Sexton & Sexton - [2012] FamCAFC 218

FAMILY COURT OF AUSTRALIA

SEXTON & SEXTON

[2012] FamCAFC 218

FAMILY LAW – APPEAL – PROPERTY – whether the Federal Magistrate erred in only allowing the husband to rely on part of his affidavit – appeal in relation to the exercise of judicial discretion – where the Federal Magistrate took account of the husband’s non-compliance with orders about filing of evidence – where the Federal Magistrate found the husband’s non-compliance was a course of conduct and the husband provided no satisfactory reasons for non-compliance – whether the Federal Magistrate erred in failing to have regard to costs order as compensation to the wife for further delay or adjournment – consideration of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 – Federal Magistrate’s discretion did not miscarry – no error demonstrated.

FAMILY LAW – APPEAL – Adequacy of reasons – whether the Federal Magistrate erred in adopting the wife’s submissions as her reasons for judgment – whether the wife’s submissions were sufficient to constitute reasons for judgment – where the husband failed to comply with orders to file evidence – where the only evidence before the Federal Magistrate was the wife’s evidence – where the Federal Magistrate had no submissions by the husband about the division of property – adequacy of reasons depends on the context in which they were given – reasons were adequate – appeal dismissed.

FAMILY LAW – COSTS – Appeal wholly unsuccessful – no submissions made about any other s 117(2A) factors – costs order made in favour of the wife.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bell & Bell [2000] FamCA 1301
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Mr Sexton

RESPONDENT:

Ms Sexton

FILE NUMBER:

BRC

10959

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

21 December 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Faulks DCJ and Murphy J

HEARING DATE:

18 April 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 June 2011

LOWER COURT MNC:

[2011] FMCAfam 689

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr G Page SC

SOLICITOR FOR THE APPELLANT:

Bernays Lawyers

COUNSEL FOR THE RESPONDENT:

Ms C E Carew

SOLICITOR FOR THE RESPONDENT:

Best Wilson Family Law

Orders

The appeal against the orders of Federal Magistrate Cassidy made on

28 June 2011 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed, or in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sexton & Sexton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT

Appeal Number: NA 58 of 2011
File Number: BRC 10959 of 2008

Mr Sexton

Appellant

And

Ms Sexton

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal brought by the husband, by way of Notice of Appeal filed in July 2011, against final property orders made by Federal Magistrate Cassidy in June 2011.
Her Honour’s orders provide for the property of the parties to be divided to effect an overall distribution of 55 per cent to the husband and 45 per cent to the wife.[1] The wife would retain various chattels in her possession or her name, including horses, cattle, shares, savings, superannuation entitlements, household contents and a motor vehicle.[2] The husband would receive the real properties known as “M” and “R”, and other chattels in his name or possession including motor vehicles, plant, equipment and machinery; shares, managed-fund investments and life insurance policies; savings; superannuation entitlements; and household contents.[3] The remaining real properties, “O”, “K” and “S”, would be sold and the wife would be paid a cash adjustment from the net proceeds of sale of those properties sufficient to achieve an overall property distribution of 45 per cent to her.[4]
[1] Order 1 of 28 June 2011.
[2] Order 3 of 28 June 2011.
[3] Order 4(a) of 28 June 2011.
[4] Orders 1, 2 and 5 of 28 June 2011.
The husband’s appeal was brought essentially on the grounds of denial of procedural fairness and inadequate reasons for judgment by her Honour.[5] These grounds are set out in full later in these reasons.
[5] Notice of Appeal, Part E.
The orders sought by the husband in the appeal were that the appeal be allowed, the matter be remitted for a rehearing by a Federal Magistrate other than Federal Magistrate Cassidy, and that a certificate be issued to the husband for the costs of and incidental to the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).[6]
[6] Notice of Appeal, Part F.
The wife resisted the appeal and sought that the Federal Magistrate’s orders remain in place.

Background

Proceedings in the Federal Magistrates Court were commenced when the wife filed her application for final orders in 2009. She filed affidavits and a Financial Statement in support of her application. The husband filed his response in December 2009 as well as an affidavit in support.

Orders of 15 July 2010

On 15 July 2010, her Honour set the matter down for final hearing on 22 February 2011 and made orders to prepare the matter for such hearing. Specifically, her Honour ordered:
5. That each party file and serve on each other party no later than 4:00pm on 25 January 2011:
(a)One affidavit setting out any further evidence in chief;
(b)One affidavit of each witness intended to be relied upon at trial; and
(c)An updated financial statement if relevant.
6. That each party file and serve on each other party no later than 4.00pm on 15 February 2011, a case outline setting out:
(a)A precise minute of the final orders sought;
(b)A relevant chronology;
(c)A list of the assets with an agreed value and assets with a disputed value;
(d)A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial; and
(e)A statement of evidence which they say supports the principles contained in section 79(4) and 75(2) of the Family Law Act 1975.
7. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
Both the wife’s solicitor and the husband’s solicitor were in attendance when her Honour made these orders.
The wife filed her affidavit material pursuant to Order 5 on 27 January 2011. The husband did not comply with Order 5 at all.

Orders of 16 December 2010

Her Honour made further orders on 16 December 2010 to prepare the matter for trial. Those were orders for the husband to provide disclosure to the wife and for the parties to finalise by 28 January 2011 their tax returns for the year ended 30 June 2010.[7] Her Honour ordered that a copy of the orders made on this date be provided to the husband by his solicitors by way of registered post[8] and it was noted that if the husband failed to attend at the next mention by telephone, “the trial will be set down as a default hearing and the assets may be divided in the absence of the husband.”[9]
[7] Orders 1 and 2 of 16 December 2010.
[8] Order 6 of 16 December 2010.
[9] Notation in Orders of 16 December 2010.
The husband did not comply with the order about disclosure, nor did he comply with the order requiring him to finalise his tax return. In a letter responding to the enquiries made by the solicitors for the wife, the husband’s solicitors advised that they had not been able to obtain instructions from the husband and he had not responded to any of their recent correspondence. The husband’s solicitors confirmed that they had posted a copy of the orders of 16 December 2010 by registered post in accordance with her Honour’s order.[10] It is noted that her Honour in this instance, and others, took account of and relied upon correspondence annexed to the wife’s submissions. It would appear that this correspondence was not tendered as evidence, but no point was taken about this on appeal.
[10] Submissions on Behalf of Applicant Wife, dated 16 June 2011, Annexure 2.

Orders of 31 January 2011

On 31 January 2011, her Honour vacated the final hearing date of 22 February 2011 and re-listed the matter for final hearing on 2 June 2011.[11] Further directions were also made to prepare the matter for final hearing:[12]
[11] Orders 8 and 9 of 31 January 2011.
[12] Orders of 31 January 2011.
2.That the Husband do all acts and things necessary to comply with paragraphs 1 and 2 of the previous Orders of the Court dated 16 December 2010 on or before 1 April 2011.
…
4. That the parties shall do all acts and things necessary to have updated valuations prepared by the Single Expert Valuer … with a view to such valuations being made available to the parties by no later than 2 May 2011.
5. That the Single Expert Valuer shall be provided with a joint letter of instructions but if the parties are unable to agree or for any reason the joint instructions cannot be obtained prior to 31 March 2011, then they shall each provide a letter of instructions to the Single Expert Valuer by no later than 4 April 2011. The parties shall advise the Single Expert Valuer the date before which the report is required, namely 2 May 2011.
6. That the costs of the Single Expert Valuer are to be paid by the Respondent Husband at first instance with the Applicant Wife contributing one half of same at settlement.
…
10. That the Respondent Husband file and serve on the Applicant Wife no later than 4:00pm on 9 May 2011:
(a) One affidavit of evidence in chief;
(b)One affidavit of each witness intended to be relied upon at trial; and
(c) An updated financial statement if relevant; and
(d)An Amended Response to Initiating Application particularising the final orders sought by him.
…
12. That each party file and serve on each other party no later than 4:00pm on 23 May 2011, a case outline setting out:
(a)A precise minute of the final orders sought;
(b)A relevant chronology;
(c)A list of the assets with an agreed value and assets with a disputed value;
(d)A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial; and
(e)A statement of evidence which they say supports the principles contained in section 79(4) and 75(2) of the Family Law Act 1975.
13. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
…
16. That in the event the Respondent Husband fails to comply with
[Order 10] herein, the Application of the Wife is to proceed to a default hearing commencing at 10:00am on 2 June 2011 with priority.
[original emphasis]
The husband was represented when these orders were made. His solicitor was in attendance via telephone on the date of the orders as appears from the orders.
Orders 2 to 6 were made by consent; the remaining orders set out above were not. It is clear that her Honour specifically ordered that if the husband failed to comply with the trial directions, the matter would proceed to a “default hearing” on 2 June 2011.
Again, the husband failed to comply with trial directions. With respect to enquiries made by the wife’s solicitors about compliance with Orders 2 and 4,[13] the husband’s solicitors could only respond advising that they had not received instructions from him.[14]
[13] Submissions on Behalf of Applicant Wife, dated 16 June 2011, Annexure 3. See [11] of these Reasons.
[14] Submissions on Behalf of Applicant Wife, dated 16 June 2011, Annexure 4.

Orders of 2 June 2011

This was the date that was designated (because the Husband had failed to comply with orders of 31 January 2011) for “default hearing” of the matter. However, her Honour was ill on this date, and the hearing could not proceed. Instead, Federal Magistrate Spelleken vacated the hearing date of 2 June 2011 and made the following orders:
2. That the husband’s solicitors file and serve written submissions within seven (7) days.
3. That the wife file and serve any written submissions in reply within a further seven (7) days.
4.That judgment in this matter be reserved to 9.30am on 28 June 2011 … before Federal Magistrate Cassidy.
5.That both parties be at liberty to apply on the giving of 24 hours notice.
NOTATION:
A.That the case outline e-filed by the wife on 24 May 2011 will be considered as the wife’s primary submission.
B. It is intended by the parties that the Court will deal with the matter on the papers, however if either party seeks to make oral submissions as a consequence of what is contained in the written submissions, they are at liberty to apply to do so.
[original emphasis]
The husband was represented by Mr Page SC when these orders were made.
On 28 June 2011, Federal Magistrate Cassidy delivered her Judgment and made final property orders as described above.

Proceedings on 28 June 2011

On 28 June 2011, the day her Honour was due to give her reasons for judgment, the husband sought to file an affidavit. That affidavit sets out, among other things, the husband’s “reasons” for his non-compliance, the personal history of the parties, the contributions of the parties, s 75(2) factors relevant to the husband and the orders sought by the husband.[15] This affidavit was of some 66 paragraphs.
[15] Husband’s affidavit, filed on 28 June 2011.
Her Honour gave leave for the husband to rely on [1]-[17] of that affidavit and proceeded to give her reasons for judgment.

The Federal Magistrate’s Reasons for Judgment

Her Honour first gave leave for the husband to file the abovementioned affidavit.[16]
[16] Sexton & Sexton [2011] FMCAfam 689, [2].
Her Honour then went on to discuss the husband’s non-compliance with orders throughout the proceedings. Her Honour noted that the husband said he

“negated” dealing with this matter, but pointed out the fact that he provided no medical evidence to demonstrate that he was unable to comply with directions.[17] Her Honour commented that the husband’s non-compliance was not just in relation to “one order or two orders” but it was “a course of conduct”[18] which, in her Honour’s view:
12.… makes this non-compliance serious. There has been an extensive series of non-compliance in circumstances where the husband has not deposed to a timetable that would see this matter ready for a trial …
13.I am not satisfied with the reasons that he has given for non-compliance. He has not really provided any satisfactory reasons and I am therefore not satisfied that it is appropriate to further delay this matter when the wife has at all times complied with the Court’s directions and the matter was, by consent, going to proceed on a default basis on 2 June 2011…
[17] Sexton & Sexton [2011] FMCAfam 689, [3].
[18] Sexton & Sexton [2011] FMCAfam 689, [4].
Her Honour identified the “Four Step Approach” taken by the Court in matters of property adjustment orders[19] and outlined the matters she is to take into account under ss 79(4) and 75(2).[20]
[19] Sexton & Sexton [2011] FMCAfam 689, [24].
[20] Sexton & Sexton [2011] FMCAfam 689, [22] and [23].
Her Honour went on to carry out the “Four Step Approach”. In identifying the asset pool, her Honour “adopted” the list of assets and liabilities set out in the schedule attached to the Wife’s Case Outline document and her Honour was entitled to do so. It was later pointed out to her Honour by the wife’s solicitor, after judgment had been delivered, that that schedule did not contain the most current list of assets and liabilities. The wife’s solicitor drew her Honour’s attention to annexure JMS-1 of the wife’s affidavit filed on 27 May 2011 which contained a more up-to-date list. Her Honour amended her judgment accordingly to take into account the updated list.[21]
[21] Transcript, 28 June 2011, 2; Sexton & Sexton [2011] FMCAfam 689, [25]
In relation to considerations about contributions under s 79, her Honour wrote:
26.I have to consider the relevant provisions under s.79 and they have been set out in the outline of case filed by the wife on 24 May 2011. She has dealt with the financial contributions, the initial contributions, the contributions during the marriage and included the significant inheritances that the husband has received from his father’s and mother’s estate and [the wife] has documented the post-separation contributions.
27. I accept those submissions and include them as part of my reasons for judgment. I also accept overall the assessment of contributions that has been made in the outline of case filed by the wife on 24 May 2011 and so I will adopt pages 10 to 15 in terms of the contributions.
With respect to an adjustment under s 75(2), her Honour accepted the wife’s submissions in relation to this as her reasons and accepted the wife’s position that there should be a 10 per cent adjustment in her favour.[22]
[22] Sexton [2011] FMCAfam 689, [28].
Her Honour concluded that she is:
29.…therefore satisfied that it is just and equitable that the end result should be a distribution of 55% to the husband and 45% to the wife of an asset pool of approximately $9,099,445.00 and [she is] satisfied that provides a just and equitable result and ensures that the husband is able to continue to earn a substantial income through his ongoing employment in [Western Australia] and his continued ownership of property that is available for him to use.

Grounds of Appeal

The grounds of appeal in this matter are as follows:
1.That in giving the Husband leave to read and file only paragraphs 1 to 17 (inclusive) of the affidavit sworn by him on 9 June 2011 the Federal Magistrate erred in that she:
(a)failed to have any or any proper regard to the preparedness of the Appellant to participate in the proceedings including his retaining a solicitor and senior counsel;
(b)failed to have any or any proper regard to the compensation available to the Respondent by way of an order for costs by reason of any further adjournment of the matter;
(c)failed to have any or any proper regard to the involvement of the Appellant in the proceedings to that date.
2.In making the orders by way of property settlement the Federal Magistrate erred in that she failed to provide any or any adequate reasons for the making of the orders.

Discussion

Ground 1

This ground, as a whole, addresses itself to the issue of the exercise of judicial discretion. As the learned Federal Magistrate’s reasons for judgment show at [13], this discretion was exercised in favour of the husband’s being able to read and rely upon [1] – [17] of his affidavit affirmed on 9 June 2011. Her Honour’s reasons for this decision were as follows:
2.The husband’s evidence in relation to non–compliance with directions and leave to proceed out of time is set out in paragraphs 2 to 17 of an affidavit he swore on 9 June 2011. I will give him leave to read and file paragraphs 1 to 17 (inclusive) of the affidavit sworn on 9 June 2011. With respect to that issue of leave to proceed, he swore at paragraph 9 of that affidavit:
“[9] I have basically negated dealing with the matter and the proceedings and now understand the consequences of my actions.”
3.The husband has consulted with a doctor but provides no medical evidence that he was unable to comply with directions in this matter. The husband has provided no evidence that would allow a Court to understand why he has not complied with directions over a very considerable period of time, other than to say that basically he “negated” dealing with the matter.
4.The directions that have not been complied with are set out in the submissions on behalf of the wife which were filed on 16 June 2011. It is not an issue of non–compliance with just one order or two orders, it is a course of conduct and I will read onto the record the non–compliance by the husband in relation to an order of 15 July 2011.
5.Paragraph 5 of that order required that each party file and serve an affidavit setting out evidence–in–chief. The wife filed the affidavit; the husband did not file the affidavit.
6.Further directions were made in paragraph 6 that each party file and serve an outline of case; neither party filed material. A further direction was made by the Court for both parties to file and serve their outlines of case by 31 January 2011 and that was with the consent of both parties.
7.With respect to the order of 16 December 2010, in paragraph 1 the husband was to provide the wife with disclosure. The submissions of the wife filed 16 June 2011 contains annexures which are letters from [the wife’s solicitors] to [the husband’s solicitors] which demonstrate that there was continuing non–compliance in relation to the directions with respect to disclosure.
8.With respect to paragraph 2 of the order of 16 December 2010 (that the husband and the wife do all acts and things necessary to have the tax returns for 2010 finalised) again, there were letters from [the wife’s solicitors] to [the husband’s solicitors] attached to the submission filed 16 June 2011 and, again, the husband has not complied with those directions.
9.In relation to an order of 31 January 2011, which was an order that was made by consent, it was ordered that the husband do all acts and things necessary to comply with paragraphs 1 and 2 of the orders of 16 December 2010 on or before 1 April 2011. Again, there has been non–compliance with those orders and a number of letters moving between the parties that are annexed to the outline of submissions.
10.There was also an order that the parties do all acts and things necessary to update the valuations and, again, those orders have not been complied with.
11.Finally, at paragraph 10 of those orders (that the husband file and serve an affidavit of evidence–in–chief and an affidavit of each witness), again, there has not been compliance with that order and in respect of the filing of an outline of case, again, no compliance by the husband.
12.This is a course of conduct, in my view, that makes this non–compliance serious. There has been an extensive series of non–compliance in circumstances where the husband has not deposed to a timetable that would see this matter ready for a trial in an affidavit that he annexed to his written submissions.
13.I am not satisfied with the reasons that he has given for non–compliance. He has not really provided any satisfactory reasons and I am therefore not satisfied that it is appropriate to further delay this matter when the wife has at all times complied with the Court’s directions and the matter was, by consent, going to proceed on a default basis on 2 June 2011. I will not give the husband leave to read and file any material other than paragraphs 1 to 17 of the affidavit sworn on 9 June 2011. I will direct that that part of the affidavit be folioed onto the file.
[original emphasis]

It is clear that the husband failed to comply with three sets of orders (orders made on 15 July 2010, 16 December 2010 and 31 January 2011). At all relevant times, the husband was legally represented.
At the hearing of the appeal senior counsel for the husband conceded that the husband’s non-compliance with orders of the Court was serious:
It is accepted that the Appellant’s conduct was a serious non-compliance. It is accepted that there were insufficient reasons given for the Appellant’s non-compliance.[23]
[23] Appellant’s Summary of Argument, [4].
Order 16 of 31 January 2011 provided:
That in event the Respondent Husband fails to comply with [Order 10] herein, the Application of the Wife is to proceed to a default hearing commencing at 10:00am on 2 June 2011 with priority. [original emphasis]
Since the matter was set down for final hearing by her Honour on 15 July 2010, the husband had no less than three opportunities to file material, to provide disclosure and to provide any evidence which he sought to be taken into account. Notwithstanding he was represented at all relevant times, the husband failed to comply with her Honour’s orders.
Upon receiving enquiries from the wife’s solicitors about compliance with the orders, the husband’s solicitors responded to the effect that they were not able to obtain instructions from him.[24] The husband’s explanation for his non-compliance was simply that he had been “unable to mentally deal with” the proceedings, had “not been able to cope with having to finalise the matter”, “could not bring [him]self to peruse the material [sent by his solicitors] or provide any response or instructions”. The husband said he “basically negated dealing with the matter”, and he believes he “may have psychologically or mentally blocked [the proceedings] out although [he had] not previously consulted a doctor or received any medical assistance.”[25] The husband mentions that after conferring with legal representatives, he consulted a general practitioner.[26]
[24] Submissions on behalf of Applicant Wife, dated 16 June 2011, Annexures 2 and 4. See [11] of these Reasons.
[25] Husband’s affidavit, affirmed on 9 June 2011, [3], [8], [9] and [10].
[26] Husband’s affidavit, affirmed on 9 June 2011, [14].
At no time prior to 28 June 2011 did the husband make an application to file material out of time. He did not propose a new timetable in which he could file material. He only sought to file further material on 28 June 2011 when her Honour, as foreshadowed by Federal Magistrate Spelleken’s orders of 2 June 2011, was due to deliver judgment in this matter.
These were matters her Honour took into account at [2] – [11] of her reasons for judgment. After considering these matters, her Honour concludes that the non-compliance was serious and she was not satisfied with the reasons the husband gave for non-compliance. In particular, her Honour notes that the husband “provide[d] no medical evidence … that would allow a Court to understand why he has not complied with directions over a very considerable period of time”.[27] On these bases, her Honour determined she was “not satisfied that it is appropriate to further delay” the matter, particularly in circumstances where the wife had at all times complied with the orders, and did not give the husband leave to read and file any material other than [1] – [17] of his affidavit affirmed on 9 June 2011.
[27] Sexton & Sexton [2011] FMCAfam 689, [3].

Grounds 1a and 1c

Senior counsel for the husband contends that her Honour failed to have any or any proper regard to the husband’s preparedness to participate in the proceedings, including his retaining a solicitor and senior counsel, and to have any or any proper regard to the husband’s involvement in the proceedings to date.
Senior counsel for the husband submits that “at the hearing on 2 June 2011 … it would be clear to the Federal Magistrate that there would be compliance and that leave should be granted.”[28] There is no foundation for that submission. First, it ignores the fact that a different Federal Magistrate (Federal Magistrate Spelleken) made the orders on 2 June due to Federal Magistrate Cassidy’s illness. Secondly, the appellant’s affidavit was not affirmed until 9 June, that is a week after Federal Magistrate Spelleken made her orders. Thirdly, and very importantly, the affidavit was purportedly relied upon in the context of submissions ordered by Federal Magistrate Spelleken, which, the order records could be made by both parties so that, as the Notation to the orders records, a decision could be made “on the papers”.
[28] Appellant’s Summary of Argument, [4].
Crucially, the application “for leave” was misconceived. Contrary to the submission made by Mr Page SC, the matter was not adjourned on 2 June 2011. As the orders plainly indicate, the evidence had closed and judgment had been reserved. Any application by the appellant needed to be for a re-opening and all the more so because the affidavit sought to be relied upon was the first by the appellant deposing to matters relevant to s 79 of the Act since 2009 – and that affidavit was not before the Federal Magistrate.
The husband’s conduct and lack of involvement in the proceedings was carefully considered by her Honour. She reviewed his history of non-compliance at [2]-[13] of her reasons for judgment. Her Honour also considered the “explanation” given by the husband for non-compliance, the absence of medical evidence despite the husband’s assertion that he was “unable to mentally deal with” the proceedings, took account of the fact that the husband had not “deposed to a timetable that would see this matter ready for a trial in an affidavit that he annexed to his written submissions”, the wife’s compliance in the face of the husband’s non-compliance and the fact that the husband’s non-compliance occurred while he was represented and, in the end, her Honour concluded that the husband had “not really provided any satisfactory reasons” and her Honour was “not satisfied that it [was] appropriate to further delay this matter”. On this basis, the Federal Magistrate refused the husband leave to rely on any more affidavit material other than paragraphs 1 to 17 of his affidavit affirmed on 9 June 2011.
Orders made by the Court in the nature of directions or otherwise in relation to the preparation of a matter for hearing are orders of the Court in every sense of the word and a failure to comply with them is a serious matter. It is even more serious when a litigant, while seeking judgment of the Court, does not comply with the Court’s orders and appears to regard the orders as some sort of voluntary code of conduct which may or may not be complied with at the whim of the litigant. Those litigants who comply with orders of the Court and are faced with a recalcitrance or failure on the part of other litigants to comply are entitled to call on the Court in support of the determination of the proceedings on the date(s) allocated, whether or not the other party has reached a point where he or she considers the relevant material to support his or her case has now been put before the Court.[29]
[29] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
The husband’s “involvement” in the proceedings prior to 28 June 2011 had virtually been non-existent. He failed to comply with orders and failed to properly communicate with and instruct his solicitors. With respect to the husband, the mere assertion that he was now ready to take part in the proceedings and acknowledged his default in the past does not constitute a basis for appeal nor for the overturning of the discretion properly exercised by her Honour. In the written submissions for the husband, no valid reason is advanced for the non-participation in the proceedings by the husband such as would constitute a proper basis for an exercise of discretion in his favour. As previously indicated, no evidence was offered as to any medical reason for the delay and no other reasons advanced for his inability to comply with the directions. Further, at all relevant times he was in receipt of legal advice and had access to competent lawyers. Ground 1a is misconceived and must fail.
By 28 June 2011, the husband had retained senior counsel and a solicitor. In fact, the husband had already retained senior counsel on 2 June 2011 when the matter was before Federal Magistrate Spelleken[30] and had previously been represented by a solicitor. This was not specifically referred to in her Honour’s reasons. However, in circumstances where the husband had engaged in “an extensive series of non-compliance” when he was represented by a solicitor, her Honour had no reason to think that the husband would now comply simply because he had retained a solicitor and senior counsel.
[30] Orders of 2 June 2011.
Her Honour did not err by way of failure to give any or any proper regard to these factors. There is no merit in Grounds 1a and 1c.

Ground 1b

This ground alleges that her Honour failed to have any or any proper regard to the availability of an order for costs to compensate the wife for another adjournment in this matter. This “compensation” was suggested by senior counsel for the husband in submissions dated 9 June 2011.
Both senior counsel for the husband and counsel for the wife drew attention to the decision in Aon Risk Services Australia Ltd v Australian National University.[31] In that decision his Honour Chief Justice French said:[32]
In the proper exercise of primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
[31] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[32] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [5].
Again in [30], his Honour said:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The majority of the Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) came to the same conclusion as the Chief Justice. Their Honours said:[33]
… The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment.
…
… Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
[33] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [99] and [102].
Their Honours also said:[34]
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. …
[34] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [111].
The husband sought in [1]-[17] of his affidavit sworn on 9 June 2011 to explain that he had in some way found himself unable to deal with the proceedings before the Court. The husband’s explanation for his non-compliance is set out at [34] of these reasons. Essentially the husband asserted that he was not able to mentally deal with the proceedings in the Federal Magistrates Court and the husband believed he psychologically blocked out the proceedings. No medical evidence was adduced to support his assertion that he was mentally unable to deal with the matter or that he had psychologically blocked the proceedings out. Nor did the husband elaborate further about those assertions. Thus it was unclear what might have caused him to “negate” dealing with the proceedings before her Honour.
It was submitted that an order for costs would compensate the wife for any delay. However, to adopt the words used by the majority in Aon Risk Services Australia Ltd v Australian National University, there is no entitlement for a party to amend a pleading on the basis that a party can raise an arguable claim, subject only to payment of costs by way of compensation. The Court must weigh all matters relevant to the exercise of the power to permit amendment, such as substantial delay, wasted costs and concerns of case management. “It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”[35] Such an order “may not always undo the prejudice a party suffers by late amendment.”[36] The learned Federal Magistrate was entitled in the exercise of her discretion to permit written submissions, but to otherwise bring the matter to a conclusion. That is all the more so because of the history of the appellant’s lack of participation to which we have referred. Her Honour did not mention specifically the comments referred to above in Aon Risk Services Australia Ltd v Australian National University. However, these comments would have unquestionably reinforced her Honour’s decision not to permit the additional evidence to be adduced or the subsequent application for adjournment.
[35] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [98].
[36] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [99].
There is no merit in this ground.

Ground 2

This ground of appeal asserts that her Honour failed to provide any or any adequate reasons for the orders she made.
Written submissions provided on behalf of the husband appear to set out the crux of the husband’s complaint in this ground:
8.In her reasons, the Federal Magistrate set out in no part the basis on which the submissions made on behalf of the Respondent Wife were accepted and that the orders sought by her were just and equitable. It is submitted that it is impossible to determine the line of reasoning that led to the conclusions of the Federal Magistrate at paragraph 27 of her Reasons. Those reasons are not elucidated in the wife’s submission.[37] [footnotes omitted]
[our emphasis].
[37] Appellant’s Summary of Argument, [8].
In oral submissions, senior counsel for the husband elaborated about the complaint in this ground:
… the process of her Honour’s reasoning that led her to (a) accept the asset pool as it was, as she did, (b) assess the contributions as she did, (c) assess that $900,000 was an appropriate adjustment in terms of 75(2), and (d) to make the orders for the sale of specific properties, were simply not able to be seen …[38]
… [her Honour’s reasons] do not tie the facts to the conclusions in relation to contributions. A court cannot simply make findings of fact and then say, “I divide the property 65/35.”…[39]
[38] Transcript of the appeal proceedings, 18 April 2012, page 20, lines 20-24.
[39] Transcript of the appeal proceedings, 18 April 2012, page 22, lines 19-21.
In relation to contributions, her Honour said:
26.I have to consider the relevant provisions under s.79 and they have been set out in the outline of case filed by the wife on 24 May 2011. She has dealt with the financial contributions, the initial contributions, the contributions during the marriage and included the significant inheritances that the husband has received from his father’s and mother’s estate and she has documented the post–separation contributions.
27.I accept those submissions and include them as part of my reasons for judgment. I also accept overall the assessment of contributions that has been made in the outline of case filed by the wife on 24 May 2011 and so I will adopt pages 10 to 15 in terms of the contributions.
The wife’s “submissions”, as set out in her case outline document, in relation to contributions commence by asserting:
1.It is the Wife’s submission that the parties’ contributions should be assessed as 65%:35% in the Husband’s favour given each party’s financial and non-financial contributions, and the nature of the roles undertaken by each party, over the course of their lengthy relationship.[40]
[40] Applicant Wife’s Case Outline, dated 24 May 2011, 10.
The wife’s submissions go on to set out the financial, non-financial and parenting/home-making contributions by each party at the commencement of the relationship, during the marriage and post separation.[41]
[41] Applicant Wife’s Case Outline, dated 24 May 2011, 10-12.
In respect of s 75(2) adjustments, her Honour adopted the same approach and simply adopted the submissions of the wife as her reasons. The wife’s submissions assert that there should be an adjustment of 10 per cent based on

s 75(2) factors and her submissions then go on to discuss each relevant s 75(2) factor.[42]
[42] Applicant Wife’s Case Outline, dated 24 May 2011, 13-15.
Senior counsel for the husband argued that by simply adopting the wife’s submissions in relation to contributions, the Federal Magistrate failed to provide proper reasons for her judgment, that is, her Honour’s pathway of reasoning was not discernible. Senior counsel for the husband conceded that her Honour made findings of fact in relation to contributions, but says what is absent from her Honour’s reasons is the interpretation of those findings of fact to justify a 65/35 split in favour of the husband.
Ground 2 raises two questions. The first is whether her Honour was justified in adopting the submissions of the wife as reasons for judgment. If she was, the second question is whether the wife’s submissions were sufficient reasons for judgment to illustrate a discernible pathway of reasoning to her Honour’s conclusions.
In circumstances where the husband failed to take opportunities to file evidence in accordance with orders, where the matter proceeded as a “default hearing” and where the husband’s written submissions dated 9 June 2011 did not deal with matters relating to property adjustment orders, her Honour was left with little choice but to rely on the evidence and submissions of the wife. There was, at the commencement of the hearing of this appeal, some confusion as to whether or not the husband’s first affidavit (which was filed with his Response) was before the Federal Magistrate when her Honour delivered judgment. Senior counsel for the husband submitted that because the matter proceeded to a “default hearing”, it was interpreted by the husband that he was “not permitted to rely upon any evidence at all” [our emphasis] including his first affidavit. Order 13 made on 31 January 2011 would seem to us to support that submission. There was, therefore, no evidence before her Honour from the husband. In these circumstances, her Honour was entitled to rely on the evidence of the wife and to adopt her submissions.

The next question, then, is whether the wife’s submissions were in themselves sufficient as reasons for judgment.
In Bell & Bell[43] the Full Court said, in a case with relevant factual similarities in this respect:
50.Senior Counsel for the wife submitted that a trial Judge may incorporate in his/her reasons for judgment the submissions made on behalf of the parties, for example submissions made in relation to questions of law. A trial Judge may also identify a discrete submission and say that it is accepted: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited ... However, the approach, which the trial Judge adopted in this case was unusual and is one that we would discourage. The difficulty with a slavish incorporation of submissions made at the trial is that it may lead to error because of the inability of an appellate court to discern the process of reasoning. However, we accept the submission that the issue of the appropriateness of doing so is not one of principle but one of degree and the issue is whether or not what the trial Judge did was adequate in all the circumstances. It therefore becomes necessary for the appellate court to scrutinise the decision with particular care.
[43] Bell & Bell [2000] FamCA 1301.
In this case, the position for the husband is made worse than the appellant in that case by reason of the husband’s non-compliance and the seeking of an indulgence.
The reasons given by a trial court (and, indeed, by appeal courts) depend, axiomatically, on the nature of the case and the particular circumstances of the case.[44] The adequacy of the reasons here cannot be divorced from the context in which they were given. The husband failed repeatedly to comply with orders of the Court to file evidence and to provide written submissions about the division of property. The Federal Magistrate’s reasons were short and expressed in unusual form because of the unusual circumstances – the husband had, effectively, failed to participate in the proceedings and the Federal Magistrate was left with only the submissions of the wife as to the how the property should be divided.
[44] See Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18.
The Federal Magistrate was aware of what was necessary by reference to s 79 and no error is asserted or demonstrated in that respect. The Federal Magistrate considered the submissions of the wife and, as is plain from the reasons, she adopted them as her reasons because she accepted them as right. No error in that respect is asserted or demonstrated.
Prima facie, the husband’s complaint that her Honour’s pathway of reasoning is not discernible (outlined above at paragraphs 53 and 54) may have some force, particularly in light of their Honours comments in Bell that “slavish incorporation of submissions made at the trial … may lead to error because of the inability of an appellate court to discern the process of reasoning.”
However, their Honours also commented that the appropriateness of doing so is “not one of principle but one of degree and the issue is whether or not what the trial Judge did was adequate in all the circumstances” [our emphasis].
In this matter, her Honour had no evidence from the husband. Her Honour had no submissions from the husband about how the property of the parties should be divided, the husband’s submissions dealt only with the issue of leave to file further affidavit material. Furthermore, senior counsel for the husband conceded that there could be no ground of appeal that the result arrived at by her Honour was unjust and inequitable because there was not evidence that enabled such an assertion to be made.[45] Senior counsel for the husband further conceded that “it would be very hard to argue that [a 65/35 percent division of property is] outside the range on the evidence which her Honour had.”[46] In these circumstances, her Honour’s adoption of the wife’s submissions as reasons was appropriate and the wife’s submissions were sufficient as reasons for judgment.
[45] Transcript of the appeal proceedings, 18 April 2012, page 26, lines 11-15.
[46] Transcript of the appeal proceedings, 18 April 2012, page 27, lines 5-7.
Further, Coleman J said in Steinbrenner & Steinbrenner:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. In this Court’s view this is not such a case.[47]
[47] Steinbrenner & Steinbrenner [2008] FamCAFC 193, [234].
We believe that, similarly, this is not such a case. Her Honour adopted the carefully constructed submissions of the wife. Those submissions set out in what appear to be objective and reasonable terms the contributions made by each of the parties and identified, where it was the case, that the contributions made by the husband were greater than those of the wife. The wife’s submissions clearly state that an assessment of contributions as 65/35 in the husband’s favour is based on “each party’s financial and non-financial contributions, and the nature of the roles undertaken by each party, over the course of their lengthy relationship.” The submissions then go on to set out each party’s contributions to support that assessment. In our opinion, the “leap” from “qualitative evaluation of contributions to quantitative reflection of such evaluation” is not so great as to render her Honour’s reasoning process defective.
By way of completeness, we comment that her Honour in [29] considered the question of whether the orders in themselves would constitute a just and equitable result:
29.I am therefore satisfied that it is just and equitable that the end result should be a distribution of 55% to the husband and 45% to the wife of an asset pool of approximately $9,099,445.00 and I am satisfied that provides a just and equitable result and ensures that the husband is able to continue to earn a substantial income through his ongoing employment in [Western Australia] and his continued ownership of property that is available for him to use.[48]
[48] Sexton & Sexton [2011] FMCAfam 689, [29].
In our opinion, ground 2 of the appeal necessarily fails.

Costs

At the conclusion of the proceedings we sought submissions from each party as to what order, if any, should be made about costs. The wife sought that if the appeal was unsuccessful, the husband should pay her costs. Senior counsel for the husband sensibly agreed that would be the appropriate order.
The appeal has been wholly unsuccessful. No submissions were made about the other matters to be taken into account under s 117(2A). An order for costs in favour of the wife will be made accordingly.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and Murphy J) delivered on 21 December 2012.

Legal Associate:

Date: 21 December 2012