Jabbar and Gade (No. 4)

[2018] FamCAFC 210

FAMILY COURT OF AUSTRALIA

JABBAR & GADE (NO. 4) [2018] FamCAFC 210

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Two appeals – Appeal against interlocutory orders that the wife vacate a property of the parties after non-compliance with collateral orders that she pay outgoings – Appeal against the dismissal of stay application of the order to vacate – Where the applicant has a history of non-compliance with orders to pay the property’s outgoings – No challenge to the primary judge’s findings of fact – Where the grounds fail to raise sufficient doubt to warrant reconsideration of the matter – Leave to appeal on the basis of the grounds of appeal refused. 

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where, if the further evidence had been before the primary judge, there would have been a different result – Application to adduce further evidence allowed in part – Leave to appeal in both appeals on the basis of the further evidence allowed in part – Appeals allowed in part – Re-exercise – Orders set aside and further orders made in relation to appellants occupation of the property.

FAMILY LAW – COSTS – Applicant to pay portion of Respondents costs.

Family Law Act 1975 (Cth) s 93A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPLICANT: Ms Jabbar

RESPONDENT: Mr Gade

FILE NUMBER: NCC 2265 of 2015

APPEAL NUMBERS: EA
EA 121
128 of
of 2018
2018

DATE DELIVERED: 5 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 24 October 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 September 2018
4 October 2018

LOWER COURT MNC: [2018] FCCA 2492
[2018] FCCA 2903

REPRESENTATION

THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Mr Weightman

SOLICITOR FOR THE RESPONDENT:   NLS Law

Orders

(1)That the applicant have leave to adduce further evidence in applications for leave to appeal (EA 121 of 2018 and EA 128 of 2018), being Annexures A and B to the affidavit of Ms Jabbar, filed 18 October 2018.

(2)Other than as provided for in Order 1, the application to adduce further evidence in the appeals filed 18 October 2018 be dismissed.

(3)The applicant be granted leave to appeal Orders 1 and 2 dated 4 September 2018 and Order 1 of 4 October 2018.

(4)Other than as provided in Order 3, the application for leave to appeal the remaining orders issued on those dates be dismissed.

(5)Appeal EA 121 of 2018 be allowed in part.

(6)Appeal EA 128 of 2018 be allowed in part.

(7)Orders 1 and 2 of 4 September 2018 be set aside.

(8)Order 1 of 4 October 2018 be set aside.

(9)Pending further order, or the determination of appeal EA 71 of 2018 and EA 91 of 2018 whichever first occurs, the following orders apply:

(a)No later than 7 November 2018 the applicant shall deposit the sum of $12,000.00 with the solicitor for the respondent (NLS Law Pty Limited, trading as NLS Law – Law Practice Trust Account) being account: …

(b)No later than 14 November 2018 the applicant shall deposit an additional $4,000.00 to the respondent’s solicitors referred to in Order 9(a) above.

(c)The respondent’s solicitor shall hold the monies referred to in Orders 9(a) and 9(b) above on trust for the applicant and the respondent and shall apply those funds to discharge arrears on Westpac mortgage account: …, outstanding council rates and water rates and other outgoings payable by the applicant pursuant to Order 9(b) of 11 May 2018 in relation to Property A, in such order and priority as determined by the respondent and thereafter in satisfaction of the applicant’s continuing obligation to pay outgoings as per Order 9(b) of 11 May 2018.

(d)In the event that the fund established in Orders 9(a) and 9(b) is exhausted, the respondent shall give the applicant written notice of that fact, following which within ten (10) days of the date of notice being given, the applicant shall pay an additional $6,000.00 to the solicitor for the respondent, upon the same terms and conditions as apply to the payments made pursuant to Orders 9(a), (b) and (c) above.

(e)Thereafter, at the expiration of three (3) months from the date of the payment made in Order 9(d) above, the applicant may be called upon by the respondent to make similar payments upon the provision of notice as required by Order 9(d) above, but no more frequently than every three (3) months.

(10)The applicant pay the respondent’s costs of and incidental to these appeals in the amount of $4,000.00 which sum is payable at the same time as the respondent pays the applicant the adjusting amount referred to in Order 8 of 11 May 2018 and, to this extent, in the event that the sum due pursuant to this order has not been paid when the adjusting amount is paid, the amount payable by the applicant may be deducted from the adjusting amount.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabbar & Gade (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 121  of 2018; EA 128 of 2018
File Number: NCC 2265  of 2015

Ms Jabbar

Applicant

And

Mr Gade

Respondent

REASONS FOR JUDGMENT

1.Before the Court are two oral applications for leave to appeal and, assuming leave is given, appeals against various orders (most of which are interlocutory) made by Judge Terry.  The first application relates to the Notice of Appeal filed by Ms Jabbar (“the applicant”) on 20 September 2018 (EA 121 of 2018).  This application concerns orders made on 4 September 2018 which require the applicant to vacate what had been the family home (“Property A”) by 14 September 2018, failing which, a warrant for possession of the property was to issue in favour of Mr Gade (“the respondent”).  Orders were also made that the applicant pay the respondent’s costs and his application for interim orders filed by on 29 August 2018 was otherwise dismissed.

2.The second application for leave relates to the Amended Notice of Appeal filed by the applicant on 10 October 2018 (EA 128 of 2018).  By this application, the applicant seeks to challenge orders made by Judge Terry on 4 October 2018 whereby her application for a stay of the orders made on 4 September 2018 was dismissed and an order for costs made against her.

3.In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice directed that these appeals be determined by a single judge.

4.In order to secure leave to appeal, the applicant needs to establish that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by this Court and that substantial injustice would result if leave was refused (Medlow & Medlow (2016) FLC 93-692). The applicant does not require leave to appeal the orders for costs.

Background to the appeals

5.Following a defended hearing, on 11 May 2018 the primary judge made final parenting and property orders (“the final orders”).  By a Notice of Appeal filed on 21 May 2018 the applicant appealed both suites of orders.  That appeal, along with another appeal against the dismissal on 2 July 2018 of subsequent interim parenting and stay applications filed by the applicant, have been consolidated and expedited and are presently listed before the Full Court for hearing on 26 November 2018 (EA 71 of 2018 and EA 91 of 2018). 

6.These are the eighth and ninth appeals (including applications for leave to appeal) commenced by the applicant, in what is highly combative litigation undertaken by the applicant and her former husband.  In any event, Orders 8 and 9 of the final orders require the respondent to pay the applicant the amount of $81,956.82 and to refinance into his sole name loans secured over Property A and another property, Property B, upon which the applicant is to sign all documents required to transfer her interest in these properties to the respondent. 

7.In accordance with the final orders the applicant resides in Property A and (subject to the orders under appeal in these appeals) may continue to do so until the loans are refinanced into the respondent’s sole name and he has paid the adjusting amount. However, pursuant to Order 9(b) of the final orders, the applicant is required to pay all outgoings in respect of Property A as and when they fall due, including, but not limited to, mortgage instalments and council and water rates. Order 9(b) is in similar terms to interim orders made by consent on 9 December 2015, which provided that the applicant have sole occupation of Property A and that she pay the monthly mortgage payments and all other outgoings as and when they fell due. As the primary judge recorded at [35] – [44] of her reasons published on 4 September 2018, the applicant has consistently failed to make the required payments in relation to Property A and “…the potential detriment to the parties of her continued failure to pay the mortgage is great” [51].

8.The primary judge described that risk in the following terms:

52.Not only might it result in the bank taking and selling the property causing financial loss to the parties, there is an unacceptably high likelihood that if the [applicant] is allowed to remain in occupation and remains subject to the orders to pay that she won’t pay and that the [respondent] will have to bring yet another application to this court. That costs the [respondent] money but it also costs the [applicant] money. The last time I made a costs order in respect of an application of this kind the costs that I ordered the [applicant] to pay were over $5,000.00.

53.The [respondent] has again sought costs today. I have not determined that application but he may do so yet again if he has to bring another application.

54.The bank has issued default notices more than once in this matter and there is now an unacceptably high risk that if something isn’t done they may not be prepared to keep putting up with this situation.

9.None of these findings are challenged.  However, it is useful at this juncture to record that an application by the applicant to adduce further evidence in the appeals and in support of the applications for leave must also be considered.  Although most of the evidence concerns the parenting appeal and that component will be rejected on the basis it is irrelevant, the evidence which goes to the applicant’s capacity and willingness to immediately establish a fund (quantified before me at $15,500 - $16,000) from which arrears and further outgoings of Property A may be paid, is relevant and as will shortly be explained, will be received.  It is common ground that in the event that the appeals are allowed, the applications before the primary judge would be re-determined rather than remitted.  This further evidence is also relevant to that issue.

10.Returning to her Honour’s decision to order the applicant to vacate and in support of the warrant for possession, the submission by counsel for the respondent that the ratio of that decision is found at [32], [47] – [48] should be accepted.  These paragraphs provide:

32.However the complicating factor is the [applicant]’s ongoing failure to pay the mortgage and outgoings which is creating a situation where either the husband will be forced, by dint of circumstances, to make the mortgage payments or the home will be lost to the [applicant] and to the husband because the bank will take it, and the parties are likely to incur financial loss as a result.

…

47.In my view the appropriate order for me to make today is an order that the [applicant] vacate the home. That will achieve the purpose of the [respondent] being able to have a valuer come in and value the property, but the reason that I am going to order that the [applicant] vacate the home is that she has not complied with a condition on which she has sole occupancy of the property. I made an order on 11 May 2018 that the [applicant] have sole occupancy of the property but I also made an order that she pay the mortgage and outgoings and in my view her right to have sole occupancy is impliedly conditional on her complying with that order to make the payments and she has repeatedly failed to do so.

48.So I do intend to make an order that the [applicant] vacate the property. Once she vacates she will not be subject to any order to pay the mortgage and the outgoings. The [respondent] will then have to deal with whatever comes in relation to that so the [applicant] will be relieved of that obligation and the husband can pursue the valuation and hopefully, the refinancing.

10.It follows that the primary judge was satisfied that neither the applicant nor the respondent had complied with the property settlement orders.  For his part, the respondent had not made the payment to the applicant within the nominated 60 days, and for her part, the applicant had failed to pay the outgoings due on Property A.  Contrary to the position advanced by the respondent, the primary judge was not satisfied that the applicant had failed to give the bank access to Property A so that it could be valued (and thus he would be able to comply with the orders) but, nonetheless, an order that she vacate the property was required because:

58.It will relieve her of the obligation to pay under the orders although she will still be liable with the husband for the mortgage balance. The [respondent] can have the property valued. He can get his finances in place and I will deal as expeditiously as I can with an application for extension of time to pay, which in my view the [respondent] will be obliged to make. His solicitors have not yet addressed that issue, so he will be obliged to make it, but it is not an application that will face the same hurdle that these applications sometimes face, because I did not make an order on 11 May for the sale of the property if payment was not made.

59.It will give the [respondent] the opportunity to have the orders carried into effect, although in my view he needs to file an application for an extension of time so that the wife can be given an opportunity to make a submission about that. If for any reason the [respondent] can’t get finance approval or doesn’t get an extension of time, then the vacant house can be expeditiously sold and the wife can receive a payment to assist her.

60.I acknowledge that either of those options – in other words either a transfer to the [respondent] or a sale of the home – will put it out of the wife’s power to retain the home in the future, but it will not put out of power her right to obtain a just and equitable property settlement in some other form should the Full Court decide that the appeal against the property orders should be upheld.

61.So the orders that I am going to make are that the [applicant] vacate the home, but the [respondent] sought that that occur within 24 hours. I consider that to be harsh. Vacating a property involves not only finding somewhere else to sleep for the night but also removing one’s belongings so I am proposing to make an order that the [applicant] have 10 days to vacate the home.

The Grounds of Appeal

11.The applicant presents four grounds of appeal in relation to the first appeal and five grounds of appeal in relation to the second. 

12.The following three grounds are common to both appeals, and are stated by the applicant to be that the primary judge:

·Refused to consider [applicant]’s long tem [sic] financial hardship;

·Refused to consider [applicant]’s immediate need of a [sic] accommodation; and

·Did not make any arrangement for [the applicant] to get her share of money as mentioned in court orders dated 11 May 2018.

13.The three grounds may be considered together.  In essence, they assert that the primary judge failed to consider that an order that she vacate Property A prior to payment of the adjusting amount would leave her homeless and was manifestly unjust.  It was argued that the inevitable consequence of the steps referred to in [58] and [59] of the trial reasons referred to above was that it could be many months before the applicant might receive the adjusting amount.  Given the imminence of the hearing of the substantive appeal, the prejudice to the applicant of being ordered to vacate Property A with no certainty as to when she might receive the adjusting amount ought to have been given greater weight than the consequences of her failure to pay the outgoings on Property A.  

14.Her Honour’s reasons for judgment were given ex tempore and in a situation of obvious urgency. On a proper reading of the trial reasons, the need for such draconian orders was driven by the unacceptably high likelihood that the applicant would continue to fail to pay the mortgage and other outgoings and a commensurably high risk that the mortgagee bank would move against the property. This was a situation for which the applicant was solely responsible and for which she proffered no remedy other than to have the respondent meet the outgoings, give her rental income for Property B and/or pay her the adjusting amount forthwith. Reference to these proposals is found at [15] of the reasons and is implicitly rejected at [46].

15.It is clear that the primary judge accepted that the respondent had done all that he could to refinance the mortgage and provided he could have access to the property, the orders could be carried into effect [10]; and on a fair reading of the reasons that there was no proper basis on which the respondent should or indeed, could be required to meet the applicant’s obligations and make the payments referred to above. 

16.Her Honour’s reference at [59] to a possible sale of the home before the respondent paid the adjusting amount can thus be seen as the judge having addressed every possible scenario, no matter how remote.  To impugn the judgment based on a remote possibility rather than the finding that the respondent would likely be able to settle once access was provided would be perverse.  It follows that it is not accepted that the primary judge erred in failing to consider the prejudice to the applicant if the property had to be sold before she would receive the adjusting amount.

17.These grounds do not raise sufficient doubt to warrant the decisions being reconsidered and in relation to both applications leave to appeal on these bases will be refused.

18.The remaining grounds also share a common theme, namely that the primary judge failed to consider that the applicant’s appeal against the final orders and the dismissal of the stay application of those orders would be heard shortly and, in relation to the application concerning the orders of 4 October 2018, that she had appealed against the orders of 4 September 2018.  These grounds misstate the facts and it is abundantly clear that the matters complained of were addressed by the judge.  Reference need only be made to [24] of the reasons of 4 September 2018 and [10] of the reasons of 4 October 2018 to establish the point.

19.The effect of this is that these grounds also fail to raise sufficient doubt to warrant the decisions being reconsidered and in relation to both applications leave to appeal on these bases will be refused.

20.None of the grounds identify any error by the primary judge in relation to the orders for costs.

Application to adduce further evidence

21.Thus the application to adduce further evidence must be considered. It will be recalled that this evidence was to the effect that the applicant would establish a fund from which all arrears could be satisfied and future outgoings (pending determination of the substantive appeals) would be satisfied. This fund would be placed under the control of the solicitor for the respondent. On this basis, the evidence could be admitted pursuant to s 93A(2) of the Act, the approach to which is set out in CDJ v VAJ (1998) 197 CLR 172.

22.There is no evidence which indicates that the applicant was able to secure the advance referred to in the further evidence at the time when the proceedings were heard by the primary judge or that the applicant, as a litigant in person, understood the significance of presenting evidence of that type in the court below.  It was only during exchanges in pre-appeal procedures in this Court that the importance of this type of evidence arose.  Considered in this light, a generous approach should be taken to the failure of the applicant to adduce this evidence before the primary judge.  Doing so is consistent with the very wide discretion vested in this Court. 

23.I am satisfied that had this evidence been placed before the primary judge, it  likely would have produced a different result in relation to the orders that the applicant  vacate, for the writ of possession and the refusal to stay those orders.  Equipped with this evidence, the primary judge would not have been concerned that the bank might again move to take possession of Property A or that the applicant would continue to fail to comply with her obligations to pay the outgoings and that there was a risk of yet another application by the respondent to take possession of the property with its commensurate risk of orders for costs against the applicant. 

24.Shorn of these findings and based on findings that future compliance with the obligation to pay future outgoings was assured, it was likely that the application that the applicant vacate the property, for possession and refusal to stay that order would have been dismissed.  This is particularly so when it is understood that the respondent has control of Property B and has no plans to sell Property A.  Her Honour was acutely conscious that the hearing of the substantive appeals was imminent and that this was an important consideration that weighed in favour of the applicant.

25.In deciding that this evidence should be admitted, it is also appropriate to take into account that the parties agree that any re-hearing should be dealt with simultaneously with the appeal and thus the legal expenses, consequences of delay and necessity to call on additional court resources inherent in a remitter can be avoided. Proceeding in this fashion gives full effect to the remedial nature of s 93A(2).

26.The further evidence of the applicant, which is not seriously controversial, demonstrates that, although involving no error at the time it was made, to proceed on the basis that the Property A outgoings would not be paid can now been seen as erroneous.  Based on that further evidence the applicant has established that the orders of the primary judge (other than in relation the orders for costs) are attended by sufficient doubt as to warrant their being reconsidered by this Court, and further, that the applicant being rendered homeless would occasion substantial injustice if leave to appeal was refused.

27.Thus leave to appeal will be given and, other than in relation to the orders for costs, the appeals will be allowed.  Accordingly Orders 1 and 2 of 4 September 2018 and Order 1 of 4 October 2018 will be set aside.  

28.The applicant has not established any error in relation to the orders for costs.  Contrary to her submission, there can be no doubt that the primary judge understood that the applicant was impecunious and that the orders for costs would occasion some hardship.  However, impecuniosity is not, in and of itself, a bar to an adverse order for costs.

Re-Exercise

29.I agree with the primary judge that the applicant’s sole ground of appeal raised against the property orders is “not strong”.  Her Honour did not, and nor do I, express the view that the appeal was doomed to fail.  The substantive appeal is listed for hearing within a matter of weeks, which factor weighs heavily in favour of the applicant’s position that rather than being required to vacate Property A, orders should be put in place which guarantee that the outgoings in relation to Property A are met by her. 

30.True it is that the respondent is entitled to the fruits of the litigation, but he has failed to establish that the reason why the bank has not valued the property is as a result of conduct by the applicant.  Thus the fact that he has not made the adjusting payment to the applicant weighs heavily against his application that she be required to vacate and for a writ of possession. 

31.In the face of his non-compliance, the balance of convenience favours the applicant.

32.The appropriate orders are thus those which secure the applicant’s compliance with the conditions for occupation of Property A, namely the establishment of a fund which will enable the respondent’s solicitors to ensure that arrears are paid forthwith and future outgoings are met.  The quantum of the fund was discussed during the hearing and the applicant agreed she could deposit $12,000 within 24 hours and an additional $4,000 within a week or so.  The orders will reflect her position.  These amounts reflect the current arrears and anticipated outgoings until about February-March 2019.  The significance of that time frame is that by then the Full Court may have been able to publish its judgments in the appeals.  However, the possibility that this may not occur was also discussed and it was common ground that orders could be made which address the need for replenishment of the fund.  Orders of that type will be made. 

Costs

33.Irrespective of the outcome of the appeals, the respondent sought costs in the amount of approximately $6,500.  This is because the proceedings and appeals concern the applicant’s persistent failure to comply with orders that she pays the outgoings in relation to Property A.  This is undoubtedly a weighty consideration, made all the more compelling by the fact that at the commencement of the appeal hearing the applicant remained in default.  On the other hand the applicant had sought to engage the respondent in discussions designed to remedy the situation at least in the short term.  Although those discussions were met with something of a lack of enthusiasm by the respondent, this was no excuse for the applicant’s failure to address the arrears and establish the fund to which reference has already been made.

34.Otherwise it is accepted that each of the parties has had a measure of success in the appeals and that an order for costs against the applicant will occasion hardship.  However that hardship can be ameliorated somewhat if payment of the amount is deferred until the applicant receives the adjusting amount payable pursuant to the final orders.

35.On balance the relevant factors establish that there are circumstances which justify an order for costs in favour of the respondent.  As to the amount, the fact that he was not entirely successful makes it appropriate for a partial reduction to the amount sought.  In my assessment the appropriate sum is $4,000.  An order to that effect will be made.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan on 5 November 2018.

Associate: 

Date:  5 November 2018