LEONG & WU (No.2)
[2020] FCCA 271
•17 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEONG & WU (No.2) | [2020] FCCA 271 |
| Catchwords: FAMILY LAW – Application pursuant to Order 16.05 Federal Circuit Court Rules 2001 to reopen proceedings when orders had been made in the husband’s absence – Where reasonable explanation for absence clearly demonstrated – where husband’s material had been filed and was considered in the undefended determination of the matter – where the husband’s case could fairly be described as incapable of successful prosecution – lengthy and extensive history of litigation – where with proceedings relate to both property adjustment and parenting – where the child the subject of the proceedings will, by the time of any rehearing, have attained her majority or an age where the orders sought by the husband would not, in all probability, be made – where there is no utility in re-opening the proceedings – application to re-open dismissed. |
| Legislation: Federal Circuit Court Rules2001 r.16.05 Family Law Act 1975, ss.60CA, 60CC, 65DAA, 69ZX, 75(2), 79, 102NA |
| Cases cited: Harris v Caladine [1991] HCA 9; 172 CLR 84; 65 ALJR 280; 99 ALR 193; (1991) FLC 92–217; 14 Fam LR 593 Aon Risk Services & Australian National University [2009] HCA 27 Ras Behari Lal v The King-Emperor (1933) LR 60 Ind App 354 Kennon & Kennon (1997) FLC 92-757 |
| Applicant: | MR LEONG |
| Respondent: | MS WU |
| File Number: | CAC 1783 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 17 January 2020 |
| Date of Last Submission: | 17 January 2020 |
| Delivered at: | Canberra |
| Delivered on: | 17 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Leong in person |
| Counsel for the Respondent: | Mr Stagg |
| Solicitors for the Respondent: | Hijazi Curran Cameron Lawyers |
ORDERS
Dismiss the Application in a Case filed 14 January 2020.
Remove all issues from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Leong & Wu (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1783 of 2013
| MR LEONG |
Applicant
And
| MS WU |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today as the consequence of an Application in a Case filed 14 January 2020. The Application in a Case is one of a myriad of applications that have been filed in these proceedings to date.
The proceedings, on their face, relate to property adjustment and parenting arrangements.
The proceedings have been on foot, it would seem, for a period well in excess of six years, having been commenced with an Initiating Application filed in or about November 2012.
During the conduct of the proceedings, which were concluded by final orders made on an undefended basis 18 November 2019, there have been a dozen or more interim or interlocutory applications filed by the parties, one or both. The matter has consumed vast court resources.
From the outset it must be made clear that the application before the court seeks to reopen the proceedings pursuant to a leave granted to make such application. That leave was granted pursuant to rule 16.05 of the Federal Circuit Court Rules2001. Even absent that rule, such an application would be permitted.
I will turn shortly to the conclusion of the proceedings and the circumstances in which the matter came to a conclusion. However, it is germane to observe that judgment was delivered on 18 November 2019, in the absence of the husband, but in the presence of the wife and her counsel. Those reasons have not been settled or engrossed. There has been no request by either party to do so. I am conscious that that may attract appellate controversy. However, it should be made clear that:
a)Neither party, including, in this case, Mr Leong who seeks to agitate for reopening the proceedings, has requested that the reasons be taken out, settled and engrossed; and,
b)The workload of the Court does not permit, as would otherwise be desirable, the settling of all extemporary reasons. Well in excess of 520 ex tempore judgment were delivered by me last calendar year. For each of those judgments to be settled it would simply not be possible for the work of this Court to be conducted. The general practice adopted in the Federal Circuit Court, for better or worse, is that reasons are settled when parties request them or when appellate controversy is invited. It is the only means by which work can be performed by this court.
The transcript of the previous judgement will now be ordered, obtained and settled as quickly as can be accommodated. The early judgement, even if the transcript had been ordered following the making of orders on 18 November, 2019, would still not be available as, following that date, there had not been a single non-sitting day available and leave commenced on 6 December, 2019 only returning to sitting yesterday. Thus the earliest opportunity to have considered settling of reasons would have been yesterday. That day, of course, was occupied with a hearing from 9.30 am until 5 pm.
Material Considered
In dealing with the proceedings today I have had the benefit of brief submissions by the applicant in the present application, Mr Leong, as well as by counsel for the wife, the respondent to this application. I have had due regard to various the documents filed in the substantive proceedings and in relation to this specific application. Those documents comprise:
a)The Application in a Case;
b)An affidavit filed by Mr Leong 14 January 2020;
c)The Response filed by Mr Leong, one of many but, it would seem, the first in time 31 August 2018;
d)The Amended Response of Mr Leong (which was the response before the court at hearing 18 November 2019). The Amended Response was filed 26 August 2019;
e)The Amended Application of Ms Wu filed 31 October 2019;
f)The Case Outline document provided by legal representatives for Ms Wu and filed 12 November 2019;
g)The affidavit of Mr Leong which had been filed in anticipation of the trial in November 2019. That affidavit was sworn or affirmed on 26 August 2019 and filed on 27 August 2019. That affidavit was before the court for the purpose of the hearing 18 November 2019. It was read and considered. It also refers to an earlier affidavit by Mr Leong 31 August 2018 which has also been read and considered.
In addition, I have had some brief regard to a child-inclusive conference memo produced by a family consultant of the court 29 January 2019 and an addendum thereto 26 June 2019. The addendum was required as Mr Leong had not attended the initial child-inclusive conference on 29 January 2019. The two, when read in combination, provide a comprehensive outline of that intervention.
Relevant Evidence
The basis upon which Mr Leong seeks to exercise leave under rule 16.05 of the Federal Circuit Court Rules and to urge the court to reopen the proceedings is set out in his affidavit of 14 January 2020.
There can be no issue - indeed, it is not sought to be cavilled with by counsel for the wife, and appropriately so - that Mr Leong advances a plausible reason for his non-attendance on 18 November, 2019. He was, at that point in time, admitted to hospital, the admission having occurred on that day. Although the specific time of admission is not clear, it most assuredly was the day that the matter was before the Court.
What was before the court at the time of hearing was a one-page pro forma medical certificate signed by a GP indicating, consistent with such pro forma medical certificates, that Mr Leong was “unfit for work”. The certificate did not provide any other detail of any relevance or significance.
Mr Leong, on that basis, agitates that justice would not be served by the matter being now concluded and allowed to remain concluded. The orders that are sought by Mr Leong that the proceedings be reopened and that all orders made on 18 November 2019 be stayed.
The final orders made in Mr Leong’s absence, to the extent that they are relevant, provide for what might be paraphrased as a 60/40 per cent division of the known property of the parties in favour of Ms Wu. That comprised a superannuation splitting order and orders which compelled a payment of a sum certain by Mr Leong to Ms Wu, and, absent payment, sale of three parcels of real estate and division of the proceeds of sale arising therefrom.
In relation to parenting, orders were made for Ms Wu to have sole parental responsibility for the one child of the relationship, X, born in 2003. As would be apparent, X will, in a few months time, turn 17. In all probability, if the matter was reopened X may well have turned 18 by the time the matter is heard. That arises as a consequence of present difficulties in arrangements for the hearing of matters before this registry and, to some extent, the court at large. There are simply not sufficient resources to enable all business to be dealt with in as timely a fashion as the court might desire.
It must be observed at this point, as was observed by Brennan J in Harris v Caladine in 1991:
It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them
The funding difficulties of the Court, then apparent to his Honour in 1991, have not improved.
This registry had, until late-2018, three full-time judges of this Court. There are now two. Those two beleaguered judges have been augmented by visiting judges throughout 2019 and on a much-reduced basis for this year. Accordingly, it is improbable that the matter would be heard this year. Indeed, if the matter were to proceed to hearing it would be necessary, in light of the issues that are raised, for a family report to be prepared and, on that basis, it would be almost guaranteed that the hearing of the matter would be pushed into 2021.
In relation to the property aspect of the proceedings, I have referred to the orders as affecting a division of the known property of the parties. That is so as there has been, notwithstanding that the matter has been before the court for some six years, chronic and ongoing difficulties with disclosure. As a consequence, it may well be that there are other assets, liabilities or resources to be taken into account but which have not been addressed by the orders that were made. However, if after six years, disclosure has not quelled those controversies, it is improbably that any further delay would assist.
It should also be observed that prior to the scheduled hearing of the matter 18 November 2019, that Mr Leong had made an application, by one of the myriad Applications in a Case filed in the proceedings, to vacate the trial dates and to adjourn the matter. That application was dismissed. Mr Leong has referred, in his submissions, to that application being “ignored”. No such thing occurred. The application was engaged with, heard and determined.
The basis of Mr Leong’s admission is unclear. It would seem, at least inferentially from the material that is provided, that the admission was voluntary, although nothing of great moment turns upon that issue. All that is relevant to observe is that the brief document provided by the hospital dated 26 November 2018 and annexed to Mr Leong’s affidavit refers to his having been diagnosed, whether prior to or during the admission, as suffering “a major depressive disorder”.
Beyond that, I do not propose to canvass the evidence in any further detail at this point. I propose to refer to aspects of the evidence by reference to the legal principles that must be applied to the proceedings. Before turning to those principles, however, it is also relevant to consider the case that would be presented before the court and which was, in fact, presented to the court on 18 November 2019.
I have referred to both propositions as the material of the husband was read and considered in determining the matter on 18 November. Thus, to the extent that it might be suggested that the husband had no opportunity to place evidence before the court, such a submission could not be accepted. The husband’s evidence, as he had filed it in preparation for the trial, was before the Court. That evidence was thus taken into account on its face as more probably correct than not, although it is germane to observe that the evidence of neither party was tested.
The wife had sought, at trial, orders that she obtained. That was a 60/40 per cent division of the known assets, comprising three parcels of real estate, all of which are presently controlled by Mr Leong (but in which Ms Wu has interests in one or more), together with a superannuation splitting order with respect to Mr Leong’s superannuation entitlements.
To the extent that it is relevant, a list of assets and liabilities as known and demonstrating that the preponderance of net available assets was tendered and marked as an exhibit. The assets of the parties comprised those three parcels of real estate and Mr Leong’s superannuation. I will incorporate that balance sheet.
LIST OF ASSETS & LIABILITIES
| ASSET | Estimated value |
| A Street, Suburb B, ACT | $570,000 |
| C Street, Suburb D, ACT | $370,000 |
| E Street, Suburb F, VIC | $700,000 |
| Motor Vehicle 1 | $3,000 |
| Total Gross Assets: | $1,643,000 |
| LIABILITIES | |
| Mortgage secured over A Street, Suburb B property (Westpac) | $430,000 |
| Mortgage secured over C Street, Suburb D property (NAB) | $260,000 |
| Mortgage secured over E Street, Suburb F property (ING) | $327,697 |
| Total Liabilities: | $1,017,697 |
| SUPERANNUATION | |
| Wife – Super Fund G | $101,471 |
| Husband – Super Fund H | $510,425 |
| Husband – Self-Managed Super Fund | $46,258 |
| Total Superannuation: | $658,154 |
| NET ASSET POOL (EXCLUDING SUPER) | $625,303 |
| NET ASSET POOL (INCLUDING SUPER) | $1,283,457 |
The family consultancy memos that have been produced and as referred to above were also taken into account and considered. I do not propose to relate the evidence from those documents in detail. Certainly, no observation occurred during those appointments.
The parenting dispute is far more complex on its face but is, perhaps, addressed through pragmatic realism as regards the potential of the case not occurring before that child obtains her majority and, thus, this court having no jurisdiction.
Legal Principles
In outlining the legal principles that would be relevant to this application, I incorporate paragraphs 31 to 37 of my earlier decision in Harper & Harper [2016] together with, as has been referred to by counsel for Ms Wu, paragraphs 90 to 92 of the decision of Fowler J in Mallard & Mallard (2011).
31 The relevant legal principles for determination of the matter are, I am satisfied and as is submitted by Counsel for Ms Harper, set out in the erudite discussion undertaken by Jarrett FM (as he then was) in Clifford & Mountford [2006] FMCAfam 450.
32. I am indebted to my colleague who has spared me the onerous task of significant research. I incorporate the reasons of my colleague at paragraphs 7 to 34 inclusive:
7. Rule 16.05 is in the following terms:
16.05 Setting aside
(1) The Court may vary or set aside its judgment or order before it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
8. There are a number of decisions of this court upon applications under r.16.05(2)(a). Many decisions approach the relevant discretion on the basis that there are two matters to be considered. The first is whether there is an adequate or satisfactory explanation for the failure to appear. The second is whether the applicant demonstrates any reasonably arguable case on the merits of the substantive application.
9. Others approach the relevant discretion on the basis that in the absence of an adequate or satisfactory explanation for the failure to appear the relevant judgment should not be set aside.
10. Others yet approach the matter on the basis that the discretion to set aside orders made in the absence of a party is an exceptional jurisdiction that should only be exercised with great caution or where "exceptional circumstances" can be demonstrated. Invariably in those cases consideration is also given to whether there is some merit in the proposed claim or defence that is sought to be reinstated.
11. In Morrison Motors Pty Ltd v Shah [2006] FMCA 256, Barnes FM summarised the relevant principles as follows:
3. The respondent now seeks an order under Rule 16.05 of the Federal Magistrates Court Rules 2001 setting aside the orders of 9 February 2006. It emerged in submissions that the ground relied on is that the order was made in the absence of the respondent under Rule 16.05(2)(a). Rule 16.05 is, relevantly, in the same terms as Order 35 Rule 7 of the Federal Court Rules.
4. The power to set aside an order or judgment is to be exercised with great caution and generally is not to be done unless, where an applicant is relying on the fact that an order was made in his or her absence, the applicant can show that by accident and without fault on his or her part, the order was made without the applicant being heard: Autodesk v Dyason (No.2) (1993) 176 CLR 300 and Theo v Official Trustee in Bankruptcy [1998] FCA 862.
5. It is necessary to look at the whole of the relevant circumstances and to consider whether there is an adequate explanation for the non-appearance and also whether there is an arguable case or question raised by the person seeking to set aside the orders. It was said in K M & A Chadwick Pty Limited v Yeung (unreported Federal Court 2 June 1995) that the "relevant touchstone" was whether there was an arguable case or question raised by the party seeking to set aside the order.
12. In Autodesk v Dyason (No.2) (1993) 176 CLR 300 the High Court was asked to re-open an appeal that had been heard and determined by the Court. It is clear from the judgments in that case that the Court was asked to exercise a power, not to be found in the rules of the High Court, but a power it inherently possessed, particularly as a Court of last resort, to re-open an appeal. Although Mason CJ and Deane J would have allowed the application, the majority (Brennan, Dawson and Gaudron JJ) found that there was no occasion to exercise the power available to the court to reopen an appeal. Two identifiable bases in principle were identified in the judgments that could, in an appropriate case, lead to a re-opening. The first was that a party had not been given an opportunity to be heard on a particular matter. The second was where "… a judgment has apparently miscarried for other reasons…", such as the Court having proceeded to judgment on a misapprehension of the law or the facts.
13. In Autodesk the judgments drew upon earlier decisions of the High Court, particularly those in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 and State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29. In Codelfa Mason and Wilson JJ examined the power of the High Court to re-open an appeal in respect of which judgment has been pronounced in the following terms (at p39):
Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v. Bijai Govind Sing (1839) II MooIndApp 181 (18 ER 269). See also Vienkata Narasimha Appa Row v. Court of Wards (1886) 11 AppCas 660 ; In re Harrison's Share Under a Settlement (1955) Ch 260 . Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae's Case, Lord Brougham said, in words which the Authority claims are apposite to the present case (1839) II MooIndApp, at p 220 (18 ER, at p 284):
"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard."
In Venkata's Case (1886) 11 App Cas, at pp 663-664 , Lord Watson, delivering the opinion of the Judicial Committee of the Privy Council, referred to Lord Brougham's words in Rae's Case and continued:
"Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchas (1871) L.R. 3 P.C. 664 where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said:- 'Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty "[sic]" of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.' There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this."
14. It is apparent from an examination of the foregoing passages that the power the High Court was asked to exercise in AutoDesk was a power that it inherently possessed because of its position at the apex of the court hierarchy in Australia. Indeed, Mason CJ expressly acknowledged that proposition. After referring to three examples his Honour said, at 302:
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment.
(my emphasis)
15. Similarly in their Honour's joint judgment in Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207 Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed out, at 215:
"The power of the Court to reopen its judgments or orders is in no doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law, where "there is some matter calling for review", or where "the interests of justice so require. It has been repeatedly said that a heavy burden is cast upon the applicant for reopening to show that such exceptional course is required ‘without fault on his part’, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case"
(my emphasis, footnotes omitted)
16. Despite some suggestions to the contrary it is now probably the case that the principles discussed in the cases above only apply to the High Court. In DJL v The Central Authority (2000) 201 CLR 226 the issue before the Court was whether the Full Court of the Family Court had power to "re-open" an appeal that had been finalised by a perfected order. The High Court, by majority, determined that the Family Court had no power to re-open a final order after its entry. In doing so, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at 247:
Likewise, in the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2), a decision referred to by the Solicitor-General of the Commonwealth.
We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] that the power of the High Court to re-open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage, the applications were to re-open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.
The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. 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.
(footnotes omitted)
17. In my view the principles that emerge from AutoDesk and De L are of no particular assistance when determining an application pursuant to r.16.05(2)(a). Each deals with the ability of the High Court to set aside orders previously made by it, in circumstances where it is the final arbiter on the issue at hand. The principles are not analogous to the principles to be applied on an application pursuant to r.16.05(2)(a).
18. Absent r.16.05(2)(a) there could be no question, I think, that this Court has implied power to set aside a judgment made by it in the absence of one of the parties to the judgment. In Taylor v Taylor (1979) 143 CLR 1 the High Court made it clear that notwithstanding that the Family Court was a court of limited statutory jurisdiction, it nonetheless had inherent power to set aside a judgment made by it in the absence of one of the parties. Mason J (as his Honour then was) described the relevant principle as follows at 16:
Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham C.J., Rich and Williams JJ.) concluded in Cameron v. Cole that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party (Clifford v. Kanssen) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Family Law Act of an intention to displace this inherent jurisdiction.
(footnotes omitted)
19. Although I was referred to no authority on the point, and I could find none myself, in my view, the discretion conferred by r.16.05(2)(a) is to be exercised on the same basis as the implied power described in Taylor v Taylor. That approach is consistent with the approach in Allesch v Maunz (2000) 203 CLR 172. Further, given that there is an express rule that provides power to set aside orders or judgments given in the absence of a party, there is probably no room for the operation of the inherent power spoken of in Taylor v Taylor.
20. In Allesch v Maunz the High Court had occasion to discuss the principle from Taylor v Taylor and the power of the Family Court to set aside property orders pursuant to s.79A(1)(a) of the Family Law Act 1975. In their Honour's view, s.79A(1)(a) was broad enough to permit the Court to set aside property orders where those orders were made in the absence of one of the parties and a "miscarriage of justice" had occurred. In the course of their judgment, Gaudron, McHugh, Gummow and Hayne JJ said, at 182 – 183:
The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.
21. Kirby J suggested that: "the considerations that inform a decision permitting, as here, repair of a "miscarriage of justice" are so many and varied that it is impossible to narrow them down to the "demands" of a single consideration unless it be that connoted by the very phrase used in the statute [conferring to power to set the judgment aside] itself". His Honour went on to point out: "… it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are: (1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order". Those remarks, and the passages that follow in his Honour's judgment, suggest that both criteria need to be made out before an applicant could expect a favourable exercise of discretion.
22. In Knight & Andrews [2004] FMCAfam 181 Baumann FM was confronted with an application to set aside an earlier order made by his Honour which dismissed the applicant’s substantive application for want of prosecution. In the course of his Honour’s reasons he said:
13. In my view, however, the mere fact that the husband did not appear is not sufficient to automatically set aside the order of 22 October 2001. Rule 16.05 is discretionary. A similar rule is found in Order 35 Rule 7(2)(a) of the Federal Court Rules 1979 (Cth). It was considered by RD Nicholson J in the case of Registrar of Aboriginal Corporations v Murnkuri Womens' Aboriginal Corporation (1995) 58 FCR 125.
14. Although that case involved a winding up order made in the absence of the party, the Court (after consideration of authorities relating to setting aside a default judgment and similar summary applications) found that even if the non appearance was explained the Court should still consider whether there is an arguable defence or action.
15. A similar situation was considered by Driver FM in Nadar v Australian Electoral Commission (2002) FMCA 83 who, although finding the applicant's explanation for non attendance was "neither sufficient or plausible" still turned his mind correctly in my view to whether the application "would have reasonable prospects of success" or whether the order for dismissal "caused injustice."
16. I agree that these factors should be considered before exercising the discretion contained in Rule 16.05.
23. In SZCEQ v MIMIA [2005] FMCA 1141 Nicholls FM was asked to set aside an order dismissing an application for review made in the absence of the applicant pursuant to r.16.05(2)(a). It was suggested to his Honour that there was a distinction to be drawn between the approach of Barnes FM in NAJN and a “lesser test which requires an "explanation" by the applicant for failure to attend, coupled with "showing [an] arguable case".” In the result, his Honour was not satisfied that either test had been met and so the application to set aside was dismissed.
24. In S329 of 2003 v MIMIA [2006] FMCA 303 Baumann FM suggested that on an application under r.16.05(2)(a) the Court should consider at least:
a) The reasons for the failure to appear;
b) The prospects of success of the substantive application (in the context of an application that has been dismissed because the applicant failed to appear); and
c) Whether any prejudice to the respondent is likely to occur.
25. Rules similar to r.16.05(2)(a) exist within the rules of most courts in Australia. The relevant Federal Court rules are O 32 r2(2) and O 35 r7(2)(a). The trend of authority in that Court is to the effect that two matters are relevant, namely whether the applicant has an adequate explanation for the failure to appear and whether the applicant can show an arguable case on the merits (be that by way of claim or defence).
26. Maher v Commonwealth Bank of Australia Limited [2004] FCA 248 suggests, however, that the matters identified by the High Court need not all be established for an applicant to obtain a favourable exercise of discretion. Mr Maher was both an applicant and cross-respondent in proceedings against the CBA. The matter was called for hearing and the Mr Maher failed to appear. His claim was dismissed. The cross-claim was stood over, but ultimately judgment on the cross-claim went against him. Finkelstein J. set out the principles as follows:
2. Mr Maher now applies for the judgments given on 2 and 5 February 2004 to be set aside. He also seeks an order that a new trial be granted. His application is opposed. In Evans v Bartlam [1937] AC 473, 482 Lord Russell said that a judge who was called upon to consider such an application (here it is brought under O 32 r 2(2)) must consider two issues, viz (1) whether there is some purpose in setting aside the judgment: there will be none if the claim sought to be prosecuted or defended (as the case may be) is hopeless; and (2) how it came about that the applicant was bound by a regularly obtained judgment. In the same case Lord Wright said (at 489) that the principal consideration was whether the applicant had a case with merits to which the court should pay heed. It did not matter that the case is weak because, as Winneke P explained in Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34 at [8] "that is not to say that, when all the facts are exposed, it [in that case a defence] will not turn out to be a good one."
27. His Honour considered, however, that the more important of the two factors was whether the applicant might have an arguable claim against the bank or an arguable defence to the claim in respect of which judgment was given against him. His Honour said:
17. With this history in mind, I am in no doubt that Mr Maher made a deliberate decision not to attend the hearing on Monday 2 February 2004 in the expectation that the case would not go on in his absence and that he would thereby obtain the adjournment he was refused on the preceding Friday. I am convinced that Mr Maher intended to take whatever steps were necessary to defer the hearing while he continued his attempts to obtain pro bono counsel.
18. Moreover, I simply do not accept Mr Maher’s claim that he was physically unable to attend the hearing on 4 or 5 February 2004. The medical certificates are unconvincing. And, I suspect that Mr Maher did not obtain an affidavit from his doctor, or secure his attendance by subpoena, because the doctor’s evidence would not have assisted his cause.
19. Mr Maher’s cavalier attitude is inexcusable. There is no reason why a person who is hell-bent on delaying a proceeding in this way should be indulged. I suspect that if a new trial is ordered and Mr Maher still does not have counsel to assist him, he will renew his efforts to have the trial delayed. Tempted as I am to simply dismiss his motion out of hand, I accept that the more important consideration is to determine whether his own claim or his defence of the bank’s claim has any merit. If either has merit then it is best left to go to trial. Mr Maher can be suitably punished by an appropriate order in relation to costs, although even that may not put an end to his humbug.
28. His Honour concluded that Mr Maher’s claim against the bank might have had some merit, but his defence to the Bank’s claim did not. His Honour ordered that the judgment dismissing Mr Maher’s claim against the Bank be set aside (on certain conditions). The judgment on the counter-claim stood. Thus, notwithstanding the absence of one of the criteria, namely a reasonable explanation for the failure to appear, Mr Maher nonetheless received a favourable exercise of discretion.
29. Of the rules of the various Supreme Courts of the States and Territories, r.16.05(2)(a) is almost identical to rule 667 of the Uniform Civil Procedure Rules (Queensland) 1989 ("UCPR"). Both counsel referred me to the decision of Mackenzie J in J P Sproule v L E Long (2000) QSC 232. In that case Ms Sproule commenced proceedings for an order for sale of co-owned property pursuant to s.38 of the Property Law Act 1974 (Qld). Ms Long did not appear, but on the morning of the hearing she telephoned the registry and sent a letter by facsimile asking for the matter to be adjourned. The judge before whom the application was heard, knowing of the request for the adjournment, made the orders sought by Ms Sproule. She did, however, give Ms Long liberty to apply within seven days to set the orders aside if she so desired.
30. Mackenzie J had regard to Wilkinson v Wilkinson (1963) P 1 and the determination in that case that “absence” meant physical absence from the relevant hearing. His Honour considered that there was no real explanation for Ms Long's delay in applying to set the orders aside under the liberty to all provision, but ultimately he determined that the application should be dealt with under that reservation rather than the UCPR 667.
31. Shocked v Goldschmidt [1998] 1 All ER 372 is a case decided by the Court of Appeal, Civil Division (Leggatt, Roch and Morritt LJJ). In that case the plaintiffs’ suffered judgment upon a counter-claim made against them because they did not appear on the days fixed for hearing of the counter-claim. Subsequently, they applied to have the judgment set aside. At first instance, they succeeded, but the defendant (who had the benefit of the judgment on the counter-claim) appealed. The judgment of the Court of Appeal was delivered by Leggatt LJ. Roch and Morritt LJJ agreed. In the course of his Lordship’s judgment, he pointed out the following, at 377:
The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set it aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and adjudication on the merits has thereupon followed.
32. His Lordship then considered a number of cases, some of which dealt with applications to set aside judgments in default of appearance and others which dealt with applications to set aside judgments in the absence of a party at trial. His Honour then continued, at 381:
These authorities about setting aside judgments after a trial indicate that each case depends on its own facts and that the weight to be accorded to the relevant factors will alter accordingly. But from them I derive the following propositions or 'general indications' as Lord Wright might have called them. (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already being investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.
Contrasting the cases in the two categories it seems to me that whereas in the first the court is primarily concerned to see whether there is a defence on the merits, in the second the predominant consideration is the reason why the party against whom judgment was given absented himself.
33. The distinction referred to by his Lordship has little relevance to this Court. The Federal Magistrates Court Rules 2001 does not provide for a respondent to enter an appearance, and makes no provision for a judgment in default of an entry of appearance in the traditional sense. An application, when filed, is fixed with a first court date. At that first court date, the Court may make such directions as it thinks appropriate. It may also hear and determine the all or part of the proceedings. A respondent is not required to appear in the sense of filing a formal notice of appearance. The Federal Magistrates Court Rules 2001 simply requires a response and an affidavit.
34. From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i) a reasonable explanation for the applicant's absence at the trial or hearing;
ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i) Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii) Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii) the conduct of the applicant since the judgment or order sought to be set aside was made.
In addition to the above, one might conveniently summarise that which is so extensively discussed in the above passages by reference to Northey v Bega Valley Shire Council [2012] NSWCA 28 establishing, clearly, the principle that, “[mere absence] of itself, is insufficient to justify setting aside an order. There must be some added factor that makes it unjust for the order to stand”.
I am also conscious in adopting that which is opined by my colleague, Judge Jarrett, that his erudite summary of relevant principles was accepted as accurate and relied upon the by the Full Court in Barbey & Tuttle [2013] FamCAFC 44 and accordingly, by such adoption, creates binding principle applicable generally within the Court.
To the extent that the above discussion includes reference to a number of High Court of Australia decisions (principally, Aon Risk Services & Australian National University [2009] HCA 27 and Allesch v Maunz) as to the need for the Court to efficiently use its own resources and bring a conclusion to litigation, I am conscious of that opined by Lord Atkin in Ras Behari Lal v The King-Emperor (1933) LR 60 Ind App 354 (and quoted with approval by the High Court of Australia in Smith v Western Australia [2014] HCA 3, “Finality is a good thing but justice is better”.
Indeed, that passage taken with Northey v Bega Valley Shire Council would, to my mind, succinctly summarise that which I must address.
As Judge Jarrett has opined, there are three substantial matters which I should turn my mind to in addressing this Application to reopen. They are not fixed criteria and other matters besides those referred to might well be considered. However, for the sake of convenience, if nothing else, I will focus upon and individually address each of these three factors being:
a) There must be an explanation for the Applicant’s absence at the hearing which is reasonable;
b) The material before the Court – (I am satisfied in this regard that as the Application is essentially interlocutory in nature that I should treat the evidence of each party as more probably correct than not and noting that such evidence is led without cross-examination). The Applicant must demonstrate that there is “a material argument” available which might lead to the making of a different Order;
c) That there is no prejudice to the party who has received the benefit of Orders as a consequence of the determination in the absence of the Applicant.
90. The reopening of a case prior to the delivery of judgment is an exceptional circumstance, rather than a usual course of conduct.
91. The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC ¶92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
92. The court has discretion to reopen a hearing and allow fresh evidence where:
a) the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and
b) the fresh evidence is so material that the interests of justice require it and
c) if believed, the fresh evidence would most probably affect the result of the trial and
d) there would be no prejudice to the other party by reason of its introduction at a late point in time.
I will proceed on the basis of an amalgam of each of the factors identified in those two decisions, particularly noting that:
a)Fowler J set out four factors that might be taken into account, and whilst three are expressed in that considered in Harper & Harper and the cases referred to therein, I am satisfied that the four factors Fowler J identifies are an appropriate starting point; and,
b)I must have regard, as set out at paragraph 35 of the decision in Harper set out above, to the High Court’s decisions in Aon Risk Services and Allesch & Maunz, including, as that portion concludes, with the opinion expressed by Lord Atkin in Ras Behari Lal & King-Emperor, as approved by the High Court in Smith and Wesson Australia - “Finality is good, but justice is better.”
It is the submission of Mr Leong that justice would not be served by refusing to reopen the proceedings. Thus, it is a convenient point to consider that discussed by Fowler J and the four points at paragraph 92 of the above passage. I will consider the four matters set out by Fowler J together with the matters identified in the earlier decision referred to.
Firstly there must be an explanation for the applicant’s absence at the hearing which is reasonable. I proceed on the basis that Mr Leong’s evidence establishes that there is a reasonable explanation for his non-attendance. As already observed, that is not cavilled with, appropriately so, by counsel for the wife.
Secondly, the material before the court must demonstrate that there is a material argument available that would lead to the making of a different order. That is, consistent with the principles espoused by Fowler J in Mallard & Mallard, that fresh evidence is material to the interests of justice and that the interests of justice require that it be considered and that this fresh evidence would probably affect the result of the trial.
Lastly, I must consider the prejudice to the parties and each of them and, to the extent that there is a parenting aspect to the dispute, the prejudice to the best interests of this young child noting, as discussed by Forrest J in Gordon & Gordon, that the paramountcy principle established by section 60CA, repeating, although not in identical language, the obligation created by the International Convention on the Rights of the Child, must place the child’s best interests to the forefront in all decisions that are made by this court, including when those interests might be seen to come into conflict with the interests of a parent or the interests of justice arising therefrom.
As a reasonable explanation is advanced, it is germane to consider that which flows from Fowler Js comments in Mallard and as consistent with that discussed in Harper & Harper. It is not so much an issue of fresh evidence that is agitated by Mr Leong. He had filed his trial material. It was taken into account at the hearing, albeit that there was no testing of evidence, either Mr Leong’s or Ms Wu’s.
One might question the extent to which testing of evidence could have any utility in these proceedings. That arises on a number of bases. Firstly, section 102NA of the Family Law Act 1975 applies to these proceedings. A specific order was made to that extent. Thus, legal representation was provided to Mr Leong. That legal representative appeared at the commencement of the hearing 18 November 2019 and sought leave to withdraw.
Some issue was raised by Mr Leong in his submissions today suggesting that his counsel appearing on that occasion had not discharged his instructions, they having been to do all within their power to procure an adjournment. Whether that is so or not is a matter between Mr Leong and those persons. All that is apparent is that that legal representation is no longer available. Whether it can be reinstated or not is also unclear, nor need it trouble the court today.
The reality is that the past history between these parties would invoke, at the very least, the discretionary preclusion of cross-examination. Thus, the matter proceeding without cross-examination was of less material concern than it might have been had Mr Leong been present. The preclusion of cross-examination that would have arisen and will arise in the future if Mr Leong is self-represented would not change the circumstance that arose at the hearing (i.e., evidence not being tested). There would be a preclusion of cross-examination by Mr Leong. Thus, Ms Wu’s evidence would be accepted. There is perhaps a more fundamental and philosophical issue that arises as to the drafting of that legislation and the impact that it would have in those circumstances upon potentially denying due process to a party, but they are not matters germane to this determination.
The evidence of Mr Leong is not to be augmented. That is not his case. His case is that the hearing should proceed on the basis of his evidence being taken into account, his being present and his having an opportunity to put submissions. The first of those three matters does not trouble me. The evidence was taken into account. Indeed, whilst Mr Leong raises in submissions his doubt that the legal representatives for Ms Wu had even read or considered his material, any such concern - misplaced and erroneous as it is - would be disavowed by any reference to the case outline provided by Ms Wu’s legal representatives. It referred specifically to portions of Mr Leong’s material and not necessarily in a fashion that was helpful to Mr Leong, he having included, in a language other than English, certain comments within his affidavit which the court was directly taken to as having caused some disquiet and offence to Ms Wu.
Mr Leong’s absence at the hearing and his inability to put submissions is thus the basis upon which I proceed. In that regard, some consideration of Mr Leong’s evidence might give some clue as to what impact that might have. That is particularly so in light of his position before the court, which I will address first.
The initial response filed by Mr Leong sought, with respect to property, merely that the husband have leave to amend his orders. He had otherwise sought in relation to property that all three house titles be transferred to the husband and Ms Wu “will no longer have any financial interest on those properties due to her damages and massive negative contributions” and that the case be closed “without wasting the court any more resource, my time and her money on legal fee”.
The Amended Response, filed in anticipation of the trial – having been filed 26 August 2019 – expanded that relief, but only somewhat slightly. It repeated the same two passages above - that the three titles be transferred to the husband and the case closed. It otherwise sought that no further asset settlement matter be brought up “to waste the court any more resource, my time and her money on legal fee” and again sought leave to amend when circumstances or urgent matters arose.
Thus, the case that Mr Leong wishes to prosecute is, in effect, that he retain something approaching 100 per cent of the known assets of these parties. In late submissions (after adjournment had been taken to enable consideration of the submissions put and to deliver judgment) and with the accommodation given of allowing those submissions, Mr Leong indicated that, whilst that is his case, he acknowledges that Ms Wu “may” receive some portion of the assets but not what she seeks. What that portion might be or be projected to be is unclear.
It is important to have some regard - as was considered on 18 November 2019 but, again, separately for this determination – to the allegations raised by Mr Leong as to contribution.
Mr Leong’s trial affidavit, commencing at page 8, sets out a lengthy table of what is suggested to be, by way of a combination of evidence and submissions, the contributions made by these parties during the relationship. It continues from pages 8 through to 31. It concludes, under the heading “Summarised Contributions”, that the court might assess contributions 81 per cent in favour of Mr Leong and 19 per cent in favour of Ms Wu.
Many of the matters that are raised in Mr Leong’s material are, at best, ill-advised if not entirely irrelevant, vexatious, inflammatory, or offensive to Ms Wu. By way of illustration and nothing more, one can commence with paragraph 3, wherein Mr Leong sets out that he needed more time in filing his affidavit – it having been filed slightly later than the date fixed by the court – and indicating that the delay was occasioned because the magistrate in the Local Court dealing with domestic violence proceedings between these parties – something which, it would appear, has been ongoing for six or seven years, if not longer – was:
…not easy to be fooled or manipulated by this female perpetrator, Ms Wu, who committed so many serious violence to the father and the child then faked herself as a “victim” to brutally cut off the contact between the father and the child in order to achieve her intent for “legal” robbery.
At paragraph 6, similar statements are made that Ms Wu is a female perpetrator of violence, that she has faked her being a victim, notwithstanding that, until, it would seem, mid to late 2019, apprehended domestic violence complaints had been made on her behalf as the person in need of protection and orders made by the court for her protection and that her accusations are suggested to have been manufactured so as to “rob the father, who is normal”. Similarly, at paragraph 12, it is suggested that there has been serious violence and assaults by Ms Wu towards the father and the child and false accusations raised by her.
The affidavit, insofar as it relates to the parenting aspect of the proceedings, concludes at page 6. What is raised within that material is largely irrelevant to any factor the court would take into account under section 60CC. What it would assist with is an assessment by reference to section 65DAA that the parties are simply unable, on any practical level, to cooperate or co-parent.
The portion of the affidavit dealing with the financial aspects of the matter is far lengthier, running from page 7 through to its conclusion at page 31. One must read that affidavit, as it internally invites the court to do, by reference to the earlier affidavit identified above. It is there that one finds a quantification of the suggested negative contributions made by Ms Wu. They include, for example, matters such as Mr Leong having provided health insurance for the family throughout the relationship, which is equated as a negative contribution made by Ms Wu. Ms Wu purchasing necessities for himself is suggested to be a negative contribution by Ms Wu.
Those matters continue for some little time until, at the conclusion of paragraph 40 of the affidavit, it is suggested that, in total, Ms Wu’s negative contributions have been $499,565.
It is difficult, in considering that evidence, to understand how Mr Leong’s evidence is focused upon matters relevant or germane to section 79 or section 75(2). It is trite to observe that the application that is before the court, (by his Response and Amended Response, that Mr Leong seeks to retain close to - if not very close to - 100 per cent of the total assets of this relationship after a 14-year marriage) is nothing but doomed to failure.
It is difficult to see how that application could serve the interests of justice by being ventilated before this court. If one were to apply the rules of evidence to the material filed by Mr Leong, even accepting section 69ZX would permit greater flexibility with non-application of those rules as regards the first six pages of the affidavit relating to parenting, there would be little evidence before the court of any probative value, if evidence at all.
The fundamental issues thus arise:
a)In relation to parenting, it is improbable that any order would or could be made in relation to this child different to those which are made. Mr Leong seeks, in relation to parenting, that orders be made for an extensive suite of what might be referred to as contact arrangements and that the parents have equal shared parental responsibility. One need only consider Mr Leong’s evidence to understand that this could not possibly occur. One need not treat the presumption of equal shared parental responsibility as non-applicable or rebutted on the basis of family violence, but on the basis of matters relating to the child’s best interests more broadly. The parties clearly cannot communicate with each other and there is something verging upon, if not, in fact, contempt expressed by Mr Leong for the mother in light of the language used in the paragraphs referred to above. To expect that these parents could or would assume equal shared parental responsibility would be a nonsense.
It is suggested that there then be substantial arrangements for the child, including half of holidays, alternate weekends and similar times during special events and the like. An order is sought that Ms Wu be restrained from alienating the child or inducing or causing hatred towards the father, whatever that might be intended to achieve.
The simple reality is that the case, if reopened, would not likely be heard in a timely fashion. Indeed, it was not heard in a timely fashion from its commencement in 2012 until its conclusion in November 2019, although, I hasten to add that an absence of court resources was not the only contributor to that delay. The parties themselves had a substantial role to play. At one point, all proceedings were dismissed for want of prosecution. The matter was then restored with myriad applications filed, issues with disclosure and the other matters referred to above. It is not purely an inability of the court to hear the case, but by one or both of the parties,( and I need not investigate who is more culpable in that regard), dragging the chain, as it were.
To reopen a case with respect to a child when that child will likely be approaching if not have turned 18 before the court can reach the matter is simply illogical. It would be contrary to the child’s best interests. It would be an onerous burden upon both of these parents, noting Mr Leong’s position that these proceedings themselves create significant mental anguish for him. I do not suggest, in patronising fashion, that it is a kindness to him to not reopen that aspect of the proceedings, but there is nothing to achieve, and certainly nothing that could be achieved that would be proportional to the disadvantage that would arise for the child let alone the parties.
The orders that are made do not, as Mr Leong suggests, terminate his relationship with the child. They certainly terminate his participation in major issues decision-making for the child, but the agreed and mutual evidence of these parties is that there has been no engagement between them – no cooperation, communication or consultation – at any time since separation. Thus, the reality for this child has been decisions made if not by herself, by her mother.
The child would live, pursuant to those orders, with her mother. That is not challenged in any fashion by the relief that is sought by Mr Leong. Thus, it is not an order that need be stayed or set aside. There is an order that provides for the child to spend time with the father although, expressed in more negative terms, to not spend time other than in accordance with her wishes. There is then a positive obligation imposed upon Ms Wu that, should the child express such a wish, that she is to facilitate that time.
I am not satisfied that Mr Leong could establish a basis upon which, by reference to the above legal principles, that the case would be reopened in relation to parenting.
I am similarly satisfied in relation to property. I wholeheartedly accept that Mr Leong perceives that this entire process, from its commencement to now and including proceedings before the ACT Magistrates Court - at least until the dismissal of the most recent apprehended domestic violence complaint in mid to late last year – has been against him, that the Courts have imposed burden upon him, that they have been prejudiced towards him on some basis, whether his gender or otherwise. He is wrong in that regard, but that does not change his perception.
In relation to the property aspect of the matter, the relief that is sought by Ms Wu – and as was granted at hearing – is, as described by counsel for Ms Wu, conservative. The arguments that are raised by Mr Leong have no basis in the evidence that he has led or in legal principle. There is no basis to accept that his contribution has overwhelmed that of Ms Wu. To do so would, indeed, ignore relevant legal principle, such as that set out in Kennon and other authorities, as to homemaker and parent contributions and the weight that they are to be afforded against other contributions.
I am not satisfied that the outcome that would arise would be dramatically different - if different at all - from the relief that Ms Wu had sought. It was on that basis, as an important consideration bearing thereupon, that an order for costs was made at the conclusion of the hearing 18 November 2019.
I am certainly satisfied that there would be no realistic prospect that Mr Leong could obtain the relief that he seeks in relation to property or anything approximating it. His position is simply ill-informed and misconceived.
That then begs the question of what is to be served by reopening a case that is doomed to failure. A case that has, on Mr Leong’s own evidence, caused him to descent - as regards his emotional or psychiatric function - into a point of a five-week admission to hospital. There is the real question of what it would achieve when all that would arise is further delay after six years of that already, not even taking into account the proceedings in other jurisdictions, further cost and further misery for all.
I am satisfied in those circumstances that, whilst I have started with the prescient comments of Lord Atkin, that finality is good but justice is better, that this is a case – rare as it might be – where the conclusion of the matter in the husband’s absence has not created any dramatic prejudice if any prejudice at all. His material was before the court. It was considered, to the extent that it was probative, admissible or of any assistance whatsoever, bearing in mind that most of it was merely vexatious or offensive, and that the only preclusion that arose in the matter being dealt with on a defended basis was Mr Leong’s physical absence and his inability to put submissions. The extent to which submissions are put by Mr Leong in this and the prior interlocutory applications would suggest that they are rarely focused upon matters that are relevant to the court’s considerations.
For those reasons, I make orders as follows.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 12 February 2020
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