all such acts and things and sign all documents as may be necessary to effect the sale of B Street, Suburb C in the State of NSW (being the whole of the land comprised in Folio identifier …) and known as the “Suburb C Property” (“the sale”).
4.By way of consequential arrangements for the sale of the Suburb C Property the parties are to undertake the following steps:
(a)Instruct a real estate agent to conduct a sales and marketing campaign for the property and thereafter the auction of the property including signing any agency agreement or authority for any reasonable disbursement for the sales and marketing campaign, authorise the auction of the property, negotiate with any prospective purchaser at any auction and authorise the acceptance of a sale price, and authorise such other action as may be required to effect the sale of the property;
(b)Sign any request to discharge the mortgage registered over the property and give authority to discharge the same;
(c)Sign any contract for the sale of the property as advised by a conveyancing practitioner appointed;
(d)Sign any Memorandum of Transfer for the Suburb C property in favour of the purchaser;
(e)Sign any other document include PEXA Authorisation form required of the parties in order to give effect to the sale of the Suburb C property;
(f)Authorise the payment of funds in satisfaction of the mortgage debt secured over the title to the property and any rates and charges with respect to the property upon the settlement of the sale;
(g)Authorise the payment of fees and disbursements to the real estate agent and conveyancing practitioner engaged with respect to the sale of the property;
(h)The Suburb C property shall be sold for not less than $2,500,000 or such amount as agreed to between the parties.
(i)Do any other act or thing necessary in order to effect the sale of the Suburb C property.
5.That there be specific liberty reserved to the parties to apply with respect to the terms and conditions of the sale.
6.Upon settlement of the sale of the real estate property situated at B Street, Suburb C in the State of New South Wales (being the whole of the land comprised in Folio identifier …), the parties shall cause the net proceeds of sale to be disbursed as follows:
(a)in payment of agent’s commission, advertising expenses and legal expenses of sale;
(b)in payment of all amounts necessary to discharge outstanding council and water rates and utilities in respect of the said property and any other adjustments as required pursuant to the usual contract for sale;
(c)in discharge of the mortgage encumbrances presently secured over the said property in favour of the Australia and New Zealand Banking Group; and
(d)the balance to be held on trust by the Respondent Wife’s solicitors pending the resolution of these proceedings.
7.Within 14 days of the date of these orders, the Applicant Husband file and serve:
(a)a Response to the Wife’s Application for Final Orders filed 24 January 2023 setting out with precision the final orders he seeks;
(b)a full and complete financial statement;
(c)any affidavit or affidavits upon which he seeks to rely;
(d)an Undertaking as to Disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(e)any other document required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
8.Within 21 days of the date of these orders, the Respondent Wife make written submissions on the question of costs.
9.With 28 days of the date of these orders, the Applicant Husband make written submissions in reply on the question of costs.
10.Judgment as to costs be reserved.
11.The parties be at liberty to approach the Chambers of Her Honour Judge Stewart by email within 14 days of the date of these orders to make written submissions as to the form (but not the substance) of these orders.
12.The matter be listed for Mention before a Judicial Registrar in the Sydney Registry of this Court.
13.The Applicant Husband’s Application for Review be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STEWART
This matter comes before the Court by way of Application for Review filed by the Husband on 6 November 2023. The Application for Review was filed approximately 7 weeks out of time, and therefore the Husband requires leave to proceed out of time before I can turn to consider the Application for Review proper.
Before I proceed to determine the leave application, and if leave is granted, I propose to set out the sorry history of this litigation, which led the Senior Judicial Registrar to refuse an application for an adjournment made by the Husband on 17 August 2023 and to proceed to determine the property proceedings on a final basis. In summary, the result of the proceedings before the Senior Judicial Registrar mean:-
(a)that the former matrimonial home in Suburb C in the state of New South Wales was to be sold;
(b)the Husband was to be paid a sum of $70,000 from a particular account;
(c)the Husband was to vacate the home within 42 days (which he has not done);
(d)the Wife was to be the trustee on the sale of the former matrimonial home;
(e)once the former matrimonial home had been sold, the Wife was to discharge the $520,500 mortgage secured over the former matrimonial home and then the Wife was to retain the proceeds of sale;
(f)The Husband was to retain a property registered in his name in Country D; and
(g)The property proceedings were finalised.
Exhibited in these proceedings were the transcript of 17 August 2023 and the Senior Judicial Registrar’s settled reasons. Although this is a hearing afresh, and includes a threshold issue that was not before the Senior Judicial Registrar, those documents provide a useful insight into how the proceedings have come to this point. At the time the Husband appeared before the Senior Judicial Registrar on 17 August 2023, the Husband had exhibited a flagrant disregard for filing directions and court processes. At that time, the Husband had filed no documents at all or made any real financial disclosure.
The proceedings were issued by the Wife on 24 January 2023. There was a hearing before a Judicial Registrar on 1 March 2023 and the Husband did not appear on that date. The notations to the orders made on that day indicate the Husband’s previous solicitors had been served, but no longer acted for the Husband, and therefore an adjournment was required to effect personal service on the Husband. The proceedings were adjourned to 10 May 2023 and further orders were made for the Husband to file a Response, Financial Statement and other financial documents by 19 April 2023.
An affidavit of service filed 14 March 2023 reveals that the Husband was personally served with the Wife’s documents on 10 March 2023. At that time, the parties were separated but were both living at the former matrimonial home, with the Wife occupying the main dwelling and the Husband variously occupying the outbuildings at the property.
When the matter returned to court before a Judicial Registrar on 10 May 2023, the Husband did not appear. The notations to those orders reveal that the Husband had not filed documents, was in City E and was communicating with his adult son via the “messenger” application. On that day, the proceedings were listed for an undefended hearing before a Senior Judicial Registrar on 20 July 2023 and the Husband was ordered to appear on the adjourned date. Various orders were made for further documents to be filed and an exchange of exhibits.
An affidavit of service filed 13 June 2023 reveals that the Husband was served with a copy of the 10 May 2023 orders on 15 May 2023, together with a minute of orders to be sought by the Wife on a final basis and a letter notifying the Husband of the adjourned date and the possibility of the matter proceeding on an undefended basis.
On 20 July 2023, the matter was before the Senior Judicial Registrar. The Husband appeared in person. At this point, the Husband still had not filed any documents. Rather than hear the matter to finalisation, the Senior Judicial Registrar gave the Husband a further opportunity to engage in the proceedings by filing a Notice of Address for Service within 7 days. The Senior Judicial Registrar also granted the Husband an extension of time to file his substantive documents to 10 August 2023. The Husband was ordered to pay the Wife’s costs of $1,200 (which to date have not been paid). It is not entirely clear why the Husband was granted this further indulgence, but the notations to the orders do reveal that Country D interpreters were to be obtained for the adjourned date of 17 August 2023 to assist each of the parties. The Husband was squarely on notice that he was required to file his documents and appear on the adjourned date. Notation B to those orders records:-
In the event that the respondent husband does not file any documents in the proceedings and/or fails to appear before the court on the adjourned date, the matter will proceed in his absence and orders may be made on a final undefended basis.
In these reasons I will refer to the hearing before the Senior Judicial Registrar on 17 August 2023 as an undefended hearing for ease of reference, although I note to refer strictly to it in those terms is incorrect. Rather it was a hearing where the Senior Judicial Registrar heard on Wife’s evidence and allowed the Husband to make submissions with the assistance of an interpreter. Nevertheless, for ease of reference I will refer to the hearing as undefended with that caveat.
On 17 August 2023, the Husband attended at Court, but he had still failed to file his documents. The transcript has been obtained, and the key events were as follows:-
(a)The Husband appeared in person and was assisted by an interpreter.
(b)As he does in his affidavits filed in this proceeding, the Husband told the Senior Judicial Registrar that he and the Wife (with the assistance of their adult son) wanted to reach an agreement, and that the Wife told him she would withdraw her application. He said that the Wife later told him on 10 August that she was told by her lawyer that the Application cannot be withdrawn. The Husband said that by that stage he had missed the filing date for his documents (which was erroneously said to be 7 August). The Senior Judicial Registrar was advised by the solicitor for the Wife that his client denied any agreement between the parties. The Husband said that the agreement was such that part of the quid pro quo for the withdrawal of the application was that the Husband would place $120,000 in a joint offset account (which in fact occurred). The Husband indicated that money was “his two year savings”. The Wife denied the Husband put $120,000 in the joint offset account but agreed that he did place $70,000 in the account, the difference being that the Wife claimed that $49,000 of the $119,000 deposited was sourced from the account itself prior to being deposited back into the account.
(c)The Husband was clearly opposed to the orders the Wife sought and implicit in his assertion that there was an agreement between the parties that the Wife was to withdraw the application was that this alleged agreement was the reason he had not filed documents. He asked that the proceedings be adjourned so he could attend to do so and consult a lawyer. The Husband said that because the parties had reached agreement on 25 July 2023, he had not had time to file his documents. The Husband said that he felt he had been deliberately misled by the Wife as to an agreement, causing him to miss the deadline to file documents.
(d)In respect of the monies transferred into the parties’ offset account, the legal representative for the Wife advised the court that he was instructed by his client that the Husband took $49,000 from the joint offset account first, he then deposited the same $49,000 back into the joint offset account and then deposited a further $70,000 into the same account, the source of which is not revealed. Implicit in that submission is a concession by the Wife that further monies were deposited, but there does not appear to be an explanation provided on that day as to why the monies were deposited by the Husband, at least from the Wife’s point of view.
(e)The Senior Judicial Registrar advised the Husband that the matter was to proceed on the Wife’s application. The Senior Judicial Registrar advised the Husband that he should not have relied on discussions between he and the Wife that the proceedings would be withdrawn in the absence of a formal Notice of Discontinuance.
(f)Discussions then turned to the Husband’s position that he should receive half of the proceeds of sale of the former matrimonial home. In the asset pool contended by the Wife, there was the further property in the Husband’s name in City E, and the Senior Judicial Registrar pointed out that it would be unlikely that the Husband would receive half of the net proceeds of sale of the former matrimonial home after sale. At that point, the Husband put the ownership of the City E property squarely in contention, stating that the City E property belonged “not only” to him, but also to his family. Reference was made by the legal representative for the Wife to her affidavit filed 9 May 2023 stating the property was purchased in or around 2014 “under his own name”, and to Annexure “E” to that affidavit (which is a translation of a title document from Country D showing the City E property is in the Husband’s name). The Senior Judicial Registrar referred to what was asserted to be a valuation report on the City E property contained in the later affidavit filed by the Wife on 19 June 2023 at Annexure “E”. That document either valued or appraised the City E property as having a value of 4,500,000 as at 22 May 2023.
(g)The Senior Judicial Registrar determined not to adjourn the proceedings. The matter was then determined on the substantive issues, particularly the two major assets being the former matrimonial home and the City E property. The Senior Judicial Registrar was referred to “the balance sheet” and was told that the value of the two real properties “has been established in the Wife’s affidavit” (19 June 2023).
(h)As will become relevant later in these reasons the Senior Judicial Registrar advised the legal representative for the Wife that she would “let Mr Hoa [the Husband] make submissions”. The Senior Judicial Registrar later turned to the Husband, asking him whether he “wanted to say anything in response to the submissions of Mr. Fung [the legal representative for the Wife] had made.”
I propose to deal with the application to proceed on the review out of time at first instance and, if that is granted, I will then move to consider the substantive review. However, before I do that, I will note the history of the parties, their relationship and marriage and their separation.
The Wife and the Husband are both 61 years old and they were both born in City E, Country D. English is a second language for each of the parties. Both require interpreters for these legal proceedings. The parties married in 1987 in Country D, and separated under the one roof in November 2018 after 31 years of marriage. Their relationship produced two children: a boy (Mr F), who is now 35 years old and independent; and 20 years later, a girl (X), who is now 15 years old and in the Wife’s primary care.
The Husband arrived in Australia in early 1989 on a student visa, leaving the Wife and Mr F in Country D. The Husband returned to City E in 1993. Some 14 years later, in 2006, the parties explored the possibility of a permanent move to Australia, secured their visa in 2007, and moved to Australia in that same year. Both of the parties are now permanent residents of Australia.
The parties’ marriage appears industrious, with the Husband (with some assistance from the Wife) owning and running businesses in both Country D and Australia, making numerous acquisitions and sales of real property in Country D, and purchasing the former matrimonial home in 2008. The parties also funded the purchase of a property in Suburb G, New South Wales (the equity in which was ultimately gifted to their son), and a further property in Brisbane (which was ultimately sold). The Wife has fulfilled the role of primary carer for the children. It is alleged by the Wife, though denied by the Husband, that the source of funds for the contentious City E property currently in the sole name of the Husband was from the sale of a previously-owned property in City E.
The parties remain separated at the former matrimonial home, with the Wife and X occupying the main dwelling. Initially, the Husband was living in an outbuilding at the rear of the property. However, the Husband now lives in one of the outbuildings and the other outbuilding is tenanted.
The Wife’s health is poor and she has not worked outside of the home since her arrival in Australia in 2007 (save to the extent that she says she assisted the Husband with some business tasks). The Wife’s Financial Statement reveals that she is reliant on the rent payment and a Centrelink family benefit for her and X’s support. The Husband alleges the Wife is also in receipt of regular retirement fund monies from Country D, but I am unsure if she agrees with that. The former matrimonial home continues to be subject to a mortgage of around $520,000. On any view, the Wife is in necessitous circumstances.
The Husband, in his affidavit filed 6 November 2023, described himself as a contractor, although I understand his business company is now deregistered and he has subsequently operated as a sole trader. In this initial affidavit, the Husband appears to concede that his earning capacity is superior to the Wife’s. The Husband states that he has a medical condition, but that does not seem to have impeded his capacity for remunerative employment.
I will deal first with the issue of leave to proceed on the review out of time. In dealing with this issue, I refer to and repeat the issues set out previously regarding the Husband’s abject failure to engage in the proceedings, resulting in the Senior Judicial Registrar’s decision to make the orders that are under review.
The law in relation to whether or not to grant and extension of time is well settled. In the High Court decision of Gallo v Dawson (1990) 93 ALR 479, McHugh J said 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 & Agency Co of Australasia Ltd. [1978] VR 257 at 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 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 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 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.
Accordingly, the relevant factors to consider in these proceedings are:-
(a)Has the Husband adequately addressed his 7 week delay in filing the review?
(b)Does the Husband raise a substantial issue in the substantive review application?
(c)The Husband’s overall conduct in the proceedings.
(d)Will there be hardship or injustice to the Wife if an extension of time for review is granted and, if so, can such hardship or injustice be compensated by a costs order?
(e)The consequences to the Husband of failing to allow the extension of time for review, in particular considering whether the result to the Husband by dent of the Senior Judicial Registrar’s decision is manifestly unfair due to matters the Husband has now put before the Court and, having regard to those matters, whether the result is plainly wrong.
In considering these issues, I note that the overarching principle is to ensure that injustice is not caused by a strict application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) (see Bande & Earley [2015] FamCAFC 147 at [13]).
In his affidavit material, the Husband sought to explain his delay in making the Application for Review. He said (in summary):-
(a)He was in disbelief after the decision and at that point decided to seek legal advice regarding Review;
(b)He engaged his solicitors on 8 September 2023 (which put him one day outside of the 21 day review period);
(c)After a “few days”, the Husband’s solicitors had access to the court file, reviewed the material, and ordered a transcript, which was received on 18 September 2023. The Husband also said that his solicitors had not received reasons from the Senior Judicial Registrar for the decision, which they needed to assess the prospects of success on review. Apparently, requests were made to chambers for the settled reasons between 6 and 30 October 2023. The settled written reasons appear to have been provided to the Husband’s solicitors on 27 November 2023.
The stated reasons for the delay are inadequate. There is no explanation proffered as to why the Husband did not see his solicitors until after the period for review had expired. Although clearly the Husband’s solicitors needed at some point to assess the prospects of success of the review, there is no explanation as to why an Application for Review was not filed immediately, or at least after the solicitors had access to the Court file and had taken the Husband’s instructions. There may be some merit in the submission of requiring transcript to assess whether the refusal by the Senior Judicial Registrar to adjourn was reasonable, however Applications are commonly recast when further information is to hand. Finally, I note that this Court regularly hears Applications for Review without the benefit of either transcript or written reasons. The Review is a hearing afresh, and the solicitors for the Husband were well capable of assessing the merits per se of the Husband’s complaint, or if they were not able to do so, could have referred the assessment to counsel.
It is submitted by counsel for the Wife that the Husband’s lack of plausible explanation as to his delay in filing the Application for Review should be reason enough to dismiss his application. I do not agree with that submission, as the totality of factors need to be taken into account and weighed in the balance when deciding the Application.
Similarly, in assessing the Husband’s conduct leading up to the orders it is very difficult not to be critical of him. I have set out earlier the Husband’s recalcitrance, failure to comply with court orders, and failure to make full financial disclosure. Those failures put the Wife and the Court in the frustrating and expensive position of numerous returns to Court to attempt to secure compliance by the Husband with filing requirements, financial disclosure, and disclosure of the nature of his case generally. It was not until the Husband had filed his Application for Review that the Husband asserted in admissible form that:-
(a)The acquisition of the City E property was funded by money sourced from the Husband’s parents.
(b)As a result of how the purchase of the City E property was funded from an inheritance received from the Husband’s parents, and his siblings potentially have a claim against the Husband for a share in the City E property.
(c)The Husband disputes the value of the City E property asserting its value at 3,000,000 rather than 4,500,000 making a difference of AUD $300,000 in the assets to be retained by him (the parties agreed at the hearing to an approximate exchange rate of 5 per $1 AUD).
(d)The Husband disputes the asserted valuation of the former matrimonial home stating that it is worth $2,500,000 and not $2,075,000 – a difference of $425,000.
(e)The Husband asserts that the Wife has recently received an inheritance, which she has not disclosed.
The Husband has been his own worst enemy in respect of his conduct leading to the undefended hearing, and it is hardly surprising that the Senior Judicial Registrar made the decision she did to proceed. However, I cannot ignore that if some of the matters put by the Husband are proved correct, then the range of possible outcomes may mean that an injustice has been visited upon the Husband.
The Wife also raises the Husband’s conduct following the making of the Senior Judicial Registrar’s orders, namely his failure to vacate the former matrimonial home as ordered (and he sought no stay of the orders), and his failure to pay costs of $1,200 ordered against him on 20 July 2023.
I also note that the Husband has failed to file (or even exhibit) a Response or Financial Statement. I was advised by counsel for the Husband that those documents are prepared and can be filed within a short period of time. While I accept that there might have been procedural impediments to the actual filing of those documents due to the substantive application being dismissed, at the very least I would have expected those documents to be annexed to the Husband’s affidavit in draft to give the Court, and the Wife, some idea of the financial parameters of the case and what the Husband will formally seek in Response. At the moment, the only information available is what the Husband said to the Senior Judicial Registrar (that he would like to receive half of the net proceeds of sale of the former matrimonial home and retain other items of property in his possession). At this point, the Court and the Wife have no further knowledge of whether the Husband has any additional cash holdings here or in Country D, or whether he holds superannuation benefits beyond the pension he receives from Country D.
I have also considered what seem to be procedural irregularities in the case as additional matters to be taken into account. I stress that I do not sit in appeal from the Senior Judicial Registrar. However, this Application for Review has some unique features. I also stress that I am in no way critical of the Senior Judicial Registrar in her conduct of the case. The majority of reviews considered are from interlocutory orders where, if errors are made or if information is subsequently proved to be incorrect, those issues can be dealt with at the next case management step and the trial. Undefended proceedings are in an entirely different category, in that the orders are final and will not be revisited. Furthermore, I acknowledge that trying to deal with undefended property proceedings when one party has failed to disclose or participate in proceedings is a notoriously difficult exercise. Judicial officers are required to grapple with an unquantified pool of assets and insufficient information.
In undefended proceedings, it is often the case that the proceedings are undefended because the Respondent does not attend, but that was not the case here. Having made the decision not to grant the adjournment, the Senior Judicial Registrar was then charged with the very difficult task of how to proceed when the Husband was present in court with his interpreter. Undoubtedly, the Court has a wide discretion as to how to conduct such proceedings, and I refer to the submissions on behalf of the Wife and their reference to the Full Court decision of Zane & Allan (2008) FLC 93-378 and the approved principles in relation to the conduct of such a hearing. Nevertheless, later Full Court authority refers to allowing the Respondent the opportunity to cross-examine the Applicant in such proceedings. In Morgan & Valverde [2022] FedCFamC1A 133, Austin J (sitting as a single judge with appellate jurisdiction) referred to the procedure to be followed when dealing with a hearing that proceeds on an undefended basis when the Respondent is present. In that case, Austin J was dealing with an appeal in similar circumstances to this case where the Respondent was in default of procedural orders to file affidavit evidence and other documents. His Honour referred to the procedure and discretion of the court in such circumstances contained in the Rules at rule 10.27, which provides as follows:-
Orders on default
…
(2) If a respondent is in default, the court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b) give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
His Honour also referred to the obligation to advise a self-represented litigant of “the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses” (see Re F: Litigants in person guidelines (2001) FLC 93-072 at [253]).
In this case, there does not appear to have been any significant or meaningful explanation to the Husband as to the procedure to be taken, beyond advising the Husband that he had the right to make submissions and seeking those submissions. There was certainly no explanation of the Husband’s capacity to seek to ask the Wife questions and put disputed material to her for instance surrounding the alleged “side agreement” that the Husband says induced him to default in filing documents (denied by the Wife), or the circumstances of the acquisition of the City E property. Although the Respondent had no absolute right to cross-examine the Applicant, I am concerned that the failure to inform the Respondent that he could request to do so is a denial of procedural fairness. If these proceedings were an appeal from a Judge, that circumstance would be an arguable appeal point, and if successful could arguably result in a remittal. This weighs in favour of the Husband in my assessment of whether leave should be granted for an extension of time on his Application for Review.
In a similar but not identical vein, there is some force in submission by counsel for the Husband that the valuation of the former matrimonial home was an online assessment rather than a sworn valuation. While I am less concerned about using online assessments and estimates for modest items such as motor vehicles and chattels, the former matrimonial home is the most valuable asset held by these parties. In circumstances where the Wife was to receive the entirety of the proceeds of sale of the former matrimonial home, admissible valuation evidence is of the utmost importance to ensure that the orders made were just and equitable. Again, in my view this would at least be an arguable appeal point had the proceeding on the 17 August 2023 been before a Judge rather than a Senior Judicial Registrar. Again, that weighs in favour of the Husband in my assessment of whether leave should be granted for an extension of time on his Application for Review.
Finally, in dealing with whether the Husband raises a substantial issue in the substantive review application, I am concerned by the factual dispute regarding the “side agreement”. Although that issue is very much in dispute, and the Wife describes the assertion as a “complete fabrication” there is some extraneous evidence to suggest there were discussions taking place outside of the Court process. In his affidavit filed 6 November 2023, the Husband deposes to personal negotiations between him and the Wife upon his return from City E in mid-2023 (where he had been since early 2023). By the time the matter came to Court on 20 July 2023, the matter had not resolved, and (as I have said earlier) procedural orders were made for the Husband to file and serve material by 10 August 2023 and the Husband was on notice that if he did not do so “the matter will proceed in his absence and orders may be made on a final undefended basis” (see notation B). In the intervening period between those orders and the adjourned date of 17 August 2023, the Husband alleges that an agreement was reached between the parties with the assistance of their adult son in the following terms:-
(a)the parties would reconcile and the Husband would move back into the main house;
(b)the Husband would resume paying the mortgage on the former matrimonial home (which he had not been paying for some months);
(c)the parties would attend the ANZ bank to ensure that withdrawals from the mortgage offset account would require each of their signatures;
(d)the Husband would (reluctantly) pay the Wife’s legal expenses of around $20,000; and
(e)the proceedings would be discontinued or dismissed.
Although the agreement is denied by the Wife, on 1 August 2023 the parties attended at the ANZ bank and each appear to have signed a joint account authority which reads “Two to sign (card cancelled)(IB Access Remove)”. In mid-2023, the Husband made deposits into the loan account of somewhere between $70,000 (as conceded by the Wife) and $126,000 (as asserted by the Husband). In his affidavit, the Husband annexes a translated Messenger (text message) conversation between him and his son in mid-2023, which reads:-
[mid] 2023 20:31
A: Mum said the solicitor advised that it cannot be withdrawn now, the final hearing will be next week. But we don't have to comply with it. Mum suggested we do not comply with the order.
[mid] 2023 20:36
B: Once they hold the hearing, we'll have to pay the fees
[mid] 2023 20:43
A: Mum asked me to tell you, she will leave once the money is ready, she doesn't care
B: Call me back ASAP
B: Call duration 12:21
Although not determinative of the issue of whether there was a side agreement, these matters are partially corroborative of the Husband’s assertion. The Husband did himself no favours by failing to even put these matters on affidavit at the hearing before the Senior Judicial Registrar, but they are before the Court now. Had these matters been properly before the Senior Judicial Registrar, there may have been no option but to adjourn the proceedings as a matter of procedural fairness, and this is also a matter weighing in favour of the Husband in determining whether to grant an extension of time. I cannot make a finding at this time as to whether there was a side agreement. The ultimate determination of that issue will be a matter for trial.
I have dealt with the Husband’s overall procedural conduct. There is no doubt that the Husband was in default of procedural orders and as at 17 August 2023 had failed to file any documents or make proper financial disclosure. In such circumstances, I can well understand the Senior Judicial Registrar’s refusal to grant the Husband a further indulgence, and the Wife’s desire to achieve orders.
The question then arises as to what prejudice will be suffered by the Wife if I grant leave for an extension of time on the Application for Review. The reality is that the Wife remains in the home and the Husband has failed to vacate. The Wife does seem to be in straightened financial circumstances, and the sale of the home has been delayed. At the conclusion of these proceedings, the parties agreed that the former matrimonial home should be sold by consent, and that will alleviate that issue. The Wife will be impacted by delay as this matter, issued in January 2023. I am satisfied that there is some prejudice to the Wife in granting leave for an extension of time on the Application for Review. However, that prejudice which is ameliorated by the agreement for sale of the home, can be addressed via costs orders. There is always the risk that the Husband will continue in his previously delinquent behaviour. However, he has assured the court that he will be properly attendant to his procedural and disclosure obligations in future. If the Husband does not make good on that promise, there will be inevitable consequences. Counsel for the Wife referred to the Wife’s financial circumstances and that she is largely without funds, but those issues can be dealt with via interlocutory applications if necessary.
I turn then to the nature and consequences to the Husband of failing to allow the extension of time for review. On 17 August 2023, the Senior Judicial Registrar was faced with the known asset pool constructed as follows:-
The former matrimonial home (valuation $2,075,000 less mortgage of $520,560)
$1,554,440
City E property
$970,000
Joint Offset account
$123,434
Wife’s motor vehicle
$38,000
Wife’s cash, jewellery and chattels (see Wife’s balance sheet filed 10 July, 2023)
$12,885
Husband’s motor vehicle
$19,000
Total:
$2,717,759
Noting that there were unknown items in the construction of the asset pool, but using the known asset pool above, the net result of the orders made by Senior Judicial Registrar (without taking selling costs of the former matrimonial home into account) was a 61% apportionment to the Wife and a 39% apportionment to the Husband of matrimonial property.
The Husband has now filed an affidavit annexing a valuation of the former matrimonial home suggesting its value is $2,500,000, some $425,000 more than the ascribed value on 17 August 2023. Even on a simplistic basis, and using the percentages above, the Husband would be entitled to a further $165,750. Conversely, and with the Wife receiving the additional amount in the net proceeds of sale, the Wife would receive around 66.5% of matrimonial property and the Husband 33.5%. If the Wife’s arguments are ultimately accepted, this percentage split is arguably in the range of possible results to the parties, but does seem to be at the high end of the range to the Wife. However, the analysis is simplistic in that it ignores assertions by the Husband, now on affidavit, that he essentially inherited the City E property, it does not belong to him, and it is worth 3,000,000 not 4,500,000.
If the Husband is proved correct on these and other matters (such as the Wife having her own inherited property in Country D), then the orders do seem outside of the range of doing justice and equity to the Husband. Even on the simplistic analysis being deprived of a further payment of $165,750 at the Husband’s age and stage of life after a lengthy marriage does strike as significant.
In the assessment as to whether an extension of time should be granted, and in addition to the matters previously considered I also take into account that the Husband, with English as his second language and as a self-represented litigant, may have faced greater obstacles than most in going through the process to make an Application for Review. I take into account that his solicitors should probably have filed the Application for Review immediately upon receiving the Husband’s instructions rather than waiting for transcript and evidence. In my view, the solicitors were erroneous in adopting that course. Had they have filed immediately, the Husband would have been a day or two out of time and not 7 weeks. I take into account that, in the scheme of things, where a review is sought of final and not interlocutory orders, a delay of 7 weeks does not seem manifestly excessive.
Weighing all of the factors referred to above, I am of the view that the circumstances weigh in favour of granting the extension of time for the Husband to file an Application for Review. That is not to say that I am not highly critical of the Husband and his conduct. However, on the current state of the evidence, I cannot be satisfied that the result achieved by the Wife is just and equitable to the Husband, and it may be manifestly unfair to him if later findings are made in his favour or if the house sells for considerably more than expected.
Simply granting the Husband an extension of time to file his Application for Review is not dispositive of the substantive Application for Review. The Husband has sought to review orders 1, 3, 4 and 5(d) of the orders made 17 August 2023 in his Application for Review. Those orders comprise the appointment of the Wife as trustee for the sale of the former matrimonial home, the mechanics of the sale and the payment of the net proceeds of sale to the Wife. Curiously the Husband has not sought to review order 2, which was the order requiring the Husband to vacate the home within 42 days despite him not having done so.
I do not propose to repeat the lengthy discussion as set out above in my consideration as to whether to allow the extension of time on the Application for Review, although those discussions are relevant on this Application for Review.
As I have set out above, I have a number of options on the Review. However, I am in quite a different position to the Senior Judicial Registrar in that the Husband has now filed material putting matters in issue (as I have discussed), is represented, and I am told is in a position to file documents within 7 days (although given the time of year, I shall allow him 14 days to do so).
On the current state of the evidence, I am not satisfied that the ultimate decision of the Senior Judicial Registrar is safe given the factual disputes between the parties. Again, I stress that I am in no way critical of the Senior Judicial Registrar. Senior Judicial Registrars in this Court are faced with high volume lists, and in this proceeding the Senior Judicial Registrar was faced with a recalcitrant Respondent, who was seemingly unable or unwilling to engage in the proceedings appropriately. At the time the Senior Judicial Registrar dealt with the proceedings, the decision to refuse to grant the Husband another chance in the absence of any evidence filed on his behalf is entirely understandable. Nevertheless, I must deal with the Application as it stands now, and it seems to me that the most appropriate way forward is for the Husband to file his documents, the parties to engage in financial disclosure, the sale of the property to take place, there be a single expert valuation on the City E property, the parties engage in dispute resolution, and if necessary progress the matter to trial.
At the conclusion of the hearing, I indicated that I would receive submissions not just as to the costs of this review, but also as to costs thrown away due to the Husband’s conduct. I will make orders for the filing of submissions with respect to costs.
At the conclusion of the hearing, I also advised that I would grant the parties leave to make submissions to Chambers regarding the form, though not the substance, of my orders regarding the sale of the former matrimonial home. Likewise, I indicated that I would be prepared to receive consent minutes (should they eventuate) in Chambers regarding the implementation of the sale. I have incorporated those grants of leave into my orders above.
For all of the foregoing reasons I make the orders set out above.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 9 January 2024
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