Parmenter & Louwen
[2024] FedCFamC1A 5
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Parmenter & Louwen [2024] FedCFamC1A 5
Appeal from: Parmenter & Louwen [2023] FedCFamC1F 739 Appeal number: NAA 272 of 2023 File number: CSC 452 of 2021 Judgment of: ALDRIDGE J Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant sought an extension of time to file Amended Notice of Cross-Appeal and Summary of Argument on the date for compliance – Applicant has taken no steps to prepare the documents – Applicant has had difficulties with medical issues and weather– No evidence of the effect of such difficulties on compliance – No adequate evidence explaining non-compliance – Notice of Cross-Appeal fails to identify error on the part of the primary judge – Cross-appeal has no merit – Application dismissed – Cross-appeal summarily dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 90SM and s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Parmenter & Louwen (No 2) [2023] FedCFamC1F 918
Number of paragraphs: 76 Date of hearing: 30 January 2024 Place: Brisbane (via video link) The Applicant: Self-represented litigant Solicitor for the Respondent: Preston Law ORDERS
NAA 272 of 2023
CSC 452 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LOUWEN
Applicant
AND: MS PARMENTER
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
30 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 22 December 2023 is dismissed.
2.The cross-appeal is dismissed.
3.The applicant will pay the respondent’s costs fixed in the sum of $2,245.17 within 28 days.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parmenter & Louwen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
INTRODUCTION
This is an Application in an Appeal seeking an extension of time in which to file a Summary of Argument and Amended Notice of Cross-Appeal.
On 31 August 2023 a judge of the Federal Circuit and Family Court of Australia (Division 1) made a suite of property settlement orders between the parties pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Family Law Act”).
Ms Parmenter (“the respondent”) was dissatisfied with the outcome of the proceedings and filed a Notice of Appeal on 28 September 2023. That appeal was discontinued by a Notice of Discontinuance filed on 21 November 2023.
Mr Louwen (“the applicant”) filed a Notice of Cross-Appeal on 13 October 2023.
On 6 November 2023 an appeal judicial registrar made a number of directions to prepare the appeal for hearing. They included:
10.The [applicant] file and serve [an] amended Notice of Cross-Appeal by 4.00pm on Friday 22 December 2023 which details at Part E in succinct numbered grounds of appeal the error/s of law or principle asserted.
11.The [applicant] file and serve the summary or argument and list of authorities upon which they wish to rely in relation to both the Notice of Appeal filed 28 September 2023 and the Notice of Cross-Appeal filed 13 October 2023 by 4.00pm on Friday 22 December 2023.
The appeal was subsequently listed for hearing today.
Neither of these directions was complied with. On 22 December 2023 the applicant filed his Application in an Appeal seeking:
…extension of the cross appeal to engage a barrister and solicitor. Please move the hearing to mid April 2024.
If an extension cannot be granted, please allow my existing evidence in [its] present form.
The affidavit in support consisted only of the following:
1.We were [subjected to a weather event] in [City J]. We lost power and internet and most of my paperwork was destroyed.
2.I contacted Rochelle Ryan by email and received a reply that she would not be at work until 2024.
(Applicant’s affidavit filed 22 December 2023)
That application is listed for hearing today.
On 25 January 2024 the respondent filed a Response to an Application in an Appeal seeking the dismissal of the cross-appeal because of the default in compliance with the orders pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
On 29 January 2024 the applicant sought to file a further affidavit. There was no objection to that being granted this morning and leave was given to the applicant to rely on the affidavit.
In that affidavit he deposes that:
·He has not found a property to rent due to the rental crisis.
·He rented two storage sheds for furniture and belongings.
·A lot of his paperwork was destroyed by weather events.
·He is presently house-sitting.
·On 20 December 2023 he spoke to a solicitor (not the one referred to in the first affidavit) who said it would take six weeks to brief a barrister and that the applicant should obtain an adjournment.
·In late 2023 the house in which the applicant was house-sitting lost power and internet for two weeks.
·Due to stress, his heart and lungs has lost full function and he has been diagnosed with a medical condition with which he tells me today he has struggled for some years.
The applicant did not annex any medical reports but annexed documents showing that he had an appointment at a medical clinic at City J Hospital in January 2024 and has an appointment at another medical clinic at City J Hospital in February 2024. In early 2024 a medical professional at that hospital signed a referral for a diagnostic test with urgent review.
It may be accepted then that the applicant has some medical issues but the precise nature and extent of them and how they might impact his ability to comply with the orders is not clear.
APPLICATION FOR EXTENSION OF TIME
In dealing with an application for an extension of time the Court will follow the approach outlined by McHugh J in Gallo v Dawson (1990) 93 ALR 479. Generally, the Court will look to see whether there has been an adequate explanation of the delay and have regard to the merit of the appeal.
It is well established that an appeal which has been regularly commenced, as the cross-appeal has been in this case, should not be lightly defeated by want of compliance with a procedural order. The Court will generally not weigh in the balance the merits of the proposed appeal, where that appeal has some merit. Where, however, it is apparent that the grounds of appeal have no prospect of success, it would be futile to extend time for compliance (Jackamarra v Krakouer (1998) 195 CLR 516).
The aim is to do justice between both parties.
The chronology of the applicant’s difficulties in relation to weather events is difficult to follow from his affidavits. However, he explained it in the following way this morning:
·His lease of his rental accommodation ended in late November 2023 which required him to live with friends.
·He was doing so in City J when, due to the weather, the premises he was staying in lost power and internet in mid-December 2023.
·Soon after the applicant travelled to Suburb RR to house sit a property for a couple of weeks. That property lost power and internet for two weeks from late December 2023, again due to inclement weather.
Of course, by 25 December 2023, the Amended Notice of Cross-Appeal and Summary of Argument were already overdue. However, it can be accepted that difficulties were encountered earlier in December 2023 due to the weather in City J.
Accepting that the applicant was affected in that way, it is necessary to look at the effect of these difficulties on the applicant. Unfortunately, his brief evidence does not assist.
The appeal judicial registrar prepared the Appeal Book in electronic form and made it available to the parties on 6 November 2023. Similarly, the transcript was filed and uploaded on the same date.
The applicant does not say when he started to prepare the Summary of Argument or what stage of preparation it had reached at the time of the weather event in City J. One would have expected that it would have been in preparation because it was due to be filed on 22 December 2023. However, it is plain from what the applicant said today that he himself has no intention of preparing the Amended Notice of Cross-Appeal and Summary of Argument and indicated that should his application be successful, he will immediately engage solicitors and counsel to do so.
It follows, it seems to me, inevitably, that the applicant has to date taken no steps himself to prepare those documents. He still has not done so despite receiving a letter from the solicitors for the respondent on 19 January 2024. That letter reminded the applicant that although he may have lost his paperwork, all of the relevant material he needed to prepare the Amended Notice of Cross-Appeal and the Summary of Argument was available electronically from the Commonwealth Courts Portal. Of course, there were some difficulties, as I have said, with access to the internet. The letter continued:
f.There has clearly been a substantial period of time that has elapsed since the 22 December 2023 and to date (and further time which will elapse between now and 30 January 2024). You have offered no explanation in your Affidavit as to why you are not in a position to at least take the steps that were otherwise ordered of you (albeit late) between 22 December 2023 and 30 January 2024.
Substantive Cross-Appeal
Assuming that you take no steps between now and 30 January 2024 to remedy your non-compliance with the Order and/or to provide further evidence in respect to your Application in an Appeal, our client will be submitting that the Court ought to take the following approach:
1. Order that your Application in an Appeal be dismissed.
2.That your Cross-Appeal be dismissed pursuant to Rule 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a copy of which is enclosed.
(Annexure “[MP]-1” to the respondent’s affidavit filed 29 January 2024) (emphasis in original)
Despite this clear warning, the applicant has neither prepared an Amended Notice of Cross-Appeal or a Summary of Argument nor produced any evidence explaining why he has not done so.
When asked when he would be in a position to do so, his answer was that if his application was successful he would immediately transfer funds from the United States to Australia to enable him to instruct solicitor and counsel to do it.
The applicant gives evidence of two casual approaches to lawyers as described earlier, neither of which is consistent with a serious intention actually to brief and instruct lawyers. Whichever date is picked, whether it be the delivery of judgment on 31 August 2023, the filing of the Notice of Appeal on 28 September 2023, the filing of the Notice of Cross-Appeal on 13 December 2023 or the making of the relevant directions on 6 November 2023, the applicant has had more than sufficient time to engage lawyers. He still has not done so today.
Further to this, it is apparent that the orders of the primary judge were complied with on 30 October 2023. Those orders required the payment of $1,796,972 to the applicant.
At least part of that sum was paid by a cheque from the solicitor’s trust account in the sum of $600,000 which has been cashed. The applicant himself told me that from those funds he sent some USD700,000 to the United States.
There was some difficulty in understanding what happened to the $600,000. The applicant initially said it was taken by the Australian Taxation Office to satisfy an outstanding debt pursuant to a director penalty notice. The solicitor for the respondent said that the position was that one of the companies now under the control of the respondent had paid that debt. In response, the applicant seemed, as far as I can see, to accept that at the very least, some part of that fund remained.
There is therefore no doubt that at all relevant times the applicant has had the means to engage solicitors and barristers but has chosen not to do so. That is obviously a tactical decision because he told me there would be no point in doing so unless his application was successful. I am not satisfied that the applicant has adequately explained why it is today either he or lawyers engaged by him have not prepared the Amended Notice of Cross-Appeal or Summary of Argument or explained why he has been unable to do so.
CROSS-APPEAL
It is then necessary then to turn to the Notice of Cross-Appeal.
Ground 1
The first ground is:
On the day of the trial [the applicant’s] solicitor and barrister (provided by Legal Aid) whom were on record as my representatives, failed to appear. This rendered [the applicant] defenceless. [The applicant] sought an adjournment and it was not given.
There are many difficulties with this ground leaving aside the possible application of s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). There is an issue yet to be determined as to whether that section extends to an appeal against final orders where one of the grounds is an error in failing to grant an adjournment.
The first difficulty is that the ground does not identify error on the part of the primary judge. The fact that a decision was made not to grant the adjournment does not mean that it was wrongly made.
Secondly, the ground overlooks what actually happened.
At some time before the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1), orders were made under s 102NA of the Family Law Act which had the effect of preventing both the applicant and the respondent from personally cross-examining each other.
The matter was originally listed for hearing on 7 March 2023. The applicant was represented by a barrister and solicitor who were retained only to make an adjournment application. The basis of it was that the applicant wished to seek legal aid funding under the scheme to assist litigants against whom an order under s 102NA has been made.
The application was successful, although largely for other reasons. The hearing was adjourned to 12 June 2023 and, according to the primary judge, the applicant was told that “he should engage with Legal Aid Queensland and the s 102NA cross-examination scheme as quickly as he could” (at [4]).
The applicant appeared for himself on 12 June 2023 and sought a further adjournment which was refused. His Honour said that the applicant was “unable to demonstrate that he had engaged with Legal Aid Queensland and the s 102NA cross-examination scheme in a timely manner following 7 March 2023” (at [5]).
Before me this morning, the applicant said that he had in fact engaged two lawyers to appear for him but when he arrived at court they simply had not turned up. That is not quite consistent with the transcript, which I have had regard, as well as the decision of the primary judge in the adjournment application (Parmenter & Louwen (No 2) [2023] FedCFamC1F 918 (“Parmenter (No 2)”).
It appears from the transcript and those reasons that the applicant had in fact engaged lawyers to appear for him at the hearing. There was a letter dated 8 May 2023 from a firm that said “we have been appointed by Legal Aid Queensland to act on your behalf in relation to your family law matter, under the Cross Examinations Scheme” (Annexure “1” to the applicant’s affidavit filed 9 June 2023). Those lawyers filed a Notice of Address for Service on 8 June 2023. The primary judge found that due to the discrepancy in dates it was likely that the applicant received the letter on 8 June 2023 (Parmenter (No 2) at [5]).
The following day, the Friday before the hearing, those lawyers wrote to the applicant and said there was a “mix-up about the trial dates” and “now that we know it is a three-day trial, and neither the barrister nor [solicitor are] available for three days at this stage, … Legal Aid has appointed a new law firm to represent you” (Parmenter (No 2) at [6]). Those lawyers remained on the record the following Monday and his Honour was quite properly critical of their discourtesy and unprofessional conduct in not appearing.
An issue then arose as to when the applicant had sought the assistance of the s 102NA scheme and the primary judge was told it was months ago. That led to an adjournment where documents were obtained from Legal Aid Queensland that demonstrated there had only been an application for legal aid in relation to a criminal prosecution. His Honour then found he could not be satisfied that there had been a recent application for legal aid that remained unresolved and concluded that the late engagement of those lawyers that had gone on the record was part of the difficulty.
His Honour then weighed the difficulties that would be faced by the applicant proceeding without lawyers against the procedural unfairness that would be obtained by the other party to the proceedings who had twice come to court ready to run their case. His Honour then took into account the fact that the applicant did not offer to pay the costs of the respondent that would be thrown away by the adjournment, so the adjournment was declined.
In order for an appeal to be successful under this ground the applicant would need to show an error.
An application for an adjournment is a quintessential exercise of discretion. Appeals against exercises of discretion are governed by principles set out in House v The King (1936) 55 CLR 499 at 504–505:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
It does not appear to me that his Honour took into account any extraneous matters or failed to take into account anything his Honour was required to take into account in the circumstances of the case. Although the outcome was adverse to the applicant, the decision cannot be seen to be unreasonable or manifestly wrong. Despite the applicant saying many times that he had the right to a lawyer and forcing him to proceed without a lawyer was unfair, that does not make it so. There was of course the potential unfairness to the other party to be considered as well. I do not see that this ground of appeal has any prospect of success whatsoever.
Ground 2
Ground 2 provides:
There are large number of fallacies the [respondent] had submitted into evidence were taken as fact because the [respondent] was not allowed to be cross examined. This prevented a fair story for [the primary judge] to rule on.
There is an immediate difficulty in that it is not correct to say that the respondent “was not allowed to be cross examined”. She was, but not by the applicant. That was due to the earlier order under s 102NA. The applicant did not ask the primary judge to set aside that order or suggest there were proper grounds to do so.
Secondly, the ground, on its face, is not a competent ground. It is merely an assertion that the evidence of the respondent was false.
The ground goes on to give further “particulars” by reference to parts of the reasons.
At [63] the primary judge deals with non-disclosure of certain items by the applicant. The primary judge found that despite requests for information about these specific items that had been made as early as July 2021, the applicant did not provide the relevant disclosure or deal with these matters in his affidavit.
His “particulars” now attempt to explain what happened to the items referred to in [63].
In order to succeed on this aspect of the ground, the applicant would need to obtain leave to adduce this evidence in the appeal. He would face great difficulties in doing so because the evidence was available to him at the time of the hearing and it was not disclosed then or included in his affidavits (CDJ v VAJ (1998) 197 CLR 172 at [55]).
In any event, cross-examination of the respondent was not the means to adduce this evidence, rather it was the evidence of the applicant himself.
The next “particulars” relate to [27]–[43] which deal with the value of two entities operated by the parties. One, C Pty Ltd, acted, amongst other things, as a booking agent. The other, D Pty Ltd, provided the service. The applicant’s complaint is that the relevant trips “could have been booked with [TT Company]” (a third entity) instead of C Pty Ltd (Notice of Cross-Appeal filed 13 October 2023). According to the applicant “a person that is versed in cross examination would have explained the math better” leading to a finding that D Pty Ltd was much more valuable than found to be by the primary judge (Notice of Cross-Appeal filed 13 October 2023).
I do not understand the logic of the above complaint. I do not see, if there was such a point, why the applicant himself could not make it in submissions or cross-examination of the expert valuer. He was, after all, one of the operators of the business and had intimate knowledge of these things.
In reality however, this ground is a complaint that there should have been an adjournment for the applicant to be legally represented.
The next “particulars” is a complaint about orders made on 6 July 2021. The appeal is not against those orders and no more need be said.
The next “particulars” deal with [54] which simply records that in late 2022 the parties were unable to secure a partial property settlement. His Honour did not ascribe blame to anyone in that paragraph. The applicant submitted that this was due to the respondent’s deliberate default who thereby “kept the [applicant] from obtaining legal representation” (Notice of Cross-Appeal filed 13 October 2023). Even if that is so, it does not identify error on the part of the trial judge.
The remaining “particulars” are not linked to any paragraphs of the reasons.
Particular 6 refers to the contributions finding and asserts “[the primary judge] did not have the benefit of testimony which disproves his assumption that $1,200,000 was contributed by the respondent for “[region] closure” which caused [the applicant’s] … business to cease” (Notice of Cross-Appeal filed 13 October 2023).
Particular 7 refers to evidence the applicant could not call “because all the records were in [his] office in [his] safes and drawers” (Notice of Cross-Appeal filed 13 October 2023).
Particular 8 refers to CCTV footage held by the respondent which was not before his Honour.
Failure to call evidence, for whatever reason, does not identify error on the part of the primary judge.
Particular 9 makes a number of complaints about the respondent’s use of the family home since 2021, which she ultimately received under the final orders. I do not understand how that points to error by his Honour.
Particular 10 complains about the unfairness of the orders, particularly in reliance on matters which were not the subject of evidence or, if there was evidence, findings by the primary judge.
As to that unfairness, his Honour found that the property of the parties should be divided so that the applicant receive 45 per cent and the respondent 55 per cent.
The business of the parties was operated through a number of entities. The primary judge found that for them to continue to be viable they must be held by one person (at [148]). For the reasons given at [149] and [150] his Honour determined that this should be the respondent.
The effect was that the amount of property to be retained by the applicant was largely to be the payments of $1,796,972 as described earlier.
On the face of his Honour’s reasons, that outcome does not appear to be unreasonable or plainly wrong. Of course, there is no ground of appeal to that effect, but that seems to be the substance of the last particular. Accordingly it is extremely difficult to find any merit whatsoever in the Notice of Cross-Appeal.
DISPOSITION
Taking all these matters into account I am not persuaded that there should be a further adjournment of the appeal or an extension of time in which to lodge an Amended Notice of Cross-Appeal or Summary of Argument.
The applicant has not complied with an order of the Court. The cross-appeal has not been shown to have any merit and an extension of time to remedy the default has been refused. It follows that the cross-appeal should be summarily dismissed.
The orders of the Court therefore are that the Application in an Appeal filed 22 December 2023 is dismissed. The cross-appeal is dismissed.
COSTS
An application was made that the applicant pay the respondent’s costs of this application. There is no challenge to the quantum of these costs.
The application and the cross-appeal have been wholly unsuccessful. There is no reason why these costs ought not be paid. The applicant will pay the respondent’s costs of the Application in an Appeal and the cross-appeal fixed in the sum of $2,245.17 within 28 days.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 5 February 2024
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