S and S

FAMILY COURT OF AUSTRALIA

S AND S [2006] FamCA 465

APPLICATION – For extension of time to appeal orders made in property proceedings – Husband approximately nine months out of time – Where husband found by trial judge to have failed to make full and frank disclosure of his financial position – Where husband undertook to defeat or frustrate the wife’s s 79 claims – Where error made by trial judge in original orders and subsequently amended under the “slip rule” – Where husband not heard on the “slip rule” application – On balance overall prejudice to husband of refusal of leave marginally outweighed prejudice to wife – Leave to appeal granted.

Family Law Act 1975 (Cth), s 94

Gallo v Dawson (1990) 93 ALR 479

McMahon (1976) FLC 90-038

Tormsen (1993) FLC 92-392 at 80,017

W and B [2002] FamCA 109

APPLICANT: RS

RESPONDENT: KS

FILE NUMBER: SYF 3549 of 2003

APPEAL NUMBER: EA 80 of 2005

DATE DELIVERED: 2 June 2006

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 13 September 2005, 25 October 2005 and by way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 September 2004

LOWER COURT MNC: [2004] FamCA 1371

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Serisier

SOLICITORS FOR THE RESPONDENT: Greg Alfonzetti, Solicitor

ORDERS

That leave is extended to 23 June 2006 for the husband to file an appeal against the orders of Mullane J of 13 September 2004 as varied by orders made on 7 December 2005.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA 80 of 2005

FILE NUMBER: SYF 3549 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an Application in a Case by the husband filed on 11 July 2005 in which he seeks an extension of time to appeal orders made by Mullane J on 13 September 2004. I am hearing this application in my capacity as a single judge of the Appeal Division. The orders the subject of this application were made after delivery of judgment in property proceedings between the husband and the wife. I set out the orders made on 13 September 2004 as amended on 7 December 2005 later in my reasons.
At the commencement of the hearing I was advised other parties had been joined to the proceedings, namely JPL (‘the second respondent’) OPL (‘the third respondent’), MS (‘the fourth respondent’) and JS (‘the fifth respondent’). The second to fifth respondents were joined to the proceedings by order of Mullane J on 13 April 2005.
The husband is not legally represented in this application, nor was he legally represented before the trial judge. No draft Notice of Appeal has been provided by the husband in accordance with the Family Law Rules2004 (‘the rules’) but he does attempt to set out his challenges to the trial judge’s orders in his affidavit filed in support of the application. The wife is represented by Mr S, solicitor, formerly of counsel, who orally opposed the husband’s application.
I was advised at the commencement of the hearing before me that notice of the application had not been given to the second to fifth respondents. On 13 September 2005 I made a number of procedural directions including service of the husband’s application and affidavits in support on all respondents.
No respondent, other than the wife, has sought to file any material or to be heard in respect of the husband’s application.
The matter was listed before me again on 25 October 2005. From the commencement of the application it was conceded by the wife’s counsel that there were a number of mathematical errors in the trial judge’s reasons for judgment, and Mr S invited the husband to consent to orders under the ‘slip rule’ to correct the errors. I adjourned the matter on 13 September 2005 so that the husband could obtain legal advice, and on 25 October 2005 I further adjourned the application so that the parties could relist the matter before Mullane J so he could determine whether those errors may, or may not, be amenable to correction pursuant to the ‘slip rule’ (r 17.02 of the rules). I made orders for the filing of written submissions by the husband and wife after delivery of any judgment as a result of the foreshadowed slip rule application.
On 7 December 2005 Mullane J made amendments to figures set out in his reasons for judgment delivered on 13 September 2004 and amended
O 1 of his orders of that date to provide that the husband pay the wife $504 876 rather than the sum of $614 433 as previously ordered. I will discuss these amendments in greater detail shortly.
By letter dated 19 December 2005 the husband wrote to my associate from the Sydney gaol where he was then imprisoned for contravention of Mullane J’s orders. Much of the content of the husband’s letter addresses matters relating to the circumstances of his then imprisonment, rather than submissions directed to his leave application. The husband did however say ‘I am writing this letter to you Your Honour from [a Sydney] Prison. Due to high restrictions all the Family Court documents are out of my reach. As I don’t have a legal representation, [sic] the best I can do is to write this letter to you relying purely on my memory’.
As a result of correspondence from my associate to the husband he confirmed by letter dated 13 February 2006, addressed to the wife’s solicitors, that his letter dated 19 December 2005 was his compliance with the order of 25 October 2005. The husband also sent a letter addressed to my associate in similar terms.
On 21 February 2006 the wife’s solicitor wrote to my associate. The solicitor said, inter alia, ‘Please advise whether [the husband’s] letter of 19 February 2006 [sic] has yet been accepted by Her [sic] Honour as constituting [the husband’s] written submissions’.
After confirmation from my associate that I accepted the husband’s letter as his further submissions, on 8 March 2006 the wife filed her written submissions in opposition to the husband’s application for an extension of time to appeal Mullane J’s orders of 13 September 2004 as amended by the slip rule on 7 December 2005.
The husband did not seek to have the matter relisted before me. However, I was concerned that he may not have had the opportunity to properly address matters relevant to his application by reason of his incarceration, and because of his asserted lack of access to files. I arranged for a further listing before me on 6 April 2006 with the parties participating by telephone. I thereafter made orders that the husband could file and serve any further material or submissions in reply on which he sought to rely within 14 days of attendance at the Court to inspect his file. At the time of making such order arrangements were already in place for the husband to attend Court on 21 and 24 April 2006 to enable him to have access to the Court file to prepare for a review application in respect of orders of Judicial Registrar Johnston of 23 November 2005, pursuant to which orders the husband was sentenced to 12 months imprisonment.

SHORT HISTORY OF THE HUSBAND AND WIFE

The parties married in Cyprus in December 1971.
Their first child MS was born in August 1973.
The family came to live in Australia in 1976.
The parties’ second child, AS, was born in April 1988.
After brief periods of separation throughout the marriage, the parties finally separated in December 2002.

RELEVANT BACKGROUND SET OUT IN THE TRIAL JUDGE’S JUDGMENT

Factual background to this matter relevant to the issues in this application is set out in the trial judge’s judgment and may be summarised as follows.
At the commencement of the parties’ marriage they had no property of significance other than the wife’s interest in two vacant lots of land in Cyprus.
The parties migrated to Australia in 1976. Thereafter the husband engaged in studies obtaining his Higher School Certificate and later undertook tertiary studies for two years.
In 1983 the parties separated for three or four months.
In late 1983 the husband set up business as a counsellor. The business was unsuccessful.
In 1987 the parties purchased a home in South West Sydney (‘the first South West Sydney property’) for a purchase price of $46 000. The whole of the purchase price was borrowed by way of mortgage.
In about 1988 the husband engaged in weight loss counselling and provision of weight loss programs.
In 1992 a company TFLHW was incorporated.
The husband and wife were appointed directors of TFLHW. The husband was issued 900 shares and the wife 100 shares. The husband carried on business through the company in the development and promotion of weight loss programs and products.
On 8 December 1995 TFLHW purchased land on the Central Coast for a purchase price of $20 000.
On 18 December 1996 TFLHW purchased land in Queensland, for a purchase price of $40 424. The company borrowed $31 000 from Westpac to complete the purchase. Both parties guaranteed TFLHW’s loan.
On 28 November 1997 TFLHW purchased a second South West Sydney property (‘the second South West Sydney property’) for a purchase price of $124 760. The acquisition costs were borrowed from the Commonwealth Bank of Australia on the security of that property and the first South West Sydney property. The parties again guaranteed repayment of the loans. The property was subdivided into two separate titles and a townhouse built on each block which properties subsequently became known as Subdivision A and Subdivision B of the second South West Sydney property. Further funds were borrowed to construct new townhouses. Borrowings totalled $600 000.
In March 1998 the husband registered part of the company’s name as a trademark.
In May 1998 the husband incorporated SPL.
In the same month the husband incorporated TFLIN. TFLIN was incorporated in the USA. No disclosure of TFLIN was made by the husband in his Financial Statement.
The trial judge noted that the husband produced a document
‘dated 30 June 1998 purporting to be a deed between TFLIN and TFLHW whereby TFLIN as “Master Franchisor” licenses TFLHW to use, among other things, trademarks in a schedule to the document. There is no schedule. The document does not define what, if anything is payable by “the licensee”, TFLHW, but for the period of 1 July 2001 to 30 June 2004 it provides the amount payable will be “a percentage agreed upon mutually at the end of each financial year”’.
In 2000, the family moved from the first South West Sydney property to Subdivision A of the second South West Sydney property.
In June 2001 the wife received $65 000 from a personal injury claim.
On 21 May 2002 the parties completed the sale of the first South West Sydney property at a sale price of $242 000 and after discharge of the mortgage and sale expenses, net proceeds totalled approximately
$110 000.
In the same month SPL completed the purchase of a property in Western Sydney for a total purchase price of $243 715. An amount of $188 000 was borrowed from PCL. The property was thereafter tenanted.
On 19 June 2002 SPL purchased a unit at North Sydney at a total cost of $176 040. The purchase price was funded from surplus funds from borrowings secured over the entire second South West Sydney property, the wife’s compensation payment and part proceeds of sale of the first South West Sydney property.
In October 2002, TFLHW borrowed $600 000 from PCL on the security of the entire second South West Sydney property and used the funds to discharge the loan from the Commonwealth Bank. The parties each gave personal guarantees for the new loan. After discharge of the Commonwealth Bank loan approximately $158 000 remained which the husband deposited into the bank account of SPL.
On 18 November 2002 SPL repaid the wife $65 000 plus $1 000 interest.
On 15 December 2002 the wife left the home with the parties’ youngest child and commenced living in rented accommodation.
On 23 February 2003 the husband notified ASIC that the wife had ceased to be a director of TFLHW.
On 15 May 2003 the wife commenced proceedings for property settlement.
On 26 May 2003 SPL completed the purchase of two commercial properties in South West Sydney (‘the third South West Sydney property’) for a total cost of $250 000. SPL borrowed $305 000 from the ANZ Bank secured against those properties and the North Sydney property. Borrowings provided $224 502.68 which was applied to the purchase of the third South West Sydney property.
On 3 June 2003 the husband removed $50 000 from SPL’s account and paid it to his then solicitors’ trust account on account of costs. The husband subsequently retrieved $27 095 which he paid to TFLHW in late 2003.
On 5 June 2003, in interim proceedings, the trial judge said ‘the Court noted the agreement of the parties not to encumber or dispose of any assets except in the normal course of business’.
In August 2003 the wife was assessed by Centrelink as being medically unfit and granted a disability support pension. The wife was in receipt of such pension at the date of the trial.
In January 2004 the husband served on the wife a Notice of Meeting of the shareholders of TFLHW to consider proposed resolutions to adopt a new constitution for the company and to remove the wife as director. On receipt of the Notice of Meeting the wife’s solicitors wrote to the husband’s solicitors and sought his undertaking not to take any action or otherwise cause the removal of the wife as a director of the company or otherwise change the Memorandum and Articles of the company as they presently existed.
The solicitors then acting for the husband responded on 21 January 2004 and said inter alia ‘[w]e note that there are Orders currently in place which prohibit either party from further encumbering the assets of the Company and that this Order is sufficient to protect any interest which your Client has in the Company or the business of [TFLIN]’. The trial judge noted ‘[o]n 24 May 2004 the husband lodged with ASIC a document in which he stated he owned all the shares in the company’.
In May 2004 the husband caused TFLHW to borrow $72 500 from LTMF on the security of the property in Queensland.
In May 2004 the husband caused TFLHW to borrow $400 000 from the Adelaide Bank on the security of Subdivision B of the second South West Sydney property.
On 21 May 2004 an order was made that each party receive the sum of $90,000 from TFLHW. The trial judge noted ‘[s]ubsequently the husband arranged for each of the parties to receive $90 000’. The husband now asserts he did not receive $90 000.
On 28 May 2004 OPL was incorporated. From 18 June 2004 the sole shareholder and director of OPL was the husband’s de facto wife.
On 8 June 2004 the husband caused TFLHW to borrow $464 000 from the Adelaide Bank on the security of Subdivision A of the second South West Sydney property.
Also on 8 June 2004 TFLHW repaid WHL the sum of $271 411 in reduction of another loan. The trial judge found as a result that the net borrowings in May and June were approximately $665 111.
On 9 June 2004 the husband deposited $585 715 of funds of TFLHW into an account he opened on that day with a Cypriot bank in Inner West Sydney. On the same day he withdrew $520 000 which was forwarded to Cyprus by telegraphic transfer.
On 11 June 2004 SPL borrowed $264 000 from PCL which borrowings were secured over real estate owned by SPL. The trial judge found that about $184 000 was used to discharge an existing mortgage to WHL leaving approximately $80 000 unaccounted. The trial judge noted that this was ‘apparently used for the husband’s own purposes’.
On 23 June 2004, SPL entered into contracts for the sale to OPL of all properties owned by it for a total consideration of $810 000. OPL paid a total deposit of $196 000 for the purchase of properties from TFLHW and SPL.
Also on 23 June 2004 contracts executed by the husband on behalf of TFLHW were exchanged for the sale by that company to OPL of Subdivision B of the second South West Sydney property and the Central Coast property for a consideration of $490 000. Deposits of $53 000 were paid to TFLHW. A contract for the sale of Subdivision A of the second South West Sydney property to OPL was exchanged for a purchase price of $500 000. A deposit of $50 000 was paid.
On 25 June 2004 contracts were exchanged for the sale by TFLHW to OPL of its only remaining property in Queensland for $120 000.
The trial judge said ‘[w]hen the wife and her solicitors discovered the contracts for sale and raised the issue with the husband’s solicitors and the solicitors for OPL the week before the hearing, the parties to the contracts rescinded them’.
On 29 July 2004 injunctions were granted on the wife’s application restraining the husband from further encumbering or selling real estate. The trial judge noted in his reasons for judgment ‘the wife had discovered that the husband had purported, through contracts he executed on behalf of the companies, to sell all 8 pieces of real estate belonging to [SPL] and TFLHW’.
The husband asserts that he gifted the trademark that he registered to TFLIN. The trial judge referred to this transaction and other matters relevant to TFLIN at paragraph 72 of his reasons for judgment as follows:
‘72. At the hearing the husband also relied upon a document, annexure E to his affidavit sworn 10 August, the second day of the hearing. It purported to be a receipt by TFLIN issued to TFLHW for $661,336 for payment of licence fees for the use of the trademarks. I [sic] purports that the total licence fees payable by TFLHW are $608,484.68 plus GST of $60,848.47, leaving a balance owing of $7,997.14. It is dated 2 July 2004, weeks after the money was paid to him and most of it sent by him to Cyprus. The money was never received by TFLIN. The husband admitted that he created the document. He said his accountant told him GST is payable from the amount, but there is no evidence of any remittance of GST or even of lodgment of a return. The document was created by the husband to support his lies that there were licence fees payable to TFLIN, his lie that his brother had shares in TFLIN and his lie that it was a dividend then paid by TFLIN to his brother.’

ORDERS MADE AT THE CONCLUSION OF THE TRIAL

The trial took place on 9 to 11 August 2004 and at the conclusion interim orders were made by the trial judge requiring the husband, inter alia, to pay to the wife’s solicitors by bank cheque, cash or electronic transfer the sum of $520 000 to be held in the wife’s solicitors’ trust account pending final orders of the Court. The husband was restrained from issuing or transferring shares in SPL, TFLHW or TFLIN. The husband was also required to deposit his passport with the Registry Manager of the Sydney Registry of the Court.

THE TRIAL JUDGE’S REASONS FOR JUDGMENT

After setting out background history and reviewing the evidence, the trial judge made findings about the parties’ assets and liabilities at the date of the hearing. Save for limited specific matters which I refer to below, the husband does not challenge those findings. He asserts however that actions, which he attributes to the wife in enforcing the trial judge’s orders, including an appointment of a receiver to SPL, have resulted in a sale of assets at lower values than found by the trial judge. The trial judge found the parties had net assets of $1 277 026 (adjusted under the slip rule to $1 077 156).
His Honour then assessed each party’s contributions and found their contributions to the date of the trial to be equal. In so finding the trial judge said ‘the husband’s contributions to the financial support of [AS] since separation are also significant’. The husband does not challenge the trial judge’s contribution findings.
Having considered relevant s 75(2) matters, the trial judge found the parties’ assets should be divided in the proportion of $557 026 to
$700 000, and found taking into account assets retained by the wife, an adjustment in her favour of $614 433 (amended to $504 876) was required. Taken into account in his Honour’s calculation was a deduction made from the wife’s entitlement of the sum of $90 000 received by her by way of interim costs. No such adjustment was made from assets to be retained by the husband. There is no assertion by the husband that the trial judge’s assessment of relevant factors under s 75(2) was outside the reasonable ambit of discretion.

On 13 September 2004 Mullane J made the following orders:
‘1.     The husband must by 4pm on Monday, 11 October pay to the wife’s solicitors on her behalf by way of alteration of property interests a sum of $614,433.
2. If the said sum is not paid by the date specified the husband must pay to the wife interest thereon at the rate prescribed by the Family Law Rules calculated from the due date on so much as is from time to time outstanding.
3.      The wife is declared beneficially entitled to any amount paid to the wife’s solicitors by the husband pursuant to the interim orders of 11 August 2004, the solicitors are to account to her for such funds, and those funds are to be part satisfaction of order 1 above.
4.      If the amount paid by the husband to the wife’s solicitors pursuant to the interim Orders is by 9am today less than $520,000, then pending compliance with orders 1 and 2:
4.1. the husband is declared to hold his shares in [SPL] and the registered trademark … in trust for the wife
4.2. the husband must urgently:
a)      do all acts and execute all documents prepared by the wife to transfer to the wife his shares in [SPL] and the registered trademark;
b)      deliver to the wife’s solicitors the company seal, all records and other documents of [SPL] that are in his possession or control (but not including those in the possession of his accountant);
c)      do all acts and execute a resolution prepared by the wife to appoint the wife and her solicitor as directors of [SPL], to approve registration of the transfer of shares to the wife, and then all documents prepared by the wife to resign his directorship of the company;
d)      execute an authority prepared by the wife to his accountant, Mr [P], to release to the wife the company seal and all documents and records he holds on behalf of [SPL];
e)      do all acts and execute all documents prepared by the wife to change the signatories to any bank accounts of [SPL] so that the wife is the only signatory for each account; and
f)      do all acts and execute all documents prepared by the wife to transfer to her the beneficial entitlement to any loan account or other amount owing by [SPL] to the husband or to the husband and wife jointly.
4.3. pursuant to Sec.106A of the Family Law Act the wife is appointed to execute in the name of the husband any documents to implement 4.2 above and to do all things necessary to give validity and operation to the documents;
4.4. the husband’s accountant, Mr [P], must not release the company seal or any records or other documents of [SPL] to the husband and must immediately upon receipt of the authority under Order 4.2(d) and a copy of these orders deliver up all such seal, records or other documents to the wife.
5.      Until compliance with Orders 1 and 2 the husband must indemnify [SPL] in respect of any claim by [OPL] for refund of deposits allegedly paid for any proposed purchase from [SPL] of any real estate.
6.      Until compliance with Orders 1 and 2 the husband must not (except as required by these orders or authorised by the wife in writing or by order of this Court) do any act or execute any document to:
6.1. change the shareholding or office bearers of [SPL] or [TFLHW];
6.2. issue any shares in either company;
6.3. destroy or move any records or documents belonging to either company;
6.4. further encumber any asset of him or of either company; or
6.5. borrow any further amount in his name or the name of either company.
7.      The husband must indemnify the wife and keep her indemnified in respect of any debt owing by the parties or either of them to [TFLHW] or [SPL] and in respect of any guarantee of a liability of either company.
8.      Upon compliance with orders 1 and 2, paragraph 4.1 is discharged and contemporaneous with the compliance the wife and her solicitor must:
8.1. do all acts and sign all documents submitted by the husband necessary to:
a)      transfer the trademark to him;
b)      transfer any shares of the wife in [SPL] and [TFLHW] to him;
c)      appoint him as director of [SPL] and register the transfer of any shares of the wife to the husband;
d)      resign as directors of [SPL];
e)      deliver up to the husband any of the company seal, records and other documents of [SPL] in the possession or control of the wife;
f)      if necessary change the signatories to the bank accounts of [SPL] to such persons as he nominates; and,
g)      transfer to the husband any loan accounts previously transferred to the wife under 4.2(f).
9.      Until compliance with Orders 1 and 2 the husband must, as regards [TFLHW] (“the company”):
9.1. ensure no payment is made by the company to [TFLIN];
9.2. ensure any amounts paid to him, his de facto wife or anyone else at his direction are a remuneration to him of not more than $651 per week;
9.3. ensure repayments for debts already secured on any of the real estate interests of the company are paid as they fall due and no reduction in any minimum payment is sought;
9.4. ensure the business conducted by the company is continued to be conducted in a bona fide way and in the best interests of the company, and that he as owner of any trademarks or licences used by the business, continues to authorise such use by the company and any franchisees;
9.5. ensure he does not transfer, surrender or encumber any trademark, patent or other intellectual property the company has used in its business;
9.6. ensure [TFLIN] or any other company of which he is a director does not make any demand on him or the company; and,
9.7. ensure proper records are kept of all transactions involving the company.
10.    Otherwise each party is declared to have no interest in any item of property in the possession or control of the other.
11.    The Interim Orders of 11 August 2004 are discharged.
12.    The wife’s application for the husband to pay her costs is adjourned for further argument to 9.30 at Sydney Registry on a date to be fixed by the List Clerk in the period 12 to 22 October 2004 before the Hon. Justice Mullane.
13.    Otherwise the wife’s application filed 8 April 2004 and the husband’s response filed 12 July 2004 are dismissed.’
On 7 December 2005 Mullane J made the following orders:
‘1. Pursuant to the Slip Rule the following amendments be made to the Judgment delivered on 13 September 2004:
1.1Paragraph 101 - delete the figure "$1,309,870" and replace with the figure "$1,110,000".
1.2Paragraph 101 - delete the figure "$1,509,740" and replace with the figure "$1,309,870".
1.3Paragraph 101 - delete the figure "$253,384" and replace with the figure "$53,514".
1.4Paragraph 103 - delete the figure "$505,159" and replace with the figure "$305,289".
1.5Paragraph 103 - delete the figure $1,304,464" and replace with the figure "$1,104,594".
1.6Paragraph 105 - delete the figure "$1,277,026" and replace with the figure "$1,077,156".
1.7Paragraph 123 - delete the figure "$1,277,026" and replace with the figure "$1,077,156".
1.8Paragraph 123 - delete the figure "$1,424,619" and replace with the figure "$1,224,749".
1.9Paragraph 123 - delete the figure "$712,310" and replace with the figure "$612,374.50".
1.10 Paragraph 125 - delete the figure "$517,110" and replace with the figure "$417,174.50".
1.11 Paragraph 126 - delete the figure "$517,110" and replace with the figure "$417,174.50".
1.12 Paragraph 126 - delete the figure "$602,677" and replace with the figure "$502,741.50".
1.13 Paragraph 127 - delete the figure "$505,159" and replace with the figure "$305,289".
1.14Paragraph 127 - delete the figure "$1,229,419" and replace with the figure "$1,029,549".
1.15 Paragraph 128 - delete the figure "$712,310" and replace with the figure "$612,374.50".
1.16Paragraph 128 - delete the figure "$517,110" and replace with the figure "$417,174.50".
1.17 Paragraph 129 - delete the figure "$505,159" and replace with the figure "$305,289".
1.18 Paragraph 129 - delete the figure "$1,206,564" and replace with the figure "$1,006,694".
1.19 Paragraph 129 - delete the figure "$517,110" and replace with the figure "$417,174.50".
1.20Paragraph 129 - delete the figure "$674,349" and replace with the figure "$574,414.50"
1.21 Paragraph 142 - delete the figure "$577,026" and replace with the figure $486,713”.
1.22Paragraph 142 - delete the figure "$700,000" and replace with the figure “$590,443”.
1.23 Paragraph 142 - delete the figure "$614,433” and replace with the figure “504,876”.
1.24 Paragraph 142 - delete the figure "$517,110" and replace with the figure “$417,174.50”.
1.25Amend Order 1 to read "$504,876’.

RELEVANT LAW AND RULES

Section 94 of the Family Law Act 1975 (Cth) (‘the Act’) provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:
‘An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.’
The rules provide for an appeal to be filed within 28 days after the order appealed from is made.
Sections 94(2D), (2E) and (2F) are also relevant to this application. They provide:
‘(2D) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
(b) for leave to amend the grounds of an appeal under subsection (1) or (1AA); or
(c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d) to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or
(e) for an extension of time within which to file an application for leave to appeal; or
(f) for security for costs in relation to an appeal; or
(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or
(h) to adjourn the hearing of an appeal; or
(i) to vacate the hearing date of an appeal; or
(j) to expedite the hearing of an appeal;
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
(2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).’
In W and B [2002] FamCA 109 at [14] Lindenmayer J said:
‘… It may seem anomalous that, by virtue of s.94(2F), no appeal under s.94 (that is to this Court) is available to a litigant who is dissatisfied with the determination by a single Judge of an application under s.94(2D)(a) to extend the time for the institution of an appeal, but that an appeal to this Court is available against the determination by a single Judge of an application under Order 32A rule 3(b) of the Family Law Rules for an extension of time to apply for leave to appeal. But, in my opinion, s.94(2F), being a provision which is restrictive by nature and takes away what might be regarded as the usual right of appeal to this Court from a decision of a single Judge, should be strictly interpreted as applying only to the subsections which are specifically referred to in it.’
I accept as a correct statement of the law Lindenmayer J’s interpretation of 94(2F) of the Act.

RELEVANT LEGAL PRINCIPLES – APPLICATION FOR EXTENSION OF TIME TO APPEAL

The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon (1976) FLC 90-038 at 75,144, Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (1990) 93 ALR 479 at 480 where McHugh J said:
‘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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”’
His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

MATTERS RELEVANT TO THE EXERCISE OF DISCRETION FOR EXTENSION OF TIME TO APPEAL THE DECISION OF MULLANE J

Evidence relied on by the husband to support his application

The husband relies on his affidavit in support of his Application in a Case sworn or affirmed on 11 July 2005. I have already noted the affidavit does not annex a draft Notice of Appeal as required by r 22.46 of the rules. The affidavit appears to be drafted in support of a stay of the orders of Mullane J of 13 September 2004 as well as this application for an extension of time in which to appeal the orders of Mullane J. However no stay is sought in the husband’s application. The affidavit annexes to it another affidavit of the husband sworn or affirmed on 7 July 2005. The latter affidavit refers to numerous annexed documents. There were no annexures attached to the affidavit. I directed the husband to file and serve all annexures referred to in his affidavit by 22 September 2005.
On 29 September 2005 the husband caused a further document to be filed described as an affidavit. The document bears no jurat. It appears to be a photocopy of the first ten pages of his affidavit sworn or affirmed on 7 July 2005. He has submitted in a separate bundle a number of documents purporting to be annexures to his affidavit. I have treated this document as compliance by the husband with order 3 of my orders of 13 September 2005 which order is in the following terms:
‘3. The husband file and serve on all respondents all documents referred to as annexures in his Affidavit sworn or affirmed 7 July 2005 by 22 September 2005.’
The husband in his affidavit sworn or affirmed on 7 July 2005 said that he ‘was devastated’ by the judgment and orders of the trial judge. He says ‘[i]t took me nine months to heal psychologically and to come to terms with what has happened and do something about it’. The husband adduces no medical evidence to support his application.
The husband makes generalised allegations about the conduct of the trial by the trial judge, including an assertion that the trial judge did not read all the relevant material, and that the trial judge ‘made several threats towards me for imprisonment during the trial. While I was crossed [sic] examined I felt I was under duress to give evidence in [a] certain way in order to avoid imprisonment. Some of my evidence were [sic] probably misunderstood or ignored for reasons unknown. His honour [sic] findings were heavily in favour towards my ex wife’. The husband appeared without legal representation at the trial, although it appears from the trial judge’s reasons for judgment that during the course of the proceedings the husband did have solicitors. It is impossible on the husband’s material to ascertain if there are any grounds which could constitute procedural unfairness. I will return to the husband’s specific allegations later in these reasons.
The husband also asserts that ‘the sum of $199,870 has erroneously been included twice in the calculations at page 101 of the judgment of 13 September 2004’. The husband refers to the evidence of the expert accountant Mr T set out in his affidavit dated 16 March 2004 at page 9 which is as follows:
‘Business Assets and Liabilities
Debtors – estimated  $ 32000
Stock  3565
Plant & Equipment @ Written down value 102206
Business Goodwill  132303
  ----------
  $270074
Less Hire Purchase Creditors  70204  ----------        $199870
Other Assets
[The second South West Sydney property] – at valuation 970000
[The Central Coast property]            - at valuation             20000
[The Queensland property]               - at valuation           120000
  ----------
  $1309870
Other Liabilities
Bank Overdrafts  $ 61827
Loan E & KS  113427
Loan MS  17000
Commonwealth Bank  400502
  ----------           592756  ------------
  $ 717114
  =======’
The trial judge sets out, at paragraph 101 of his reasons, his findings about the value of the company TFLHW as follows:
‘The value of the underlying assets and liabilities in [TFLHW] is calculated as follows relying on the evidence of Mr [T] and evidence annexed to the husband’s Financial Statement of 2 August 2004:
Business assets and liabilities per Mr [T]  $   199,870
Other assets per Mr [T]  $1,309,870
Total Assets  $1,509,740
Less:
Mortgage to [LTMF]  $ 72,446
Mortgages to Adelaide Bank  $864,000
WHL  $319,910
Total Liabilities  $1,256,356
Nett (sic) Value   $253,384’
It is clear, as was asserted by the husband in his affidavit, and subsequently recognised and corrected by the trial judge in his slip rule judgment, that he ‘double counted’ the sum of $199 870.
The husband asserts the correct amount payable to the wife is not
$614 433 as originally ordered, or $504 874 as subsequently ordered, but rather $514 468. In paragraph 9 of his affidavit the husband says, having regard to the sum due under the s 79 orders and subsequent costs orders, that those sums total $596 998 ‘which I owe to my ex wife and [am] willing to pay’. The husband says that ‘[t]he only way I would be able to pay her off is by firstly claiming credit of assets already transferred to her and under her control and secondly transfer to her what’s left and currently controlled by a sequestrator.’
There is no evidence before me that the husband sought and obtained a stay of Mullane J’s orders of 13 September 2004 as amended on 7 December 2005, or of any compliance by the husband in whole or in part with the orders.

The husband, in his written submissions dated 19 December 2005, does not refer to the orders made as a result of the slip rule application. However, in his submissions he says:
‘The hearing pursuant to the slip rule before Justice Mullane went ahead on 7 December 2005 without me appearing. I wanted to be present. Since I had no legal representation, there was no one to ask the Family Court to send appearance request to prison. Therefore I was not taken to the Court that day. I wanted to ask Justice Mullane to set aside all orders of 13 September 2004 intead [sic] of using the slip rule. Several months earlier he had [disqualified] himself from my proceedings, despite what Mr [S] told you during the hearing on 25 October 2005. Please check to find out the trueth [sic].’
The Court record discloses the following order made on 20 August 2004:
‘1.     Note: The husband has pleaded not guilty to the contempt charge.
2.      The contempt application is adjourned to Tuesday, 24 August 2004 at 10am for a defended hearing.
3.     The husband must attend the Court on Tuesday, 24 August 2004 at 10am and remain until the hearing is concluded or the Court otherwise orders.
4.     The Hon. Justice Mullane is disqualified from further hearing the contempt application.
5.     The wife has leave to issue today and serve by 4pm today a subpoena for production of documents to each of [the Cypriot bank in Inner West Sydney], [OPL] and [JPL].
6.     The wife has leave to issue today and serve by 4pm on Saturday, 21 August 2004 a subpoena for production of documents to [JS]’
I am satisfied the husband’s submission concerning Mullane J’s disqualification is in error, and that his Honour only disqualified himself in respect of the contempt application before the Court in August 2004, and that the disqualification was not a general one.
There is no direct submission made by the husband that challenges the amendment of the orders and corrections to the judgment as a result of the slip rule judgment. However the husband correctly records in his submission filed 1 May 2006 that he made an oral application before me in respect of which I granted leave on 6 April 2006 to seek leave out of time to challenge the orders purported to have been made pursuant to the slip rule on 7 December 2005. In his earlier submissions the husband asserts that contravention proceedings which the wife instigated were improperly brought as they were based on the orders of 13 September 2004 and not the orders of 7 December 2005. The husband filed an application for review of the Judicial Registrar’s orders made in the contravention proceedings which was heard by Bryant CJ resulting in the husband’s discharge from gaol.
I note the figures asserted by the husband as correct are not completely identical with the sums as found by Mullane J in his slip rule judgment, but the sum required to be paid is less than that asserted by the husband as being the correct amount due under the order. The husband’s submissions filed 1 May 2006 do not address in a readily understandable way his assertions about the slip rule judgment, or lack of procedural fairness by reason of his lack of participation in those proceedings. His submissions appear directed towards an asserted failure by the wife to properly deduct from the sum claimed in the contravention proceedings money received by her from the liquidation of SPL. I find these submissions have no apparent relevance to this application. I do take into account that there may have been procedural unfairness to the husband by reason of the hearing being conducted in his absence, and that the error in the judgment was known by the wife at least by the time of this application and no steps were taken independently by her to have the matter listed before the trial judge for correction.
The husband refers to two contempt applications brought by the wife and heard by Le Poer Trench J on 24 and 25 February 2005 and 18 April 2005. The husband asserts each application by the wife was dismissed. He also refers to a Contravention Application filed 4 April 2005.
The bench sheet of 25 February 2005 discloses the following orders made that day by Le Poer Trench J:
‘IT IS ORDERED
1.That the first count of the charges made by the Court on the 17^th of November 2004 be dismissed.
2.I adjourn this matter to the 18^th of April 2005 before me.
3.I direct the husband to file and serve any affidavit in relation to the prima facie case found by me in relation to the 2^nd count of the charges made by the Court on the 17^th of November 2004 by the 11^th of April 2005.
4.I grant the wife leave to issue any subpoena returnable before me on the 18^th of April 2005.
5.I grant liberty to both parties to relist this matter before me in relation to any procedural matter on 24 hours notice.
6.I order the husband to attend before me at 10.00am on the 18^th of April 2005 and thereafter not leave the precincts of the Court until I release him further.’
The bench sheet of 18 April 2005 discloses the following:
‘Oral application for costs by husband
1.That the contempt applications alleging breach by the husband of Order 4.2(b) of the 13^th of September 2004 be dismissed.
2.I dismiss the husband’s oral application for costs.
3.I discharge the restraint order 6 made by me on the 25^th of February 2005 on the husband.’
Notwithstanding his Honour’s order dismissing the husband’s oral application for costs he claims that legal costs incurred by him for the contravention proceedings should be deducted from the sum payable to the wife pursuant to Mullane J’s orders.
The wife’s contravention application filed 4 April 2005 was listed for hearing before the Court on 9 June 2005. The husband denied each and every contravention. On 9 June 2005 the Judicial Registrar found a prima facie case in respect of all breaches, and stood over the application part heard until 28 July 2005. The matter continued on that day and the following day. On the following day Judicial Registrar Johnston made a number of notations which I set out below, and adjourned the contravention application to 9 August 2005:
‘1.     I note that these proceedings have reached the point where cross-examination of the husband has been completed and the husband will have an opportunity for re-examination.
2.      I note that I have informed the husband that the matter is serious because the wife appears to be ready to make an application that the alleged contraventions be found to have been established and that a term of imprisonment be imposed on the husband by way of appropriate sanction.
3.      In these circumstances I order that these proceedings be adjourned to before me at 10:00 am on 9 August 2005.
4.      I order that the husband be permitted to file and serve further evidence in response to the wife’s case being affidavits from any person on the basis that any such affidavit be filed and served not later than 12:00 noon on 8 August 2005.’
Orders were made by Judicial Registrar Johnston on 23 November 2005 as follows:
‘1.     That in relation to the breach of order 1 of the orders of this Court dated 13 September 2004 [the husband] is hereby sentenced to a term of imprisonment for a period of 12 months or until he complies with the orders dated 13 September 2004 whichever happens first.
2.     That in relation to the breach on 5 October 2004 of order 9.2 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 30 days or until he complies with the orders dated 13 September 2004 whichever happens first.
3.     That in relation to the breach on 7 October 2004 of order 9.2 of the said orders [the husband] is hereby sentenced to a term of imprisonment for a period of 30 days or until he complies with the orders dated 13 September 2004 whichever happens first.
4.     That in relation to the breach on 20 September 2004 of order 9.4 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 30 days or until he complies with the orders dated 13 September 2004 whichever happens first.
5.     That in relation to the breach on 5 October 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
6.     That in relation to the breach on 6 October 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
7.     That in relation to the breach on 14 October 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
8.     That in relation to the breach on 19 October 2004 of order 9.7 of the said orders concerning the $10,000 transaction [the husband] hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
9.     That in relation to the breach on 19 October 2004 of order 9.7 of the said orders concerning the $6,000 transaction [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
10.    That in relation to the breach on 23 November 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
11.    That in relation to the breach on 24 December 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
12.    That in relation to the breach on 29 December 2004 of order 9.7 of the said orders [the husband] is hereby sentenced to a term of imprisonment of 7 days or until he complies with the orders dated 13 September 2004 whichever happens first.
13.    That all sentences subsequent to the first sentence above shall be served concurrently with the first sentence.
14.    That all sentences commence today.
15.    That a warrant of commitment issue.
16.    That the husband have leave to make an oral application for a stay of these orders.
17.    That the husband’s application for a stay of these orders is dismissed.
18.    That the husband pay to the wife’s solicitors the wife’s costs of these proceedings as agreed or taxed on a solicitor client basis within 30 days of completion of taxation.’
Orders made by Bryant CJ on 24 April 2006 after hearing a review application provided inter alia:
‘1.     That the allegation contained in paragraph 7 of the wife’s application for contravention filed 9 May 2005 that the husband has breached order 1 of the Order made 13 September 2004 be dismissed.
2.      That paragraph 1 of the Order of Judicial Registrar Johnston dated 23 November 2005 be set aside forthwith.
3.      That the respondent having served the sentences imposed by Judicial Registrar Johnston in paragraphs 2 to 13 of the Order of 23 November 2005 be released from the custody of the Officer in charge of the Department of Corrective Services of New South Wales forthwith.
4.      That the Warrant of Commitment dated 23 November 2005 be discharged.’
Neither party has provided me with details of the contravention litigation and I have only had regard to the Court record.
The husband sets out in his affidavit a series of ‘deductions’ he claims should be made from the sum ordered to be paid by him to the wife. These include his assertion that assets of TFLHW have been sold at values less than the valuation accepted by the trial judge. The husband claims a number of chattels were sold to OPL. He also annexes a letter dated 17 March 2005 from the liquidator of SPL, Mr DC, in which he reports to the wife’s solicitors about sales of real estate owned by SPL.

MATTERS RELEVANT TO THE EXERCISE OF THE DISCRETION

I find it is convenient to consider the husband’s application having regard to the relevant criteria or factors enunciated in Gallo v Dawson (supra) as follows:

Will strict compliance with the rules work an injustice on the applicant?

Before me in October 2005 the wife, through her counsel, conceded the ‘double counting’ by the trial judge in calculating the parties’ net assets available for division between them. It was not suggested the wife only became aware of the ‘double count’ when these proceedings were commenced. Prima facie, this factor alone, had it remained in issue between the parties, would have indicated that strict compliance with the rules would work an injustice on the husband. However, this error has now been rectified by reason of the variation of order 1 made by Mullane J on 13 September 2005. I find however some possibility of an injustice to the husband in that it appears prima facie he did not have the opportunity to appear before Mullane J to argue that the corrections made to the judgment as particularised in the above orders were amenable pursuant to the slip rule, or whether the amendment required an independent determination (see TWN and PAQ (2005) FLC 93-230).
Absent the granting of leave, the husband will be unable to challenge the orders of 7 December 2005. If the husband’s application establishes a substantial issue to be raised on the appeal, he will be denied the opportunity of having the Full Court consider such issue. For the reasons which follow, I am not satisfied the husband’s application, other than the slip rule issue, contains any substantial appeal ground. He retains the right to bring an application under s 79A if such an application is appropriate.

History of the proceedings

The proceedings have been on foot since May 2003. There have been a number of applications since final orders were made by Mullane J. No chronology of such applications or documents relied on in those applications have been provided to me by either party. I have therefore only had regard to relevant orders on the Court record. These orders reveal the husband had access to legal advice almost continuously from the making of Mullane’s J’s orders in September 2004, and prior to the filing of this application on numerous occasions:
·Orders of Le Poer Trench J, 11 October 2004, the husband represented by Ms C of counsel (leave to make oral application for costs);
·Orders of Le Poer Trench J, 16 December 2004, the husband represented by Ms C of counsel (refusal of application to release passport and remove from Airport Watchlist)
·Orders of Johnston JR, 18 January 2005, the husband represented by Ms C of counsel (Minutes of Consent Orders filed in Court 18 January 2005)
·Orders of Johnston JR, 8 April 2005, the husband represented by Ms C of counsel
·Orders of Le Poer Trench J, 18 April 2005, the husband represented by Ms C of counsel (contempt applications dismissed, oral application for costs dismissed)

Prima facie it appears the husband could or should have sought legal advice on those occasions about a potential appeal.

The conduct of the parties

The trial judge in his reasons for judgment makes credit findings about the husband in paragraphs 75 to 88 of his reasons for judgment. They are significant findings. Because of the importance of those findings to this application I set them out in full:
‘75. A Notice to Admit Facts and Authenticity of Documents was served on the husband’s solicitors in the proceedings on 13 February 2004. He did not dispute any of those facts or documents. But at the hearing his evidence at times was inconsistent with such facts and documents.
76.    In various areas the husband contradicted other statements he had made orally, in documents or in sworn evidence in affidavits and oral evidence. In the witness box, the husband, despite numerous cautions from me, was persistently evasive and frequently volunteered unresponsive answers and speechified. He refused to answer some questions. He at times demonstrated a very casual attitude to the proceedings and to his obligation to answer questions and answer them truthfully.
77.    On 21 January this year the husband’s solicitors, on his instructions, wrote to the wife’s solicitors and told them the business of TFLHW was “rapidly deteriorating”. His stance in the proceedings was that this trend had continued subsequently. He also had financial statements produced after 30 June 2004 for 2003 and 2004 tax years that showed the company trading at a loss. But in cross examination he said he did not tell the Bank of Adelaide about the downturn when he obtained from it on behalf of the company the loan funds of $864,000 in May/June 2004. He denied that conduct was misleading or dishonest. In an affidavit of 26 March in these proceedings the husband purported the company was having difficulty paying its debts.    He conceded he did not tell the Bank of Adelaide that in obtaining the loans for the company.
78.    The husband did not disclose his superannuation entitlements in his Financial Statement of 24 June 2004, although he knew he was required to do so.   He swore he had no superannuation entitlements. He did have superannuation entitlements that had been rolled over into a second fund. In cross-examination, when it was put to him that this evidence in the Financial Statement was false he said, “Yes and no. I don’t have superannuation – just a roll-over fund.” In his more recent Financial Statement he had disclosed superannuation worth $6,587.
79.    In cross-examination on 10 August the husband testified that he has receipts for Child Support payments he has made. He subsequently conceded that there has been no child support assessment. When asked if he would bring the receipts for the last 6 months to Court the next day, he said he would, but no receipts were produced.   Later in his cross examination he alleged the payments of child support were amounts he deposited to his son [AS]’s bank account. [AS] turned 16 in April.
80.    In his Financial Statement, in breach of Rule 13.04(1)(8), the husband disclosed no disposals of property. In cross-examination he testified he had in June this year disposed of at least $600,000 by sending it to Cypress [sic], allegedly as a payment to his brother by TFLIN from funds payable to it for licence fees by TFLHW. However, in the financial statements and 2003 and 2004 tax returns of TFLHW he recorded payment of a total of only $396,951 in licence fees.
81.    Although he alleged that the money he extracted from TFLHW in May and June this year was by way of payment of licence fees by TFLHW to TFLIN (an American company), in the 2003/2004 income tax return for TFLHW, he signed a declaration on behalf of the company that there were no dealings with any international related parties, including transfers of property or financial arrangements. And in his personal return for 2003/2004 he declared that he had no direct or indirect interest in a controlled foreign company.
82.    The husband conceded in cross examination that he knew at the time of the borrowings from Adelaide Bank that he needed the wife’s consent to borrow monies and had asked for her consent to borrow $150,000 and she had refused. Then he retreated and said of the agreement of the parties not to sell or encumber properties noted on 5 June 2003, “It wasn’t an order, so I didn’t have to comply.” But he did apply to the Court for its permission to borrow $150,000.
83.    The husband was served with a Notice for Discovery in December 2003 but never provided any list of documents and did not disclose the existence of TFLIN to one firm of solicitors acting for him in the proceedings as he wanted to withhold that information from the wife.
84.    The husband described his de facto wife as owning properties overseas, “selling up and bringing money here”, “a big investor overseas”, and “an investor in Australia”, but when pressed he conceded she does not own any real estate at all in Australia, and by inference from his avoidance of the question, she did not have a solicitor before they signed contracts for her company to purchase 8 properties. He said the deposits were paid to him before the contracts were exchanged. He volunteered, “She’s my partner. Whatever I ask her to do, she’ll do it for me.” On the balance of probabilities she acted on the husband’s instructions and as his agent in the role of shareholder and office bearer of [OPL] and in entering into the contracts, and she paid the deposits with money provided by the husband.
85.    In many areas the husband’s evidence of critical allegations in his case was not corroborated by any other witness, or by any record or other documentation. With many of the allegations critical to his case, it was obvious that there were, or should be, records he could have relied upon that could have corroborated the allegation if it were true, but no such corroboration was offered.    With others there were persons, such as his brother or his accountant, or his de facto wife who on his evidence could have corroborated his uncorroborated evidence, but no such corroboration was offered, nor was any evidence offered to suggest the person could not easily have sworn an affidavit in the proceedings.
86.    The husband in cross-examination testified that his accountant, Mr [P], who witnessed his most recent Financial Statement, could answer a lot of questions in the proceedings regarding the accounts of the companies. He conceded he was not aware of any reason Mr [P] could not have given evidence. He said there was no need for Mr [P] to give evidence.
87.    The husband was shown to at times lie when he thought a lie would assist his interests in the proceedings better than the truth. Much of the most unlikely evidence he gave was not disclosed until during the hearing or only shortly before it, or not disclosed by him until information as to his conduct was discovered by the wife from other sources. The husband’s attitude was to largely ignore his obligations to make full and frank disclosure. He appeared to regard the proceedings as some sort of sport.
88.    Overall the husband presented as a dishonest and extremely unreliable witness. He seemed to have no hesitation in lying or fabricating evidence when he thought it would serve his interests.’

In his affidavit in support of this application the husband puts in issue the trial judge’s finding in paragraph 12 of his judgment that SPL was incorporated by the husband in May 1998 without the wife’s knowledge or consent. The husband refers to his evidence in paragraph 56 and 65 of his affidavit sworn and filed 23 April 2004 in which he asserts he had a conversation with the wife about the incorporation of SPL. He also refers to a cheque butt for a cheque drawn on the SPL account in the sum of
$66 000 dated 18 November 2002 asserted to have been paid to the wife, and provides a photocopy of a cheque butt. He also refers to a deposit of $65 000 which the wife made to the account on 11 June 2002. He asserts this evidence is contrary to the findings of the trial judge.
The trial judge’s findings on the issue of the incorporation of SPL are as follows:
‘12. The husband incorporated [SPL] in May 1998 without the wife’s knowledge and he was the sole director and shareholder. The wife believed that the subsequent purchases of real estate by this company were by TFLHW. In the same month he incorporated TFLIN, again without the wife’s knowledge, and he at all relevant times has been the sole director and shareholder.’
I am satisfied the evidence raised by the husband goes substantially to events after the incorporation of SPL and is not relevant to the findings of the trial judge in paragraph 12 of his judgment, particularly bearing in mind the trial judge’s finding that he accepted the evidence of the wife. The trial judge who had the opportunity to see the husband in the witness box found the husband to be an unreliable and dishonest witness.
The husband then refers to inconsistencies in the judgment and refers to paragraph 24 which deals with interim costs orders and is as follows:
‘The hearing dates were fixed at the Pre-Trial Conference on 10 May 2004. On 21 May 2004 on the return date of the wife’s interim application an interim order was made for each party to be paid $90,000 from TFLHW, by 18 June. Subsequently the husband arranged for each of the parties to receive $90,000.’
There is no dispute the wife received $90 000 as provided for by the interim costs order. The husband asserts he did not receive any funds by way of interim costs. I am unable to discern any prejudice to the husband about the issue of interim costs by reason of the trial judge’s ultimate treatment of the interim costs. The trial judge in his calculation of the parties’ entitlements deducted only from the wife’s entitlement a sum of $90 000 paid to her by way of interim costs. He made no similar deduction from the husband’s entitlement.
The husband challenges the findings of the trial judge in paragraph 43 of the judgment. Paragraph 43 is as follows:
‘The husband says he deposited about $72,000 less charges from [LTMF] into his account in his name with the Commonwealth Bank [in South West Sydney]. His evidence is that he then converted it to cash and sent it overseas, presumably to Cyprus. The evidence establishes that on 9 June 2004 he deposited $585,715 of the funds of TFLHW from Adelaide Bank into an account that he opened that day in his name with [a Cypriot bank in Inner West Sydney]. The same day he withdrew $520,000 and sent it to Cyprus by telegraphic transfer. He apparently used the remaining $66,196 in the account for purposes other than those of TFLHW. At one stage of his cross-examination he testified that he first sent the money to TFLIN and the company then sent the money to his brother in Cyprus, but other evidence clearly establishes that the money from the mortgagees was in the form of cheques payable to him and was deposited directly into bank accounts of his and most of it then sent overseas. There is no evidence that TFLIN has a bank account.’
The husband asserts that during his evidence he said ‘that the $72 000 minus the charges was deposited into the TFLHW bank account and used by TFLHW to pay debts’. He refers to a letter from PP. The husband has not produced transcript of the relevant portion of his evidence. He refers to and annexes a settlement statement showing an amount of $64 881.33 was deposited to the ‘client account’ on 14 May 2004. The husband produces photocopies of Commonwealth Bank account statements which disclose the deposit to the TFLHW account on that day. The bank statements also disclose the following debits to the account shortly thereafter:
·17.5.04 $30 000
·18.5.04 Netbank transfer $4730
·18.5.04 Netbank transfer $11 632.64
·19.5.04 Netbank transfer $10 000
The husband provides no explanation for these withdrawals made in close proximity to the deposit of the funds. I accept that the trial judge was mistaken in his finding that the funds from LTMF were deposited into the husband’s account as they were in fact deposited into the TFLHW account, but I am not satisfied that error is a material error. What is relevant is the trial judge’s finding that the husband conceded he had sent these funds overseas. Of prime significance is the fact that the husband does not dispute the trial judge’s finding, which was supported on the evidence, that on 9 June 2004 the husband deposited $585 715 of the funds of TFLHW received from the Adelaide Bank into an account opened by him that day in his name with a Cypriot bank in Inner West Sydney and then sent $520 000 by telegraphic transfer to Cyprus. In his submissions filed 1 May 2006 the husband says ‘After the use of the slip Rule on 7 December 2005 the value of the net asset pool stood a bit over $1,300,000. I have used 650,000 [sic] from which $90,000 was paid to the wife’s solicitor for legal expenses. The remaining $650,000 was put under the wife’s full control by ownership and sequestration.’. The husband does not explain how he has ‘used’ the $650 000.
The husband says that although he brought child support receipts to Court on the day after his cross examination on the topic, the trial judge said ‘“later” which never happened’ when he sought to tender the receipts. The trial judge records that the payments of child support were made by the husband directly to the child AS’s bank account and not paid to the Child Support Agency or directly to the wife. The husband annexes documents which corroborate that he made payments to AS by direct deposit to AS’s bank account. The husband’s evidence is entirely consistent with the trial judge’s findings. Even if the trial judge did not accept the husband’s tender during one point of the trial as asserted by the husband, it is unclear absent transcript, that the husband sought later in the proceedings to tender the receipts. Further, the trial judge took into account and gave full weight to the husband’s substantial financial contributions to AS when assessing the parties’ respective post separation contributions.
The husband also complains about the trial judge’s findings in respect of trading figures for TFLHW for the 2003 and 2004 years. The trial judge based this finding on Exhibit W11 and the oral evidence of Mr T, the wife’s expert accountant. Mr T, in a letter to the wife’s solicitors dated 10 August 2004 which became Exhibit W11, said:
‘I have now been provided with financial statements and tax returns for [TFLHW] for the years ended 30 June 2003 and 30 June 2004.
The financial statements reveal a loss for the 2003 and 2004 years of $156,171 and $244,500 respectively. The principle reason for the loss in these years is the payment of overseas royalties totaling [sic] $396,951 (2003 $244,500, 2004 $152,451).
From a commercial point of view I find the quantum of these transactions extraordinary.
The amounts of the royalties represent 74.5% of the turnover for these two years. Usually in a franchise system royalties of around 5% of gross sales could be expected.
Based on the comments I have made above I would not be prepared to accept that the financial statements for 2003 and 2004 are a true representation of the business and only reinforce my comments on pages 6 and 7 of my earlier report regarding the sales shortfalls, gross profit shortfalls and the access to information generally.’
The trial judge was entitled to accept and rely on this expert evidence.
The husband challenges the trial judge’s acceptance of the wife’s evidence, the rejection of his evidence, and asserts that there is an inference the trial judge did not ‘read my affidavit at all for reasons unknown’. As I have previously set out, the husband also asserts ‘Mr Justice Mullane made several threats towards me for imprisonment during the trial. While I was crossed [sic] examined I felt I was under duress to give evidence in certain way in order to avoid imprisonment. Some of my evidence were [sic] probably misunderstood or ignored for reasons unknown. His honour [sic] finds [sic] were heavily in favour towards my ex wife’.
There is no evidence before me by way of transcript which would support the assertions made by the husband. Balanced against that lack of evidence, is the corroborated evidence of the husband remitting funds out of Australia, the effect of which has been, to date, to put beyond the reach of the wife funds which should be available for division between the parties under s 79. That conduct of the husband does not support the exercise of discretion in his favour to extend time to appeal

The nature of the litigation

The principal proceedings were proceedings for property settlement under s 79. The parties each had the opportunity to put their competing cases and evidence supporting their cases before the trial judge. There has been a lack of compliance by the husband with the Court’s orders. The husband has been before the Court on numerous occasions since the orders of 13 September 2004. He has at times been represented by experienced counsel in the proceedings subsequent to the orders of 13 September 2004 and prior to filing this application. He had the opportunity at those times to seek legal advice about an extension of time. He gives no evidence about obtaining, or seeking to obtain, any legal advice about his rights. He does not say he had no legal advice about the time limits in which to appeal. Whilst he refers to distress about the orders made on 13 September 2004, that distress did not preclude him from defending the contempt and contravention applications brought after September 2004. It is clear from the record that he has vigorously defended these applications.
The husband raises in his submissions an assertion that following an argument between the wife and AS, AS commenced living with him, and that he has responsibility, including financial responsibility, for AS. That fact may be an appropriate circumstance for an application to be brought under s 79A(1)(d). It is not an appeal ground.

Consequence for the parties of the grant or refusal of the application for extension of time

The consequences for the husband of a refusal is that he will be bound to pay the sums due to the wife under the s 79 orders. The husband does not challenge the trial judge’s assessment of contributions or adjustment under s 75(2). The main thrust of his challenge, namely the accidental ‘double count’ appears to have been overcome by the subsequent consent orders. I am satisfied the issues, including lack of procedural fairness, other than the slip rule issue, raised by the husband as supporting an appeal are not substantial, and the prospects of success of an appeal on the material before me are slight.
The effect on the wife if the extension of time in which to appeal is granted is a continuation of the proceedings with attendant legal and emotional costs. She has not received the total sum due to her under the trial judge’s orders and has been involved in lengthy and costly enforcement proceedings. However, I do take into account that she was aware of the ‘double count’ in the trial judge’s reasons and orders and did not take any steps to rectify that error until the husband brought this application. That fact militates against exercising the discretion in her favour.

The prospects of success of the appeal

I have already noted on the material before me it appears that the prospects of a successful appeal are minimal, but they could not be regarded as hopeless.

Can hardship or injustice to the respondent be compensated by an order for costs?

The husband to date has failed to comply with orders. It is unlikely, absent an order for security for costs, that the husband would comply with an order to pay costs to the wife in the event he was unsuccessful in the appeal.

CONCLUSION

The husband seeks, in the exercise of discretion, that he be granted an extension of time to appeal orders some nine months out of time. His conduct, as found by the trial judge, includes a failure to make a full, frank and complete disclosure of his financial position, and a positive course of conduct, by sending funds overseas, to defeat or frustrate the wife’s claims under s 79. Save and except a ‘double counting’ error, which has been rectified by subsequent orders, the husband’s material does not suggest a firm basis for an appeal. However, the husband was not heard on that application. The wife does not assert the husband had the opportunity to be heard and failed to avail himself of the opportunity on 7 December 2005. This is the substantial factor in the husband’s favour in granting leave.
The husband provides no evidence in support of his assertion of emotional distress to support his contention for delay in bringing this application, and I give no weight to this assertion.
I have taken into account the husband’s difficulties as a self represented litigant. I am satisfied in this application he has been afforded procedural fairness and that his application has not been restricted by the requirements of the rules. On balance having regard to all the matters discussed above, I am satisfied that balancing overall prejudice to the husband of refusing leave marginally outweighs the prejudice to the wife, and accordingly leave should be granted.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate:
Date: 2 June 2006

[2006] FamCA 465

2 June 2006

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