Thompson & Berg (No 3)
[2016] FamCAFC 195
•30 September 2016
FAMILY COURT OF AUSTRALIA
| THOMPSON & BERG (NO. 3) | [2016] FamCAFC 195 |
| FAMILY LAW – APPEAL – Where the appellant did not comply with the orders made to prepare the appeal for hearing – Where the appellant failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant made an oral application that he be permitted to make oral submissions as an alternative – Where several grounds of appeal lack merit on their face – Where the only utility of any order made would be in relation to costs – Where the wife is entitled to a conclusion of the issues with the husband – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Family Law Rules 2004 (Cth) rr 1.08, 22.22, 22.45 |
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Thompson & Berg [2016] FamCAFC 20
| APPELLANT: | Mr Thompson |
| RESPONDENT: | Ms Berg |
| FILE NUMBER: | SYC | 3691 | of | 2011 |
| FIRST APPEAL NUMBER: | EA | 29 | of | 2016 |
| SECOND APPEAL NUMBER: | EA | 36 | of | 2016 |
| DATE DELIVERED: | 30 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Cronin JJ |
| HEARING DATE: | 30 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 4 March 2016 22 March 2016 |
| LOWER COURT MNC: | [2016] FCCA 424 [2016] FCCA 604 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appellant’s oral application that he be permitted to make oral submissions instead of filing a summary of argument on the appeals is dismissed.
The Applications in an Appeal filed on 23 June 2016 are dismissed.
On the Court’s own motion, pursuant to r 22.45 of the Family Law Rules 2004 (Cth), Appeal EA 29 of 2016 against the orders of Judge Kemp made on
4 March 2016 is dismissed, and Appeal EA 36 of 2016 against the orders of Judge Kemp made on 18 March 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Berg (No. 3) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 29 of 2016; EA 36 of 2016
File Number: SYC 3691 of 2011
| Mr Thompson |
Appellant
and
| Ms Berg |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Cronin J
By Application in an Appeal, the appellant husband seeks an order that the appeal books be filed without the inclusion of the transcript. He further made an oral application that he be:
1. Excused from filing a summary of argument; and
2. Permitted to make detailed oral submissions in relation to the grounds of the appeals.
Having been put on notice that the Full Court may of its own motion dismiss the appeals for non-compliance (in relation to not filing the summary of argument), the appellant made oral submissions on both that point and his application in relation to the summary of argument.
This appeal has its genesis in a finding by Judge Kemp in the Federal Circuit Court in March 2016 that the appellant husband had failed to comply with orders associated with the sale of a property that had been the parties’ main joint asset before their relationship came to a permanent end. Those orders were made as long ago as September 2013.
For the purposes of these reasons, I shall refer to the parties as “husband” and “wife” even though they have long been apart; indeed, as the husband reminded the Court, their marriage ended eight years ago. Both the husband and the wife appeared without legal representation.
Background
I turn first to the background giving rise to these appeals.
On 4 March 2016, after a two day hearing in February 2016 on contravention applications brought against the husband by the wife for failing to comply with orders that most likely would have seen the expeditious disposal of their real property by sale, the husband was found to have been in breach of the orders.
On 9 March 2016, the husband lodged a Notice of Appeal against the orders. He asserted 13 grounds of appeal. He then applied to the trial judge for a stay of the orders made on 4 March 2016 but that was refused. He has also sought to appeal against the orders refusing the stay.
Some significance also lies in the husband’s interlocutory application heard by Ryan J on 24 March 2016 in which the husband sought expedition of these appeals. After setting out the orders that were made by Judge Kemp that the husband vacate the property and be restrained thereafter from returning or being within 200 metres of it, at [15] Ryan J said:
It follows that unless the hearing of the husband’s appeals, or at least the appeal in relation to the refusal to give an entire stay is expedited to a date prior to 31 March 2016, to some extent, the husband’s appeal against the orders of 4 March 2016 and 18 March 2016 (in particular, those which require him to vacate by 31 March 2016), will be rendered nugatory. Such an outcome would ordinarily weigh heavily in favour of an order for expedition but not in this case. That is because since the orders were made in 2013 the husband has been obligated to join in the sale of the [NSW Highlands] property. He has tested the validity of that outcome on appeal and has been unsuccessful. In my view, even if he was to have a measure of success in this appeal, it would have no effect on his obligations imposed under the 2013 orders or those enforcement orders also challenged unsuccessfully.
Her Honour noted that the wife had been endeavouring to enforce and conclude the orders for the property sale since they had been made in 2013. In considering the husband’s various grounds of appeal, as her Honour was required to do because the husband was seeking an indulgence that would have placed his case ahead of many others, her Honour at [16] agreed with the analysis contained in Judge Kemp’s reasons for judgment of 22 March 2016 where at [29] his Honour had said:
…the Court is of the view that even on a “preliminary assessment” of the grounds of appeal sought by the husband, the husband is highly unlikely to be successful and his prospects are extraordinarily poor.
What then followed was that on 19 May 2016 Registrar Halbert made procedural orders including for the filing of a summary of argument by the husband by 22 June 2016. No review of that decision was lodged by the husband.
The procedural order for the filing of the summary of argument was made under r 22.22 of the Family Law Rules 2004 (Cth) (“the Rules”). It is a mandatory requirement under the Rules for a summary of argument to be filed. The husband failed to comply.
Significant to the immediate determination of this appeal is r 22.45 of the Rules which provides that if there has been default in compliance, the Court may, inter alia, and if necessary of its own initiative, dismiss the appeal.
On 28 July 2016, by email, the Registrar warned the husband of the potential of the dismissal of his appeal for non-compliance with the 19 May 2016 order. That email was directed to an address consistent with that disclosed by the husband in his Notice of Address for Service filed only on 23 June 2016. In any event, it was not disputed today by the husband that he had received that email; indeed, he made reference to the possibility of such a dismissal. Relevantly, in the email, after addressing other procedural matters, the Registrar said:
I further note that you were ordered to file your summary of argument and list of authorities on or before 22 June 2016 (see order 11 made by Registrar Halbert on 19 May 2016).
Given your failure to comply with the procedural directions of Registrar Halbert, you are hereby on notice pursuant to Rule 22.45 of the Family Law Rules that on 30 September 2016 the Full Court will consider whether your Notice of Appeal should be dismissed.
The Registrar went on to give the husband the relevant internet link to the Rules and advised him that it was in his interest to ensure that his summary of argument and list of authorities were lodged with the registry forthwith.
When this Court today raised the issue of why the appeal should not be dealt with under r 22.45 and be dismissed, the husband sought to be excused from compliance with the order. He wanted to proceed on the basis of making “detailed” oral submissions in respect of his grounds of appeal.
His reasons for his default were that he was obliged to vacate the property at the end of March 2016 and he had nowhere to live and had no one to assist him to move. He moved out on 31 March 2016. He said that he had to work and in that regard, he had been engaged in short-term itinerant work, which had involved more than he had anticipated, but he was also taking whatever work as a sports coach that he could. He pointed to the fact that in vacating the property, his goods had been left behind and were being held. It is again worth noting that the alteration of property orders which included the division of chattels was made three years ago.
In addition to those problems, the husband said that he had, for some time, been without internet connection and had gone to the library. He had no vehicle and his computer then failed. One of the dilemmas with all of those matters is that his obligation to file the summary of argument was not required until
22 June 2016 and, as I have already observed, even thereafter in late July, the Registrar suggested that he ameliorate the problem by filing what was required. None of that was done.
When asked if he was prepared to run the appeal today, he said that he was but writing out the summary of argument would take him another fortnight because of the “precision” with which he writes. That said, he did not seek an adjournment.
In the context of his stated difficulty in preparing a written summary, he maintained that every time he read any of the judgments in the case, he suffered “moral injury”. He maintained that a great disservice had been done to both parties because of those judgments and orders because apart from the courts ignoring proper principles, the outcomes and actions had been, in his mind, inconsistent with Family Law Act 1975 (Cth) (“the Act”). Thus, in his view, the matter should proceed on his oral submissions. He observed that in the past, the wife had been able to answer his appeals but it must be said that the wife has usually been represented by lawyers.
To the extent that the wife might be disadvantaged by his oral presentation, he suggested that he would be content to give up any grounds that she could not meet.
The wife’s position was that she felt disadvantaged. She advised that the house had been sold and settled on 1 September 2016 subject to some apparent negotiations over the quantum of debts which were provided for in the final property orders and the bank had been moving on the mortgage loans.
As I have said, these final property orders were made in September 2013 by Judge Walker. They were made in circumstances where her Honour recognised that there was little, if any, equity in the real property of the parties. Since then, there have been about six appeals and an unsuccessful special leave application to the High Court of Australia which, from reading the judgment of the Full Court of this Court cited as Thompson & Berg [2016] FamCAFC 20, the husband refused to accept as final. Today, the husband stated that he intends to bring an application under s 79A of the Act but a cursory read of the previous judgment indicates that that is not a new concept. It has not happened so far.
The husband’s application to avoid the 2013 property orders has also seen the Full Court express the view that the husband’s appeals were demonstrably without merit.
There are therefore two sets of grounds of appeal before the Court. The appeal against the substantive contraventions, appeal EA 29 of 2016 (“the substantive appeal”), contains thirteen grounds and the appeal EA 36 of 2016 (“the stay appeal”) against the refusal to grant the stay order, contains five grounds. It is helpful to set out the grounds as pleaded:
Appeal EA 29 of 2016 (the substantive appeal)
1.His Honour erred in finding contraventions when there were no agency agreements in place at the time of the alleged contraventions.
2.His Honour erred in finding that either Order 1 or Order 4(d) of the Orders made on 26 September 2013 was contravened by the denial of access to a property maintenance contractor to do particular work at the parties’ cost that was not agreed between the parties.
3.His Honour erred in assuming that the putative agency agreements on which the agent relied conformed with the orders.
4.His Honour erred in his adverse findings on the husband’s interaction with police on 27 and 28 October 2015.
5.His Honour erred in finding that the husband acted without reasonable excuse in refusing access.
6.His Honour erred by not disclosing in the hearing his rationale for finding a prima facie case for contravention so the matter could be addressed by the respondent husband.
7.His Honour erred in finding that the respondent husband had not complied with his own undertakings to the court of 16 December 2015.
8.His Honour erred in overlooking the barriers to implementation of Orders created by the applicant wife and her solicitor.
9.His Honour erred in finding that there was a proper basis for granting sole vacant possession of the [NSW Highlands] property to the wife in 21 days, with forfeiture of property that was not removed, and with an exclusion zone thereafter of two kilometres.
10.His Honour erred in disregarding Order 4(b) of the final orders that pending completion of the sale of the property the husband shall have the sole right to occupy [part of the NSW Highlands property].
11.His Honour erred in not recognising that the mortgage default was contrived by the wife and her solicitor, that it was avoidable and could be corrected, and that it cannot property [sic] be used to justify imprudent marketing and auction scheduling of the [NSW Highlands] property beyond that entailed by the Orders.
12.His Honour erred in not recognising that the contravention applications and the other application under consideration were not reasonable in the circumstances of the case and were in breach of the fundamental responsibilities under the Act on parties and lawyers for parties recognised in Family Law Rules 2004 1.08.
13.His Honour erred in not recognising that the making of the applications under consideration, together with the failure to withdraw them, was an act of family violence against the respondent husband within the meaning of the Act.
Appeal EA 36 of 2016 (the stay appeal)
1.His Honour erred in not recognising that the appeal may succeed because the grounds identify the absence of arguably necessary conditions for the contraventions and breaches of undertakings he found.
2.His Honour erred in his appraisal of the appeal prospects by relying on specific elements of his Judgment that were under appeal and by not adequately considering submissions made regarding the grounds of appeal.
3.His Honour erred in not properly considering whether the appellant’s position could be restored if the appeal were successful and the orders had not been stayed, which is meant to be a substantial consideration.
4.His Honour erred in finding there there [sic] would be some benefit to the wife that was not considerably outweighed by the competing damage to the husband if the stay were refused.
5.His Honour erred in making a groundless and disparaging assessment of the husband’s bona fides in the application.
Grounds 4 and 5 of the stay appeal contain no particulars and it is significant in this case that there is no transcript to assist. Even so, it is the wife who has to respond to these assertions or grounds, leaving aside the Court understanding what they address.
It is also readily apparent that the orders sought numbered 3 and 4 in the substantive appeal have no merit on their face and could not be made because the person there named is not a party to the appeal.
Another example of the problem is appeal ground 13 of the substantive appeal relating to family violence. A similar, if not the same argument, was put by the husband in his appeal heard by this Court in February 2016 (Thompson & Berg [2016] FamCAFC 20 at [49]-[53]). That argument was swiftly rejected by Kent J with whom May and Ainslie-Wallace JJ agreed when it was said that the wife was entitled to pursue her legal rights and the proposition that the enforcement orders in and of themselves constituted “family violence” needed only to be stated for its lack of merit to be apparent.
Judge Kemp placed the husband on a bond and whilst that is extant, its clear purpose was to ensure compliance with the orders to enable to sale of the property to occur. The nub or substance of the asserted error has now fallen away. No injustice will flow if the bond remains in place because there is no longer any agent involved in the property who could be impeded and more importantly, the husband is no longer (and cannot be in the future) involved with this property. Thus, the only utility of any order would be in relation to costs.
In respect of the utility of the appeal about the refusal to grant the stay, the husband returned to his mantra that the orders were wrong and that the lawyer for the wife in particular, had not fulfilled her responsibilities under the Act nor complied with r 1.08 of the Rules. I have no doubt that these issues are, as the husband says, of great importance to him and he referred again to the moral injury he suffered. As to why his appeals should not be dismissed, the husband contended that this Court had misapplied the law in respect of stays and the Court was obliged to look at the bigger picture. He said it was in the community’s interest that the aim of the Act be upheld and that justice was done to the parties. In the eight years since their separation, he thought the Court had done great harm to them.
Of course, it must also be observed that justice is a two way street and the wife is entitled to not just the fruits of her judgment but also a conclusion of all issues outstanding with the husband.
My concern is that this is not just a procedural matter. The wife is at a disadvantage in respect of the grounds she has to meet and to a very large degree, so is the Court. In circumstances where Ryan J in March 2016 drew to the husband’s attention that his appeal grounds lacked merit and, as some of these issues have already been ventilated before previous Full Courts and dealt with, it might have spurred the husband into doing something constructive about a summary of argument. That did not happen. In my view, the importance of the summary of argument in this case is obvious.
It is also timely to remember what the High Court said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 213:
98. ...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 wife is entitled to a just resolution of the cause where the orders were clear and unambiguous but so too, the community is entitled to expect that its courts will provide a quick and efficient system of resolution of any such cause. That has not happened here and it all points to the delaying tactics and procrastination of the husband.
For those reasons, the specific terms of r 22.45 have been satisfied here and I would dismiss the appeal.
Aldridge J
I agree with the reasons given by Justice Cronin and the orders proposed.
Ainslie-Wallace J
I too agree with the reasons given by Justice Cronin and the orders proposed.
Therefore the orders of the Court will be:
(1)The appellant’s oral application that he be permitted to make oral submissions instead of filing a summary of argument on the appeals is dismissed.
(2)The Applications in an Appeal filed on 23 June 2016 are dismissed.
(3)On the Court’s own motion, pursuant to r 22.45 of the Family Law Rules 2004 (Cth), Appeal EA 29 of 2016 against the orders of Judge Kemp made on 4 March 2016 is dismissed, and Appeal EA 36 of 2016 against the orders of Judge Kemp made on 18 March 2016 is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Cronin JJ) delivered on 30 September 2016.
Associate:
Date: 6 October 2016
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