KEATING & KEATING
[2017] FamCAFC 86
•5 May 2017
FAMILY COURT OF AUSTRALIA
| KEATING & KEATING | [2017] FamCAFC 86 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the wife sought to adduce further evidence in the appeal – where the wife conceded that evidence was not relevant to demonstrating error by the primary judge – application dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – single judge appeal pursuant to s 94AAA(3) – where the primary judge dismissed an Application in a Case filed by the wife two days before the commencement of the trial – where the trial was adjourned part-heard pending the outcome of the appeal – where there was no utility to the appeal – where the appropriate forum to determine assertions of fraud and non-disclosure was at a final hearing – where the reasons of the primary judge were discernible from the transcript – where there is no demonstrated error or substantial injustice – application for leave to appeal dismissed. |
| Family Law Act 1975 (Cth) ss 93AAA(3), 94AA, 117(2) Family Law Rules 2004 (Cth) r 22.39 Family Law Regulations 1984 (Cth) reg 15A |
| Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170 Brien & Burns [2004] FamCA 950 CDJ v VAJ (1998) 197 CLR 172 Lenova & Lenova (Costs) [2011] FamCAFC 141 Rutherford & Rutherford (1991) FLC 92-255 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Waugh and Waugh (2000) FLC 93-052 |
| APPLICANT: | Ms Keating |
| RESPONDENT: | Mr Keating |
| FILE NUMBER: | BRC | 1506 | of | 2012 |
| APPEAL NUMBER: | NA | 90 | of | 2016 |
| DATE DELIVERED: | 5 May 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24 April 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 November 2016 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| Dowd & Co |
Orders
The Application in an Appeal filed on 10 April 2017 is dismissed.
The Application for Leave to Appeal in respect of NA 90 of 2016 is dismissed.
The Notice of Appeal filed on 12 December 2016 is otherwise dismissed.
The parties are responsible for their own costs of and incidental to the hearing of this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keating & Keating has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 90 of 2016
File Number: BRC 1506 of 2012
| Ms Keating |
Applicant
And
| Mr Keating |
Respondent
REASONS FOR JUDGMENT
On 14 November 2016, Judge Baumann dismissed an Application in a Case filed by the wife. She seeks leave to appeal that decision. Those orders were made two days before a property trial was to take place before his Honour.
The Chief Justice, on 10 April 2017, certified pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (‘the Act’), that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge. This hearing proceeded before me accordingly.
The Context of these Proceedings
The current application for leave to appeal and the interlocutory application to which it relates have a context important to the determination of both. Each is another instalment in long-running litigation.
The wife filed an initiating application for property settlement on 22 February 2012. After numerous interlocutory skirmishes, an order was made by Judge Coates on 30 April 2014. The wife appealed successfully and the Full Court delivered orders to that effect on 1 October 2014. Order 3 of those orders provided that the application be remitted for rehearing. Judge Baumann became seized of the matter as a result.
Thereafter, his Honour had listed before him a number of procedural hearings at which the issue of the husband’s discovery, as raised by the wife, was central. Ultimately, orders made on 2 March 2016 required the wife to “deliver a list of documents” for the husband to “produce by way of further discovery”. Order 2 required the husband, within 21 days of the wife serving that list, to produce “all such documents on the list that are in his possession, power or control”. Order 3 set a final hearing over two days in late July 2016.
The husband’s solicitors withdrew from proceedings on 15 March 2016 and the documents were consequently not disclosed as per these orders. At a directions hearing on 20 May (at which the husband was represented by new solicitors) the primary judge considered it appropriate to vacate the hearing date in July. Consent orders were subsequently made on 14 July requiring disclosure by 11 August 2016. Order 3 of those consent orders required the wife to serve a “list of specific questions arising from the discovery” on the husband by 25 August 2016. Order 7 set a new hearing date for 16 and 17 November 2016.
The disclosure documents were made available at the office of the husband’s solicitors by 11 August.
At around this time there was a dispute between the parties about whether or not the wife could attend the office to inspect the documents alone, or whether an accompanying solicitor was necessary. The wife’s solicitor contended that the wife did not have the capacity to pay for an accompanying solicitor. Solicitors for the husband, however, sought that the wife be accompanied by her solicitor to avoid excessive time and cost to the husband.
In any event, on 25 and 31 August, the wife (on the first occasion) and her solicitor attended the offices for two, two-hour blocks to inspect the documents. It was deposed by the wife’s solicitor that during this period, he was “unable to examine all documents present” and that a significantly greater period of time was needed to properly read and cross reference the documents.[1] A request for an extension of time to provide the list of questions required by Order 3 was rejected by the husband. No list of questions was provided to the husband’s solicitors at this time.
[1]Affidavit of Mr N filed 20 September 2016, [32] – [33].
These events led to the primary judge making further orders on 21 September requiring the husband to lodge, within 48 hours, the disclosure documents at the Court’s subpoena office for the wife to inspect. The list of questions was to be provided to the husband by 14 October. The wife was not able to commence the inspection of these documents until 5 October due to her being unable to book an appointment before that date. Further disclosure was sought by the wife’s solicitors on 2 November.
The Application in a Case was filed subsequently on 8 November 2016 requesting inter alia:
1.That this matter be listed urgently.
2.That the hearing date of 16 November 2016 and 17 November 2016 be vacated.
3.That the matter be set down for a hearing of 4 days.
4.Pursuant to section 77A of the Family Law Act 1975, the Respondent Husband pay to the wife by way of spouse maintenance the sum of $100,000.00 until property settlement orders are sealed by this Honourable Court.
5.That the Respondent Husband by way of partial property settlement pays the wife the following:
a.within seven (7) days' pay the wife the sum of $100,000.00, and
…
The application was heard and dismissed in an interim hearing on 14 November 2016, two days before the commencement of the final hearing.
It should be noted that at the commencement of the hearing of the application, leave was given for the wife’s solicitor to withdraw from the proceedings. This withdrawal was as a result of substantial monies being owed by the wife to her solicitors.[2] Up until this time, the wife had been represented throughout the parties’ litigation history.
[2]Notice of Intention to Withdraw filed 7 November 2016; Affidavit of Ms L filed 8.11.16; Transcript of proceedings on 14 November 2016 p 2, ln 3.
Importantly for the instant appeal, it is uncontroversial that the trial commenced on its allocated date two days after the dismissal of the wife’s application and had proceeded for two days when it was adjourned to a further hearing date. Having not completed on that subsequent date, it was adjourned to a further hearing date. On that date, it was adjourned part-heard pending the outcome of this appeal.
Application to Adduce Further Evidence
It is necessary to deal first with an Application in an Appeal filed by the wife on 10 April 2017 pursuant to r 22.39 of the Family Law Rules 2004 (Cth). The wife sought to adduce further evidence comprising, among other things, tax invoices, loan agreements, account summaries, texts and a child support assessment. In particular the wife sought to adduce evidence relating to borrowings (through ‘Quick Fee Loans’) by the husband from Keating Group.
It was conceded by the applicant before me that this application was not relevant to demonstrating any error by the primary judge at the 14 November hearing.[3] The application should be dismissed.
[3]CDJ v VAJ (1998) 197 CLR 172.
Leave to Appeal and Grounds of Appeal
Leave to appeal is required: the order appealed is a ‘prescribed decree’ pursuant to s 94AA of the Family Law Act 1975 (Cth) and reg 15A of the Family Law Regulations 1984 (Cth).
It is of course well settled that “appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure” and, equally, that it is “unwise to lay down rigid and exhaustive criteria” for the exercise of the discretion to grant leave. However, “the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration”.[4] As a consequence, the question of leave is closely linked to whether or not there is any merit in the proposed appeal.[5]
[4]Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170, 177; Rutherford & Rutherford (1991) FLC 92-255.
[5]Waugh and Waugh (2000) FLC 93-052, [23].
Although not identified with brevity, the basis upon which this application is based can be summarised as follows:
a)Neither the wife (nor her solicitor) was able to properly review all the relevant material before the commencement of the trial. According to the wife, this material spanned “14 folders, containing approximately 10,000 sheets of paper” (Ground 1);[6]
b)The husband has not made full and frank disclosure of his financial situation and has “committed a fraud upon the Appellant”. The “[l]earned Judge erred in that he paid no heed to the evidence”[7] which demonstrated this (Grounds 1, 2d);
c)The primary judge “ignored” the wife’s application for spousal maintenance (Ground 2a) and dismissed the application “without reading the material” (Ground 2b);[8]
d)The primary judge failed to provide adequate reasons for the dismissal of the application (Ground 2c).
[6]Applicant’s Summary of Argument, paragraph 14.
[7]Applicant’s Summary of Argument, paragraph 29.
[8]Applicant’s Summary of Argument, paragraph 38.
During the course of the hearing, I raised with the wife what appeared to me to be a lack of utility in the appeal proceeding, particularly, of course, given that the trial has commenced and substantially proceeded. This issue will inform the extent to which the other grounds of appeal raised by the applicant contain any merit.
Is there any utility in this appeal?
The wife’s central contention in response to the suggested ‘lack of utility’ in this appeal, arises from what she alleges was the identification of approximately $2.4 million in funds available to the husband. During the proceedings before me the wife said that this was the “first time she was able to identify money” and that she considered this to be a “substantial piece of evidence”.
The identification of these funds arose from further disclosure by the husband’s solicitors (as per a request from the wife’s solicitors on 7 November 2016). In her affidavit filed 14 November 2016, the wife refers to two companies which, together, are said to contain the approximate $2.4 million worth of funds accessible by the husband: B Pty Ltd and P Pty Ltd.
The wife referred to the Financial Report for B Pty Ltd for the year ended 30 June 2015 contained in annexure ‘VEK2’ of her affidavit. That report was prepared by a Mr G who was the accountant retained by the husband in relation to his “business and personal accounting”.[9] The wife regarded as particularly significant the ‘Profit and Loss Statement’ which recorded an overall net profit of $961,455 for 2015. This amount reflects the funds available for distribution to relevant beneficiaries in that financial year. Page two of that statement shows the distributions that were made from these 2015 profits: $288,437 to Mr Keating and $673,018 to P Pty Ltd.
[9]Affidavit of Mr G filed 10 November 2016, paragraph 4.
The wife then referred to ‘VEK3’ of her affidavit which contained the Financial Report prepared by Mr G for P Pty Ltd for the year ended 30 June 2015. In the company tax return, the ‘main business activity’ of P Pty Ltd was said to be “Financial Asset Investing”. The total assets recorded in the Balance Sheet at page three of the Financial Report totalled $1,451,476.
Given the identification of these “substantial” funds potentially available to the husband, the wife said that she considered it necessary to make an application for adjournment to provide an opportunity to further investigate these businesses. Litigation funding was sought to assist with this enquiry and ensure that the wife was “fairly represented” and “on the same level” as the husband.
The reality is that the trial is well and truly underway. Having already proceeded over three days, both parties indicated the likelihood of one to two further days of hearing. Of particular significance is that the matters referred to above are yet to be put before Mr G in cross-examination.
The wife also indicated her intention to recall Mr W, who prepared the single expert report into the husband’s various business enterprises, for further cross‑examination. Although one may sympathise with the wife’s frustration as a self-represented litigant and all the more so if there is substance in her assertions of a lack of disclosure on the husband’s part, the appropriate forum to raise and challenge these concerns is during the course of a trial, when the evidence and witnesses can be properly tested.
The wife also referred to some confusion surrounding two Financial Reports for the year ended 30 June 2015 disclosed for a company called ‘C Pty Ltd’ contained in annexure ‘VEK4’ of the wife’s affidavit.
The first report (signed 9 May 2016) provided details for the 2014 and 2015 financial years. The second report (signed 4 November 2016), provided the same details for the 2015 and 2016 financial years. The wife expressed some concern as to which report she should rely on and also that the husband had allegedly stated that the 2016 Financial Report would not be made available until May 2017. The reference to 2016 in the second report is, according to the wife, evidence of a “fraud” by the husband in that he did in fact have the 2016 Financial Report available to him.
Again, the trial is the forum at which all such assertions might be explored. Again, Mr G, who prepared these reports, will be subject to cross‑examination on these issues at the trial.
Did the primary judge give adequate reasons to justify dismissing the application?
The wife contends (Ground 2(c)) that the primary judge failed to give adequate reasons for dismissing her application.
The primary judge’s reasons are contained within the transcript of proceedings on 14 November 2016. It is desirable to provide reasons, even if in short or summary form.[10] The nature of proceedings has a fundamental bearing on the extent and, ultimately, adequacy of the reasons.[11] “The reasons [do] not have to be given formally, provided the reasoning process emerged. The transcript … could be sufficient”.[12]
[10]“Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory”, Kirby J, (1994) 12 Australian Bar Review 121, 125-6.
[11]Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18; See also Cartwright & Manolas [2017] FamCAFC 37.
[12]Brien & Burns [2004] FamCA 950 per Coleman J; See also Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Bennett & Bennett (1991) FLC 92-191; Cartwright & Manolas, above, [29] – [38].
Determining the adequacy of reasons for a decision is not the opportunity for an appellate court to “dot ‘Is’ and cross ‘Ts’ in the reasons for judgment of trial judges”.[13] That is particularly so for interim decisions (as is the case here), where the substantive rights of the parties are yet to be finally determined.[14]
[13]Sun Alliance Insurance Ltd v Massoud, above, 18.
[14]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279.
To repeat: it is always desirable to give reasons, even if, by reason of the nature of the proceedings and the narrow ambit of the issues, those reasons are very brief. Notwithstanding that desirability, in my view the reasons given by the primary judge are discernible from the transcript, and there is no demonstrated injustice.
His Honour’s reasons can be summarised as follows:
a)The fact that the wife had received, or might receive yet, further documents, did not necessarily make those documents relevant or probative to the trial proceedings;[15]
b)An allocated trial had already been previously adjourned for the purposes of obtaining further disclosure and a substantial period had already passed since the matter was remitted from the Full Court;[16]
c)Discovery has been an ongoing issue throughout parties’ litigation history and the record “reveal[s] a significant number of directions made on that very point”;[17]
d)If the husband has not made complete disclosure, that can be dealt with at trial where there are “remedies available” and “ways in which the court can deal with it”;[18]
e)The wife is an “articulate lady” who “can represent [herself]”;[19]
f)The husband has said he doesn’t have the means to pay $100,000 to the wife for her litigation funding; this is a triable issue.[20]
[15]Transcript of proceedings dated 14 November 2016, p 4 ln 35 – 36.
[16]Transcript of proceedings dated 14 November 2016, p 4 ln 45 – 47, p 5 ln 1 – 10.
[17]Transcript of proceedings dated 14 November 2016, p 7 ln 14 – 20.
[18]Transcript of proceedings dated 14 November 2016, p 7 ln 23 – 25.
[19]Transcript of proceedings dated 14 November 2016, p 8 ln 10 – 13.
[20]Transcript of proceedings dated 14 November 2016, p 8 ln 14 – 18.
The nature of proceedings and the remaining grounds of appeal
The nature of the application cannot be divorced from the way in which it was dealt with by the primary judge.
This was an interim application heard two days before the commencement of a trial which would finally determine the substantive rights of the parties in question. This, in addition to the extensive litigation history between the parties, underpinned his Honour’s decision to dismiss the application. This is an important consideration directly relevant to the remaining grounds of appeal.
(a) Lack of disclosure and late supply of documents
The wife appears to contend (Grounds 1 and 2(d)) that the husband’s failure to provide full and frank disclosure, his alleged fraud (as referred to above), and the very late provision of disclosure, resulted in a miscarriage of justice and the absence of procedural fairness. In her Summary of Argument the wife argues that his Honour “failed to understand the need for each party to understand the financial position of the other”. I do not agree.
As referred to by his Honour, issues of disclosure have been live throughout the parties’ litigation history. In the previous proceedings before Judge Coates, for example, his Honour referred to the “constant claim [by the wife] that the husband had not disclosed”. The background of ongoing issues as to disclosure during a period of nearly five years was plainly contrary to the primary judge’s desire here to get on with a final hearing. In that respect, it needs repeating that his Honour was dealing with proceedings remitted for rehearing by the Full Court. His Honour had, with great respect commendably, dealt with the matter much earlier than could be expected in other judge’s dockets, even despite an earlier trial date having already been abandoned.
Further, prior to the interim hearing on 14 November, Judge Baumann had made, on at least three occasions, directions relating to the production and availability of disclosure documents. In fact, disclosure was continuing to be provided (as per the wife’s request) up until 11 November 2016; approximately five days before the final hearing before his Honour. In her affidavit dated 8 November 2016, the wife also refers to wanting an adjournment to subpoena and call seven additional witnesses.
In light of these ongoing issues, and having already vacated the trial on one occasion to allow further disclosure to be provided by the husband, his Honour was not prepared to again postpone the hearing to a then indeterminate date. Importantly, his Honour highlighted to the wife that, if failure to disclose or “fraud” was established, remedies would be available within the trial.
His Honour did not ‘ignore’ or fail to consider the wife’s evidence. His Honour simply considered in the particular circumstances of this case, that the appropriate forum to determine these matters was a final hearing.
(b) Litigation funding and spousal maintenance
The wife also contends (Grounds 2(a) and 2(b)) that the primary judge failed to consider her claim for spousal maintenance (in particular, asserting a failure to consider ss 72, 75(2), 77 and 77A of the Act). The wife also asserts that his Honour dismissed the application “without reading the material provided”.
It again needs to be pointed out that the parties’ extensive litigation history included numerous applications by the wife seeking a spousal maintenance or a partial property settlement order from the husband. Except for one occasion in August 2013, when a $10,000 partial property payment was ordered by Judge Coates in favour of the wife, these applications have been dismissed due to the inability of the wife to demonstrate that the husband had the means to pay.
His Honour acknowledged that the wife’s “economic situation was pretty dire” and that substantial monies were owed by her to her solicitors. The husband again asserted that he did not have the capacity to pay the wife the amount she sought. Plainly, that issue was central to the trial as was his asserted financial position more generally. Put simply, the husband’s assertions could not be overcome in interim proceedings, conducted without cross-examination or deeper exploration.
Conclusion
The wife has not demonstrated any error by the primary judge nor has she demonstrated any substantial injustice arising from his Honour dismissing her application.
The application for leave to appeal is therefore dismissed.
Costs
In circumstances where the wife has been wholly unsuccessful, counsel for the husband has sought costs pursuant to s 117(2). Although it was argued by counsel for the husband that the appeal lacked substance and created unnecessary work, it was also acknowledged that the husband was in a superior position financially as a result of funds derived from his various business enterprises.
The wife said she was in receipt of Centrelink benefits, owned no property and that the parties’ 17 year old son, who studied full time, was living with her. Impecuniosity is not determinative of an order for costs. If it were, the impecunious could litigate with both impunity and immunity.[21]
[21] Lenova & Lenova (Costs) [2011] FamCAFC 141, [12].
In this case, I conclude that each party should bear their own costs.
If, as has apparently transpired, the wife’s case requires exploration over further days of trial the wife, again, has potential remedies available including, perhaps, an application for interim spousal maintenance during any adjournment of the trial. Any such application would have the benefit (or detriment) of evidence already heard in the trial.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 May 2017.
Associate:
Date: 5 May 2017
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