Thurston & Thurston (No. 2)
[2012] FamCAFC 222
•21 December 2012
FAMILY COURT OF AUSTRALIA
| THURSTON & THURSTON (NO. 2) | [2012] FamCAFC 222 |
FAMILY LAW – APPEAL – Application for an adjournment of appeal proceedings – Where the appellant sought an adjournment of the proceedings on three bases: allied proceedings in the Federal Court in which the respondent is not a party, time to obtain legal representation, and ongoing illness and unfitness to participate in proceedings – Where it is apparent from the reasons for judgment of the Judge in the Federal Court proceedings that the appellant’s application there will not proceed until the appeals in this Court are determined – Where the appellant has already had the benefit of
pro bono legal advice, including an offer of further pro bono legal services in relation to these appeals, which he unreasonably rejected – Where the appellant has no alternative proposal as to how he might be legally represented, and this Court having no facility to provide litigants with legal representation, there would be no good purpose in adjourning the hearing of the appeals – Whether the appellant had demonstrated by way of medical evidence how and for how long his health difficulties might prevent him from prosecuting his appeals – Where the appellant was given a further opportunity after the hearing to adduce current and probative evidence in this regard – Where the evidence adduced by the appellant failed to provide a satisfactory indication of when the husband might be able to continue the appeal proceedings – Where there would be substantial prejudice to the respondent in adjourning the appeals, apparently indefinitely – Application dismissed.
FAMILY LAW – APPEAL – Application for dismissal pursuant to r 22.45 – Where the primary bases to the application are significant prejudice to the respondent and lack of merit in the appellant’s appeal – Where the appellant has not met requirements under the Rules,
or complied with orders, or shown reasonable diligence to progress his appeals – Whether there is merit in the appellant’s appeals such that the Court should not dismiss the appeals without a hearing on the merits – Where the thrust of the appellant’s grounds of appeal is an alleged denial of natural justice and procedural fairness by the Federal Magistrate hearing the matter undefended – Where consideration of all of the material before the Federal Magistrate and her Honour’s reasons for judgment demonstrate the Federal Magistrate did not err in her dealing with the case – Where there is no merit in the appeals – Application allowed,
appeals dismissed.
FAMILY LAW – APPEAL – Costs – Whether circumstances exist to justify the making of an order for costs – Where the conduct of the appellant, the proceedings being necessitated by the failure of the appellant to comply with orders, and the appellant being entirely unsuccessful in the proceedings are factors which justify the making of an order for costs against the appellant – Appellant ordered to pay the respondent’s costs, to be assessed.
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Family Law Act 1975 (Cth) s 117 Judiciary Act 1903 (Cth) s 39B Family Law Rules 2004 (Cth) rr 22.21, 22.45 Federal Court Rules 2011 (Cth) rr 4.12, 13.01(1)(a) Family Court of Australia, Annual Report 2011-2012 |
| Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Batey-Elton & Elton (No. 2) [2010] FamCA 271 Re [B] [2005] QCA 151 Re F: Litigants in person guidelines (2001) FLC 93-072 Farmer & Rogers [2010] FamCAFC 253 Gallo v Dawson (1990) 93 ALR 479 Lindon v Commonwealth of Australia (No 2) 136 ALR 251 Prentice & Bellas and Anor [2012] FamCA 108 Thurston & Thurston [2011] FamCAFC 250 Thurston & Thurston [2012] FamCAFC 121 |
| APPELLANT: | Mr Thurston |
| RESPONDENT: | Mrs Thurston |
| FILE NUMBER: | BRC 2249 of 2010 |
| APPEAL NUMBER: | NA 31, 32 & 95 of 2011 |
| DATE DELIVERED: | 21 December 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Strickland JJ |
| HEARING DATE: | 7 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 April 2011 18 April 2011 1 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1160 [2011] FMCA 1486 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Sara |
| SOLICITOR FOR THE RESPONDENT: | Neilson Stanton & Parkinson |
Orders
Pursuant to Rule 22.45 of the Family Law Rules 2004 the appeals NA 31, 32 and 95 of 2011 be dismissed.
The applications of the husband filed 13 March 2012 and 27 July 2012 be dismissed.
The husband pay the wife’s costs of and incidental to the applications to be assessed. Such costs be deducted from the husband’s share of the sale proceeds of the former matrimonial home.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston & Thurston (No 2) 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 BRISBANE |
Appeal Number: NA 31, 32 & 95 of 2011
File Number: BRC 2249 of 2010
| Mr Thurston |
Appellant
And
| Mrs Thurston |
Respondent
REASONS FOR JUDGMENT
May & Strickland JJ
These appeal proceedings emanate from a series of orders made by
Federal Magistrate Spelleken in property settlement proceedings between the parties. Those proceedings commenced in 2010 and final orders were made on
1 November 2011, following an undefended hearing. The husband also appeals from earlier interlocutory orders made by the Federal Magistrate in his absence on 1 April 2011 and 18 April 2011, which led to the final hearing proceeding on an undefended basis.
In essence, the final orders provided for the sale of the former matrimonial home and an equal distribution of property between the parties after adjustments. The order for sale was stayed by the Federal Magistrate on
21 December 2011 “until further order”. The stay remains in force.
The matter is complicated by the husband’s pursuit of allied proceedings in the Federal Court which he commenced in April 2012. In that Court the husband seeks judicial review of the Regional Appeals Registrar’s procedural orders made in the appeals in this Court on 13 March 2012, review of an improperly identified “decision” of the Federal Magistrate, and a stay of the final property settlement orders.
The husband has not diligently prosecuted his appeals in this Court since filing draft appeal indices in each appeal, almost 12 months ago on 23 December 2011. There are now three related applications in an appeal before this Court.
The husband filed an application in an appeal on 13 March 2012 and a further application on 27 July 2012. The first, in essence, seeks leave to issue 12 subpoenas which the husband suggests will demonstrate waste and impropriety by the wife relevant to the substantive property proceedings. A second application in an appeal was filed on 27 July 2012, in which the husband seeks an adjournment of the appeal proceedings until the matters in the Federal Court are concluded.
The wife filed an application in an appeal on 24 August 2012, seeking that the husband’s appeals be dismissed. In essence the bases of the wife’s application are that she has suffered and continues to suffer significant prejudice in not having the benefit of the final orders made by the Federal Magistrate, that there is no merit in the husband’s appeals, and that the protracted delays in the husband’s prosecution of the appeals are not reasonably explained.
We heard submissions from the husband (who appeared for himself) and counsel for the wife about each of these applications. Given the nature of the applications, the proper course is to consider first the husband’s application for an adjournment of the hearing of the appeals, and then the wife’s application for dismissal. Consideration of the husband’s application for leave to issue subpoenas only becomes necessary if the wife’s application is unsuccessful and the appeal is to be heard on its merits. For reasons which will be explained, we have decided that the husband’s appeals are to be dismissed and thus the subpoena application need not be considered.
History of proceedings
As the applications before this Court concern predominantly the conduct of the proceedings before the Federal Magistrate, and in order to properly consider the parties’ respective applications, it is necessary to set out in some detail the history of the proceedings at first instance and on appeal.
As will be seen, the Federal Magistrate was confronted with the difficult situation of a litigant in person who on occasions claimed he was not well and on others failed to appear despite specific orders. The wife was legally represented and complied at all times with orders and directions.
At the time of the final hearing the wife was aged 58 and the husband 67 years. The parties married in April 1983, the wife having claimed the relationship commenced in 1974 and on the husband’s case, the relationship having commenced at least prior to 1981 when they purchased a house together. The parties separated in December 2006 on the wife’s case and May 2002 on the husband’s. The marriage was therefore of approximately 20–25 years duration.
The wife commenced property settlement proceedings in the Federal Magistrates Court in May 2010. The wife sought an equal division of the parties’ property, after the inclusion in the pool of a sum attributed to the husband, representing a decrease in value by waste or reckless conduct and of “any benefit or resource received during the relationship from any deceased estate, family trust or other matter in which they are a beneficiary”.
The matter was dealt with by the Federal Magistrate at numerous mentions and directions hearings in 2010. The husband appeared in person at the various hearings between May and August 2010. At a hearing in November, the parties’ son appeared on the husband’s behalf. The son sought to be joined as a party on the basis that he was a creditor, and asked to be given leave to issue subpoenas relating to the wife’s financial position. That application, and an application of the husband filed 15 November 2010 seeking disclosure from the wife and leave to issue his own subpoenas, were listed for hearing on 11 February 2011.
On 11 February 2011 the wife was represented by counsel, but there was no appearance by either the husband or the son to pursue their respective applications. The Federal Magistrate made orders and gave reasons that day. In dealing with the son’s application, it was ordered that the application could be relisted or dismissed by the Court upon consideration of an affidavit ordered to be filed by the son explaining his failure to appear. No such affidavit was subsequently filed.
It was ordered that the applications of the husband and wife were to be heard in default of the husband’s appearance. The husband’s application filed
15 November 2010 seeking disclosure from the wife and leave to issue subpoenas was dismissed.
In relation to the wife’s application, it was ordered that the husband provide to the wife’s solicitor a range of documents pertaining to his financial circumstances, and that the husband allow two independent valuers to attend the matrimonial home for the purposes of preparing a valuation of the house itself and of the chattels, machinery, household goods and other belongings capable of valuation. The Federal Magistrate further ordered that should the husband fail to comply, the wife would be at liberty to seek orders by default at a further mention on 1 April 2011, and that her application would proceed by way of an undefended hearing.
A notation was recorded on the orders made 11 February 2011, that telephone contact to the husband had been attempted on five occasions from inside the court room, without success.
On 30 March 2011 the wife filed a contravention application in respect of the disclosure and valuation orders.
At the mention on 1 April 2011, counsel appeared for the wife and there was again no appearance by or on behalf of the husband. The proceedings were adjourned to 18 April 2011. Orders were made that the husband appear in person on 18 April 2011 and that failing such attendance a warrant would issue for his arrest and/or the Court may consider making final orders by default.
It was directed that the wife’s solicitors serve the husband, by attaching the documents to the front gate of his residential address, including a copy of the contravention application, the orders of the Court that day, and any amended application for final orders. The husband’s appeal numbered NA 31 of 2011 filed 29 April 2011 is an appeal against those orders made 1 April 2011.
On 11 April 2011 the husband filed an application in the Federal Magistrates Court seeking a stay of the orders made 11 February and 1 April 2011, until the determination of his application in an appeal for leave and an extension of time to appeal against the orders made 11 February 2011. The application in an appeal was heard and dismissed in the Family Court by May J on 9 May 2011 (Thurston & Thurston [2011] FamCAFC 250). The husband did not appear, and his son was given leave to appear on his behalf. May J dismissed the application on the basis of an unmeritorious proposed appeal, and the significant prejudice to the wife occasioned by the delay of the property proceedings between the parties.
On 11 April 2011 the wife filed an amended application for final property orders. The amended application referred to a specified property pool, including a $400,000 “add-back” which the wife claimed the husband had expended or otherwise not accounted for from an inheritance received in January 2006. The wife maintained her position that the parties otherwise receive an equal distribution of the property pool, taking into account the $400,000 the husband had received the benefit of separately.
At the next hearing before the Federal Magistrate on 18 April 2011, the wife was represented and there was again no appearance by or on behalf of the husband. On that day, the husband’s application for a stay was dismissed, and the wife’s contravention application and amended application for final property orders were adjourned to 10 May 2011. A direction was made that should the husband fail to attend or fail to formally seek leave to attend by telephone link, the wife would be at liberty to seek orders by default. The husband’s appeal numbered NA 32 of 2011 filed on 29 April 2011 is an appeal against these orders.
Though not raised in the course of the appeal proceedings and not a bar to this Court dealing with the matter, we would observe in relation to appeals
NA 31 and 32 of 2011, that there is clear authority from both the High Court and Full Court of this Court that an appeal is not the appropriate process to pursue where orders are made in the absence of a party. Rather what should happen is for that party to make an application to the judicial officer to set aside the orders made.
On 10 May 2011 the wife was represented by counsel and the husband did not appear. However leave was given to his son to appear on his behalf. Orders were made again adjourning the wife’s applications to 17 May 2011. In the Federal Magistrate’s later delivered reasons for judgment (1 November 2011), her Honour states that “[o]n that occasion it was made clear to [the son] that his father had one last chance to attend at the hearing or to progress the proceedings or the Court would consider making final orders by default and the nature and detail of that order was also made known to the [husband] by Annexure A being included in the orders that were sent to the [husband’s] address”. The husband did not appeal from the orders made 10 May 2011.
On 17 May 2011, the wife was represented by counsel. There was no appearance by or on behalf of the husband, nor had any application been made for him to attend by telephone. The husband provided no explanation for his absence. The husband having failed to appear a fifth consecutive time the Federal Magistrate, correctly in our view, decided to proceed with the hearing on an undefended basis.
The Federal Magistrate made orders and delivered reasons for judgment on
1 November 2011. In essence, those orders provided for an equal division of property between the parties utilising the pool of assets promoted by the wife. On 29 November 2011 the husband filed a notice of appeal, NA 95 of 2011, against these orders.
Draft appeal indices were filed by the husband in all three appeals on
23 December 2011. A procedural hearing was held on 13 March 2012, when the Regional Appeals Registrar made the usual orders for preparation of the appeals for hearing including setting down the three appeals for hearing together. At the procedural hearing, the wife’s solicitor appeared by telephone, and the husband appeared in person assisted by a Mr B, about whom we will say more later in these reasons. The order of 13 March 2012 notes that the husband left the hearing before it concluded. The appeals were set down for hearing on 24 May 2012 before May J, sitting as a single judge exercising appellate jurisdiction under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
After the procedural hearing on 13 March 2012, later the same day the husband filed the application in an appeal for leave to issue subpoenas to which we have referred.
As mentioned, on 10 April 2012 the husband also commenced proceedings in the Federal Court for judicial review of the Regional Appeal Registrar’s orders made on 13 March 2012, review of the Federal Magistrate’s “decision”, and a stay of the property settlement orders.
On 17 April 2012 the Chief Justice revoked the s 94AAA(3) direction for hearing by a single judge, and the matter was referred to the Full Court.
On 24 May 2012, a Registrar conducted a further procedural hearing and made orders preparatory to the hearing of the appeals before the Full Court. Again the wife’s solicitor appeared by telephone and the husband appeared in person. The Registrar ordered that the husband prepare, file and serve the appeal books by
3 August 2012 and his summary of argument by 17 August 2012.
On 27 July 2012 the husband filed an application in an appeal seeking, inter alia, an adjournment of the appeal proceedings pending the determination of his matter in the Federal Court. The application was listed before May J on
14 August 2012. In the summary of argument in response, the wife sought orders that the appeals be dismissed and the stay of the final property orders be lifted, however no formal application had been made. The husband failed to file his appeal books by the due date and his appeals were therefore deemed abandoned in accordance with r 22.21 of the Family Law Rules 2004 (Cth)
(“the Rules”).
The husband was given permission for Mr B to assist him on that occasion because he said he could not hear what the judge was saying. Ultimately, May J ordered that the appeals be reinstated, that the wife be at liberty to file an application for dismissal, and that the husband’s application otherwise be heard by the Full Court.
Consequently, before us are the applications of the husband and wife, and the husband’s earlier application filed 13 March 2012 in relation to subpoenas. Before dealing with those applications it is necessary that we refer to a significant feature of the litigation in this Court and apparently also in the Federal Court.
The husband’s application that Mr B represent him
The husband clearly had difficulty representing himself in the hearing before us and he made various attempts to ask for a Mr B to represent him. Leave was refused on two occasions to allow Mr B to appear for the husband in the applications before the Full Court. It is necessary to give some explanation for the Court’s decision.
There is no doubt that Mr B has a law degree. However on 13 May 2005, the Court of Appeal of the Supreme Court of Queensland refused Mr B’s application to be admitted as a legal practitioner (Re [B] [2005] QCA 151). It is not necessary here to repeat at any length those reasons other than the following extracts:
[14]…Mr [B’s] conduct is inconsistent with the unique and indispensable functions of a legal practitioner in the administration of justice.
…
[18]Even had he met his obligation to advertise, this Court would refuse his application because he has failed to demonstrate that he is presently a fit and proper person suitable for admission as a legal practitioner. Mr [B’s] original Form 18A was not a full and frank statement of his breaches of domestic violence orders or of all matters relevant to his suitability for admission as a legal practitioner. His behaviour in his ongoing dispute with his former wife over the custody of their children demonstrates that he presently lacks proper regard for the authority of the judicial system and that he is prepared to act improperly to achieve an end which he believes is desirable. He has an unresolved allegation of contempt of court against him. He is prepared to make unsubstantiated, scandalous claims about those involved in the administration of justice. All this is inconsistent with a conclusion that he is, at the present time, a fit and proper person to undertake the obligations and functions of a legal practitioner in the administration of justice.
(citations and footnotes omitted)
The Court of Appeal concluded that Mr B was not a fit and proper person to undertake the obligations and functions of a legal practitioner and his application for admission was refused.
Other judges of this Court have also refused applications by litigants in person that Mr B represent them. See Batey-Elton & Elton (No. 2) [2010] FamCA 271, Prentice & Bellas and Anor [2012] FamCA 108, and a number of Full Court judgments.
In the course of a lengthy judgment considering whether Mr B should be permitted to appear for the husband in the Federal Court in the allied matter, Greenwood J referred to the cases listed above and to Mr B’s conduct in the Federal Court, and also refused leave.
It need hardly be said that it would be inappropriate to allow a person refused permission to be admitted as a practising lawyer to appear in a court undertaking the role of a lawyer bound by professional rules of conduct. The absence of a lawyer to represent him meant the husband was obliged to appear for himself. Based on what he said to us he clearly understood the nature of the proceedings, but did say several times that he would like to have a lawyer represent him. He asked the Court to provide him with legal representation but made no suggestion of how this might occur. Thus, it was necessary for the Full Court to continue to hear the submissions.
Without, we hope, appearing to be too harsh and remembering the long delays for the wife in obtaining her property settlement, we would at this point simply refer to what McHugh J said in Gallo v Dawson (1990) 93 ALR 479 (at 481):
A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes, McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.
The Husband’s Application for Adjournment
The husband seeks an adjournment of the appeal proceedings on three discernible bases. First, the husband submitted that the appeals in the
Family Court should not proceed to be determined before the Federal Court decides the judicial review applications, as, “to not do so would be to substantially waste court time and resources and cause significant inconvenience and needless cost to the parties”. Second, the husband seeks an adjournment in order to obtain legal representation to prosecute the appeals on their merits. In his affidavit and at the hearing of the appeal he repeatedly asked that this Court provide him with legal representation. Related is the husband’s third point that he is too unwell to prosecute the appeals himself, and therefore needs both more time and legal assistance. We will deal with each of these arguments in turn.
Allied proceedings in the Federal Court
As mentioned, the husband commenced proceedings in the Federal Court in April 2012. His originating application, which remains pending, was summarised by Greenwood J in his reasons for judgment in July 2012 following an interlocutory hearing in the proceedings:
1.In the principal Originating Application filed by [the husband] on 10 April 2012, he seeks review under s 39B of the Judiciary Act 1903 (Cth) and the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “AD (JR) Act”) of two decisions. In the Originating Application, the first respondent is described as [the Regional Appeals Registrar] and the second respondent is described as “Federal Magistrate Spelleken of the Federal Magistrates Court”. In the affidavit of [the husband] filed 10 April 2012 in support of the application, […] is described as the Appeals Registrar of the Family Court of Australia. The first decision under challenge is a decision of Federal Magistrate Spelleken. The particular orders in question which constitute “the decision” have not been properly identified in the affidavit. The second decision sought to be reviewed is described as a decision of “the First Respondent to deny the Applicant available legally trained assistance on 13 March 2012 and on that date, to make the orders made”.
The husband also filed an interlocutory application asking that the
Federal Court stay the order of the Federal Magistrate requiring the house to be sold, and for leave to issue subpoenas in the same vein as the application for leave to issue subpoenas before us. Greenwood J heard and dismissed those applications in May 2012, determining that it was inappropriate for the Federal Court to intervene where a stay was already in force and the substantive issues were on foot in this Court. His Honour found the application unmeritorious and incapable of succeeding, and ordered costs against the husband. His Honour concluded at paragraph 10 of his reasons, “[i]n principle, the primary application [being the originating application] ought not to be listed for further determination until the determination of the various appeals. However, should either of the parties wish to list the matter for any reason, the matter will be listed upon request”.
The Commonwealth of Australia subsequently made an application to be joined as a respondent and for orders setting aside the husband’s originating application on the bases that neither decision the subject of the application is a decision of administrative character and thus not within the Federal Court’s jurisdiction of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and that no constitutional writ could lie in respect of either decision under s 39B of the Judiciary Act 1903 (Cth).
At an interlocutory hearing in July 2012, Greenwood J considered the Commonwealth’s application, and an application made by Mr B for leave to enable him to appear on the husband’s behalf to resist the Commonwealth’s application and also to act generally on his behalf. Orders were made joining the Commonwealth, but leave was refused for Mr B to appear on the husband’s behalf. The remainder of the application was adjourned to give the husband time and an opportunity to obtain pro bono legal advice in relation to the application to set aside the originating application.
As mentioned, in the judgment Greenwood J gave lengthy reasons, which supported his Honour’s finding that Mr B was not a fit and proper person to provide assistance in the proceedings. As to the pro bono legal advice, his Honour explained at paragraph 51:
The Court will refer [the husband] to a lawyer for legal assistance by causing a Referral Certificate under r 4.12 of the Federal Court Rules 2011 to issue in accordance with Form 9 directed to the question of whether the Originating Application filed on 10 April 2012 ought to be set aside under r 13.01(1)(a) of the Federal Court Rules 2011 on the ground, as the Commonwealth contends, that neither decision the subject of the application is a decision of an administrative character for the purposes of the AD (JR) Act and on the further ground that no constitutional writ lies in respect of either decision under s 39B of the Judiciary Act 1903 (Cth), as the Commonwealth contends.
The husband subsequently sought to have his principal application relisted and the matter was mentioned before Greenwood J in October 2012. The husband sought that the application proceed, or be “sent up to the High Court in relation to placida 75(v) of the Constitution”, or “an arrangement be negotiated to adjourn the several related appeals before the Family Court … until the resolution of this case”.
Greenwood J refused the husband’s requests and made a direction generally adjourning the principal application pending the determination of the appeals in this Court. His Honour gave the following reasons (emphasis added):
14There is no basis for presently proceeding with the principal application and certainly no basis upon which this Court can or ought to intervene in the exercise of the appellate jurisdiction of the Family Court of Australia. All of the matters that [the husband] wants to agitate can, and no doubt are, being agitated as grounds of appeal in the four appeals earlier described. If [the husband] is suffering difficulty in the preparation of the appeals before the Family Court, he can and no doubt will, raise that difficulty with that Court in an appropriate way.
15Accordingly, I direct that [the husband’s] principal application listed for mention today at his request be adjourned generally pending the determination of the sequence of appeals listed before the Family Court of Australia. The next step, upon a resolution of those appeals, will involve so far as the principal proceeding in this Court is concerned, the re-listing of the interlocutory application by the Commonwealth seeking orders for the striking out of the principal proceeding. That application ought not to be listed until the appeals before the Family Court are resolved.
It is quite apparent from the series of reasons for judgment of Greenwood J that the husband’s application in the Federal Court will not proceed until the appeals in this Court are determined. Insofar as the husband seeks an adjournment of these appeal proceedings on the basis of the allied proceedings in the Federal Court, even without consideration of the prejudice to the wife, who is not a party to the Federal Court proceedings, the application for an adjournment must logically fail.
Legal Representation
Although not expressly sought in his filed applications, it is apparent from his affidavit of 5 November 2012, and as confirmed at the hearing before us, that the husband seeks an adjournment of the hearing of the appeals and all applications in order for him to obtain legal representation, and that the Court appoint such representation for him.
The husband deposes:
4.…for the proper hearing of my appeal I do require legal assistance, not only because I am an inexperienced layman, but because my parlous health makes it impossible (as already attested to by more than one Expert medical witness) for me to conduct my own case…
…
13.It is too soon for me to have obtained another legal representative and be ready for any substantive hearing. Alternatively, I ask for this court to appoint a competent and unbiased pro bono barrister or solicitor to assist me at any adjournment of these proceedings and to adjourn these appellate proceedings so that the Judicial Review proceedings in the Federal Court may be heard first.
As mentioned above, in July 2012 Greenwood J issued to the husband a Referral Certificate under the Federal Court Rules 2011, to obtain pro bono legal advice through that Court’s referral service. The scope of that referral was set by his Honour at paragraph 51 (paragraph 46 above) and was limited to the matters raised by the Commonwealth’s application to set aside the originating process.
In his affidavit filed 5 November 2012 in these appeal proceedings, the husband refers to the advice received from a pro bono barrister, Ms Anderson, and includes as annexure A, correspondence received from her. The husband states:
5.A pro bono Barrister was appointed to advise me by a federal court judge on prosects for my Review in the Federal Court and to handle these appeals for me. That judge, responding only to malicious and spurious motivation by the Crown, gave way to their pressure to deny me the legally qualified assistance [Mr B] I did have available. That barrister then gave utterly wrong advice and unilaterally chose to withdraw from my case. She made the same error of statutory interpretation that my learned friend in these proceedings has tentatively made…
The letter of advice from the barrister to the husband is dated
24 September 2012 and provides:
During our conversation on the evening on Sunday 23 September 2012 you asked me to write down the steps that I see as necessary for you to take in respect of your matter in the Family Court of Australia. You pointed out I had been asked to provide you with advice with respect to your Federal Court matters and that now I seem to be giving you advice with respect to the Family Court matters. I told you that the reason I was giving you advice about the Family Court matters [sic] because, in my view, your Federal Court proceedings are entirely without prospects of success. I intend to provide you with my reasons for saying that in this letter.
The barrister set out at length the relevant section of the Judiciary Act 1903 (Cth), and her advice on the husband’s application before the Federal Court. She concluded:
…even if you intended to pursue your application in the Federal Court you would not, in principle, be allowed to do so until the appeals were determined in the Family Court. Therefore, if you intend to proceed with the Federal Court matter I cannot assist you further as I have discharged my duty to provide you with advice with respect to that matter.
The barrister then went on, quite generously and clearly beyond what was requested of her by the Federal Court referral, to advise the husband on his appeals in this Court. She explained:
I have offered you advice in the Family Court proceedings on the basis that I believe that you should press your appeals in this matter. If you do not press the appeals you will have no other way of asking the court for your matter to be remitted to another Federal Magistrate for hearing according to law…
The barrister proceeded to list individually the steps which the husband had to take in order to press the appeals. She included detailed advice about how to proceed without transcripts for the appeal books, offering to draft a letter of explanation to the Registrar to ask for leave to provide the books without transcripts, and suggesting an alternative of asking the wife’s solicitors for the transcripts.
The barrister then explained, correctly and crucially in our view, that the husband would be required to put before this Court medical evidence explaining his difficulty in the conduct of the proceedings in the Federal Magistrates Court. She advised:
In order to prepare affidavit material to go before the court, we will require medical evidence from your general practitioner and your psychologist. I intend the evidence that we attempt to put before the Full Court to be an explanation of why you have not been able to attend various hearings. I intend to draft an affidavit of you which explains your absence at various hearings. This will require that you and I meet so that I can take a statement from you to put in affidavit form.
I have asked you to attend your psychologist and ask him to prepare a letter which explains your current treatment and what you are being treated for…
I also would like all of the records from your general practitioner from the time that your wife left the home. I understand that was some time in 2010. Your general practitioner should have a computerised record of all of your visits since then. These will be attached to an affidavit of the general practitioner.
I would also like a letter from your general practitioner which explains your various physical illnesses and what impact they have had on your ability to attend court…
I cannot take any further steps with respect to your matter without your providing me with the requested documents…
I suggested to you that if you do not agree with my advice or do not wish to follow it, one avenue that might be available to you would be to ask the Federal Court to refer you to a different pro bono barrister who can provide you with advice. I suggest that you may be able to find someone who provides you with different advice which you find helpful.
Apparently having received no response from the husband to this comprehensive and practical advice, and open offer of further pro bono assistance, the barrister wrote again to the husband approximately two weeks later on 8 October 2012:
…I assume because you have not responded to my last letter that you have chosen to withdraw your instructions. Please let me know if this is not the case. If it is the case I will ask my secretary […] to return the copies of documents that I have here. These may assist you to obtain assistance from another legal practitioner.
If it would be of assistance I am happy to let the court know that you would like another barrister to provide you with pro bono assistance. I am certain they will attempt to find someone else to help you if you would like.
The husband did not accept the offer of the barrister, nor did he explain to us why he did not do so, save to say that he considered the barrister gave “utterly wrong advice”. We are by no means persuaded the advice the husband was given was incorrect.
Health and medical evidence
In addition to the assertions that these proceedings should be indefinitely postponed by reason of allied proceedings in the Federal Court and the need for legal representation, the husband claims his ill health as a basis for an adjournment.
It was quite apparent at the hearing before us that the husband is unwell. He was nonetheless, for the most part, able to articulate his various complaints, communicate his submissions, engage with the Bench, and listen and respond to the submissions of counsel for the wife. In addition, we had written submissions and affidavits of the husband upon which he relied.
While it is unfortunate that the husband is visibly experiencing some health difficulties, there remains an onus on him to put current and probative evidence before this Court about the nature of those difficulties from health professionals, and about how and for how long they might prevent him from prosecuting his appeals. The husband has not done so in these proceedings.
The only medical evidence put before the Court was summarised by May J when her Honour first heard the husband’s adjournment application in
August 2012 (Thurston & Thurston [2012] FamCAFC 121), before it was listed before the Full Court.
In the affidavit filed on 27 July 2012 in support of the adjournment application, the husband said at paragraph 3:
5. …my personal health has been quite parlous for many months and there is simply no possibility that I could fairly or even possibly conduct any court hearing until my significant but undiagnosed health conditions are alleviated or resolved. For so long as my haemoglobin is below normal levels (and it currently is very substantially low) I am literally unable to think normally and certainly could not deal with a court process fairly or at all without representation.
The medical evidence in support is limited to one letter from a Dr N dated
16 July 2012 and one discharge summary from Hospital G dated 6 July 2012.
Dr N stated:
This patient has developed severe anaemia due to an unknown cause. He required a reasonably urgent transfusion of 6 units of blood at [Hospital G] on 07.07.12. He requires weekly checks of his blood levels and requires referral to several specialist [sic] for investigation of his condition. This management will be ongoing for several months.
The discharge summary dated 6 July 2012 included the following statements:
Principal Diagnosis
Severe Iron Deficiency Anaemia
Inpatient Clinical Management
…[the husband] will need weekly blood count check for next four weeks and depending on the trend of his blood count, his blood testing frequency need [sic] to be adjusted.
I advised [the husband] to find a general practioneer [sic] and have regular blood test as above. Also he will need whole range of testing, which I wrote in recommendation sections. He needs to be seen by at least gastroenterologist and haematologist.
When the husband’s applications were first listed before May J on
14 August 2012, her Honour observed:
17.It seems the husband’s health problems have persisted throughout the course of both the first instance and appeal proceedings. The specific issue of anaemia was known to him at least as early as the hearing of an application in an appeal before me in May last year where he put before the Court medical evidence of that diagnosis.
May J also ordered by consent that “[t]he appellant file and serve a response and any affidavit upon which he would wish to rely within three weeks of being served with the respondent’s [dismissal] application and affidavit but no later than 28 September 2012”.
The husband filed a further affidavit, out of time, on 5 November 2012. That affidavit contains no evidence and no further submissions about the current state of the husband’s health, any ongoing treatment, or the likely time when he would be able to participate in and conduct proceedings.
At the hearing of the appeal, we also gave the husband 12 days in which to file any further written submissions in relation to both of the applications.
An affidavit of the husband was filed in time on 16 November 2012. In the affidavit, the husband repeats many of his earlier written and oral submissions in relation to the pro bono lawyer assigned to him by the Federal Court, the conduct of the property proceedings, and his appeal NA 25 of 2011 for which he was refused leave to file out of time. Annexure A to the affidavit is a letter from Dr N dated 15 November 2012. Dr N wrote:
This is to confirm that [the husband] is being managed for severe chronic iron deficiency anaemia. He requires regular and repeated blood and iron infusions to keep him stable. He has been extensively investigated, but there has as yet been no definable cause found for his bizarre symptoms and signs. It is presumed that he may have something affecting his bone marrow development.
This explanation provides no new information about the husband’s health or ongoing treatment, and does not address the likely time at which he would be able to continue the appeal proceedings.
An email, apparently sent by Mr B attaching a letter dated
19 November 2012 from a Ms P, psychologist, was also received by the appeals assistant, in time however not properly filed, on 19 November 2012. It is unclear from the email whether the respondent was included in the email correspondence enclosing the psychologist’s letter. The psychologist wrote:
[The husband] was referred by his GP for psychological treatment to address the negative impact of stressors associated with ongoing legal proceedings in the Family Court in relation to property Settlement [sic].
An initial assessment in early October this year indicated that [the husband] was experiencing significant psychological distress He was severely depressed and his stress levels were in the extreme range.
I have continued to see [the husband] for one hour sessions on a regular basis since that time and have recently noted a marked deterioration in some of his symptoms, most notably, in his ability to speak clearly and coherently. [The husband] also appears to be increasingly overwhelmed by a pervading sense of hopelessness and powerlessness.
I have been informed that [the husband] has been required to represent himself for much of the legal proceedings and appear in court despite recommendations to the contrary by his former treating psychologist, the late [Mr M].
I believe that because of the severity of his psychological symptoms, [the husband] is currently incapable of either representing himself in any court proceedings and/or appearing in court. I also believe [the husband’s] recovery will be very much dependent upon him having a sense that he has a voice and has been heard. To that end, given the present circumstances, I am not anticipating any significant improvement or change in the near future and will continue to see [the husband] fortnightly.
As we have observed at paragraphs 62 to 63 of these reasons, the husband is in an unfortunate situation being visibly unwell and has some difficulties representing himself. As will be seen, it has been known for some time that the husband suffers from symptoms of depression. The psychologist’s evidence however, provides no satisfactory indication of when the husband might be able to continue the appeal proceedings, a significant fact to be considered in an adjournment application.
Wife’s submissions
As would be expected, the thrust of the wife’s submissions was that the husband’s appeals have no merit, and there is substantial prejudice to the wife in the proceedings being adjourned, apparently indefinitely.
Conclusion
The application of the husband for an adjournment should be dismissed. Despite being given an opportunity and being alerted to the need to provide probative medical evidence about his condition and when he would be fit to continue the appeal proceedings, the husband has failed to produce it. In addition, it would be a futile exercise to adjourn the appeal proceedings until the Federal Court proceedings are determined.
The only point in the husband’s favour is the argument that he should be legally represented. In this, the husband is in no different position from the many
self-represented appellants who appear before us. In the 2011-2012 financial year, self-represented appellants constituted nearly 40 per cent of all appellants in this Court (Family Court of Australia, Annual Report 2011-2012, p 82). The husband had no proposal as to how he might be represented, other than seeking in his notice of appeal, an order that “[A] pre-emptive Costs Certificate be issued by the Court to allow the Appellant husband funding of legal representation of his choice for the hearing of this Appeal”. In the circumstances of this Court having no facility to provide litigants with legal representation, there would be no good purpose in adjourning the hearing of the appeals. The husband’s application is dismissed.
The Wife’s Application for Dismissal
Having dismissed the husband’s application for an adjournment, we must next consider the wife’s application. By an application filed 24 August 2012 the wife seeks that the husband’s three appeals be dismissed pursuant to r 22.45 of the Rules and the husband pay her costs. That rule provides:
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the “defaulting party”) has not:
(i)met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:(i) dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with…
Wife’s submissions
The primary basis for the wife’s application is the prejudice to her in the continuation of the appeal proceedings in circumstances where the husband has had numerous opportunities to comply with procedural requirements and has failed to do so. She also cites lack of merit in the husband’s appeals.
Most significantly, as the wife correctly points out in her affidavit filed
24 August 2012, by virtue of the stay of the Federal Magistrate’s orders, the husband continues to have the benefit of living rent-free in the house, which will necessarily and inevitably be sold in order to satisfy any settlement of property entitlements between the parties. Simultaneously, the wife has continued to pay rent to live elsewhere, and has been unable to access the house in order to prepare and maintain it for the inevitable sale. Understandably, the wife is frustrated by the husband’s persistent failure to prosecute his appeals.
The wife accepts in her affidavit that the husband has had a “health incident” which may have adversely impacted “for a short time” on his ability to complete and file appeal books. It is submitted on her behalf that the evidence before the Court is insufficient to explain or to justify the protracted delays to date, and the further delay which the husband requests. It is the wife’s contention that both the continual delay in these appeal proceedings and the pursuit of proceedings in the Federal Court (to which she is not a party), are an abuse of process by the husband, instituted at the behest of Mr B.
The wife points out that despite the husband’s claims that he is incapable of prosecuting the appeals without legal representation, he has nonetheless filed numerous applications and affidavits, and appeared on numerous occasions in the Federal Court. It is notable as the wife claims, that the husband has made no application to Legal Aid for representation, and that he has not made an application to have a litigation guardian appointed to conduct proceedings on his behalf.
In relation to the merits of the husband’s appeals, the wife emphasises that the outcome of the orders the husband seeks to appeal was an equal distribution of matrimonial assets acquired over a 26 year marriage. She also referred to paragraph 21 of the Federal Magistrate’s reasons for judgment on
1 November 2011, which set out each of the occasions the husband had not appeared, including in his own applications, and the numerous orders made by the Court to accommodate him.
Husband’s response
In response to the wife’s application, the husband submitted that his appeals have merit and that to dismiss them would deny him natural justice.
Discussion
It is clear that the husband, the “defaulting party”, has not complied with requirements to progress his appeals under the Rules and procedural orders.
On this basis, it could be said that he has not shown reasonable diligence in proceeding with the appeal. It is however, a serious step for a court to dismiss an appeal without a hearing on the merits.
The principles to be applied by courts in dealing with applications for summary relief such as the wife’s application for dismissal are well known, and they are summarised by Kirby J in Lindon v Commonwealth of Australia (No 2) 136 ALR 251 at 256 (“Lindon”) (emphasis added, footnotes omitted):
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Frivolity and abuse of process
This Court will always prefer, where possible, to hear appeals on their merits rather than summarily dismiss them. As the husband’s grounds of appeal will be considered in these reasons, that discussion will demonstrate that dismissal is warranted even on the most favourable construction of his grounds of appeal. It is unnecessary to consider at length the abuse of process submissions made by the wife.
Merits of the husband’s appeals
In accordance with the principles explained in Lindon, it is necessary to have regard to the merits of the husband’s appeals and to consider whether it is clear that the husband is “doomed to fail”.
Leaving to one side the delays and the failure of the husband to comply with directions to have the appeal heard (including the preparation of appeal books), a basis for dismissal in itself, it is clear that while the orders appealed may leave the husband in an unfortunate position, there is no merit in the grounds.
The husband’s first two appeals, NA 31 and NA 32 of 2011, relate to interim orders. In order to appeal from an interim order, the husband must obtain leave. It is well settled that to obtain leave, an error of principle or substantial injustice must be demonstrated (Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177).
NA 31 concerns orders made 1 April 2011, which required the husband to attend in person on 18 April 2011 and if he failed to do so, a warrant could be issued for his arrest and/or the Court could consider making final orders by default. The husband was also ordered to pay the wife’s costs in the sum of $1,480. NA 32 is against orders made on 18 April 2011, which dismissed the husband’s application for a stay of orders and general adjournment, and adjourned the wife’s amended application to 10 May 2011, with provision again that should the husband fail to attend or fail to formally seek leave to attend by telephone, the wife would be at liberty to seek orders by default.
The grounds of appeal in relation to the two sets of interim orders are identical. The husband asserts that the Federal Magistrate’s discretion miscarried by hearing the matter and making interim orders in his absence, and more vaguely that the Federal Magistrate displayed bias against him on both occasions. The husband therefore claims a denial of natural justice and procedural fairness.
As the grounds in the appeal NA 95 of 2011 against the final substantive orders largely reflect those in the appeals against the interim orders, it is as well to set out those grounds as contained in the notice of appeal and address them collectively:
1.Her Honour erred and her Discretion miscarried in, on multiple occasions, hearing a matter when she had before her, medical evidence that the Respondent husband could not attend court.
2.Her Honour erred and her Discretion miscarried in hearing a matter when she had before her, medical evidence that the Respondent husband could not attend court even by telephone.
3.Her Honour erred in Law and her Discretion miscarried in that she displayed bias, or in the alternative, acted in a way which a reasonable person in the position of the husband might apprehend was bias in ignoring the Evidence before her, and in repeatedly refusing to accept and hear the Application or Read the Affidavit of [the son].
4.Her Honour has denied the Respondent Husband Natural Justice or Procedural Fairness on a number of occasions, inter alia by:
a)stymying [sic] several appeals the husband sought to make by failing or refusing to provide her Reasons for Judgment despite requests that she do so and in
b)failing or refusing to hear his applications and that of his son and
c)“losing” and not filing documents accepting in court for filing
d) dismissing Applications summarily
e)not allowing [the son] (who was lawfully delegated to do so) make any representations for his father, the husband.
4.Her Honour has denied the Respondent Husband Natural Justice or Procedural Fairness on a number of occasions inter alia by refusing to deal with multiple requests by the husband for the issuance of subpoenas aimed at getting the financial facts before the Court when it was clear that the Disclosures by the wife were deficient and wrong.
5.Her Honour denied [the son] Procedural Fairness by orally dismissing his Application for joinder without a hearing but not putting that decision in writing so that the matter could be dealt with by review or appeal.
6.Her Honour erred in Law an [sic] multiple issues as set out in the General Administrative Law on and in the Statute Law in the administrative [sic] Decisions (Judicial Review) Act 1977
The crux of the grounds raised in the husband’s notices of appeal therefore is an alleged denial of natural justice and procedural fairness by the Federal Magistrate hearing the matter undefended. In numerous affidavits in the appeals and the first instance proceedings, the husband repeatedly refers to medical evidence relating to his unfitness to appear and participate in litigation in the property proceedings before the Federal Magistrate. He says that evidence was before the Federal Magistrate, or was sought to be placed before her Honour and wrongly refused.
In these circumstances, an abundance of caution requires us to consider the filed material which was before the Federal Magistrate in the first instance proceedings. Ordinarily this would occur by reference to appeal books prepared by the appellant. We emphasise that files in first instance proceedings and appeal proceedings are kept entirely separate.
However appeal books not having been filed, and few specific references being made to such material by the husband himself, we have ourselves read the material relied on by the Federal Magistrate in order to properly review the husband’s arguments in the appeal. In this we have been assisted by the lists of documents contained in the draft appeal book indices filed in each matter. We have considered the final reasons for judgment of the Federal Magistrate, and the evidence that was before her Honour in relation to the husband’s illness and incapacity to attend or participate in proceedings. Where necessary, we have also had regard to the material in the husband’s series of appeals. There were substantial submissions filed on behalf of the wife in this regard.
Reasons of the Federal Magistrate – Final Orders
The Federal Magistrate commenced the reasons for judgment by identifying the applications before her, and setting out at length the history of the proceedings leading to the final hearing. Although we have already referred to this history, we think it is as well to repeat it to demonstrate that her Honour was mindful of those matters and because it is from this judgment that the husband appeals:
1.The applications before the Court are for property settlement. The amended application for property settlement filed 11 April 2011 came before the Court on 18 April 2011 and by an order made on that day was adjourned to 10 May 2011 with directions made for the respondent to attend on 10 May 2011 and if he failed to attend or failed to seek leave to attend by telephone link, the applicant would be at liberty to seek orders by default on that day.
2.On 10 May 2011 the amended application was further adjourned to the Federal Magistrates Court sitting in Hervey Bay on Tuesday 17 May 2011 with a further order made that at that time the Court would consider making final orders in terms of the orders attached and marked “A” to the orders of 10 May 2011.
3.When the matter came before the Court on 17 May 2011 there was no appearance by the respondent and the Court was asked on behalf of the applicant to deal with the matter finally by default in the absence of the respondent.
4.The earlier history of this matter is that proceedings for property settlement were commenced by the applicant on 4 May 2010 and the first return date of that application was before Federal Magistrate Slack on 12 July 2010. Ms Gordon, Solicitor, appeared for the applicant and the respondent appeared on his own behalf. At that time the Court adjourned the application for further mention and directions to 24 August 2010 with both parties being given leave to attend the adjourned hearing by telephone link.
5.On 13 July 2010, an Application in a Case was filed on behalf of the applicant seeking orders that further service of her application filed 4 May 2010, a financial statement and supporting affidavit be dispensed with upon the filing of a Registered Post person-to-person delivery confirmation advice receipt signed by the respondent, or in the alternative the filing of an Affidavit of Service confirming the service of the documents upon [the parties’ son]. That application was supported by an affidavit from the applicant’s solicitor, Ms Gordon, explaining the difficulties that she and her client had had serving the application in accordance with the Rules.
6.Prior to the return date of that Application in a Case however, the respondent filed his Response, financial questionnaire and affidavit on 18 August 2010.
7.When the matter came before Federal Magistrate Slack again on 24 August 2010, the applicant was again represented by Ms Gordon, Solicitor, and the respondent appeared on his own behalf. Orders were made on that day for the parties to attend at a Conciliation Conference on 11 November 2010 at 11.30am and various directions were made for the parties’ preparation for that Conference including an order for the appointment of a Court Expert to value any property in dispute between the parties, disclosure of documents by each party to the other and an order for the respondent to file a Statement of Financial Circumstances within 21days.
8.The Court file discloses that on 10 September 2010 a letter was sent from the Registry to the respondent and to the applicant’s solicitors informing them that the time of the conference had changed to 11am on Thursday 11 November.
9.The Conciliation Conference was then adjourned at the request of the applicant but with the consent of the respondent and it next came before the Court sitting in Maroochydore on 11 February 2011. Prior to that day the respondent filed an Application in a Case which was listed on 11 February 2011 seeking orders that the applicant produce to him various documents included in paragraphs 2(a), (b), (c), (d) and (e) of that document, that the respondent be given leave to issue subpoenas of his choice relevant to the applicant’s true financial position and further that the applicant be dealt with for contempt of court for not producing documents required by her general duty of disclosure and/or ordered by the Court in the timetable set down by the Court, as well as an order for costs.
10.On 15 November 2010 an application was filed by the parties’ son, […] seeking an order that he be joined as a party to the proceedings and that once joined he be given liberty to issue subpoenae to evidence the applicant’s financial position and that “he be paid as a creditor monies adjudged to be owed by the other parties in this matter from the marital asset pool before the quantum of any distribution to other parties is ascertained”. That application was also listed for hearing on 11 February 2011.
11.On 11 February 2011 Mr Wildie of Counsel appeared for the applicant and there was no appearance by the respondent nor any appearance by [the parties’ son] to pursue his Application in a Case. A notation was made to the Court’s order of 11 February 2011 that “the respondent was telephoned on four occasions from the courtroom in Maroochydore unsuccessfully and another attempt was made to telephone him on his mobile (the number being provided by the Court by the applicant’s solicitors) but was again unsuccessful”.
12.For reasons that were given on that day orders were made as follows:
(1)That the proposed Intervener, [the parties’ son], file and serve, within twenty-eight days of the date of these Orders, an Affidavit explaining the proposed Intervener’s failure to appear, or make arrangements for alternative appearance, before the Court for the hearing of his Application in a Case filed 15 November 2010.
(2)Upon consideration of the Affidavit described in Order 1 herein, the Court, if satisfied on the evidence, relist the Application for further mention, or dismiss the Application of [the parties’ son].
(3)That the Applications of [Mrs Thurston] dated 11 November 2010 and [Mr Thurston] dated 16 November 2010 be heard in default of the Respondent’s appearance.
(4)That the Respondent provide to the Applicant’s solicitor, within 14 days of the date of the Orders the following documents:-
(a)Details of all accounts held in the Respondent’s name at any financial institution for the past twelve months including copies of statements for all such accounts for the past twelve months;
(b)Details of any purchase by the Respondent, or on behalf of the respondent of any property.
(c)Details of disposal of property held by the Respondent or in the Respondent’s name, or by anyone else on behalf of the Respondent in the past five years;
(d)All documentation relevant to establishing the value of inheritances received by the Respondent from the Estate of his Mother, Father and Aunt, including documentation relating to the subsequent sale of the Aunt’s house;
(e)Details of all improvements made to the matrimonial or other properties by the Respondent and copies of receipts verifying the cost of same;
(f)Copy of any Loan Agreement, or evidence of an alleged debt of $40,000.00 payable by the Applicant to the Respondent;
(g)Details of the sale, transfer or disposal of the following, including receipts for payment,:-
(i) Mazda [motor vehicle];
(ii) Holden [motor vehicle]; and
(iii) BMW motorcycle.
(5)That the Respondent allow a representative of [Valuer Agent X] to attend the matrimonial property [T] upon the giving of 24 hours notice by telephone at a time and date as nominated be [Valuer Agent X] for the purposes of inspecting the property so as to prepare a registered valuation of the matrimonial property.
(6)That the Respondent allow a representative of [Valuer Agent Y] to attend the matrimonial property [T] upon the giving of 24 hours notice by telephone at a time and date as nominated be [Valuer Agent Y] for the purposes of inspecting for preparation of a valuation of all chattels, machinery, household goods and other belongings capable of valuation.
(7)That the Respondent shall allow reasonable access to [Valuer Agents X and Y] to the entire property and any chattels, machinery, buildings or improvements thereon as may be required to complete the valuations described in Orders 2 and 3 herein.
(8)That the Applicant shall pay in full all costs associated with the valuations at first instance with the Respondent’s one half share of the fees to be reimbursed to the applicant contemporaneously with the final property settlement distribution.
(9)That should the Respondent fail to provide disclosure with regard to his inheritance as set out in Order 4(d) herein the Applicant be granted leave to issue subpoena to Neilson & Co Solicitors, Perth, Western Australia or any other person, association or business identified as holding information regarding payment to the Respondent following the distribution of the estates of [Mr W, Ms G or Ms J].
13.Further orders were made on that day that the respondent was to pay the applicant’s costs of and incidental to the Application in a Case filed 16 November 2010 fixed in the amount of $3445.00 and that should the respondent fail to comply with the orders made by the Court that day that the applicant be at liberty to seek orders by default at the further Mention of the matter on 1 April 2011 and that her application proceed by way of an undefended hearing. The proceedings were then adjourned to 1 April 2011.
14.In a separate order made by the Court on that day, the Application in a Case of the respondent filed 15 November 2010 was dismissed. That order also had the notation referred to earlier in relation to the respondent having been called on four occasions and once on his mobile telephone number.
15.On 1 April 2011 again Mr Wildie of Counsel appeared for the applicant who by that time had filed an Application for Contravention on 30 March 2011 which was made returnable on 1 April 2011 and the respondent had filed an Application in a Case on 11 April 2011 seeking an order that the Court make no further orders until the determination of an appeal lodged by him against the orders made by the Court on 11 February 2011. Despite the respondent’s application for a stay being listed on 1 April 2011 essentially there was no appearance by the respondent on 1 April 2011 and no request made by him to attend by telephone.
16.The proceedings were adjourned to 9.30am on 18 April 2011 with the applicant and her legal representatives having leave to appear by telephone. A direction was made that the applicant’s solicitors were to engage a person to serve the respondent a copy of the Contravention Application filed 30 March 2011, the affidavit of Ms Gordon filed 30 March 2011, the order made by the Court that day and any amended application for final orders. The directions provided that the respondent was to be served with those documents by the person engaged by the applicant’s solicitors, attaching those documents to the front gate of the respondent’s residence at [Property T] in Queensland. The orders went on to provide that the respondent was to attend in person on 18 April 2011 and that if he failed to attend a warrant would issue for his arrest and/or the Court may consider making final orders by default. Leave was granted to the applicant to file and serve an amended application for final orders and an order for costs was made in the applicant’s favour.
17.On 11 April 2011 again there was no appearance by the respondent and Ms Blowers, Solicitor, appeared for the applicant. For reasons that were given on that day, the Application in a Case filed by the respondent on 11 April 2011 was dismissed and the Contravention Application filed on 30 March 2011 and the amended application filed 11 April 2011 were adjourned to 10 May 2011 and a direction made that should the respondent fail to attend at the adjourned hearing on 10 May 2011 or fail to formally seek leave to attend by way of telephone link, the applicant would be at liberty to seek orders by default and the applicant’s costs were reserved.
18.On 10 May 2011 Mr Sara of Counsel appeared for the applicant and on that occasion [the parties’ son] was effectively given leave to be heard on behalf of the respondent. Orders were made on that day to adjourn the application to Hervey Bay at 9.30am on Tuesday 17 May 2011. The Court made it very clear to [the parties’ son] that the Court was adjourning the proceedings to 17 May 2011 in Hervey Bay and that if the respondent did not appear the Court would consider making final orders by default in terms of the orders which the Court attached to the order of 10 May 2011. Again an order was made that the respondent pay the applicant’s costs thrown away on that day and fixed in the sum of $3,000.
19.On that occasion it was made clear to [the parties’ son] that his father had one last chance to attend at the hearing or to progress the proceedings or the Court would consider making final orders by default and the nature and detail of that order was also made known to the respondent by Annexure A being included in the orders that were sent to the respondent’s [Property T] address.
20.When the application came before the Court on 17 May 2011 Mr Sara appeared as Counsel for the applicant and again there was no appearance by the respondent nor was there any application made to the Court for him to attend the hearing by telephone link.
Having recounted in careful detail the history of the proceedings, the Federal Magistrate then explained the reasons why she had decided the matter should proceed on an undefended basis:
21.It was the Court’s view on that day that the matter should proceed as an undefended hearing, taking into account the respondent’s failure to comply with a myriad of orders made by the Court, including but not limited to:
a)The order made by Federal Magistrate Slack on 24 August 2010 that the respondent file a Financial Statement;
b)That the respondent failed to attend at mentions or hearings of the applications, including his own applications on 24 August 2010, 11 February 2011, 1 April 2011, 18 April 2011, 10 May 2011 and 17 May 2011. This was despite the respondent being made aware of each and every mention or hearing date either by correspondence by the Court and/or orders of the Court adjourning the matter being sent to his home and/or the hearing dates being the return dates s of the respondent’s own Applications including his Application in a Case filed 16 November 2010 returnable on 11 February 2011 and his Application in a Case filed 11 April 2011 returnable on 18 April 2011;
c)His failure to comply with orders made by the Court on 24 August 2010 for the appointment of a Court Expert to value the matrimonial property of the parties in dispute and orders for disclosure;
d)His failure to comply with orders made by the Court on 11 February 2011 including order 4 that he provide to the solicitors for the applicant within 14 days -
(a)Details of all accounts held in the respondent’s name at any financial institution for the past twelve months including copies of statements for all such accounts for the past twelve months;
(b)Details of any purchase by the respondent, or on behalf of the respondent of any property.
(c)Details of disposal of property held by the respondent or in the respondent’s name, or by anyone else on behalf of the respondent in the past five years;
(d)All documentation relevant to establishing the value of inheritances received by the respondent from the Estate of his Mother, Father and Aunt, including documentation relating to the subsequent sale of the Aunt’s house;
(e)Details of all improvements made to the matrimonial or other properties by the Respondent and copies of receipts verifying the cost of same;
(f)Copy of any Loan Agreement, or evidence of an alleged debt of $40,000.00 payable by the Applicant to the Respondent;
(g)Details of the sale, transfer or disposal of the following, including receipts for payment,:-
(i) Mazda Bravo;
(ii) Holden Commodore; and
(iii) BMW motorcycle.
e)His failure to comply with Order 5 of those orders that he allow a representative of [Valuer Agent X] to attend at the former matrimonial home upon them giving him 24 hours notice by telephone for the purpose of inspecting and valuing the matrimonial property;
f)His failure to allow a representative from [Valuer Agent Y] to attend at the former matrimonial home on giving 24 hours notice by telephone for the purpose of preparing a valuation of all chattels, machinery, household goods and other belongings capable of valuation. It is noted that the orders for valuations to be prepared provided that at first instance the applicant be responsible for the payment of the costs of those valuations and that the respondent’s share be paid later in the proceedings after a final property settlement distribution.
g)The respondent’s failure to comply with Order 9 of those orders that he provide disclosure with regard to his inheritance. It is noted in relation to that order that the applicant was given leave by that order to issue a subpoena to Neilson & Co Solicitors of Perth WA in relation to distributions made to the respondent of the estates of [Mr W, Ms G or Ms J].
h)The respondent has also failed to pay several costs orders made by the Court in these proceedings.
22.In relation to the attempts made by the solicitors to have valuers attend at the property for the purpose of valuation in accordance with the orders, the applicant’s solicitors attempts to obtain disclosure of documents from the respondent, their responses to requests by the respondent for disclosure by the applicant and the respondent’s refusal to engage in the process and to respond to correspondence and to comply with orders, I rely on the very detailed and helpful affidavit of Ms Gordon filed 12 April 2011 which sets out the relevant history in relation to those matters.
The Federal Magistrate then turned to the task of determining the wife’s application for final property orders. Her Honour qualified her decision to proceed to an undefended hearing by reading and taking into account the affidavits filed by the husband relevant to the determination of property entitlements. Her Honour explained where there were inconsistencies in the evidence or a dispute, she would first prefer independent evidence produced by subpoenas, and then the evidence of the wife. Her Honour said:
23.Although the Court made the decision to hear the matter on an undefended basis, I have taken into account affidavits filed on behalf of the respondent that go to matters relevant to the findings the Court must make in relation to s.79(4) and s.75(2). The Court has also taken into account the affidavit of the respondent filed 18 August 2010 and the financial questionnaire filed 18 August 2010 in deciding the property pool and the value of that pool, although where there is an inconsistency in the evidence in that regard and to facts relevant to a findings in relation to s.79(4) and/or s.75(2) the Court has either preferred independent evidence such as subpoenaed evidence from Neilson & Co Solicitors or bank statements that are available to the Court to the evidence of the respondent and the applicant and where there is no corroborative evidence and there is a dispute in the facts the Court has preferred the evidence of the applicant.
Background facts
24.The applicant in this matter was born [in] 1953, she is now 58 and the respondent was born [in] 1944, he is now 67.
25.Although it is not in dispute that the parties married on [in] April 1983 the date they commenced their relationship does seem to be in dispute, in the applicant’s own Initiating Application filed 4 May 2010 she says that they commenced their relationship in 1974. In her affidavit filed 4 May 2010 however she says at paragraph 2 “The respondent and I commenced our relationship in 1972” and then in paragraph 3 “In 1980, prior to our marriage, when the respondent and I were not cohabitating but were spending significant time together …”.
26.The respondent on the other hand, in his affidavit filed 18 August 2010 at paragraph 9 says that he met the applicant in 1973 and then in paragraph 10 he says “We were in Perth then (not referring to when “then” is) and I was supporting [the wife]. In 1980 she won $100,000 in a lottery after which she left me and returned to Queensland” and in paragraph 11 he refers to the parties having purchased a house in Perth jointly in 1981. It seems therefore that even on the respondent’s case the parties resided together prior to their marriage but the commencement of the relationship is unclear.
27.Similarly there seems to be a dispute on the evidence as to the date of separation. The applicant, in her Initiating Application refers to the date of separation as […] December 2006 whereas the respondent in an Application for Dissolution of Marriage records the date of separation as at May 2002. The applicant is a Response to the Application for Dissolution of Marriage said that the date of separation was 31 December 2006 and that they resided separately under the one roof from that date.
28.There is one adult child of the relationship […] referred to earlier and sadly the parties’ other child was killed as an infant.
29.The respondent resides in the former matrimonial home [Property T] and as mentioned earlier has refused to allow valuers to attend at the property for the purpose of valuing the property and the chattels and other equipment at the property.
30.The Financial Statement of the respondent filed 14 September 2010 states that his income from Government benefits is $350 per week. The applicant’s amended Financial Statement filed 10 December 2010 discloses income from wages at the time of $672.26, interest from bank accounts of $51.57, making a total of $723.83.
Principles in the application
31.Pursuant to s.79 of the Act, the Court has the power to “alter the interests of the parties” in the property of the parties or either of them.
32.I must be satisfied that any orders that I make are just and equitable pursuant to s.79(2) of the Act. In achieving just and equitable orders, I must take into account matters specified in s.79(4) and the general principles referred to in s.43 and s.81 insofar as they are applicable.
33.In determining the applications of the parties, I intend to proceed according to a well established approach (that was restated in Hickey & Hickey (2003) FLC 93-143 [and subject to considerations with respect to superannuation, this approach seemed to be endorsed in Coghlan & Coghlan (2005) FLC 93-220]):
34. The approach involves four inter-related steps:
a)First, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.
b)The Court should evaluate the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.
c)Third, the Court should identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g) (the other factors) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at Step 2.
d)Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
35.The applicant in this matter has included her superannuation entitlement in the pool with the parties’ other assets. Given that the applicant now seems to be entitled to receive her superannuation it is appropriate in my view for her to do so.
Property pool – discussion and conclusions
36.For the reasons I will give, I intend to take into account the following property, superannuation and liabilities.
Assets
Value
1)
[Property T]
$410,000.00
2)
Commonwealth Bank Award Saver Account
$1,949.46
3)
Wide Bay Australia Account [1]
$6,739.50
4)
Wide Bay Australia Account [2]
$1,052.76
5)
ANZ Visa Account
$5,293.49
6)
ANZ Term Deposit
$45,000.00
7)
Honda […] motor vehicle
$7,950.00
8)
[H] Superannuation
$21,347.57
9)
Tools in Respondent’s possession
$3,000.00
10)
Wide Bay Savings Account
$571.00
11)
Yamaha [motor vehicle] 1994
$2,000.00
12)
Yamaha [motor vehicle] 1985
$1,500.00
13)
Toyota [motor vehicle] 1990
$100.00
14)
Backhoe
$1,500.00
15)
Property proceeds from [Property B]
$400,000.00
Sub Total
$908,003.78
Liabilities
16)
Applicant’s legal expenses
$15,420.50
Net Property Pool
$892,583.28
[Property T]
37.Although there is no valuation of the property, the applicant has placed a value on it of $410,000 however her orders provide for the sale of the property and for the sale proceeds to be divided to effect an overall division of the parties’ property equally.
Other Assets
38.The amounts that have been included in the Asset Table above numbered 2, 3, 4, 5 and 6 are bank accounts of the applicant and the balance of those accounts have been disclosed in the applicant’s material which the respondent has not tested and therefore the Court accepts her account as an accurate reflection of the applicant’s interests in those accounts. Similarly in relation to the applicant’s superannuation fund details, the balance of that fund has been provided by the applicant and accepted by the Court, as has the value of the applicant’s motor vehicle.
39.The figures included for the respondent’s Wide Bay savings account comes from the respondent’s own Financial Statement filed 14 September 2010, Item 37 in Part I and the tools at $3,000 also comes from Item 43, the 1985 Yamaha [motor vehicle] at $1,500 from Item 40, the 1994 Yamaha [motor vehicle] also from Item 40 at Part I at $2,000.
40.In relation to the Toyota [motor vehicle] at $100 and the backhoe at $1,500, I rely on paragraph 75 of Ms Gordon’s affidavit filed 12 April 2011 which refers to correspondence provided by the respondent to her on 20 September 2010 that states “I have no savings greater than one week’s worth of household expenses. The two Holdens are not. There is one Toyota [motor vehicle], which re-badged is the same as a Holden [motor vehicle]. As declared this is worth $100. The front end loader is not. There is an old backhoe, about 20 years old, and not been running for the last 8 years, which needs major repairs including two transmissions and hydraulics which is worth about $12,000 if and when it might be in good running order. To get it in to good running order would cost some $8,000 in parts and an estimated $2,500 in labour”. Based on that information from the respondent, the solicitors, correctly in my view, placed a value on the backhoe of $1,500.
Sale Proceeds from [Property T]
41.It is the applicant’s case in relation to this property that [in] March 2002, the respondent’s aunt [Ms J] died leaving a will dated [October] 1992. I accept that this is the case as annexed to Ms Gordon’s affidavit of 12 April 2011, Annexure M is a copy of the Will. I further accept, having perused that Will, that it provides that in the event Ms [M’s] respondent [sic] predeceased her, the respondent in these proceedings would receive 80% of her estate. The uncontested evidence before the Court is that Ms [M’s] respondent [sic] did predecease her and that the respondent therefore became entitled to 80% of the estate.
42.In relation to the respondent’s evidence regarding his inheritance, he states at paragraph 22 of his affidavit filed 18 August 2010 which is before the Court that he received an inheritance from his aunt’s estate in the amount of $220,000 in 2002. It is also clear from the documents attached to Ms Gordon’s affidavit and from the subpoenaed documents that were tendered to the Court, being the file from Neilson & Company Solicitors that part of the estate received by the respondent included a [Property B]. A copy of the duplicate Certificate of Title for that property which issued on 4 July 2002 and is attached to Ms Gordon’s affidavit marked “O” shows that the respondent was the owner of the property in a 4/5th share.
43.The respondent in his affidavit at paragraph 23 also says “Most of what I received from the estate has been expended in living costs and developing our currently owned property.”
44.What does not seem to be disclosed by the respondent however, but is clear from Annexure “Q” to Ms Gordon’s affidavit is that [Property B] sold [in] January 2006 for $500,000. Given that the respondent was entitled to 4/5th of that property, the applicant’s solicitors have estimated that the amount received by the respondent at the time of the sale of the property was $400,000.
45.As mentioned earlier, the respondent in his material, referred to earlier, and [the parties’ son] in his affidavit filed 15 November 2010 to support an application that he be given leave to intervene, refers to the monies that the respondent retained from the sale of the property in Perth being used for living costs.
46.The affidavit of Ms Gordon also discloses that the respondent has been asked on a number of occasions to provide evidence of the improvements made to the former matrimonial home by way of receipts or descriptions of work undergone but no documentation or response has been provided.
47.The respondent, in his affidavit, also refers to having received inheritances from his mother and father, and again despite requests for details of same, other than referring in paragraph 22 of his affidavit to receiving $60,000 in 2001, no documentation has been provided.
48.In relation to the expenditure of $460,000, I refer to paragraph 15 of his affidavit where he says “I certainly have spent none of it on frivolous items and none is left. I have again cleared much of the land with my own labour and with [the parties’ son] completely refurbished the watering system, bought a lot of materials, built large sheds and done all sorts of other works to add to the utility and value of the place”.
49.Given that it is clear, from the documents referred to, that the respondent would have been entitled to $400,000 from the sale of [Property B] and from his own evidence he discloses that he received $60,000 in 2001 from other inheritances from family and that those monies were used on improvements to the former matrimonial home and living expenses, the onus is on the respondent to provide documentary evidence to support his expenditure. No documentation however has been provided by the respondent directed to the Court in affidavits. It is the applicant’s case, not contested by the respondent, that she has not received responses to requests in relation to these documents or that the respondent has provided any documents in relation to this issue.
50.In those circumstances, I am satisfied that it would be appropriate to add back the $400,000 at least which the respondent received from [Property B].
Contributions
51.In relation to the contributions made during the relationship, again it is difficult on reading the respondent’s material to understand the financial contributions made. The applicant explains in her affidavit that she received inheritances and how those monies were spent and that she contributed a lottery win of $100,000 to the relationship. The applicant argues that the parties made during their relationship an equal contribution to the maintenance, improvement and acquisition of matrimonial assets and although the respondent seems to quibble with this, in the absence of any corroborative evidence to support the respondent’s case and that he has chosen not to be involved in these proceedings to test the evidence of the applicant, I accept the evidence of the applicant in that regard.
Section 75(2) considerations
52.In relation to the future needs of the parties, as mentioned earlier, the applicant is now 58 and the respondent 67. Although the respondent stated in his Financial Statement filed in 2010 that he was in receipt of an income, documentation provided to the Court in other affidavits from the respondent in relation to procedural matters refers to a medical condition which prevented him from attending at Court and that he was not in employment. As mentioned earlier in relation to his earning capacity that he is 67 years of age, hence therefore neither the respondent nor the applicant has a greater earning capacity than the other and at least the applicant is reliant of Government assisted pension and respondent now may be reliant on a pension.
53.Neither the respondent nor the applicant have the care or responsibility of a child under the age of 18 years and it seems that the applicant is not supported by another person or supports any other person, nor does the respondent.
54.The applicant has an entitlement to superannuation but it is limited in the amount of $21,347.57 and she has no capacity to continue to contribute to any superannuation fund.
55.It seems therefore based on those facts and circumstances that there should not be any adjustment in favour of the respondent or the applicant, nor does the applicant seek any adjustment in her favour in relation to those factors relevant to s.75(2) of the Family Law Act.
Overall conclusion – just and equitable orders
56.If the Court were to make the orders proposed by the applicant there would be an adjustment on the sale of the former matrimonial home in the applicant’s favour so as to effect an equal distribution of the matrimonial property of the parties.
57.If the former matrimonial home was to sell for the $410,000 referred to in the pool, and it is difficult given that the respondent has not allowed a valuer to attend at the property to place a value on it with any certainty, an equal division of the assets of the parties (not including any orders made in the applicant’s favour for costs) would mean:
a) The applicant would retain:
i) the Commonwealth Bank Account $1,949
ii) her Wide Bay account [1], $6,739
iii) her Wide Bay account [2], $1,052
iv) her ANZ Visa account, $5,293
v) her ANZ term deposit, $45,000
vi) her Honda […] motor vehicle, $7,950
vii) her entitlement to her [H] superannuation, $21,347.
viii)her share of the sale proceeds of the former matrimonial home would be approximately $358,000
b) The respondent would retain:
i)The sale proceeds he received from the [Property B]
ii) His Wide Bay saving account, $571
iii) Tools, $3,000;
iv) 1994 Yamaha, $2,000;
v) 1985 Yamaha, $1,500;
vi) Toyota, $100;
vii) Backhoe $1,500;
viii)His share of the sale proceeds of the former matrimonial home approximately $39,027.
58.The cash entitlements in that situation of both the respondent and applicant will be similar. They will both have a motor vehicle, although it is acknowledged that the respondent’s motor vehicle is worth very little and it is likely they would both continue to be entitled to some form of pension.
59.In those circumstances I am satisfied that there needs to be no further adjustment made and that the orders would be just and equitable.
60.In relation to the applicant’s proposed order that the respondent be removed from the former matrimonial home, that he transfer his right, title and interest in the home to her and she be appointed trustee for the sale, I am satisfied that they are appropriate orders given the respondent’s complete failure to engage in the process or to comply with orders. I have no doubt that if the Court was to make an order that the respondent cooperate in the sale of the property he would not and that unfortunately the Court has to take the step requested by the applicant.
61.The applicant seeks orders that in the event the respondent not leave the home, he be arrested and imprisoned. I am not prepared to make that order at this time although if the respondent fails to comply with orders for the applicant to have sole use of the home or interferes in the sale of the home, as provided for in the orders, that may be an appropriate order to make in the future should the applicant bring an application to enforce the orders.
Finally, the Federal Magistrate considered the wife’s application for costs in relation to the proceedings:
Costs orders
62.I also note that the orders proposed by the applicant provide for the payment prior to the husband receiving his share of the sale proceeds of the house for various amounts for costs, including costs awarded by the Magistrates Court in relation to proceedings before that court on 11 January 2011, costs orders made by this Court on 11 February 2011 and 1 April 2011 and 9 May 2011. I am satisfied that all of those costs should be paid from the respondent’s share of property settlement.
63.I am also satisfied that the respondent should pay the applicant’s legal costs in the amount of $12,607.14. In that regard I refer to s.117(2) of the Family Law Act and have taken into account the following:
a)The applicant has been wholly successful in the applications before the Court;
b)The applicant has been put to significant expense in circumstances where the respondent has failed to comply with most if not all of the orders of the Court and not all of the applicant’s costs are recoverable from the costs orders the Court has made.
64.In relation to the quantum of the costs ($12,607.14) I am told that that is the difference between the applicant’s actual costs and the costs orders made against the respondent. Given the respondent’s complete failure to comply with orders this is an exceptional matter in my view where the Court should make what is in effect an indemnity costs order against the respondent.
Medical evidence before the Federal Magistrate
An inspection of the first instance file reveals the extent of the purported medical evidence which was put before the Court by the husband before the undefended hearing on 17 May 2011 which led to the making of the final property settlement orders. In a financial questionnaire form filed by the husband on 8 August 2010 the husband said this:
Other orders (s 79(4)(f) or s 90SM(4)(f) as applicable)
MY HEALTH IS NOT GOOD. I HAVE CONTINUOUS BACK AND NECK PAIN FROM OLD WORK RELATED INJURIES. I CANNOT WORK AS I USED TO AND CERTAINLY NOT FULL TIME.
As mentioned at paragraph 20 of these reasons, on 11 April 2011 the husband filed an application seeking a stay of orders until his application in an appeal for leave and an extension of time (which was refused) was determined. In the affidavit before the Federal Magistrate filed in support on 11 April 2011, the husband stated:
4.I now reiterate what was in the supporting affidavit to the above application [the application in an appeal for leave and an extension of time] and ask that this court now Vacate or order a Stay on all matters arising or emanating from the orders made on both the 11th of February 2011 and 2 April 2011 for the following reasons.
5.Said orders were made at a time when multiple medical certificates issued on various dates from both my treating general practitioner and my treating psychologist, being expert medical witnesses, were ignored by Her Honour and my application, duly before Her Honour seeking an adjournment until I might be able to proceed, was also ignored.
…
10.I now ask that Judicial Notice be taken of the fact that my appeal against the orders made on 11 February 2011 was submitted to the Registry on 29 March 2011 – before any orders purportedly made on 1 April 2011. I also ask that Judicial Notice be taken of the fact that it was quite improper that, in knowledge of the fact that my application for a Stay on any further orders was also submitted on 29 March as the relevant official registry receipt shows and also in knowledge of the relevant medical Evidence regarding my incapacity to attend court, whether or not by telephone, the Federal Magistrate ought not have made any orders on 1 April 2011.
No stay application was filed in the property proceedings on 29 March 2011. That application was clearly made on 11 April 2011, after the orders of 1 April 2011. Nor did the husband attach to that affidavit, any medical evidence.
The affidavit referred to, filed 1 April 2011 and sworn 24 March 2011, was only before May J in the application in an appeal, the appeal and first instance files being in different courts and entirely separated. In that affidavit the husband says:
6.I refer to and rely upon my affidavit sworn on 9 February 2011 and filed that day in the proceedings below by being handed to the Appeals Registrar and draw attention to the medical certificates attached thereto.
There was no affidavit filed by the husband in the property proceedings on
9 February 2011. There was an affidavit dated 9 February 2011, which appears only as an annexure to the later affidavit sworn on 16 May 2011, which was contained on the first instance file but not given a filing date.
The medical evidence contained in that affidavit of 9 February 2011 was advice given in early February 2011, approximately three months before the final hearing. A letter from a Dr K was provided, dated 4 February 2011:
[The husband] has an underlying illness being investigated and treated which may also preclude him from being able to contribute realistically in a court case even by telephone. See letter from [Mr M] psychologist as well. He has physical and mental impairment at present.
Another letter from Dr K, undated, stated:
In my opinion he/she will be unfit for his/her normal work from 21/2/2011 to 28/2/2011 inclusive…Recently in [Hospital G] Anaemia etc still being treated. Hence not fit enough to attend court.
A letter from a Mr M psychologist/counsellor, dated 3 February 2011 stated:
I have seen [the husband] on two occasions this year. On both occasions he has presented as a person who is particularly depressed and very emotional.
My findings suggest that he would not do himself justice to appear by phone or in person for the court hearing until his condition improves. I feel that it will take some time for the medication, with counselling, to allow him to face court.
Until [the husband] is of a better frame of mind, improved by medication, I suggest that his appearing in court be put on hold.
The onus was on the husband to put that evidence squarely before the Federal Magistrate before her Honour made orders providing for the matter to proceed undefended due to the husband’s failure to appear, but he failed to do so.
Returning to the affidavit of 1 April 2011, filed in the application in an appeal before May J and referred to in the affidavit of 11 April 2011 in the first instance proceedings, the husband continued:
7.Further to the several medical certificates properly before the court now appealed from, I annexe hereto and mark as “Annexure A” copies of two further medical or health certificates attesting to my inability to attend court, even by telephone as was made quite clear to the court below before it made orders against me, contrary to Natural Justice.
The husband attached two letters from medical practitioners. The first was from a Dr L dated 22 March 2011 who wrote:
I have met [the husband] for the first time this morning. I have perused his recent pathology results and medical history from his previous GP and psychologist.
It is clear to me he has significant health issues that remain undiagnosed and largely under-treated, the most significant being iron deficiency anaemia.
He also presents with depression and anxiety to the fore. These also seem under-treated.
I have commenced a fresh round of tests today and will be reviewing him later this week.
I share the view of his psychologist that in addition to his physical ill-health, his emotional state is extremely fragile. I believe he is genuine when he expresses his despair and lack of emotional resources with which to deal with court proceedings. In summary, I fully support his request to delay proceedings in order to make some real gains with his physical and emotional health.
The second letter was from Mr M psychologist/counsellor, dated
17 March 2011, who wrote:
I have seen [the husband] on five occasions this year. On these occasions he has presented as a person who is particularly depressed and very emotional.
…
Until [the husband] is of a better frame of mind, improved by medication, I suggest that his appearing in court should be put on hold until there is significant improvement in his mental state. At the present time his cognitive state is poor. [The husband] could not be held responsible for his accurate responses to any questions given to him.The husband’s application for leave and an extension of time to appeal related only to orders made on 11 February 2011. Insofar as the medical evidence related to the husband’s capacity to appear at the hearing in relation to those orders, the evidence from Dr L was therefore irrelevant. Insofar as the evidence was relevant to the ongoing proceedings before the Federal Magistrate, that evidence was not before her Honour and “judicial notice” of that evidence cannot be attributed.
After the final hearing but before the reasons for judgment were delivered, on 23 June 2011 the husband filed an affidavit in the property proceedings. The husband stated:
1.This affidavit is concurrent with an Application in a case filed to consolidate these proceedings after rectifying the fact that the previous three court dates have denied me Procedural Fairness in that I was medically unable to participate in those proceedings and expert medical evidence to that fact was (or should have been) before this Honourable Court. It also appears that some of my material was not put before the court in a timely way because of delays in internal court administration.
No application was filed concurrently with that affidavit and no detail of the “delays in internal court administration” was provided.
As is clear from the Federal Magistrate’s final reasons for judgment,
her Honour did read and take into account the material that the husband had filed in relation to the substantive property issues between the parties. The only material of the husband which went to those issues was his Response and a Financial Questionnaire filed 18 July 2010, an affidavit filed 18 August 2010, and a Financial Statement filed 14 September 2010. The husband had otherwise repeatedly failed to comply with specific orders about disclosure and provision of financial information which would have assisted in understanding his position.
There was an onus on the husband to respond to the wife’s case, or to properly seek, with justifying evidence, an adjournment of the proceedings. He did neither of those things, and the Federal Magistrate afforded him extra time as far as was reasonably possible without undue prejudice to the wife resulting.
Conclusion
Having carefully considered all of the material before the Federal Magistrate and her Honour’s reasons for judgment, we are satisfied that there is no merit in the husband’s appeals.
We are mindful that the husband was, and remains, a litigant in person and that a principal argument in these proceedings is the denial of natural justice to him in being without legal representation. It cannot be said however, that the Federal Magistrate erred in this respect in her dealing with the case.
There is no doubt that it is generally a disadvantage to appear in any court without a lawyer. However, it is not necessarily the case that such a litigant will receive less than that to which they are entitled. Nor should the litigant in person be accorded advantages over other litigants, including one who must meet the costs of lawyers from their own resources.
In this case, it can be seen from the proper attempts of the Federal Magistrate that every effort was made to allow the husband to put his case and to be heard. There was no further step the Federal Magistrate could have taken.
In addition, the Federal Magistrate was obliged to consider the other party to ensure that there was no injustice to her.
In considering the husband’s complaints, we are mindful of the observations made by a previous Full Court in Re F: Litigants in person guidelines (2001) FLC 93-072, especially the observations commencing at paragraph 231, and in Farmer & Rogers [2010] FamCAFC 253 at paragraphs 193 to 196 in relation to case management.
Having determined to grant the wife’s application for dismissal of the husband’s appeals, it is unnecessary to consider the husband’s remaining application in relation to subpoenas. The husband’s applications in an appeal are therefore dismissed, the wife’s application is granted, and the husband’s appeals are dismissed.
Costs
Ordinarily, parties to proceedings in this Court shall bear their own costs by reason of the provisions of s 117 of the Act. We are satisfied, however, that circumstances referred to in subsection 117(2A) exist in this case and justify the making of an order for costs against the husband. We consider the factors listed in (c) the conduct of the parties (the husband), (d) the proceedings being necessitated by the failure of one party (the husband) to comply with orders, and (e) one party (the husband) being entirely unsuccessful in the proceedings are particularly relevant.
The application and the appeals brought by the husband are entirely unmeritorious, the husband has been entirely unsuccessful. Furthermore the husband failed to satisfactorily participate in and prosecute these appeal proceedings initiated by him, causing significant emotional and economic cost to the wife, including the necessity to bring an application to dismiss the appeals pursuant to the Rules.
We consider the appropriate order to make in these circumstances is that the husband pay the wife’s costs of and incidental to the applications in the appeal, to be assessed. It will also be ordered that those costs be deducted from the husband’s share of the sale proceeds of the former matrimonial home.
Thackray J
I have read in draft the reasons of May and Strickland JJ. I agree with the reasons they have given and the orders they propose to make.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Strickland JJ) delivered on 21 December 2012.
Associate:
Date: 21 December 2012
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