SUTTON & SUTTON
[2020] FCCA 2387
•9 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUTTON & SUTTON | [2020] FCCA 2387 |
| Catchwords: FAMILY LAW – Procedure – where Application to adjourn final hearing refused by the Court – where Applicant to that application failed to turn up to Court on second day of the hearing – where the matter proceeded undefended. FAMILY LAW – Property – where matter proceeded undefended – where failure to comply with obligation to provide full and frank disclosure by wife – where Court determined the contributions of the parties were equal – where adjustment made in wife’s favour in relation to future earning capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 90XT, 106A Federal Circuit Court Rules 2001 (Cth), rr.6.07, 16.05 |
| Cases cited: Squire v Rogers (1979) 27 ALR 330 Gazal & Belros [2015] FamCAFC 92 Elgin & Elgin (2015) 54 Fam LR 31 |
| Applicant: | MS SUTTON |
| Respondent: | MR SUTTON |
| File Number: | SYC 6929 of 2012 |
| Judgment of: | Judge Morley |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 11 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2020 |
REPRESENTATION
No appearance for the Applicant.
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Karras Partners Lawyers |
ORDERS
That pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’):
(a)That within one month of the wife complying with order (1)(c) herein, the husband’s superannuation interest, attached to his membership number ..., in the Super Fund M (‘the Plan’) – ... under the Super Fund M Trust (‘the Fund’) with Super Fund M (‘the Trustee’) as trustee, shall be split to create a superannuation interest for the wife as follows:
(i)Pursuant to section 90XT(2) of the Act and regulation 27 of the Family Law (Superannuation) Regulations2001 (Cth) (‘the Regulations’) the Court determines the amount in relation to the husband’s superannuation in the Plan is $208,972;
(ii)Pursuant to section 90XT(4) of the Act the Court allocates a base amount to the wife in respect of the husband’s superannuation interests in the Plan of $30,000;
(iii)Pursuant to section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s superannuation in the Plan the wife is entitled to be paid an amount calculated in accordance with the Family Law Regulations where the base amount is $30,000 and there is a corresponding reduction in the entitlement of the husband at the time of the splittable payment.
(iv)The operative time for the payment under this order is four business days after service of this order on the Trustee.
(v)The Trustee shall do all such acts and things and sign all documents as may be necessary, in accordance with the obligations set out under the Act and the Regulations to calculate the entitlement to make payment to the wife in accordance with these orders.
(vi)The husband shall not give or grant to the Trustee of the Plan a binding death nomination in favour of a child which would have the effect of in any way reducing the value to the wife of the splittable order herein and in particular the base amount allocated to her and the husband and his legal personal representatives in the event of his death and does hereby indemnify and keep indemnified the wife in respect of any loss that may be suffered by her as a result of any failure by him to comply with this order.
(vii)That having been accorded procedural fairness in relation to the making of this order the order binds the Trustee of the Plan.
(b)That both the husband and the wife will do all things necessary to close the joint Commonwealth Bank of Australia account #...50 and pay the balance to the wife.
(c)That within seven (7) days of the date of these orders the wife shall provide documentary evidence to the husband to show that either:
(i)The mortgage the parties obtained to purchase the property in China has been fully discharged; or
(ii)The mortgage has been refinanced into the wife’s sole name and the husband has no liability in relation to the same.
(d)That the wife is to deliver to the husband all his belongings, including but not limited to personal effects, ornaments, clothing, pictures, photograph albums, and their contents that were left in the property owned by the wife in China, such delivery to be made by the wife to the husband within six (6) months of the date of these orders.
(e)That other than is provided for in these orders the husband is the sole owner in law and in equity as between himself and the wife of the whole of the right title and interest in any chattels, goods, furnishings, bank accounts and other property in his possession at the date of these orders and any moneys, shares, debentures, or superannuation entitlements which stand in his sole name at the date of these orders.
(f)That the wife is the sole owner in law and in equity, as between herself and the husband, of the whole right title and interest in any chattels, goods, furnishings, bank accounts, and other property which are in her power, possession, or control at the date of these orders and any money, shares, debentures or superannuation entitlements which are in her sole name at the date of these orders.
That the Initiating Application filed by the wife on 3 November 2017, which includes an application for a spousal maintenance order, is dismissed.
That in the event that either party refuses, fails, or neglects to execute any deed or instrument in order to give validity and operation to these orders then the Court appoints the Registrars of the Federal Circuit Court of Australia Sydney Registry pursuant to section 106A of the Act to execute such deed or instrument in the name of the person who has so refused, failed or neglected to comply.
That the husband is to serve a sealed copy of these orders personally upon the wife within 21 days of the date of these orders being service by hand within rule 6.07 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
That any application to be made by the wife pursuant to rule 16.05(2) of the Rules is to be made by her no later than 14 days after the date on which a sealed copy of these orders has been served on her in compliance with these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sutton & Sutton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6929 of 2012
| MS SUTTON |
Applicant
And
| MR SUTTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property settlement proceedings between the applicant wife, Ms Sutton (‘the wife’) and the respondent husband, Mr Sutton (‘the husband’), brought under the Family Law Act 1975 (Cth) (‘the Act’).
The husband was born in the United Kingdom and came to live in Australia in 1999. He was 56 years of age at the time of the final hearing. The wife was born in China and came to Australia to live in 2003. She was 48 years of age at the time of the final hearing.
The parties were married in 2002 in China. The husband returned to Australia soon after the marriage and the wife migrated to Australia when her visa was approved in 2003. The parties commenced their cohabitation at that time.
There is one child of the parties’ marriage, B, born in 2005. Following her birth, B was raised by the parties jointly during their cohabitation. Following the parties’ separation they have shared care of B.
Following a contested hearing over several days in the Family Court of Australia, final parenting orders were made by Watts J on 13 April 2017. The wife was self-represented during that hearing and the husband was represented by counsel.
The final parenting orders, in very simple summary, provide that:
a)The father has sole parental responsibility for B in matters relating to education and health;
b)The mother has sole parental responsibility for B in matters relating B’s Chinese culture;
c)The parents otherwise share parental responsibility;
d)The mother is restrained from exposing B to the alternative Christian faith; and
e)B’s care is shared between the parties on an equal basis during the school term and an equal sharing of school holiday time.
At the time of the final hearing of these proceedings, B was 14 years of age.
The matter was set down for a final hearing of the parties’ property settlement and spousal maintenance issues on 10 and 11 October 2019. On 10 October 2019, the wife appeared represented by a duty solicitor from the Legal Aid Commission of New South Wales (‘Legal Aid’) as, per that solicitor’s description of her appearance, an amicus curiae (though in reality more accurately described as representation on a pro bono basis) to make an oral application for the final hearing dates to be vacated. I ultimately rejected that application on that day and made orders for the matter to proceed to final hearing on the second day being 11 October 2019. The husband was represented by Mr Dura of counsel.
On the second day set for hearing, 11 October 2019, there was no appearance by or on behalf of the wife. Mr Dura on behalf of the husband pressed for the matter to proceed on an undefended basis. As will be expanded below, I had warned the wife specifically that if she did not appear on 11 October 2019 at 9.30AM, the matter would proceed on an undefended basis. That is what occurred.
The proceedings
The proceedings were commenced by the wife filing an Initiating Application seeking a property settlement in terms of an order expressed as “equal division of property within 28 days”, and an order that the husband pay the wife spousal maintenance of $540 per week. The application was filed on the wife’s behalf by her then solicitors, Slater and Gordon Lawyers. I will be providing detail of the representation of the wife and appearances before the Court as it will be germane to the issue of the dismissal of the wife’s oral application for vacation of the final hearing dates, and the matter proceeding undefended.
The husband was represented throughout these proceedings by Karras Partners Lawyers. The husband filed his Response to Initiating Application and supporting documents on 8 December 2017 seeking final property settlement orders and opposing the wife’s application for a spousal maintenance order.
The matter had its first return date on 11 December 2017 before Senior Registrar Campbell. Both parties were represented before the Court. Orders were made by consent in relation to the wife providing disclosure to the husband. The matter was transferred to the Federal Circuit Court of Australia where it was listed for first mention at 9.30AM on 30 January 2018.
On 29 January 2018, Slater and Gordon Lawyers filed further documents on behalf of the wife in consequence of the matter being transferred from the Family Court of Australia to the Federal Circuit Court of Australia. Accordingly, at that date Slater and Gordon Lawyers were still on record as solicitors for the wife and remained so until a notice of address for service was filed by John R Quinn & Co solicitors on 1 May 2019. It is not revealed in the evidence when Slater and Gordon Lawyers ceased acting for the wife.
The matter had its first mention in the Federal Circuit Court of Australia before Judge Harper (as his Honour then was) on 30 January 2018 and both parties were represented before the Court. On that occasion, orders were made by consent in relation to further disclosure, the matter was listed for a conciliation conference with a Registrar on 19 March 2018, and the matter was adjourned for further mention on 20 April 2018.
The matter went to a conciliation conference with Registrar Halbert on 13 April 2018 and did not settle. Both parties were represented at the conciliation conference. The matter then came again before Judge Harper on 20 April 2018, and the matter was adjourned to 3 May 2018 at 2.15PM for call-over.
On 3 May 2018, the matter came before Judge Boyle and both parties were represented. The matter was listed for a further conciliation conference on 9 July 2018 and adjourned for mention to 27 September 2018 before Judge Harper. On 5 July 2018, the matter had a compliance check with Registrar Ryan and both parties were represented. The matter went to the second conciliation conference on 9 July 2018, but did not settle. Both parties were represented at that conciliation conference.
The matter then came again before Judge Harper on 27 September 2018 for mention, on which occasion the wife was represented by a solicitor from Slater and Gordon Lawyers but the wife herself did not appear at the Court. The Court was advised by the solicitor for the wife that his firm was without instructions. Orders were made for further disclosure by the wife, adjourning the matter to 3 May 2019 for a mention and the wife was ordered to pay the husband’s costs of 27 September 2018 in the sum of $305. The Court noted that:
A. On 27 September 2018 there was no appearance in person by the applicant, although she was represented by her solicitor.
B. The legal representative for the applicant was without instructions on 27 September 2018.
C. It was the position of the parties that matter could be adjourned by a lengthy period of time [sic].
D. If there is non-compliance on the adjourned date, consideration will be given to listing the matter for hearing on an undefended basis.
On 1 May 2019, a Notice of Address for Service was filed on the wife’s behalf by Mr Quinn, solicitor of John R Quinn & Co, a Sydney CBD firm. That Notice of Address for Service indicated both a street address and an email as address for service.
The matter was before me for call-over on 3 May 2019 and both parties were represented before the Court, the wife being represented by Mr Quinn, solicitor. The matter was set down for a final hearing on 10 and 11 October 2019 commencing at 10.00AM. I made trial directions including that:
a)The wife file any Amended Initiating Application by 4.00PM on 31 May 2019;
b)The husband file any Amended Response by 4.00PM on 14 June 2019; and that
c)Both parties file and serve all affidavit material on which they intend to rely at the trial by no later than 4.00PM on 12 September 2019.
It was noted in the orders of 3 May 2019 that “There is an outstanding issue between the parties in relation to a property in China however steps are being taken to resolve the valuation property.”[1]
[1] Orders of Judge Morley made 3 May 2019, [A].
The wife did not file any Amended Initiating Application, nor did she file any affidavit material between 3 May 2019 and 10 October 2019. The husband filed an Amended Response on 2 July 2019. He also filed an affidavit and a Financial Statement on 12 September 2019 at about 3.30PM.
On 4 July 2019, the husband’s Amended Response to an Initiating Application filed 2 July 2019 was served on the wife by forwarding same under cover of a letter as attachments to an email, to the wife’s address for service with John R Quinn & Co. A copy of the email and letter is exhibit R2. By email to the wife’s address for service with John R Quinn & Co, the husband’s solicitors served the husband’s affidavit and Financial Statement, both sworn and filed 12 September 2019, and asked “When can we expect your client’s Court documents and a response to the outstanding correspondence?”
On 13 September 2019 John Quinn solicitors sent an email to the husband’s solicitors advising:
We are having difficulty obtaining instructions from our client. If this continues we may have to file a notice of intention to withdraw. We will update you as soon as we are able.
By email of 17 September 2019 to the wife’s address for service with John R Quinn & Co, the husband’s solicitors sent a letter suggesting negotiations for a settlement:
The matter is now listed for a final hearing on 10 and 11 October 2019 and our client would like to avoid the further legal costs that will be incurred if possible.
On 17 September 2019, John R Quinn & Co filed a Notice of Intention to Withdraw as Lawyer. The notice was sent by them to their client. John R Quinn & Co confirmed same in a Notice to Withdraw as Lawyer, filed with the Court on 26 September 2019, that they “Served the notice of intention to withdraw as lawyer (“the notice of intention to withdraw”)” on the client by posting it to the client’s last know residential address and by emailing it to the client’s last known email address (as the listed residential address is temporary crisis accommodation). The Notice of Intention to Withdraw as Lawyer was served on the client at least seven days before the date of filing of the notice.
The Notice of Intention to Withdraw as Lawyer stated in paragraph 6 therein “This case is next listed before the Court at: address of Court: Lionel Bowen Building, 97-99 Goulburn Street, Sydney NSW 2000 on 10 October 2019 at 10 am for Defended Hearing”.
By email to Ms Sutton on 30 September 2019, the husband’s solicitors attached a letter of that date addressed to the wife that included the following:
We refer to your conversation with Ms U on 30 September 2019 and note that you advised that:
…
3. Ms U confirmed that the hearing is listed for 10 and 11 October 2019 before Judge Morley at the Federal Circuit Court at 97-99 Goulburn Street, Sydney. If the matter does not settle prior to that date then your attendance at Court on those days from approximately 9.30 am will be necessary.
4. You asked if Ms U would agree to adjourn the matter. We advised that our instructions are that our client does not consent to an adjournment of the matter and would like the matter to either resolve by consent beforehand or be dealt with by the Court on a final basis on those hearing dates.
By email to Ms Sutton on 2 October 2019, the husband’s solicitors attached a letter of that date to the wife that includes the following:
We have already indicated to you in our letter of 30 September 2019, a further copy of which is attached, that Mr Sutton will not agree any application made by you to adjourn the hearing. He requires the matter be resolved on 10 and 11 October 2019.
We note you have not complied with any of the directions made by his Honour in relation to the filing of your amended Initiating Application, affidavit or Financial Statement. Again, our client will not be consenting to any application made by you to adjourn the matter to allow you to file those documents.
If you fail to file your amended Initiating Application, affidavits setting out the evidence you rely upon and your updated Financial Statement prior to the commencement of the hearing our client will make an application to his Honour that matter proceed to trial on an undefended basis.
Should you be in any doubt about any of the issues raised in this letter please do not hesitate to contact the writer.
By email to Ms Sutton on 3 October 2019, the husband’s solicitors attached a letter of that date to the wife requesting that she bring certain documents of further disclosure to the Court on 10 October 2019, and further discussing matters of disclosure.
By further email to Ms Sutton on 3 October 2019, the husband’s solicitors attached a letter of that date and addressed to the wife and a copy of the husband’s Case Outline document “filed on behalf of our client at Court today.” I cannot find any indication on the Court records of the Case Outline document having been filed with the Court on that or any other day. Also attached and referred to in the letter were updating disclosure documents on behalf of the husband.
On 4 October 2019, a Notice of Address for Service was filed on behalf of the wife by Diana Lazarus, solicitor of Lazarus Lawyers, in the Sydney CBD. The notice indicated that the Notice of Address for Service was “for all proceedings with the file number SYC6929 of 2012” and that Ms Lazarus had “been appointed as the lawyer for [the wife]”. The notice provided a street address, a DX address, and an email address as the wife’s address for service.
By email of 8 October 2019, the husband’s solicitors forwarded to the wife’s address for service with Lazarus Lawyers a letter of that date, addressed to those lawyers attaching some further updating disclosure information on behalf of the husband, and advising:
We assume you are aware this matter is listed for final hearing on 10 and 11 October 2019 at the Federal Circuit Court. Please note our client will not consent to an adjournment if you client is minded to make such an application. Our client requires the matter to be finalised at the forthcoming trial.
By email to the wife’s address for service with Lazarus Lawyers on 9 October 2019, the husband’s solicitors attached a letter of that date addressed to those solicitors referring to a conversation between the relevant solicitors on 8 October 2019 and attaching a copy of:
a)The wife’s Initiating Application, filed 3 November 2017;
b)The wife’s Financial Statement filed 3 November 2017;
c)The husband’s Amended Response filed 2 July 2019; and
d)The husband’s case outline document.
The letter stated that “We note your advice that you have all other documentation filed.” The letter also states:
We further note your advice that due to your client’s “health problems” you propose making an application for the trial to be adjourned on 10 October 2019. That application will be strongly opposed.
The letter then goes on to advise certain matters in relation to an issue of costs if the adjournment application is made on behalf of the wife and granted. The letter also contains the following:
In relation to your client’s “medical problems” we note that at a time when your client was represented by Slater and Gordon lawyers on 3 May 2018, Judge Boyle made an order requiring her to “File medical evidence from her treating specialists in relation to her ongoing health issues within 21 days”. Your client failed to do so. One year later on 3 May 2019 at a time when your client was represented by John R Quinn & Co, Judge Morley made an order that “In the event that either party seeks to call evidence by any medical practitioner or expert then they should give the party/ies not less than 42 days’ notice of this and in the event that any party wishes to cross-examine that person they are to give 28 days’ notice of same and in that circumstance the question of costs with respect to the expert’s appearance is reserved to the hearing.”
Your client has not filed any affidavit material for the trial at all and has not taken the opportunity to file evidence of any medical practitioner.
These proceedings were commenced by your client on 3 November 2017 when she was represented by Slater and Gordon.
Your client continued to be represented by Slater and Gordon until she was represented by Nexus Law Group when Ms V moved to that firm.
From 1 May 2019 she was represented by John R Quinn & Co who remained acting on her behalf until around 26 September 2019. Very shortly thereafter you filed the notice of address on 4 October 2019. Consequently your client has been legally represented since filing the Initiating Application other than for a very short period. No explanation has been provided to us in writing by her legal representatives as to why Ms Sutton has continued to fail to comply with Court directions.
On the first day listed for the hearing, 10 October 2019, at 8.14AM, Lazarus Lawyers filed a Notice of Intention to Withdraw as Lawyer.
All of the correspondence referred to above from the husband’s solicitors to John R Quinn & Co Lawyers, to the wife, and to Lazarus Lawyers, and the email of 13 September 2019 from John Quinn to the husband’s solicitors, form a tender bundle tendered on behalf of the husband at hearing on 10 October 2019 and marked collectively as exhibit R1.
The adjournment application – 10 October 2019
When the matter was called before the Court at 10.00AM on 10 October, 2019 Mr Dura of counsel appeared for and with the husband. The wife appeared self-represented assisted by an interpreter provided by the Court. Mr Dura indicated on behalf of the husband that he was ready to proceed with the final hearing. The wife indicated that she sought to have the matter adjourned as she did not have legal representation and the case was not prepared for hearing.
After some discussion, I suggested to the wife that she take the opportunity of the matter being stood in the list to seek advice from the Legal Aid duty solicitor at the Court. The wife began herself, and not through the interpreter, to attempt to raise parenting issues concerning B, but I advised her that the parenting issues were not before the Court that day, that there were no live applications in relation to parenting issues, and that I would not be taking an oral application in relation to parenting issues on the day. I suggested to her that she seek advice from the Legal Aid duty lawyer specifically in relation to her proposed application to adjourn the matter, which was, in effect, an application to vacate the hearing dates.
The matter was recalled at 12.54PM and Ms Fordham, the Legal Aid duty solicitor on that day at the Court, appeared for the wife “on an amicus basis for the wife to explain to the Court some things she wants to tell the Court”. Ms Fordham indicated that the wife had applied for a grant of legal aid in January 2019 for the matter and that “funding was approved on 9 February 2019 and allocated to a Suburb W firm.” Ms Fordham made submissions on behalf of the wife in relation to the wife’s oral application to vacate the hearing dates and adjourn the matter to a later date.
Submissions were then made on behalf of the husband by Mr Dura opposing that application and seeking to proceed with the matter as set down. At the end of the submissions, I required that attempts be made to resolve the issue as to whether or not a grant of legal aid had been given to the wife for the matter before the Court, whether for the financial issues between the parties or for some other matter, and I again stood the matter in the list to allow Ms Fordham to make the relevant inquiries.
The matter was again called at 3.38PM and Ms Fordham tendered to the Court a copy of a letter dated 9 February 2019 from the Sydney office of Legal Aid to “Family Litigation DX5 Sydney NSW” – the family law litigation section at the Legal Aid Sydney office – indicating that a grant of legal aid had been made to the wife effective 9 February 2019 for “legal matter: spend time with – Court: no Court proceedings” and indicating that the “approved work items and fees – summary” was for a general disbursement to a maximum value of $25.
Ms Fordham very properly indicated to the Court that her inquiries with Legal Aid revealed that the only grant of legal aid made to the wife had been in relation to parenting issues and not for the institution of any proceedings in relation thereto. Ms Fordham tendered the copy letter, to which no objection was made by the husband, and it was admitted into evidence and marked as exhibit A1.
Ms Fordham also tendered a copy of an email from a solicitor in the domestic violence unit in the Legal Aid office at City X to the “grants” unit in Legal Aid. No objection was made by the husband, and the document was admitted into evidence and market as exhibit 2. The email is dated 24 April 2019 and reads:
Dear grants,
I assisted Ms Sutton today. She is attempting to find out who has been allocated her family law matter. She has Court on the 3 May 2019. I can see it is under Ms Y. My understanding is that it has been allocated to a private panel lawyer. Could you please follow this up urgently.
It then provided the mobile telephone number for the wife. It continued “She is extremely anxious about Court and currently does not know who her lawyer is.”
On the information before the Court at that time it was plain that the “family law matter” referred to was in relation to the grant of legal aid in relation to parenting issues, which was a grant for representation or assistance to the wife ‘in-house’ in Legal Aid. The wife was aware the matter was before the Court on 3 May 2019, and on 1 May 2019, Mr Quinn of John R Quinn & Co filed the Notice of Address for Service on behalf of the wife. Mr Quinn appeared before the Court at the call-over when the matter was set down for hearing on 3 May 2019.
It became apparent, at this point in the hearing, that the wife had at no time had a grant of legal aid for these proceedings.
I then considered the wife’s application for an adjournment in the light of the evidence before the Court and the submissions made.
The requirement that there must always be natural justice unless legislation clearly and unambiguously provides that something may be done without ensuring natural justice, is not just the foundation stone of our legal system, but is one of the most important elements of the rule of law.
As Kirby J said in Allesch v Maunz[2] at [35] and [36]:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed in the statutes creating Courts and adjudicative tribunal is. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a Court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers.[3]
[2] Allesch v Maunz (2000) 203 CLR 172.
[3] Allesch v Maunz (2000) 203 CLR 172, [35]-[36].
His Honour went on to say at [38] to [40]:
[38] … Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
[39] Decision-makers, including the Courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
[40] Nor are Courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by Courts of their functions must be weighed against unreasonable delay in concluding litigation.[4]
[4] Allesch v Maunz (2000) 203 CLR 172, [38]-[40].
Clearly, what is required to afford due process in any given case is determined by reference to the facts and circumstances of that case.
Also pertinent here are comments by the High Court in Aon Risk Services Australia Limited v Australian National University[5] per French CJ at [5]:
[5] In the proper exercise of the 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.[6]
[5] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
[6] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [5].
The comments apply equally to applications for adjournment and other procedural matters.
In Squire v Rogers,[7] Deane J, (as a member of the Federal Court) said:
[337] The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances ... Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular Court and may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A Court of appeal will not, as a general rule, interfere with a decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it has been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate Court to receive new evidence on the hearing of an appeal ... and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.[8]
[7] Squire v Rogers (1979) 27 ALR 330.
[8] Squire v Rogers (1979) 27 ALR 330, [337] (emphasis added).
Prior to both Allesch v Maunz and Aon Risk Services v ANU, the High Court commented on the competing considerations at play in a Court’s consideration of an adjournment application in Sali v SPC Ltd & Anor,[9] per Brennan, Deane and McHugh JJ:
[11] In determining whether to grant an adjournment, the judge of a busy Court is entitled to consider the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) [1979] FCA 48; (1979) 27 ALR 330, at p.337.) this “may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of Court resources.[10]
[9] Sali v SPC Ltd & Anor (1993) 67 ALJR 84.
[10] Sali v SPC Ltd & Anor (1993) 67 ALJR 84, 843 (emphasis added).
Per Toohey and Gaudron JJ:
A decision by a Court to grant or refuse an adjournment of proceedings is a decision made in the exercise of a discretion vested in that Court … the discretion is one that must be exercised judicially.[11]
[11] Sali v SPC Ltd & Anor (1993) 67 ALJR 84, 846.
The Full Court of the Family Court of Australia has considered appeals relating to adjournment applications, granted and denied, numerous times. I cite six examples:
a)In In the Marriage of JRD & MD,[12] per Nicholson CJ, Kay and Waddy JJ at [99] to [108]:
[12] In the Marriage of JRD & MD (2000) 26 FamLR 731.
[99] In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration”: Queensland v JL Holdings Pty Ltd (above). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz (2000) 173 ALR 648 ; 26 Fam LR 237 at [38]-[40]. Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.
[100] The aim is to produce a better focused trial which, by concentrating on essentials, is shorter and thus less costly to all concerned. Not only are the resources of litigants thus conserved, so, too, are the far from limitless resources of the Court.
[101] Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms. Here the husband claimed his new partner had just had a second child by him. Over 4 years had elapsed since the commencement of proceedings and the wife had not received the money to which the trial judge eventually found her to be entitled, nor had she been able to enjoy the peace and security of having put this failed relationship behind her.
[102] The parties were not the only ones affected. The wife claimed the litigation had had “quite an effect” on her children, and on herself as their chief carer.
[103] In many cases monetary compensation is not an adequate remedy for delay. In property disputes, especially where the needs of the parents which whom children are living need to be addressed, adjournments with or without costs orders may be totally inadequate in doing justice between the parties.
[104] To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the cooperation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the Court in preparation for trial (or settlement) must be respected and obeyed.
[105] Interlocutory processes must at all times necessarily balance the rights of all litigants to justice according to law. Such litigants comprise not only those party to such cases as are listed for hearing but also those litigants waiting for hearing dates due to the congestion of the lists. It is common sense, that, when time is allocated to a particular case, it should be ready to proceed and fully utilise the time afforded it. Such time should be no less and no more than that which is needed to do justice in the particular matter.
[106] In this instance, the matter had been before the Court on no less than 27 occasions. On two previous occasions it had been necessary to vacate trial dates. It takes little imagination to perceive that the Court’s resources devoted to this one case (let alone other proceedings between the same parties that were adverted to as well), was utterly disproportionate to the issues involved. Such Court resources, if not squandered on this matter, would have been available to other litigants who did obey the Court’s orders and directions.
[107] The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
[108] Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.[13]
[13] In the Marriage of JRD & MD (2000) 26 FamLR 731, [98]-[108].
b)In Farmer & Rogers,[14] Bryant CJ, O’Ryan and Ainslie-Wallace JJ said at [194] to [197]:
[14] Farmer & Rogers [2010] FamCAFC 253.
[194] In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the High Court (per French CJ at 192-195 and Gummow, Hayne, Crennan, Kiefel and Bell JJ at 212-215) discussed and emphasised the importance of case management of proceedings. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at 217:
In the past it has been left largely to the parties to prepare for trial and to seek the Court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the Courts arises from tradition and from principle and policy. It is recognised by the Courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[195] In Aon Risk Services the High Court considered r 21 of the Court Procedures Rules 2006 (ACT) which provides that the rules are to be applied in civil proceedings “with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties”. We observe that r 1.04 of the Family Law Rules provides: “The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case”. We also observe that r 1.03(1) of the Rules provides: “The object of these Rules is to assist the just, efficient and economical resolution of proceedings”. The above rules express in different ways the same purpose or object.
[196] In Aon Risk Services Gummow, Hayne, Crennan, Kiefel and Bell JJ also observed at 213:
The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the Courts of the Australian Capital Territory.
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. 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. (footnotes omitted)
[197] In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential ... . But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; M v M (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.[15]
[15] Farmer & Rogers [2010] FamCAFC 253, [194]-[197].
c)Of recent times there are two decisions of Strickland J sitting as the Full Court. The first is Medlon & Medlon (No. 4)[16] where the wife made an oral application for an adjournment of a final hearing on the basis of asserted ill-health and non-availability of her barrister. The matter had been awaiting a hearing for some time and the husband opposed the wife’s application for adjournment. At [4] to [6], and then [14] and [15], his Honour said:
[16] Medlon & Medlon (No. 4) [2015] FamCAFC 70.
[4] The two reasons proffered by the wife from the bar table in support of her application are first, that she is unwell and needs a rest, and she is off work at least until apparently 7 April 2015. The second reason the wife puts forward is that she had booked a barrister, but he became unavailable today because, the wife asserts, a part-heard matter he was involved in was carried over to today. She also tells me that she made attempts to find an alternative barrister but was unsuccessful.
[5] In support of her application the wife has relied on a medical certificate which was forwarded to the Court via email on Thursday 26 March 2015 at 7:16pm. I will receive that medical certificate and mark it Exhibit “W1”. The medical certificate is from a medical practitioner in Victoria; it certifies that the wife consulted the Doctor on 26 March 2015, and says “[s]he was affected by a medical condition and is unable to attend work today 26/3/2015 until 2/04/2015 inclusive.”
[6] In relation to the unavailability of the wife’s barrister, there is no documentation the wife has presented to this Court in support of what she has asserted from the bar table. …
[14] To return to the adjournment application, I am not satisfied that the wife is unable to conduct the hearing today. I am not satisfied with the medical certificate that the wife has presented to the Court.
[15] There are two issues about that medical certificate. First, the doctor describes the wife as suffering from a medical condition, however there is no detail whatsoever as to what that condition is. Secondly, the certificate says that the wife is unable to attend work from 26 March 2015 to 2 April 2015, but it says nothing about her ability to conduct a hearing in this Court today. Thus, that medical certificate is of no assistance whatsoever to me today in understanding why the wife would seek an adjournment, allegedly because she is “unwell and needs a rest”, being the precise words she used to me in her submission.[17]
[17]Medlon & Medlon (No. 4) [2015] FamCAFC 70, [4]-[6], [14]-[15].
d)Shortly thereafter in Gazal & Belros,[18] His Honour said:
[18] Gazal & Belros [2015] FamCAFC 92.
[45] What the High Court said in Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175 is also apposite to these proceedings, namely, it is relevant to take into account the negative effects of delay and adjournments, and the failure to comply with orders providing for case management in exercising the discretion that the Court has. At [30] French CJ said this:
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.[19]
[19] Gazal & Belros [2015] FamCAFC 92, [45].
e)Later that year, the Full Court again considered an ‘adjournment appeal’ in Elgin & Elgin[20] where May, Thackray and Ryan JJ said at [92] to [98]:
[20] Elgin & Elgin (2015) 54 Fam LR 31.
[92] A decision of a trial judge in granting an adjournment is generally regarding as falling within the category of ‘practice and procedure’. In Bloch v Bloch (1981) 180 CLR 390, Wilson J said at 395:
The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate Court will feel justified in reviewing such a decision…
[93] In Sali v SPC Limited (1993) 67 ALJR 841 the High Court in the context of considering the proper approach to the refusal by an intermediate state Court of appeal to allow an adjournment, discussed whether a judge is entitled to consider the effect of an adjournment on Court resources and other litigants. Of this their Honours Brennan, Deane and McHugh JJ said at 843 after referring to an English Court of Appeal decision Maxwell v Keun [1928] 1 KB 645 at 650 for the general principle that:
... [A]lthough an appellate Court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate Courts on many occasions.
[94] Reference was then made to a further proposition contained in the English decision that “an adjournment which, if refused would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action”. Their Honours said of this:
...However, both propositions were formulated when Court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
In determining whether to grant an adjournment, the judge of a busy Court is entitled to consider the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers this “may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of Court resources.
[95] In the judgment of Toohey & Gaudron JJ it was said that (at 846):
A decision by a Court to grant or refuse an adjournment of proceedings is a decision made in the exercise of a discretion vested in that Court. It is therefore a decision which will not lightly be set aside on appeal.
[96] To the extent to which it is necessary to add to this, reference was made by counsel for the wife to Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 to emphasise the relevance and the occasions a Court may consider the implications of case management in the context of any injustice which might be occasioned to either party. In dealing with the suggestion that principles of case management should only be employed in extreme circumstances their Honours at [94] made it entirely clear that this is not necessarily so:
...Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the Court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
[97] In the submissions of counsel for the wife reference was also made to [102]-[103] and [112] of that decision. While Aon was concerned with an application for leave to make a late amendment to pleadings it is obvious that the contents of these passages apply also to a decision as discretionary as whether an adjournment of a trial should be allowed. It is unnecessary to refer any further to matters of general principle in this respect.
[98] Forrest J was entirely correct in taking into account the unlikely possibility of the matter being heard within a short timeframe and the effect on Court resources should the trial be adjourned.[21]
f)Finally, I note the decision of the Full Court in Jarrah & Fadel[22] where Murphy J said at [14]:
[14] While this application for leave to appeal relates to interlocutory orders made by the judge below the impact of an adjournment would see the imminent parenting proceedings listed for trial before that judge being delayed. As her Honour pointed out a predominant consideration of the application for adjournment is the best interests of three young children. Given the unfortunate history of this litigation there can be no doubt in my mind that those best interests are met by the litigation about them being brought to an end as soon as can be permitted.[23]
[21] Elgin & Elgin (2015) 54 Fam LR 31, [92]-[98].
[22] Jarrah & Fadel [2014] FamCAFC 14.
[23] Jarrah & Fadel [2014] FamCAFC 14, [14].
The Court must provide natural justice through procedural fairness to all litigants. Included in that imperative is the requirement to provide all litigants with the opportunity to place their case fully before the Court. As cited above, it is the giving of that opportunity that matters most, as “affording the opportunity is all that the law and principle requires.”
As the above quoted authorities make plain, there are considerations beyond the parties to these proceedings. There is consideration of the other litigants in matters currently before the Court and awaiting ‘judge time’. If the wife’s application for an adjournment of the final hearing was granted and further final hearing dates allocated any earlier than at ‘the back of the queue’, then there would be a consequent pushing back of other matters also awaiting final hearing.
There was no evidence before the Court that the wife had any medical difficulties that had prevented her from preparing the matter for hearing.
The wife had been represented by legal practitioners throughout the whole of the proceedings, except for the period between 26 September 2019, when John R Quinn & Co filed their Notice of Withdrawal as Lawyer, and 4 October 2019 when Lazarus Lawyers filed their Notice of Address for Service.
The orders made on 3 May 2019, when the matter was set down for final hearing on 10 and 11 October 2019, required that the wife file and serve any amended Initiating Application by 4.00PM on 31 May 2019. There was no compulsion on the wife to file an Amended Initiating Application. The orders also required the wife to file and serve all affidavit material on which she intended to rely at trial no later than 4.00PM on 12 September 2019. No affidavit material was filed for the wife.
The wife had, on the Court file:
a)An amended Financial Statement sworn 29 January 2018 and filed that day;
b)An affidavit addressing the financial issues sworn by the wife on 29 January 2018 and filed that day, bearing a proper jurat by a translator, though the amended Financial Statement did not.
Those documents had been prepared by Slater and Gordon Lawyers on behalf the wife. Accordingly, the wife had materials before the Court on which she could rely on hearing – her Initiating Application, the abovementioned affidavit, and the abovementioned Financial Statement.
The proceedings had been on foot since 3 November 2017, a period of one month short of two years at the time of the final hearing. The parties had had two conciliation conferences. The parties had a lengthy adjournment between 27 September 2018 and 3 May 2019.
The orders made by Judge Boyle on 3 May 2018, that the wife serve an offer of settlement on the husband within seven days, and that the wife file medical evidence from her treating specialist in relation to her ongoing health issues within 21 days, were not complied with by the wife.
On 27 September 2018 Judge Harper made an order extending the time provided for in those orders up to, and including, close of the Registry on 30 November 2018. There was still no compliance by the wife with those orders. There is no evidence other than that wife was still represented by solicitors at all those relevant times, as solicitors appeared on her behalf on both 3 May 2018 and 27 September 2018 and then again on 3 May 2019.
I am satisfied on the basis of the evidence contained in the affidavit of the husband sworn 12 September 2019, and relied upon by him in relation to opposing the adjournment application, that there had been a significant failure by the wife to comply with her obligation of full and frank disclosure in the matter despite several orders having been made in relation to disclosure by her, which were not complied with. She has also failed to fulfil her obligation of full and frank disclosure under the Act and the Family Law Rules 2004 (Cth) initially, and then the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’).
No medical certificate was offered by the wife on 10 October 2019. No adequate reason or excuse was offered to the Court by way of either evidence or submissions by the wife to explain or excuse her failure to be ready to proceed with the final hearing of the financial issues on 10 and 11 October 2019.
Accordingly, I refused the wife’s application to vacate the hearing dates and adjourn the matter.
I then made it abundantly clear to both parties, and in particular the wife, and I saw the translation being made to her by Court provided Mandarin language interpreter, that the matter would proceed to its final hearing on 11 October 2019 commencing at 9.30AM. I indicated that if she did not appear on 11 October 2019 at 9.30AM, the matter would still proceed on an undefended basis. In that regard, I referred her also to rule 16.05 of the FCC Rules, as is my practice on the bench with self-represented litigants when they indicate that they either may not or will not appear on a hearing. The matter was then adjourned to 9.30AM on 11 October 2019.
The hearing
The matter was called at 10.03AM on 11 October 2019 as I was required to deal with some mention matters at 9.30AM. Mr Dura of counsel again appeared for husband, with his instructing solicitor and the husband both in attendance. There was no appearance by or on behalf of the wife. The matter proceeded to an undefended hearing. The Court-provided Mandarin language interpreter was present at the Court and she was dismissed with the Court’s thanks.
At hearing the husband relied on the following material:
a)His Amended Response to Initiating Application filed 2 July 2019;
b)His affidavit sworn 12 September 2019 and filed that day;
c)His Financial Statement sworn or affirmed 12 September 2019 and filed that day;
d)A Case Outline prepared by Mr Dura of counsel and containing a minute of the orders sought by the husband. That minute of orders sought (as opposed to the whole of the Case Outline document) was tendered and marked as exhibit R3;
e)Exhibit R4, being a copy of a letter dated 9 May 2018 from the husband’s solicitors to the trustee of Super Fund M. The letter sets out a proposed superannuation splitting order from the husband’s interest in the Super Fund M employee superannuation plan, as member number .... Also included in R4 is a copy of a letter of 10 May 2018 from Super Fund M to the husband’s solicitors, indicating the trustee of the fund is not intending to object to the making of the final order as proposed, and requesting that the proposed order be amended only to include the correct name of the fund and the trustee as “Super Fund M signature super (“plan”) – ... under the Super Fund M savings trust (“fund”) Super Fund M (“trustee”)”; and
f)A costs notification provided to the husband by his solicitors (pursuant to rule 19.04 of the Family Law Rules 2004 (Cth)) – a rule relating to proceedings in the Family Court of Australia, not the Federal Circuit Court of Australia – marked as exhibit R5.
The Case Outline document contained a chronology, a balance sheet, and written submissions on behalf of the husband. Oral submissions were made by Mr Dura during the hearing.
Asset pool
I find that the matrimonial asset pool is composed as follows:
Assets
Number
Ownership
Description
Value
1
Wife
Z Street, City AA, China
$162,000
2
Husband
CBA account #...20
$9,158
3
Husband
CBA account #...26
$55
4
Joint
CBA account #...50
$423
5
Husband
BB Bank (UK) account #...60
$1,428
6
Husband
BB Bank (UK) account #...50
$15
7
Husband
BB Bank (UK) account #...03
$12,197
8
Husband
CC Bank account #...35
$11
9
Husband
Motor Vehicle 1
$8,000
10
Husband
M Ltd shares
$875
11
Wife
Proceeds of sale of DD Street, City EE, China
$74,072
Total
$268,234
Liabilities
Number
Ownership
Description
Value
12
Husband
FF Bank visa credit card #...58
$53,572
13
Husband
AMEX credit card #...05
$37,038
14
Husband
CBA Mastercard #...12
$162
Total
$90,772
Superannuation
Number
Ownership
Description
Value
15
Husband
Super Fund M #...15 – accumulation fund
$121,385
16
Husband
Super Fund M #...55 – deferred fund
$208,972
Total
$330,357
The net matrimonial assets without superannuation entitlements is $177,462. The net matrimonial assets with superannuation is $507,819.
The husband indicated that he has some entitlements to superannuation through previous employment with Employer GG in the United Kingdom, and with Employer HH in the United Kingdom, but has no evidence as to the value of those entitlements.
The husband sought the orders below, which were set out in the minute of order marked as exhibit R3. Those orders vary the orders set out in his Amended Response to Initiating Application filed 2 July 2019, in that the base amount proposed in the Amended Response is $58,000, and the base amount proposed in the minute of orders is $30,000 (the minute of orders having been contained in the Case Outline document served on the wife as detailed above). The orders sought by the husband at the hearing were:
a)That within one month of the wife complying with the husband’s proposed orders 3 and 4, a spitting order is to be made affecting the husband’s interest in the Super Fund M (‘the Plan’) ...55 under the Super Fund M savings trust Super Fund M in favour of the wife with the base amount of $30,000. The operative time for payment being four business days after service of a copy of an order, with the order to bind the trustees of the Plan;
b)That the parties forthwith do all things necessary to close the joint Commonwealth Bank of Australia account #...50 and pay the balance to the wife;
c)That within seven days of orders, the wife provide documentary evidence to the husband to show that either the mortgage the parties are paying to purchase property in China has been fully discharged, or the mortgage has been refinanced in the wife’s sole name and the husband has no liability in relation to same;
d)That the wife deliver to the husband all of his belongings including but not limited to personal effects, ornaments, clothing, pictures, photograph albums and their contents that were left in the property owned by the wife in China, such delivery to be within six months of the date of orders.
e)That other than provided for in the orders, the husband and wife each be declared to have the sole right title and interest in any chattels, goods, furnishings, bank accounts, and other property which are at the date of orders in their possession respectively, and any money, shares, debentures, or superannuation entitlements which stand in their sole name respectively at the date of orders;
f)That the application filed by the wife on 3 November 2017 seeking an order in her favour for payment by the husband of spousal maintenance be dismissed; and
g)An order under section 106A appointing the Registrar of the Court.
The parties were married in 2002 in China and had not cohabited prior to their marriage. The husband returned to Australia from China shortly after the marriage, and the wife stayed in China until 2003 when she obtained her visa to come to Australia, which she then did. Cohabitation between the parties commenced in 2003 in Australia.
The parties had “several brief separations” and then separated on a final basis on 19 November 2012. They were divorced on 7 November 2016.
B was born in 2005 and was 14 years of age at the time of the hearing. As detailed above, final parenting orders had been made by Watts J in the Family Court of Australia on 13 April 2017 and, amongst other things, provided that B spend equal time with each of her parents both during school term time and in school holidays.
At the time of the parties’ marriage the husband had a Motor Vehicle 2 valued at $18,000 and savings in both the United Kingdom and the Commonwealth Bank of Australia in Australia of $50,000. The husband was not aware of any assets held by the wife at the time of their marriage, though he gave evidence that the wife claimed in the proceedings that she had $60,000 at the commencement of their cohabitation.
At the time the parties married, the husband was employed on a full-time basis as a professional with Employer M and he remained in that employment throughout the marriage, even during a period from 2009 until 2011 when the family lived in China.
During the time of marriage the wife had a number of casual jobs, but did not engage in full-time employment. This included employment as a retail assistant at various shops. She also worked in an office-based role for a Chinese business. The wife ceased employment prior to B’s birth “and only had short periods of employment thereafter.” At one stage she worked on a commission basis only in relation to sale in Australia of clothes produced in China by a friend of hers, and the husband gives evidence that “to the best of my recollection [the wife] did not earn an income.”
Even though the husband was in full-time employment, and the wife was not in employment for most of the time after B’s birth, they shared her day-to-day care. When B was aged 12 to 18 months she attended a day care centre at the husband’s place of work several days a week, building to five days per week until the family moved to China in late 2008. During that period the husband took B to and collected her from the day care centre each day.
While the parties resided in China, the wife was sole carer for B from 2008 until 2009. When the husband moved to China, the parties then shared care of B as the husband was working remotely and available to do so, except for one week each month when he returned to Sydney for work.
Between 2005 and 2008 the wife travelled to China to spend time with her family once each year, paid for from the husband’s earnings. On one such trip she remained in China with B for “about two to three months” and the husband visited them twice during that time. On another occasion the wife visited her family in China for three weeks and left B in the husband’s care during her trip.
During two of the wife’s trips to China she purchased two properties in China without the husband’s knowledge – Z Street, City AA, China and the DD Street, City EE, China property. Both properties were purchased in the wife’s sole name. When the wife returned to Australia after making the purchases, she advised the husband she had bought the properties. The Z Street, City AA property was purchased by the wife for a combination of cash payment and borrowed funds secured by a mortgage on the property. The DD Street, City EE property was purchased by a payment by the wife of 30 per cent of the purchase price and the balance funded by a loan secured by mortgage on the property with the JJ Bank of China in the wife’s sole name.
The husband has this information anecdotally from the wife only. The husband gives evidence that it is his understanding that:
… the mortgage with the JJ Bank of China is in both our names. While we were in China in approximately 2006 I accompanied Ms Sutton, at her request, to the JJ Bank of China to sign mortgage documentation. The documents are in Chinese and I could not understand them. I relied upon Ms Sutton’s translation which was very vague. Consequently, I am concerned that the mortgage is joint rather than in Ms Sutton’s sole name.
The husband gives evidence that there has been no disclosure by the wife to the husband of any documentation in relation to the purchase of either of the Chinese properties.
The husband says that the mortgage payments in relation to both properties were made by transferring funds from his bank account in Australia, into which his income was deposited, to the mortgage account, but that he never received nor saw any mortgage statements. He says “No further payments from my account were made after we returned to Australia in 2011.”
Both properties were bought off-the-plan, and on completion of the purchase the units were bare shells with “cold water pipe, the electricity metre, and the walls of the bathroom and plumbing for the bathroom only.”
After completion of the purchase, any purchaser was required to pay further to complete a fit-out of the apartments. After completion of the purchases the parties fitted each of the apartments out, the cost of the fit-outs being paid from the husband’s income. While the parties were living in China they lived in the larger of the two apartments, the City AA apartment and the husband used the City EE apartment as his office.
The husband has had nothing to do with either apartment since separation in November 2012.
In the hearing of the parenting proceedings before Watts J the wife gave evidence that she received a rental income from the two properties in China. At [108] of his Honour’s judgment of 13 April 2017 he states:
The mother states that she has funds coming from China and that by July 2017 she will have $100,000 in Australia. She produced no corroborative evidence to substantiate those assertions although it was agreed that the mother has two properties in China (which on her oral evidence currently generate very low income for her).[24]
[24] Sutton & Sutton [2017] FamCA 233, [108].
The husband gives evidence that from the wife’s limited disclosure in her documents filed earlier in these proceedings, he is aware that she retains the City AA apartment at a value of $162,000, and that she sold the City EE property and received a net gain, after all necessary payments and repayments, of $74,072.
The husband’s father passed away in 2010 and the husband inherited a sum of £222,704.98. Up to the time of the parties’ separation on 19 November 2012 the husband had received £185,500 and he received the balance of his inheritance post-separation. The husband applied part of his inheritance to the purchase of real property at KK Street, City LL in the United Kingdom for £47,500 and purchased a motor vehicle in the United Kingdom. He later sold the City LL property to his sister in 2014 for £50,000.
The husband expended a sum of $101,000 on legal fees in the parenting proceedings from his inheritance moneys. The husband gives evidence that he has expended the balance of his inherited funds, other than those funds retained in his bank accounts as I have detailed above, on living expenses and in particular on payment of school fees for B.
The husband has been solely responsible for payment of B’s education costs from his inherited funds and from his income. In 2018, he paid $23,000 for B’s education costs and in 2019 he paid $25,000 for B’s education costs. The husband has also funded overseas travel for himself and B on several occasions since the parties’ separation.
From separation until August 2014 the wife had access to a supplementary card on the husband’s credit card account and access to a joint bank account that was funded only from moneys provided by the husband. The wife spent $700 per week until the husband stopped her access to the credit card in August 2014, and from that time he has paid to the wife a sum of $300 per week by way of agreed voluntary child support.
From separation until 15 October 2018, the husband paid the wife’s rent for her accommodation at K Street, Suburb J, initially at $550 per week, later increasing to $600 per week. The husband also paid $70 per month for the wife’s internet access at K Street.
The husband deposes in his affidavit that:
From separation my income was not sufficient to meet all the expenses of B and myself, the child support I voluntarily paid to Ms Sutton, and the rent and other expenses I paid on Ms Sutton’s apartment. Consequently, I paid the shortfall by drawing on the inheritance funds and by using my credit card.[25]
[25] Affidavit of the Husband filed 12 September 2019, [101].
During the period of time that the parties resided in China the wife did not work or start a business and the parties employed a full-time domestic worker to cook for them and clean their home over five or six days per week. The parties lived in rented accommodation throughout the whole of their cohabitation.
Relevant to the orders sought by the husband in relation to his personal property in the possession of the wife he gives evidence in his affidavit:
Ms Sutton recently travelled to China for a period from early July to late August 2019. B lived with me while Ms Sutton was in China. While Ms Sutton was away she sent some videos she had made while in China to B. B showed me one of them and I recognised the background as being the interior of the City AA apartment. I also saw that some of my personal possessions, which I had been asking Ms Sutton to provide to me, were still in the apartment. For example, I saw the large plate which I had been given by my father leaning on a sideboard. I also saw a large brass elephant that belonged to me. [26]
[26] Affidavit of the Husband filed 12 September 2019, [83].
The husband admits in his affidavit:
I was actively involved in the day-to-day care of B from her birth, however, as I was in full-time employment throughout the marriage I acknowledge that Ms Sutton’s contribution to her day-to-day care pre-separation was greater than mine.[27]
[27] Affidavit of the Husband filed 12 September 2019, [113].
The husband was 56 years of age at the time of hearing and gives evidence that he is “in a satisfactory state of health”. The wife was 48 years of age at the time of hearing and though she had made complaints about her health in the course of the proceedings, as evidenced by the orders made, she has not complied with the orders and provided any medical evidence of any asserted medical difficulties.
The husband sets out his income, property, and financial resources in his Financial Statement. He remains in full-time employment with M Ltd. The husband has entitlement to a small United Kingdom pension of about $1,800 per year, payable to him in about 10 years time.
There is no current child support assessment and the husband continues to pay the sum of $300 per week to the wife as voluntary agreed child support for B, in addition to his payment of her education costs, her support during the ‘equal’ time that she is living with him, and for her overseas travel with him. He also pays for tutoring for B.
The husband details, at [14] to [53] of his affidavit, the wife’s failure to make full and frank disclosure in relation to all relevant financial matters on her side relating to the proceedings and I accept that evidence, it being uncontested. I find that the wife has failed to make full and frank financial disclosure and I accept that the husband has made full and frank financial disclosure except in relation to his superannuation entitlements in the United Kingdom, in relation to which I accept his evidence that he has been unable to ascertain their value.
The law
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[28] Relevantly in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[29] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[30]
[28] Family Law Act 1975 (Cth) s 79.
[29] Family Law Act 1975 (Cth) s 79(1)(a).
[30] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[31] To give proper consideration to the legislative process required by section 79, it is necessary to consider the High Court decision in Stanford & Stanford.[32]
[31] Family Law Act 1975 (Cth) s 79(2).
[32] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
Is it just and equitable to make an order under section 79?
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[33]
[33] Stanford & Stanford (2012) 247 CLR 108; see especially [37].
I further note the comments of the High Court in Stanford at [42] which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[34].
[34] Stanford & Stanford (2012) 247 CLR 108, [42] (emphasis added).
The marital relationship between the parties has broken down irretrievably as evidenced by their divorce on 6 November 2016.
Both parties have asked the Court to make an order under section 79 of the Act adjusting property between them. The wife when she instituted the proceedings and the husband in his application before the Court on final hearing.
Accordingly, I find that it is just and equitable to proceed with alteration of the parties’ interests in their property as reflected in the matrimonial asset pool.
What orders under section 79 are appropriate to be made?
Having determined that it is indeed just and equitable to make an order under section 79, the Court is then tasked with the job of considering what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey.[35]
[35] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a Court when determining a property application:
a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[36]
b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [37]
c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[38]
d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[39]
[36] Hickey [2003] FamCA 395, [39].
[37] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):
[38] Hickey [2003] FamCA 395, [39].
[39] Hickey [2003] FamCA 395, [39].
Consideration
On the basis of the evidence presented by the husband in relation to the financial and non-financial contributions made by the parties, and the financial contribution made on behalf of the husband in relation to his inheritance from his father’s estate, and the contributions made by each of the parties to the welfare of the family unit including as parent (there being no evidence before the Court in relation to matters of home maker contribution other than that the parties had paid assistance in that regard for the period of time they resided in China), I find that the parties made an equal contribution when all of those contributions are viewed on an holistic basis.
In relation to the requirement under section 79(4)(e) of the Act, that the Court consider whether any adjustment should be made between the parties based upon any relevant considerations set out in section 75(2) of the Act, I am unable to make relevant findings as I do not have evidence upon which to base a comparison of the parties consequent upon the wife not taking part in the proceedings by her own choice, and there being no evidence before the Court from her.
However, on the basis of the husband’s evidence alone I make a finding that there is certain to be a financial disparity between the parties in relation to their income and earning capacity. I cannot make a finding as to what extent that disparity will be, and on that basis alone I find that it is appropriate to make an adjustment between the parties in favour of the wife of 2.5 per cent, giving a differential between the parties of five per cent which is, on the basis of a net matrimonial asset pool including superannuation of $507,819, a differential of $23,390.95.
Accordingly, I find that it is just and equitable to make orders that provide for a division of the net matrimonial asset pool including superannuation (a one pool approach) between the parties as to 47.5 per cent to the husband and 52.5 per cent to the wife, on the basis strictly that that net matrimonial asset pool includes the net proceeds of sale of the Chinese property in the sum of $74,072, which on the evidence has been received by the wife and in relation to which there is no evidence as to disposal.
I find it is appropriate to make an order under section 79 of the Act that provides that each party will retain the assets and superannuation currently in their own power, possession, or control subject to the making of a splitting order in favour of the wife affecting the husband’s Super Fund M entitlements with the base amount of $30,000, which will have the effect of the husband retaining 47.5 per cent of the net matrimonial asset pool and the wife retaining 52.5 per cent thereof.
As the husband is uncertain as to whether or not he has a liability in relation to a loan account with the JJ Bank of China, whether secured or not secured on the City AA property in China, and the wife has failed to comply with her obligation, including a failure to comply with Court orders, to provide full and frank disclosure that would have provided the husband with information to resolve that uncertainty, I find that it is appropriate to make the orders sought by the husband that the splitting order become effective one month after the wife complies with an order that she provide documentary evidence to the husband to show that either he has no liability in relation to any loan account in China, or that any such liability that may have existed has been fully discharged.
However, I find that it is not appropriate to make the operation of the splitting order conditional upon the wife delivering to the husband personal belongings that were left by him in a property owned by the wife in China, there being no evidence before the Court of the basis upon which those items were left in the Chinese property by the husband. In that regard, the only item referred to in the orders sought by the husband that is based upon evidence contained in his affidavit, is in relation to the “large plate” and “large brass elephant” being “ornaments”.[40] I will make the order as sought by the husband, but not make the operation of the superannuation splitting order conditional upon the wife’s compliance.
[40] Affidavit of the Husband filed 12 September 2019, [83].
The wife’s spousal maintenance application
The wife did not appear at the final hearing to press her application for an order that the husband pay to her spousal maintenance in the sum of $540 per week.
The wife did not provide evidence upon which a proper assessment, and resulting findings, could be made by the Court in relation to whether or not the wife is unable to support herself adequately, whether by reason of having care and control of B, by reason of age, or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason, when regard is had to, and only to, the matters referred to in 75(2) of the Act.
Accordingly I will make an order dismissing the wife’s Initiating Application filed 3 November 2017.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 9 September 2020
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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