Levene & Urbanek

Case

[2023] FedCFamC1A 128


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Levene & Urbanek [2023] FedCFamC1A 128

Appeal from: [2023] FedCFamC2F 304
Appeal number(s): NAA 32 of 2023
File number(s): BRC 16245 of 2020
Judgment of: CHRISTIE J
Date of judgment: 9 August 2023
Catchwords: FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal against dismissal of application to commence proceedings out of time – Section 44 of the Family Law Act 1975 (Cth) – Hardship – Where it was open to the primary judge to determine that dismissing the application would not occasion hardship upon the applicant – Where the appeal lacks merit – No error sufficient to warrant appellate intervention – Leave to appeal dismissed – No order as to costs.
Legislation: Family Law Act 1975 (Cth) ss 44, 79
Cases cited:

De Winter & De Winter (1979) FLC 90-605

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 52

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52]

Welland & Hawthorn (2021) 64 Fam LR 520; [2021] FedCFamC1A 43

Number of paragraphs: 86
Date of hearing: 13 July 2023
Place: Sydney (via Microsoft Teams)
The Appellant: Litigant in person
The Respondent: Litigant in person

ORDERS

NAA 32 of 2023
NAA 32 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LEVENE

Applicant

AND:

MR URBANEK

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

9 AUGUST 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.No order as to costs.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Levene & Urbanek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an appeal against an order dated 25 January 2023 which dismissed the appellant’s application for leave to commence financial proceedings out of time pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”).

  2. The appeal requires leave:  Welland & Hawthorn (2021) 64 Fam LR 520 at [13].

  3. The appellant’s central contention is that the primary judge was in error in determining that dismissal of her leave application would not occasion hardship.

  4. The grounds of appeal raise issues relating to economic systems, gender and violence expressed to be relevant to the decision appealed from, this appeal and the conduct of the Court in general.  In considering the submissions in this appeal the focus has remained on this case and whether the primary judge was wrong to refuse leave to commence proceedings between these parties out of time.

  5. Both the appellant and the respondent appeared without a lawyer at the appeal although each of them had been represented by counsel before the primary judge.

    THE TRIAL

  6. The appellant sought leave to commence proceedings two years and 11 months out of time. The primary judge dismissed her application. The following findings are germane to this appeal:

    (a)The parties cohabited from either 2005 or 2006 and separated in August 2011;

    (b)At the commencement of the parties’ relationship the husband owned a property which became the parties’ home (“the Suburb B property”) subject to a mortgage;

    (c)The wife lived in the Suburb B property between separation and October 2016;

    (d)The parties are the parents of four children: W born September 2006, X born September 2007, Y born June 2009 and Z born February 2012;

    (e)In October 2016 the respondent paid the appellant $375,000. The appellant also retained two paintings and a car;

    (f)There was no adjustment to the parties’ superannuation entitlements; and

    (g)The respondent sold shares and borrowed money by refinancing the Suburb B property to make the payment to the appellant.

    THE APPEAL

    Leave to Appeal

  7. While the appellant did not, in her Amended Notice of Appeal, select the box seeking leave, she did fill in the facts relied upon in support of the application for leave and so I have treated this as a formal application for leave.

  8. The principles applicable to the application for leave are well settled and articulated in Medlow & Medlow (2016) FLC 93-692 at [57]:

    (a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and

    (b)If leave were refused, a “substantial injustice” would ensue.

  9. It is important in considering the first of the principles to assess the merits of the appeal itself.  I will return to consider leave after consideration of the merits of the appeal.

    Commencing proceedings out of time

  10. Section 44(3) of the Act provides that, in the absence of consent, either party requires the leave of the Court to commence proceedings.

  11. The grant of leave is an exercise of judicial discretion.

  12. Section 44(4)(a) of the Act provides that the court would not grant leave unless satisfied “hardship would be caused to a party to the relevant marriage or a child if leave were not granted”.

  13. This finding of hardship is sometimes referred to as a gateway or threshold finding because unless hardship is established the discretion is not enlivened.

  14. It is important to focus on what is meant by hardship in the context of the provision. It is not a question of assessing hardship at large but hardship in a specific context namely – hardship occasioned by the failure to grant leave.

  15. That is important because a party may well establish that he or she is suffering hardship and/or is likely to suffer hardship in the future but unless that hardship is linked to the failure to grant leave then it is not material to the court’s determination.

  16. In order to demonstrate hardship the appellant needed to persuade the primary judge that she had a prima facie case for property adjustment. In order to demonstrate hardship in that context the applicant for leave must demonstrate his or her hardship flows from the failure to grant leave. Put another way, the hardship would be addressed in some way if leave were granted. Effectively the applicant for leave must demonstrate an arguable case that if leave were granted she would be better off financially as a consequence of the grant.

  17. This requires an analysis (albeit not in depth) of the claim which would be brought if leave were granted. Each of the parties (to a greater or lesser extent addressed this issue in their evidence and submissions) and it was the subject of comment by the primary judge in the reasons for judgment.

    Ground 1

  18. Ground 1 asserts errors of fact and contends a failure to consider relevant considerations. It read as follows:

    1.His Honor [sic] made errors of judgement and fact in determining that denying leave would not cause hardship, now and in the future, for the applicant and the applicant’s children.

    a.His Honour fails to consider the applicant’s child-rearing responsibilities have impacted on the applicant’s income-earning capacity post-divorce and the difficulties she faced restarting her career in a misogynistic patriarchy where women bear the negative externalities of childrearing while providing the Capitalist system with a growth rate while also continuing to exploit mostly female labour through a gender pay gap and less financial stability through casualised and non-permanent work.

    b.In considering financial capacity, his Honor uses incorrect income details for the applicant by increasing her income and lowers the respondent's income, ignoring evidence provided by the applicant in relation to this.

    c.His Honor ignores the disparity in superannuation accounts and the applicant’s inability to recover financially and provide for herself in retirement due to child-rearing; he makes substantial errors of judgement in sustaining the systemic advantage afforded to the respondent via increased earnings and superannuation contributions. His Honor makes errors of judgement in using the Family Court Act to protect the respondent’s privilege further in denying hardship to the applicant and extending hardship to the applicant while also denying it.

    d.His Honor fails to consider the disparity in the future earning capacities of the two parties and the applicant’s debts which include a HELP debt that increased dramatically due to the applicant’s time out of the workforce raising children, and the effect this has on her future earning capacity, and how increased interest rates affect the applicant's ability to house herself and her children.

    e.His Honor fails in determining the applicant has lived her life while living in poverty and struggling to restart her career and being reliant on Foodbank.

    (As per the original)

  19. It appears as though, even though the ground asserted errors of fact, it was principally concerned with whether the primary judge afforded weight (or sufficient weight) to the following matters:

    (a)Impact of parenting arrangements during the relationship on the appellant’s income, earning capacity, level of superannuation and student debt; and

    (b)Challenges faced by appellant in re-entering the workforce.

  20. It should be noted at the outset that challenges which are dependent on an assessment of the weight afforded to various aspects of the evidence in reaching a discretionary decision face a high bar.

  21. The appellant does assert that the primary judge made an error of fact as regards both her income and that of the respondent.

  22. The remainder of the ground appears to advance matters which were not before the primary judge such as the impact of rising interest rates.

  23. It is necessary to examine the parties’ informal property settlement to place the submissions in context.

  24. The parties commenced cohabitation in 2005 or 2006 and separated in 2011. The parties’ children were born in 2006, 2007, 2009 and 2012.

  25. Even if the primary judge had relied only on the appellant’s material it established the following about the respondent’s initial financial contributions:

    (a)The respondent owned a house with an estimated value of $420,000 subject to a mortgage of $180,000;

    (b)The respondent had superannuation entitlements of $120,000 and $3,000;

    (c)The respondent had term deposit/shares estimated at $20,000; and

    (d)The respondent owned a car.

  26. The appellant’s material further stated:

    (a)That she contributed personal injury damages in the sum of $23,000;

    (b)Between 2011 and 2016 the appellant and the children remained living in the Suburb B property;

    (c)After separation the respondent borrowed $375,000 which was paid to the appellant. The evidence does not allow a precise finding about what this represented but it is not controversial that it occurred.

  27. The respondent says he also owed his parents $120,000 (used by him to fund a payment to a former spouse) at the time the parties started to live together and continued to owe those monies at the time of the hearing before the primary judge. He also contends his share portfolio had a greater value at the commencement of cohabitation.

  28. The evidence suggests during the relationship each of the parties made contributions – the appellant’s non-financial contributions were greater those of the respondent and the respondent’s financial contributions were greater than those of the appellant.

  29. The High Court in Stanford v Stanford (2012) 247 CLR 108 at [39] said:

    Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist.

  30. Accordingly, the primary judge approached the application for leave in the knowledge that the parties had, after separation, altered their interests in property and with a knowledge of what they had each received from that alteration. That information, which was not itself controversial, informed his approach to the application for leave. In effect the primary judge analysed what the parties had put in place voluntarily.

  31. At trial the appellant’s counsel submitted that the difference in the parties’ superannuation was such that it would persuade the court that the wife had an arguable case for adjustment (if leave were granted). He said:

    The husband has 607,000 worth of super that’s never been split or divided. He has been contributing to that for 30 years. It was – is a significant financial value to the husband. And for the – there’s  a duration of this relationship through which it has grown. I don’t know how much he fed it, and I don’t know how much it grew during the period because no one has done that analysis. But it’s a significant resource that has not been looked at or attended, so it can never be said what the husband gave the wife at one time should be her property settlement. That’s the end of the matter. Something really significant has been left out of the equation.

    (Transcript 25 January2023, p.23 lines 31-39)

  32. In one sense the submissions for the appellant at trial acknowledged the issue relating to the respondent’s superannuation: it had been accumulated over thirty years, only six of which had coincided with the parties’ relationship.

  33. Counsel for the appellant at trial also drew the court’s attention to the income disparity and security of the respondent’s employment (in comparison to that of the appellant).

  34. In the reasons for judgment the primary judge examined the informal settlement which the parties had affected and understood that it did not include an adjustment of superannuation entitlements. That fact alone would not suggest error.

  35. As the primary judge commented during the trial: “it’s not a balancing jurisdiction…it’s what’s her hardship[?]” (Transcript 25 January 2023 p.24, lines 15 & 19).

  36. It is important to understand that the appellant’s submissions which focus on gendered difficulties, re-entering the workforce, challenges balancing work and parenting responsibilities, lack of superannuation due to low pay, casual or part-time work are all matters of legitimate concern but seeking their redress through a property adjustment with her former spouse almost a decade after separation is not a solution to a systemic problem. The primary judge was not protecting the “respondent’s privilege” but applying the law to the facts of this case.

  37. The primary judge understood, and the submissions on behalf of the appellant acknowledged, that the superannuation entitlements of the respondent had been built up over a lengthy period of time, a small proportion of which coincided with the parties’ cohabitation.

  38. The primary judge found that both parties accepted the value of the Suburb B property at the time of the informal property settlement was about $750,000. There was a mortgage of $117,440, a loan to the husband’s parents of $120,000 and the husband had accrued a $5,500 capital gains tax liability on realisation of shares.

  39. Accordingly, the informal property settlement was as follows:

    Husband

    Suburb B property                  750,000

    Shares  41,000

    Motor vehicle 1  5,000

    Liabilities  (242,940)

    Payment to wife  (375,000)

    Subtotal net assets:               $178,060

    Superannuation:                   $375,783

    Wife

    Payment from husband           375,000

    Motor vehicle 2  5,000

    Paintings  23,000

    Subtotal net assets:               $403,000

    Superannuation:                   $7,052

  40. The appellant did not put those figures in issue at the trial (or on appeal). The appellant is bound by the conduct of the matter at trial: Metwally v University of Wollongong (1985) 60 ALR 68 at 71.

  41. The appellant received approximately 69.35 per cent of the non-superannuation assets or 42.5 per cent of the pool of assets including superannuation. While it is accepted that the parties themselves implemented this informal agreement and hence it did not have the status of an order or a financial agreement, it could not, on the facts of this case, be considered outside the range of results which may have been ordered if the matter had been adjudicated.

  42. As the primary judge recognised the Suburb B property (and a considerable superannuation entitlement) as an initial contribution of the respondent, it could not be said that the payment of the $375,000 to the appellant was not an appropriate recognition of both her contributions during the five to six year relationship nor her entitlement to an adjustment as a consequence of matters listed in s 75(2) of the Act.

  43. The focus of the appellant’s case before this Court was on a comparison of her present financial position with that of the respondent. I accept the respondent is in a stronger financial position. This alone cannot demonstrate error.

  44. To the extent that the appeal grounds contend error by failure on the part of the primary judge to consider parenting responsibilities, the appellant failed to establish error. The primary judge found, of the children, at [35] that “mainly they live with the applicant wife”.

  45. It could not be said that the primary judge did not consider that the wife had day to day responsibility for the children in the main (with the exception of X, as the primary judge commented at [35]).

  46. The appellant asserts that the primary judge made an error of fact in respect of her income.

  47. The evidence before the primary judge included the wife’s pay slip which showed an income from her employer of $58,534.83. The husband contended her income was $90,000 and relied on a superannuation statement which said “[f]or benefit service from 26/07/2021, the relevant five-year benefit salary is $90,345.59”.

  48. The appellant’s counsel at first instance referred to her evidence in submissions telling the primary judge: “the wife more recently has an occupation that gives her about 1000 – just over $1000 a week as an income source. She is not a significant earner on income states [sic] like the husband.” (Transcript 25 January 2023, p.24, lines 11-13).

  49. The respondent’s counsel relied on written submissions before the primary judge. At [46] of those written submissions, a submission is made to the following effect: the applicant has commenced employment for G Employer and earns approximately $90,000 per annum”.

  50. The primary judge may have been in error in finding the appellant’s income was $90,000 per annum. There are a number of difficulties, however, with this submission as the basis for appellable error:

    (a)This particular submission was not addressed before the primary judge;

    (b)It is not possible for me to reach a conclusion as to whether or not, the amount which was on the G Employer payslip represents the reality of the appellant’s income or not; and

    (c)The best that can be said is that the parties were in dispute about this issue before the primary judge, and in the absence of cross-examination, that dispute could not be resolved. It is also important to understand that the distinction between $58,000 and $90,000 being income of the wife some eight years after separation is unlikely to have been determinative of the question of whether or not dismissal of her application for leave to commence proceedings was productive of hardship.

  1. Not all errors of fact will be productive of appellate error: De Winter & De Winter (1979) FLC 90-605 at 78,092. The ground is not established.

    Ground 2

  2. Ground 2 was pleaded as follows:

    2.His Honor erred in determining the applicant’s reasons for delay were not credible or valid.

    a.His Honor ignored evidence that the applicant provided to support her PTSD diagnosis;

    b.His Honor ignored the stress she experienced in 2017 due to finishing her doctorate, the attempted rape she experienced and its effects on her PTSD, and care of her child who experienced an injury in 2017 and the ongoing anxiety her daughter experienced that was evidenced in supporting material.

    c.His Honor instead erred substantially in choosing to base his decision on the police refusing to investigate the attempted rape by using the 'incredible witness' excuse, ignoring the publicly held information that the police in Queensland have one of the highest rates of determining reported assaults and rapes as unfounded. He ignored that the police and judiciary have had no effect on reducing GENDERED VIOLENCE IN THIS COUNTRY and women are disproportionately affected by RAPE, ASSAULT AND DOMESTIC VIOLENCE and the applicant is in the majority of women WHO DO NOT REPORT RAPES IMMEDIATELY OR EVER.

    d.His Honor cited the respondent’s changes to wording in the applicant’s affidavit rather than draw on the applicant’s information to provide favour to the respondent in relation to their daughter’s injury sustained at the respondent’s house and which the applicant provided ongoing care for.

    e.His Honour failed to give any or any proper regard to the domestic violence experienced by the applicant and the imbalance of power in the relationship particularly after the applicant had been choked by the respondent; he failed to consider the impact a high conflict settlement would have on the children, in particular, the couple’s eldest daughter, whom he was told had experienced an injury in 2017 and suffers anxiety and depression.

    (As per the original)

  3. This ground is misconceived. The primary judge found at [131], [134] and [138] that the wife had not established the requisite hardship. The discretion to grant leave was not enlivened and the reasons for delay are immaterial to the disposition of her s 44(3) leave application.

    Ground 3

  4. The appellant asserted in Ground 3 that the primary judge “made errors of judgement and fact in ignoring the applicant’s financial and non-financial contributions pre and post-separation”.

  5. The primary judge did not ignore the evidence of the appellant’s contributions. He found at [52] –[53]:

    52.…the initial contribution made by him of the house at [Suburb B property] far outweighed all of the contributions financially and non-financially made by the wife.

    53.That cannot be determined but that is what his case is and, again, even though it cannot be determined precisely, there was no real opposition to that case.

  6. The primary judge elsewhere noted at [34] that the children had lived primarily with the appellant.

  7. It could not be concluded that the primary judge had ignored the appellant’s contributions. The highest the submission could be made is that in the reasons for judgment that primary judge did not mention all of the specific contributions of the appellant.

    Ground 4

  8. Ground 4 was plead as: “His Honor [sic] made errors of fact in relation to believing the respondent claiming he paid the mortgage and child support prior to the applicant leaving the marital home”.

  9. These findings by the primary judge were open on the unchallenged material before him and no error is demonstrated.

  10. The primary judge found at [55]: “not only did the husband supply that property, being the cash, the paintings and the vehicle, he moved out of the [Suburb B property], he moved next door, but he continued to pay the mortgage for a period”.

  11. Apart from the appellant’s evidence that she contributed $23,000 to the mortgage from her personal injury settlement there is no evidence that the mortgage was not paid by the respondent between 2011 and 2016.

    Ground 5

  12. Ground 5 read as follows:

    5.His Honor erred in including unnecessary materials that were related to the time prior to the divorce and after consent orders had been filed.

    a.His Honor made an error of fact and judgement stating that because the applicant bought a townhouse in 2016 that she was capable of running a case in 2017. The parties were not divorced until December 2016 and she could not apply for settlement. His honor did not consider that in 2016, the APPLICANT WAS ESCAPING DOMESTIC VIOLENCE. His HOnor also considered that because the applicant sold a townhouse and bought a house in 2021 after financial settlement paperwork was filed that she was capable to  running a legal case in 2017.

    (As per the original)

  13. The appeal ground misunderstands the law. At law the appellant was able to apply for financial orders from the court at separation (or indeed, in an appropriate case, before separation), while the limitation period only commenced to run after the application for dissolution was granted.

  14. The primary judge was considering the evidence about the activities undertaken by the appellant in the post-separation period in order to understand two things:

    (1)The nature of the financial relationship as between the parties in the post separation period as that is relevant to her claim of hardship; and

    (2)The explanation for delay and how that relates to the other life matters the appellant was attending to in the same period.

  15. This ground is without merit.

    Ground 6

  16. Ground 6 read as follows:

    6.His Honor failed to consider the respondent’s asset values at the time the consent orders were filed. Instead he utilised the respondent’s unverified asset values that he claimed were from 2015 and contrasted these with the applicant’s 2022 asset values.

    a.His Honor failed to consider the disparity in the applicant and respondent's housing. The applicant lives in a 2 bedroom house with her children, two of whom she has majority care and a third shared care, and the applicant lives in a 4 bedroom house on a double-block with one child shared care.

    (As per the original)

  17. The respondent was arguing at trial that the financial arrangements which had been put in place voluntarily were relevant to the merits of the foreshadowed application for relief under s 79 of the Act.

  18. The respondent’s position was that the appellant had not demonstrated, in light of the financial arrangements which had been in place, that s 79 proceedings would address hardship since, on his case, the appellant had already received funds so as to disentitle her to any further property adjustment if leave were in fact granted. The primary judge accepted this submission.

  19. The value of the assets at the time the wife received the lump sum is relevant to assessment of the justice and equity of any further application for adjustment. The primary judge was not in error to have regard to the unchallenged evidence about the values of items at that earlier date.

  20. The focus of the appellant’s evidence was on her present financial circumstances. While those were not irrelevant to the application she was pursuing she did not engage with the evidence about the financial arrangements the parties had put in place.

  21. This ground is not established.

    Ground 7

  22. Ground 7 read as follows:

    7.His Honor erred in determining that the applicant had 2 chances to file paperwork.

    a.His Honor chooses to ignore and negate her reasons for delay. He ignores that she attended community legal centres but did not know how to apply for leave out of time. He mistakingly says she did not respond to his offer in 2019 when she did, and she provided evidence of this but he ignored that too.

    b.His Honor ignores that because the financial impact the respondent's failure to progress settlement has had on the applicant. His honor ignores the respondent did not provide documented values the applicant was forced to sell her townhouse due to financial pressures and the children and herself moved into the rental market.

    c.His honor states the respondent’s child support payments should be considered a post-separation contribution and negate the need for settlement.

    d.His honor ignores that the respondent has never provided documented evidence of his asset values and has never been directed to do so.

    e.His Honor ignores the respondent's failure to provide documentation has led to the applicant seeking leave from the court for settlement.

    f.His Honor ignores that because the applicant had such difficulty in returning to the workforce, that she could not buy a house until 2021, which increased her mortgage borrowings and affects her financial security.

    (As per the original)

  23. The ground contains a variety of complaints none of which establish error. As discussed above I do not propose to further deal with the grounds as they relate to delay in circumstances where the primary judge did not find hardship.

  24. In large part the ground contends that the respondent’s conduct in failing to provide documentation to the appellant was material and the primary judge failed to take it into consideration. Firstly, the evidence of the appellant and the submissions in the trial did not establish same. Secondly, even if this were the case it may be relevant to delay but not necessarily (without more) amount to hardship.

  25. To the extent that the ground agitates a complaint that the primary judge was in error in failing to examine the financial decisions of the appellant post receipt of the informal property settlement and the consequences of those financial decisions, it overlooks the broader context – the primary judge in considering whether to grant leave was obliged to consider whether – having regard to the past events – a prima facie claim had been made out so as to consider whether loss of that claim would constitute hardship. He undertook that task.

  26. The primary judge did not make a finding as asserted in particular (c).

  27. The ground has no merit.

    Ground 8

  28. Ground 8 read as: “His Honor [sic] erred in stating the applicant had achieved a lot”.

  29. At [108] the primary judge noted “[t]he wife has achieved a lot”. He made that observation in the context of evidence about the appellant having written a creative project and elsewhere in the reasons undertaking tertiary study. The appellant may disagree with the judge’s opinion but it was open on the evidence.

    Ground 9

  30. Ground 9 asserted that the primary judge “ignored that the respondent had conflated his post-divorce contributions by claiming to pay tolls and petrol cards and claiming the full health insurance costs for the family to the applicant's costs”.

  31. The primary judge recorded at [57] that the husband “…even said until recently he was paying for the wife’s electronic tags for the toll roads”.

  32. I cannot otherwise see that the judge made any finding or referred to any evidence relating to tolls, petrol cards or health insurance. The ground is not established.

    Ground 10

  33. Ground 10 read as follows:

    His Honor erred substantially in ordering costs to the applicant; in doing so, he is determined to issue a warning to other women who have experienced domestic violence and rape or attempted rape, insinuating that gendered violence is not a reason for delay in the Family Court.

    (As per the original)

  34. Having determined to dismiss the application for leave, the primary judge found that there were circumstances justifying the making of a modest order for costs. The primary bases were that the appellant had been wholly unsuccessful and imprudent failure to accept an offer of settlement. The appellant has not demonstrated that the decision was in error.

    DISPOSITION

  35. Returning to the question of leave to appeal, it is apparent that the appeal lacks merit and thus the primary judge’s decision is not attended with sufficient doubt to warrant reconsideration. Leave to appeal is therefore refused.

    COSTS

  36. Neither party incurred legal costs in respect of the appeal and there will be no orders as to costs.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.

Associate:

Dated:       9 August 2023

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Singer v Berghouse [1994] HCA 40
Singer v Berghouse [1994] HCA 40