Meridien and Lung and Anor
[2009] FamCAFC 211
•16 November 2009
FAMILY COURT OF AUSTRALIA
| MERIDIEN & LUNG AND ANOR | [2009] FamCAFC 211 |
| FAMILY LAW – PROPERTY SETTLEMENT – APPLICATION FOR EXTENSION IN TIME TO APPEAL AGAINST TRIAL JUDGE’S ORDERS – No possible basis for successful challenge to trial Judge’s decision demonstrated – Application for leave to appeal dismissed |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson HCA 30; (1990) 93 ALR 479; (1990) 64 ALJR 458 (28 June 1990) Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5 |
| APPLICANT: | MR MERIDIEN |
| FIRST RESPONDENT: | MS M LUNG |
| SECOND RESPONDENT: | MS Q LUNG |
| APPEAL NUMBER: | EAA | 133 | of | 2009 |
| FILE NUMBER: | PAF | 2020 | of | 2005 |
| DATE DELIVERED: | 16 November 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 16 November 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 September 2009 |
| LOWER COURT MNC: | [2009] FamCA 1066 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Paraska |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Jakovic |
Orders
The application for an extension of time to appeal against orders made by Waddy J on 17 September 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Meridien & Lung & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: EAA 133 of 2009
| MR MERIDIEN |
Applicant
And
| MS M LUNG |
First Respondent
| MS Q LUNG |
Second Respondent
REASONS FOR JUDGMENT
On 5 November 2009, Mr Meridien, (“the husband”), filed an application seeking an extension of time within which to appeal against orders made by Waddy J on 17 September 2009 in proceedings for settlement of property between Ms M Lung, (“the wife”), the applicant as respondent Ms Q Lung, the sister of the wife, (“the sister”). The orders then made by Waddy J commenced with a declaration that the wife, and the sister were jointly entitled to a property at G, the address and folio identifier of which his Honour referred to, as tenants in common in equal shares.
His Honour then made orders pursuant to section 79 of the Family Law Act 1975 (Cth), the sister having intervened in the proceedings, that the wife and the sister indemnify the husband, in relation to all secured and unsecured liabilities and outgoings with respect to G. His Honour ordered that the parties otherwise retain such property, including superannuation interests, as they possessed. Significantly, his Honour noted that his orders did not include:
Any determination for the legal or equitable rights, if any, that any of the three parties may have in the real property currently registered in the name of the sister and located at an address at [B] in the State of New South Wales –
to which his Honour referred.
In his Reasons for Judgment, following a trial which occupied three hearing days, the learned trial Judge recorded the background to the proceedings between the parties in this Court. Significantly, having regard to some matters raised by the husband earlier this morning, his Honour recorded that on 26 August 2008, Collier J made final parenting orders. Notwithstanding that the husband’s application to this Court does not seek to appeal against Collier J’s orders of 26 August 2008 out of time, in the course of submissions the husband sought either to advance an argument that he should have such leave or so far as the Court can follow the thrust of his submissions, that matters relating to that decision were in some unspecified way relevant to the orders made by Waddy J.
There is no application for leave to appeal out of time against Collier J’s parenting orders of 26 August 2008. Whilst it is unnecessary to speculate about that, it is difficult to see on what possible basis, and none emerges from the evidence relied upon the husband, any such leave would be likely to be granted had it been sought. His Honour then considered to the evidence before him.
Under the heading, “Lack of Evidence Filed”, his Honour recorded that the husband had failed to file any affidavits in the proceedings, but that pursuant to an invitation which his Honour extended, the husband, during the course of the proceedings, or at the outset of the proceedings, prepared what his Honour described as a 34 line handwritten statement. The document the husband adopted on oath or affirmation in the witness box.
The learned trial Judge set out in his judgment what the husband’s statement said. His Honour noted that the husband produced no documentation in support of his allegations of fact. His Honour recorded that proceeding in the manner in which it was necessary for his Honour to by virtue of the husband's failure to file any material, was less than satisfactory. No finding of fact made by his Honour in the course of that narrative is suggested in any material relied upon by the husband, or in his submissions, to have been other than reasonably open to him.
Under the heading, “Chronology” the learned trial Judge recorded a history of the cohabitation of the parties, and to the extent that it was relevant, the financial dealings between the parties to the marriage and the sister. In short, his Honour recorded the commencement of cohabitation in late 1990, and the purchase in 1999 of a property at V, utilising funds from three sources, $26,000 described as joint savings of the husband and wife, borrowings from the sister of approximately $20,000, and borrowings from the Bank of approximately $150,000.
His Honour referred to the subsequent mortgagee sale of V, and the disbursal of the “meagre proceeds” resulting from that sale. Inferentially, by reference to paragraph 47 later in his judgment, those proceeds approximated some $18,000, each party having received, his Honour thus found, $9161.06 from the sale. His Honour then referred to the acquisition in September 2001, of a property at B in the sole name of the sister. That was the property in respect of which the husband had made claims which were not found proved before the trial Judge, to an equitable estate or interest. The learned trial Judge noted, in the orders to which reference has earlier been made, that he made no decision about the beneficial ownership of the B property, thereby preserving the rights of the husband to pursue whatever interest or estate he claims to have in equity with respect to the property in the Supreme Court of New South Wales.
One of the husband's complaints appears to be that the trial Judge failed to deal with that claim on its merits. With great respect to the husband, on the material before this Court, had his Honour done so, all that he could conceivably have done was to reject the husband’s claims, thereby giving rise to issues of issue estoppel res judacata, which may very well have precluded the husband from going to the Supreme Court to agitate his claims.
Although the husband would not see it in such terms, to use the colloquial, the learned trial Judge did him a favour by declining to deal with his equitable claim, given that on the evidence, or more correctly the absence of any evidence presented at trial before Waddy J, the only outcome had his Honour determined the issue on the merits, would have been a verdict for the sister.
The learned trial Judge proceeded to detail the acquisition by the wife and her sister in 2003 of the G property. That property was apparently purchased for $568,000 in 2003 but at trial was worth $440,000. The evidentiary foundation for neither of those figures is challenged by the husband in this application. Nor does the husband appear at trial to have agitated any waste or other economic loss argument with respect to the acquisition or conservation of the G property. Nothing presented to this court suggests that the husband now seeks to raise such arguments.
His Honour recorded that the acquisition of the property was financed (see paragraph 41), with an HSBC loan of $450,000 and funds provided in other ways, which his Honour identified. The parties separated in April 2005, were divorced in August 2006 and, as noted earlier in his Honour's judgment, in December 2006 the V property was sold by the mortgagee consequent upon default.
Consistent with authority, the property of the parties to the marriage was identified by the learned trial Judge. His Honour concluded, at paragraph 55 of his judgment, that the whole of the equity in the G property was less than $3500. The interest of the wife was, accordingly, one half of that, or approximately $1750. Whilst the husband appears to assert that the learned trial Judge erred in ways which have not even been hinted at, much less specified, in finding the beneficial ownership of the property to be consistent with its legal title, there is no challenge to the trial Judge’s findings as to the equity in the property.
In other words, at what would appear to be its highest, the assertion of the husband is that the trial Judge undervalued the asset pool by $1750. It will be readily appreciated that the costs of an appeal to a bench of three judges far outweigh the amount involved. The learned trial Judge referred to other assets of the parties. To the extent that there is any challenge to any of those findings, the challenge emerges by way of sweeping and totally unsubstantiated allegations by the husband.
Nothing to which this court has been referred, establishes that the trial Judge erred in quantifying the asset pool as he did in the sum of $7660.12. Consistent with authority, the learned trial Judge then proceeded to consider the contributions of the parties. His Honour, with respect properly, did so by reference to the various provisions of section 79(4) of the Act which were relevant. His Honour, it should be noted, gave the husband credit for renovating some property of the parties, (see paragraph 68).
His Honour found that the wife made a major contribution as homemaker and parent, as well as by performing other physical duties. His Honour referred to the impact of the orders made by Collier J, the previous year, with respect to parenting matters and found that the wife was likely to have to bear by far the greater burden of not only nurturing the child, but also of providing maintenance for her for the next decade or so.
The learned trial Judge then, again consistent with authority, turned to section 75(2) of the Act. He there referred to the income of the parties, and noted the husband’s assertion that his taxable income was $12,000 to $15,000 a year from his endeavours as a truck driver. His Honour then referred to section 75(2)(d). He referred to section 75(2)(g) and to section 75(2)(l), and reiterated that the major burden of providing for the parties’ daughter would fall upon the wife for the next decade or so.
His Honour further concluded in that context that it was unlikely that the wife could expect any assistance of more than nominal sums, if any, from the husband towards the child's maintenance in the future. That finding was made against the background of the husband having not been assessed as liable to make any payments of child support for the period from 1 December 2008 to 28 February 2010.
Under section 75(2)(o) his Honour reiterated that the husband having “put on no cogent written evidence” and having given “no cogent oral evidence” the Court had been forced to rely heavily on the only evidence provided, that being the evidence of the wife and the sister. The learned trial Judge referred to some unsatisfactory aspects of the husband's case, and noted that to the extent that the husband challenged some assertions of the wife and the sister, there had been documentary evidence relied upon on their behalf, which was capable of corroborating their allegations of fact. His Honour accordingly concluded, for those reasons that the wife should be awarded the entirety of the extremely modest asset pool which he had found.
The principles which govern this application are not in doubt and do not require restating in any detail for present purposes. In [1990] Gallo v Dawson HCA 30; (1990) 93 ALR 479; (1990) 64 ALJR 458 (28 June 1990), McHugh J, made clear that the right to challenge an appeal ought not be lightly forfeited. Kirby J said similar things later in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5. In essence, the issues which are relevant for present purposes are whether, on the material presented, the applicant husband raises anything which could conceivably enliven appellant intervention if he were granted leave to appeal.
The husband is unrepresented. That, however, does not change the legal principles which govern his application. No challenge to any finding of fact made by the learned trial Judge has been advanced in any of the material provided by the husband. That is perhaps unsurprising given the way he conducted the case before Waddy J, having, as his Honour recorded, filed no evidence until the trial commenced and then, and only at his Honour’s invitation, having provided a brief handwritten statement, none of which was accepted by his Honour in the face of competing allegations of fact which were corroborated in a number of material respects.
Other than the fact that the husband does not like his Honour's decision, no basis for appellate intervention has been suggested. It is to be remembered, as earlier noted, that the learned trial Judge’s orders specifically preserved the husband's rights to agitate a claim in the Supreme Court with respect to the B property, in circumstances where, on such evidence as the husband placed before the learned trial Judge, determining such claim as the husband appeared to be making, would undoubtedly have resulted in a judgment adverse to the husband. That judgment would, at the very least, have created significant obstacles to the husband successfully agitating that issue elsewhere.
The property of the parties to the marriage, as found by the learned trial Judge, has not been challenged by the husband in this application. His Honour's orders, in circumstances where there was a child then aged about six and half years, an unchallenged finding that the wife and mother of the child would bear the sole future burden of the child's support would, of itself, pursuant to section 75(2) in the absence of any contribution based entitlement whatsoever, have rendered a permissible exercise of discretion, an order of the kind made by the trial Judge, awarding the wife, in effect, the totality of an asset pool of less than $8000.
It is correct to note that the husband was only 10 days out of time when he sought to file his Notice of Appeal. That, however, becomes material, if and only if, the court is satisfied that the husband presents a case for an extension of time. With respect to the husband, he does not even begin, on the material presented to this court, to demonstrate a basis for an extension of time. Were the matter to become one of discretion, the husband’s delay would not disincline the court to exercise the discretion in his favour.
Were the matter to become one involving the exercise of discretion, which, on the Court’s findings it does not, the Court would nevertheless not exercise its discretion to extend time for the husband to appeal in the circumstances of this case. The Court inquired of the husband what, if any, provision he could or would make for security of the costs of the other parties to any appeal which he might be granted leave to institute. The transcript speaks for itself in relation to that topic.
By design or otherwise, the husband would, if granted leave to appeal, and prove unsuccessful with his appeal, as would appear almost inevitably to be the case on the material he has presented, be in the position where he would have put the wife and the sister to not inconsiderable expense, in circumstances where the costs which they would undoubtedly be awarded, would be incapable of being satisfied.
If the Court is wrong in its conclusion as to the complete absence of any demonstrated, possible merit in the husband’s proposed appeal, the court would base its refusal to extend time on the exercise of discretion in reliance upon that matter and the additional matter, that the amount involved in the appeal is, on any view of it, de minimus. In circumstances where the husband has comprehensively failed to demonstrate the prospect of merit in his proposed appeal, is able to insulate himself from any costs order made against him with respect to the appeal, and the amount involved is so small, the court would not exercise its discretion to allow the husband to appeal.
As noted earlier in these reasons, however, the Court's primary reason for refusing leave to appeal, an extension of time in which appeal, is the complete absence of any indication of possible merit on the part of the husband. His affidavit in support of this application does not disclose anything which could possibly indicate the likelihood of even arguable grounds of appeal, nor does his draft Notice of Appeal.
Whilst the husband will no doubt consider this yet a further unjust and unfair outcome, the law is clear, as is the Court’s duty to observe well established legal principles.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman
Associate:
Date: 26 November 2009
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