Ming and Leong - [2020] FamCAFC 10

FAMILY COURT OF AUSTRALIA

MING & LEONG

[2020] FamCAFC 10

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the wife applies for an extension of time to appeal – Where the wife must establish a substantial issue to be raised on appeal – Where this was the second trial of property settlement proceedings between the parties – Where the parties again failed to make full and frank disclosure and failed to provide necessary evidence – Where the trial judge found the assessment of a contributions-based entitlement favoured the husband – Where the trial judge found there was insufficient evidence to make an adjustment under s 79(4)(e) of the Family Law Act 1975 (Cth) – Where the wife asserted her absence at the delivery of the trial judge’s reasons amounted to an error on the part of the trial judge – Where the wife contends the trial judge made errors of fact and was misled by the husband – Where the state of the evidence provided by the parties and the failure by each party to provide full and frank disclosure seriously impeded the litigation process and the ultimate determination of just and equitable property settlement orders – Where the wife fails to establish any substantial issue to be raised on appeal – Where the wife’s delay is not adequately explained – Application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 93A(2)

Family Law Rules 2004 (Cth) r 22.03

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Halford & Halford [2019] FamCAFC 43
Pendleton & Pendleton [2018] FamCAFC 203

APPLICANT:

Ms Ming

RESPONDENT:

Mr Leong

FILE NUMBER:

CSC

2014

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

21 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 July 2019

LOWER COURT MNC:

[2019] FCCA 1876

REPRESENTATION

THE APPLICANT:

In person via video link from Cairns Registry

THE RESPONDENT:

In person via telephone

Orders

The Applicant Wife’s Application in an Appeal for an extension of time in which to appeal, be dismissed.
There be no order as to costs.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 91 of 2019
File Number: CSC 81 of 2014

Ms Ming

Applicant

And

Mr Leong

Respondent

REASONS FOR JUDGMENT

On 11 July 2019, a judge in the Federal Circuit Court of Australia (“the FCC”) made final property settlement orders in property proceedings between Ms Ming (“the wife”) and Mr Leong (“the husband”).
In summary, the trial judge found that the combined property interests of the parties, comprising two real properties situated in Queensland and one situated in Tasmania, had a combined gross value of $390,000 with combined mortgage debts totalling $60,000 producing an overall net value of $323,000.
The trial judge determined that assessment of contributions favoured the husband by a margin of 60 per cent/40 per cent due largely to the husband’s superior financial contributions both in bringing property into the marriage and in reducing debt in the lengthy post-separation period.
The trial judge did not, due to the lack of evidence filed by the parties, make any s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) adjustment (see [104]).
The orders made by the trial judge provide for, in summary:
a)The husband to retain one of the real properties in Queensland and the other real property in Hobart;
b)The wife to pay the husband a cash sum of $14,000 upon which payment the wife is to retain exclusively the other real property in Queensland;
c)That in the event the wife fails to pay the $14,000 the real property she would otherwise retain is to be sold; and
d)Each party otherwise retain any other property, including any superannuation interests, that each has.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that an appeal from orders must be filed within 28 days of the making of the orders. In this case that period expired on 8 August 2019.
It was not until 4 October 2019, some eight weeks after the appeal period had expired, that the wife filed this application to extend time to appeal.
On the hearing of this application on 17 December 2019, each party was

self-represented. The wife appeared via video link from Cairns whilst the husband appeared via telephone. Both parties are Chinese and English is not their first language, although they have lived in Australia for many years. In advance of the hearing, the husband advised the Registry that he did not require the assistance of an interpreter. For her part, the wife sought such assistance so the Court arranged for an interpreter in the wife’s first language of Mandarin to be available in Court to assist the wife.
On 31 October 2019, the Appeals Registrar made procedural orders requiring the filing of Written Submissions in advance of the hearing. Neither party filed written submissions but the wife attempted to file numerous documents including some seeking orders beyond the scope of this application. For example, an order that the husband pay her $30,000 in “child care service” and $87,600 in housekeeping allowance and “family violence compensation”. These documents were not formally accepted for filing by the Registry, as was explained to the wife. There is no basis for receiving these documents in exercise of the discretion conferred by s 93A(2) of the Act, to receive further evidence upon questions of fact, as none of the criteria laid down in CDJ v VAJ (1998) 197 CLR 172 is fulfilled.

Applicable principles

In Pendleton & Pendleton [2018] FamCAFC 203 I summarised, by reference to authority, the principles governing the exercise of the discretion to extend time to appeal as follows at [6]–[9]:
6.The power to extend time is provided in r 1.14 of the Rules. The principles governing the discretion to exercise that power are well established in many decisions of the Full Court. Some recent examples include Bant & Clayton [2014] FamCAFC 108; Chong & Chong [2016] FamCAFC 211; Manotis & Manotis (No 2) [2016] FamCAFC 232; Harrison & Ward [2017] FamCAFC 99; McMillan & McMillan [2017] FamCAFC 88 and Harrison & Ward [2018] FamCAFC 136.
7.Each of those decisions place emphasis upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 (“Gallo v Dawson”) in which his Honour said of an equivalent rule of court:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
8.It can be seen that in Joshua v Joshua (1997) FLC 92-767 at 84,440 that Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo v Dawson, the significance of the consideration as to whether the applicant establishes a substantial issue to be raised on appeal. There, his Honour observed:
…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
9.The determinative question then, on this application, is whether an extension of time is necessary to enable the Court to do justice between the parties and to prevent injustice – in this connection the Court must weigh the prima facie entitlement of the respondent to retain the benefit of the judgment and the desirability of finality of litigation (see Tormsen and Tormsen (1993) FLC 92-392).
In Halford & Halford [2019] FamCAFC 43, Murphy J said this after citing the well-known passage from Gallo v Dawson (1990) 93 ALR 479:
8.A successful application for extension of time denies the respondent the benefit of a judgment which, in the ordinary course of events, is unimpeachable upon the expiration of the time limit for filing an appeal. Thus, a successful application for extension of time speaks of injustice for the respondent. The rejection of an application for extension of time denies the applicant a fundamental right within the modern judicial system, namely the right to correct error founding the orders as made. Thus an unsuccessful application to extend time speaks of injustice for the applicant.
9.The tension thus created founds judicial statements that, in considering an application for extension of time within which to appeal, “it is always necessary to consider the prospects of the applicant succeeding in the appeal” and that “[t]he grant of an extension of time … is not automatic”.
10.While the discretion is at large, the applicant establishing a substantial issue to be raised on an appeal and satisfactorily explaining the default and any subsequent delay have typically been emphasised as central to the exercise of the discretion.
(Footnotes omitted)

Factual context – history of proceedings/conduct of the parties/nature of the litigation

The wife was born in 1970 and is now 49 years of age. The husband was born in1963 and is now 56 years of age. The parties married in 1996, and finally separated in September 2012. Their marriage produced a son who was born in 1998 and thus attained his majority in 2016.
The history of the litigation of property settlement proceedings between the parties is protracted.
On 15 June 2015, the husband filed an Initiating Application for property settlement in the FCC. Those proceedings advanced to a trial before Judge Coker in November 2016. Notably, the evidence before Judge Coker was found by his Honour to be unsatisfactory and neither party impressed his Honour as a witness. In reasons for judgment delivered on 19 January 2017, Judge Coker observed:
23.I had the opportunity of seeing both the husband and the wife in the witness box. Neither was an impressive witness. They were determined, despite my best efforts, to argue with each other, though I must say that my impression was that the wife was more determined in her view, to demean the husband, to minimise his contributions during 16 years of marriage, and to suggest that the husband had acted in a manner which would be suggestive of deceitful or deceptive conduct, particularly when it came to moneys.
24.The impression that I gained was that there was a degree of distrust between the parties which was almost palpable. Each threw allegations at the other with regard to hiding money, sending money overseas to family, concocting evidence with regard to the state of their health or the behaviours of one or the other, the wife particularly suggesting that the husband had perpetrated horrendous domestic violence against her, and the husband responding that if any domestic violence occurred, it was perpetrated by the wife upon him.
25.On a number of occasions during the hearing, the exchanges between the parties in both English and Mandarin became nothing less than an argument and a yelled exchange between the husband and the wife. There was no trust, no courtesy and no respect between the parties.
26.But, from my own perspective, perhaps of greatest concern was the fact that there was no real evidence upon which I could make findings one way or the other…
…
32.…Unfortunately ... both of the parties had acted less than appropriately when any disclosure was required and, quite frankly, there was little reliance that could be placed upon the evidence of either of the parties.
33.The determination of this matter remains enormously difficult. The wife suggests that there are funds secreted away by the husband, that there are superannuation entitlements held by the husband that have not been disclosed, and that some significant adjustments should be made in relation to a property settlement, so as to ensure that there is a just and equitable resolution of property matters between the husband and the wife.
34.As I have indicated, however, there is little evidence if anything that is of assistance in respect of a determination of a settlement to be effected between the parties…
The reasons of Judge Coker are replete with further examples of findings to the effect that, in summary, the trial judge was not assisted because of a lack of evidence provided by the parties and the failure by both to provide full and frank disclosure.
The property settlement orders made by Judge Coker on 19 January 2017 were appealed by the husband. That appeal, heard by me as a single judge pursuant to s 94AAA(3) of the Act, succeeded on the basis that the trial judge had failed to take into account the existence of some liabilities of the parties, or either of them, which were in evidence before the trial judge, totalling about $100,000 over and above the amount of liabilities the trial judge considered.
It bears emphasis that this was the only basis for success of the appeal from Judge Coker. None of his Honour’s other findings or his Honour’s characterisations of the parties’ conduct in the litigation and as witnesses were the subject of any challenge on appeal.
The proceedings were remitted for rehearing by another judge in the FCC and thus the trial before the trial judge was the parties’ second trial of the proceedings.
It is clear that the trial judge encountered similar difficulties as previously outlined by Judge Coker as regards the lack of relevant evidence provided by the parties; the absence of full and frank disclosure by the parties; and in short the same difficulties encountered as Judge Coker in determining the proceedings. For example, noting that orders were made for the parties to make disclosure the trial judge recorded that ordered disclosure did not occur ([29]). The trial judge also noted that valuations needed to be known of relevant assets, yet such information was not made available by the parties ([30] and [31]). The trial judge records that, in the course of the trial, each party raised questions about bank records or statements of the other party but neither party disclosed these ([32] and [33]). The trial judge noted that neither party was willing to pay for formal valuations or updated valuations for the trial yet the parties would not agree upon valuations. It was on that basis that the trial judge adopted the historical valuations for the properties ([37] and [38]) and ultimately obtained the parties’ agreement to that course.
The same problems so far as evidence is concerned pervaded the trial judge’s capacity to make an assessment of contributions. At [42], the trial judge noted:
42.There is a fundamental requirement to establish contributions, and I repeat that which I referred to earlier, these parties have given little by the way of assistance to the court in their evidence, much of which contains general and irrelevant statements, dispute and assertions, as well as a general unco-operative approach to valuations of their property. This is not a coercive jurisdiction and the court cannot force them to pay for valuations.
In the first trial before Judge Coker, the wife advanced the general assertion that the husband had substantial funds in bank accounts. In summary, Judge Coker was not satisfied that that was established on the evidence. This assertion was repeated by the wife in the case before the trial judge. However, the trial judge made findings that documents produced by the wife did not establish that the husband had the amounts she claimed the husband had in bank accounts and the trial judge made a specific finding that the husband had used funds to reduce debts in the post-separation period ([52]–[57]).
Likewise, the wife asserted that the husband had some superannuation interest but the trial judge found that there was no evidence to support that assertion ([120]).
In summary, it can be seen that in both the first trial before Judge Coker and the second trial before the trial judge, the state of the evidence provided by the parties allied with the fundamental failure by each party to provide full and frank disclosure seriously impeded the litigation process and the ultimate determination of just and equitable property settlement orders.

Does the wife establish a substantial issue to be raised on appeal?

Annexed to the wife’s affidavit filed on 4 October 2019 in support of this application is a proposed Notice of Appeal. That document sets out the following two grounds of appeal:
1.I could not attend the court hearing on 11 – 07 – 2019, because I was sick on the day. Also I was not contacted on my phone number. A wrong number would have be dialed
2.[Mr Leong] have presented failse evidences and mislead the judge made a wrong judgement.
(As per the original)
With respect to stated Ground 1, leaving aside that this is not a proper ground of appeal at all, it must be observed that the date to which this ground refers, 11 July 2019, was the day on which the trial judge delivered his Honour’s orders and reasons for judgment. That is, there was no hearing on 11 July 2019 for the purpose of the Court receiving further evidence or submissions. The sole purpose of that date was for the purpose of the trial judge making orders and providing reasons for judgment.
There is no articulation in the wife’s written material in support of this application as to how her inability or failure to attend via telephone, whilst the trial judge delivered reasons for judgment, could provide any foundation for appealable error on the part of the trial judge.
In oral argument of the application, it appeared that upon this being explained to the wife she did not pursue this complaint. However, in case that is some misinterpretation of the wife’s position on my part, I simply record that assuming the wife to have maintained this complaint, there is no substance in it.

As for proposed Ground 2, it is first apparent that the ground as stated lacks particulars or specifics of the asserted error or errors. It appears to be a challenge only to the trial judge’s acceptance of the husband’s evidence (to the extent the husband’s evidence was accepted in preference to that of the wife) in his Honour reaching conclusions different to the conclusions sought by the wife.
Given that the wife was self-represented on the hearing of this application, and that English is not her first language, the Court made efforts during the hearing to have the wife elaborate upon the proposed complaints or contentions the wife could possibly advance by way of errors on the part of the trial judge. What that elicited was, in my judgment, no more than a regurgitation of the same arguments the wife sought to advance, unsuccessfully, both in the trial before Judge Coker and in the trial before the trial judge.
It bears emphasis that it was the husband who appealed from the determination of Judge Coker on the basis that Judge Coker had failed to take into account some liabilities that were in evidence before his Honour. However, Judge Coker made findings inconsistent with the wife’s case and there was no appeal by the wife from Judge Coker’s determinations. For example, Judge Coker rejected one of the central propositions of the wife to the effect that the husband had substantial funds in bank accounts available to him which he had not properly disclosed.
The wife nevertheless repeated the exercise in the trial before the trial judge of advancing such a case but, again, did not provide any sufficient evidence to substantiate such a case on the findings made by the trial judge. The trial judge rejected the wife’s contention that the husband has approximately $400,000 hidden in bank accounts stating:
52.The wife seems to have the view that the husband has something like $400,000 tucked away in five bank accounts.
53.She produced documents indicating that the husband had various bank accounts with large amounts of money, but these were old accounts and questioning did not throw light on them.
54.But adding up what is there I cannot see existing $400,000 as claimed by the wife.
55. The husband said he had closed those accounts.
56.There was no evidence of that but he stated he used monies to pay down debt over the years and the parties agreed debt had been reduced, with the wife not contributing to such debt reduction.
Given the earlier findings of Judge Coker, these findings of the trial judge and the absence of anything provided by the wife as to put such findings into question, I am not satisfied that this issue constitutes a substantial issue to be raised on appeal. That is, nothing is identified by the wife to suggest any real prospect of challenging the trial judge’s findings on this issue on appeal.
The wife also argued at the trial before the trial judge (as she had previously done, without success, in the trial before Judge Coker) that the husband was in receipt of significant and undisclosed funds from renting the Hobart property. In rejecting this allegation, the trial judge observed:
59.The husband states he saves his money as a cleaner to pay down debt, as well as using rent from the [Hobart] property. There is no evidence he has received $110,000 in rent as referred to by the wife. I simply do not know the basis of her assertions.
…
117.… There was also no evidence that the [Hobart] house had received $110,000 in rent as the wife claimed.
At [18] to [21], the trial judge records that in the absence of any agreement as to the pool of assets and liabilities of the parties, the trial judge himself constructed a schedule of these which he put to the parties and upon which they eventually agreed. Whilst the position is far from clear, to the extent that the wife’s proposed second ground of appeal seeks to challenge the trial judge’s findings regarding the parties’ property pool, it is without merit given the absence of issue being raised by the wife at trial with respect to the schedule constructed by the trial judge, as is recorded in the reasons.
Further efforts to explore with the wife, on the hearing of this application, elaboration of her complaints, beyond those identified in the two grounds referred to, elicited that the wife would simply seek to re-argue on appeal the same arguments she has raised, and which have been dealt with, in two trials at first instance.
In my judgment, the wife does not establish that there is a substantial issue to be raised on appeal. Whilst that conclusion dictates the result that the application must fail I will, for completeness, deal with other considerations relevant to the exercise of the discretion.

Explanation for delay

The wife’s affidavit filed in support of her application annexes a medical report dated 8 July 2019 recording that on that date the wife presented to the Hospital Emergency Department but was “systemically well, with no fevers” though her “CXR” (presumably a reference to a chest x-ray) was reported as “suspicious for a possible early right middle lobe pneumonia, however it has not been formally reported”. Notably, that record records the wife presenting on 8 July 2019 with a report of a “4 day history of productive cough and coryza”.
In the course of oral argument, the wife referred to another medical certificate she had but its content, like the certificate referred to, did not establish that the wife was medically precluded, by reason of ill health, from attending to the filing of a Notice of Appeal throughout the period for filing an appeal.
In short, the wife does not satisfactorily explain why she did not file a Notice of Appeal within the 28 day appeal period, nor is there any satisfactory explanation of why it is that a further approximately eight weeks elapsed after the appeal period had expired before the filing of this application to extend time.
Obviously enough, the delay here has a particular context when the subject proceedings were commenced as long ago as 2015 and the proceedings have progressed through two trials in the FCC.
Whilst the husband did not identify specific prejudice occasioned to him by the wife’s delay, his submissions were to the effect that the stress and inconvenience of yet another trial is a relevant consideration and is not justified.
The discretionary consideration of the desirability of finality of litigation looms large in this context and in the circumstances of this case. Moreover, it is to be noted that in advance of each of the two trials conducted, directions and orders were made designed to have both parties provide proper disclosure, and neither party complied with such orders. There is no reason to suppose that if this matter proceeded to an appeal and the appeal resulted in the proceedings being remitted, that the trial judge dealing with the third trial of these proceedings would enjoy any better experience, in terms of evidence or assistance provided by the parties, than has occurred to date.

Conclusion

In my judgment the applicant wife does not discharge the onus she bears to demonstrate that the refusal of her application for an extension of time would constitute an injustice.
In my judgment, there would be a greater injustice, and indeed a prospective waste of public resources, to allow these proceedings to continue by the grant of this application.
For these reasons, I order that the wife’s application for an extension of time in which to appeal be dismissed.
As the husband incurred no legal costs with respect to this application I will further order that there will be no order as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 January 2020.

Associate:

Date: 21 January 2020