Sitwell & Sitwell (No. 2)

[2013] FamCA 199

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL (NO. 2) [2013] FamCA 199

FAMILY LAW – EXTENSION OF TIME – Application by husband to extend the time to comply with an order relating to a contract for sale – Application made on date contract to expire if not completed – Orders sought to be extended in respect of a time in which to complete a contract found to be final property orders, not machinery orders – Case authorities provide that a final order cannot be interfered with other than by way of appeal or section 79A of the Family Law Act 1975 (Cth) – Extension of time cannot be granted – Application dismissed

FAMILY LAW – DISQUALIFICATION – Application by husband to disqualify presiding Judicial Officer on the grounds of actual or apprehended bias – No finding of either actual or apprehended bias – Application dismissed

Bray & Bray (1988) FLC 91-968
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Eure & Tidwell (1995) FLC 92-622
Munday & Bowman (1997) FLC 92-784
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022
State of Queensland v JL Holdings (1997) 189 CLR 146
Tate & Tate (2000) FLC 93-047

Family Law Act 1975 (Cth)

APPLICANT: Mr Sitwell

RESPONDENT: Ms Sitwell

FILE NUMBER: PAC 5769 of 2010

DATE DELIVERED: 14 March 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 14 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance
(self-represented litigant)

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT:

Mr Jamieson

Champion Legal

Orders

1. That the document being an email from the husband addressed to Vicki Kelly and a copy to Ms A shall become Exhibit A in today’s proceedings.

2. That the Notice to Produce and accompanying correspondence shall become Exhibit B in today’s proceedings.

3. That the correspondence of 5 March 2013 from Vicki Kelly to Mr Proctor shall become Exhibit C in these proceedings.

4. That the husband’s application filed on 11 March 2013 for disqualification is hereby dismissed.

5. That the husband’s application filed on 11 February 2013 is hereby dismissed.

6. That the husband shall pay the wife’s costs of today on an indemnity basis as agreed or taxed. 

7. That such payment shall be made within six (6) months of any assessment being made.

8. That until payment, the liability for costs shall create a charge that may be protected by caveat, which may be secured over the land to be transferred into the husband’s name being previously described as B Street.  The charge shall be in the amount of $10,000 subject to a notice of assessment being issued in the appropriate fashion.

9. That I remove all outstanding issues from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:

Mr Sitwell

Applicant

And

Ms Sitwell

Respondent

REASONS FOR JUDGMENT

Introduction

1. On this matter coming before me at 4.30 pm today, there was no appearance by or on behalf of the Applicant husband.  The matters before me were applications commenced by the husband.  I am satisfied that he was aware of the listing of the matters today.

2. Before me are two applications of the husband.  The first that I will deal with is an application that I disqualify myself.  The husband filed an Application in the Case on 11 March 2013 seeking my disqualification.  That application was made returnable at 4.30 pm today.  Also listed at 4.30 pm today is a second application of the husband.  I will return to that second application later in these reasons for Judgment.

Husband’s disqualification application

1. The husband’s affidavit in support of his application for my disqualification says that the evidence that he relies upon to establish why I should disqualify myself is set out in transcripts of evidence of proceedings before me of 27 November 2012 and 26 February 2013.  I have read those transcripts.  As I understand it, the application for me to disqualify myself would be for either actual or perceived bias. 

2. The High Court of Australia in Ebner v The Official Trustee in Bankruptcy[1] set out that the test was that a fair-minded observer sitting in the Court, and being aware of the circumstances of the case, would be satisfied that my continuing in the case might lead to an injustice.

   [1] [2000] 205 CLR 337

3. There have certainly been some exchanges between the husband and myself during the course of the four occasions that the matter has been before me on 27 November and 11 December 2012, and 14 February and 26 February 2013.  From my reading of the transcripts identified by the husband, I am not satisfied that there has been anything said or done by me that would enliven the view of such a fair-minded observer, seized with an overview of the matter, that I would not deal fairly and justly with the husband.  Indeed, it may well be believed by someone who had heard what has happened in this litigation on the dates in question, particularly that which was said on behalf of the wife in respect of the various adjournments that the husband has sought, and which I granted, that I have been, if anything, generous to him.

4. Without the husband here to prosecute his application to disqualify me, and bearing in mind that the husband has a record in this Court of filing applications and either not appearing or appearing and seeking adjournments because of ill health or to obtain legal advice (and then not doing so), I am satisfied that it is, in all the circumstances, appropriate for me to deal with his application for disqualification in his absence. 

   - - -

5. I have now been handed an email from the husband that has only just been received by my Associate.  That email appears to be timestamped 4.39 pm, admittedly only a few minutes after the time the matter was listed for hearing.

6. However, before the email was handed to me, I was commenting upon the occasions in the past where the husband has done precisely what he has done today, that is, filed an application and then said that he is unable to appear to prosecute the application.  I am not even sure that that email, given what appears to be its contents, seeks an adjournment of today’s proceedings.

7. Accordingly, I am not moved to consider in any way adjourning the application I am presently dealing with, that is, the husband’s application for my disqualification. 

   - - -

8. I was in the process of giving my reasons in respect of the disqualification application. 

9. I am confident that a competent lay person, having heard the entirety of the proceedings, would have no concern or fear whatsoever that I was actually biased against the husband.  Further, I am satisfied that that lay person would reach the view that there is no basis for an apprehension that I may be or have been biased against the husband during the course that these proceedings have come before me.

10. In all the circumstances, I dismiss the husband’s application that I disqualify myself.

Husband’s extension of time application

1. I then move to the husband’s application to extend time in which to comply with an Order made by me on 11 December 2012.  The application for the extension of time was filed on 11 February 2013.

2. I propose to also proceed to deal with this application today, notwithstanding the husband’s non-appearance today. 

3. The Orders of 11 December 2012 were made after much discussion with the parties.  They were made, I believe, by consent.  They provide that the husband, insofar as what had been referred to as Business G, was to do certain things so as to complete the purchase of Business G by 11 February 2013. 

4. The husband, as purchaser, had entered into a contract for sale with the wife as vendor for him to acquire that business.  That contract was entered into in June 2012.  The Order I made on 11 December 2012 was in two parts so far as Business G was concerned.  The first was that if the sale to the husband of Business G was not completed by close of business on 11 February 2013, the contract would be, and would stand, terminated.  The second part was that upon the contract being terminated, the wife was to be appointed as trustee for sale of Business G.

5. In respect of that order, nothing was heard from the husband until on the very day upon which completion was required, i.e., the 11 February 2013, he filed his application for time to be extended in which to complete the contract for sale.  It is his case, as I apprehend it, that he was unable to complete the purchase for a number of reasons, none of which are in my view sufficiently detailed in his material.  He endeavours to place at the feet of the wife, and those acting for her, the fault and/or blame for the contract not completing in accordance with my Orders of 11 December 2012.

6. A brief history from 14 February 2013 onwards is instructive.  On that date, the husband appeared before me and sought an adjournment of his application filed on 11 February 2013 so that he could obtain legal advice. 

7. I have read, as I say, the transcripts that he nominated.  I have assured myself that on the first occasion that the matter was before me, the husband spoke of monies that he had received that would be available for the purpose of obtaining legal advice. 

8. On 14 February 2013, I allowed the husband a further adjournment, again to obtain legal advice.  It was on that occasion that he told me that he had engaged the services of two very senior practitioners in the field of family law.  He assured me, as I understood what he said, and I have checked this from reading the transcript, that moneys were available, or an arrangement had been entered into whereby they would act for him.  The matter was then adjourned to 26 February 2013 to enable him to put in place his proposal to obtain legal advice, and have representation on that adjourned date.

9. On 26 February 2013, I was told by the husband that, because of actions that he attributed to a member of the firm of solicitors acting on behalf of the wife, the solicitor with whom he had made arrangements to represent him on that day, had refused to act on his behalf.  Ultimately, I allowed him a further adjournment until today.

10. That was done on the basis that he had in place another solicitor to whom he had spoken during the course of that day (26 February 2013), a Mr Proctor, who would appear on his behalf today.  It is abundantly clear from the transcript of 26 February 2013 that the husband was left in no doubt that the matter would proceed today, come what may.  For example, at page 45, that is, the last page of the transcript of that day, I said to the husband:

    HIS HONOUR: Very well.  Now, you understand the onus is clearly upon you, [Mr Sitwell]?  There can be no misunderstanding, the matter must proceed on the next occasion and you’re not – it’s not open to you to say on the next occasion, “Oh, but.” 

    Do you realise that?

    [MR SITWELL]: Yes.

11. There were earlier passages within the transcript of that day, which are of significance.  For example, at page 37, at approximately line 15, the husband assured me that if I granted an adjournment to a date in a particular week, he would make sure that he would have legal representation on the next occasion.

12. At page 25 of the transcript, commencing at line 25, the husband indicated that in respect of an adjournment, his legal representative would be lodging an enforcement application in the next week.  That has yet to be done.

13. I am most concerned with the course this matter has taken.  Whilst I have endeavoured to make every allowance for the husband being unrepresented on each of the occasions he has appeared before me, I have come to the conclusion that there has been a deliberate course by the husband to avoid this matter reaching a conclusion.  I say that in light of the fact that His Honour Johnston J made final Orders, by consent, on 19 October 2011.

14. Further, that the husband has, on a number of occasions, said that he would appeal against various decisions I have made.  For example, in the transcript of 27 November 2012, it appears, at page 54, that he proposed to appeal.  He has not done so.

15. I am satisfied the wife should not and cannot be held hostage any longer by the husband, and the manner in which he has chosen to conduct these proceedings. 

16. The issue that I understand I have to determine is whether or not his application for extension should be in any way entertained.  Firstly, I believe that I am not in a position to make such an order.  In my view, the Order that I made on the previous occasion (11 December 2012) was not a self-executing order, but a final property order.

17. Cases such as Ravasini & Ravasini[2], Bray & Bray[3] and Slapp & Slapp[4] make it clear that a Court cannot interfere with a final property order, save by appeal, or by the application of section 79A of the Family Law Act 1975 (Cth) (“the Act”). I am satisfied that the Orders made on 11 December 2012, providing for completion of the contract for sale by a certain date, and if completion was not effected matters flowing therefrom, are not dissimilar from the Orders considered in Bray (supra) and Slapp (supra) where an amount of money was to be paid within a certain time, and if payment were not made then there was to be a sale.

    [2] (1983) FLC 91-312

    [3] (1988) FLC 91-968

    [4] (1989) FLC 92-022

18. In the leading Judgment of the Full Court in Slapp (supra), Nygh J made it clear that the extension of time “cannot be described as merely a change of machinery”.  It had the effect of depriving the wife, in that case, of a substantive right which took effect on the husband’s failure to pay by the due date.

19. Thus, there can be no doubt that, if these Orders are, indeed, final property orders, they cannot be varied in the manner sought by the husband.  I am satisfied that the Orders made on 11 December 2012 are, indeed, final property orders.  Accordingly, I am satisfied that the husband cannot achieve an extension of time as he sought by his application filed 11 February 2013.

20. If I am wrong in my categorisation of the Orders as final property orders then the husband’s application for extension of time relates to a self-executing order.    I am satisfied that, having regard to the decision of the Full Court of the Family Court of Australia in Eure & Tidwell[5], before a self-executing order is varied, there must be real and significant reason for so doing.  As their Honours of the Full Court in that decision said “self executing orders are grave orders that need to be complied with”.

    [5] (1995) FLC 92-622

21. In my view, if these were self-executing orders - and my primary position, of course, is that they are not – then I am satisfied that the husband has done nothing to displace the coming into effect of the self-executing orders.  He has totally failed to, in any way, put before the Court proper reasons why the Orders of 11 December 2012 should not come into effect.

22. Finally, I refer to the matter of Tate & Tate[6].  In that case, the Full Court of the Family Court of Australia found that, notwithstanding the case of State of Queensland v JL Holdings[7] (which determined that matters of procedure should not act so as to overcome the justice of the situation), in this Court, the Court has a responsibility to parties to ensure that matters are dealt with as properly and as expeditiously as possible. 

    [6] (2000) FLC 93-047

    [7] (1997) 189 CLR 146

23. In all the circumstances of this case, I am satisfied that the justice and equity of this situation requires that the husband be given no further chances.  It is of great sorrow that this matter could not have been progressed more effectively and efficiently than was the case.  In my view – and I place this on record – this situation lies solely at the feet of the husband.  The position that I am confronted with today can only be resolved in one way, having regard to the authorities that I have endeavoured to identify, and the facts of the matter.  That way is that the husband’s application of 11 February 2013 must fail.  Accordingly, I dismiss that application. 

24. Both applications of the husband before me today have thereby been dismissed. 

Wife’s costs application

1. An application has now been made for the husband to pay the wife’s costs of today on an indemnity basis. 

2. On 26 February 2013, I made a similar Order for indemnity costs.  On that occasion, I endeavoured to create a protectable charge for those costs over a parcel of land which was to be transferred into the husband’s name.  I also included in that charge, costs made on an earlier occasion, but not on an indemnity basis. 

3. Of course, costs will need to be assessed in the appropriate fashion. 

4. On the last occasion, I nominated that the charge for the earlier indemnity costs was to be in the sum of $15,000.  Of course, the final amount actually payable will be the subject of agreement or assessment.

5. Having regard to the matters set out in section 117 of the Act, I am satisfied that an order for costs should be made. Also, having regard to the matters dealt with in the decision of Munday & Bowman[8], I am satisfied that this is an appropriate case for the costs to be paid by the husband to the wife pursuant to the costs orders should be costs on an indemnity basis.

   [8] (1997) FLC 92-784

6. If this were the first time that the husband has done the very thing I mentioned in dealing with his disqualification application, that is, making an application and not attending to prosecute it, or attending and then proclaiming that he is too ill to participate in the matter to any great extent, then the situation might be different.  However, this is, in my view, a continued, deliberate and persistent course of conduct on the husband’s part.

7. I am of the view that his application for disqualification was entirely without merit.  It was dismissed, as was his application for relief by way of extension of time.  That application also lacked merit.

8. In all the circumstances of this case, when I combine the provisions of section 117(2A) of the Act, together with the matters set out by His Honour Holden CJ of the Family Court of Western Australia in Munday (supra), I have come to the conclusion that the wife’s costs of today should be paid (a) by the husband and (b) on an indemnity basis.

9. The orders that I make are set out at the commencement of these reasons for Judgment.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 14 March 2013.

Legal Associate:      

Date:    3 April 2013