JB & BW (APPLICATION TO EXTEND TIME TO APPEAL)
[2010] FamCAFC 144
•13 August 2010
FAMILY COURT OF AUSTRALIA
| JB & BW (APPLICATION TO EXTEND TIME TO APPEAL) | [2010] FamCAFC 144 |
| FAMILY LAW – PROPERTY – APPLICATION TO EXTEND TIME TO APPEAL – FAMILY LAW - CONSTITUTIONAL INTERPRETATION – Where appellant sought to question the constitutional validity of the Family Law Act 1975 (Cth) and the jurisdiction of the Family Court of Australia – Where appellant alleged that the judges of the Family Court of Australia did not act in accordance with their constitutional duties pursuant to Chapter III of the Australian Constitution – Assertions rejected FAMILY LAW - AUTHORITY OF THE FAMILY COURT OF AUSTRALIA – Where appellant sought to quash or appeal orders of the Full Court of the Family Court – No power to perfect orders entered on the record by the Full Court of the Family Court – Application of DJL v The Central Authority (2000) 201 CLR 226 – A trial judge of the Family Court may ascertain jurisdiction to hear a matter – The Full Court of the Family Court may set aside final and binding orders of a trial judge of the Family Court – Application of Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365 – Assertions rejected INTERNATIONAL LAW AND COMMON LAW – Application of principles of international human rights law – Where appellant alleged breach of right to a fair trial by virtue of not being legally represented – Consideration of Dietrich v The Queen (1992) 177 CLR 292 – No right to legal representation in civil proceedings at the public expense – Assertion rejected FAMILY LAW – APPEAL - APPLICATION OF Gallo & Dawson (1990) 93 ALR 479 – No substantive grounds of appeal raised warranting extension of time being granted – No prospects of a successful appeal – Application dismissed |
| Australian Constitution: s 51, Chapter III, s 73(ii), s 75(v) International Covenant on Civil and Political Rights, opened for signature, ratification and accession on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948 |
| Al‑Kateb v Godwin (2004) 219 CLR 562 Allesch & Maunz (2000) FLC 93-033 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Australian Securities and Investments Commission v Reid (No 1) [2006] FCA 699 Basic v Newman [1992] FLC 92-297 Bradley v the Commonwealth (1973) 128 CLR 557 JB & BW [1998] FamCA 155 JB & BW [1999] FamCA 616 JB & BW [1999] FamCA 628 JB & BW [2002] FamCA 693 JB & BW [2002] FamCA 105 JB & BW [2002] FamCA 369 JB & BW [2002] FamCA 648 JB & BW [2004] FamCA 956 JB & BW[2004] FamCA 1168 CDJ & VAJ (1998) 197 CLR 172 DJL v Central Authority (2000) 201 CLR 226 Gallo & Dawson (1990) 93 ALR 479 Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144 JB & BW [2006] FamCA 639 Kennon v Spry; Spry v Kennon (2008) 238 CLR 366 Mallet v Mallet (1984) 156 CLR 605 McNamara & Rose [2007] FamCA 529 Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (‘Teoh’s Case’) (1995) 183 CLR 273 New South Wales & Cannellis (1994) 181 CLR 309 R v Dietrich (1992) 177 CLR 292 (‘Dietrich’s Case’) Re Jarman; Ex parte Cook (1997) 188 CLR 595 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Yunghanns & Yunghanns (1999) FLC 92-836 |
| APPELLANT: | Mr JB |
| RESPONDENT: | Ms BW | ||||
| FILE NUMBER: | CAF | 672 | of | 1995 | |
| APPEAL NUMBER: | EA | 86 | of | 2006 |
| DATE DELIVERED: | 13 August 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 24 February 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 April 1999 21 October 1999 |
| LOWER COURT MNC: | [1999] FamCA 616 [1999] FamCA 2058 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Self represented litigant |
| SOLICITOR FOR THE RESPONDENT: | No appearance – application heard ex parte |
Orders
IT IS ORDERED THAT:
The Application in a Case (so relied upon incorrectly as to form by the appellant) filed on 23 January 2009 is dismissed, and the application to extend time in which to appeal against the orders of Justice Guest of 26 May 1999, 21 October 1999 and 10 November 1999 is dismissed.
A Judge be appointed to manage any further application filed by the appellant either in the original jurisdiction or appellate jurisdiction of the Family Court of Australia, and that Judge be Deputy Chief Justice Faulks, if he is reasonably available.
All extant applications in either the Original or Appellate jurisdiction of the Family Court of Australia in relation to this matter are dismissed.
The matter is removed from the pending cases inventory.
IT IS NOTED that publication of this judgment under the pseudonym JB & BW (Application to extend time to appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 86 of 2006
File Number: CAF 672 of 1995
| Mr JB |
Appellant
And
| Ms BW |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a complex matter in which the effluxion of time does not make things simpler but worse.
Mr JB (whom I shall refer to in this Judgment as “the appellant”) seeks, inter alia, that “the proceedings and judgments in the matter known as CAF 672 of 1995 be quashed.”
Having spent some time in the proceedings on 24 February 2009 focussing the appellant in relation to the orders he actually seeks, I conclude that, specifically, my task is to determine whether or not the appellant should be allowed to initiate an appeal out of time from the orders of Guest J of 26 May 1999, 21 October 1999 and 10 November 1999.
The appellant has withdrawn his application with respect to initiating an appeal out of time from the orders of Finn J of 27 February 1998.[1] Further, despite the appellant’s suggestion that I should, (without any reasonable submissions in support for the proposition), I do not propose to consider any other orders of the judges of this Court determined at first instance other than the relevant orders of Guest J in 1999.
[1] Orders of Faulks DCJ, 8 August 2008, Order 1: “The application in so far as it relates to seeking an extension of time to appeal against her Honour Justice Finn’s orders made on 27 February 1998 is withdrawn and accordingly dismissed.”
This is essentially an application pursuant to s 94(2D)(a) of the Family Law Act 1975 (Cth) being an application of a procedural nature for an extension of time within which to institute an appeal under s 94(1) of the Family Law Act 1975 (Cth). Section 94(1) of the Family Law Act 1975 (Cth) identifies that an appeal lies to the Full Court of the Family Court of Australia (‘the Family Court’) from “a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction.”
Rule 22.03 of the Family Law Rules 2004 stipulates that “a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.” Rule 1.14 of the Family Law Rules 2004 relevantly provides:
RULE 1.14
Shortening or extension of time
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
I made orders on 1 November 2005 under s 118(1)(c) of the Family Law Act 1975 (Cth) that the appellant be restrained from bringing any further proceedings before the Family Court relating to questions of property or matrimonial causes arising under the Family Law Act 1975 (Cth) without leave of the Court. The appellant appealed this order unsuccessfully to the Full Court,[2] and was not granted special leave by the High Court of Australia (‘the High Court’) to have a further appeal heard.
[2] JB & BW [2006] FamCA 639.
The approach I have taken with my Judgment is deal first with a number of ancillary matters raised by the appellant, before proceeding to the substantive question as to whether or not he should be permitted to initiate an appeal out of time from the relevant orders of Guest J in 1999.
Background
The matter first came before the Family Court in 1995, when the respondent commenced both maintenance and property proceedings. In this regard, I adopt the chronology accepted by the Full Court of the Family Court in the most recent appeal before Bryant CJ and Kay and Boland JJ (JB & BW [2006] FamCA 639 – specifically paragraphs [5] to [13] and the Annexure entitled ‘JB & BW – Chronology of Events’, which appears at Annexure 1).
It is necessary to detail the procedural history following the Full Court’s orders of 21 June 2006.
On 24 August 2006, the appellant lodged a Notice of Appeal against the orders of Finn J of 27 February 2998 and Guest J of 26 May 1999, 21 October 1999 and 10 November 1999.
On 23 November 2006, I granted leave to the appellant pursuant to s 118 of the Family Law Act 1975 (Cth) for him to file an application seeking an extension of time to appeal against the orders made by Finn J on 27 February 1998.
On 5 February 2007, I ordered that the appellant file material by 9 February 2007 to explain his delay in bringing the proceedings for an extension of time in which to appeal and addressing the potential prejudice or hardship that might affect the respondent if the application were granted.
On 16 May 2007, I adjourned the proceedings in the Family Court until all the proceedings brought by the appellant in the High Court had been finalised.
On 22 May 2007, the High Court refused the appellant’s application for special leave to appeal from the orders of the Full Court of 21 June 2006.
On 6 December 2007, the High Court refused the appellant’s application for leave to issue a proceeding against the orders of the Full Court of 23 September 1998.
On 8 August 2008, the appellant withdrew his application to appeal against the orders of Finn J of 27 February 1998. On 8 August 2008, I ordered that the application in so far as it related to Finn J’s orders be dismissed. I then ordered that the appellant’s application for an extension of time to appeal against Guest J’s orders in 1999 be the subject of further argument before me on a date to be notified by a Registrar of the Court.
The proceedings came back before me on 24 February 2009.
The substantive property judgment; first appeal to the Full Court; and contravention and enforcement proceedings before Guest J
On 27 February 1998, Finn J made orders altering the property interests of the parties. Those orders effectively provided that the appellant pay the sum of $43,000 within three months of the orders being made, and this sum was secured as a charge against the appellant’s shares in a business, C & C Pty. Ltd., and his home in F, Australian Capital Territory (ACT).
Finn J also ordered that the appellant provide share scrip to the respondent’s solicitors, returnable upon the appellant’s payment of the $43,000, and restrained the appellant from adversely dealing with either the F, ACT property or his shareholding in C & C Pty. Ltd. until the relevant payment had been made. Finn J also directed that the appellant pay all debts of the business and that he deposit all trading receipts of the business into a nominated bank account. The appellant was also directed to remove a caveat on the property and was restrained from adversely dealing with the property until the relevant payment had been made. In the event that the appellant did not pay the $43,000, he was required to transfer his interest in the F, ACT property and to deliver up vacant possession within 14 days. The respondent was then permitted to sell the property. The appellant was also required to maintain mortgage payments on the property until the sale and provide certain goods to the wife, as well as paying to the wife by way of maintenance the sum of $70 per week.
The appellant filed a Notice of Appeal on 30 March 1998. The appellant then filed an application to stay the orders of Finn J on 27 April 1998.
On 6 May 1998, I adjourned the appellant’s application to the duty list on 19 May 1998 and gave the wife leave to file an application for security for costs if the appellant’s application for a stay was successful. I also ordered that the appellant provide an amended Notice of Appeal by 18 May 1998.
On 19 May 1998, I dismissed the appellant’s application for leave to file an application for leave to appeal out of time for various orders made by the Court between 1995 and 1997. I also ordered that the appellant pay the sum of $5,000 as security for costs of the appeal, payable by 30 June 1998. I also stayed the orders of Finn J, conditional upon the payment of the $5,000 by 30 June 1998.
On 28 May 1998, C & C Pty. Ltd., appointed an administrator.
On 6 July 1998, I declared that by reason of the appellant’s failure to lodge security for costs in relation to his appeal, the stay of Finn J’s orders was lifted.
On 21 August 1998, a liquidator was appointed to C & C Pty. Ltd. and the creditors resolved that the company be wound up.
On 11 September 1998, the appellant became bankrupt on his own petition.
On 14 September 1998, I ordered that the appellant be restrained from entering upon the F, ACT property and that the wife be at liberty to change the locks on that property and dispose of certain furniture and chattels as she saw fit. I also ordered that the wife account to the husband or his trustee in bankruptcy in respect of the disposal of any of these items. I also ordered that a copy of my orders be served upon the Official Trustee in Bankruptcy and that the trustee have liberty to apply for a variation of the orders made by me (on or before 18 September 1998).
On 23 September 1998, the Full Court ordered that, unless the appellant paid the security for costs of $5,000 within 28 days, the appeal would stand dismissed. The appellant did not pay the $5,000.
On 2 February 1999, the respondent filed contravention proceedings pursuant to s 112AD of the Family Law Act 1975 (Cth).
On 3 February 1999, the respondent filed an application seeking garnishment of a bank account of the liquidator which contained the surplus of the assets of C & C Pty. Ltd.
Following a hearing on 14 and 16 April 1999, Guest J found in his Judgment of 26 May 1999 that the appellant had, without reasonable excuse, contravened orders 2(a), 2(c), 5 & 6(b) of Finn J’s orders of 27 February 1998.
Guest J initially ordered that the appellant report to the ACT Magistrates Court to determine whether he was “a person suitable as the subject of a Community Based Order for service of 200 hours within 12 months of any order being made by the Court.” (Order 2 of Guest J, JB & BW [1999] FamCA 630). Guest J also made orders for the garnishment of the liquidator’s bank account as sought by the respondent.
Guest J subsequently found that the appellant did not attend upon the ACT Magistrates Court.
On 5 November 1999, the appellant was arrested and subsequently granted bail by me on the condition that he appeared before the Court on 10 November 1999.
On 10 November 1999, Guest J sentenced the appellant to ten days imprisonment, pursuant to s 112AD and s 112AE of the Family Law Act 1975 (Cth).
I have set out the orders of Finn J of 27 February 1998 at Annexure 2, the orders of Guest J of 26 May 1999 at Annexure 3, the orders of Guest J of 21 October 1999 at Annexure 4, 10 November 1999 at Annexure 5.
Special leave applications to the High Court
The appellant has sought special leave from the High Court three times, unsuccessfully, to appeal the orders of several judges of the Family Court made between 1996 and 2006.
In the most recent application before the High Court, her Honour Crennan J detailed (with respect, succinctly) the complex history of litigation between the parties. For the sake of convenience and clarity, I include the extract of the transcript of the special leave proceedings before her Honour on 6 December 2007 which details the history of this matter:
CRENNAN J: This is an ex parte application for leave to issue a proceeding. The process in question is an application for special leave to appeal to the High Court from an order made by the Full Court of the Family Court of Australia (Lindenmayer, Kay and Brown JJ) on 23 September 1998 in relation to property orders made by Finn J on 27 February 1998.
The appeal before the Full Court had been instituted by the applicant on 30 March 1998 and on 23 September 1998 the Full Court ordered:
1.That unless the husband provides the security for costs of the appeal in accordance with the order of the Honourable Justice Faulks of 19 May 1988 and files the necessary appeal books within 28 days of this date the appeals stand dismissed.
That is the order which is the subject of the present application. After that order was made on 23 September 1998 the applicant made numerous applications to the Family Court of Australia, two of which led to applications for special leave to this Court. The first of these was an application of 5 February 2004 for leave to appeal against the orders made by various judges in the Canberra Registry of the Family Court between 6 February 1995 and 10 November 1999. That application included a ground of appeal applying to some 30 orders made by various judges of the Family Court, one of which was the order made by Faulks J on 19 May 1998.
On 7 April 2004 Ellis J held that the applications could not be granted without the applicant also seeking an extension of time and adjourned the matter to allow the applicant to do that. However, the applicant appealed to a Full Court of the Family Court (Warnick, May and Carmody JJ) which made orders on 20 October 2004 whereby an appeal and an application for leave to appeal were dismissed together with all ancillary applications. The applicant’s application for special leave to appeal from those orders of that Full Court was refused with costs by Gleeson CJ and Gummow J on 26 May 2005.
The second of the applicant’s applications to the Family Court which led to an application for special leave to this Court was an application filed on 21 June 2005 by which the applicant sought orders, in substance, that pursuant to section 79A of the Family Law Act 1975 (Cth) the judgment and orders for the disposition of property made by Finn J on 27 February 1998 be set aside. The allegations include allegations that the orders were procured by false evidence, fraud, conspiracy to pervert the course of justice and on other grounds.
That application was refused by Faulks J who ordered summary dismissal of the application. His Honour concluded that the application was, in substance, frivolous and vexatious and his Honour made an order restraining the applicant from bring further proceedings about property without the leave of the Court.
On 21 June 2006 a Full Court of the Family Court (Bryant CJ, Kay and Boland JJ) dismissed an appeal from that judgment. Attached to that Full Court’s reasons for judgment was an eight‑page chronology which particularised litigation from 31 January 1995 up to 21 June 2005. On 22 May 2007 Kirby and Callinan JJ refused the applicant’s application for special leave to appeal from the judgment of that Full Court.
The applicant now seeks leave to issue an application for special leave to appeal from the order of the Full Court of 23 September 1998 set out above. It is clear from the applicant’s affidavit dated 29 May 2007, filed in support of the present application, that the applicant wants another opportunity to reopen and have reassessed the property settlement ordered by Finn J on 27 February 1998. In paragraph 14 of that affidavit the applicant states:
The applicant contends that the orders made by the Honourable Justice [Finn] on 27 February 1998 imposed and continued to impose an unfair financial burden on the applicant and his new family and that the orders continue to impair the care, development and education of his children.
In paragraph 15 the applicant goes on to say that he is applying to once more file an application for special leave to appeal. By various means and many applications the applicant’s complaints about the property settlement made by Finn J on 27 February 1998 have been addressed by the Family Court and, as explained above, there have been two applications for special leave to this Court which have been refused.
In all the circumstances, I am satisfied that the application which the applicant seeks to issue would, if issued, be an abuse of the process of the Court. It contains no arguable grounds in support of the leave sought. Leave to issue the process is therefore refused and I publish that disposition.
Certiorari
The appellant effectively seeks an order for Certiorari (or quashing) of various orders, primarily against the orders of Guest J of 26 May 1999, 21 October 1999 and 10 November 1999 pertaining to subsequent enforcement and contravention applications of the respondent in relation to the substantive property judgment of Finn J of 27 February 1998.
Certiorari enables a superior court to quash a decision of an inferior court on the ground of non‑jurisdictional error of law or for jurisdictional error or denial of procedural fairness.
It would appear that the power to order certiorari is ancillary to the remedies mentioned in s 75(v) of the Australian Constitution.[3]
[3] See generally, Re Jarman; Ex parte Cook (1997) 188 CLR 595, 604, 618, 645.
The power of the Family Court to determine its jurisdiction has been clearly identified by Gummow, Hayne & Heydon JJ in Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor, where their Honours stated:[4]
The authority of the Family Court
The Family Court of Australia is established by s 21 of the Family Law Act as a superior court of record. It follows from the reasoning of this court in Re Macks; Ex parte Saint[5] that, like the Federal Court of Australia, the Family Court has authority to make decisions as to the existence of its jurisdiction in a matter and that its orders in relation thereto are final and binding unless and until set aside on appeal or pursuant to s 75(v) of the Constitution.
[4] Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365, 393.
[5] Re Macks; Ex parte Saint (2000) 204 CLR 158.
It follows that a trial judge of the Family Court has the power to determine the extent of jurisdiction of the Family Court to hear matters brought before it; that, on appeal, the Full Court of the Family Court has the power to set aside orders of a trial judge that are final and binding; and that final and binding orders may be set aside pursuant to s 75(v) of the Australian Constitution.
A single judge of the Family Court does not have the power to issue a writ pursuant to s 75(v) of the Australian Constitution against another judge of the Family Court.[6]
[6] McNamara & Rose [2007] FamCA 529, [23] – [33].
I make no comment about the merits of such an application for the appellant to seek relief pursuant to s 75(v) of the Australian Constitution from the High Court in relation to any of the decisions of the judges of this Court. I note that he has now appeared before the High Court three times in relation to the decisions of the Full Court.
Consequently, I will only concern myself with the application the appellant has made seeking an extension of time to appeal out of time from the orders of Guest J of 26 May 1999, 21 October 1999 and 10 November 1999 in accordance with the established line of legal authorities.
The Judgments of the Full Court of the Family Court
The appellant has also sought that the orders of the Full Court of the Family Court between 1998 and 2006 be quashed. The Full Court in each appeal was constituted by:
a)In the Full Court Judgment of 23 September 1998, Lindenmayer, Kay and Brown JJ;[7]
b)In the Full Court judgment of 6 February 2002, Ellis SJ, Lindenmayer and Holden JJ;[8]
c)In the Appellate Division of the Family Court judgment of 9 May 2002, Ellis SJ;[9]
d)In the Full Court judgment of 24 July 2002, Ellis SJ, Kay and Cohen JJ;[10]
e)In the Appellate Division of the Family Court judgment of 30 January 2002, Coleman J;[11]
f)In the Full Court judgment of 19 July 2004, Warnick, May and Carmody JJ;[12]
g)In the Full Court judgment of 20 October 2004, Warnick, May and Carmody JJ;[13] and
h)In the Full Court Judgment of 21 June 2006, Bryant CJ and Kay and Boland JJ.[14]
[7] JB & BW [1998] FamCA 155.
[8] JB & BW [2002] FamCA 105: DISQUALIFICATION of solicitors acting - application to Full Court for order that solicitors be disqualified from acting on the appeal and generally – whether application appropriate.
[9] JB & BW [2002] FamCA 369: PRACTICE AND PROCEDURE – Review of Appeal Registrar’s Decision Settling Appeal Book Index - Whether discretion properly exercised.
[10] JB & BW [2002] FamCA 648: APPEALS - the husband appealed against a decision dismissing his application for an extension of time to file an application for leave to appeal interlocutory orders, submitting, inter alia, that the provisions of s.94AA(1) required that his application to be dealt with by the Full Court and not by a single Judge - held, as the orders appealed are interlocutory, the husband required leave to appeal pursuant to s.94AA(1) and Regulation 15A, see Hall v The Nominal Defendant (1966) 117 CLR 423 - the required leave was not sought, thus the appeal is incompetent - as the appellant appeared in person the merits of the appeal were considered – Order 32A rule 3 is a rule relating to practice and procedure and is not ultra vires the rule making power, s.123 and Harrington v Lowe (1996) 190 CLR 311 - the husband’s application was properly before a single Judge of the Court - no appealable error found.
[11] JB & BW [2002] FamCA 693: Application to appeal out of time against interlocutory order made 6 years previously in circumstances where applicant had already sought unsuccessfully to appeal such orders and not sought to appeal such decisions. Inevitable dismissal of appeal if leave granted. Absence of explanation of delay.
[12] JB & BW [2004] FamCA 1168: PRACTICE AND PROCEDURE – APPEAL AGAINST AN INTERLOCUTORY ORDER – Leave to appeal applications against earlier orders of various judges were made out of time - Trial Judge adjourned directions hearing to a date to be fixed to enable the applicant to take steps to pursue an application for an extension of time – Applicant instituted appeal against this order - Requirement of legislation that party must file an application seeking leave of the Full Court of the Family Court when appealing an interlocutory order – Appeal incompetent and dismissed – PRACTICE AND PROCEDURE – LEAVE TO APPEAL - Application for leave to appeal was made out of time – No application for an extension of time sought – Application incompetent and dismissed.
[13] JB & BW [2004] FamcA 956: PRACTICE AND PROCEDURE – Husband’s appeal and application for leave to appeal had been dismissed – CONTEMPERANEOUS APPLICATION BROUGHT BY THE WIFE – Wife sought an order to restrain the husband from instituting particular proceedings without having first obtained leave of the court – Husband had been seeking to challenge various orders of the court however to do so he would need an extension of time from the court – Question of his entitlement to an extension of time had never been asked of the court, let alone determined by it on the merits – Not appropriate that the husband be required to obtain leave before instituting any proceedings seeking an extension of time – ANCILLARY APPLICATIONS – Wife sought all pending applications filed by the husband be dismissed – Court determined that it is desirable to finalise all ancillary applications and considered in the circumstances the administration of justice was best achieved by making the orders sought by the wife – Applications from the husband seeking among other things that the appeal of the husband be heard and determined and leave to adduce further evidence in aid of the appeal were also dismissed – COSTS – Wife sought costs in respect of certain ancillary applications and in respect of the appeal and the application for leave to appeal – Court unable to confidently identify all of the ancillary applications – Court not prepared to order costs amidst such confusion and lack of identification by nominating specific applications – Wife entitled to costs of certain individual hearings and the appeal
[14] JB & BW [2006] FamCA 639: FAMILY LAW – PROPERTY SETTLEMENT – APPLICATION TO SET ASIDE – SUMMARY DISMISSAL - Orders made in 1998 for husband to pay to wife $43,000 by way of property settlement – In 2005 husband sought to reopen proceedings via s 79A(1) of the Family Law Act 1975 – Husband appealed against summary dismissal of his claim by the trial Judge – Trial Judge may have approached the task erroneously by suggesting that the husband needed leave of the court in order to bring the claim – No leave of the court was required as husband could bring the s 79A application as of right – Section 79A application nevertheless doomed to fail and summary dismissal the appropriate outcome. APPEAL – FURTHER EVIDENCE -Husband sought to rely upon bank statements of the wife and other material – Nothing to suggest this material was not available before the trial Judge or that it could demonstrate a miscarriage of justice in the original trial – Application refused.
As a single judge of the Family Court’s Appellate Division, or as Deputy Chief Justice of the Court, I cannot exercise any power under the Family Law Act 1975 (Cth) to allow the appellant additional time to appeal (out of time) against the orders of the Full Court as identified above, nor can I order that a differently constituted Full Court hear an appeal against the orders of the Full Court.
On my analysis of the authorities, it is beyond doubt that a subsequent Full Court of the Family Court does not have any form of statutory or “inherent jurisdiction” to perfect a perfected order of a Full Court of the Family Court, once the orders of the first Full Court are entered on the record. This is so even if there is an issue with respect to a purported lack of jurisdiction to make the order (which would be an error of law). In DJL v the Central Authority, the High Court relevantly stated:[15]
The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case.[16] Nor is there an inherent power by reason of the description in the statute creating the court of it as a “superior court of record”. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.
A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution. Rather the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution.[17]
The Family Court is a federal court within the meaning of s 73(ii) of the Constitution. Thus, this Court has jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Family Court with such exceptions as the Parliament prescribes. An appeal lies from a decree of the Family Court exercising appellate jurisdiction by special leave of this Court (s 95(a)). An application for special leave “is not in the ordinary course of litigation” and, until the grant of special leave, “there are no proceedings inter partes before the Court.” Further, the disposition of a special leave application is not the determination of an appeal. The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re‑opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require.
The presence of s 73 of the Constitution and the special nature of the function exercised by this Court [being the High Court], with respect to the grant of special leave to appeal, indicate that there is no compelling necessity to strain the structure of the Family Law Act so as to see as a necessary implication that which is not expressed…the power of re‑opening after entry of final orders made by the Full Court is not necessary to protect this Court’s appellate functions conferred by Pt X of the Family Law Act.
…We would answer in the negative what the Full Court sought to isolate as the important question of law or public interest as to whether the Full Court had the power to re-open its final orders after their entry.[15] DJL v Central Authority (2000) 201 CLR 226, 248 – 249.
[16] That being the power to correct a perfected order of the Full Court by the Full Court subsequently.
[17] Australian Constitution s 73(ii): “The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees orders, and sentences…of any other federal court...and the judgment of the High Court in all such cases shall be final and conclusive.”
It follows that any attempt by the appellant to appeal out of time against perfected orders of the Full Court must fail in this Court, as any such appeal must lie to the High Court. The appellant has sought special leave in relation to a number of these orders already and has been denied special leave by the High Court.
Ancillary components of the appellant’s application
For the reasons which I outline below under specific headings, I have dismissed the various ancillary components of the appellant’s application.
$50 million claim for damages
I dismiss summarily the claim for damages against the respondent and the parties referred to by the appellant for the sum of $50 million “for wrong and injury done to the applicant and his family.” This is not the first occasion upon which the appellant has sought to make an application of this sort regarding damages.[18]
[18] See JB & BW [2005] FamCA 1442.
I have previously given a considered assessment of the power of the Family Court to hear such an application for damages. I also identified the deficiencies in the appellant’s cause of action. Despite having more than enough time to adequately articulate this component of his case, there has been no elaboration or expansion of this cause of action sufficient for me to be able to give it proper consideration. This claim is accordingly dismissed.
Asserted violation of international human rights law
The appellant alleges that the Commonwealth of Australia was “negligent by refusing to comply with its national and international obligations” under both the Universal Declaration of Human Rights[19] (‘UDHR’) and the International Covenant on Civil and Political Rights (‘ICCPR’).[20] The appellant asserts that the various proceedings and orders made by the judges of the Family Court since the proceedings first commenced in 1995 breached several articles of the UDHR and the ICCPR, which consequently impacted upon his inalienable human rights as outlined in those documents.
[19] Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948.
[20] International Covenant on Civil and Political Rights, opened for signature, ratification and accession on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
The position of the Australian Government and the High Court of Australia in relation to the application of international human rights principles is complex. The provisions of treaties such as the ICCPR only form part of binding Australian law where there has been specific legislative enactments to enable this to be so.[21] It has been established that where legislation is ambiguous, a construction which accords with Australia’s treaty or international convention obligations should be preferred “at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.”[22] In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (‘Teoh’s Case’), Mason CJ and Deane J relevantly stated:[23]
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.
…
But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.
Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law. (Footnotes omitted)
[21] See generally Bradley v the Commonwealth (1973) 128 CLR 557.
[22] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (‘Teoh’s Case’) (1995) 183 CLR 273, 286.
[23] Ibid, 286 – 288.
The position about whether or not international law can assist in the interpretation of the provisions of the Australian Constitution is less than clear.[24]
[24] See generally the debate “against” and “for” this proposition between McHugh and Kirby JJ in Al‑Kateb v Godwin (2004) 219 CLR 562 (at 580 and 614 respectively).
The appellant has failed to articulate how any provision of the UDHR and the ICCPR has actually been violated, and more importantly, how the application of any provisions of the Family Law Act 1975 (Cth) by any of the judges of this Court were not applied in accordance with the principles enunciated in the above extract from Teoh’s Case. I do not propose to go through each provision he has identified. However, in the specific context of the appellant’s application on this point, he suggests that his lack of legal representation during the course of the various proceedings, but in particular, before Guest J in 1999 which resulted in his brief incarceration for contravention of orders of the Court, breached his right to a fair trial.
The appellant gives evidence that he made several applications to the relevant Legal Aid body and several pleas to the Commonwealth Attorney-General that he should have been legally represented throughout the entire proceedings before any of the judges of the Family Court. The appellant also submits that Guest J did not stay the proceedings upon his request. The appellant relies upon the principles enunciated by the High Court in R v Dietrich,[25] which established that a court has the power to grant an adjournment or a stay or proceedings if a trial is likely to be unfair if an accused person is forced on unrepresented. In Dietrich’s Case, Mason CJ and McHugh J relevantly stated:[26]
In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.
[25] See generally R v Dietrich (1992) 177 CLR 292 (‘Dietrich’s Case’).
[26] Ibid, 297 – 298.
In Australian Securities and Investments Commission v Reid (No 1),[27] Landner J of the Federal Court of Australia (‘the Federal Court’) discussed the High Court’s Judgment in New South Wales v Canellis & Ors[28] which further outlined the principle in Dietrich’s Case. I note the following statement of his Honour:
[10] The principle in Dietrich was explained in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in New South Wales v Canellis & Ors in the following terms:
‘... the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.’
[11] Referring to that principle, their Honours went on to say:
‘As the majority judgments made clear, that principle is based on, and derives from, the accused’s right to a fair trial. There is no suggestion in the majority judgments that a court could exercise similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction should be exercised in favour of an indigent person charged with a criminal offence which is other than serious.’ (Footnotes omitted)
[27] Australian Securities and Investments Commission v Reid (No 1) [2006] FCA 699.
[28] New South Wales & Cannellis (1994) 181 CLR 309.
Lander J concluded in relation to the civil proceedings before him:
In the circumstances of this case, where the procedure to be adopted in the contempt proceeding is civil rather than criminal, the respondent’s application to stay the proceedings on the basis of Dietrich had to fail because the principle in Dietrichhas no application to civil proceedings. It was on this basis that the respondent’s application was dismissed. (Emphasis added)
A further difference in the circumstances of the proceedings before Guest J in 1999 was that the appellant was dealt with for contravention of the orders of Finn J, rather than contempt proceedings pursuant to s 112AD of the Family Law Act 1975 (Cth). The legislature has seen fit to draw a distinction between the two types of proceedings (compare s 112AD and s 112AP of the Family Law Act 1975 (Cth)).
I note that Guest J did use language which suggested that the appellant was to be dealt with for contempt, but I am not satisfied, based on my reading of his decision (particularly as he applied the civil standard of proof) and the provisions of s 112AD (which is part of “Division XIIIA – Sanctions for Failure to Comply with orders and other obligations which do not affect children.”)
On one view, the distinction between contempt and contravention proceedings is important because of the starkly different consequences that result from prosecution of each type of proceeding, as noted by Mullane J in Basic v Newman. In that case, his Honour’s comments were in the context of proceedings involving a dispute about children, but they appear apposite to the present application:[29]
…perhaps the most important difference between the two procedures [the first being the contravention procedures in s 112AD of the Family Law Act 1975 (Cth)] is the difference in relation to penalty. The contempt power is a common law power which is part of the inherent jurisdiction of superior courts. A person convicted of contempt of court can be sentenced to imprisonment for any term specified by the court. There is no restriction on the length of that term of imprisonment. Also the court can impose a fine, and there again there is no legal limit to the fine which can be imposed on a conviction for contempt of court.
In many cases persons convicted of contempt of court are sentenced to imprisonment until such time as they purge their contempt. Many people have lingered in prison for long periods because they have refused to take the opportunity of purging their contempt.
[29] Basic v Newman [1992] FLC 92-297, 79,265.
I note in Guest J’s Reasons for Judgment of 26 May 1999 relating to the contravention application his Honour specifically considered the adjournment issue (albeit not with reference to Dietrich’s Case). Guest J stated:[30]
On a number of occasions, the husband asserted that he was not legally represented, had no means to pay for such representation and that he was … not trained to handle this sort of thing by himself. I note that in her reasons for judgment the 27th February 1998, Finn J. said that the husband had at all times represented himself in these proceedings save for a brief period early in 1995, and again in late 1996.
I pointed out to the husband that the matter was before me on the 6th April 1999 and the 12th April 1999. On neither of those days did he make any submissions along those lines, nor did he apply for an adjournment. Furthermore, on the 8th March, 1999 Faulks J. adjourned the wife’s application to be heard before me on the 6th April 1999 or on such other day as I subsequently determined. The following notation was made to the order of His Honour:
2. That in respect of the application of [Ms BW] seeks that in the circumstances that it is appropriate that [Mr JB] be imprisoned if he is to be found guilty of the alleged contravention of the court orders.
The husband sought an adjournment of the proceedings and which I rejected, pointing out to him further, that he had some two months in which to seek advice if that is what he genuinely wished to do. I am aware of my duties and obligations towards a litigant in person and which are described in JOHNSON v JOHSON (1997) FLC 92-764.
I was, and remain satisfied that the husband was alert to the evidence, well aware of each of the particular allegations made against him and was not disadvantaged by any measure with the continuation of the proceedings. There were times during the course of the evidence when he made various repeated statements of his inability to conduct his defence and indeed, on the 16th April 1999 made an application that I be disqualified from further continuing with the proceedings. I ruled against him, having given his submissions due consideration.
The proceedings were difficult to control given the husband’s attitude, but continued notwithstanding given also the interests of the wife and the fact that there must at some point of time be an end to the proceedings, provided that the husband was not disadvantaged or denied procedural fairness.
Following the completion of the wife’s case, and having heard submissions, I was satisfied that a prima facie case had been made out by the wife. Accordingly, I asked the husband to state his defence and whether he wished to give evidence or call any witnesses on his behalf. He elected to give evidence and announced that he did not have any witnesses upon whom he wished to rely. (Footnotes of the trial Judge)
[30] JB & BW [1999] FamCA 628, 6 – 7.
On one interpretation of the legal authorities, the demarcation between the two types of proceedings might affect the rights of parties requesting adjournments on the grounds of having the right to be legally represented in order that they have a fair trial. The principle in Dietrich’s Case would ordinarily relate to fulfilling the obligation both at common law (and international law) to give parties accused of criminal offences the opportunity to receive a fair trial. Family law proceedings, including applications for contravention of orders, are not proceedings involving the prosecution of criminal offences. It is difficult to treat circumstances such as in this case as the same or similar to the important circumstances the High Court contemplated in Dietrich’s Case in protecting the interests of an accused person. To suggest that parties to family law proceedings who are the subject of contravention proceedings (effectively) must be legally represented also has significant public policy ramifications.
In contradistinction, however, it may be thought that proceedings before a Court which may result in the deprivation of liberty of the person before the Court would, (even if they were properly to be considered civil proceedings), nevertheless by proper jurisprudential extension be subject to the same procedural protection as was considered appropriate in Dietrich’s Case.
In terms of the application of the principle in Dietrich’s Case, one interpretation may lead to the logical extension of the principle in circumstances where an order of the Court would have the effect of depriving a person of their liberty, such as contravention proceedings pursuant to s 112AD of the Family Law Act 1975 (Cth).
It is important, however, to consider what the protections stipulated in Dietrich’s Case actually are. As set out above, the common law does not recognise the right of an accused to be provided with counsel at public expense. What Mason CJ and McHugh J affirmed was that a court has undoubted power to stay criminal proceedings which will result in an unfair trial.
The undoubted power to stay in such circumstances was clearly to enable the unrepresented person to obtain such representation – but not necessarily at the expense of the Commonwealth of Australia.
If, therefore, I were to extend the principles in Dietrich’s Case as the appellant suggested should have occurred, what Guest J might have properly done was not provide the appellant with counsel at public expense, but rather a stay to enable the appellant to obtain appropriate representation.
It appears from the judgment of Guest J that although the appellant had asserted that he was “not trained to handle this sort of thing by himself” the appellant did not seek an adjournment on 6 April 1999 or on 12 April 1999. When the matter was adjourned (on 8 March 1999 by me) to be heard before Guest J, I had noted in my orders that this was a matter in which the respondent sought to have the appellant imprisoned if he were found to be guilty of the alleged contravention.
It appears from Guest J’s judgment, and in part from what the appellant said when he appeared before me on 24 February 2009, he sought an adjournment which was rejected by Guest J. Guest J pointed out that the appellant had “some two months to seek advice….”
This statement is somewhat contradictory of what his Honour said in the preceding paragraphs of his Judgment, but the substance of Guest J’s determination is, nevertheless, clear.
There is no requirement for a person to have legal counsel at public expense. There is a requirement that a party be given procedural fairness, taking account of the consequences of the proceedings. In Guest J’s judgment, his Honour set out that the appellant was aware of each of the alleged breaches of the orders made against him and was not disadvantaged by any measure with the continuation of the proceedings. Guest J found that the appellant was not disadvantaged by the proceedings or denied procedural fairness.
I note, but do not accept the interpretation the appellant submits I should give to Gaudron J’s judgment in CDJ & VAJ[31] at page 186 about the issue of Guest J giving the appellant procedural fairness. In any event, Guest J considered the appellant’s submissions in relation to that case in his Judgment of 14 April 1999[32] (at pages 4 and 5) and concluded that the appellant had been given procedural fairness. There is no evidence before me which would enable me to include otherwise.
[31] CDJ & VAJ (1998) 197 CLR 172.
[32] JB & BW [1999] FamCA 616.
There is no evidence before me in these proceedings or from the Guest J’s judgment which would lead me to conclude otherwise than that his Honour’s statement about procedural fairness was accurate.
The appellant was unable to provide a transcript of the proceedings before Guest J and was not able to say that a transcript would necessarily demonstrate that he was denied procedural fairness or was prevented unfairly from having an adjournment to obtain such legal advice as he might reasonably have required. On the evidence I have before me, I am satisfied that Guest J gave proper procedural fairness in hearing the appellant’s arguments on this point at that time.
Accordingly, there is no merit in this part of the appellant’s application and this component in purported support of the appellant’s application must fail.
It is a difficult matter for parties to attend to legal proceedings involving breakdown of family relationships even when they are legally represented. This is compounded when a party cannot afford legal representation and is ineligible to receive assistance from a relevant Legal Aid body. However, it was not open to any judge of the Family Court to make an order to pay an individual or a body to pay for a party’s legal representation.[33]
Asserted violation of s 51 and Chapter III of the Constitution
[33] See generally Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184.
There is no basis to the assertion of the appellant that the various proceedings first commenced in 1995 and the subsequent orders made by judges of this Court arising from those proceedings “violate” s 51 or Chapter III of the Australian Constitution. The appellant did not identify how those proceedings violated the respective parts of the Australian Constitution he identified.
It is clear from s 51(xxi) and s 51(xxii) of the Australian Constitution (relating to “marriage” and “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants”) that the Parliament has the ability to legislate about these matters. It is also established from that the Family Court has jurisdiction to alter the interests of property between the parties and has had this jurisdiction for some time.[34] The most recent consideration of the Family Court’s jurisdiction in relation to such property matters is the High Court’s decision in Kennon v Spry; Spry v Kennon.[35]
[34] See, for example, Ascot Investments Pty Ltd v Harper (1981)148 CLR 337; Mallet v Mallet (1984) 156 CLR 605.
[35] Kennon v Spry; Spry v Kennon (2008) 238 CLR 366.
The appellant has asserted that Finn J, Guest J and the other judges of this Court did not have jurisdiction, by virtue of the Constitution, to deal with the property of the parties in relation to this matter. Such assertion is nonsense. This component of his application has no merit.
Asserted violation of the Judiciary Act 1903 (Cth)
The appellant asserts that the various proceedings and orders made by the judges of the Family Court since the proceedings first commenced in 1996 violated sections 78, 79 and 80 of the Judiciary Act 1903 (Cth). The appellant does not provide any submission as to the nature of this violation or, indeed, how these provisions even relate to the proceedings presently before this Court. This is a misconstrued assertion.
Asserted violation of the Family Law Act 1975 (Cth)
The appellant asserts that the various proceedings and orders made by the judges of the Family Court since the proceedings first commenced in 1996 violated sections 26, 43, 61C, 75, 79 and 118 of the Family Law Act 1975 (Cth).
Section 26 relates to the oath or affirmation that judicial officers swear or affirm when they take office as a federal judicial officer.
Section 43 relates to principles to be applied by the Family Court which include having regard to: the need to preserve and protect the institution of marriage; protecting and assisting families as the natural and fundamental group unit of society; the need to protect the rights of children and to promote their welfare; the need to ensure safety from family violence; and the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and their children.
Section 61C confers parental responsibility on parents in relation to children, subject to the orders of the Court.
Section 75 identifies the matters a court should take into consideration in relation to spousal maintenance.
Section 79 is the operative provision allowing the Court to alter property interests of the parties.
Section 118 relates to the power of the Court to declare proceedings frivolous or vexatious and to order that a party not institute proceedings without leave of the Court.
The appellant has conducted litigation as a self‑represented litigant in this Court and the High Court over some 15 years. This component of his application is nonsensical as he may, on reflection, concede. There is no explanation from the appellant as to how the above provisions relate to the proceedings before this Court. I can only assume that this is a generic complaint about the fact that at various times since 1996, the various judges of the Family Court have failed in their duty to “do right to all manner of people according to law, without fear or favour, affection or ill‑will.”[36] Without prima facie evidence this proposition must be rejected. There is not a jot of evidence before this Court.
[36] Family Law Act 1975 (Cth) s 26.
The principles as outlined in s 43 of the Family Law Act 1975 (Cth) are aspirational in nature. The principles as outlined in s 43 are either not relevant to these proceedings or might be considered duly under the so called “fourth step” that orders made in property proceedings must be “just and equitable”.[37] In this case, the parties are no longer a family unit. Section 43 does not give the Family Court any power to heal or prohibit the antipathy parties may have towards each other.
[37] See Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144.
Section 61C has no relevance. There were no children born of the marriage.
The appellant does not identify how s 118 has been violated (or indeed, how it could be violated in the circumstances).
The references to sections 75 and s 79 of the Family Law Act 1975 (Cth) have no substantive bearing on the appellant’s application as he no longer seeks to appeal against the orders of Finn J of 27 February 1998.
There is no ascertainable basis for this component of the appellant’s application.
Asserted violation of the Corporations Act 2001 (Cth)
The appellant asserts that the various proceedings and orders made by the judges of the Family Court since the proceedings first commenced in 1996 violated sections 232, 436A, 588G, 596 of the Corporations Act 2001 (Cth) and something which the appellant refers to as “Table A Regulations 52, 63, and 79(2)”. Section 232 identifies the circumstances in which a court may make an order under s 233 with respect to “the future direction” of a company, such as whether a company should be wound up or if a company’s constitution should be modified.
Section 436A relates to the power of a company to appoint an administrator if a boards thinks the company is or will become insolvent.
Section 588G relates to a director’s duty to prevent insolvent trading by a company.
Section 596 relates to fraud by company officers.
The appellant’s reference to “Table A Regulations 52, 63 and 79(2)” is not referable to any part of the Corporations Act 2001 (Cth) or Corporations Regulations 2001.
There are a number of problems with this submission, not the least of which is that the identified provisions of the Corporations Act 2001 (Cth) came in to existence in that Act five years after the first proceedings were dealt with by Finn J. The appellant does not identify the relevant sections of the legislation that would have applied at that time.
In summary, the appellant has not:
a)identified any specific breaches of the Corporations Law relevant to the proceedings before the judges of this Court; and
b)put forward any evidence that the Corporations Law has been breached by the respondent at the time the proceedings were commenced or during any of the subsequent appeals made by him to this Court; and
c)identified any link between any asserted specific breaches of the Corporations Law and the conduct of the proceedings in relation to the alteration of property interests between the parties.
Accordingly, this component of the application is rejected.
Conduct of the respondent and her legal representatives and the trustees in bankruptcy
I also summarily dismiss the components of the appellant’s application involving assertions about the conduct of the respondent and her legal representatives and the trustees in bankruptcy which suggests that they were either, individually or collectively, involved in conspiracy to pervert the course of justice. There is no evidence to support this assertion. The appellant also alleges a prior conflict in relation to Mr Farrar’s representation of the respondent. However, there is no relevant evidence of this. I note that a disqualification application was also dealt with by the Full Court in 2002 and was dismissed, partly on the grounds that there was no evidence suggesting that disqualification of Mr Farrar was appropriate.
Application to initiate an appeal out of time
The relevant authority for applications to extend the time in which to appeal is McHugh J’s judgment in Gallo v Dawson.[38] McHugh J dealt with an application to extend time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of the High Court. McHugh J relevantly stated:[39]
The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd.(1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board(1973) 2 NZLR 86, at p 92; Jess v. Scott(1986) 12 FCR 187, at pp 194‑195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg(1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson(1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy(1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
"The rules of court must prima facie be obeyed, and in
order to justify a court in extending the time during which
some step in procedure requires to be taken there must
be some material upon which the court can exercise its
discretion."…
When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of [the High Court rules] if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege (Emphasis added)
[38] Gallo v Dawson (1990) 93 ALR 479.
[39] Ibid, 480 – 481.
Despite the fact that there have been three High Court special leave applications, eight Full Court judgments, there has never been an appeal on the merits of the initial substantive property orders of Finn J as made in her judgment of 28 February 1998. It would also appear that the decision of Guest J in May 1999 (relating to enforcement and contravention of Finn J’s orders) and the decision of Guest J in November 1999 (dealing with the appellant’s penalty for contravention of Court orders, which resulted in his incarceration for 10 days) have also not been appealed on the merits. The appellant has withdrawn his application to extend the time in which to appeal against her Honour Finn J’s decision.
It is almost impossible to properly consider the appellant’s application to extend the time in which the appellant could appeal against the orders of Guest J in 1999 without considering briefly Finn J’s substantive property judgment.
I incorporate the following relevant paragraphs of the Full Court of the Family Court judgment in 2006 (Bryant CJ, Kay and Boland JJ) which substantially considered the merits of the appellant’s application pursuant to s 79A of the Family Law Act 1975 (Cth) (being an application to set aside the orders of Finn J in the substantive property judgment):[40]
[40] JB & BW [2006] FamCA 639.
[55] By referring only to the material relied upon by the appellant in support of his s 79A application can it properly have been said that the application was doomed to fail? We think the inevitable answer to that question is “Yes”.
[56] The power that Finn J exercised was a discretionary power. Her Honour effectively made two key findings. The first key finding was that the wife received from her property settlement of a prior relationship $46,000 plus $3,000 interest in the months just prior to or just after the marriage in July 1991. She made $43,000 of those monies available for the purposes either of the business which the parties were then establishing or for family purposes associated with the parties’ marriage or their general living expenses. That finding appears to have been based not only upon the oral evidence of the wife but also upon a letter addressed to the wife’s former solicitors from the solicitors acting for her former partner on 29 May 1991 which read as follows:
“We confirm our telephone conversation between Mr [R] and our Ms [B] in relation to payment of the balance of the settlement moneys in this matter. On Monday, 27 May, our client provided us with a cheque for $7,000.00 payable to your firm.
Our client instructs us that he is unable to borrow the remaining $41,000.00 required to satisfy the balance of the judgment.
We note that $25,000.00 has already been paid.
His proposal is to pay $7,000.00 immediately and then pay the balance plus interest at the rate of 20% in monthly instalments of $10,000.00 due on the last day of each month.
Enclosed is our client’s cheque for $7,000.00. Please acknowledge receipt.
We look forward to your response to this proposal.”
[57] Her Honour also relied upon the deed entered into between the husband and the wife on 2 September 1991 that acknowledged the receipt by the husband from the wife of the sum of $45,000 which her Honour said was the rounding up of the sum of $43,000 that the husband was prepared to concede the wife had advanced either for family or business purposes.
[58] The second essential finding by her Honour was that she was unable to determine the extent of the husband’s assets and was thus hampered in determining what would be a just and equitable outcome to the proceedings.
[59] The husband’s s 79A case appears ultimately to be based upon his assertion that he can now clearly demonstrate that the wife never advanced the sum of $43,000 to him. That he says is evident from the bank statements of the wife’s account with the State Bank of NSW which would indicate that at best she had banked only $36,500 in that account other than monies referable to the earlier insurance claim.
[60] We agree with the analysis of Faulks DCJ that the mere presence of bank statements relating to that period does not advance the matter. There is nothing to suggest that Finn J’s finding was based upon the wife’s evidence that all the monies that she advanced to the husband passed through her bank account. Nor does the now presence of the bank statements help to explain the other findings made by the trial judge relating to the acknowledgement by the husband in the deed that the wife had advanced the monies for the benefit of the business and the family.
[61] We agree with the conclusion of the trial judge that inevitably the s 79A application was doomed to failure given the ambiguous nature of the evidence, the modest amounts in dispute, and the passage of time since the matters the subject matter of consideration occurred. The summary dismissal of the claim was the appropriate outcome. (Emphasis added)
I have carefully considered the judgment of the Full Court referred to above. I have also carefully considered the affidavit material of the appellant upon which he relies with his present application (which does not provide in an appropriate form any relevant evidence supportive of his application). I have also carefully considered Finn J’s judgment. Based on my consideration of those three things, I conclude that there is nothing articulated by the appellant capable of suggesting that there has been a miscarriage of the discretionary power exercised by Finn J in her substantive property judgment. The appellant has, quite simply, put forward no evidence that Finn J’s discretion miscarried, other than the general and unsubstantiated assertions about the effect that judgment has had upon his life. (In this regard, I do not doubt that the judgment has had a profound effect upon the appellant.) Further, even if the appellant were to identify and provide admissible evidence of some asserted miscarriage of justice, this hypothetical proposition would need to be weighed against the significant time since those orders were made, being nearly ten years.
Standing of the appellant as a bankrupt
I turn to the issue raised by the appellant about the jurisdiction of the Family Court to have dealt with a number of matters in relation to the property in bankruptcy. This is the appellant’s application to appeal out of time against Guest J’s orders.
Relevantly, the appellant became a bankrupt on his own petition on 11 September 1998. The appellant asserted that the decisions of several judges of the Family Court were ultra vires by virtue of a legislative requirement that proceedings being stayed unless and until the Official Trustee in Bankruptcy had been notified of the proceedings, in accordance with the relevant provisions of the Bankruptcy Act 1966 (Cth). The remedy sought by the appellant is that the proceedings be now quashed.
There were two sets of proceedings which, arguably, might have been affected by the provisions of the Bankruptcy Act 1966 (Cth) applicable at the time prior to the Family Court’s expanded jurisdiction under the Family Law Act 1975 (Cth).
These proceedings were the appeal heard on 23 September 1998 against an order made by me on 19 May 1998 which stayed the orders made by Finn J on 27 February 1998 at first instance in relation to property division, conditional upon the appellant paying $5,000 as security for the respondent’s costs in relation to the appeal which had been filed on 30 March 1998.
The second set of proceedings were proceedings before Guest J in 1999 pursuant to s 112AD(1) of the Family Law Act 1975 (Cth). These proceedings were brought by the respondent who was the applicant for the purposes for those proceedings, and the applicant in the original property settlement proceedings.
It should be noted from the outset that the orders of Finn J were made prior to the appellant’s second bankruptcy and thus unaffected by any purported jurisdictional error from the operation of the (then) Bankruptcy Act 1966 (Cth).
I set out the relevant provisions of the Bankruptcy Act 1966 (Cth) (which applied at the time, prior to the Family Court’s expanded jurisdiction under this Act) as follows:
Division 4—Effect of Bankruptcy on Property and Proceedings
Section 58 Vesting of property upon bankruptcy
(1)Subject to this Act, where a debtor becomes a bankrupt:
(a)the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b)after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
(2)Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.
(3)Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a)to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or
(b)except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.
(4)After a debtor has become a bankrupt, distress for rent shall not be levied or proceeded with against the property of the bankrupt, whether or not the bankrupt is a tenant of the landlord by whom the distress is sought to be levied.
(5)Nothing in this section affects the right of a secured creditor to realize or otherwise deal with his or her security.
(5A)Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a bankrupt, or against any property of a bankrupt that is not vested in the trustee of the bankrupt, in respect of any liability of the bankrupt under:
(a)a maintenance agreement or maintenance order (whether entered into or made, as the case may be, before or after the commencement of this subsection); or
(b)a pecuniary penalty order or interstate pecuniary penalty order.
(6)In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.
Section 59 Second or subsequent bankruptcy
(1)Where a person who is a bankrupt again becomes a bankrupt:
(a)the property of the bankrupt:
(i)that was acquired by, or devolved on, the bankrupt on or after the date of the earlier bankruptcy; and
(ii)that had not been distributed amongst the creditors in the earlier bankruptcy before the date on which the person became a bankrupt on the later occasion;
shall (subject to any disposition of that property made by the trustee in the earlier bankruptcy without knowledge of the presentation of the petition on, or by virtue of the presentation of which, the person became bankrupt on the later occasion and subject also to section 126) vest forthwith in the trustee in the later bankruptcy;
(b)property:
(i)that is acquired by, or devolves on, the bankrupt on or after the date of the later bankruptcy; and
(ii)that is divisible amongst the creditors in the later bankruptcy;
vests in the trustee in the later bankruptcy as soon as it is acquired by, or devolves on, the bankrupt;
(c)the trustee in the earlier bankruptcy:
(i)shall be deemed to be a creditor in the later bankruptcy in respect of any unsatisfied balance of his or her expenses or remuneration in the earlier bankruptcy, the liabilities incurred by him or her in administering the estate in the earlier bankruptcy and the debts proved in the earlier bankruptcy (whether or not those debts are entitled to priority, or are postponed, in the earlier bankruptcy);
(ii)shall rank equally with the ordinary unsecured creditors in the later bankruptcy; and
(iii)may, where he or she has lodged a proof of debt in the later bankruptcy, amend that proof of debt, without the consent of the trustee in the later bankruptcy, for the purpose of adding:
(A)his or her expenses in the earlier bankruptcy that have, or his or her remuneration in the earlier bankruptcy that has, accrued after the proof of debt was lodged;
(B)liabilities incurred by him or her in administering the estate in the earlier bankruptcy after the proof of debt was lodged; or
(C)debts proved in the earlier bankruptcy after the proof of debt was lodged;
or, with the consent of the trustee in the later bankruptcy, for any other purpose;
(d)a charge or charging order that, by virtue of subsection 118(9), is void as against the trustee in the earlier bankruptcy continues to be void as against that trustee; and
(e)a transaction that, by virtue of section 120, 121 or 122, is void as against the trustee in the earlier bankruptcy continues to be void as against that trustee.
(2)Where the trustee of the estate of a bankrupt receives notice of the presentation of a creditor’s petition against the bankrupt, the trustee shall hold the after-acquired property of the bankrupt that is then in the possession of the trustee, or the proceeds thereof, until the petition has been dealt with by the Court or has lapsed.
(3)Where the trustee of the estate of a bankrupt receives notice that a debtor’s petition against the bankrupt has been referred to the Court, the trustee shall hold the after-acquired property of the bankrupt that is then in the possession of the trustee, or the proceeds thereof, until the Court has dealt with the petition.
(4)Where the trustee of the estate of a bankrupt is holding after-acquired property of the bankrupt, or the proceeds of any such property, in pursuance of subsection (2) or (3) and the bankrupt again becomes a bankrupt, the trustee shall:
(a)in a case where the trustee is also the trustee in the later bankruptcy—hold all such property, and the proceeds of such property, as the trustee in the later bankruptcy; or
(b)in any other case—deliver all such property, and pay the proceeds of such property, to the trustee in the later bankruptcy.
(5)Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered, and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of subsection (1), does not vest in the trustee at law until the requirements of that law have been complied with.
(6)In subsections (2), (3) and (4), after-acquired property, in relation to a bankrupt, means such of the property that was acquired by, or devolved on, the bankrupt on or after the date of the bankruptcy, being property divisible amongst the creditors of the bankrupt, as has not been distributed amongst the creditors in the bankruptcy.
Section 60 Stay of legal proceedings
(1)The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:
(a)discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or
(b)stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:
(i)in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or
(ii)in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;
and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody.
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a)any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or
(b)the death of his or her spouse or of a member of his or her family.
(4A)Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under the Proceeds of Crime Act 1987 or a corresponding law.
(5)In this section, action means any civil proceeding, whether at law or in equity.
The gravamen of the appellant’s assertion on the bankruptcy issue is that the respondent should have been precluded (by virtue of s 58(3)(a) of the Bankruptcy Act 1966 (Cth)) from taking any enforcement action under the Family Law Rules for garnishment of surplus of the liquidation of C & C Pty Ltd, as well as proceedings pursuant to s 112AD of the Family Law Act 1975 (Cth) seeking sanctions against the appellant for failure to comply with Finn J’s orders.
The appellant’s submissions on the operation of the (then) Bankruptcy Act 1966 (Cth) with respect to the respondent’s action must fail. The respondent was a secured creditor (by virtue of Finn J’s orders) for the purposes of s 58(5) of the Bankruptcy Act 1966 (Cth) meaning that it was competent for her to enforce her remedy through the enforcement application. The application pursuant to s 112AD of the Family Law Act 1975 (Cth) was also within the scope of the respondent’s competency deemed by s 58(5) of the Bankruptcy Act 1966 (Cth). The operation of s 60(2) of the Bankruptcy Act 1966 (Cth) precluded action being taken by the bankrupt (i.e. the appellant) from commencing, not action taken by a secured creditor (i.e. the respondent).
The Full Court proceedings are a different question. In the first set of proceedings before the Full Court, after he had lodged his appeal, the appellant became bankrupt. Accordingly, s 60(2) of the Bankruptcy Act 1966 (Cth) took effect. There is no evidence to suggest that any person after the appellant became bankrupt gave notice to his trustee in bankruptcy about the appeal, as might have been envisaged under s 60(3) of the Bankruptcy Act 1966 (Cth). The Full Court noted the husband became bankrupt, but did not make reference to s 60(2) of the Bankruptcy Act 1966 (Cth).
As I am unable to discern whether the trustee in bankruptcy was given notice of the appeal proceedings, I am unable to determine whether the provisions of s 60(3) of the Bankruptcy Act 1966 (Cth) were activated, that is the trustee in bankruptcy was deemed to have abandoned the action.
“Action” is defined in s 60(5) of the Bankruptcy Act 1966 (Cth) as meaning “any civil proceeding, whether at law or in equity”. This unhelpful definition would appear to be wide enough to encompass proceedings brought by way of appeal. In this respect, it would seem to be logical to assume that the appeal brought by the appellant before the Full Court of the Family Court on 30 March 1998 was an action commenced by a person who subsequently became bankrupt. This would seem to mean that the second part of the provisions of s 60(2) applied, which meant that that “action” was “stayed until the trustee makes election to prosecute or discontinue the action”.
Whoever was the trustee in bankruptcy at the relevant time is (obviously) no longer the trustee in bankruptcy of the appellant. The bankruptcy has long since terminated. It is a question, therefore, whether it is possible for the condition precedent to the finalisation of the action (as contemplated by s 60(2) of the Bankruptcy Act 1966 (Cth)) can ever occur.
If the Full Court had considered s 60(2), it, of its own motion, may have sought to give notice to the trustee in bankruptcy. If it then proceeded after that notice had been given and procedural fairness had thereby been afforded, to dismiss the appeal (as it eventually did), then, at least on one interpretation of the word “stayed” this would have been a valid action on the Full Court’s part.
It may be that on one interpretation of the word “stayed” in s 60(2) of the Bankruptcy Act 1966 (Cth) that the Court did not have a power to make any orders in relation to an action unless and until notice is given to a trustee in bankruptcy and the relevant 28 day timeframe had come to pass. On this interpretation, it may be that the Full Court did not have the power to make the order it did in dismissing the appeal on the 23 September 1998.
Such an order, however, having been perfected cannot now be set aside by the Full Court of the Family Court, but only by the High Court. If the High Court were to grant special leave to appeal in relation to that order (which it declined to do on the last occasion) and if the appeal were to be successful, it would seem that the effect of the relevant order from the High Court would be the re‑instatement of the appeal on behalf of the appellant against the order requiring him to provide security for costs.
The appellant has, as confirmed by me in submissions on 24 February 2009 (and in my orders of 8 August 2008) in relation to his various applications on that day, abandoned any appeal against the original orders made by Finn J in relation to the division of property. In consequence, even if special leave were granted by the High Court, and even if the appeal were to succeed, then the effect of any order setting aside made by the Full Court on 23 September 1998 dismissing that appeal would be nugatory.
As no appeal is sought or pending in relation to the original orders of Finn J, an ancillary order in relation to that appeal or a procedural order made in relation to that appeal can now have no relevance.
The proceedings before Guest J were in a different category. To begin with, the “action” (assuming that word encompassed the proceedings as they were pursuant to s 112AD(1) of the Family Law Act 1975 (Cth), constituted an action within the terms of s 60(2) of the Bankruptcy Act 1966 (Cth) were not brought by the appellant, but by the respondent. Accordingly, s 60(2) of the Bankruptcy Act 1966 (Cth) was inapplicable to those proceedings. The appellant’s bankruptcy at that time was irrelevant.
In any event, it is clear from Guest J’s comments set out below that the trustee in bankruptcy was aware of the proceedings and wished to take no part in them.
On the question of the Official Trustee’s involvement in further proceedings, his Honour found:[41]
…as a consequence of the orders made by the court prior to the date of bankruptcy, it was the view of the [Official Trustee in Bankruptcy] that there was no property that appeared to vest with the trustee. Accordingly, there was no need for the Official Trustee, as trustee of the husband’s bankrupt estate, to be represented in court on the 12th April 1999. There was no appearance by the Official Trustee before me.
…
…the Official Trustee has made it clear that he does not have any direct interest in the husband’s (as the bankrupt) proceedings in the Family Court and that by reason of the orders of Finn J. the 27th February 1998, took the view that there was no property that vested with the trustee.
[41] JB & BW [1999] FamCA 629, 16.
It is certainly within the scope of a trial judge of the Family Court to determine the jurisdictional facts necessary to determine whether a matter can be adjudicated before it,[42] as it is apparent Guest J obviously did.
[42] See generally Yunghanns & Yunghanns (1999) FLC 92-836.
Whether or not s 60(2) of the Bankruptcy Act 1966 (Cth) precluded the appellant from making the applications he made to the Full Court I am not able to determine for the reasons I have outlined above about correcting perfected orders. This argument, however, could only apply to the first decision of the Full Court of 23 September 1998, as the appellant was discharged from his second bankruptcy on 11 September 2001.[43]
[43] Affidavit of the appellant, filed 12 February 2007, [20].
In any event, were the Full Court’s order of 23 September 1998 set aside by the High Court, the appellant would still have to comply with my order requiring the appellant to provide security for costs in relation to appeal from the orders of Finn J. As stated above, the appellant has withdrawn his application in this regard.
Accordingly, I conclude that the operation of the (then) Bankruptcy Act 1966 (Cth) did not affect the proceedings before Guest J. As such, the primary component of the appellant’s application to extend the time in which to appeal fails.
Conclusion
I conclude that there are no prospects of a successful appeal being mounted by the appellant based on his submissions and evidence as presented. Accordingly, I decline to exercise my discretion to allow the appellant an extension of time in which to appeal against the relevant orders of Guest J made in 1999.
I particularly take into account the fact that the appellant no longer pursues his application to extend the time in which to appeal against the orders of Finn J in the substantive property judgment. It would be somewhat incongruous to allow enforcement and contravention proceedings to be appealed so far out of time on the grounds that there had been an error of law, when the substantive orders of the Court altering the property interests of the parties were not similarly considered.
I take into account, as I must, given the context of this significantly protracted litigation (nearly ten years at the time that proceedings were heard before myself on 24 February 2009) the length of time in which the appellant has taken to articulate the proposed appeal against the orders of Guest J. It would appear to me make a mockery of the Rules of Court as discussed by McHugh J in Gallo v Dawson, if the appellant were granted an extension of time so far out of time because of some perceived injustice on the part of Guest J’s conduct in the proceedings in 1999.
I also take into account the fact that the respondent is entitled to the fruits of judgment (of the orders of Finn J of 27 February 1998) which has not been successfully appealed in the last 10 years. The appellant has concentrated many times on initiating appeals against procedural and interlocutory orders made by judges of this Court and he has had many, many opportunities to put forward his case about the orders of Finn J, but relevantly to this application, the orders of Guest J, to the Full Court.
In any event, assuming that there was some ascertained (and possibly unascertainable) reasonable prospect of a ground of appeal being successfully established (which I have found that there is not), what possible remedy could there be? The amount involved in the substantive property judgment of Finn J was minimal. I express doubts that there would actually be any property left between the parties capable of being altered if, as a result of a successful appeal, a re-trial were ordered. The legal costs alone in responding to any re‑trial emphasise the pyrrhic nature of such an outcome. Finn J’s orders were merely enforced by Guest J and the contravention of Finn J’s orders resulted in the appellant’s brief incarceration. In this context, the words of Lady Macbeth appear apposite: “What’s done cannot be undone.”[44]
[44] William Shakespeare, Macbeth, Act V, Scene 1.
Finally, I take into account the following Reasons of Kirby J in Allesch & Maunz:[45]
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation. (Emphasis added)
[45] Allesch & Maunz (2000) FLC 93-033, 87,518, [38] - [39].
I need not say more.
I am conscious that the end of this extensive review (and I apologise for the delay in delivery of my Judgment) of matters involving the appellant that he will feel acutely disappointed and probably aggrieved by what he sees as the rejection of his claims.
I have been associated with the appellant and his case for many years, indeed most of my judicial life. The appellant has appeared in front of me on many occasions and I have always found him to be courteous and pleasant. He has pursued his concerns with vigour but almost invariably with such research as he has been able to put together. I could never complain about his lack of preparation or his ability to direct my attention to that part of the record which he was from time to time making reference to. That having been said, it is clear that his ability to comprehend some of the more complex legal principles has been lacking and it is evident from my Judgment that there are some areas of complaint on his behalf which have no substance.
I am sorry that, at the end, the appellant will feel that the system has in some way let him down. His involvement with “the system” has occupied a substantial part of his life and has caused him much grief.
I hope that in what would now appear to be my final consideration of the matters that have been his concern for so long that he will be able to begin the rest of his life with an acceptance that this unfortunate chapter (or perhaps these unfortunate chapters) of his past life have now been closed.
I make orders in accordance with my Judgment.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Senior Legal Associate:
Date: 13 August 2010
Annexure 1
Chronology
| 1955 | Wife born |
| July 1991 | Parties married |
| January 1995 | Parties separate |
| 1997 | Decree Nisi granted |
| 31 January 1995 | Wife's Form 8 Application for Injunctions and other Restraining Orders filed — commencing proceeding |
| 6 February 1995 | Interim Orders made by Her Honour Justice Finn |
| 17 February 1995 | Interim Orders made by His Honour Justice Faulks |
| 22 February 1995 | Interim Orders made by His Honour Justice Faulks |
| 29 March 1995 | Wife's Form 8 Application seeking appointment of a new company director filed |
| 2 May 1995 | Husband's Form 8 Application regarding [CM] Pty Limited filed |
| 9 May 1995 | Orders made by Justice Faulks (Procedural Orders) |
| 16 May 1995 | Orders made by Justice Faulks including an Order that all Orders made by this Court on 6, 17 and 22 February 1995 be discharged and further injunctions are made |
| 15 June 1995 | Husband files Form 8 Application seeking injunctions against Wife and [DS] from disposing of property and that Supreme Court Application be dealt with by Family Court |
| 28 June 1995 | Orders made by Justice Faulks |
| 30 June 1995 | Husband files Form 8 Application seeking dismissal of Orders made by Justice Faulks on 16 May 1995 |
| 3 July 1995 | Orders made by Justice Faulks |
| 17 July 1995 | Orders made by Justice Faulks |
| 22 August 1995 | Orders made by Justice Faulks |
| 12 January 1996 | Wife files Form 8 Application seeking to collect items from [F] property |
| 12 January 1996 | Form 12 Application for Maintenance filed on behalf of the wife returnable 12 February 1996 |
| 31 July 1996 | Wife files Form 7 seeking property settlement orders |
| 22 October 1996 | Wife's Form 12 Application and Form 7 Application came before Judicial Registrar Forbes that did not proceed on that day. Matter came before Judicial Registrar Nikakis on 17 December 1996 |
| 24 October 1996 | Orders made by Judicial Registrar Forbes providing that the matter be listed for hearing on 17 December 1996 with further directions for the husband to file Form 7A, Form 12A and Form 17 |
| 17 December 1996 | Orders made by Judicial Registrar Nikakis for the filing of material by the husband and further an order for the sale of the [F] property with proceeds to be held in trust pending further order. |
| 13 January 1997 | Husband files Form 44 Application for review of exercise of power by Judicial Registrar Nikakis. |
| 16 July 1997 | Husband's Application to Review heard by Justice Graham. His Honour discharges the Judicial Registrar's Orders for the sale of the [F] property. He orders that the husband pay $70 per week by way of spousal maintenance |
| 1 August 1997 | Husband is registered proprietor of [F] property and takes action under the Land Titles Act 1925 to cause the wife's caveat on the property to lapse |
| 4 September 1997 | Wife filed Form 8 seeking husband be restrained from disposing, encumbering or. in anyway dealing with the [F] property |
| 8 September 1997 | Orders made in those terms by Justice Morgan and further by way Orders made by Justice Faulks on 15 September 1997 |
| 21 October 1997 | Matter comes on for final hearing before Her Honour Justice Finn |
| 27 February 1998 | Justice Finn hands down Judgment and Orders made that husband pay to wife $43,000 by 30 May 1998, payment charged over husband's share in [C & CL] Pty Limited and Husband's property at [F] ACT. Further Orders for spouse maintenance and Orders for payment in default amongst other Orders |
| 30 March 1998 | Husband lodges Notice of Appeal to Full Court out of time |
| 27 April 1998 | Husband files Application seeking stay of Final Orders made by Justice Finn |
| 5 May 1998 | Husband's Application for stay comes before Justice Faulks. Adjourned to 6 May 1998 |
| 6 May 1998 | Husband files Application for Extension of time to appeal against Orders of Justice Finn on 6 February 1995, Justice Faulks of 17 February 1995 and 22 February 1995 and Justice Graham of 16 July 1997. Husband advises Justice Faulks he wants to file Amended Notice of Appeal. Justice Faulks adjourns matter to the Duty List for hearing on 19 May 1998. Gives the wife leave to file Application for Security for Costs in the event husband's Application for a stay of 4 to 6 of Finn J's Orders is successful, and ordered husband to provide amended Notice of Appeal by 18 May 1998. |
| 19 May 1998 | Orders made by Justice Faulks dismissing husband's Application for leave to file an Application for Leave to appeal out of time regarding interlocutory orders made in 1995 and 1997. Orders husband to pay $5,000 security for costs of the Appeal by 30 June 1998. Dismisses husband's application for stay of orders except with respect to Order 6 which is subject to the hearing of the Appeal and subject to the husband diligently prosecuting the Appeal and paying the security for costs. |
| 20 May 1998 | Deputy Registrar O'Rourke orders husband to file and serve Amended Notice of Appeal by 4pm on 21 May 1998, to file and serve draft Appeal Index by 29 May 1998. Husband fails to comply with either Order |
| 28 May 1998 | [C & CL] Pty Limited ("the Company") appoints [WR] and administrator |
| 3 July 1998 | Wife files Application under Section 112AD ("Form 48") for the husband to be dealt with for contravention of Orders for failure to deliver up the share script and goods |
| 6 July 1998 | Justice Faulks makes Orders declaring that because of husband's failure to lodge security for the wife's costs the stay of orders is no longer in place |
| 24 July 1998 | Wife files Application for Orders pursuant to Section 84 for the Registrar to sign Transfer and Withdrawal of Caveat and that the husband be restrained from entering the property in [F] |
| 28 July 1998 | Return date of Wife's Application for Contempt — no appearance by husband — Application adjourned to 10 August 1998 |
| 10 August 1998 | All Applications adjourned to 24 August 1998 at husband's request |
| 21 August 1998 | Creditors of the Company resolve to wind it up |
| 24 August 1998 | All matters adjourned to 7 September 1998 on husband's Application. His Honour notes at Notation 4 of the Orders that the delay in these proceedings which has been brought about by a series of Applications by Mr [B] has resulted in a serious injustice of the wife because of the delay in her receiving the benefit of the Orders she obtained after lengthy contested hearing. Such Orders being made in February 1998 |
| 7 September 1998 | Matter adjourned for one week on husband's Application |
| 11 September 1998 | Husband becomes bankrupt on his own petition |
| 14 September 1998 | Husband produces Certificate that he became bankrupt on 11 September 1998. Orders made under former Section 84 and husband ordered to pay costs |
| 23 September 1998 | Full Court orders that unless husband pays security for costs within 28 days his Appeal stands dismissed. Husband failed to pay security and so Appeal was dismissed |
| 27 September 1998 | Liquidator conducts sale of the stock of [C & CL] Pty Limited |
| 2 February 1999 | Wife files Contravention of Order Application on her own behalf returnable 8 March 1999 |
| 3 February 1999 | Wife files Form 8 seeking garnishment of surplus of liquidation of company from liquidator's bank account |
| 8 March 1999 | Contravention Application adjourned to the Duty List before His Honour Justice Guest on 6 April 1999 |
| 6 April 1999 | Application adjourned for hearing before His Honour Justice Guest on 14 April 1999 |
| 14 & 16 April 1999. | Contravention Application heard and judgment reserved |
| 15 April 1999 | Husband files three Form 8 Applications seeking Interim Orders including orders that the husband be granted leave to appeal out of time, Order 7 & 13 of Orders made by Her Honour Justice Finn on 6 February 1995, Orders that the wife's 112AD Application filed 2 February 1999 be dismissed, that the wife be declared a vexatious litigant pursuant to Section 118 and further orders against the wife's solicitors all returnable 10 May 1999 |
| 12 May 1999 | Wife files Form 8 Application seeking that the husband's Form 8 Application be dismissed and further that the husband be declared a vexatious litigant pursuant to Section 118 of the Family Law Act |
| 18 May 1999 | Orders made providing inter alia that the Application by the husband seeking leave to appeal out of time against Orders 7 and 13. Orders 7 & 13 of the Orders made by Her Honour Justice Finn on 6 February 1995 is dismissed. Wife's Application seeking Orders pursuant to Section 118 is adjourned for further directions and determination immediately upon the delivery of His Honour Justice Guest of his Judgment about the contempt |
| 26 May 1999 | Judgment delivered and Court found that husband without reasonable excuse contravened paragraph 2(a), 2(c), 5 and 6(b) of the Orders made by Justice Finn on 27 February 1998. Matter adjourned to enable husband to attend upon Magistrates Court of ACT for assessment as to whether he is a person suitable for Community Based Order. |
| 21 October 1999 | There being no appearance by the husband matter adjourned to 4 November 1999. |
| 4 November 1999 | Warrant issued for arrest of husband for failure to attend. |
| 5 November 1999 | Husband granted bail to appear on 10 November 1999 on own recognisance of $1,000. |
| 10 November 1999 | Husband given sentence of 10 days imprisonment. |
| 3 July 2001 | Form 42A Application to Court for extension of time to seek leave to appeal interlocutory orders made by Her Honour Justice Finn on 27 February 1998 be filed on behalf of Husband. |
| 5 September 2001 | Wife files Form 8 Application, seeking that the Husband's application be dismissed and also seeking further costs and an order under s 118. |
| 27 Sept 2001 | Coleman J dismisses Husband's application for an extension of time to file an application for leave to appeal against interlocutory orders made 6 February 1995. Dismissed Wife's application that an order be made under s 118, but indicated that if the Husband filed a further application of this kind, he would be minded to make the order. Husband ordered to pay costs. |
| 19 October 2001 | Husband files Form 42 Notice of Appeal in relation to orders made by Coleman J on 27 September 2001. |
| 13 December 2001 | Wife files Form 42 Application seeking that the Notice of Appeal filed by the Husband on 19 October 2001 be dismissed and that the Husband pay the Wife's costs. |
| 20 December 2001 | Husband files an Amended Notice of Appeal. |
| 27 December 2001 | Husband files Form 42A Application seeking leave to file an Affidavit. |
| 25 January 2002 | Husband files Form 42A Application seeking dismissal of the Wife's application and costs. |
| 30 January 2002 | Husband files Form 42A Application seeking an order for disqualification of the Wife's solicitor. |
| 4 February 2002 | Orders made by the Full Court dismissing the Husband's applications. The Wife's application that the appeal be struck out is also dismissed. |
| 4 March 2002 | Husband files an Amended Notice of Appeal. |
| 9 May 2002 | Directions made Justice Ellis. |
| 27 May 2002 | Husband files an Amended Notice of Appeal. |
| 8 July 2002 | Husband files an application seeking adjournment of the appeal listed for hearing in July 2002. |
| 16 July 2002 | Husband's application for an adjournment is dismissed by Justice Ellis. |
| 24 July 2002 | Husband's appeal against the orders made by Coleman J on 27 September 7001 is dismissed by the Full Court. The Husband is ordered to pay the Wife's costs. |
| 5 February 2004 | Husband files Application for Leave to Appeal against `the entire proceedings', being 31 orders made by various judges between 6 February 1995 and 10 November 1999. Husband also files an Application for an extension of time to file an Application for Leave to Appeal to the Full Court. |
| 26 February 2004 | Directions made Justice Finn. |
| 4 March 2004 | Husband files two further Form 42A Applications seeking that certain previous orders of the court be set aside and that the Wife provide to the Husband certain documents. |
| 19 March 2004 | Directions made Justice Finn. |
| 23 March 2004'9 | Husband filed an Amended Application to the Full Court. Among other things, he requested that the Wife's solicitors and former solicitors be joined as parties to the proceedings. |
| 30 March 2004 | A directions hearing is held before Ellis J in relation to the Husband's application for an extension of time. Judgment is reserved. |
| 7 April 2004 | Orders made Justice Ellis. Justice Ellis found that two of the thirty one orders which the Husband sought to appeal against did not require leave to institute an appeal, but also found that the Husband did need to seek an extension of time to file an appeal against those two orders, and that he had specifically indicated he did not wish to seek that extension. Leave to appeal was required under Section 94AA(1) of the Family Law Act for the other twenty-nine orders, which were prescribed decrees pursuant to Regulation 15(A) 1 of the Family Law Regulations. Justice Ellis made orders that the directions hearing be adjourned and that the question of costs be reserved. |
| 5 May 2004 | Husband files appeal against the Orders of Justice Ellis adjourning the matter. |
| 17 May 2004 | ..Wife files application in Full Court for orders that the Husband be declared a vexatious litigant, or alternatively, that he lodge security for costs of the proceedings. |
| 1 June 2004 | Wife files an amended application, further seeking that the Notice of Appeal filed by the Husband on 5 May 2004 be dismissed on the basis that it is incompetent. |
| 6 July 2004 | Husband filed Form 2 Application seeking that the Wife's amended application be dismissed, that certain requirements of the rules be dispensed with and that the Husband's appeal be heard and determined. |
| 19 July 2004 | Husband's applications for leave to appeal against orders made from 1995-1999 were dismissed by the Full Court. Judgment on the Wife's application and the question of costs was reserved. |
| 20 October 2004 | Full Court of the Family Court delivered its judgment. The wife's application for the Husband to be declared a vexatious litigant was denied. The Husband was ordered to pay the Wife's costs. |
| 11 November 2004 | Husband files Application for Special Leave to Appeal to the High Court. |
| 26 May 2005 | Orders made by Chief Justice Gleeson and Justice Gummow in the High Court, dismissing the Husband's application and ordering that the Husband pay the Wife's costs. |
| 21 June 2005 | Husband files the current Form 1 Application and Form 2 Application in the Family Court. |
Annexure 2
Orders of the Hon. Justice Finn, 27 February 1998
That the husband pay to the wife by way of property settlement the sum of $43,000 within 3 months of the date of these orders.
That payment of the sum of $43,000 referred to in Order 1, shall be a charge against the husband’s shares in [C and C] Pty. Ltd (“the company”) and the property known as [F], in the Australian Capital Territory (“the home”) and to that end:
a.the husband forthwith deliver up to the solicitor for the wife all share script relating to his share in the company and the solicitor for the wife shall return such share script to the husband on payment by the husband of the sum of $43,000 referred to in Order 1 of these orders.
b.the husband be, and is hereby restrained, until the payment to the wife of the sum of $43,000 referred to in Order 1, from selling, encumbering or dealing with in any way, his shareholding in the company, and from resigning as a director, or from permitting the appointment of any additional director, or the issue of any further shares;
c.the husband forthwith do all things to remove the caveat lodged on the title of the home on behalf of the company, and be restrained until the payment to the wife of the sum of $43,000 referred to in Order 1, from encumbering the title of the home, or from permitting or causing the lodgment of any further caveat on the title of the home.
That until the payment by the husband of the sum of $43,000 referred to in Order 1:
a.the husband shall pay all debts of the company as and when they fall due; and
b.the husband shall cause all trading receipts of the company to be deposited into the bank account in the name of the company with Westpac Banking Corporation.
That within 14 days the husband cause [Mr MG], [Mr XG] and the company, [C and C] Pty Ltd, to be served with a copy of these orders, and they each have liberty to apply to set aside any of these orders at their own risk as to costs.
That the husband deliver up to the wife within 7 days in good order and condition, all items referred to in Annexure “G” to the reasons for judgment delivered this day and a copy of which is annexed to these orders.
That in the event that the husband fails to pay to the wife the sum of $43,000 due to her pursuant to Order 1 of these orders within the time herein specified then:
a.the husband transfer to the wife the whole of his right title and interest in the home;
b.the husband deliver up vacant possession of the home to the wife within 14 days thereafter;
c.the wife shall sell the home and shall be at liberty to receive the net proceeds of same after payment of sale costs and debts secured by mortgage on the home;
d.until the sale, the husband shall pay $1200 per month to the credit of the debt to Westpac Bank secured by mortgage over the home.
That the husband pay to the wife, by way of maintenance for the wife, the sum of $70 per week.
That the husband pay to the wife, within 7 days hereof, the sum of $550 being arrears pursuant to maintenance orders made by Justice Graham on 16 July 1997 which arrears arose prior to the moneys payable under that order becoming a registered maintenance liability with the Child Support Agency.
That unless otherwise notified in writing to the husband by the wife or her solicitors:
a.the husband shall pay all monies due to the wife pursuant to these orders to her care of Farrar, Gesini & Dunn solicitors;
b.all goods to be delivered by the husband to the wife pursuant to these orders shall be delivered to the wife’s solicitors Farrar, Gesini & Dunn, or to such place as that firm shall direct in writing.
10.That the application of the husband for various orders contained in a Minute filed by him on 4 July 1997 be dismissed.
11.That both parties shall have liberty to apply to this Court in relation to the implementation of these orders.
12.That the Registry Manager arrange for the return of all exhibits and subpoenaed material to the entity producing same at the expiration of 28 days from the date of these orders.
Annexure 3
Orders of the Hon. Justice Guest, 26 May 1999
Enforcement application
That the account entitled [Mr R] as liquidator of [C & C] PTY LIMITED, which account is held with the National Australia Bank, be garnisheed and paid to the Applicant (wife) C/o of her solicitors, Messrs FARRAR, GESINI & DUNN, Canberra.
That the sum subject to the garnishee shall:
2.1 be the surplus realised from the liquidation of [C & C] PTY LIMITED namely, that amount which, after payment of creditors as approved by the Liquidator, and payment of the Liquidator’s proper fees, including proper disbursements, is payable to shareholders (“the surplus”);
2.2 not exceed the moneys due by the husband to the wife pursuant to Order 1 made by this court on the 27th February 1998, which debt stood at $46,546.02 as at the 31st December 1998 and is appreciating with interest of $16.49 per day thereafter.That the balance of the surplus, if any, be held in the account to meet any costs ordered to be paid by the husband to the wife in relation to these proceedings, including the costs outstanding pursuant to Order 13 made by this court on the 27th February 1998, and the costs outstanding pursuant to Order 6 made by this court on the 14th September 1998.
That the Application of the wife filed the 3rd February 1999 be otherwise dismissed.
That the wife’s costs of these proceedings be reserved.
That pursuant to Order 38 rule 26 of the Family Law Rules this matter reasonably required the attendance of Counsel.
Contravention application
That the Application of the wife filed the 2nd February 1999 be adjourned sine die to be brought on upon reasonable notice being given following compliance by the husband with paragraph 2 of the orders herein.
That the husband do attend upon the Clerk of the Magistrates’ Court of the Australian Capital Territory for an assessment as to whether he is a person suitable as the subject of a Community Based Order for service of 200 hours within 12 months of any order being made by the Court.
That the wife’s costs of this application be reserved.
That a transcript be made of the whole of the proceedings this day and that a copy of that transcript remain on the Court file and otherwise be made available to each of the parties herein.
That pursuant to Order 38 rule 26 of the Family Law Rules this matter reasonably required the attendance of Counsel.
Annexure 4
Orders of the Hon. Justice Guest, 21 October 1999
IT IS ORDERED THAT
That the further hearing on the question of penalty arising from the Form 49 Application of the wife pursuant to the provisions of sec.112AD of the FAMILY LAW ACT 1975 (as amended) and filed on 2 February 1999 be adjourned to 9 a.m on 4 November 1999.
That a sealed copy of the order made this day be forthwith served upon the husband by forwarding it to him by priority mail to [M], A.C.T.
That the wife’s costs of this day be reserved.
IT IS DIRECTED
That, as a matter of urgency, a transcript of the proceedings this day be made available and that a copy be placed on the Court file and be forwarded to each of the parties herein.
IT IS FURTHER DIRECTED
That the ex tempore judgment delivered this day be transcribed, a copy placed on the court file and be made available to the parties.
That a copy of the letter from the A.C.T. Corrective Services Department of Justice and Community Safety and dated 23 June 1999 together with the accompanying medical certificate of [Mr C] be made available to the parties herein.
That general liberty to both parties to apply on short notice be reserved.
IT IS CERTIFIED
That pursuant to Order 38 rule 26 of the Family Law Rules this matter reasonably required the attendance of Counsel.
Annexure 5
Orders of the Hon. Justice Guest, 10 November 1999
That [Mr JB] be sentenced to imprisonment for a period of ten (10) days and that such sentence commence forthwith.
That the proceedings this day be transcribed and that a copy of the transcript be placed on the Court file.
That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and be made available to each of the parties.
That pursuant to Order 38 rule 26 of the Family Law Rules this matter reasonably required the attendance of Counsel.
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