On & On (No. 2) - [2008] FamCA 94

[2008] FamCA 94

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. MLF 7114 of 2001

IN THE MATTER OF:

MR ON (Husband)

and

MRS ON (Wife)

(No. 2)

SUPPLEMENTARY JUDGMENT
TO THAT OF 12 FEBRUARY 2008
DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing: 12, 18 February 2008
Date of Judgment: 22 February 2008

Appearances:

Mr Sweeney of counsel, instructed by Kennedy Wisewoulds, Solicitors, on behalf of the Applicant (wife)

The Respondent (husband) in person

IT IS NOTED that publication of this judgment under the pseudonym ON & ON is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Following a long and complex trial I delivered my reserved judgment in the substantive proceedings on 10 July 2007. (See ON & ON (No. 11) [2007] FamCA 677). The wife then made application for costs, as did the husband. For reasons explained in my further judgment in the proceedings delivered on 18 December 2007 (unreported) I prescribed a timetable for the filing of additional documents and written submissions by each of the parties. In doing so, I made it clear that given the husband’s disobedience of earlier orders made by me warranting my comment that he had “undisguisedly failed to abide the orders I made as far back as 14 August 2007” (par 18) that I would proceed on an undefended basis in the absence of any response from him.
The orders I made that day provided (inter alia) for the husband to file and serve his written submissions on or before 23 January 2008. Given that no documents were provided to me by court staff as having been filed by the husband and given his failure to comply with my previous orders on this issue I considered the matter and delivered my reasons for judgment on 12 February 2008 (see ON & ON [2008] FamCA 70). In summary, I ordered that the husband do pay the wife’s costs of and incidental to the substantive proceedings to be assessed on a lawyer and client basis and that his application for costs be dismissed.
After I had delivered my judgment, it came to light that the husband had in fact filed his written submissions on 24 January 2008 together with a lengthy affidavit and the wife had filed a reply to those submissions on 8 February 2008. Investigation as to why those documents had not been delivered to my chambers promptly revealed a sequence of poorly executed distribution of document procedures within the court. The breakdown in procedure was most regrettable and is now the subject of inquiry.
I have read the husband’s written submissions which, in substance, are addressed in quite strident criticism of my substantive judgment of 10 July 2007 with his re-visiting issues that were debated in court and were the subject of various findings in my judgment. Overall, the written submissions do not address the costs issue I am to decide arising from my findings and which, despite the husband’s veiled threats, have not been the subject of appeal.
Annexed to the written submissions of the husband are a series of documents without identification or description as to relevance. The submissions unnecessarily embark upon a continued vilification of the wife, a process of self aggrandizement, an obsessive narration as to the virtues of his own position together with some trenchant criticism of my substantive judgment. However, in coming to my determination, I make it plain that I have regard only to those matters relevant to my determination on the costs issue and liability therefore which commences with the findings I made on 10 July 2007.
The husband’s written submissions focus on various issues concerning the asset position of the parties at the time of separation and some events thereafter which were the subject of a considerable volume of evidence and upon which I made various assessments in my judgment. It is not to be lost in the many pages of self serving script relied upon by the husband that the agreed positions of both the wife and himself at trial was that they each contributed equally to the wealth accumulated by them as at the time of separation. It was the husband’s treatment of those assets thereafter that bore considerable discussion during the course of the trial.
The husband’s recapitulation of events in his written submissions, which had been the subject of my findings and not challenged by appeal, are quite irrelevant to the question I am to determine arising from the wife’s application filed on 3 August 2007 and his own application filed on 13 September 2007. The starting point is the undisturbed findings in my substantive judgment and not to agitate and challenge those matters in the manner that he has.
The document filed by the husband on 24 January 2008 and headed “Affidavit” is presented in a form variously offending Rules 15.08 and 15.09 of the Family Law Rules, 2004 but which, for the purpose of this judgment I will ignore, for I have come to expect nothing more from the husband’s documentation.
The husband deposed as true and correct his financial position as recorded in his document filed 15 January 2008 and also referred to a number of schedules (which appear to be ones annexed to his written submissions) in which he brings his financial position up to date. It appears from what he had to say that his present financial situation is difficult, but as I said in my judgment of 12 February 2008, that is but one of a number of considerations in the exercise of my discretion.
The husband again dealt with the prior offers made by him, relying upon his Form 1A Response filed on 29 November 2001 and an “enhanced” offer in writing dated 6 December 2001 which he addressed in terms of the benefits that he saw arising from it. On the other hand, given that the wife failed to take up the offer, it was the husband’s deposition that the only people who benefited from the wife’s silence:
“… are in this litigious, confrontationist court. The only criteria of the quislings masquerading as legal practitioners in this amoral environment is the ability to pay and how much can be squeezed out of (sic) litigant. To put a figure of $7M that this separation (sic) and have cost this family would be ultra conservative.”
It is from that point the husband addressed his subjective perspective of my substantive judgment with a somewhat vehement and choleric narration utterly irrelevant to the issue for my determination. In my view, his litany of complaints are matters proper for an appellate court and not pertinent to my task.
Suffice to say however that it is not an unknown phenomena that adverse findings made of a witness in a stressful trial such as this are viewed by that witness as judicial “denigration”, rejected and countered with self serving commentary whilst turning a blind eye to the reality and propriety of findings (for example, paragraphs 486, 488, 503 and 504 of the substantive judgment) made pursuant to the evidence.
In any event, having embarked upon his censorious assessment of my judgment, the husband finally addressed the relevant issue at the thirteenth page (of the unnumbered pages) and in that process reverted yet again to a criticism of certain findings made in the substantive judgment that were, he claimed, in error. This however, as I have earlier made clear is not the proper forum at which to address his alleged grievance.
In both of his documents filed on 24 January 2008 the husband does no more than repeat his earlier submissions as to prior offers without the presentation of any additional matters of assistance on the issue I have to decide. With a somewhat planetary leap in logic, the husband sought that all costs of the proceedings “that may be claimed or reserved”, including costs awarded following the appearance before Mushin J be set aside and that:
“2.That costs, including legal and other costs, of $2,000,000.00 be awarded to the husband marginally compensating for the losses the husband has suffered because of the refusal of the wife to accept the offer made on 6 December 2001.”
The wife’s written submissions in reply argue that the husband’s submissions do not satisfy any of the criteria set out in s 117(2A) of the Family Law Act 1975 (as amended) and otherwise referred to matters that were irrelevant when considering the two applications for costs. With that submission, I agree. On the issue of the conduct of parties, it was submitted that the arguments advanced by the husband did not particularise any conduct by the wife that would justify an order for costs in favour of the husband. With that submission, I agree.
On the issue of “prior offers”, it was submitted on behalf of the wife that the offer made on 6 December 2002 was subsequently withdrawn on 13 January 2003. The wife otherwise relied upon her submissions filed on 15 January 2008, emphasising the fact that she was not in a position shortly following the separation to seriously consider the husband’s offer in circumstances where independent valuations of assets then existing had not been undertaken, that discovery was still taking place and that full and frank disclosure had not been made by the husband.
It was further submitted on behalf of the wife that the only relevant offer made by the husband was his Minute of Final Orders Sought filed with his closing submissions. In that regard, the husband has been wholly unsuccessful in the proceedings and in contrast, the wife has been wholly successful.
I have given the husband’s written submissions and his further affidavit my consideration and in the circumstances I see no basis, for the reasons advanced in this supplementary judgment, to vary or interfere with the orders made by me on 12 February 2008.
I certify that the preceding 18 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.

Associate to Guest J