Saunders and Saunders
[2019] FamCAFC 94
•6 June 2019
FAMILY COURT OF AUSTRALIA
| SAUNDERS & SAUNDERS | [2019] FamCAFC 94 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to appeal from property orders – Principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 – Where the Application in an Appeal was initially not served on the respondent – Where the application was not ready to proceed until some 10 and a half weeks after a Notice of Appeal should have been filed – Where the applicant’s solicitor’s explanation for the delay is essentially that he did not receive the primary judge’s reasons for judgment – Application of the considerations in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 – Balancing exercise – Where there are a series of lengthy unexplained delays and an explanation that is difficult to accept – Where the grounds of appeal do not have substantial merit – Where the prospects of success of the appeal are not strong and are insufficient to overcome the inadequacy and prejudice that has and will be suffered by the respondent – Application dismissed – Applicant to pay respondent’s costs of the application in a fixed amount. |
| Family Law Act 1975 (Cth) s 75(2) Family Law Rules 2004 (Cth) r 1.14, 22.03 |
| D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jess v Scott (1986) 12 FCR 187; [1986] FCA 365 Keating & Keating [2019] FamCAFC 46 Kohan and Kohan (1993) FLC 92-340 Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Mallet v. Mallet (1984) 156 CLR 605; [1984] HCA 21 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087 Tomko v Palasty (No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 |
| APPLICANT: | Mr Saunders |
| RESPONDENT: | Ms Saunders |
| FILE NUMBER: | SYC | 3009 | of | 2015 |
| APPEAL NUMBER: | EA | 38 | of | 2019 |
| DATE DELIVERED: | 6 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 29 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 350 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr F |
| SOLICITOR FOR THE APPLICANT: | G Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J |
| SOLICITOR FOR THE RESPONDENT: | H Lawyers |
Orders
The Application in an Appeal filed on 24 April 2019 is dismissed.
The Applicant pay the Respondent’s costs of this Application fixed in the amount of $3,122.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saunders & Saunders has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 38 of 2019
File Number: SYC 3009 of 2015
| Mr Saunders |
Applicant
And
| Ms Saunders |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 24 April 2019, Mr Saunders (“the applicant”) seeks an extension of time in which to appeal from orders made by a judge of the Federal Circuit Court of Australia on 15 February 2019 in proceedings against Ms Saunders (“the respondent”).
In those proceedings, the primary judge made orders which resolved the parties’ property dispute and required the applicant to pay to the respondent $500,316, in default of which, a property owned by the applicant was to be sold and the proceeds distributed to the parties so as to give effect to the order.
Any appeal from the orders must have been filed on or before 15 March 2019 pursuant to Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”). That time may be extended pursuant to Rule 1.14 of the Rules.
Background
Before turning to the merits of the application, it is necessary to record some of the history of the matter.
The application first came before me for hearing on 14 May 2019. I was informed by the applicant’s solicitor that the application had not been served on the respondent. Consequently, it was adjourned until 29 May 2019. On 14 May 2019, I raised with the applicant’s solicitor what I considered to be some deficiencies in an affidavit relied on by his client. Nonetheless, when the matter came before me on 29 May 2019, no further evidence had been filed. In the course of submissions and in response to some questions that I raised with counsel for the applicant as to the adequacy of the affidavit, an adjournment was sought so that further evidence could be placed before the Court.
I was disinclined to grant such an adjournment because of the opportunity that had already been given to the applicant to address the inadequacies in the evidence. Further, the matter is listed before a judge of the Federal Circuit Court of Australia on 6 June 2019 to deal with the respondent’s application for enforcement of the primary judge’s orders and for the applicant’s application for a stay of those orders. Both applications were adjourned to 6 June 2019 so that the result of the present application would be known to the court. Consequently, any adjournment of this application is likely to result in an adjournment of those proceedings. Finally, the respondent is in a difficult financial position and it would be unfair for the matter to be adjourned and remain unresolved.
I accordingly asked counsel for the applicant to give an indication of the evidence that would be given if an adjournment was granted. He did so, and counsel for the respondent then informed me of the evidence that they would rely on in response, if the applicant’s evidence were allowed. Ultimately, it seemed to me, in the interest of justice, that the most practical and expeditious way forward was to accept what I had received from both counsel as being accurate and proceed on that basis. Ultimately, both counsel agreed to that course.
Later in submissions, counsel for the respondent tendered a letter which his instructing solicitor had written to the applicant’s solicitor on 23 May 2019. Again, counsel for the applicant sought an adjournment to put on evidence in response. Ultimately, a handwritten record of the email response to the letter dated 23 May 2019 was accepted as an exhibit and will be taken into account. However, I also accepted the indication from the respondent’s solicitor that she did not receive the email response from the applicant’s solicitor thus avoiding the need for an adjournment.
On 5 June 2019, the applicant’s solicitor sent an email to my chambers (and to the respondent’s solicitors) in the following terms:
… I [enquired] from [Justice] Harper’s associate as to whether Mr [D] of [counsel] attended the handing down of the Judgment on the 15th of February 2019.
His associate confirmed that Mr [D] was in attendance.
That means he had knowledge of the Orders and the Reasons. However he never told me.
I felt it urgent enough for me to contact you, as much criticism was levelled against me on this point.
Please can you make his Honour aware of it…
Attached to the email was the following email sent by the associate to the primary judge:
… Our records indicate that Mr [D] was present on 15 February 2019 to collect Judgment in the matter of [Saunders]. Please note that parties can make their own enquiries by obtaining a copy of the transcript from Auscript.
We further note that on 18 February 2019 a copy of the judgment was sent to all parties…
(As per original)
A reply was sent by my chambers to the applicant’s solicitor as follows:
… It is most inappropriate for litigation to be conducted by unauthorised direct communication with [j]udge’s chambers. The contents of your [email] will not be taken into account…
Litigation is not conducted by parties willy-nilly sending unauthorised emails and evidence directly to a judge’s chambers. It is an improper practice and cannot be condoned. Should matters arise that parties wish to raise with the Court, there are formal procedures available for that purpose.
Thus, I will not take the contents of the email into account. I would, however, observe that whilst the information in the email, if admitted, might answer some existing questions, it raises at least as many new concerns.
Application for an extension of time
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) at 480-481, 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
Delay
As I have said, a Notice of Appeal should have been filed on or before 15 March 2019. This application was not filed until 24 April 2019, some five and a half weeks later. When it came before me for hearing on 14 May 2019, some eight and a half weeks after the time for filing a Notice of Appeal had lapsed, it was not ready for hearing and was stood over to 29 May 2019.
It was only after the matter had been called on for hearing on 29 May 2019 that counsel for the applicant announced that he now relied upon new grounds of appeal. The proposed Amended Notice of Appeal was not given to counsel for the respondent until after the hearing had commenced. Thus, this application was not ready to proceed until that time, some 10 and a half weeks after a Notice of Appeal should have been filed.
I turn now to the explanation for that delay, which involves a fairly detailed consideration of the events that took place. This is drawn from the affidavit of the applicant’s solicitor filed on 24 April 2019, the affidavit of the respondent filed on 28 May 2019 and the matters to which I was taken by counsel at the hearing. In essence, however, the explanation of the delay is that the applicant’s solicitor did not receive the primary judge’s reasons for judgment until 14 May 2019.
If that is so that would readily explain, at the least, the late preparation of the grounds of appeal that are now pressed.
It is necessary to record here that on 9 February 2019 the applicant’s solicitor suffered what has appropriately been described as a severe family tragedy. It is not necessary to go into the details. It is easy enough to infer that this is likely to have caused the solicitor some real difficulties for a considerable period of time.
On 14 February 2019, the primary judge’s associate wrote to both parties by email informing them that judgment would be given on 15 February 2019. The email continued:
The parties and their legal representatives are not required to attend. If you do not attend to collect the judgment, a copy will be provided by email/mail following the judgment being handed down.
(Exhibit “[Ms]S-1” to the respondent’s affidavit filed 28 May 2019)
The applicant’s solicitor concedes that he received this email. He says that he then made arrangements for Mr D of counsel to take the judgment.
The only inference that can be drawn from this email is that the written reasons for judgment would be handed down and then a copy would be available for collection. The applicant’s solicitor was thus aware that written reasons for judgment would be available at or shortly after the time the orders were made.
On 18 January 2019, the primary judge’s associate again wrote to the lawyers for both parties using the same email addresses as the earlier email, enclosing a copy of the judgment. The respondent’s solicitor received that email and the attached judgment. The applicant’s solicitor says that he did not.
The evidence does not disclose any efforts made by the applicant’s solicitor to investigate why he did not receive the email sent on 18 January 2019, which was sent to the same address as an email he received from the judge’s associate only a few days earlier. It may, of course, have been accidentally deleted, which one could understand in the circumstances. It could have gone, for example, to the junk folder or been blocked by a spam filter, but the answer to that question remains unknown.
In any event, the next step that the applicant’s solicitor took was to look at the Court portal which he did on 15 or 16 February 2019 and downloaded a copy of the orders. He did not look to see whether the reasons for judgment were uploaded and, indeed, said he was not sure whether he could obtain a copy of the reasons for judgment on the portal. The affidavit of the applicant’s solicitor filed on 24 April 2019 does not explain why, having received the earlier email and having become aware that the orders had been made, no steps were taken to obtain a copy of the reasons such as contacting the judge’s associate or asking the respondent’s solicitors for a copy.
Having received the orders, the applicant’s solicitor left approximately 15 messages with Mr D of counsel and sent four to five emails attempting to arrange a conference with him. A conference was finally arranged for 9 March 2019, which the applicant, who presently lives in Country 1, attended by telephone. The applicant’s solicitor says that at that time, he had no idea that the reasons for judgment had been published and therefore there was no reason to seek a copy from anybody. I am informed that at the conference he had with Mr D, no part of that conversation indicated that Mr D may have had the reasons for judgment.
The evident purpose of the conference was to obtain advice upon the prospects of success of an appeal. Indeed, on 14 March 2019, the applicant’s solicitor wrote to the associate to the primary judge in the following terms:
The second matter is that my barrister is not answering phone calls, text messages or emails. I organised an urgent meeting with Mr [D] on Saturday the 9th of March 2019. He was not available on the 2nd of March. I met with him and my client was on the phone. My client wanted a written advice on the costs and prospects of an appeal to his Honour’s judgment. The time for an appeal runs out on the 15th of March 2019. Mr [D] assured me that his advice would be available on the Sunday. Despite leaving calls and text messages to him on Monday, Tuesday, and Wednesday I asked his clerk to call me. Mr [D] did call on the Wednesday afternoon and assured me that the advice would be ready later on.
It is now Thursday and despite calls to him and his chambers I have not received a call from him.
(Exhibit “[Ms]S-3” to the respondent’s affidavit filed 28 May 2019)
It is inconceivable to me, how counsel could give advice as to the prospects of success of an appeal without having the reasons for judgment. It is only by consideration of the reasons for judgment that a considered advice on the prospects of success of an appeal could be given.
Further, the above letter does not refer to what the applicant’s solicitor understood to be an absence of the written reasons for judgment and makes no enquiry about when it might become available.
As appears from the letter, Mr D of counsel had not given the advice sought by the applicant’s solicitor by 14 March 2019. Indeed, I am told, he has never given the advice.
The next step taken by the applicant’s solicitor was to write to the associate to Judge Boyle, as the list judge of the Federal Circuit Court in Sydney on 28 March 2019, informing her Honour’s associate that he was still awaiting a response to his earlier letter to the primary judge’s associate dated 14 March 2019 and requesting advice accordingly. Perhaps not surprisingly, no response to that letter was received.
Again, there was no reference to an absence of written reasons for judgment in this letter.
The applicant’s solicitor deposed that he then instructed Mr D of counsel to prepare the necessary documents. He does not say when or how Mr D might do so without a copy of the reasons for judgment.
I am informed that the applicant’s solicitor attended the Registry on 14 May 2019 to check the Court file to satisfy himself that he had all of the documents that made up the file. He then saw the judgment in the file and took a copy, which he then provided to Mr C of counsel who drafted the proposed amended grounds of appeal which became available on 29 May 2019.
It can be seen from the above, that even if the explanation proffered by the applicant’s solicitor is accepted there are significant delays that remain unexplained. In particular, no explanation is given for the apparent delay between becoming aware of the orders in mid-February and the conference with Mr D of counsel in March. Part of that difficulty might arise from the failure of the applicant’s solicitor to state in his affidavit when the applicant asked for the advice to be obtained and when he first attempted to speak to Mr D.
This, however, is not the complete story. On 29 March 2019, the respondent’s solicitors wrote to the applicant’s solicitor, referring to his email of 28 March 2019 that had been sent to Judge Boyle’s associate. The respondent’s solicitors express appropriate sympathy for the plight of the applicant’s solicitor. They did, however, note again, properly, that the applicant was still required to comply with the orders and thus, was required to pay $500,316, by 29 March 2019, which is the same day as the letter. The letter continued:
Given your personal tragedy we want to assist where possible. Please let us know if your client has some interim proposal to ensure that our client is provided with at least some funds this Friday, on which we may be able to obtain instructions to consent to some further delay.
(Exhibit “[Ms]S-4” to the respondent’s affidavit filed 28 May 2019)
Quite clearly, this was an invitation to the applicant’s solicitor to consider that if some appropriate interim financial relief could be provided to the respondent then she would consider agreeing to an extension of time due to the solicitor’s personal circumstances. There is no suggestion that this letter was not received. It did not receive a response.
On 1 April 2019, the respondent’s solicitors again wrote to the applicant’s solicitor, seeking another interim proposal and a timetable for action. They also said:
Notwithstanding your personal position, our client’s circumstances are financially very difficult and it is imperative that we progress this matter. As a courtesy to you, we have no difficulty in dealing with counsel for the [applicant] directly if that assists you.
Although we appreciate your own personal tragedy, we respectfully suggest that the [applicant’s] failure to progress issues relating to an appeal is indicative of the approach taken by him throughout these proceedings. For this reason, you are on notice that any application to stay the proceedings will be opposed by our client.
(Exhibit “[Ms]S-5” to the respondent’s affidavit filed 28 May 2019)
Apparently the applicant’s solicitor replied to that letter because on 9 April 2019 the respondent’s solicitors again wrote to the applicant’s solicitor, this time saying:
We confirm that we have copied in Mr [C], counsel for your client, pursuant to your email of 4 April 2019.
Pursuant to Order 4, your client is required to list [Property A] for sale by public auction by Friday 12 April 2019. Notwithstanding your intention to lodge an appeal, your client is still required to comply with the Orders made on 15 February 2019.
(Exhibit “[Ms]S-6” to the respondent’s affidavit filed 28 May 2019) (Emphasis in original)
From this letter, it can be seen that a decision has been made to appeal and that Mr C of counsel is now involved in the matter.
The material before me does not disclose whether or when Mr C enquired about the reasons for judgment.
Again it is noteworthy that none of the correspondence refers to the written reasons for judgment not being available.
Meanwhile, on 9 May 2019, the applicant filed an Application in a Case seeking a stay of the primary judge’s orders. He offered, as a condition of that stay, to make an immediate payment of $60,000 to the respondent. That application was not served promptly and, being unaware of the stay application, the respondent filed an application seeking enforcement of the orders on 14 May 2019. As I have said, both applications were adjourned to 6 June 2019.
Finally, on 23 May 2019, the respondent’s solicitors wrote to the applicant’s solicitor in the following terms:
We refer to the above matter and your client’s Application in an Appeal filed 24 April 2019.
We note that at Part D of your client’s Application, you seek an Order that ‘the solicitor for the proposed Appellant has sought that His Honour provide reasons by communicating with His Honour’s Chambers’. Noting that no reference is made to such correspondence in your Affidavit sworn 23 April 2019, we require copies of all correspondence between your firm and his Honour’s Chambers in relation to same.
We confirm that we received a copy of the Orders made 15 February 2019 via email on 18 February 2019 together with his Honour’s Reasons for Judgment. It is therefore unclear what is meant by your statement that his Honour has ‘not delivered reasons for his Judgment’ at the date of swearing your affidavit on 23 April 2019. Please clarify what is meant by this assertion.
Noting that the matter is listed for 29 May 2019, we require a response to this letter by no later than midday on Monday 27 May 2019.
(Exhibit 1 tendered 29 May 2019) (Emphasis as per original)
The applicant’s solicitor says that he responded by email later that day saying “I will pass this letter to [Mr C]” (Exhibit 2 tendered 29 May 2019).
The respondent’s solicitors say that they did not receive this email. It does not matter much because its content was derisorily dismissive of the request. It is entirely unclear to me how counsel for the applicant would be able to provide the correspondence that passed between the applicant’s solicitor and the judge’s chambers. That was a matter for the applicant’s solicitor to deal with. In any event, the applicant’s solicitor did not and has not produced any correspondence seeking the reasons for judgment.
The only inference that can be drawn is that none was sent.
I have to say that I am extremely sceptical of the above explanation. The ordinary practice of a Court when making orders after the judgment has been reserved is to deliver the reasons for judgment at the time that the orders are made. In the present case, it is perfectly clear from the primary judge’s associate’s email to the parties that written reasons for judgment would be given at the time the orders were made. The solicitors for both parties were informed that it could be collected at the time or emailed or mailed afterwards. It could not be clearer that his Honour was intending to provide written reasons for judgment at the same time as making the orders.
Thereafter, the applicant’s solicitor would have it that he never received the written reasons for judgment until by happenstance he found them on the Court file on 14 May 2019. As I have said, it strains credulity that two counsel asked to provide a written opinion on the prospects of success of an appeal and to draft a Notice of Appeal, did not immediately enquire as to the whereabouts of the reasons for judgment. If they were told that they were not available, they surely would have proposed steps to be taken to obtain the reasons for judgment. There is no evidence that any of that occurred.
For that reason, the earlier reason I gave as to the unexplained delays in the history proffered and the absence of evidence as to critical dates, I regard the explanation for the delay quite unsatisfactory.
It was submitted that if there was a default, this was a default by the applicant’s solicitor and that the errors of the applicant’s solicitor should not be visited upon the client. Here, it could be said that the principal should extend to the preparation of this application as well given the deficiencies in the evidence already discussed. However, the court can only proceed on the material that is before it.
It is true, as is explained in detail in Jess v Scott (1986) 12 FCR 187 (“Jess v Scott”); 70 ALR 185, that the default of a solicitor can well be a justification for an extension of time. At 191, their Honours quoted, with approval, the following passage of Lord Denning in R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087 at 1091:
We are often asked to extend the time of giving notice of appeal. We never let a party suffer because the solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time.
That quote was also approved by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”) at 519. Of course, that statement was made in a quite different context where the delay was trifling. As the Full Court said in Jess v Scott at 196:
… a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court’s discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.
Here, there is a series of lengthy unexplained delays and an explanation which is difficult to accept.
The submission that the defaults of a solicitor should not be visited upon their client can only be taken so far. The interests of justice require consideration of the position of the respondent who, as the authorities make clear, has a right to retain the judgment after the time for appeal has expired (Gallo at 480; Jackamarra at [4]). None of the delay in the filing of a notice of appeal or this application arises from her conduct. Her evidence that the delay in implementing the orders is causing her financial hardship was not challenged.
On 11 March 2019, the respondent filed an Application in a Case seeking an order for costs in her favour. The primary judge made directions for the filing of submissions with which the respondent complied. The applicant did not. Notwithstanding they were due last week, nothing has yet been filed. This matter, taken with the above considerations gives me no confidence, whatsoever, that any appeal will be prosecuted in a timely and professional manner and it is more than likely that at some stage the appeal will be deemed to be abandoned, probably leading to applications for reinstatement.
The Proposed Appeal
I now turn to the merits of the proposed appeal. I commence by referring to the following comments made by Hodgson JA, with which Ipp JA agreed, in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 (“Tomko”) at [14]:
In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.
There are five proposed grounds of appeal which I will refer to in turn but first, it is necessary to place them in some context.
The parties commenced their relationship in 2006, married in December 2007 and separated in either May 2013 or February 2014. It is without question, that the applicant made a much greater initial financial contribution than the respondent. The primary judge said:
128.The [applicant] submits his initial contribution represents 92.97% of the net asset pool at cohabitation and the [respondent’s] contribution represents 7.03% of the net asset pool. I accept the [applicant] made the greater initial financial contribution. The evidence was clear on this point. However, I do not accept the [applicant’s] precise percentage calculation is necessarily helpful.
His Honour then referred to the parties’ contributions during the relationship and post-separation and found the applicant’s contribution to be 67 per cent and the respondent’s 33 per cent. After assessing the s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) considerations, his Honour determined that no further adjustment should be made.
I turn now to the grounds of appeal.
Ground 1
This ground challenges the finding of the primary judge that the respondent’s contributions were made more arduous by the violence of the applicant. His Honour said:
181.In my view, the emails do not undermine the general credibility of her account of violent and humiliating behaviour, although the passage of time may have magnified or exaggerated her recollection of these events. The evidence satisfies me that the marriage was often volatile and fractious. Overall, I accept her evidence of some violent and humiliating behaviour by the [applicant].
182.The [respondent] argued that this behaviour made her contributions more arduous. The authorities starting with In the marriage of Kennon [1997] FamCA 27; (1997) 139 FLR 118; 22 FamLR 1; (1997) FLC 92-757 make clear that the [respondent] must establish that the violence or abuse had a “significant adverse impact” on her contributions: see G & G [2006] FamCA 877; Maine & Maine [2016] FamCAFC 270 at [47] to [52]; Loxley and Loxley & Anor [2017] FCWA 123; (2018) 58 FamLR 519 at [106] to [120]. The [respondent’s] evidence did not explain directly how the behaviour of the [applicant] made her contributions more arduous. However, it is clear in my view that most of the incidents took place in the context of the [respondent] accompanying the [applicant] to functions related to his work and I infer that the [applicant’s] conduct created an atmosphere in the relationship which caused the [respondent] to feel regularly destabilised and fretful. I infer that the [applicant’s] conduct made the [respondent’s] contributions more arduous and they should be given greater weight as a result.
The submission made was that the above facts were not enough to bring in Kennon & Kennon (1997) FLC 92-757 (“Kennon”), which imposes a considerable burden upon a party seeking to make out such a claim. The passage from the primary judge’s reasons would, however, appear to accord with recent comments made by Ainslie-Wallace and Ryan JJ in Keating & Keating [2019] FamCAFC 46 at:
35.Turning then to Kennon, the rationale for a contributions adjustment as a consequence of family violence was explained by Fogarty and Lindenmayer JJ at 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
36.And at 84,294 – 84,295:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
(Emphasis added)
37.In Spagnardi the Full Court referred to Kennon and the necessity to show that the conduct had a “discernible impact” on the party’s contributions but noted that, there was an “insufficiency of evidence” [47]. Their Honours then continued:
As Kennon has established, it is necessary to provide evidence to establish:
·The incidence of domestic violence;
·The effect of domestic violence; and
·Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to "contribute" as defined by section 79(4).
(Emphasis added)
38.Their Honours further noted at [48] that there was a “complete absence of evidence as to how the husband’s conduct affected her ability to contribute”. At first blush the reference in Spagnardi to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honour’s reference to and comparison with the husband’s failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements at [50] where their Honours said:
An absence of quantification was also apparent in the appellant’s case. While the husband went to great lengths to identify each of the tasks undertaken by him in connection with renovations and improvements to the matrimonial property, he failed to provide evidence of the direct effect of his endeavours upon the value of that property.
39.This uncomfortable analogy does not illuminate what “quantification” of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim spouse. We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42])…
Further, his Honour does not identify how much weight he placed upon this factor, but the clear inference is that it was not given great weight.
This was one of many circumstances taken into account by his Honour and seems to be neither decisive nor determinative of the figure of 67 per cent.
It is difficult to see any error in the application of principle.
Grounds 2 & 3
Grounds 2 and 3 are, in effect, challenges to the weight given to the applicant’s initial financial contributions which were, indeed, extensive. Ground 3 asserts that the assessment made by his Honour was “outside an acceptable range” because his Honour fell into error by failing to consider “the overwhelming financial contributions” of the applicant.
As I have already said, the primary judge expressly took this into account.
Challenges to weight face a very high bar. In Gronow v Gronow (1979) 144 CLR 513; Stephen J said:
10.The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
In Norbis v Norbis (1986) 161 CLR 513, Brennan J said:
8.The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343, at p 345, Asquith L.J. stated the rationale of an appellate court's approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(See also Mallet v. Mallet (1984) 156 CLR 605)
Given the relatively short period of the relationship, the fact that there are no children of the relationship and the applicant’s clearly overwhelming initial financial contributions, the division arrived at by his Honour may well be seen as to be towards the upper end of the “generous ambit which reasonable disagreement is possible” (Norbis v Norbis (1986) 161 CLR 513 at [8]).
In other words, the appeal may be arguable but it does not seem to me to be strongly arguable or to have substantial merit.
Ground 4
Ground 4 asserts [h]is Honour erred in failing to properly consider or give weight to the fact that the respondent continued to receive significant income post-separation of a business established by the parties during cohabitation”.
At [153] his Honour recorded:
On the evidence, it appears the [applicant] has been undertaking business activities in [Country 1] since around late-2012. From this point, the [respondent] remained living in [Property A] and deposes the [applicant] provided her with $1,200 per month to pay household and living expenses. During this time the [respondent] contends she was responsible for maintaining the property, including all housework. The [respondent] conceded the [applicant] also met the costs of the parties’ health insurance premiums, the [respondent’s] gym membership and costs of her mobile phone (paragraph 60, [respondent’s] Affidavit filed 28 March 2018).
Clearly his Honour considered that matter and gave weight to it and this ground has little prospect of succeeding.
Ground 5
Ground 5 alleges that his Honour erred in failing to consider that the respondent had occupied Property A until the first day of hearing. At [164] his Honour recorded that the respondent “continued to reside in [Property A]”. That finding was part of a discussion of post-separation financial contributions. As to the weight to be given to that consideration, it was but one of many, and faces the burden to which I have already referred.
Conclusion
Taken overall, the appeal faces some difficulties. It cannot be said to have substantial merit. However, it is necessary to accept that in an application such as this, the Court only has a limited opportunity to consider the matters that would be raised on appeal, to review the material and receive submissions. It can only do so, however, through the grounds of appeal that are proposed as explained by counsel.
The proposed grounds that have the most attraction (Grounds 2 and 3) are those that face the highest burden when regard is had to principle. The task of persuading an appeals court that the findings on contributions cannot be explained by a reasonable exercise of the discretion is indeed a heavy but, ultimately, not impossible task.
Finally, it is necessary to refer to prejudice suffered by the respondent. As already indicated, she has suffered expense by having to respond to a stay application which has been belatedly made, as well as this application. Her very reasonable offer to extend time for the applicant and his solicitor to consider their position, provided she could be provided with some interim financial relief, was not taken up.
An affidavit sworn in support of the enforcement proceedings, relied on by the respondent in these proceedings, without objection from the applicant, shows pressing financial difficulties and concern as to her ability to meet ordinary living expenses.
It is clear that the applicant could have at any time relieved that stress because he has offered as a condition of obtaining a stay, an immediate payment of $60,000. However, it was made clear to me in submissions today that that sum of money is available only in the event that a stay is granted. There is real prejudice in the respondent not being able to access the funds, the subject of the orders. Given what I have said about the conduct of the proceedings so far, the conduct of the appeal by the applicant is unlikely to be smooth and expeditious.
Applying the formula proposed in Tomko the court is entitled to look more closely at the proposed grounds of appeal where the explanation for the delay is inadequate, there is clear prejudice to the respondent and, I would add, where the delay is extensive.
Ultimately, of course, it is a balancing exercise based on the particular circumstances before the court.
Taking all these matters into account, I am comfortably satisfied that the delay is lengthy and is most inadequately explained. The prospects of success of the appeal are not strong and, in my opinion are insufficient to overcome that inadequacy and the prejudice that has and will be suffered by the respondent. The application will be dismissed.
Costs
In the event the application was dismissed, the respondent sought costs on an indemnity basis.
The applicant sought an indulgence of the Court and has been wholly unsuccessful. The applicant has the means to pay the respondent’s costs and it is appropriate that he do so.
Indemnity costs are awarded only in exceptional circumstances (Kohan and Kohan (1993) FLC 92-340; D & D (Costs) (No. 2) (2010) FLC 93-435; Limousin & Limousin (Costs) (2007) 38 Fam LR 478).
The submission was that indemnity costs were justified because the application was not capable of succeeding on the grounds of appeal, as originally promulgated, and having regard to the draft notice of appeal filed with the application. I accept that to be so. It is apparent, therefore, that some costs have been wasted in meeting those, but I do not think they are likely to be significant.
I accept the force in this point but I am not satisfied that it is one that justifies the exceptional step of making an order on an indemnity basis. The respondent’s lawyers assessed her costs as being $3,122 on scale and there will be an order for costs fixed in that amount.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 June 2019.
Associate:
Date: 6 June 2019
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