Saso & Saso (No 3)
[2024] FedCFamC1A 113
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saso & Saso (No 3) [2024] FedCFamC1A 113
Appeal from: Saso & Saso (No 3) [2024] FedCFamC2F 145 Appeal number: NAA 53 of 2024 File number: BRC 881 of 2021 Judgment of: TREE J Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – APPEAL – Property – Summary dismissal – Where the appellant failed to comply with procedural orders – Where only days before the appeal hearing the appellant filed an Application in an Appeal seeking an extension of time to file her Summary of Argument – Where the practical consequence of any extension would be the adjournment of the appeal hearing and result in a clear prejudice to the respondent – Where the appellant’s grounds of appeal are a repetition of arguments she advanced in a previous appeal, or are misconceived – Where no viable challenge to the primary judge’s orders can be discerned – Application in an Appeal dismissed – Appeal summarily dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 102NA, 102NB
Federal Circuit and Family Court of AustraliaAct 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.45, 15.06
Cases cited: Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106
De Winter v De Winter (1979) 23 ALR 211
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Saso & Saso (No 2) [2023] FedCFamC1A 179
Saso & Saso (No 2) [2023] FedCFamC2F 1196
Saso & Saso [2023] FedCFamC1A 65
Number of paragraphs: 61 Date of hearing: 25 June 2024 Place: Cairns (via video link) The Appellant: Litigant in person Counsel for the Respondent: Ms Dart Solicitor for the Respondent: C & C Law ORDERS
NAA 53 of 2024
BRC 881 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SASO
Appellant
AND: MR SASO
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
25 JUNE 2024
ON 25 JUNE 2024 THE COURT ORDERED THAT:
1.The Application in an Appeal filed 21 June 2024 is dismissed.
2.The Amended Notice of Appeal filed 2 April 2024 is dismissed.
3.The appellant is to pay the respondent’s costs in the sum of $5,300 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saso & Saso (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 8 February 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final property settlement orders in proceedings between Mr Saso (“the husband”) and Ms Saso (“the wife”).
On 7 March 2024 the wife appealed from those orders, and on 2 April 2024 filed an Amended Notice of Appeal.
On 15 April 2024 an Appeal Judicial Registrar made orders for the filing and service of the parties’ Summaries of Argument. The wife’s was due on 24 May 2024, but was not filed by then, or at any time thereafter. The husband’s was filed, as ordered, on 14 June 2024.
By Application in an Appeal filed 21 June 2024, the wife seeks the following orders:
1.The Court grant to the [wife] the application to extend time to file and serve the Further Amended Notice of Appeal, the [wife’s] Summary of Argument, and List of Authorities.
2.The Court grant to the [wife] the application to adduce further evidence to substantiate the appellant’s grounds of appeal.
The wife’s application was opposed by the husband, who also sought that the appeal be dismissed.
On 25 June 2024 I dismissed the wife’s Application in an Appeal, and her appeal, and ordered that within 28 days she pay the husband’s costs in the sum of $5,300, but reserved my reasons. These are those reasons.
THE WIFE’S APPLICATION IN AN APPEAL
Regarding the relief sought by paragraph 1 of the wife’s Application in an Appeal, the discretionary power to extend time pursuant to r 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) has typically been referenced to the statement by McHugh J in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:
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 and 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 194-195.
Typically, when the Court is dealing with the purely procedural question of an extension of time in an appeal already pending before the Court (as is the case here) the merits of the appeal are not a relevant consideration. That is, unless the Court can be satisfied that the appeal is so unmeritorious that it would be futile to grant an extension of time (Jackamarra v Krakouer (1998) 195 CLR 516 at [7] (“Jackamarra”)).
Addressing those matters, I make the following observations.
As to the nature and history of the proceedings, the property settlement claim commenced on 22 January 2021. As explained by the primary judge at [12]–[45] of her Honour’s earlier reasons in Saso & Saso (No 2) [2023] FedCFamC2F 1196, the proceedings have been attended by numerous instances of delay by the wife, who has regularly changed solicitors and unsuccessfully sought adjournments, including twice seeking to adjourn the first trial of the proceedings before another judge in September 2022. That said, the wife did successfully appeal the orders made at the ensuing undefended hearing (Saso & Saso [2023] FedCFamC1A 65), and the proceedings were remitted for rehearing.
Shortly thereafter the matter came before the primary judge, on which occasion procedural directions were made to ready the matter for trial commencing 6 September 2023. However not only did the wife not comply with those directions, but on 5 September 2023 she filed an Application in a Proceeding to adjourn the trial for not less than three months. That application was dismissed by the primary judge on 14 September 2023, (although for other reasons the trial was nonetheless adjourned to 9 October 2023) from which orders the wife appealed. However despite that appeal, the trial before the primary judge ran on 9 October 2023, with a second day for submissions on 25 October 2023.
On 19 October 2023 Austin J summarily dismissed the wife’s appeal from the 14 September 2023 orders (Saso & Saso (No 2) [2023] FedCFamC1A 179).
Under the 8 February 2024 orders, amongst many things, the primary judge ordered that the wife vacate the former matrimonial home, and that it be sold. The wife had been living in that home since separation, and indeed during the relationship, for many years prior.
As to the conduct of the parties, the wife has not assisted the prompt resolution of the proceedings. Although I could not be satisfied of the motive/s behind her conduct, it/they are at least consistent with a desire to remain living rent free in the former matrimonial home for as long as possible.
As to the length of the delay and any explanation for it, in the wife’s affidavit filed on 21 June 2024 in support of her contemporaneously filed Application in an Appeal, she very broadly says she is in poor health, and annexed two medical certificates dated 14 and 19 June 2024 which assert she is unfit to attend court for an unspecified period, and unable to represent herself in court until at least 14 September 2024.
However the affidavit does not directly explain why her Summary of Argument was unable to be filed by 24 May 2024, nor in the month thereafter. Moreover, it simply cannot be the case that the wife was wholly disabled in that time, as on 24 May 2024 she emailed the relevant court registry requesting an extension of time of 5 days in which to file her Summary of Argument and List of Authorities (although she did in her 24 May 2024 email annexe a medical certificate, but it was not in evidence before me). Further, although she was advised on 24 May 2024 that she needed to bring an application to seek the extension of time, none was made until 21 June 2024.
Curiously, the affidavit of 21 June 2024 did not annexe any Further Amended Notice of Appeal, Summary of Argument or List of Authorities, nor did it nominate any time by which they might be filed. Moreover, the wife sought no adjournment of the hearing of the appeal listed for 25 June 2024. Perhaps, in the circumstances such an application was implicit, but it is unclear.
There is thus no clear explanation for the wife’s failure to file the Summary of Argument by the due date, nor why it could not have been filed thereafter.
I shall discuss the merits of the extant grounds of appeal when addressing its dismissal. Suffice to say none appear to enjoy merit.
If the extension of time were refused, the wife would have to confront the application (or a listing at the Court’s own motion) for dismissal of her appeal under r 13.45 of the Rules for non-compliance with the 15 April 2024 orders. Should her appeal survive the practical consequence would be that it would need to again be listed for hearing.
If the extension of time were granted, then the appeal would, at least if orders as sought by the wife were made, be adjourned until at least 14 September 2024, and perhaps far longer. That is a clear prejudice to the husband.
Weighing those matters told strongly against ordering in the terms sought by paragraph 1 of the wife’s Application in an Appeal, or indeed in anything like those terms, and hence that part of the application was dismissed.
As to the relief sought by paragraph 2 of the wife’s Application in an Appeal, the appeal’s dismissal renders it unnecessary to consider it further.
Thus on 25 June 2024 I dismissed the wife’s Application in an Appeal filed 21 June 2024.
THE DISMISSAL OF THE WIFE’S APPEAL
The relevant rule pertaining to the dismissal of appeals is r 13.45 of the Rules which provides:
(1) This rule applies if:
(a) an appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Family Law Regulations; or
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i)dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
…
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.
…
The principles pertaining to the relevant predecessor of that rule were discussed by the Full Court in Bethke & Bethke (2019) FLC 93-906, in the course of which the court said:
25.In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …
(Emphasis added)
Rule 13.45 is a family law practice and procedure provision as that term is defined in s 67(4) of the Federal Circuit and Family Court of AustraliaAct 2021 (Cth) (“the Act”). It follows that ss 67(1)–(3) of the Act are engaged here. They provide:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
Further, s 68(1) of the Act provides:
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
On 3 June 2024 an Appeal Judicial Registrar wrote to the parties in the following terms:
…
I note that the following non-compliance by the Appellant with the order of the Court made on 15 April 2024 has not been remedied:
•The Appellant to file and serve the Summary of Argument and List of Authorities by 24 May 2024.
…
I draw to your attention Section 32(3)(f)(i) of the [Act]. Pursuant to that section, the Court may dismiss an appeal for failure to comply with a direction of the Court.
Rule 13.45 of the Rules sets out the procedure for considering dismissal of an appeal for non- compliance. Pursuant to sub-rule 13.45(3) the Court may make an order under sub-rule (2) on its own initiative.
This correspondence serves as written notice that the Court will consider whether to dismiss the appeal at the hearing listed on Tuesday 25 June 2024 at 2.15pm (AEST).
…
(Emphasis in original)
Although it appears that at any hearing of her appeal, the wife would wish to rely upon a Further Amended Notice of Appeal, I do not have it, nor any draft of it, nor any intimation as to the proposed grounds. All I have is her Amended Notice of Appeal filed 2 April 2024 which runs to 11 grounds, 9 of which allege procedural unfairness. Those grounds are as follows:
1.The primary Judge failed to afford the Wife procedural fairness prior to making the relevant Orders by dismissing the Wife’s Application in a Proceeding filed 5 September 2023 to have the final hearing adjourned for at least 3 months while she engaged new legal representation and ignoring the medical advice given in the affirmed affidavit of General Practitioner [Dr B] dated 31 August 2023 who stated:
(a)In paragraph 49 “It is my medical opinion that [Ms Saso’s] chronic illnesses prevent her from physically attending court.”
(b)In paragraph 50 “It is my medical opinion that [Ms Saso] is unable to represent herself in court due to her fragile state of mind.”
2.The primary Judge erred in listing the separation date as 6 October 2019, when the Husband’s divorce application states that the separation date was 25 May 2020.
3.The primary Judge failed to afford the Wife procedural fairness by Ordering the application for a banning notice to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) section 102NB with Legal Aid on the 6 October 2023, when her Honour had been contacted by the Wife on the 30 August 2023 requesting an adjournment, prior to the hearing on 6 September 2023. All applications to the Scheme must be made at least 12 weeks prior to the final hearing.
4.The primary Judge failed to afford the Wife procedural fairness prior to making the relevant Court Orders by determining that the final hearing proceed, with full knowledge that the Wife at the time of the Orders was self-represented and thereby depriving the Wife of the opportunity to prepare her case with adequate legal representation.
5.The primary Judge failed to afford the Wife procedural fairness prior to making the relevant final Orders by dismissing the Wife’s request for further disclosure when evidence of tax fraud by the Husband was presented as evidence by the Wife. Please see Page 54 paragraphs 10 to 45, and Page 55 paragraphs 5 to 25 of the Court Transcript dated 7 September 2023.
6.The primary Judge failed to afford the Wife procedural fairness prior to making the final Court Orders by dismissing the Wife’s request for further disclosure regarding the illegal withdraw by the Husband of funds from the joint Self-Managed Super Fund to pay for the Husband’s legal fees. Please see Page 66 paragraphs 25 to 40 of Court Transcript dated 7 September 2023.
7.The primary Judge failed to afford the Wife procedural fairness prior by denying the Wife the opportunity to engage a Forensic Accountant to investigate the fraudulent financial activities by the Husband, after the Wife submitted evidence proving the fraudulent financial activities.
8.The primary Judge failed to afford the Wife procedural fairness by dismissing the sworn and/or affirmed affidavits by the Wife’s two adult daughters and close friend, without explained grounds knowing that these affidavits were being relied upon by the Wife at the final trial as proof of family violence.
9.The primary Judge failed to afford the Wife procedural fairness by dismissing the Wife’s financial debts for living expenses for herself and her dependant adult child, even though the Wife produced evidence by way of a Court Order and Loan Agreement.
10.The primary Judge dismissed the Wife’s mental and physical conditions in asking the Wife to file any application for costs within thirty (30) days of the date of the Orders made on the 8 February 2024 and then amended on 8 March 2024.
11.The primary Judge failed to afford the Wife procedural fairness prior to making the relevant Court Orders by determining that the final hearing proceed, with full knowledge that the Wife had filed an Application in a Proceeding for Spousal Maintenance on 30 December 2023.
Whilst as I say, I do not know whether any of those grounds would in fact continue to be pressed in any Further Amended Notice of Appeal, I have nonetheless considered them albeit, of course, without the benefit of any Summary of Argument. I make the following comments.
As indeed do many of the grounds, Ground 1 arises from orders made by the primary judge on 14 September 2023, not the 8 February 2024 orders and thus is prima facie out of time. Indeed Ground 1 is in precisely the same terms as Ground 1 of the wife’s 19 October 2023 Amended Notice of Appeal, which, as I have indicated, was summarily dismissed by Austin J on 19 October 2023. As to that, his Honour said at [13]–[17]:
13.By Order 5 the primary judge granted an adjournment of the trial, but not for as long as the wife sought. She asked for three months but received a one month reprieve instead.
14.Three of the seven grounds of appeal (Grounds 1, 5 and 7) attack Order 5, all of which are styled as errors by the alleged denial of procedural fairness.
15.However, the complaint of denial of procedural fairness is not regularly invoked because the denial of procedural fairness is alleged to only result from the refusal to adjourn the trial for the longer period the wife requested. There are two reasons why the complaint cannot be sustained.
16.First, no appeal lies from a decision about the grant or refusal of an adjournment (s 26(2)(b)(ii) of [the Act]), and Order 5 embodies such a decision.
17.Secondly, the doctrine of procedural fairness concerns the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). In this instance, the wife was given a fair hearing before her adjournment application was determined. Her disappointment with the decision about the length of the adjournment does not mean she was not accorded procedural fairness.
Those observations are equally pertinent here.
Ground 1 is devoid of merit.
Ground 2, even if correct, is an immaterial factual error (De Winter v De Winter (1979) 23 ALR 211).
It appears as though the reference in Ground 3 to s 102NB of the Family Law Act 1975 (Cth) (“the Family Law Act”) is misplaced; assuming it was intended to refer to s 102NA, then it is based on a false premise, as the 102NA order was first made by Judge Coates on 19 May 2022, although seemingly the wife never thereafter sought to seek legal representation under the commonwealth scheme established to mitigate the effects of s 102NA. Indeed during the course of the hearing on 7 September 2023, the primary judge said:
HER HONOUR: Can I say this. A 102NA order has been made; it’s made because, as is correctly pointed out, there’s a protection order in place, and it will be in place at the time of the trial. And it provides the – it’s there for a reason.
[COUNSEL FOR THE HUSBAND]: Yes
HER HONOUR: It provides the – and this is more for [the wife’s] benefit than anything else. It provides the protection that it’s supposed to provide, both to your client and the [the wife], and it also provides her with the ability to have her fees funded by the Legal Aid Office. And if it is, given the history of this matter, the number of lawyers …. to be involved …. not involved, the number of applications for adjournment and the like – if it is that [the wife] doesn’t take-up the benefit of the funding, normally what our – my chambers do is make contact with Legal Aid prior to the trial to see if applications have been made. And if applications haven’t been made or, for some reason, because [the wife] decides that she doesn’t want those lawyers involved to appear for her at the trial, then the trial will proceed on the basis that [the wife] can’t cross-examine your client.
(Transcript 7 August 2023, p.39 lines 14–30)
There is nothing in that exchange which supports the challenge made by this ground, which is forlorn.
Ground 4 is really a repetition of Ground 1, and indeed is a repetition of Ground 7 of her Amended Notice of Appeal filed 19 October 2023, which was summarily dismissed by Austin J on that day. It does not enjoy any prospects of success, for the same reasons as Ground 1 does not either.
Grounds 5 and 6 are not procedural fairness challenges at all, but rather doing the best I can, appear to be a further complaint about what the primary judge did on 14 September 2023. Save for a slight but irrelevant difference, they are cast in identical terms to Grounds 2 and 3 of her Amended Notice of Appeal filed 19 October 2023. As to that, in the course of summarily dismissing that appeal, Austin J said:
26.Order 3 requires the husband to provide further documents to the wife by way of “updated disclosure” by 21 September 2023.
27.The order is attacked by Grounds 2 and 3, both of which complain of the denial of procedural fairness by the primary judge refusing to make an order directing the husband to produce even more documents than were ordered. Self-evidently, the refusal to make an order compelling one party’s disclosure to the other party in more comprehensive terms than was sought by the second party is not a manifestation of procedural unfairness.
28.In any event, the operation of the order has since been exhausted by the trial having been heard. The evidence is closed. The wife did not give evidence at the trial of the husband’s failure to comply with Order 3.
29.In any appeal brought from the orders ultimately made to determine the financial cause, it might be feasible to impugn the judgment on grounds that the primary judge erred by improperly confining the extent of the husband’s financial disclosure.
Plainly the current Grounds 5 and 6 do not do that which Austin J contemplated might be feasible at [29]. Those grounds are without merit.
Ground 7 is really a repetition of Ground 1, albeit just one particular of it. At the hearing of 7 September 2023, the wife explained on several occasions that part of the reason she wanted an adjournment was to retain a forensic accountant to investigate certain matters. The identity of the accountant, their likely costs (and means of payment of them) or time frame involved, were not then stated. Moreover, there was little, if any, reason to then conclude that such an exercise was likely to have any material impact on the balance sheet, whether as to assets or liabilities.
However now the wife has examined a number of documents which, although produced under subpoena and available for inspection at the time of trial before the primary judge, in fact have only been inspected by her since that trial. From these, the wife has identified some transactions undertaken by the husband or associated entities which she thinks are suspicious, and which she says were not the subject of relevant disclosure by the husband. She now seeks to rely upon her suspicions about them as feeding into a renewed argument that a forensic accountant would likely find something to investigate about the transactions.
The wife claimed that she did not have time to inspect these documents prior to trial. Even if that be true, there was a gap of 15 days between the first and second (and as it transpired, last) day of trial, and indeed more than three months whilst judgment was reserved.
In a sense, her argument now is that the suspicious nature of some transactions – which were not put before the primary judge – demonstrate the error of the primary judge’s refusal in September 2023 to adjourn the trial to enable a forensic accountancy investigation. However even now, no such investigation has been undertaken, and hence what, if anything, it might reveal, is pure speculation. That the wife eventually examined documents which were available to her at the time of trial, and now thinks they are suspicious, does not demonstrate error by the primary judge on 14 September 2023.
Ground 7 does not enjoy merit.
Ground 8 appears to have no bearing on the judgment under appeal. In any event it again challenges that which the primary judge did on 14 September 2023, and indeed is a repetition of Ground 6 of the wife’s Amended Notice of Appeal filed 19 October 2023, which was summarily dismissed by Austin J. Relevant to that ground, his Honour said:
18.By Order 6, the primary judge denied the wife leave to rely upon the affidavits of three witnesses at the trial.
19. In that regard, the primary judge said this in the reasons for judgment:
94.Counsel for the Husband objected to the above affidavits being relied upon by the Wife at trial in circumstances where none of the evidence contained therein is relevant to these proceedings.
95.I have heard what the Wife had to say about the relevance of the affidavits provided by her two daughters and friend on her behalf. However, I do not accept that they have any relevance to these proceedings and therefore make an Order that the Wife is not to be given leave to rely upon them at trial.
20. The wife intends to challenge Order 6 by Ground 6, which contends as follows:
The primary Judge failed to afford the Wife procedural fairness prior to making the relevant Court Order Number 6, by not permitting the Wife to rely upon the sworn and/or affirmed affidavits by the Wife’s two adult daughters and a close friend, because Counsel for the Husband objected to the affidavits being relied upon by the Wife at trial.
21.As can be seen, the ground does not assert the nature of the error committed by the primary judge in making the subject order.
22.The parties were each heard by the primary judge about why they contended the contested evidence either was or was not relevant, in which event the complaint of denial of procedural fairness is demonstrably mistaken. Having heard such submissions, her Honour concluded that the evidence should not be received in the trial because it was irrelevant to the issues in dispute. Her Honour was both duty-bound and entitled to decide that evidentiary dispute over the witnesses so as to ensure the litigation was finalised quickly, inexpensively and efficiently (s 192(2)(c) of [the Act]). The primary judge might have made an evidentiary error, but did not deny the mother procedural fairness.
23.Any complaint about the invalidity of the evidentiary decision can be agitated in the context of any appeal brought from the orders which are eventually made to conclude the financial cause between the parties, but the evidentiary ruling is not itself a judgment from which an appeal lies under s 26(1) of [the Act] (Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26; Commonwealth v Mullane (1961) 106 CLR 166 at 169).
The simple repetition of Ground 6 does not do what Austin J contemplated might be possible at [23]. In any event, the three affidavits appear to indeed have been irrelevant to the property proceedings, in that they primarily speak to the husband’s conduct towards the parties’ two daughters during their relationship and subsequently. There is also a poor character assessment of the husband by one of the wife’s friends, who is also the former wife of a business associate of the husband. Now it is true that one of the daughters does traverse some material of the husband, which in substance, denied misconduct by him during the marriage. However no argument based on Kennon & Kennon (1997) FLC 92-757 was raised by the wife at trial, and otherwise the parties’ poor conduct towards each other is generally not relevant to the exercise of discretion under s 79 of the Family Law Act.
Ground 9 is forlorn; the primary judge permissibly refused to not include the wife’s post-separation living expenses as a liability, and indeed usually they are not. In any event, not only is this challenge not one relating to procedural fairness, but being an exercise of discretion, must overcome the difficulties associated with such appeals identified in House v The King (1936) 55 CLR 499 (“House”). No legitimate challenge of the kind articulated there by the High Court is apparent here.
Ground 10 is nonsense, as in fact r 12.13(3) of the Rules provides for a period of 28 days in which an application for costs may be made after a final order is made. Thus the effect of the primary judge’s stipulation of a period of 30 days was more generous than the rules provide.
The wife’s alleged poor health – which did not seem to impede her presentation of her case before the primary judge, or indeed in the hearing before me – did not mean she needed more than 30 days to seek any costs.
To the extent that it may be the husband seeking costs, and thus would see the wife need to respond to any costs application by him shortly after the 30 day period, in fact no costs application has been made by him.
Ground 10 enjoys no prospects of success.
Ground 11 is seemingly really a repetition of one particular of Ground 1. In any event the property trial did not have to be heard with any spouse maintenance claim, nor was any decision not to defer the property trial until the spouse maintenance claim was ready for hearing an improper exercise of discretion of the kind identified in House.
Ground 11 is without merit.
The appeal as cast in the Amended Notice of Appeal is hopeless. Whatever other challenges the wife may have sought to include in a Further Amended Notice of Appeal are simply unknown, but I can discern no viable challenge to the primary judge’s orders for myself.
In accordance with Jackamarra, given that it is clear that the appeal would fail, its dismissal under r 13.45 for failure to comply with procedural directions is amply warranted; to do otherwise would not be acting consistently with the overarching purpose.
I do not overlook that there is, under r 13.45(2), the option of imposing a self-executing order in the event of further non-compliance with a new timetable for the filing of the Summary of Argument (etc). However not only does the lack of merit of the appeal suggest that would be an exercise in futility, especially given that the wife did not identify any date by which the necessary documents would be ready, but further, given her extensive history of non-compliance with directions and last-minute applications for extensions and adjournments, I am satisfied it would simply be deferring the inevitable.
For those reasons I dismissed the appeal.
COSTS
Upon the dismissal of the Application in an Appeal and the Amended Notice of Appeal, the husband sought his costs in the sum of $5,300.
The appeal was hopeless, not prosecuted properly, and the Application in an Appeal also failed. Other than claiming the husband’s costs were “ridiculous,” the only argument advanced by the wife against a costs order was that she intends to appeal my orders, however that is no proper basis to resist the costs claim.
I was satisfied that there should be an order for costs, that the claimed sum was reasonable, and that those costs should be paid within 28 days of 25 June 2024.
I certify that the preceding sixty (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 12 July 2024
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