SALTWICK & SALTWICK
[2011] FamCAFC 166
•19 July 2011
FAMILY COURT OF AUSTRALIA
| SALTWICK & SALTWICK | [2011] FamCAFC 166 |
| FAMILY LAW - APPLICATION IN AN APPEAL – Application for an extension of time – Where there is no proper explanation for the delay of some 7 months – Where if the appeal had merit the fact that the husband attempted to file a notice of appeal then barely out of time would have been a significant factor in his favour – Where the appeal lacked merit and where the prejudice to the wife outweighed the question of delay – Application dismissed. FAMILY LAW - COSTS – No order made as to costs. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Saltwick |
| RESPONDENT: | Ms Saltwick |
| FILE NUMBER: | BRC | 7513 | of | 2008 |
| APPEAL NUMBER: | NA | 47 | of | 2011 |
| DATE DELIVERED: | 19 July 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 18 July 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 October 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1176 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Butler McDermott Lawyers |
Orders
The husband’s application for leave to appeal the orders of Federal Magistrate Coates made 29 October 2010 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Saltwick & Saltwick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 47 of 2011
File Number: BRC 7513 of 2008
| Mr Saltwick |
Appellant
And
| Ms Saltwick |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 June 2011 the husband filed an application in an appeal asking for leave to file an appeal out of time from the orders of Federal Magistrate Coates made 29 October 2010.
The orders sought to be appealed relate to the parties property proceedings. The husband wishes to appeal orders 1, 2 and 4. Those orders are in the following terms:
1.That pursuant to s.78 of the Family Law Act 1975 (as amended) the wife be declared to be the sole owner of the property situated at [P], … (“the [P] property”) with effect as and from 28 August 2001.
2.That in order to give effect to the said declaration the husband forthwith transfer to the wife all his right title and interest in the [P] property.
…
4.That save as is otherwise provided herein the wife retain to the exclusion of the husband all property and financial resources currently in her name, possession or control including:-
(a)The sale proceeds of motor sailor “[O]”;
(b)The ride-on mower;
(c)The 1979 [T] utility;
(d)The 2004 [H]convertible;
(e)All investments held by the wife; and
(f)Personal property.
It should also be added that the following orders were made providing some property to the husband:
3.That pursuant to s.79 save as is otherwise provided herein the husband retain to the exclusion of the wife all property and financial resources currently in his name, possession or control including:-
(a)His 1982 [R vehicle] or the sale proceeds thereof;
(b)His caravan; and
(c)Items of personal contents and furniture.
…
5.By consent, the wife will return to the husband an anchor, chain and bollard if found in the rubble of the burnt out marital property, personal effects including clothing and walking sticks and other personal items.
It is of some relevance to mention that the Federal Magistrate made the following orders on the same occasion as the property orders were made:
6.Pursuant to s.114(1)(a), by injunction, the husband is restrained from contacting or approaching the wife in any manner whatsoever, other than through a lawyer, and is restrained from harming her or attempting to harm her in any way by acts or omissions which would otherwise be offences under the Criminal Code of Queensland.
7.Pursuant to s.121 of the Family Law Act 1975, the wife may publish these reasons to the Queensland Police Service and Queensland Corrective Services when taking steps to protect herself before or upon the husband’s release from prison.
If leave is granted the husband is approximately 7 months late in filing an appeal. The wife asks that the husband’s application be dismissed and that he pay her costs of and incidental to the application.
The husband filed an accompanying affidavit with the application in an appeal. He has also provided the Registry with two bundles of additional documentation. This new material was filed on 12 July 2011 and 14 July 2011 respectively, and has been served on the wife’s solicitors. I have also read this further material.
Background
The parties met in the early 1990’s when the husband was a paying boarder at the wife’s residence. They married in 1992 and separated in March 2007, after a 15 year marriage.
The parties’ home was destroyed by a fire in 2007. The husband was convicted of arson after a trial and sentenced to five years imprisonment.
The wife filed her application for property settlement after the home was burnt down.
In her amended application the wife sought orders that would allow her to take what was left of the marital property, with the exception of some personal items that she would return to the husband.
The husband who appeared, as he did yesterday, by video link from the … maximum security prison, sought an adjournment before the Federal Magistrate on medical grounds and so that he could obtain legal advice. The husband also explained to the Federal Magistrate that he was appealing his conviction and sentence and that the property proceedings should be adjourned until the end of that appeal process.
The Federal Magistrate dismissed the husband’s application for an adjournment. It was ascertained that the husband’s appeal against his conviction and sentence had been dismissed and he had not yet filed an application for special leave in the High Court. His Honour was also of the view that the husband had the ability to receive appropriate legal advice from the Prisoner’s Legal Service. The husband’s application was also dismissed as the wife was “in needy circumstances because of her health”.
The Federal Magistrate in his reasons for judgment explained as best he could what the husband sought at trial:
11.Initially he stated he wanted a reliable vehicle, an electric wheelchair, money to furnish a flat, money to replace clothes destroyed in the fire (and he blamed the wife for the fire), money to pay for a grave and the anchor, chain and bollard from a jointly owned boat. He referred to a figure of about $20,000.00, but I was not sure whether that was on top of the list of things he wanted.
12.During questioning of the wife he stated he wanted his financial contributions returned. His evidence was muddled but he said: “My contributions right the way throughout the marriage were well over ($) 650,000 I would think, because I put ($) 360,000 on the property out…I brought ($)415,000 into the marriage and I figure I’m…All right? I think I should get a lot of it back. Money so that I can live some quality of life in the condition that I’m in. Yes? Plus a bottle of scotch”. (original emphasis)
To appreciate the property pool and the effect of the orders made by the Federal Magistrate it is of assistance to set out parts of the Federal Magistrate’s reasons:
21.The contents of the pool was taken from the wife’s evidence and not effectively disputed. Two experts gave unchallenged evidence of relevant valuations, although the husband said their valuations were a little low as he “always goes by what local real estate…the area is like, you know”. The husband’s opinion of values is not evidence and so I accept the valuations by the experts. The pool and values then are:
ASSETS
1
Land on which the former matrimonial stood
E$340,000
2
Motor sailer “[O]”
E$10,000
3
Ride-on mower
E$10,000
4
1982 [R vehicle]
$3000
5
1979 [T]utility
$500
6
2004 [H] convertible
$$21,000
7
Balance insurance funds
$205,831
8
… Income Plan – wife
$28,000
9
… Pension Income Plan – wife
$72,990
10
Household contents and garden furniture
E$2500
11
Husband’s caravan
E$1800
12
Contents husband’s possession
$1000
8
Addback respondents share building insurance
$147,855
LIABILITIES
1
[E]
$20,000
(original emphasis)
The evidence revealed a wide disparity in the contributions made by the parties as can be seen from the reasons:
23. The wife’s initial contributions were not effectively disputed, being:
(a)Real estate shop at [V] in New South Wales and [a] business with income, which when sold, left about $55,000;
(b)[F], NSW, property sold in September 1999 for $550,000;
(c)Furniture, heirlooms, paintings, artefacts and contents with replacement value of $150,000 and market value of about $75,000;
(d) 1979 [H] utility valued at about $3,000;
(e) 1966 MGB valued at about $6,000;
(f) 1922 [T] valued at about $10,000;
All totalling about $699,000.
24. The husband contributed:
(a) A [H] van valued at about $3,000;
(b) Trailer valued at about $1,000;
(c)Painters’ scaffolding valued at about $1,800, totalling about $5,800.
(d)He also said he later purchased a television and stereo for about $2,600.
…
27.There were some other minor disputes about early contributions, but there is no doubt that the husband’s financial contribution was insignificant.
28.However, despite his conviction for arson and other offenses against the wife, she did not downplay the husband’s later financial contributions, including the $6,000 towards the Range Rover repairs.
29.She in fact said he contributed very generously from his pension, which he went on in 1999, although she did not accept that he contributed the $415,000 he claimed during his questioning of her. I accept that he did not produce evidence even suggesting he had that type of money to contribute.
30.On selling up in NSW the wife had money to pay for a house at [P] …, an early 1900s Queenslander ...
31. She paid $240,000.
32.I accept that the respondent did not contribute to the purchase price and did not have the funds to do so.
33.The wife conceded in her evidence-in-chief that the husband contributed to moving and that he did work on the marital properties.
34.The wife also had money left over to place $110,000 in managed funds with the NAB and purchase a $60,000 annuity from MLC. Her investments provided an income of $1000 a month, which was used to pay for the overheads of the property and to live on.
35.She also had money to renovate the property, purchase a wooden boat called [M] for $8,000, purchase and restore a 32 foot boat called … as swimming pool ornamentation for $10,000, although the husband said $8,000, and give some money to her three children. The husband said [M] was purchased for $4,000. Given the manner he conducted the trial and other observations I will refer to in the course of these reasons, I accept the wife’s valuation.
36.She also had money to purchase a [R] vehicle for $12,000, spending another $11,000 on the motor and mechanics and a motor sailor called [O] for $9,000.
37.The husband stated he purchased house guttering for $2,200, which was not challenged, but he said he did about $70,000 work on the house, which I do not accept.
38. He purchased ceiling fans for $2,000.
39.He confirmed putting a deposit of $12,000 for a [H vehicle] on his credit card and the wife had to organise another $27,000 by way of loan for the vehicle with [E]. I gathered she was not happy about the situation.
40.I also need to mention that the husband claimed, again unfairly when questioning the wife, that his work increased the value of the house by $200,000. The wife stated he did contribute non-financially to decorations, but she did not put “such a great sum” on it as $200,000. I do not then accept there is evidence to make a finding in the husband’s favour on that issue.
41.In about mid-2000 the wife went onto the age pension and the husband had begun receiving a disability pension.
Ultimately his Honour found in the reasons:
142.I do not feel that any further adjustment in his favour would be just and equitable as he should not be seen to be profiting from his acts which destroyed his property but much of the wife’s property in an act of malice.
The husband, in the affidavit filed in support of this application states:
I am not guilty of burning our home. Why the hell would I do that- Now medically I can prove that I could not possibly have done it as I suffer from oxygen starvation and can not walk without oxygen- and would not disadvantage not only myself but my darling wife and my own children.
Relevant Law
The principles emerging from Gallo v Dawson (1990) 93 ALR 479 and subsequent authorities may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Reason for the delay
In the husband’s affidavit he explains that he sent to the Appeals Registry a notice of appeal dated 24 November 2010. The grounds of appeal asserted in that notice of appeal provide:
1.That Federal Magistrate Coates was wrong throughout the judgment. That I should have been given an adjournment as stated on letter. Facts of support application evidence to support this letter to Butler McDermott 20.05.10. I also sent a hand written one some weeks before same content.
2.I do not believe that Federal Magistrate Coates could have read all the evidence sent to Federal Magistrate Spelleken, trial transcripts etc. Also evidence of my wife’s lies and perjury evidence- that my wife used perjured documentation in hearing to disadvantage me financially that perjured evidence used throughout to disadvantage me and I really believe and would like police charges laid on my wife and man friend trying to pervert the course of justice.
The orders sought were:
I would like to ask that a judge read this the evidence enclosed and grant special circumstances in public interest.
1. 50 per cent across the board including investments.
2. All orders and judgment withdrawn.
3.Because my wife and I have got large tax debts and should never gone through the Family Law Courts. It is not in the publics interest tax debt around $250,000, could be more with fine penalties and interest (evidence in documentation of surrender to taxation).
4.Other evidence that if orders are not withdrawn that a retrial be granted in my enclosed letter. Facts in support of an application.
5.That it is the public interest these large tax debts are paid and new order be given with what moneys are left.
The terms of the grounds and the orders sought have been set out in full, in view of counsel for the wife’s submission that it can be seen immediately that even if this document had been filed in time, there was no prospect of success of such an appeal.
In relation to the husband’s first attempt to file an appeal, he says that on 14 February 2011 he received a letter from the Registry informing him that he was required to file an application for an extension of time. That letter was dated 14 December 2010 and said:
…
Proposed appeal
I return the documents that you lodged with the Northern Appeals Registry for filing and have declined to file them for the following reasons:
1.The orders that you seek to appeal were made on 29 October 2010 and thus any appeal would have to been filed within 28 days of that order;
2.Therefore you are out of time to appeal that decision.
Should however you wish to pursue the appeal, you will have to file an application in an appeal that seeks leave to extend the time for filing of a Notice of Appeal. That application must be supported by an affidavit that deals with the evidence that you base your application on and has annexed to it a copy of the draft Notice of Appeal that you will seek to file if given leave.
…
The husband explains that he did not receive the letter until 14 February 2011, some two months later than it was sent, as he suffered a seizure and was in hospital for approximately one month. The husband was also moved to another prison when discharged from hospital, before returning to the … Correctional Centre. For the purpose of these proceedings, although in the absence of evidence, this assertion is accepted.
The next occasion any correspondence was received from the husband was on 2 June 2011 when the Registry received a handwritten letter from the husband. That letter said:
…
Many thanks for your help and understanding.
Hope I got it right. Could you please file the draft notice for me.
…
A bundle of documents were annexed to the letter. At the top of the document it said:
Sir this is not part of my application but to explain my position. The rest of the documentation is for extension of time and affidavit which I would like to include if granted.
On 6 June 2011 the Registry wrote to the husband. The letter was in the following terms:
…
Proposed appeal
I am returning the enclosed documents unfiled.
If you want to appeal you will need to file a draft notice of appeal together with these documents. The notice of appeal must annex the orders you are appealing against.
I have enclosed a blank notice of appeal.
…
Until the filing of this application together with a proposed notice of appeal no such document was filed by the husband.
The husband is unwell and also relies on his medical circumstances for the delay in filing the notice of appeal. He suffers from numerous health problems, including emphysema, diabetes, pulmonary hypertension, acute pulmonary oedema, ischemia and peripheral vascular disease. The husband says he is terminally ill. No evidence is filed by the husband from a medical practitioner for this application, nor before the Federal Magistrate.
He also submits that his denial of legal aid funding also contributed to the delay in filing the notice of appeal.
There is no evidence that the husband applied for legal aid and any response from Legal Aid Queensland.
Possible prejudice
The husband is approximately 7 months out of time in filing his notice of appeal.
Should leave be granted the wife will be prejudiced by the inconvenience and expense of the appeal. To the extent possible the wife has proceeded with her life based on the orders made by the Federal Magistrate. The wife and her solicitors were unaware of the various correspondences between the husband and the court.
In the wife’s affidavit filed in response to the husband’s written submissions it is said:
11.I have incurred costs in the amount more than $70,000.00 trying to have these Federal Magistrates court proceedings brought to an end and in dealing with RACQ in order to recover the insurance funds which were retained by RACQ because the property was damaged as a result of the arson of the husband, a joint policy holder.
12.I have been informed by my Solicitors and verily believe, that the estimate of costs in defending this Application for Leave to Proceed out of Time in relation to the Appeal is approximately $15,000.00.
13.The estimate of costs I have received from my Solicitors to defend the Appeal if the husband were to proceed is approximately $15,000.00 to $20,000.00.
14. The balance of funds that I hold as a result of the property settlement proceedings are approximately $200,000.00 (before the costs of these proceedings).
15.The value of the real property at [P] is approximately $250,000.00.
16.The amount I hold in investments is now approximately $50,000.00.
17.This is all I have left to try and re-house myself and provide for myself for the rest of my life.
18.I am 74 years of age (almost 75), retired and have no income other than that that I can earn from my investments.
19.I am fearful of the former husband and am concerned that if he is released from prison I will need to have the assistance of the Victims Management Group.
Merits of the appeal
In the proposed notice of appeal attached to the husband’s application for an extension of time the husband asserts four grounds of appeal as follows:
1.Substantial injustice- firstly I believe I should have been granted an adjournment as I explained on affidavit enclosed.
2.I was given one weeks notice of hearing by Butler McDermott who did not let me know it was in Brisbane- as I wanted to be present- I also wanted to appeal to the High Court which I could not do as I had an outstanding charge which I had not gone on trial till 21st March 2011 of which I am now appealing as it was used unjustly at my original trial.
3.I also believe Federal Magistrate Coates was totally biased of what I put into our marriage and toward me as per enclosed affidavit I should have received at least 45 per cent which I believe is anything should have gone to RACQ Insurance and its members or taxation as I believe it to be in the public interest that this is paid. I have explained all this on affidavit.
4.Also the Federal Magistrates comments about me all through documentation is 80 per cent untrue of me. I am a good person. My wife lied throughout this episode in our lives and has highly significant psychological problems and is a pathological liar proof enclosed.
Should the appeal be allowed the husband seeks 45 per cent of the value of the P property, that he be provided with a car until his death, half of the sale proceeds of the motor boat O, half the investments held by the wife, all of his tools and his wedding ring.
It can be seen from parts of the reasons for judgment reproduced here that the husband’s claim is entirely unrealistic, not based on any evidence before the Federal Magistrate and entirely unlikely to succeed.
His Honour found that the husband would have been entitled to 35 per cent of the property pool but for the fire. Taking into account the destruction of property, including some paintings particularly of value to the wife, serious family violence occasioned by the husband to the wife, including threatening her life, the husband’s contributions as assessed by the trial judge was considerably reduced:
81.Had it not been for the fire, the pool would have consisted of the house valued at $625,000 and belongings valued at $210,334. The wife estimated her loss, on figures from valuations and insurance payouts, to be $352,951. She estimated the insurance addback figure for waste or negative contribution or use contrary to the wife’s interests to be $147,855.
…
83.The husband’s act of arson was a course of conduct which was reckless, negligent and wanton destruction of matrimonial assets.
In considering the parties current circumstances the Federal Magistrate made the following findings about the wife:
96.Since the fire I accept her evidence that she has suffered shakiness, tremors, teariness and feelings of grief. She continually feels tired, depressed and has chest pains, dizziness, nausea, cold sweats, tension and chronic stress. She is being treated for post traumatic stress disorder. She has difficulty sleeping and feelings of emptiness and loneliness.
97.She fears for her life and an escalation of violence when the husband is released from prison.
98. She said friends appear to be afraid to keep contact with her.
99.She is prescribed aspirin and Atacand for blood pressure, Frisium for anxiety, Ibuprofen as an anti-inflammatory for the shoulder injury, Panadene Forte for shoulder pain, Stilnox for sleeping, Lexapro for depression, Nexium to offset the affects of Ibuprofen and Ventolin and Symbicort for asthma.
…
102.The wife, on what is left of her resources, particularly from the insurance payment, has taken care of joint debt. She does not have a great deal left and certainly not that amount which would see her maintain her former standard of living.
And of the husband:
The husband suffers from numerous health problems, including emphysema, diabetes, pulmonary hypertension, acute pulmonary oedema, ischemia and peripheral vascular disease. He says he is terminally ill.
Apart from the property offered by the wife the Federal Magistrate decided that no adjustment should be made and in effect that the husband received no part of the parties’ assets.
The husband has not paid the $22,500 awarded to the wife for criminal injury compensation and in view of his financial circumstances is unable to do so.
Conclusion
In the circumstances of this case I am of the view that leave should not be granted.
Delay
There is no proper explanation for the delay from 14 February 2011 to 22 June 2011. However, if the appeal had some merit the fact that the husband attempted to file a notice of appeal and that it was barely out of time would have been a significant fact in his favour. In this matter, the absence of merit and prejudice to the wife outweigh the question of delay.
Merit
The husband contends that an adjournment should have been granted. It seems however that an adjournment would have made no difference. The husband said in this application that had there been an adjournment he might have been able to assemble the necessary money to seek Special Leave to appeal to the High Court of Australia against his criminal conviction. It is difficult to immediately see how the husband might have obtained that money and the extent to which special leave could have altered his appeal in the property proceedings other than the conviction being set aside.
The husband also suggested that if there had been an adjournment he could have obtained further medical evidence to prove that he could not have lighted the fire. The conviction is conclusive and such medical evidence could not properly have been considered by a trial judge to make findings contrary to that of a properly instructed jury.
In addition, in relation to the husband’s submissions about an adjournment, it emerged that what the husband was particularly concerned to achieve in an appeal was repaying substantial moneys to the Commissioner for Taxation and RACQ Insurance.
In relation to the alleged tax debt the husband informed the court that the wife had received some $1,000 per week in cash from the husband and an amended tax return should be filed.
Likewise the husband contends that it is in the public interest that that tax be paid together with a return to RACQ Insurance of the sum of $40,000 for the husband’s possessions, including some model ships and other valuables. It is his view that those moneys should not have been paid out to the wife but retained by the insurance company. It is impossible to see that an adjournment would have made any difference in the husband’s case as such a remedy is not available in property proceedings.
It was also submitted by the husband that he was given one weeks notice of the hearing by the solicitors for the wife and that they did not let him know that it was in Brisbane.
First, as properly submitted by Mr Galloway, the location was irrelevant as the husband at that time was imprisoned.
Secondly, of course it was not the responsibility of the solicitors for the wife to inform the husband of the date of the hearing. The wife’s application was originally filed in August 2008 and followed by many directions hearings. The husband filed material in the proceedings.
In addition, at the trial the husband cross examined the wife at considerable length and despite filing an affidavit gave lengthy oral evidence himself.
In response to the submissions in relation to the merit of the appeal Mr Galloway no doubt correctly observed that the husband may well confuse an idea of bias on the part of the Federal Magistrate with adverse findings made against him. It is correct that there is no impression given of bias on the face of the judgment and the husband apparently did not during the proceedings ask the Federal Magistrate to excuse himself on that ground.
Prejudice
The husband asserts that in view of his current circumstances there can be no real prejudice to the wife in leave being granted. Mr Galloway correctly referred to the significant impact on the wife of the burning of her home and contents and the serious family violence. The impact on the wife can be seen from the medical evidence included in the husband’s material from a psychologist. The financial circumstances of the wife have already been referred to and demonstrate that she is now in limited circumstances to rehouse herself and support herself into the future.
A significant fact in relation to the prejudice occasioned to the wife should leave be given is that the husband has no capacity to pay her costs should the appeal fail.
Costs
At the conclusion of the hearing submissions as to costs were heard.
The husband submitted that should the application be dismissed no order as to costs should be made.
Counsel for the wife submitted that should the husband be unsuccessful in his application, a costs order should be made against him, as he may some day be able to satisfy such an order.
Although the application was entirely unmeritorious there are no other circumstances that could justify an order for costs.
There will be no order as to costs.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 July 2011.
Associate:
Date: 19 July 2011