Thompson & Berg
[2014] FamCAFC 73
•2 May 2014
FAMILY COURT OF AUSTRALIA
| THOMPSON & BERG | [2014] FamCAFC 73 |
FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – RULES – Where the husband contends that the trial judge failed to properly ensure compliance with the pre-action procedures contained in the Family Law Rules 2004 (Cth) - Where the Family Law Rules prescribe the rules for proceedings in the Family Court and other courts exercising jurisdiction under the Family Law Act but not the Federal Circuit Court – Where practice and procedure of the Federal Circuit Court is to be conducted in accordance with the Federal Circuit Court Rules 2001 (Cth) – Where the Federal Circuit Court is permitted to use the Family Law Rules in relation to proceedings conducted under the Family Law Act if the Federal Circuit Court Rules are insufficient or inappropriate – Meaning of the word “insufficient” – Where pre-action procedures do not apply to proceedings in the Federal Circuit Court – Where the Federal Circuit Court Rules are sufficient – Appeal dismissed.
FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – PROPERTY – Where husband failed to comply with directions to file a response and financial statement – Where an allegation of financial abuse was found to not meet the definition of family violence under the Family Law Act 1975 (Cth) – Where allegations of bias towards the husband from the trial judge was not supported by evidence – Where the wife entitled to seek an alteration of property interests –Appeal dismissed.
| Family Law Act 1975 (Cth): ss 4AB(2)(g), 12E, 13B, 38, 75(2), 79, 81, 123, 123(1A) Family Law Rules 2004 (Cth): Part 1.2, rr 1.05, 1.08, 1.09 |
| Edgar v Greenwood [1910] VLR 137 Edwards v Noble (1971) 125 CLR 296 In the marriage of Cantarella (1976) FLC 90-056 In the marriage of Dixon (1977) FLC 90-318 In the marriage of Lamb (No 2) (1977) FLC 90-232 In the marriage of Spellson (1989) FLC 92-046 NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271 Re: Trade Practices Commission v Milreis Pty Ltd & Ors: Application by Thompsen Publications (Australia) Pty Ltd (1979) 18 ALR 7 |
Rubie & Rubie (1991) FLC 92-253
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542
Sheldon & Weir (No. 2) [2010] FamCA 449
Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel Alley Cat (1992) 36 FCR 129
Vakauta v Kelly (1989) 167 CLR 568
| APPELLANT: | Mr Thompson |
| RESPONDENT: | Ms Berg |
| FILE NUMBER: | SYC | 3691 | of | 2011 |
| APPEAL NUMBER: | EA EA | 151 18 | of of | 2013 2014 |
| DATE DELIVERED: | 2 May 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 19 March 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 26 September 2013 |
| LOWER COURT MNC: | [2013] FCCA 1458 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Grew of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Irene E Pickel Solicitors |
Orders
The appellant’s application in an appeal filed on 18 March 2014 seeking the provision of transcript be dismissed.
The appeal EA 18 of 2014 against the refusal to grant a stay of the orders of Judge Walker be dismissed.
The appeal EA 151 of 2013 against the orders of Judge Walker made on
26 September 2013 be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeals, such costs to be agreed or, failing agreement, assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Berg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 151 of 2013 & EA 18 of 2014
File Number: SYC 3691 of 2011
| Mr Thompson |
Appellant
and
Mr Berg
Respondent
REASONS FOR JUDGMENT
Mr Thompson (“the husband”) appeals from orders of Judge Walker made on 26 September 2013 in property settlement proceedings (pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”)) with Ms Berg (“the wife”). He further appeals against her Honour’s refusal, on 24 December 2013, to stay the operation of her orders of 26 September 2013.
It is necessary to set out some background facts relating to the parties and their financial history to give context to the issues raised before her Honour and on the appeal.
Background
The parties lived together from early 1979, married in February 1980 and separated in 2008. They have three adult children.
In late 1979 the parties purchased a property near Shoalhaven which they later sold and purchased a property in the NSW Southern Highlands. They continued to live on the property and at the date of trial, the wife was living in the main house on that property and the husband living in a cottage on the property.
From her Honour’s reasons, it seems that the husband was an agent for a footwear company and he worked as the sales agent in the ACT and regional NSW. The husband’s work in the agency was successful and, over time, included a number of brands that he represented in his work. He also began an association with W Company and was eventually offered an agency for that company covering a large sales area. In 1997 the husband began to consult to W Company in addition to the work he was doing as sales representative.
In 1999 the parties moved to Adelaide where the husband hoped to build up further consultancy work with W Company. It seems that the hoped for work did not eventuate and the parties returned to live in the NSW Southern Highlands.
In 2000 W Company cancelled the husband’s consultancy and awarded the representation of a new range of goods to another agent.
The husband developed investment plans which included buying commercial and non-commercial properties and developing a retreat which he hoped would involve W Company staff in training and retail research. In pursuit of this plan, through a private family company, the parties’ contracted to buy a property for $478,000. Because finance was refused, the contract was unable to be completed and, as a result the parties lost the deposit and were required to pay an additional sum to the vendors in damages for the abandoned contract, which they did. The parties withdrew funds from their relative superannuation funds to pay the damages.
It was not disputed that from time to time the husband suffered poor mental health. Her Honour noted the wife’s evidence that in 1999 for about six months, the husband suffered from depression. It seems that the husband’s most significant mental health issue occurred in 2006 in relation to which the primary judge noted that the husband said of himself that this was his “worst breakdown” and that in 2006 he was “totally dysfunctional” [19]. Her Honour observed that the husband’s treating psychiatrist’s notes of 2007 reveal that the husband had been under his care intermittently over the preceding six years.
During 2006 when the husband was unwell, the wife received permission from W Company to conduct the agency and she became actively involved in that business and, it seems from her Honour’s reasons, somewhat expanded its areas of operation. Her Honour accepted that the husband did not again actively participate in the conduct of the agency until 2008.
The husband’s mental health was, according to the wife, deteriorating again in 2008 and he spent time under the care of a psychiatrist in hospital.
The parties’ by then difficult financial position was not apparently improving and her Honour noted that the wife contended that at separation in 2008 she had credit card debts of $100,000, the husband’s credit card debt was in the order of $200,000 and they had joint debts of $668,000 including the mortgage over their NSW Highlands property.
In July 2009 the NSW Highlands property was valued at $1.27 million.
In October 2008 the wife resigned as director of the parties’ company, in an effort, it seems to limit her liability for debts incurred by the husband.
At the same time the parties had a meeting with the management of
W Company in which the husband sought to present the company with some development proposals. The company, for itself, sought a health report from the husband dealing with his absences from the agency and also some indication of the financial health of the parties’ company. In December 2008 W Company indicated that it would continue the agency arrangement with the parties. The wife continued to work in the agency until March 2009 when she resigned, albeit by then they were separated.
From April 2009 the wife was engaged through the parties’ company to conduct sales for the agency for W Company. She submitted invoices to the family company and used the money from the payments to meet mortgage payments on the NSW Highlands property.
Her Honour found that in 2009 the husband had a further period of mental illness.
In October 2009, at the husband’s request and on the wife’s stipulation that she work as a sole trader, the wife, in effect, took over the agency. W Company reassigned the work to her from the family company. Thereafter the wife worked as an agent and was paid commissions by W Company.
The wife continued to make the mortgage payments on the parties’ property.
Significant to the husband’s case before the primary judge and on appeal, was his proposal that the NSW Highlands property be subdivided and in order to do that he proposed to refinance the debt on that property. The wife was not prepared to incur further debt to fund the subdivision. In any event, at the time of the hearing before the primary judge, the approval for a subdivision had lapsed.
Despite the wife’s desire to sell the NSW Highlands property, it could not be achieved in agreement with the husband.
It is clear that the husband wished to pursue his plans for subdivision and redevelopment and the wife wished to end their financial relationship.
Throughout this time the wife was working and paying the mortgage on the NSW Highlands property and continued to do so up until the trial.
After considering the assets and debts of the parties, including determining and apportioning debts as between the parties, the primary judge found that the debts of the parties exceeded the value of the assets.
The husband contended that an asset that must be included in the asset pool of the parties was the value of his intellectual property which he said was lost because the wife refused to continue the agency and the previous business relationship [124]. Her Honour found that there was no evidence which would enable the claimed intellectual property to be valued.
Ultimately, her Honour assessed the wife’s contributions at 55 per cent and those of the husband at 45 per cent. She then, having considered the matters referred to in s 75(2) of the Act, made an adjustment in the husband’s favour of 5 per cent.
Her Honour concluded:
166.This is a matter where a percentage adjustment is artificial to the extent that there may be no surplus after sale given the extent of the parties liabilities. However, the result of the adjustment found by the court would mean that should there be any such balance, would be equally divided between the parties.
Her Honour’s orders provided for the sale of the NSW Highlands property and for the discharge of the mortgage and a joint debt, being a line of credit, secured over the property and for other unsecured debts to be paid from the proceeds. The wife’s proposed orders and her Honour’s reasons contemplate that while some unsecured creditors would be paid, others would not. Her Honour thus stayed the operation of the orders for 28 days and directed that the unsecured creditors be notified of the court’s proposed orders and, if any of those creditors wished to be heard on the proposed orders, leave would be granted.
The appeal
The husband’s Notice of Appeal raises thirteen grounds of challenge to
her Honour’s orders.
Grounds 1, 2 and 3 concern the hearing and the husband’s contention that it was not legitimately conducted.
Ground 1
Her Honour erred in failing to address the reasoning and evidence presented in my affidavits, thereby denying me procedural fairness.
Ground 2
Her Honour erred in ruling that the elements of Family Law Rules 2004 upon which I relied did not apply in her court.
Ground 3
Having ordered that a trial proceed without the pre-application and pre-trial deficits being remedied, Her Honour again denied me procedural fairness by curtailing my cross-examination and submissions with only a fraction of what was necessary completed. All the findings Her Honour then made on lack of evidence are therefore erroneous.
Central to the husband’s challenge to the orders made by the primary judge is the extent to which the Family Law Rules 2004 (“FLR”) applied or should have been applied by her Honour. The husband contends that her Honour erred by failing to apply aspects of Part 1.2 (Main Purpose of Rules) of the FLR to the parties’ proceedings. According to him, notwithstanding that the proceedings were undertaken in the Federal Circuit Court, it was incumbent upon her Honour to be satisfied that the parties complied with pre-action procedures, r 1.05 FLR and r 1.08 FLR (Responsibilities of Parties and Lawyers in Achieving the Main Purpose). He argues that pre-action procedures were not followed and thus the proceedings should not have been permitted to continue and the hearing undertaken by her Honour was “illegitimate”.
According to the husband, the wife and her legal advisors failed to comply with rr 1.08(1)(a), (g), (h), (i) and (j) of the FLR. Rule 1.08(1)(a) imposes an obligation on the parties and, as far as possible, their lawyers to ensure “… that any orders sought are reasonable in the circumstances of the case …”. Rule 1.08(1)(g) imposes an obligation to assist the just, timely and cost-effective disposal of cases. Rule 1.08(1)(h) focuses on identification of issues “genuinely in dispute” and sub-rule (1)(j) is designed to limit evidence to that which is relevant and necessary.
The husband’s submissions to the primary judge and on appeal are tidily captured in the written argument he provided to her Honour. He said:
3.It is evident that unless these responsibilities are discharged competently and with objective adequacy that the main purpose would inevitably be subverted. An outcome cannot be ensured if it is achieved only by chance. The responsibilities cited have clear epistemic requirements; to discharge them a person must seriously attempt to put themselves in a position to know whatever is relevant to the case. Evidence of evasion of these epistemic requirements demonstrates a fundamental breach of Family Law Rules, essentially invalidating any application involved.
4.It appears that the Rules’ only explicit consequence for failure to comply with fundamental pre-application and application responsibilities is a possible allocation of costs against a party. Firstly, this is not a remedy, as the main purpose is still subverted. Secondly, the Rules apparently do not envisage a situation where a failure is not the fault of a party but instead of a lawyer for a party. Failure can only truly be remedied by setting aside an application and associated “evidence” until the pre-application responsibilities are properly met, with the offending lawyer required to withdraw and refund fees charged and also provide to the parties a sum of money adequate to remedy the entire financial loss attributable to the lawyer’s delinquency. An order instead to require the other party to respond to material submitted in breach of fundamental requirements would clearly subvert the main purpose and therefore be invalid.
5.In this case there has been nothing even remotely approximating to an adequate exploration of the relevant facts and issues between the parties allowed by the applicant’s lawyers. They have instead asserted the propriety of making applications without, and in fact instead of, such exploration. This is a blatant perversion of fundamental Family Law principle.
6.In our case evasion of fundamental pre-application responsibilities by the applicant and her lawyers occurs in a context where critically uninformed legal advice has also led her to make unilateral decisions about the joint business and property of the marriage that have incurred waste already in the millions of dollars, and criminally interfered with the respondent’s health, livelihood, property, and prospects. Remediation of these matters clearly must take place before any final property orders can be framed.
7.Until an agreement is reached by the parties regarding the still joint business the respondent must be allowed an equitable share of the income of that business, say 50% of the gross commission, backpaid to 1 July 2010, less payments made on his behalf. The [applicant’s lawyers], should be required to make this amount available as a downpayment on the full cost of their delinquency as in 4 above. An additional amount, say $100,000 should also be required of them to adequately fund the legal fees involved in handling the contractual defaults and other court action generated by their errors.
(Affidavit of husband, filed 6 March 2013, annexure B)
In the final sentence of [4] the husband made it clear that in the event the primary judge made further orders and directions which required that he, for example, file a response, financial statement and affidavit evidence which addressed s 79 of the Act before rr 1.05 and 1.08 of the FLR had been complied with, the order for filing of documents would be invalid. Orders and directions of the type referred to were twice made by the primary judge and consistent with his contention that such orders would be invalid, the husband did not obey.
In his affidavit filed on 6 March 2013, the husband outlined his argument in relation to the application of the FLR and the occasions on which he raised this argument with the primary judge. What might be described as “the rules argument” was first raised with the primary judge on 3 May 2012. Notwithstanding his argument, the primary judge determined that the proceedings should progress, and made orders and directions for the production of documents and also required the parties to attend a conciliation conference.
Nonetheless, prior to the conciliation conference, the husband wrote to the wife and her solicitor and set out his argument in relation to the rules. At the start of the conciliation conference on 9 November 2012, he presented a written submission in relation to his rules argument to the Registrar. The Registrar referred the matter to the primary judge so that the husband’s argument could be considered.
On 30 November 2012, the wife’s solicitor provided a written response to the husband’s submission in relation to the rules. It was correctly pointed out that the FLR which the husband sought to apply did not apply in the Federal Circuit Court. Secondly, the solicitor provided a detailed summary of steps taken by the solicitor and the wife consistent with the Family Court’s pre-action procedures. Finally, the exemptions contained in the FLR which excuse compliance with the pre-action procedures were highlighted, with particular emphasis on those cases which comprise “a genuinely intractable dispute”. In this regard, the wife claimed that the husband had “persistently ignored our attempts to engage in the pre-trial process” and the parties’ indebtedness necessitated prompt court action. Thus, even if r 1.05 of the FLR applied or was to be applied, the court would be satisfied there had been sufficient compliance with pre-action procedures by the wife to allow her application to proceed and in the event of non-compliance, compliance excused. Notwithstanding the husband’s critique of this letter, we are persuaded that it presents a compelling case for urgent court action, that before filing the wife had taken significant steps consistent with pre-action procedures and any non-compliance should be excused.
The rules argument was considered by the primary judge on 3 December 2012. The husband’s argument did not find favour and further orders and directions were made in relation to a final hearing. Because the husband had failed to comply with previous orders that he file and serve a response, affidavit and financial statement, the wife’s application for property adjustment was listed for an undefended hearing on 7 March 2013. However, the husband filed an affidavit (which did not address s 79 issues) on 6 March 2013 and thus, the hearing was adjourned and the proceedings listed for a defended hearing on 19 July 2013.
Although the husband had not sought leave to appeal the dismissal of his argument and the orders which permitted the matter to proceed, on
19 July 2013 he applied to vacate the hearing because the FLR under discussion had not been complied with. The wife opposed the husband’s application and it was refused. Given the number of occasions on which he raised the rules point and its rejection on 3 December 2012, his decision not to comply with the further orders and directions for filing his financial evidence evinces a deliberate and persistent determination not to comply with
her Honour’s orders.
The primary judge discussed the rules issue at [79] of her reasons. She said:
79.Prior to the hearing, the court had considered the husband’s contention that the court could not deal with the matter as the wife had not followed the pre action procedures required under the Family Law Rules 2004 (Cth). This matter had been considered by the court on an occasion when the matter had been listed for directions. It was also considered by the court at the commencement of the hearing and an ex tempore judgment was given. It was evident that the husband’s focus had been his desire to have the wife agree to his proposals. For her part the wife wanted no further face to face discussion with him about these matters.
This appeal was undertaken without a transcript of the proceedings before the primary judge. Although, at [79] in her reasons for judgment, her Honour referred to her earlier consideration of the husband’s argument based on the rules, unfortunately her earlier reasons were not reduced to writing. In this case, the husband said that provided we understood his rules argument he would not be disadvantaged by the lack of transcript in the conduct of the appeal.
The Rule Making Power
Section 123 of the Act gives the judges of the Family Court the power to make rules in relation and incidental to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under the Act. However, by s 123(1A) of the Act, the reference in s 123(1) to “a court exercising jurisdiction under this Act” does not include the Federal Circuit Court. Thus, the FLR prescribe the rules for proceedings in the Family Court and other courts exercising jurisdiction under the Act but not the Federal Circuit Court.
The Federal Circuit Court was established by the Federal Circuit Court Act 1999 (Cth) (“FCCA”). Pursuant to s 43(1) of the FCCA, practice and procedure of the Federal Circuit Court is to be in accordance with the rules of court made under that act, namely the Federal Circuit Court Rules 2001 (Cth) (“FCCR”). Section 43(1) of the FCCA is subject to s 43(2) of that act which, in relation to proceedings conducted under the Family Law Act (and certain child support proceedings), permits the application of the FLR if, in relation to a matter of practice or procedure, the FCCR are insufficient. The FCCR are made by the judges of the Federal Circuit Court under rule-making powers which include powers given by ss 43 and 81 of the FCCA. Section 81 extends the rule making power to the conduct of the business of the Federal Circuit Court. Given the provisions of s 43 of the FCCA, it was probably unnecessary for the judges of the Federal Circuit Court to determine by r 1.05(1) of the FCCR that the practice and procedure of that court is principally governed by the FCCR. The point being, that in this regard the rule does the same thing as the statute.
In addition to the power contained in s 43(2) of the FCCA to apply the FLR in relation to a matter of practice and procedure where the FCCR are insufficient, by rr 1.05(2) and (3) of the FCCR, the Federal Circuit Court may also apply the FLR in relation to a matter of practice and procedure (but not the conduct of the business of the Court) if the FCCR are inappropriate.
Rules 1.05(2) and (3) of the FCCR are set out below:
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules, in whole or in part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2):
(a) the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support proceedings; and
(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
Note: These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters: see subsection 81(2) of the Act.
It follows that the FCCR is the starting point to establish the rules in relation to practice and procedure to be followed in the Federal Circuit Court. In relation to the FLR which the judges of the Federal Circuit Court have determined apply in the Federal Circuit Court, Schedule 3 of Part 1 of the FCCR is definitive. It is common ground that none of the FLR which the husband said should have been applied by the primary judge is to be found in that schedule. It follows that the rules which underpin his argument about the “illegitimacy” of the hearing below did not automatically apply.
Nonetheless, as a consequence of s 43(2) of the FCCA and r 1.05(2) FCCR, if the primary judge was satisfied that the FCCR were insufficient or inappropriate, her Honour was able to apply those FLR which the husband argued should have been applied. In mounting his argument, the husband said that the FLR upon which he relies are “indispensable in a Family Law matter in any court” (Husband’s affidavit filed 6 March 2013, [6]).By his use of the word “indispensable” it would appear that the husband argued that the FCCR are insufficient. We will also consider whether the FCCR are inappropriate.
Are the Federal Circuit Court Rules insufficient or inappropriate?
It is accepted that the FCCR do not contain provisions in relation to pre-action procedures or the responsibility of parties and lawyers in achieving the main purpose of the rules.
There was no argument advanced against the notion that the FLR under consideration are rules in relation to practice and procedure.
Section 38 of the Act and s 38 of the Federal Court of Australia Act 1976 (Cth) each constitutes provisions which, if the court’s rules in relation to practice and procedure are insufficient, enable the courts to apply the High Court Rules 2004 (Cth) mutatis mutandis. It can be seen from the cases which have considered whether or not the Family Court or Federal Court Rules 2011 (Cth) (“FCR”) were insufficient, that the rules have been found to be insufficient when they were silent on the point (Re: Trade Practices Commission v Milreis Pty Ltd & Ors: Application by Thompsen Publications (Australia) Pty Ltd (1978) 18 ALR 7; In the Marriage of Cantarella (1976) FLC 90-056; In the marriage ofSpellson (1989) FLC 92-046).
However, mere silence does not mean a court’s rules are insufficient or inappropriate. As Nygh J said in Rubie & Rubie (1991) FLC 92-253 at [78, 699], a question arises whether the omission of a rule on the point “… is an insufficiency or a defect, without which the Court cannot effectively operate, or whether it is a provision which, for reasons of policy or even sheer neglect, the Court has not seen fit to adopt.”
As a general approach, a court would be slow to conclude that its rules are insufficient or inappropriate where the court has rules of court that:
·form a coherent whole;
·include statements of purpose or objects; and
·provide for the court to give directions in cases of difficulty or doubt (e.g. r 1.09 FLR, r 1.21 FCR) (In the marriage of Lamb (No 2) (1977) FLC 90-232; In the marriage of Dixon (1977) FLC 90-318).
Rules such as r 1.09 FLR and r 1.21 FCR are supplementary to other rules and stand with them in an attempt to ensure that the courts have all the requisite power in their own rules, to conduct and conclude proceedings (Edgar v Greenwood [1910] VLR 137 at [145]; (1909) 16 ALR 6).
However, the FCCR do not contain a provision equivalent to r 1.09 FLR or its FCR counterpart. Lest it be overlooked, r 1.06 FCCR provides that the court may dispense with compliance with its rules. This rule merely supplements the dispensation power by providing that an order of the court prevails over any rule inconsistent with it. Thus, it is not itself a rule which provides a source of power if the rules or court procedures are wanting or in doubt (Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel Alley Cat (1992) 36 FCR 129 at [138]). One effect of the absence in the FCCR of a rule the equivalent of r 1.09 FLR or r 1.21 FCR is that the case for insufficiency or inappropriateness of the FCCR is more readily made. Of course that contention must be answered not only in the context of the FCCR but also the FCCA and any other relevant legislation.
The FCCA provides that the Federal Circuit Court is to:
·operate as informally as possible;
·use streamlined procedures; and
·encourage the use of a range of appropriate dispute resolution processes (s 3(2)).
Of particular relevance to the argument advanced by the husband is s 42 FCCA which requires that the Federal Circuit Court must proceed without undue formality and ensure that the proceedings are not unduly protracted. To the extent there are obligations imposed on lawyers in the conduct of family law proceedings, these are limited to those found in ss 12E and 13B of the Act. Essentially, these concern the provision of prescribed documents and assistance if it appears there is a reasonable possibility the parties may reconcile (which in this case there is not). In relation to family law proceedings one looks to the Act for dispute resolution processes and where provision is made for the court to refer parties to family dispute resolution and attendance at a conciliation conference.
In relation to the husband’s argument concerning disclosure and the provision of documents, s 45 FCCA establishes a rebuttable presumption that discovery and interrogatories will not be permitted (see NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271).
What this brief overview demonstrates is that by virtue of the FCCA and the Act the primary judge had relevant and appropriate powers sufficient to order the parties to attend, for example, a further conciliation conference or upon a family dispute resolution practitioner. In relation to discovery, notwithstanding the rebuttable presumption, if the primary judge was satisfied that interrogatories or discovery should be permitted she was able to apply the FLR (relevantly different provisions to those the husband said should be applied) (NAQR & Ors v Minister for Immigration (No 1) (supra)). In other words, those acts contain provisions whereby (in addition to those previously undertaken) processes designed to promote the exchange of information, narrow issues and promote settlement could have been ordered.
Armed with these powers and when considered in the context of ss 3 and 42 FCCA and the objects of the FCCR, we do not consider that the absence of
pre-action procedures in the FCCR renders the FCCR insufficient or inappropriate. Every case has a pre-filing history; it is not some esoteric or rarely encountered event that the husband says the FCCR fails to address. The point being that in relation to pre-action procedures, the FCCR are deliberately silent and the same conclusion must be reached in relation to the failure to apply the FLR concerning the obligations on parties and lawyers.
In our view, had her Honour acceded to the husband’s arguments and either granted a stay or vacated the final hearing, she would have impermissibly taken steps in conflict with the legislative imperative for informality and her obligation to ensure that the wife’s application for property settlement was not unduly protracted. We have no doubt that to have granted the husband’s application would have been to allow the FCCA and FCCR to be misused as instruments of delay and contrary to the interests of justice.
Thus the husband’s argument that the hearing conducted by the primary judge was not legitimate must be rejected which disposes of grounds 1 and 2.
It is also perfectly clear that the husband deliberately chose not to comply with the orders made by her Honour for the filing of affidavits and other necessary evidence in the trial. Nonetheless her Honour permitted the husband to cross examine the wife and to make submissions.
Procedural fairness is not the sole preserve of the husband in this case. He chose not to participate in the preparations for the trial, yet was permitted to cross examine and make submissions. The wife too was entitled to procedural fairness which, in our view, included the conduct of an orderly trial that addressed the relevant matters in issue between the parties and which was concluded in a reasonable time. That the husband may have wished to raise more issues than he did is not to the point. Perhaps, had he complied with the directions and filed his evidence which, we assume, would have raised the matters that he regarded as relevant, this would have given her Honour an indication as to whether ventilation of them would assist her determination. He did not. Her Honour did not fail to accord him procedural fairness.
Ground 3 is not made out.
Grounds 4 and 5 assert that her Honour erred in failing to recognise that the husband was a victim of family violence.
Ground 4
Her Honour erred in ignoring the substantial and sustained family violence (financial and psychological abuse) inflicted on me by [the wife] because of erroneous advice and errant behaviour of her lawyers.
Ground 5
Her Honour erred in allowing [the wife’s] application to progress before this family violence stopped and its effects were remediated, thereby allowing the court process itself to be used to perpetrate family violence.
It is the husband’s contention that he has been the victim of “financial abuse as a form of domestic violence” which constitutes family violence under the Act (Affidavit of husband, filed 6 March 2013, Annexure A). In relation to proceedings commenced by him in a state court seeking an apprehended domestic violence order (“ADVO”), the husband gave an example of the violence to which he had been subjected as follows:
[The magistrate] also failed to recognise that an act of psychological abuse of the sort set out in my grounds for the application actually occurred in open court right in front of him when [the wife’s] solicitor claimed that my medical history might explain my conduct of this matter. When confronted on this the next day on the phone the solicitor claimed to be following instructions in this particular. His Honour also made a clearly prejudiced remark in attributing to me an intention to inflict hurt on my wife when in fact I am merely seeking the protection the law is meant to provide. There is nothing obnoxious in the orders sought. Her distress with the ADVO process the fault of ill-informed solicitors who advised her not to act prudently.
(Affidavit of husband, filed 6 March 2013, Annexure A)
Further, in an affidavit filed in July 2013 at [8] the husband refers to family violence, particularly the definition of violence contained in s 4AB(2)(g) of the Act which relates to the denial of financial autonomy. He continued:
…I ask the court to recognise that I have been subjected to family violence by the applicant for some years and that this needs to cease before this matter can properly progress. I further submit that the applicant’s making of property applications without attending to the pre-application requirements are themselves instances of family violence and that the final orders sought would involve the court itself in the perpetration of family violence if implemented.
Attached to this affidavit are emails sent by the husband to the wife. In an email of 24 December 2011 (annexure A3), the husband noted that he had attempted to file an application for urgent spousal maintenance but had been advised that the application was unlikely to be heard until February 2012. He comments that the wife’s solicitor’s response to his enquiries have been inadequate and observed that matters that have not been “properly explored between the parties” should not be before the court. The husband says:
Hence yesterday I was put in the position of needing to seek an urgent ADVO against you. A … Court officer advised that in the absence of scheduled court sessions that only the police could obtain such an order at this time. I have initiated the matter with the [NSW] police. They thought it unnecessary as they thought a crisis payment could be obtained from Centrelink. [An officer] at Centrelink confirmed that this was not the case as there was no benefit for which I was eligible (as had been determined a year ago but you refuse to believe). The police read me sections of their operating instructions which they believe showed they did not need to act but seemed to me to clearly require them to. They refused me a written copy of their material. I will be exploring the matter urgently….
Again in an email of 10 January 2012 (annexure A5), the husband indicates to the wife that he will institute proceedings for an ADVO against her. In another email, this time to the wife’s solicitor, sent on 1 April 2012 (annexure D3), the husband urges the solicitor to have the wife “…consent to the ADVO orders for which I have applied, and implement them with alacrity, so I can attempt to retrieve the DA opportunity”.
The husband filed another affidavit in the proceedings on 6 March 2013. The content of the affidavit is in effect a submission on why the court process cannot proceed until pre-trial procedures were completed. At [2] on page 2 of the affidavit he asserts that, notwithstanding having emailed the contents of the affidavit to the court, orders were made by the court:
…that ignored the issues raised other than noting that the court could consider an application for urgent spousal maintenance on the next occasion, an option apparently inapplicable in our circumstances because a difference in earning capacity is not at the heart of the issue, but a misappropriation of still joint income by the applicant, combining with other effects of negligent and reckless unilateral decisions that sabotaged my generation of additional business income. …
The submission further asserts that the husband will take the issue to the Court of Criminal Appeal.
Annexed to the affidavit are the grounds on which the husband asserts he is entitled to an order for his personal protection and submissions on the point. These documents appear to have been annexed to a letter to the National Enquiry Centre for the Family Law Courts in which the husband sets out his claim of being subjected to family violence.
The emails, submissions and other documents to which the husband referred in these affidavits all devolve to his assertion that the wife has wrongly, perhaps recklessly, failed to negotiate with him, support him, or continue in financial association with him and to continue to discuss their financial circumstances.
Her Honour considered the husband’s contention that he was the subject of financial abuse at the wife’s hands and said at [61]:
61. The husband made a complaint to the police on 2 June 2011 claiming financial abuse by the wife. On 1 February 2012 the husband filed an application for an Apprehended Violence Order against the wife alleging financial abuse in that she had denied him “appropriate funding from our joint business” and prevented him “from productively engaging in that business” and that she denied him “dialogue in regard to the conduct of the business.” The wife’s evidence was that the application, and the husband’s subsequent appeal were dismissed. (footnote omitted)
As will later become apparent, the wife’s position taken in the proceedings was, from her perspective, reasonable. She was not obliged to continue to discuss an ongoing financial relationship with the husband but was entitled to ask the court for a determination. This issue, as others raised in this appeal, is filtered through the prism of the husband’s implacable view that his proposals for financial recovery were both reasonable, workable and, more particularly that the hearing process was illegitimate.
We have already found that his view of the operation of the Family Law Rules in a Federal Circuit Court case is flawed. Whatever his financial circumstances, the wife’s disinclination to continue to throw money at a dire financial situation could not amount to financial abuse.
However, there is a further reason why this ground of appeal must fail.
As was earlier mentioned, the wife’s application for property and other orders was filed on 7 February 2012. As a consequence, the definition of “family violence” found in s 4 of the Act and which applies in this case, is; “family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.
By the Family Law Legislation Amendment (Family Violence & Other Measures) Act 2011 (Cth) the definition of “family violence” in the Act changed and is now contained in s 4AB. Section 4AB is set out below:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family. (original emphasis)
As we understood the husband’s submission, he argues that the wife unreasonably denied him financial autonomy and unreasonably withheld financial support from him. In any event, the effect of the transitional provisions is that, because the wife’s application was filed prior to the date of commencement (7 June 2012) the earlier definition and not the definition contained in s 4AB applies.
However, as we have hopefully made clear, even had the current definition applied to the husband’s circumstance, we would not find the asserted family violence made out.
Ground 6
Her Honour treated me with disrespect and manifest prejudice, frequently not allowing me to be heard, and appeared to misconstrue my frustration with this treatment as pathological.
We will set the husband’s submissions on this ground out in full.
Her Honour consistently denied me a fair hearing and appeared to be acting out of a prejudice that I was somehow mentally ill. On one early occasion her opening words to me were something like the following, spoken very slowly and deliberately:
Now, [the husband], I believe there are mental health issues involved here…..”.
Remarks were made that she might consider having me removed from the court. Typically, Her Honour would not allow a dialogue with her of any intensity of allow clarification of a matter she had clearly misconstrued. Her Honour frequently cut me off in mid-sentence and did not allow completion. Even at the start of the hearing on 19 July Her Honour adjourned proceedings with the remark that she would have to consider whether security would be required on resumption. Her Honour appeared to have fallen for the innuendo in the material presented by the other side. [The wife] admitted under cross-examination that she was not in a position to distinguish ongoing psychotic illness from a transient mental injury. Further, that breakdown that was eventually followed on recovery by a period of high energy and performance, does not entail psychosis, nor any problem with judgment, nor indeed the need for medication. None of this induced caution in the matter in the Judgment.
I cannot imagine the same reasoning as I presented, but delivered by senior counsel, given such scant attention. I am not asserting that it is worthy of senior counsel, but the point is that a listener needs first to attend to the matter in order to discern the quality of the offering. It is unjust to discriminate against someone on the grounds of mental illness. It is doubly unjust to discriminate against someone on the grounds of a mental illness they do not have.
Apart from the difficulty of getting a fair hearing, the way mental health prejudice plays in this case can be made apparent by imaginatively replacing the mental health dysfunction with dysfunction brought about as the result of a motor vehicle accident where the injured party was blameless in the incident, or the culpable driver was [the CEO of W Company], or even [the wife].
(Husband’s Summary of Argument paragraph 6 received 18 March 2013)
We will first deal with the husband’s assertion that her Honour’s comments to him, manner of speaking and her treatment of him in court amounted to bias.
The husband did not include any transcript in the appeal books but rather made an application that the court obtain the transcript and provide it to him. We indicated that if, during the hearing of the appeal, it became apparent that consideration of the transcript or part of it would assist the development of the argument or assist us in understanding the matter being argued, we would at that stage consider whether to order an extract of the transcript. Other than this generalised assertion, the husband provided insufficient detail which might have suggested that we should obtain the transcript.
Her Honour was obliged as we have already said, to conduct the proceedings in as efficient and fair way as possible. Sometimes that requires a court to prevent parties from repeating their submissions, remaking points already made or cavilling with rulings.
During the appeal, the husband agreed that he did not at the time address what he said was her Honour’s “disrespect” of him with her.
In Sheldon & Weir (No.2) [2010] FamCA 449 at [39] Ryan J explained that Vakauta v Kelly (1989) 167 CLR 568 put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the court but who failed to object is taken to have waived his or her right to do so. In Vakauta v Kelly at [572] Brennan, Deane and Gaudron JJ explained the rationale for the waiver principle. Their Honours said:
… By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
In our view, the husband cannot now raise the issue of any bias.
Turning then to his suggestion that her Honour had in some way been misled about his mental state. First, we note that, despite being ordered to do so, the husband filed no evidence in the proceedings. His mental health had been raised in the wife’s affidavits, and indeed, her Honour’s reasons indicate an acceptance by the husband that he had suffered from periods of mental illness (see [19], [22]-[23] and [25]-[26]). We further point out that at [26] her Honour expressly notes that while a letter to W Company written by the parties referred to the husband having a “bipolar disorder”, she records that the husband “does not now hold the view that his judgment is affected as a result of bipolar disorder.”
However, more importantly, the husband failed to point out how any asserted misunderstanding of his mental state had affected her Honour’s judgment or decision.
Finally, the husband appears to complain that her Honour did not give his argument on the legitimacy of the proceedings (we infer being the matter to which this submission relates) sufficient attention. Certainly, during the appeal hearing he submitted that her Honour, in failing to accept his position as submitted, had either not listened to the argument or did not understand it.
Whether her Honour understood his argument or not, there is nothing to which the husband pointed that indicates that her rejection of his argument was motivated by a view that he suffered from or was suffering from some mental illness.
The husband has not made out any error in this ground of appeal.
Ground 7
Her Honour erred in not recognising the substantial harm done to the parties’ financial position by negligent and reckless action by [the wife], taken on erroneous and ill-informed advice by her lawyers.
This ground rests on a number of contentions but goes to the husband’s claim that the wife’s legal representatives stood in the way of a proper resolution of the financial difficulties of the parties and, as a result, significant financial losses have been incurred.
First, the husband’s view was that if he and the wife had had a proper opportunity to discuss their financial position and she could properly understand his proposals for a financial recovery, she would have agreed with him, obviating the need for a court hearing and promoting a situation that would see their finances improved.
To a degree, his position may be seen in his affidavit of 19 July 2013 where the husband says at [6]:
Because of glaring deficiencies in discovery, dialogue and collaboration the applicant and her lawyer have applied for property orders that are ridiculously unjust to both parties, based on some critically false and misleading testimony that ignores the major factors affecting the radical change in the parties’ assets, liabilities, contributions and need since the date of separation. These matters cannot be remedied efficiently at trial because of the scale of the task and its avoidability. With an unconflicted lawyer at the applicant’s side instead of Ms P or Mr C, a lawyer who also actually comprehends the key aspects of the situation, the parties might broadly agree and may well settle. …
He argued on appeal that the wife’s lawyers had, by their advice to the wife and, inferentially, in her acting on that advice, caused loss to the parties’ finances.
The husband’s submissions list actions that had caused the loss, including “insisting on a panic sale of our … [NSW Highlands] property unsubdivided, even though we had council development approval to subdivide, despite there being no guarantee of a timely sale at a fair price and the property being key as security for immediate refinancing…”
(Husband’s Summary of Argument paragraph 7. (iii), received 18 March 2013)
Her Honour dealt with the subdivision of NSW Highlands in her reasons from [53]. She notes that in mid-2010 the husband wished to refinance and subdivide the NSW Highlands property. Her Honour notes the wife’s evidence that:
53. …She said that their “agreement was in tatters”. She said that the debts could not be met from her income and that she ceased meeting them. …
54. In her affidavit, the wife sets out attempts which were made to sell the [NSW Highlands] property. However, the parties could not agree about an offer that was made in August/September 2010. The wife said that at about this time [a real estate agent] spoke to her and to the husband, and said that he thought he had an interested buyer at $1,050,000.00. The husband, she said, refused to consider the price and said that he had not authorised a reduction on the asking price of $1,299,000.00. …
55. The wife said that on 19 August 2010 she and the husband received an estimate of the cost to subdivide the property. Annexed to her affidavit was an estimate of subdivision costs in the sum of $160,217…The wife’s evidence was that she did not wish to incur the debt associated with a subdivision which would have to be paid whether or not the property was sold. …
Her Honour considered the husband’s contention. She said:
151.The husband contended that the wife abandoned the business and that it was “sabotaged” by her withdrawal as a key person with a result of losses to the business. The evidence, however, indicates that there was a transition period where the wife provided some continued assistance to the business and that her decision to enter as a sole trader and then move from the … premises was motivated very much by the husband’s insistence on his proposals for further borrowings and developments.
152. The wife’s explanation for not accepting the husband’s proposal in the meeting on 26 July 2010 was that she had had previous experience of plans being initiated, of the husband’s health not holding up and of her being left holding things together. She said that she did not wish to be in this position again and that she did not consider that the husband’s ideas in a financial sense could be progressed responsibly. The wife said that she could not continue to work in a partnership with the husband. The husband dismissed these as emotional concerns by the wife, whom he said, did not look at the detail of what he proposed.
153. However, on the evidence before the court, it cannot be said that the wife acted unreasonably in any way in responding to the husband’s proposals as she did. It is difficult to find other than she has acted reasonably in very difficult circumstances including being required to defend the husband’s application for an Apprehended Violence Order against her. The wife said that at times she felt intimidated by the husband. This may well be the case. The husband acknowledged that he had become argumentative and “quite annoyed” with the wife at times. The husband’s case seems to be that actions, or omissions by the wife in the post separation period, have caused loss and a diminution in the parties’ assets and should be taking (sic) into account on the basis of the principles in Kowaliw referred to previously. The court does not find that any actions by the wife in the post separation period could be described as behaviour that was reckless, negligent or wanton in relation to the matrimonial assets.
The husband submitted that her Honour’s treatment of this issue “distorts such paltry facts as she considers, and the reasoning is specious.” We do not propose to engage with shallow disparagement dressed as legal submission, but observe that had the husband put evidence before the primary judge as he was ordered and indeed obliged to do, he may have been able to put his case to her more cogently. He did not. Her Honour’s findings were open to her. She has not made any error.
We further observe that potently, her Honour’s consideration of this issue concludes:
154. The wife continued to work and earn an income which was applied to the parties’ liabilities.
Ground 8
Her Honour erred in not recognising the liability those lawyers then had to the parties and the need there then for the court to hold them to account.
The ground is fundamentally flawed. First, the solicitors were not party to the proceedings and her Honour had no ability to make any order against them had she been so minded. Secondly, the submission assumes a series of underlying facts, all of which the husband contends, no doubt, to be self-evident, but which could not be proved in the case before her Honour.
Her Honour further noted:
71. Shortly before submissions were to be made, the husband provided a document containing the orders which he sought. The first order he sought was an order that Ms P and Mr C pay $10,000,000.00 to him for damage caused to his reputation and for pain and suffering and that they jointly pay the sum of $1,250,000.00 million to each of the parties for damage to their joint assets, prospects and increases in their joint liabilities. …
(footnote omitted)
Her Honour observed that in the proceedings as then constituted the court did not have jurisdiction to determine the issue of damages against the wife’s solicitors. She was undoubtedly correct.
Ground 9
Her Honour erred in not recognising this liability as an asset of the parties, together with [W Company’s] liability for contractual breaches and unconscionable conduct, the liability of those involved in my demonstrably erroneous and damaging scheduling under the Mental Health Act with arbitrary detention and pharmacological and physical assault, and the value of our business, include the value of my … research.
As with ground 8, the error asserted is that her Honour failed to construct the property pool to take into account the potential damages payable by the wife’s solicitors on the husband’s successful suit against them. In ground 9, the husband asserts that the value of his intellectual property, damages achieved against W Company and the damages payable on success in a suit against, it seems, the health authorities, were not taken into account in determining the asset pool of the parties.
Leaving to one side the time, difficulty and expense of such litigation, the court is required to bring finality to the financial relationship between the parties (see s 81) and further, the argument neglects the position of the wife who wished the proceedings to be finalised. To adjourn or not list the matter until such time as the husband had exhausted his remedies in other courts would have been oppressive to the rights of the wife and a denial of natural justice.
As we observed to the husband, his rights to bring the asserted claims remain unaffected by her Honour’s orders.
The husband has not demonstrated any error. Grounds 8 and 9 are not made out.
Ground 10
Her Honour erred in misconstruing my verbal agreement with [the wife] of October 2009 regarding our sales agencies.
Her Honour set out the detail of the parties’ agreement at [48] and the following paragraphs.
In support of the ground, the husband refers the court to an affidavit sworn by him in November 2013 and filed in support of the application for a stay of
her Honour’s orders. In that affidavit he sets out what he says was the agreement reached with the wife in October 2009.
This evidence was not before her Honour in the trial. It could have been had the husband chosen to comply with orders made that he file evidence.
Her Honour’s findings about that agreement were based on the evidence before her. The husband cannot now assert that some other construction was available on evidence withheld by him.
He has made no application to adduce further evidence on the appeal and we do not propose to accept the contents of the affidavit nor will we consider it in determining the issue.
This ground is not made out.
Ground 11
Her Honour erred in finding that I had acted recklessly when she had blocked the presentation of adequate evidence and the exploration of relevant principle.
The husband submitted that:
…Determination of recklessness or negligence needs to be adequately factually informed. Her Honour erred in making the determination in the absence of the relevant information. The transcript will also show that she blocked consideration of the principles mentioned in my March and July affidavits…
(Husband’s Summary of Argument paragraph 11 received 18 March 2013)
We repeat as above. Had the husband wanted to put “relevant information” before the primary judge, it was in his hands to do so. He did not. He can hardly complain that the decision was not fully informed, a proposition which, it should be said, we do not accept.
The “principles” to which the husband devoted such affidavits as he was prepared to submit to her Honour have been considered by us and rejected.
There is no substance in this ground and no error demonstrated.
Ground 12
Her Honour erred in finding that [the wife] did not act negligently or recklessly simply because she chose to do it.
The ground and the associated submissions are somewhat opaque. We will take this to be a challenge to her Honour’s findings of fact on this issue.
In Edwards v Noble (1971) 125 CLR 296 at [305] Barwick CJ said:
…The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding…
Her Honour’s findings of fact in relation to the wife’s conduct were open to her on the evidence before her. No error has been demonstrated. This ground has not been established.
Ground 13
Her Honour erred in making orders that could only damage the position of the parties and of the unsecured creditors, and that are comprehensively unjust.
Turning to the question of the parties’ creditors, as our extracts from
her Honour’s reasons establish, she was astute to the position of the parties’ creditors, particularly those unsecured and her Honour considered this with some care when determining what orders to make. Indeed she made orders and stayed the operation of them until all of the unsecured creditors had been notified of the proposed orders. Her Honour indicated that she would give leave for any whose rights might be adversely affected to be heard. As we understand it, none did.
As to whether the orders are unjust, her Honour’s reasons demonstrate that at the time of hearing the parties’ debts exceeded the value of their assets by some $50,000. The wife had been and was working and using her income to pay down the parties’ debts. The husband argued, and we accept, that the income of the wife derived from the agency could not be solely attributed to her efforts because she would be receiving the benefit of customers established by the husband’s efforts earlier on. However, whatever money was being used to pay down the debts, it was, it seems from her Honour’s reasons, that the parties’ financial position was dire. Although the husband contends that had he had time to pursue actions for damages, breach of contract and sought financial restructure, their position may not have been as dire, that is entirely speculative and not a matter that her Honour could have taken into account.
The trial judge decided the matter on the evidence before her and in so doing delivered comprehensive reasons which addressed the statutory requirements. The orders were not comprehensively unjust and do not warrant appellate interference.
No error has been demonstrated. This ground will fail.
The husband’s application in an appeal
On about 18 March 2014, the husband filed an application in an appeal seeking two orders; that his summaries of argument be accepted for filing notwithstanding that they were not filed within the specified time and that the court obtain and provide as part of the appeal books the transcript of the proceedings before the primary judge.
We acceded to the late filing of the summaries of argument by the husband.
As we have indicated, the question of whether or not transcript was required was reserved to the hearing of the appeal. Nothing was put to us by the husband in submissions that required the production of the transcript of part of it.
The question of the provision of transcript by the court has been comprehensively considered in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 where the Full Court said, referring to the previously decided cases [87 170]:
14. Thus in a line of authority it has emerged that the absolute view once taken about the provision of a transcript by the Court has been replaced by a more flexible approach (Forbes & Bream (supra), Friscioni & Friscioni (Application for transcript) [2009] FamCAFC 48 and Trahn & Long (No. 2) [2008] FamCAFC 194). This approach would enable the Court to pay for a transcript where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.
15.However, a complete transcript may not be necessary for the prosecution of an appeal. Deciding this requires an examination of other factors relevant to the interests of justice in the particular case and more broadly. We mean by this that where resources are finite, the provision of transcript for a 14 day hearing where the merits of the appeal were doubtful, for example, might prevent the provision of transcript in other more deserving cases.
16.Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(a) Whether the case is a financial or parenting case.
(b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e) The prima facie merits of the appeal.
(f) Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.
17.In including in this list the merits of the appeal, we observe that such consideration is not uncommon in procedural or interlocutory issues relating to appeals and arises in circumstances, for example, where a party seeks security for costs, an extension of time or a substantial period of adjournment, to name a few. We also observe that while, for example, a refusal to extend time in which to appeal will mean that the applicant will be precluded from pursuing an appeal, a refusal to provide transcript will not have the same effect.
18.In addition, the Full Court hearing the substantive appeal is itself not precluded from ordering the provision of transcript should different circumstances or facts emerge from those presently before us.
In this case, the husband said that he was unable to afford the cost of providing transcript and we accept that the financial impost would be significant.
As we indicated in the appeal hearing, the court simply is not funded in a way which enables it to meet the costs of transcript. Considering the appeal and that the nature of the grounds sought to be argued did not require reference to the transcript, the apparent merits were such that the cost of obtaining the transcript was not warranted.
However, we invited the husband to indicate where he thought passages from the transcript might be useful. He suggested that in support of ground 6, in which he asserts bias, access to the transcript would assist us in understanding his argument. We are not satisfied that it was necessary.
Thus the application is refused.
Stay appeal
As we have indicated, in November 2013, the husband sought a stay of
her Honour’s orders. That application was declined on 24 December 2013 and on 6 February 2014, the husband appealed against the order.
The principal appeal having been heard and determined, there is no utility in considering the stay appeal, which fell away when the principal appeal was heard.
We will order that appeal to be dismissed.
Costs
As usual, we sought submissions from both parties as to costs on the appeal. We did this to save the parties the time, trouble and expense of having to make submissions after delivery of the judgment on the appeal.
The wife sought an order for costs in her favour if the appeal failed. The husband argued that his financial circumstances were such that he could not pay any ordered costs and that the whole proceedings were unnecessary and could have been resolved between the parties. The second part of this submission is an extension of the husband's general submission that overall the judge should not have heard the case until there was endless mediation between the parties and possible litigation against the wife's lawyers, W Company and others. The judge took the proper course considering pressing creditors and the wife's proper desire to end the litigation.
The husband’s appeal has been wholly unsuccessful and was demonstrably without merit. That he cannot afford to pay a costs order, does not warrant that no order be made.
We will order the husband to pay the wife’s costs of and incidental to the appeals.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Ryan JJ) delivered on 2 May 2014.
Associate:
Date: 2 May 2014
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