FAMILY LAW – APPEAL – PROPERTY – Where the Magistrate heard the wife’s application for final property orders in the absence of the husband – Where the husband had not received the wife’s minute of final orders sought – Where there was difficulty in identifying and valuing the net property of the parties due to incomplete disclosure by the husband – Where the husband had filed trial affidavits – Where there was evidence of possible confusion as to what the Court had communicated to the husband in relation to the conduct of the hearing – Where based on the further evidence and medical evidence, in order to do justice between the parties the appeal should be allowed and the matter reheard – Where there were some significant matters raised by the husband in relation to the asset pool, which if correct, would likely render the result erroneous – Where there was merit in the husband’s complaints about the Magistrate’s consideration of s 75(2) factors – Appeal allowed. FAMILY LAW – APPEAL – EVIDENCE – Application to adduce further evidence – Where the further medical evidence of the appellant husband does not entirely explain the husband’s absence at the hearing – Where the evidence nonetheless explains the medical circumstances of the husband prior to and after the hearing – Where it would be inconsistent with the interests of justice to refuse the application because it would leave unexplained the husband’s failure to participate where there is a relevant context – applications of the husband and the wife allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal was necessitated by the husband’s absence at the trial hearing – Where the wife should not be put to the expense of the appeal and the husband’s financial circumstances would not prevent a costs orders being justified – Husband to pay the wife’s costs of the appeal on an indemnity basis.

Leslighter & Fitzgerald-Stevens [2012] FamCAFC 94 (2 July 2012)

Last Updated: 6 July 2012

FAMILY COURT OF AUSTRALIA

LESLIGHTER & FITZGERALD-STEVENS

[2012] FamCAFC 94

FAMILY LAW – APPEAL – PROPERTY – Where the Magistrate heard the wife’s application for final property orders in the absence of the husband – Where the husband had not received the wife’s minute of final orders sought – Where there was difficulty in identifying and valuing the net property of the parties due to incomplete disclosure by the husband – Where the husband had filed trial affidavits – Where there was evidence of possible confusion as to what the Court had communicated to the husband in relation to the conduct of the hearing – Where based on the further evidence and medical evidence, in order to do justice between the parties the appeal should be allowed and the matter reheard – Where there were some significant matters raised by the husband in relation to the asset pool, which if correct, would likely render the result erroneous – Where there was merit in the husband’s complaints about the Magistrate’s consideration of s 75(2) factors – Appeal allowed. FAMILY LAW – APPEAL – EVIDENCE – Application to adduce further evidence – Where the further medical evidence of the appellant husband does not entirely explain the husband’s absence at the hearing – Where the evidence nonetheless explains the medical circumstances of the husband prior to and after the hearing – Where it would be inconsistent with the interests of justice to refuse the application because it would leave unexplained the husband’s failure to participate where there is a relevant context – applications of the husband and the wife allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal was necessitated by the husband’s absence at the trial hearing – Where the wife should not be put to the expense of the appeal and the husband’s financial circumstances would not prevent a costs orders being justified – Husband to pay the wife’s costs of the appeal on an indemnity basis.

Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) Family Law Rules 2004 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Baldachino & Hanas [2010] FamCA 234 CDJ v VAJ (1998) 197 CLR 172 Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 In the Marriage of Robinson and Huff [1990] FamCA 62; (1990) FLC 92-168 De Winter v Johnstone & Anor S119/1995 [1996] HCA Trans 155 (15 April 1996) Fitzgerald (as child representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123 Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener)[2003] FamCA 395; (2003) FLC 93-143 House v The King [1936] HCA 40; (1936) 55 CLR 499 NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109 FCR 77 Norbis v Norbis [1986] HCA 17; (1986) FLC 91-712 Stephens v Stephens and Anor [2010] FamCAFC 172; (2010) 44 Fam LR 117 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 In the Marriage of Wilkes (1981) FLC 91-060 Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029

APPELLANT:

Mr Leslighter

RESPONDENT:

Ms Fitzgerald-Stevens

FILE NUMBER:

PTW

5767

of

2008

APPEAL NUMBER:

WA

15

of

2011

DATE DELIVERED:	2 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, May & Strickland JJ

HEARING DATE:

17 November 2011

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

15 April 2011

LOWER COURT MNC:

[2011] FCWAM 28

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Stewart

SOLICITOR FOR THE APPELLANT:

Irene E Pickel Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hanly

SOLICITOR FOR THE RESPONDENT:

Hotchkin Hanly Lawyers

ORDERS

(1) The appeal is allowed.
(2) The application of the appellant husband filed 2 November 2011 is allowed.
(3) Paragraphs 1(b) and 3 of the orders made on 19 April 2011 by Family Law Magistrate Moroni be set aside.
(4) The appellant husband pay the respondent wife’s costs of the appeal on an indemnity basis to be agreed or assessed.
(5) The applications of the husband and the wife for property settlement be remitted for rehearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leslighter & Fitzgerald-Stevens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 15 of 2011
File Number: PTW 5767 of 2008

Mr Leslighter

Appellant

And

Ms Fitzgerald-Stevens

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 17 May 2011 the husband filed a notice of appeal from final property orders made by Family Law Magistrate Moroni on 19 April 2011. Those orders provided:
   1. Within the next 42 days:-
      • (a) the Respondent [husband] transfer to the Applicant [wife], all his right, title and interest in the property situated at [P...] and
      • (b) the Respondent pay to the Applicant the sum of $781,134.
2. Upon compliance with the provisions of paragraph 1 of these orders, the Applicant withdraw at her cost any caveat she has lodged pursuant to the provisions of paragraph 1 of the orders of the Court made 16 February 2011.
3. Within the next 42 days, the Respondent do all things necessary as may be required to transfer to the Applicant such number of Qantas Frequent Flyer points as may be necessary to equalise the balances of each of the parties respectively as at 14 February 2011.
4. Otherwise:-

(a) all the right, title and interest (if any) of the Applicant in any property and superannuation entitlement of the Respondent vest absolutely in the Respondent; and

(b) all the right, title and interest (if any) of the Respondent in any property and superannuation entitlement of the Applicant vest absolutely in the Applicant.

5. Both parties’ costs of the proceedings be reserved, with liberty to both parties to apply to relist in respect thereof.
6. The said proceedings otherwise be and are hereby dismissed.

(original emphasis)

2. The essence of this appeal was described in the first paragraph of the written submissions filed on behalf of the appellant husband:

The appeal concerns the decision of Magistrate Moroni to proceed with the hearing of a section 79 application in the absence of the respondent husband, which resulted in an injustice. It concerns errors of fact and law that were made by Magistrate Moroni as a consequence of the hearing proceeding in the circumstances. An adjustment was made that fell outside the range on the evidence available to the court and further as a result of not having evidence of all the relevant material.

3. On 14 November 2011 the husband filed an application in an appeal and an accompanying affidavit from his solicitor, seeking leave to file an amended notice of appeal. Leave was granted at the hearing of the appeal.
4. The grounds of appeal as articulated in the amended notice of appeal complain:
   1. That the learned Magistrate erred in not adjourning the hearing.
   2. That the construction of the asset pool was flawed.
   3. That the court’s findings on contributions were wrong.
   4. That the court failed to take into account relevant s 75(2) matters.
   5. That the orders as pronounced were not just and equitable.
5. In that amended Notice of Appeal the husband asks that all of the orders made be set aside and the matter remitted for rehearing before the Family Court of Western Australia. The husband also sought that the wife pay his costs of and incidental to the appeal. However, in the husband’s written submissions the husband only sought that paragraphs 1(b) and 3 of the orders made by the Magistrate be set aside. He still sought that there be an order for costs.

REASONS FOR JUDGMENT OF THE MAGISTRATE

6. In the proceedings before his Honour, the Magistrate dealt with the wife’s application for final property settlement orders in the absence of the husband.
7. At the commencement of his Honour’s reasons the Magistrate provided a short summary of the parties’ relationship.
8. The wife was born in 1953 and the husband in 1936. The wife is employed full time in the public service. The husband is a retired public official.
9. The parties met in 1996 and commenced cohabitation in 1997. They were married in 2001 and separated in 2008. There are no children of the marriage.
10. The orders sought by the wife were outlined in the Minute of Proposed Orders provided to the Court on 14 February 2011. We regard it as of some significance that the husband was not provided with this document. The wife sought orders that:
    1. The Husband transfer to the Wife all of his right, title and interest in the property [situated at P...]
    2. The Husband pay to the Wife such further amount as the Court may determine to adjust the respective entitlements to the parties as to 70% to the Wife and 30% to the Husband.
    3. Except as otherwise provided in these orders, the sole legal and beneficial ownership of all items of property including but not limited to money at bank or in another financial institution or cash, motor vehicles, insurance policies, equities, superannuation entitlements and personal effects vest absolutely in the party currently in the possession or control of that property.
    4. Except as otherwise provided in these orders, the Wife and the Husband shall each be solely responsible for any and all liabilities presently in the name of each of them respectively and indemnify the other party and keep that party indemnified in relation to such liabilities.
11. It was explained by the Magistrate in the reasons that the husband did not file any minute outlining the final orders as sought by him. It was noted however that the husband, in Part C of his Form 1A response to the wife’s application, proposed that such a minute would be filed within 21 days of the wife providing same. As we discuss later in these reasons, the wife did not provide her Minute of Order until the hearing before the Magistrate, and significantly it was not served on the husband.
12. The Magistrate outlined the history of the proceedings. As the husband contends that his Honour erred in not adjourning the final hearing (despite no formal application from the husband), it is useful to describe the history, as accurately recorded by the Magistrate at the outset. The wife was the applicant and the husband the respondent. The Magistrate recorded:
    15. The Applicant commenced proceedings in the Family Court of Western Australia by filing on 20 November 2008 her Form 1 application seeking unspecified orders by way of property settlement.
    16. The proceedings progressed in the usual way to a conciliation conference listed to take place on 16 March 2009. On that occasion, both parties attended the Court and both were legally represented. It would appear that the conference did not formally convene given that the respective positions of the parties at that time were polarised. The Registrar programmed the proceedings to the pre-trial conference stage and made standard orders for the filing of trial material prior to the pre-trial conference.
    17. A pre-trial conference was listed to take place on 14 July 2010. However, neither party filed any trial material prior to that date. Neither of the parties attended the Court on this date, however both were represented by counsel. The Registrar extended the time allowed to the parties to file their trial material and made other procedural orders.
    18. On 8 September 2010, the Applicant filed her trial affidavit and her updated Form 13 financial statement and the Respondent filed his trial affidavit and his updated Form 13 financial statement.
    19. A second pre-trial conference was listed to take place on 17 September 2010. On this occasion, neither party attended the Court, however both parties were represented by counsel. The Registrar then programmed the proceedings to trial and made a number of standard procedural orders.
    20. On 6 October 2010, the Respondent filed a Form 2 application with supporting affidavit seeking urgent orders for the lifting of a caveat lodged by the Applicant against the title to a certain rural property situated at [M (“the M property”)]. That application was listed for hearing before a Magistrate on 22 October 2010.
    21. On 19 October 2010, the Applicant filed her Form 2A response in reply, with supporting affidavit.
    22. On 22 October 2010 a Magistrate made orders by consent which had the effect of permitting the sale of the [M] property and protecting the net proceeds of sale thereof. Both parties were legally represented at this hearing.
    23. On 10 November 2010, the Respondent’s former solicitors, namely, O’Sullivan Davies, filed a notice of ceasing to act.
    24. On 24 November 2010, the Applicant filed a Form 2 application with supporting affidavit in which she alleged that the Respondent had not complied with certain of the orders made by consent on 22 October 2010. Such application was listed as a matter of urgency before a Magistrate on 24 November 2010, and His Honour made certain orders ex parte against the Respondent. The proceedings were then adjourned for further hearing before the Magistrate on 9 December 2010.
    25. At around this time, the substantive proceedings were included in a callover of defended matters and were listed for trial commencing not before 10.00am on Monday 14 February 2011. Unfortunately, there is no record on the Court file to indicate the date of the callover at which the substantive proceedings were listed for trial and there is no copy letter to the parties confirming the trial date which can be found on the Court file. However, it is the Court’s understanding that the Applicant was represented at the callover and that the Respondent attended in person.
    26. In any event, the Respondent forwarded to the Court a letter dated 30 November 2010, advising that he had relocated to [B in] New South Wales and was taking medication for stress and depression. The Respondent advised further that he doubted he could attend the trial in February and he provided a post office box address in [B]. So, obviously, by 30 November 2010 the Respondent was aware of the trial date. In the same letter, the Respondent refers to sending an earlier letter to the Court bearing the date 17 November 2010. However, there is no original letter of that date from the Respondent to be found on the Court file.
    27. The Respondent’s letter of 30 November 2010 was referred to a Registrar who then wrote to the Respondent by letter dated 2 December 2010 at his nominated post office box address, in the following terms:-

Your letter dated 30 November 2010 has been referred to me.

The case management guidelines of the Court require that all correspondence to the Court must be copied to the other party to the proceedings and the letter must show that it has been copied. It is not proper to have communication with the Court about which the other party is unaware.

I therefore return all three copies of your letter that were faxed to the Court. In addition, it is not possible to simply vacate any trial or hearing dates on the request of one party. If you wish to vacate a hearing date, that can be done by consent with the other party or by filing an application and an affidavit in support setting out the reasons why you are seeking to vacate that hearing date.

28. Next, on 7 December 2010, the Respondent filed a notice of address for service containing his post office box address in [B]. That notice was forwarded to the Court by solicitors in [B], namely, Glenn Lawyers.
29. On 9 December 2010, the Applicant’s Form 2 application filed 24 November 2010 came back for hearing before the Magistrate. The day before the hearing, the Applicant’s solicitors faxed to the Court various affidavit material in support of the application. Unfortunately, it is not entirely clear from the record of proceedings of the hearing conducted on this day whether the Respondent was represented. It does appear that the Respondent may have been represented by a female legal practitioner, but unfortunately, there is no name for the practitioner recorded on the record of proceedings. In any event, the Presiding Magistrate made some interim injunctions against the Respondent and otherwise adjourned the proceedings for further hearing on 15 December 2010.
30. There was a change made administratively to the listing of the Applicant’s Form 2 application filed 24 November 2010 resulting in the application coming on for hearing before the Magistrate on 20 December 2010.
31. On 16 December 2010, Glenn Lawyers faxed to the Court a significant volume of affidavit material to be relied upon by the Respondent at the hearing listed for 20 December 2010.
32. Then, on 20 December 2010, a firm of Perth solicitors acting as agents for Glenn Lawyers, faxed to the Court some further material to be relied upon at the hearing listed for that day.
33. The Magistrate duly proceeded to hear from the parties on 20 December 2010. The Applicant was represented by counsel. The Respondent was represented by counsel instructed by Glenn Lawyers. His Honour reserved judgment until 24 December 2010.
34. Then, on 24 December 2010, the Magistrate made orders permitting the Respondent to settle the purchase of the property in [B] and made other ancillary orders. Again, both parties were represented by counsel. A transcript of His Honour’s reasons for decision delivered orally that day appears on the Court file.
35. Next, by letter dated 28 January 2011, the firm of Perth solicitors acting as agents for Glenn Lawyers wrote to the Court enclosing a minute of consent orders directed towards the variation of one of the orders made by the Magistrate on 24 November 2010. That minute was signed by the Applicant’s solicitor on 28 January 2011. It appears to be signed by the Respondent himself, however the date of his signature does not appear on the minute.
36. The next event to occur was the filing by the Applicant on 4 February 2011 of some ten or so subpoenas. Those subpoenas were listed for return to 11 February 2011, being the working day immediately preceding the first day of trial.
37. On 10 February 2011, the Applicant filed her updated Form 13 financial statement.
38. By letter dated 10 February 2011, the Applicant’s solicitors provided to the Court copies of letters from the Respondent dated 17 November 2010 and 30 November 2010 (the second of those letters being the one already referred to above) together with a copy medical certificate from Dr [C], a general practitioner from [B]. The medical certificate bears the date 6 December 2010 and it provides as follows:-

This is to certify that I have attended Mr [Leslighter].

He is suffering from a Generalised Anxiety Disorder and is Medically unfit to attend Court in Perth.

I expect that it would be at least 1 month before he would be fit to travel and attend court.

39. A search of the Court file reveals that there is no original of the correspondence dated 17 November 2010 and no original of this medical certificate to be found therein.
40. On 11 February 2011, the Court received faxes from both the Respondent and from [Ms W]. The fax from the latter advised the Court that she would not be attending the Court on 14 February 2011 in response to the subpoena recently served upon her. The fax from the Respondent contained a copy of his letter to the Court dated 30 November 2010, but otherwise contained no advice or request.
41. The substantive proceedings were then before the Court on 14 February 2011, as scheduled. The Applicant attended and was legally represented and expressed a wish to proceed that day. There was no appearance by the Respondent nor on his behalf, nor was any correspondence received from him on the day. There was only a brief attendance at Court on that day, as the trial listed immediately prior to this one was continuing. The Court then made some procedural orders and adjourned the proceedings for hearing the following day.
13. The Magistrate then explained his reasons for proceeding with the wife’s application in the absence of the husband:
    42. The Court is bound to say that it was most surprised by the Respondent’s non-involvement in the trial, given the size of the asset pool and given his very recent involvement, with legal representation, in the interlocutory proceedings conducted in November and December 2010.
        43. Given the size of the asset pool and the factual complexity generally, the Court was a little reluctant to proceed with the hearing on 15 February 2011 in the absence of the Respondent. However, the Applicant was, understandably enough, anxious to proceed to complete the proceedings. The case has been on foot since November 2008, and there was no guarantee that to delay the trial by several more months would necessarily result in the Respondent’s participation in the proceedings.
        44. The Respondent has never made an application to the Court in proper form to adjourn the trial. The letter dated 2 December 2010 sent to the Respondent by the Registrar is very clear in its terms. That is to say, it was made clear to the Respondent that if he sought to adjourn the trial, then he would need to file a Form 2 application with supporting affidavit. No such application was ever filed.
        45. The only medical information provided by the Respondent in connection with the listing of the trial was the very brief medical certificate from [Dr C]. That certificate, even if taken at full face value, extends for only one month from the date of issue. Thus, there was no medical information before the Court to establish any unfitness in the Respondent for trial as at 14 February 2011.
        46. In the result, it appeared to the Court that there was simply no basis for it not to proceed to complete the substantive proceedings and so the hearing went ahead. There was no contact from the Respondent received at the Court on either 15 or 16 February 2011. However, on 21 February 2011 the Respondent sent a fax to the Court asking for information regarding the state of the proceedings. The Listing Co-ordinator of the Court wrote to the Respondent by letter (unfortunately undated) confirming that the hearing had been completed and enclosing a copy of the order dated 16 February 2011. It might be mentioned that the Listing Co-ordinator’s letter was slightly erroneous in the sense that it advises that the trial commenced on 16 February 2011. In fact, the case was called on briefly on 14 February 2011 and was heard over 15 and 16 February 2011.

(emphasis added)

14. After explaining why the hearing took place and final orders were made in the absence of the husband, the Magistrate also referred to and applied the four step process applicable to property settlement decisions. We will summarise the findings of the Magistrate under applicable headings.
15. An appreciation of this part of the reasons would not be necessary if we were of the clear view that the Magistrate should not have heard the application in the absence of the husband. In any event the husband argued that there were errors in the reasons of the Magistrate such that it is necessary for us to deal with those claims.

Step 1 - Determination of the asset pool

16. It was explained by the Magistrate at paragraph 48 that identifying and valuing the net property of the parties was difficult given the “significant gaps in the evidence of the [husband] and because of his non-participation in the trial”. The husband had however, filed trial affidavits, which were read by the Magistrate.
17. The Magistrate explained that both parties held property in their own right and that the husband also controlled at least two separate entities, L Trust and L Company, each of which held property of significant value. Further it was understood that the husband also had interests in other companies, the value of which, if any, had been difficult to ascertain.
18. As a result of the husband’s failure to make full and frank disclosure of his financial position in the proceedings, the wife issued a large number of subpoenas to third parties, including the husband’s bank and accountants. The subpoenaed materials were returnable a few days before the trial. It was explained by the Magistrate at paragraph 53 that only after the large quantity of material had been examined was the wife able to “construct her case in some sensible fashion”.
19. The Magistrate said:
    62. In the result, the Court has been left to trawl through the various updated documents which the Applicant was only to obtain under subpoena in order to make some reasonable assessment regarding the extent of all of the wealth likely to be under the control of the Respondent. What ought to have happened is that the Respondent provided to the Court and to the Applicant very detailed updated evidence demonstrating precisely, or as close thereto as reasonably practicable, the value at trial of all of his own property and of all of the property owned by the entities under his control.
        63. In the absence of such evidence from the Respondent, the Court must of necessity take a robust view of the evidence and so the compilation of the relevant asset pool is unfortunately going to be something of an imprecise exercise. In the circumstances, where there is an element of doubt regarding the inclusion in the pool of a particular item attaching to the Respondent, the Court is inclined to give to the Applicant the benefit of such doubt.
        64. It was open to the Respondent to put his case clearly and unequivocally to the Court and to present clear evidence supported by relevant documents establishing precisely the value of his shareholding in [L Company], the value of his interest in the family trust and the value of his interests in any other entities under his control. He did not do so and so it seems to the Court that it might now be difficult for him to complain justifiably in the event that the Court errs in favour of the Applicant when it constructs the relevant asset pool.
20. After providing reasons for including, excluding and/or notionally adding back property into the property pool, the Magistrate set out the following table of the assets and superannuation entitlements of the parties:

Item	$
Respondent’s interest in [property at B] (total purchase cost)	1,405,877
Parties’ joint interest in [property at P]	930,000
Payment to family trust for interest in [partnership M]	400,000
Applicant’s CBA Term Deposit	300,000
Patersons share portfolio in name of [L Company]	221,100
Loan by Applicant to her daughter	100,000
Deposit paid by Respondent to purchase [property A], Perth	78,000
Add back proceeds of sale of shares – 5/6/09, 21/6/09, 9/9/10,13/9/10 and 9/12/10	75,842
Part of Respondent’s half share of net proceeds of sale of [property in C] unaccounted for	70,000
Respondent’s paintings	50,000
Add back Respondent’s loan to daughter forgiven	25,000
Respondent’s gold coins	20,000
Proceeds of cattle sale – subpoena to Farmworks	18,567
Respondent’s Triumph motorcycle	17,500
Respondent’s Mitsubishi motor vehicle	8,000
Applicant’s furniture	5,000
Applicant’s Hyundai motor vehicle	5,000
Applicant’s GESB policy (15/12/100 [sic]	10,130
Applicant’s Colonial Mutual policy (late January 2011)	318,111
Capitalised value of Respondent’s pension	840,623
TOTAL	4,898,750

21. In considering the parties’ superannuation the Magistrate found:
    98. As for the Applicant, of course she is still employed and is yet to reach the stage where she will be able to access her entitlements. She has two policies, one with GESB worth $10,130 as at 15 February 2010 and another with Colonial Mutual worth $318,111 as at late January 2011. The Applicant has made the point that her current balance with Colonial Mutual arises largely as a function of substantial salary sacrificed payments made by her post separation. The standard 9% employer contribution is directed into her GESB account. The Applicant has asked the Court to bear in mind that she has made significant post separation contributions to her Colonial Mutual policy when the Court makes its assessment of the relevant overall s 79(4) contributions. This issue will be taken into account in the overall mix. It is a factor which perhaps counter balances to some extent any imbalance in favour of the Respondent in terms of initial financial contributions.
    99. As for the Respondent, he did retire in June 2008. He has in fact realised his ... superannuation entitlements and now receives, according to his financial statement filed 8 September 2010, a weekly pension of $1,349 net of tax. The Applicant caused a valuation of the Respondent’s pension entitlement to be obtained and a copy of the actuary’s report dated 22 November 2010 was put into evidence as part of the folder of material comprising Exhibit 2.
    100. The Applicant is, as noted above, now 74 years of age and he is entitled to receive his weekly pension until his date of decease. The actuary has concluded that based on the various assumptions set out in his report, the value of the pension which the Respondent now receives is $840,623 as at 30 November 2010.
    101. Interestingly, the actuary has reported in respect of the value to the Applicant of the Respondent’s superannuation entitlements. The Applicant is entitled to certain benefits upon the decease of the Respondent, provided that the parties are not divorced prior to the decease of the Respondent. The value to the Applicant of her potential entitlements under the Respondent’s superannuation scheme has been calculated by the actuary at $468,561. No application for a divorce order has been filed by either party. Of course, there is nothing preventing the filing of any such application by either party at any time and it would appear that the making of a divorce order would be inevitable if a divorce application is filed. In the circumstances, the Court is disinclined to attach any value to any potential rights the Applicant may have under the Respondent’s superannuation scheme.

(original emphasis)

Step 2 – Contributions of the parties

22. After setting out subparagraphs (a), (b) and (c) of s 79(4) of the Family Law Act 1975 (Cth) (“the Act”) his Honour at paragraph 106 said:

Given that the Respondent did not take the opportunity to participate in the trial and to cross examine the Applicant, and given that there is no reason to doubt the honesty and reliability of the evidence provided by the Applicant, the Court has accepted completely the evidence of the Applicant and will make its determination on contributions based on such evidence. The Respondent did not present himself for cross examination upon the contents of his trial affidavit and financial statement. In those circumstances it would not be appropriate for the Court to give any weight to those parts of his evidence which are inconsistent with the evidence of the Applicant.

23. As to each of the parties’ financial circumstances prior to the commencement of the relationship it was found:
    107. At the commencement of the relationship the Applicant owned an unencumbered property at [H] worth about $350,000. Further, the Applicant had savings of about $70,000, a motor vehicle worth about $20,000, a full set of good quality furniture and household items and a superannuation entitlement of some $130,000.
    108. As for the Respondent, at the commencement of the relationship he owned an interest in a property known as [Farm D] which the Applicant concedes was worth $520,000. In addition, the Respondent held an interest in a property in [F] which was purchased on 10 July 1997 for $195,000 with the aid of a mortgage for just under $111,000, a Range Rover motor vehicle, about $5,000 worth of shares and some sheep and cattle. The Respondent also had an entitlement resulting from his service in [public office] of some $466,000, subject to a tax liability estimated at about $100,000. The Respondent also had paintings estimated by him to be worth $50,000 and a gold coin collection estimated to be worth $20,000. The Respondent also had significant liabilities in terms of outstanding legal costs plus other liabilities estimated by the Applicant to run to about $120,000.
24. It was conceded by the wife at trial that the husband made a greater initial financial contribution. His Honour commented however, that the husband’s “somewhat greater initial financial contributions” may have been “counter balanced”, given the husband’s “current superannuation entitlement is partly a function of extra salary sacrificed superannuation contributions made by the [wife] after the date of separation”. (paragraph 109 of the reasons)
25. At paragraph 110 of the reasons for judgment his Honour accepted the history of the parties’ contributions during cohabitation as detailed by the wife in her affidavit filed 8 September 2010.
26. His Honour reiterated that the husband first assumed public office in the year the parties commenced cohabitation and retired within a few months of the parties separating. It was explained that upon retirement, the husband had elected to receive the pension option which sees him receive $1,349 per week net of tax.
27. It was explained at paragraph 112 of the reasons that during the course of the relationship the parties conducted a reasonably large number of financial transactions and that each of them “were substantially engaged in their various commercial activities”.
28. The Magistrate said:
    113. Standing back and looking at the big picture, the parties commenced this relationship as mature adults and both introduced significant capital into the relationship. The Respondent [assumed public office] and he has conducted certain commercial activities, most of which if not all involved both parties. The Applicant worked full time and made by far the greater s 79(4)(c) contributions. As a consequence of this partnership, by the time of the trial, the parties had amassed a pool of assets and superannuation entitlements totalling just under $5,000,000 in value. This was a relatively long relationship by contemporary standards.
    114. Having accepted all of the Applicant’s evidence regarding the various classes of contributions which need to be taken into account, the Court finds that the parties have contributed equally. The contributions have not been identical in each and every respect, however this marriage was conducted as a true partnership and the contributions by each party from the commencement of the relationship until the trial may fairly be considered to carry equal value.

Step 3 – Section 75(2)

29. The wife sought an adjustment under s 75(2) of the Act of 20 per cent in her favour.
30. His Honour found that the sub-paragraphs of s 75(2) of the Act that were most relevant to the case were (a), (b), (f), (o) and perhaps (m).
31. Although the wife is considerably younger than the husband and still employed on a full time basis, earning approximately $102,000 per annum, the wife submitted at trial that her employment in the public service is not secure.
32. It was found at paragraph 124 that although the husband has ended “his working life” he has “the ability to engage in commercial activities such as share trading and other investment activities”. In order to prevent double counting of the capitalised value of the pension and the actual weekly payments received by the husband, his Honour treated the husband as a person without income.
33. His Honour went on and said this:
    129. Given that the Applicant is younger than the Respondent and still working, it is arguable that perhaps the s 75(2) matters tip the scales in favour of the Respondent.
    130. However, before any s 75(2) adjustment is made, the Court needs to take into account the size of the asset pool and the actual result in dollar terms of its determinations on the score of contributions alone.
    131. This is a substantial asset pool. Each of the parties will take almost $2.5M in value. That should be more than sufficient for each of them to meet their reasonable future needs.
34. It was explained at paragraph 133 that the wife sought an adjustment of 20 per cent in her favour “by reason of the failure of the [husband] to provide comprehensive and accurate evidence for the trial of not just his own personal financial circumstances but those of all of the entities under his control”.
35. His Honour, although somewhat sympathetic to the wife, declined to make the adjustment as sought. It was said at paragraph 134 that the adjustment sought by the wife was “a very substantial figure indeed when translated into dollar terms. An adjustment of 20% represents the equivalent of ordering the [husband] to pay over to the [wife] almost $1M out of the $2.5M share to which he is entitled on the score of contributions alone”.
36. Counsel for the wife referred his Honour to Baldachino & Hanas (2010) FamCA 234. Although accepting that the Court has a broad discretion to make adjustments against the interest of a party who has failed to give full and frank disclosure, his Honour correctly said that a reasonable degree of caution must be exercised.
37. His Honour distinguished this case from Baldachino & Hanas as the non disclosing party in that case was found by the trial judge to have made a deliberate attempt to conceal his true financial position:
    138. The circumstances in this case are somewhat different. The Respondent did file his trial affidavit material on time. The concern for the Court is that he did not provide continuous disclosure from that point on and so it was left to the Applicant to endeavour to construct the relevant financial picture at trial largely by recourse to subpoenaed material which ought to have been provided by the Respondent himself. The Respondent did not endeavour actively to mislead the Court at the trial. The Respondent did not participate at all in the trial.
    139. Whilst a greater involvement in both the pre-trial and trial processes by the Respondent himself would have been highly desirable, it does need to be said that the Applicant and her lawyers did a very good job of constructing the relevant financial picture from the subpoenaed material and other available evidence. In the construction of the asset pool the Court has tended to give the benefit of any doubt to the Applicant and has in that way, at least in part, addressed some of the Applicant’s concerns regarding the Respondent’s non disclosure.
38. Ultimately his Honour found that no adjustment should be made in favour of the wife by reason of s 75(2).

Step 4 – The just and equitable provision

39. His Honour found that the property of the parties was to be divided equally. Based on the pool of assets as found by his Honour, such division would see the parties each receive property totalling $2,499,375.
40. In order to realise this the Magistrate said:
    144. The Respondent will be ordered to transfer to the Applicant his interest in the [...] property [at P] which is occupied by the Applicant. The Applicant will then have that property valued at $930,000, her CBA term deposit of $300,000, her daughter’s debt to her of $100,000, her motor vehicle worth $5,000, her furniture worth $5,000 and her two superannuation policies with a combined value of $328,241. These items total $1,668,241.
    145. On the Court’s calculations, the Respondent would need to make a cash payment to the Applicant of $781,134 to equalise the entitlements of the parties in the asset pool.
41. In concluding the reasons the Magistrate said:
    146. The parties commenced their relationship in positions of approximately equal strength, acknowledging that the Respondent may have had the slightly stronger financial base. Their relationship extended for more than ten years. It was an eventful relationship. Each of the parties contributed strongly to the substantial increase in their net worth, in different but in equally important ways. An equal division of the parties’ wealth will leave each of them comfortably placed into the future. The Court is satisfied that its proposed orders are just and equitable.

APPLICATION TO ADDUCE FURTHER EVIDENCE

42. On 2 November 2011 the husband filed an application in an appeal seeking to adduce further evidence. Three affidavits were filed with the application, an affidavit from the husband and affidavits from two medical practitioners, Dr C and Dr W.
43. We understand that this evidence is proposed to explain the husband’s failure to appear at the hearing, and to provide support for the grounds which assert that the Magistrate made factual errors. The admission of this evidence was resisted by counsel for the wife.
44. Although an application to adduce further evidence has not been filed by the wife, we understand the wife also seeks leave to rely on further evidence. That evidence is an affidavit from the wife’s solicitor filed on 17 November 2011.
45. It was explained by counsel for the husband that given the nature and grounds of the appeal, the further material is required to properly argue the appeal. It was also submitted that should we re-exercise the discretion, it would be necessary to admit the further evidence.
46. In many instances, we consider such applications at the conclusion of a discussion in relation to the grounds of appeal. In this case it is necessary to have some regard to the proposed evidence earlier.

Affidavit of the husband

47. The affidavit filed in support of the husband’s application to adduce further evidence addresses a number of matters. First, the husband seeks to explain the nature of his legal representation prior to and at the time of trial. Secondly, the husband provides a chronology of his medical treatment prior to the trial, and various correspondences with the court and the wife’s solicitors, prior to, at the time of, and after the trial. Finally the husband canvasses a range of factual matters, taking issue with assertions of the wife and highlighting the asserted factual errors made by the Magistrate. Annexures are provided in respect of each matter raised in the affidavit.

(a) Legal Representation

48. The husband stated that when the trial was heard in February 2011 he was not represented by a solicitor. He was previously represented by O’Sullivan Davies, a firm in Perth, who assisted in preparation for trial. The solicitors advised him on 8 November 2010 that they were filing a Notice of Ceasing to Act, due to his failure to pay into their trust account part of the funds required relating to the interim hearing and ongoing trial preparation. That notice was filed with the court on the same day.
49. In approximately mid-December 2010 the husband engaged Glenn Lawyers, a firm in B, New South Wales, to assist him in the purchase of a home in O. The husband then instructed the same firm in proceedings in the Magistrates Court of Western Australia in relation to orders related to a caveat and restraining orders on bank accounts.
50. In January 2011, the husband also engaged Glenn Lawyers to assist with the property proceedings trial. The solicitor assigned then advised the husband he would be away for the period 2 February to 18 February 2011. The husband knew that the solicitor had major heart surgery, and made the decision that potential travel by the solicitor to Perth was not desirable.
51. It is clear that the husband was receiving legal advice and representation generally in the period preceding the trial. It would appear, however, that formal representation in the family law proceedings ceased on
    8 November 2010 when the notice was filed. No further notice of address for service on behalf of any solicitors acting for the husband was filed. On
    7 December 2010 the husband filed a Notice of Address for Service containing his post office box address in B. From that, and from correspondence between the husband and the Court it can be inferred and was understood by the Magistrate that the husband was acting for himself from late November 2010 up to and including the dates of trial.

(b) Medical treatment

52. The husband referred to three hospital admissions between 2005 and 2007 following episodes causing him stress, incapacity to communicate and being overwhelmed. He says in early 2008 for a period of two months he consulted a psychiatrist, after experiencing anxiety, depression and sleeping difficulties, for which he was prescribed some medication which he discontinued taking after experiencing suicidal thoughts.
53. In February 2010 the husband was involved in a motor vehicle accident, the recovery from which included a period of rest, which is said to have alleviated his depression. In November 2010, when he prepared for his relocation from Western Australia to New South Wales, he said he began to experience once again severe anxiety, depression and an overwhelming feeling of inability to cope.
54. At the end of November 2010, the husband consulted Dr C about these symptoms, which he said continued beyond February 2011. In January 2011 he was admitted to hospital following heart problems. As at the date of the affidavit being sworn, the husband was being treated by a psychologist
    Mr M, for anxiety and depression.

(c) Correspondence with the Court

55. In November 2010 the husband relocated from Perth, Western Australia to New South Wales. Though the arrival date is not specified, he began the trip on 8 November 2010 and arrived at his destination not before 18 November 2010.
56. The husband said he was unable to access email while travelling until
    17 November 2010. Only on that day did he read the letter from the court dated 2 November 2010, advising of the 19 November 2010 callover date and explaining that the purpose of the hearing was to allocate the matter for trial between 31 January and the end of February 2011. The husband received the letter by email from his former solicitors, who did not forward the correspondence dated 2 November 2010 to him until 9 November 2010.
57. The husband said he immediately caused a letter to be sent to the Court explaining his inability to attend the callover on 19 November 2010. The husband did not retain a copy of that letter, however a positive transmission facsimile report including the contents of the letter was annexed to the affidavit of the wife’s solicitor in these proceedings. The report is dated 17 November 2011, from the hotel at which the husband was staying, and to the fax number of the Magistrates Court. The letter said:

...The writer is sending this correspondence from [...] South Australia where the writer is en route to a new home in [...] New South Wales...

As a result of illness and this major change to the writer’s life style, it was deemed that the writer would not be ready in February for the Family Court hearing. However, the writer is now of the opinion that the writer could be ready in time for the court case in February.

At this stage, it is the writer’s intention to represent himself at the impending hearing....

58. That letter also advised of a new address for service, being the husband’s residential address at B in New South Wales.
59. Having received no response from the court, the husband caused a further letter to be sent by facsimile to the court on 30 November 2010. The husband explained that he had, the day before, been diagnosed as suffering from stress and depression for which he was prescribed medication. He expressed that as a result of his condition, he doubted he would be able to attend the trial in February 2011 as indicated in the earlier correspondence dated
    17 November 2010. The husband advised of a further change of address for service, a post office box in B.
60. The husband accepts that a response was sent by Principal Registrar Monaghan of the Family Court of Western Australia (who is responsible for management of family law matters in both the Family Court of Western Australia and the Magistrates Court of Western Australia) on 2 December 2010. That response is set out above in paragraph 12.
61. As explained above, on 7 December 2010 the husband filed a Notice of Address for Service listing his post office box address in B. There appears to be no further personal contact between the husband and the Court until
    8 February 2011, when he said he telephoned the Court and was directed to the Magistrate’s office and instructed to leave a message. That same day, the husband said he received a phone call from the wife’s solicitor, who asked whether he would be attending the trial. The husband said that when he replied he was unwell and would not be attending, the solicitor said he would contact the Court and then contact the husband. It was the husband’s understanding that the solicitor intended to advise the Court that he was too unwell to attend the trial.
62. On 10 February 2011 the husband telephoned the Court and spoke with a case flow manager, who advised him he needed to write to the court and to the wife. On 11 February 2011 the husband sent to the case flow manager a letter enclosing his letter dated 30 November 2010. Copies were sent to the wife’s solicitors and to the Magistrate’s chambers.
63. On 14 February 2011 the husband was again telephoned by the wife’s solicitor, who asked whether he would be present in Court the following day. The husband replied he was unable to attend as he was still unwell. He said he was surprised by the conversation because he was sure he had done all that was required to have the matter adjourned. The husband said that at no time during the conversation did the solicitor advise the hearing would be continued in his absence, nor did the solicitor mention the letter sent by the husband on
    11 February 2011 or that his request for an adjournment was opposed.
64. The husband said he was again telephoned by the wife’s solicitor on
    15 February 2011. The husband advised the solicitor he had been to see a new solicitor. The husband said he had attended the office of a local solicitor in B that day, who advised she was unable to assist him as the case was in Western Australia.
65. On 18 February 2011 the husband received a copy of the orders made on
    16 February 2011 by the Deputy Registrar of the Magistrates Court which provided:

...

UPON the hearing of the following applications: -

• Form 1 application filed by the Applicant on 20 November 2008
• Form 1A response filed by the Respondent on 6 February 2009

IT IS ORDERED THAT: -

1. Pending disposal of the proceedings, the interest of the Respondent [husband] , in the property situated [at O] in the State of New South Wales [...] stand charged with the performance by the Respondent of any obligation upon him as may arise consequent upon the delivery of judgment in the substantive proceedings between the parties.
2. All material produced to the Court under subpoena be returned to source forthwith.
3. The proceedings otherwise stand adjourned for judgment to be delivered on a date to be fixed and be transferred to the Family Court of Western Australia.

(emphasis added)

66. The husband said that his understanding of order 3 as made by the Deputy Registrar was that, in response to his letter advising the court of his inability to attend the hearing, the matter would not be heard in the Magistrate Court but had been transferred to the Family Court for the purpose of a hearing. As no date had been provided in the order, on 21 February 2011 the husband wrote to the court by facsimile correspondence seeking information about the status of the matter.
67. In response, the husband received an undated letter from Principal Registrar Monaghan of the Family Court of Western Australia, advising him that the trial commenced on 16 February 2011 and that no appearance was recorded for him. A copy of the orders made were attached. However the letter did not expressly advise that the matter had been heard and in fact completed in his absence.
68. In the affidavit in support of the application to adduce further evidence, the husband also makes a number of denials and statements in response to assertions made by the wife in her trial affidavit, also asserting factual errors made by the Magistrate in the reasons for judgment. He takes issue with the composition of the property pool and findings about the financial and non-financial contributions of the parties. It is asserted that there has been a denial of procedural fairness.
69. No evidence in support of the husband’s assertions about factual matters relating to contribution is sought to be adduced.

Affidavit of Dr C

70. In his short affidavit filed 2 November 2011 Dr C explains that he saw the husband for the first time on 29 November 2010, when he diagnosed him with a severe anxiety condition. On 6 December 2010 the doctor provided the husband with a certificate of unfitness. No doubt this is the same document to which the Magistrate made reference in his Honour’s reasons for judgment. The certificate is annexed to the affidavit. It provides:

This is to certify that I have attended [the husband].

He is suffering from a Generalised Anxiety Disorder and is Medically unfit to attend Court in Perth.

I expect that it would be at least 1 month before he would be fit to travel and attend court.

71. In the affidavit the doctor then detailed subsequent consultations with the husband on 24 December 2010, 7 January 2011 and 16 February 2011. These visits were explained to be for leg and hip pain.
72. In April 2011 the husband again attended upon the doctor’s surgery and was seen by Dr C’s colleague. It was explained by Dr C that the notes taken by the treating physician indicated that the husband still reported having problems with sleeping, insomnia and anxiety.
73. In concluding the affidavit Dr C said:

Although I have not treated [the husband] for his anxiety since December 2010, having regard to the symptoms I observed in [the husband] at that time, I consider it was probable that he was still unfit to travel to Perth in February or to deal with issues relating to family law proceedings I understand he was engaged in.

Affidavit of Dr W

74. In his affidavit filed on 27 October 2011 Dr W explained that he first treated the husband on 30 August 2011. It was said the husband “presented with a history of not sleeping properly, low mood and thoughts of suicide” and that he had no enjoyment of life and was emotionally labile. Based on these symptoms, Dr W diagnosed the husband with depression on that occasion.
75. It was deposed by the doctor that given the husband’s condition it would be “very difficult for him to deal with stressful situations such as attending Court”.
76. Dr W referred the husband to Mr M, a psychologist, for assessment. His report dated 21 September 2011 is annexed to the affidavit and provides:

...

I have had an initial session with [the husband] and would assess him as experiencing a moderate to severe episode of unipolar depression. Having relocated across the country to [New South Wales] has given him some distance from his wife and former life but there continue to be significant stressors which are contributing to this current life crisis.

... I would place him as a mild risk of suicide at present with no plans but emotionally vulnerable. ...

77. It was explained that Dr W continued to see the husband to monitor his condition. The husband had expressed to Dr W a reluctance to use medication, however was said to be pursuing psycho-therapy with Mr M.
78. Given Dr W’s treatment of the husband began four and a half months after the hearing before the Magistrate, this evidence could not have been available at the time of the trial. The distance in time between the hearing and Dr W’s first contact with the husband makes it difficult for such evidence to provide on its own a clear and tangible explanation for the husband’s failure to appear at the hearing. We accept however that, in general terms taken with the other medical evidence, it provides some explanation for the husband’s absence.

Affidavit of the wife’s solicitor

79. In an affidavit filed 17 November 2011, the wife’s solicitor sought to respond to the husband’s account of events immediately preceding and at trial.
80. The solicitor explained he telephoned the husband immediately after proceedings concluded on 14 February 2011 and said words to the effect that “[t]he hearing will be proceeding tomorrow. You had better get on a plane because it’s going to go ahead tomorrow”.
81. The solicitor denied the husband’s assertion that the husband told him he was too unwell to attend. The solicitor said he sent a text message to the husband’s mobile telephone approximately half an hour after speaking with the husband. The message said:

Mr [Leslighter], I confirm my telephone conversation with you this morning at 10.15 Perth time. I confirm that the trial will proceed in your absence in Perth tomorrow. If you do fly over tonight please ensure that you bring all your financial records with you, all the documents I have previously requested you and your solicitors to provide including your passport. [Mr] Hanly.

82. The solicitor said that at no stage did he give the husband any indication that his client, the wife, would agree to an adjournment or that the hearing would not be proceeding. Further, the solicitor said that at no stage did the wife give him instructions to even consider agreement to an adjournment.

Relevant law

83. It was explained during the hearing of the appeal that the decision as to whether the further evidence would be admitted would be given after a consideration of the whole appeal. This approach is usually necessary in view of the accepted principles related to the admission of further evidence as provided by the High Court in CDJ v VAJ (1998) 197 CLR 172 where the majority McHugh, Gummow and Callinan JJ said:
    104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. ...
    109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

...

111. ... The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

(footnotes omitted)

Discussion

84. Counsel for the wife opposed the husband’s application to adduce further evidence. It was submitted that the further material does not make any difference and simply seeks to explain why the husband did not appear at trial, and in any event the medical evidence does not cover the appropriate period. It was highlighted that the husband did not dispute having received a letter from the court dated 2 December 2010, advising him of the proper procedure to be observed should he wish to vacate or adjourn the hearing date.
85. Counsel raised the question for our consideration as to how the husband could receive many letters about discovery and merely ignore them, and why he could instruct lawyers on some matters, such as the purchase of the property at B, but not on the trial. It was said the husband was aware of the appropriate procedure, however he had simply elected not to follow it. It was submitted the husband took a “cavalier approach” and decided only to engage in proceedings that were important to him.
86. Ultimately it was submitted on behalf of the wife that even if the further evidence was adduced, it would not establish that the Magistrate erred in failing to adjourn the proceedings.

Conclusion

87. There is no real explanation provided as to why the husband did not do what he should have done, save for implications from the medical evidence and to a limited extent some confusion caused by the order from the Court dated
    16 February 2011. Although the medical evidence does not cover specifically the relevant time period, the evidence of Dr C explains that the husband was suffering physical and mental issues prior to the trial, and that he again later experienced such issues, as explained by the evidence of Dr W. It was submitted by counsel for the husband that the material was relevant in that such “symptoms do not go away straight away”.
88. Although no evidence, medical or otherwise, fully explains the husband’s failure to appear at the trial in February, the evidence he seeks to adduce explains in general terms his medical circumstances which were relevant to his ability to participate in proceedings around that time. On this basis we are disposed to grant the husband’s application for leave to adduce further evidence in the form of the affidavits from Dr C and Dr W, together with his own affidavit. To refuse to do so would, in our view, be inconsistent with the interests of justice because it would leave completely unexplained the husband’s failure to participate when there is a relevant context, even if it does not provide a complete excuse.
89. To have the whole picture, and in fairness to the wife, it is necessary that we also allow her further evidence in the form of the solicitor’s affidavit.

THE APPEAL

90. As explained previously, the essence of the husband’s appeal is that the Magistrate should not have heard the property proceedings in the absence of the husband. It is his contention that by proceeding with the hearing in his absence, numerous errors of fact and law resulted, which ultimately led to an erroneous distribution being made to the wife and an injustice to the husband.
91. Further it was submitted that his Honour erred by “acting upon wrong principles, allowing extraneous or irrelevant matters to guide or affect him, mistakes of facts and a failure to take into account some material considerations”.
92. It was said at paragraph 7 of the written submissions:

In all of the circumstances it was not reasonable to proceed in the absence of the [husband] and it is submitted that the matter ought to be remitted for re hearing to allow an adjustment under s79 in a manner that will enable the court to consider and test all the evidence. It is a case in which it is necessary to have regard to the administration of justice, De Winter v Johnstone & Anor S119/1995 [1996] HCA Trans 155 (15 April 1996).

93. Although this effectively summarises the husband’s position, it is necessary to consider each ground of appeal separately. The most significant ground of appeal is ground 1.

Ground 1 – That the learned Magistrate erred in not adjourning the hearing

94. The written submissions under this ground commence with counsel for the husband distinguishing this case from others where a party did not wish to participate in property proceedings (see In the Marriage of Robinson and Huff [1990] FamCA 62; (1990) FLC 92-168).
95. It was explained that the husband “had in fact been actively involved in the proceedings in the lead up to trial”. Reference was made to the comment of the Magistrate at paragraph 42 of the reasons about his Honour’s surprise at the husband’s non-appearance, “given the size of the asset pool and given his very recent involvement, with legal representation, in the interlocutory proceedings conducted in November and December”. Reference was also made to various transcript references where the husband’s communication with the Registrar and the solicitor for the wife was discussed in the course of the proceedings before the Magistrate.
96. It was submitted that “it would be ludicrous to suggest that the [husband] did not wish to be heard”. Counsel said:
    10. The court was aware that the [husband] had contacted the Registrar in the lead up to trial and that various material had been faxed indicating that he did not believe he would be able to attend. The evidence before the court was to the effect that the [husband] was seeking an adjournment of the February date.
97. Counsel for the husband then succinctly stated his case:
    13. It is conceded that an application for an adjournment was not before the court in accordance with the Rules of Court however the intention and essence of an application were. It is submitted that as a matter of fairness some allowance ought to have been made for the fact that at the requisite time the [husband] was self represented. It is apparent that he endeavoured to adhere to the court’s requirements as directed by the Registrar by forwarding his previous correspondence to the court to the [wife’s] solicitor in the lead up to the trial, which contained information as to his belief that he would be unable to attend and as to his poor state of health. It is further submitted that greater leeway ought to have been afforded when it became apparent the enormity of the consequence of non participation given the size and effect of the property adjustment.
98. Reference was made to the Magistrate’s comment that an appeal would be a probability, as recorded in the transcript: “[i]sn’t the likely scenario that a notice of appeal will be lodged after I deliver the judgement?”. It was said on behalf of the husband that “[i]t was apparent to the court at the time of hearing the matter that the [husband] would not have sought to exclude himself from the proceedings and would wish to be heard by the court”. Further:

... Despite the court being of this opinion it proceeded with the trial in the knowledge that the [husband] was interstate and had been informed that a solicitor was being consulted on that day. There would have been no prejudice against the [wife] if the matter had been adjourned. Particularly given that counsel also thought an appeal possible ...

99. It was also submitted that although the solicitor for the wife filed a minute of proposed order asking for a 70 per cent distribution to the wife, there was no evidence that the proposal and the accompanying material had been provided to the husband, nor was there an opportunity for the husband to file a minute of orders sought in response. Counsel for the husband emphasised that the wife “had not previously advised in any former material written before the court what adjustment she sought”, and that the husband had advised in his Form 1A “that the orders he sought would be filed after receiving particularisation from the [wife]”.
100. The written submissions filed on behalf of the wife also deserve recording here, at least in part:
     1. There was no application before the Court for the adjournment of the trial.
2. This ground of appeal assumes that the Magistrate should, of his own motion, have adjourned the proceedings without there being an application for an adjournment before him.
3. The husband had been advised by letter from the Court dated 2 December 2010 (some 10 weeks before the trial was due to start) that:

“It is not possible to simply vacate any trial or hearing dates on the request of one party. If you wish to vacate a hearing date, that can be done by consent with the other party or by filing an application and an affidavit in support setting out the reasons why you are seeking to vacate that hearing date.” (Appeal Book 12 – Judgment paragraph 27)

4. The Husband has acknowledged that he received the letter dated 2 December 2010 from the Court.
5. The Husband had filed his trial affidavit in September 2010.
6. Between 6 October 2010 (Appeal Book 11 – Judgment paragraph 20) and 24 December 2010 (Appeal Book 13 – Judgment paragraph 33) the Husband was represented by solicitors and actively participating in the proceedings using [...] lawyers and instructing Perth solicitors as agents (Appeal Book 13 – Judgment paragraph 34).
7. By letter 28 January 2011 (two weeks before the commencement of the trial) the Perth solicitors acting as agents for the [...] lawyers were corresponding with the Court regarding a variation of the orders made by another Magistrate on 24 November 2010 (Appeal Book 13 – Judgment paragraph 35).
8. The learned Magistrate (at Appeal Book 13 – Judgment paragraphs 43-46) considered whether to proceed with the hearing.
9. Even if it is correct to submit that “the evidence before the Court was to the effect that the Respondent was seeking an adjournment of the February date” (which is not conceded) the learned Magistrate took into account all appropriate matters in considering whether the hearing should proceed.
10. The Husband’s submissions fail to point to any error made by the learned Magistrate in exercising his discretion. It is not submitted by the Husband that the learned Magistrate acted on a wrong principle or considered extraneous or irrelevant matters to guide or affect him.
11. As the learned Magistrate noted (Appeal Book 14 – Judgment paragraph 43) “the Applicant was, understandably enough, anxious to proceed to complete the proceedings. The case has been on foot since November 2008, and there was no guarantee that to delay the trial by several more months would necessarily result in the Respondent’s participation in the proceedings”.
12. “Justice cannot always be measured in money and a Judge is entitled to weigh in the balance the strain the litigation imposes upon litigants.” (per Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220 referred to as now generally accepted by Gummow, Hayne, Crennan, Kiefeln [sic], Bell JJ in Aon Risk Services Australia Limited v Australian National Universities [2009] HCA 27 (5 August 2009)).
13. “There is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publically funded resource. Inefficiencies in the use of that resource, arising of the vacation or adjournment of trials, are to be taken into account. So to is the need to maintain public confidence in the judicial system.” Per French CJ in Aon Risk Services Australia Limited v Australian National Universities [2009] HCA 27 (5 August 2009) at paragraph 5.
    14. In the circumstances the first ground of appeal must fail.

(original emphasis)

101. While there is considerable merit in the submissions of counsel for the respondent wife, in our view, in the unusual circumstances of this case, the Magistrate should not have proceeded to hear the wife’s property application.
102. It was held by the High Court (Gibbs, Stephen, Mason, Murphy and Aickin JJ) in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 that the Family Court has jurisdiction to set aside orders where a party is absent from the hearing through no fault of their own or of the court. It is also not necessary for the court to consider circumstances whereby fault is an element as in that case the absence of the respondent was without fault.
103. In Taylor, the wife brought proceedings in the Supreme Court of New South Wales for a dissolution of marriage and ancillary relief. Through no fault of his own but rather an oversight on the part of his solicitor, the husband was not present and not represented at the hearing. The decree and order for property settlement was made in the absence of the husband, and upon learning of this order the husband applied to the Family Court for an order varying the order for property settlement. Due to an oversight on the part of her solicitors, the wife was neither present nor represented at that hearing, and the judge made ex parte the orders sought by the husband. The wife appealed to the Full Court, who set aside the order on the basis that the judge had no jurisdiction to make that order. The husband appealed to the High Court, who set aside the orders of both the Supreme Court and the Family Court, on the basis that an order made against a party who did not have a reasonable opportunity to appear ought, in a proper case, be set aside.
104. Murphy J couched the principle in wider terms where he said at 20:

However, there is a longstanding principle that an order made against an absent party may be set aside where the absence is not the fault of the other party or the Court (even where the absence was the absent party’s fault), or where the absence is excusable, and considerations of delay, acquiescence or prejudice are not countervailing.

105. In the Marriage of Wilkes (1981) FLC 91-060, the Full Court (Emery SJ and Fogarty J) were of the view that the statement of principle in Taylor should not be restricted unduly by reference solely to the question of fault of the absent party. Rather, it was said, that the court should have a general power to review, as a matter of natural justice, orders made in the absence of a party and if appropriate remit the matter with costs.
106. In that case, the trial for determination of property proceedings was first listed for July 1980, and then adjourned to September 1980. The wife was informed of the date. The wife had informed the court she was unable to attend any hearings because she had been advised to rest and take holidays. In August 1980 the wife wrote to the Registrar requesting that the matter be deferred indefinitely. Further correspondence followed, however the wife did not make an application for an adjournment and did not appear at the hearing in September 1980. The wife’s appeal was dismissed by the Full Court.
107. In Wilkes a number of factors were considered to be important. These included the need for the litigation to end, the reason for the non-appearance, delay, any prejudice which may not be able to be compensated for by an order for costs and whether there is merit to be tried. It was said although the weight attributed to each factor will vary, the explanation offered to explain the non-appearance is of upmost importance.
108. Interestingly in that case it was held by the majority that, where a party fails to appear at the hearing and then later asks that the orders are set aside on that basis, the appropriate course is to apply to a single judge for a re-hearing rather than file an appeal from those orders. This was raised with counsel for the parties in this case. However, given that the matter was already listed for the hearing of the appeal and that in our view one avenue is an appeal, we determined to hear the matter.
109. It can be observed incidentally that there have been occasions when judges have made orders in the absence of a party, but have given the other party leave to apply within a restricted time to allow an application for the orders to be set aside. Such an approach was not suggested to the Magistrate in this case.
110. In our view, as regrettable as it is for the wife, justice demands that the appeal be allowed and a rehearing ordered where the merits of the respective claims for property settlement can be determined with both parties appearing and having the opportunity to properly present their cases. In saying this, we have not overlooked the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, especially the words of French CJ at page 192, that there is “an irreparable element of unfair prejudice in unnecessarily delaying proceedings” and also at page 189 where his Honour said:

... Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.

... In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.”

(footnotes omitted)

111. We are persuaded that to do justice between the parties the appeal must be allowed and a rehearing ordered because of the evidence including the further evidence and the medical evidence which is now before us. That evidence, as we have said already, does not provide a complete excuse for the failure of the husband to participate in the trial, but it goes a significant way to explain that failure and particularly the implication that can be made from the medical evidence, and the evidence of there being some confusion as to what the court was telling the husband in the correspondence.

Ground 2 – That the construction of the asset pool was flawed

112. Counsel submitted that as a result of proceeding without the husband, the court “was unable to effectively engage in the four step process for an equitable adjustment under s79”.
113. It was submitted:

... The material contained within the affidavit and form 3 of the [husband] were not utilised by the court except to the extent that they assisted the [wife], disadvantaged the [husband] or were deemed by the court to be non controversial. The consequence being that the court was not fully informed and denied crucial evidence. And further that the [husband’s] assertions were not tested.

114. Counsel explained that the husband in the appeal takes issue with the assets included in the property pool as well as the quantum attributed to them. In the written submissions on behalf of the husband it was said:
     19. The court relied on the material in the [husband’s] form 3 with respect to the value of gold coins. The court was not provided with information as to whose care and control the coins were currently in. It is anticipated that further material will be filed with respect to this issue however it is likely an issue that may only be resolved by way of cross examination of each party.
     20. The court incorrectly ascribed the sum of $400,000 to monies received by the [husband] from the sale of his share in the motel partnership. An error in the [husband’s] form 13 (ought to have read $150,000) was not corrected at hearing due to his absence. It is anticipated that further affidavit material will be filed with respect to this.
     21. In ascribing a valuation to the share portfolio of the [husband], the court failed to consider the effects of earlier losses that were being offset and the fluctuating value of the shares.
     22. The court was not privy to part of the funds from [property C]. It is anticipated that further affidavit material shall be filed with respect to the non distribution of part of the sale proceeds (that were/are controlled by the [husband]).
     23. The court engaged in a series of double counting. The court did not appreciate that the deposit monies ($78,000) for [property A] were the one and the same as the monies attributed by the court by way of an “add back” with respect to the sale of [property C].
     24. The court added back the sale monies from [property C] ($70,000) with respect to the [husband] but not the monies received by the [wife] with respect to her portion ($95,000). The court failed to address the further $25,000 that was due to the [husband]. ... It is anticipated that further affidavit evidence will be filed with respect to this issue.
     25. The court double counted the money from share sales when it included their value ($75,842) as it was unaware that part of this money was utilised to purchase shares and part of it was utilised by the farm and ultimately contributed to the value of that farm that when sold was utilised to purchase [property O] – it is anticipated that further affidavit evidence will be filed with respect to this issue.
     26. The court double counted with respect to cattle sales monies ($18,567). It is anticipated that further evidence will be filed with respect to this money being utilised for general running of farm expenses.
     27. The court accepted the evidence of the [wife] that at the commencement of the relationship that the [husband] had debts of $120,000 pertaining to legal fees. This is denied and it is anticipated that further affidavit evidence shall be filed with respect to this issue.
     28. The superannuation entitlements of the [husband] were considered by the Learned Magistrate as an asset of the relationship. No account was taken for the fact that he does not have access to $840,623. The manner of inclusion in the pool was problematic as it ought to more correctly have been treated as a pension. The superannuation ought to have been segregated from the other “assets”. ...
     29. The court wrongly included the [husband’s] accumulated benefits via superannuation for a period post separation. The court ought to have segregated these contribution entitlements that equated to $76,688.
     30. The court failed to include a superannuation amount of $5,300 belonging to the [wife]...
115. In concluding the written submissions on this ground it was said:
     31. The court wrongly concluded that the [husband] was not being full and frank in disclosure when it was in fact a situation of the court not being privy to the utilisation of the monies received. The [husband] had also advised the court that he was awaiting further material from his accountant. Against the background of a medical certificate stating that the [husband] was suffering from depression in the lead up to trial, it is submitted that the court ought not to have drawn the conclusion that he wilfully disengaged from the requirements of disclosure.
116. It was submitted correctly for the wife that the complaints made by the husband are largely “of his own making”. It was said that the husband either now asserts that he made mistakes in his own material, or that his failure to provide proper disclosure meant that the necessary evidence was not before the Magistrate. As was said in paragraph 19 of the wife’s written submissions, correctly in our view, “[w]hat is really being submitted is that further evidence would have produced a different finding on the value of the asset pool”.
117. Acknowledging that the Magistrate did the best he could on the evidence that was before him, the difficulty is that if the husband’s further evidence is correct, then there are errors in terms of value that are substantial. The husband’s contentions regarding errors to the asset pool were controversial, and save and except for one alleged error, were not conceded by the wife in the absence of the provision of further evidence which would support them. Before us counsel for the wife conceded that the correct figure for the payment to the family trust for the interest in partnership M was $150,000 rather than the $400,000 which the Magistrate included in his table of assets. It needs to be pointed out though that this is still an error caused by the husband given that the figure of $400,000 appeared in his affidavit. That said, we agree with the submission of counsel for the husband that some of the matters may not ultimately be determined in the husband’s favour or, if they are, may not ultimately affect the result. However, there are some significant matters raised that, if correct, would likely render the result erroneous. We hasten to add though that that result supports Ground 1 of this appeal and does not demonstrate that Ground 2 has any merit save and except to the extent of the concession by the wife.

Ground 3 – That the Court’s findings on contributions were wrong

118. It was submitted on behalf of the husband that the Magistrate did not consider the husband’s contributions with respect to his business acumen, and his local knowledge with respect to the purchase of both the property C and various other properties including farming entities, the property at P, the motel development site and the wife’s property at J.
119. It was also contended that his Honour erred “in not finding that greater contributions were made by the [husband] due to the nature of his employment that resulted in very significant superannuation amounts”.
120. Counsel for the husband contended that as a result of the trial proceeding without the husband, the court was not privy to any evidence from him as to his non financial contributions, the role and effect of the joint bank account, or the husband’s evidence as to the parties’ income disparity. It was also contended that the absence of the husband prevented the wife’s evidence as to contributions, which was said to be “very much in dispute”, from being tested.
121. Counsel submitted that his Honour also erred in determining contributions by failing to have regard to the material of the husband which advised of lengthy periods of separation.
122. In responding to ground 3 the wife submitted that there was no evidence, not even in the husband’s own material, of him applying the alleged acumen and knowledge to the purchase of the various properties and farming entities, nor to the husband’s alleged “greater contributions”. Where it was contended by the husband that the evidence was in dispute and required cross examination, the wife submitted that the husband had the opportunity to cross-examine the wife but failed to avail himself of the opportunity by choosing not to participate in the trial.
123. In regards to superannuation, the wife submitted that the husband’s superannuation was effectively accumulated during the period of cohabitation, when the wife was contributing by virtue of the support she provided the husband in his role as a public official. It was submitted the Magistrate was consequently entitled to conclude that the wife made a significant contribution to the accumulation of the husband’s superannuation entitlements.
124. If this had been the only ground in this appeal, in our view it would have little merit. However, Ground 1 provides sufficient reason for the appeal to be allowed.

Ground 4 – That the court failed to take into account relevant s 75(2) matters

125. The husband’s counsel made numerous assertions as to errors of the Magistrate in considering the provisions of s 75(2) of the Act. However many of those submissions go to findings as to contributions, which is the subject of Ground 3.
126. It was submitted on behalf of the husband that his Honour erred in incorrectly considering, and in failing to make an adjustment for, the initial contributions of the parties. It was explained that even on the figures used by the Magistrate the husband initially contributed $355,000 more than the wife.
127. It was said the Magistrate erred in finding that the additional voluntary superannuation contributions of the wife post separation effectively counteracted the disparity in the parties’ initial contributions and in failing to consider the husband’s accrued superannuation benefits post separation.
128. At paragraph 107 of the reasons for judgment the Magistrate finds the wife to have brought assets into the marriage valued at $440,000 plus a superannuation entitlement of $130,000. At paragraph 108 he finds the husband to have brought into the marriage assets with a net value of $559,000. In addition, the husband had a superannuation entitlement of some $466,000, subject to a tax liability of $100,000, leaving a net value of $366,000.
129. Thus, even leaving aside the superannuation, the husband’s initial contribution was in excess of $100,000 greater than the wife. His superannuation contribution at the time of the commencement of the relationship was $235,000 greater than that of the wife.
130. Considering these figures, which were figures used by the Magistrate, it is difficult to see how a finding that the wife’s extra salary sacrifice superannuation contributions after the date of separation, of $100,000, could offset the disparity in the initial contributions by the husband, excluding the superannuation, as well as the significant disparity in their superannuation entitlements at the date of commencement of the relationship.
131. The result would appear even more egregious if the husband’ post separation contributions to his superannuation, which he contends was $76,688, was not taken into account.
132. Counsel for the husband also submitted under this ground that his Honour erred in treating the husband’s pension as property (see Coghlan and Coghlan[2005] FamCA 429; (2005) FLC 93-220). In summarising Coghlan it was said in the husband’s written submissions:

... The court went on to say that by including what is in effect a fortnightly pension gives an “air of artificiality” and found that it would be unjust to apply the valuation for the purpose of the calculation of the parties’ net worth. With respect to the legislation they commented that treating superannuation as an “asset” does not mean that superannuation is be (sic) treated exactly the same as property as defined by s4(1). They expressed the view that it is important to give effect to what is “the real nature” of the superannuation interest.

133. In response, relying on Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143, it was submitted for the wife at paragraph 47 of her written submissions that the trial judge has a discretion as to how a superannuation interest will be treated in a particular case. Further it was argued:

An important point in this case is that the Husband had retired and had commuted his ... Superannuation benefits to a pension and there was evidence before the learned Magistrate as to the capital value of that pension entitlement. The calculation of the capital value was in accordance with the Family Law (Superannuation) Regulations 2001.

However, this does not necessarily overcome the force of the husband’s argument.

134. In view of the husband’s failure to attend the hearing and the decision made by the Magistrate in relation to s 75(2) we would not normally be greatly troubled by this ground. However, clearly there is merit in these complaints by the husband, and this adds weight to our conclusion that the appeal should be allowed.

Ground 5 – That the orders as pronounced were not just and equitable

135. It was submitted on behalf of the husband at paragraph 57 of his written submissions that “[t]he orders as pronounced are not just and equitable as they are based upon an incorrectly formulated asset pool, incorrect assessment of contributions and do not adequately account for section 75(2) factors”, and further that at paragraph 58 that “[t]he orders have not been obtained by way of fair, just or due process”.
136. The husband’s counsel submitted at paragraph 60 that a 50:50 per cent distribution could not have been the outcome if his Honour was “privy to all the relevant facts”.
137. Counsel for the husband explained that the effect of the orders made by the Magistrate would require the husband to sell his home, resulting in “the effective loss of the stamp duty paid, sales costs and further purchase costs inclusive of stamp duty as well as moving expenses”. Further it was said in the husband’s written submissions:
     62. The orders would leave the [husband] in a less than equal position to the [wife] who would have the benefit of substantial cash, a good income and the ability to contribute further to her superannuation. The [wife] would have the advantage of a very large sum of cash disproportionate to any payable if the [husband] had taken the superannuation as a lump sum payment. In the event a lump sum had been taken by the [husband] a 50% share would equate to $233,000.00. The [husband] retired 6 months after separation yet the [wife] is getting the advantage of his decision not to take a lump sum. Hence she has the benefit of monies in the form of a lump sum to invest or utilise to create greater capital advantage, while he receives a pension that is largely consumed by living expenses.
     63. The ... superannuation scheme provides for a significant reduction in benefits in the event that the money is to be received by way of a lump sum. The same principle ought to apply when superannuation is spilt in family court proceedings where a lump sum is sought after an election to receive the money by way of a pension is in force, to do otherwise is unfair and unjust to the other party.
138. It is difficult for us to conclude that there is merit in the arguments put by counsel for the husband in this respect, given the absence of the husband and the evidence that was in fact before the Magistrate. Indeed, it seems to us that these are matters for the inevitable rehearing of this case consequent upon the appeal being allowed.

CONCLUSION

139. If the husband had failed to file affidavit evidence, if the husband had failed to notify the Court of his inability to attend, and if there was no merit in any of the other grounds of appeal we would not be so inclined to allow the appeal.
140. In paragraph 65 of the husband’s written submissions it was said, correctly in our view:

... orders 1(b) and 3 of Magistrate Moroni ought to be set aside and the matter be remitted to the Family Court for rehearing to provide for a discretionary judgment on all of the evidence and to enable the parties to adduce further evidence. It is submitted that this would not result in any prejudice to the [wife] as interest on the current judgment is accruing and the residential property in which she resides has already been transferred to her. There are real issues that need to be tried on their merits.

COSTS

Indemnity and security costs

141. As canvassed in Taylor and Wilkes, when natural justice requires a matter be remitted for re-hearing but where such necessity arises by the fault of one party, making an order as to costs should be considered.
142. It is the general principle that each party to litigation in this court will bear their own costs. However the court is at liberty to make an order for costs where there are justifying circumstances.
143. Section 117 of the Act provides:

(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

144. The principles in relation to the discretion to order costs are well settled. As held in Fitzgerald (as child representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123 there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.
145. In this matter the wife asks for orders that would have the effect that the husband pay her costs on an indemnity basis. With regard to indemnity costs, the principles are also well settled (see Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 and Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029).
146. In Stephens v Stephens and Anor [2010] FamCAFC 172; (2010) 44 Fam LR 117 the Full Court (May, Boland & O’Ryan JJ), citing with approval the comments of Lindgren J in NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109 FCR 77, held that the “conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as a litigant”.
147. It was identified by counsel for the wife that the costs sought were the pre-trial, trial, post-trial and the appeal.
148. It was explained that the Magistrate reserved the costs of the trial and that an order is yet to be made. In our view, any order for costs available to us must relate to the appeal, not the trial.
149. Counsel for the husband, correctly in our view, initially acknowledged that should the appeal be allowed, a remedy for the wife could be an order for costs. However, when the issue of costs was raised, inexplicably the husband’s counsel asked that in the event the appeal was allowed an order for costs be made against the wife. It was later conceded that there was no basis on which such order could be made. The husband then submitted that should the appeal succeed on natural justice grounds, costs certificates should be granted to the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
150. We are of the view that the husband should pay the wife’s costs of and incidental to the appeal and that be on an indemnity basis, as it can be seen that the appeal has been necessitated through the absence of the husband at the hearing. The wife certainly should not be put to the considerable expense of this appeal. The husband’s financial circumstances would not prevent such an order being justified.
151. The wife also asked that a caveat be placed over the husband’s property at B and that a sum be placed in the joint names of the solicitors pending disposal of the retrial. It was said that this was necessary to preserve the wife’s entitlement. In addition it was asked that such security be provided within a specific timeframe and that the order be self-executing. In our view an application may be made before a trial judge for such orders. That judicial officer will have the affidavit material upon which the wife would wish to rely directed to such orders, and also importantly the husband would have an opportunity to respond.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Strickland JJ) delivered on 2 July 2012.

Associate:

Date: 2 July 2012

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal from an order of a Family Law Magistrate dismissing the wife’s application for spousal maintenance – In circumstances where orders were made in 2004 providing for the husband to make periodic payments to the wife by way of spousal maintenance to a specified total amount – In circumstances where the husband paid the specified total amount and thereafter ceased paying – Where it was held by the Acting Magistrate that the making of the previous order for spousal maintenance was “fatal” to the wife’s subsequent application – The Acting Magistrate did not consider s 80(2) of the Family Law Act 1975 (Cth) – Appellable error found – No basis for an award for costs – Costs certificates granted to both parties for the appeal and the rehearing.

Vault & Isle [2012] FamCAFC 93 (2 July 2012)

Last Updated: 6 July 2012

FAMILY COURT OF AUSTRALIA

VAULT & ISLE

[2012] FamCAFC 93

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal from an order of a Family Law Magistrate dismissing the wife’s application for spousal maintenance – In circumstances where orders were made in 2004 providing for the husband to make periodic payments to the wife by way of spousal maintenance to a specified total amount – In circumstances where the husband paid the specified total amount and thereafter ceased paying – Where it was held by the Acting Magistrate that the making of the previous order for spousal maintenance was “fatal” to the wife’s subsequent application – The Acting Magistrate did not consider s 80(2) of theFamily Law Act 1975 (Cth) – Appellable error found – No basis for an award for costs – Costs certificates granted to both parties for the appeal and the rehearing.

Family Law Act 1975 (Cth), Part VIII, ss 44(3), 74(1), 75(2), 80(1)(ba), 80(2), 81, 83, 83(2)(a)

Bevan and Bevan (1995) FLC 92-600 Caska and Caska [2001] FamCA 1279; (2002) FLC 93-092

APPELLANT:

Ms Vault

RESPONDENT:

Mr Isle

FILE NUMBER:

PTW

3547

of

2003

APPEAL NUMBER:

WA

3

of

2012

DATE DELIVERED:

2 July 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

8 June 2012

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

22 December 2011

LOWER COURT MNC:

[2011] FCWAM 77

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Brownlie

SOLICITOR FOR THE APPELLANT:

Leach Legal

COUNSEL FOR THE RESPONDENT:

Mr Berry

SOLICITOR FOR THE RESPONDENT:

Bannermans Solicitors

ORDERS

(1) The appeal be allowed.
(2) The orders made by Acting Magistrate Kaeser on 22 December 2011 be set aside.
(3) The application of the appellant wife for spousal maintenance be remitted for rehearing before a Family Law Magistrate other than Acting Magistrate Kaeser.
(4) There be no order for costs in relation to the appeal.
(5) The Court grants to the appellant wife a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
(6) The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
(7) The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vault & Isle 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 PERTH

Appeal Number: WA 3 of 2012
File Number: PTW 3547 of 2003

Ms Vault

Appellant

And

Mr Isle

Respondent

REASONS FOR JUDGMENT

1. I am required to determine an appeal against an order made by Acting Magistrate Kaeser dismissing the wife’s application for spousal maintenance.
2. The essence of the appeal is that his Honour erred in holding that the provisions of an earlier order for maintenance were fatal to the wife’s application.

Background

3. The appellant wife and the respondent husband were married in 1989 and separated in 2003. Importantly, they have not been divorced.
4. There is one child of the marriage who was born in January 1990 and who was therefore over the age of 18 years at the time of the hearing.
5. The wife commenced proceedings for property settlement and spousal maintenance in 2003, which were resolved by consent orders made on 11 June 2004.
6. The consent orders provided for the husband to transfer to the wife his interest in the matrimonial home at suburb E, and for the wife to transfer to the husband her interest in a business.
7. The orders went on to provide that “the husband pay or cause to be paid to the wife the sum of $1,450.00 per fortnight by way of spousal maintenance to an account nominated by the wife, to a total of $28,000.00”. In other words, the husband’s obligation would end in less than one year, provided he paid on time.
8. The husband paid spousal maintenance totalling $28,000 and thereafter ceased paying, although continuing to pay child support for the child of the marriage.
9. On 29 March 2011, the wife filed another application for spousal maintenance. By the time of the hearing she was seeking $1,850 per fortnight.
10. The matter came before Kaeser AM in November 2011. On 22 December 2011 his Honour delivered his judgment dismissing the wife’s application.

The Magistrate’s Reasons for Decision

11. Having set out relevant background, the Acting Magistrate turned to discuss what he called a “preliminary issue”.
12. In considering this issue, his Honour noted that the husband had paid the full amount of $28,000 specified by the consent orders. He further observed that “the order was in the nature of a final order for spousal maintenance because it was for a fixed amount of money and the orders made on that date otherwise dismissed the applications before the Court”. His Honour went on to note that the consent orders did not contain provision for “liberty to apply”.
13. His Honour continued:
    9. [The husband] no doubt considered at the time that once he had fulfilled the obligation to pay the entire amount of $28,000 his potential liability for any future spousal maintenance would be at an end. Whilst the orders do not include a reference to section 81 of the Act, the Court does operate on a clean break principle. The terms of section 81 provide that as far as practicable the Court must make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
    10. The Court in Bucknell & Bucknell (2009) Fam CAFC 177, noted that at paragraph 55 that;

‘A Court making a spousal maintenance order often has a choice between, on the one hand, leaving the order to operated [sic] for an indefinite period, knowing that section 83 of the Act provides for variation if circumstances so change that variation is justified or, on the other hand, fixing a date of cessation, which often involves a prediction, albeit on the balance of probabilities, about future events’.

11. The Court in Bucknell therefore, given these uncertainties, did not set an end date to the spousal maintenance order.
12. The Court in this matter has effectively set an end date being the time when the $28,000 has been paid in full.
14. The Acting Magistrate then referred to s 83 of the Family Law Act 1975 (Cth) (“the Act”) which makes provision for the discharge, variation and suspension of spousal maintenance orders that are “in force”, and for the revival of spousal maintenance orders that have been suspended.
15. His Honour found there was no maintenance order “in force” at the time of the hearing, or when the wife filed her application. He concluded that “the final order that was made in June 2004 had expired, having been fully complied with”. The Acting Magistrate went on to say this was “therefore not a case about modifying a spousal maintenance order. The order has not been suspended earlier; it had simply been fulfilled”. His Honour concluded that the application was “effectively a fresh application for spousal maintenance being brought some years after an earlier order for spousal maintenance had been made and completely complied with”. This part of his Honour’s reasons was properly not the subject of any complaint: see Caska and Caska [2001] FamCA 1279;(2002) FLC 93-092.
16. His Honour then went on to deal with the wife’s case, as he understood it:
    17. [The wife’s] case can be summarised as follows. I will deal with each of these arguments in turn.

a. The issue of spousal maintenance has not been dealt with as the orders by consent in June 2004 were not made pursuant to section 77A of the Family Law Act. In my view that argument is misconceived. Section 77A is a provision that provides that when a lump sum amount is to paid [sic] (whether in one amount or by instalments) or there is a transfer of property and one of the purposes of that payment or transfer is to provide for the maintenance of a party to the marriage, then a reference to section 77A should be made. In this matter such a reference to section 77A was not necessary in the June 2004 orders as it was clear that a spousal maintenance order was being made. The issue of spousal maintenance therefore was properly dealt with in those orders.

b. [The wife] relies upon section 72 of the Act. She is still the lawful spouse of [the husband] and as such her rights are governed by section 72 of the Act. She says that she is no longer able to adequately support herself and [the husband] has his ongoing obligation to support her pursuant to that section. As part of this argument she also says that at the time the original consent orders were made she was unable to support herself without an income tested pension or benefit. I accept that that was the case.

17. The Acting Magistrate accepted that the wife “has very little by way of income as she continues to rely on Centrelink pension or benefit, which in assessing a spousal maintenance claim is ignored pursuant to the provisions of the Act”.
18. His Honour went on to record that the wife owned the property in suburb E, estimated to be worth $340,000, together with some shares. He noted that she had “a very small mortgage”. He then concluded that the wife’s “financial position has improved since the orders were made in 2004” and noted that she had “received the benefit of the $28,000 in spousal maintenance claims”.
19. His Honour then gave his reasons for dismissing the wife’s application:
    19. In my view there would be potential merit in this claim were it not for the orders made in 2004. Had the spousal maintenance issue not been dealt with in 2004 and [the wife] now came before the Court seeking for the first time a spousal maintenance order, then there might be some merit in her claim. It is clear on the basis of income alone that she is unable to support herself, although the Court is able to take into account the assets of parties as well.
    20. I would however have to take into account the lengthy period between the date of separation and the date of the application. There would need to be a reasonable explanation for the delay in applying.
    21. In my view however, the provisions of the orders made in 2004 are fatal to [the wife’s] application. A clear ‘fixed amount’ spousal maintenance order was made on a final basis. It is entirely unfair to [the husband] to be in a position to have to face a further spousal maintenance claim several years after a spousal maintenance order was made and fully complied with.
    22. There has been no reasonable explanation for the delay in filing this application from the time the earlier order expired.
    23. In my view therefore there is no merit in the spousal maintenance application made by [the wife] and I intend to dismiss it.

The grounds of appeal

20. There were four grounds of appeal, expressed as follows:
    1. In his judgment delivered on 22 December 2011 and in his written reasons for decision the learned Acting Magistrate made an appealable error in failing to consider section 80(2) of the Family Law Act 1975 when finding that the Appellant’s application for periodic spousal maintenance should be dismissed.
    2. In his judgment delivered on 22 December 2011 and in his written reasons for decision the learned Acting Magistrate made an appealable factual error in finding that the Appellant’s financial position had improved since the Court Orders of 11 June 2004.
    3. In his written reasons for decision delivered on 22 December 2011 the learned Acting Magistrate made an appealable factual error in finding at paragraph 20 of his reasons for decision that there had been an unexplained delay between the date of the parties’ separation and the date of the Appellant’s application. In particular, the learned Acting Magistrate failed to consider paragraph 15 of the Appellant’s affidavit filed 29 March 2011.
    4. The learned Acting Magistrate failed to consider that the Respondent tacitly acknowledged the Appellant’s need for financial support as evidenced in paragraph 14 of the Appellant’s affidavit filed 29 March 2011.

Ground 1 – failure to take account of s 80(2)

21. The first ground of appeal asserts failure on the part of the Acting Magistrate to consider s 80(2) of the Act, which provides as follows (my emphasis added):

The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

22. This subsection appears in Part VIII of the Act, which is the part dealing with spousal maintenance and property settlement. The reference to “paragraph 1(ba)” is, of course, a reference to s 80(1)(ba), which confers power on a court to make an “order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage”.
23. There is no doubt that the 2004 order was an “order in relation to the maintenance of a party” made under Part VIII. Section 80(2) makes clear that the existence of such an order does not preclude the making of another maintenance order. It was therefore submitted that his Honour was in error in concluding that the earlier order was “fatal” to the wife’s application.
24. Counsel for the husband did not seek to expand upon his written submissions in responding to the obvious merit in the wife’s complaint. Those submissions are set out in full below:

The terms of s. 80(2) provide that a Court may make a subsequent order in relation to the maintenance of a party. This provision gives express legislative effect to the remarks of the Full Court by way of obiter dicta in Lusby and Lusby (1977) FLC 90-311 at 76,656 – 76,657. The learned Acting Magistrate recognised that it was a “sensible call” for the husband not to pursue the summary dismissal application (Transcript 15 November 2011, page 3 lines 38 – 54); and further recognised that it was open to the wife to pursue a maintenance application (Transcript, page 9 lines 10 - 40). (Submissions of the respondent husband, page 2).

25. The first passage of transcript relied upon was one where, in response to an enquiry from the bench, counsel for the husband advised she “[did not] think it is a case that would possibly meet the criteria required for summary dismissal”. It was in response to this concession that his Honour said the decision not to pursue the summary dismissal application was a “sensible call”.
26. The second passage of transcript to which counsel for the husband referred is set out in full below, but I will also set out the preceding interchange. It will be noted from the transcript that the wife was self-represented.

[THE WIFE]: Your Honour, the proposed consent orders they divided into property division, they were divided into – the second part was child support. The one para regarding any form of payment to me was the husband pay or cause to pay to the wife the sum of 1450, et cetera. That may be so, but my husband paid that, yes, but I am not appearing now on trying to re-visit that issue, I’m re-visiting the issue of my current need and my husband’s current ability to meet to help that need.

HIS HONOUR: So you accept then that the spousal maintenance order that was made in 2004 had completed by the middle of 2005?

[THE WIFE]: Certain parts of it. There are certain parts of it that are still – he has not completed.

HIS HONOUR: Certain parts of the other parts of the order not the spousal maintenance order?

[THE WIFE]: Yes, the other parts of the order, yes.

HIS HONOUR: Just looking at that, as you have mentioned, and you are correct, this is only about the spousal maintenance issue. It is not about property, it is not about child support, it is just about the spousal maintenance. So there is a spousal maintenance order that ceases to have effect in the middle of 2005 and then some almost six years later you file a fresh application for spousal maintenance.

Now, I would have thought one of the arguments is going to be, and I think it is in the submissions, that the spousal maintenance order was made, it is finished, it has been complied with and there should be no further order made, especially some six years down the track. Do you understand that principle or that argument?

[THE WIFE]: I do. I do, your Honour, except that it is through by research I found that the consent orders that were made in 2004 were not of a nature of binding agreements, they were not signed off, they were left open-ended and this is the reason why I have bought this present case.

HIS HONOUR: ...what is it about paragraph 1.11 you would describe as open-ended?

[THE WIFE]: 1.11 of?

HIS HONOUR: Of the original consent orders in June 2004.

[THE WIFE]: 1.1 is simply about the house which I owned anyway.

HIS HONOUR: 1.11 on page 3.

[THE WIFE]: 1.11 on page - - -

HIS HONOUR: “The husband pay or cause to be paid to the wife.” Do you have that in front of you?

[THE WIFE]: 1.11?

HIS HONOUR: Yes, 1.11.

[THE WIFE]: Yes, three, yes.

HIS HONOUR: “Pay or cause to be paid to the wife the sum of $1450 per fortnight by way of spousal maintenance to an account nominated by the wife to a total of $28,000”.

[THE WIFE]: Yes, your Honour.

HIS HONOUR: So what about that paragraph is open-ended? It seems to be rather defined and limited.

[THE WIFE]: Yes, but the consent orders themselves are not binding financial agreements.

HIS HONOUR: And do you think that makes a difference?

[THE WIFE]: From what I have read of the law it does because there are cases that have been decided where wives have asked because their situation has declined after separation. I’m still married to [the husband]. There is still a responsibility under the law under section 72 and 75 for him to, in the case of need, to provide maintenance. The law is fairly clear on those issues.

HIS HONOUR: I agree that those issues are open, which is why the respondent is not proceeding with the summary dismissal application, but, again, if we focus our minds on what then is relevant to my determination do you accept that this is about the spousal maintenance issue, it is about whether you should be permitted to continue with an application that is filed some six years after that earlier order expired and whether in my discretion I should allow you to do so, and, if so, if you get over what [counsel for the husband] has called that threshold issue, then whether in the circumstances as they exist now you should be entitled to any further spousal maintenance. Do you agree that they are the issues that the court needs to determine?

[THE WIFE]: Correct, yes, your Honour.

(Transcript, 15 November 2011, pages 7 – 9).

27. I accept that counsel for the husband could do nothing more to advance his client’s case than place reliance on these transcript passages. However, they do not assist the husband, since the basis for his Honour’s order must be found in his reasons, rather than anything said in the course of the hearing.
28. The ratio of the decision is to be found in paragraph 21 of the reasons:
    21. In my view however, the provisions of the orders made in 2004 are fatal to [the wife’s] application. A clear ‘fixed amount’ spousal maintenance order was made on a final basis. It is entirely unfair to [the husband] to be in a position to have to face a further spousal maintenance claim several years after a spousal maintenance order was made and fully complied with.
29. His Honour did not at any point in his reasons, or in the course of argument, refer to s 80(2) of the Act. It seems the provision was simply overlooked, having not been referred to by either party in the course of the hearing. As a result, his Honour mistakenly proceeded on the basis that the existence of the earlier order was “fatal” to the wife’s application, whereas at most it provided important background to the application he was obliged to consider.
30. I accept the proposition advanced on behalf of the wife that the failure to take the provisions of s 80(2) into account constitutes appellable error.
31. Success of this ground alone justifies the setting aside of the order, but I will nevertheless refer briefly to the remaining grounds of appeal.

Ground 2 – error in finding the wife’s position had improved

32. This ground criticises the finding of the Acting Magistrate that the wife’s financial position had improved since the making of the consent orders.
33. I accept, as was contended by counsel for the husband, that this finding may have been open on the evidence. However, the difficulty is that success of the wife’s application for maintenance, or the husband’s opposition to it, did not depend upon any change in the wife’s financial position.
34. A change in the financial circumstances of the beneficiary of a maintenance order is relevant to an application for variation of such an order (by operation of s 83(2)(a)). But the wife was not, as his Honour accepted, seeking to vary the earlier maintenance order – she was seeking a new order. The obligation on the court therefore was to give effect to s 74(1), namely to make such order as was “proper” in the current circumstances, after taking into account the matters in s 75(2) of the Act.
35. Although his Honour found the wife’s circumstances had improved, he nevertheless concluded she was unable to support herself from income. Indeed, he went so far as to say her application for maintenance had “potential merit” were it not for the 2004 consent orders. Had his Honour properly directed himself, he would have turned to consider the wife’s assets and decided whether she ought to support herself from them. He did observe that he was “able to take into account the assets of the parties as well”, but did not proceed to consider that issue, electing instead to discuss the matter giving rise to the complaint in Ground 3.

Ground 3 – failure to accept there were reasons for “delay”

36. By this ground the wife complains about his Honour’s finding that there had been “no reasonable explanation for the delay in filing this application from the time the earlier order expired”.
37. It was submitted that this finding failed to take into account paragraph 15 of the wife’s affidavit, in which she said:

I am increasingly anxious about my ability to secure and retain full-time employment for a variety of reasons. After three (3) years of concerted efforts in applying for jobs, including jobs not in my field and below my level of training, I was finally able to obtain employment in my field in September 2005. In the five (5) years since then I have worked for three companies however I was made redundant in November 2010 with no redundancy payment. Since then I have not been able to secure work.

38. Counsel for the wife drew attention to the fact that the Acting Magistrate had made no reference to this part of the wife’s evidence when finding there was no explanation for her delay in bringing the present application. Counsel for the husband did not seek to expand upon his written submissions in response to this ground which read simply as follows:

In relation to paragraph 15 of the wife’s affidavit...the husband filed an affidavit sworn on 1 July 2011 and specifically responded at paragraph 32. (Submissions of the respondent, page 2).

39. With respect to counsel for the husband, this is no answer to the wife’s complaint. The wife had provided what would appear to be a reasonable explanation for filing her application when she did. His Honour did not address that evidence.
40. Ultimately, however, the wife was not obliged to explain her “delay”. The only context in which delay may have been relevant would have been if the parties had been divorced and the wife needed to seek leave to apply for maintenance more than 12 months after the divorce became final (see s 44(3)). In this case the parties had not been divorced. There was therefore no impediment to the wife seeking a further maintenance order.
41. Although it was not the subject of separate complaint, it is appropriate before leaving this ground to note that in placing emphasis on the “clean break” principle in s 81 of the Act, his Honour did not make reference to the fact that s 81, by its own terms, does not apply to “proceedings with respect to maintenance”: see Bevan and Bevan (1995) FLC 92-600 at 81,980.

Ground 4 – husband’s acceptance of wife’s need

42. By this ground the wife complains that the Acting Magistrate failed to consider the fact that the husband himself had effectively acknowledged the wife’s need for financial assistance from him.
43. In support of this ground, reliance was placed on paragraph 14 of the wife’s affidavit, in which she gave evidence that since April 2009 the husband had made contributions to her support in an amount totalling over $14,000 “in recognition of the financial difficulties I am experiencing”. The husband responded in paragraph 31 of his affidavit, where he said he believed the assertion made by the wife “to be true”.
44. I accept that the fact the husband had provided financial support to the wife recently may have been relevant in determining whether it was “proper” for another maintenance order to be made. However, his Honour did not get to that point, having determined that the earlier order was “fatal” to the wife’s application. It was the latter conclusion that led his Honour into error, not his failure to have regard to the voluntary assistance provided by the husband.

The Notice of Contention

45. It follows that I consider there is merit in the wife’s appeal. Counsel for the husband sought to meet this eventuality by relying upon a Notice of Contention, which was expressed in the following terms:

If the Court finds that the learned Acting Magistrate fell into appellable error on any ground, then the orders the subject of appeal should be upheld on the basis that the wife was able to support herself adequately and that, even if she was not able to do so, it was not ‘proper’ within the meaning of s.74 of the Family Law Act 1975 to make an order and the learned Acting Magistrate should have so held.

46. Counsel for the wife effectively joined with counsel for the husband in asking that I redetermine the matter on the basis of the evidence provided at trial. Whilst recognising the understandable desire of the parties to avoid a further hearing, I do not consider it appropriate I adopt this course.
47. The Acting Magistrate heard evidence from both parties concerning their present financial circumstances and their likely future financial positions. Given the approach he adopted, his Honour did not make what I would regard as sufficient findings of fact to provide a foundation on which to re-exercise his discretion. In this regard it is noteworthy that in seeking to sustain the order made, counsel for the husband referred to factual matters that were not mentioned in his Honour’s reasons. I am also mindful of the fact that the appeal from any decision that I might make would be by way of special leave to the High Court, which would be undesirable.
48. The preferable course is for the matter to be remitted to the Magistrates Court of Western Australia to be determined on its merits.

Costs

49. Both counsel submitted that if the appeal was allowed, and a rehearing ordered, it would not be appropriate for there to be an order for costs and that the parties should receive costs certificates, both for the appeal and the rehearing. I agree.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 2 July 2012.

Associate:

Date: 2 July 2012

I.A. No.5 filed in the disposed of Appeals is, therefore, disposed of with a direction to the Members of the Implementation Committee to modify the criteria suggested by it in the light of the above suggestions, which have been accepted in this order, for the purpose of identifying members of the SCBA, who are regular practitioners in the Supreme Court, for the purposes indicated in the judgment dated 26th September, 2011. 16. The Members of the Implementation Committee are directed to take expeditious steps in finalizing the Voters’ List of members of the SCBA entitled to cast their votes in the election of Office Bearers of the SCBA, and, thereafter, to set the programme for the election of the Office Bearers and conduct the same as expeditiously as possible. Till then, the arrangement with regard to the management of the SCBA, as is existing, shall continue.

|REPORTABLE           |



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                              I.A. NO.5 OF 2012
                                     IN
                              I.A. NO.1 OF 2011
                                     IN
                    CIVIL APPEAL NOS.3401 & 3402 OF 2003

1



2 Supreme Court Bar Association & Ors.  … Appellants


           Vs.



           2 B.D. Kaushik                                     … Respondent






                               J U D G M E N T




ALTAMAS KABIR, J.


1.    I.A.No.5 of 2012 has been filed on behalf of  the  Supreme  Court  Bar
Association (SCBA) in Civil Appeal Nos.3401 and  3402  of  2003  which  were
disposed of by this Court on 7th May,  2012,  with  various  directions.  In
fact, this application arises out of the said directions.

2.    The aforesaid appeals had been filed on behalf of  the  Supreme  Court
Bar Association and its then Honorary Secretary, Mr. Ashok  Arora,  and  Ms.
Sunita B. Rao, Coordinator, Implementation Committee of  the  Supreme  Court
Bar Association, against an interim order passed by the Civil Judge  on  5th
April, 2003, on an application for injunction filed in  Civil  Suit  Nos.100
and 101 of  2003.   In  the  said  appeals  various  questions  were  raised
regarding the administration of the Supreme Court Bar Association.   One  of
the questions raised was with regard to the amendment  of  Rule  18  of  the
SCBA Rules governing the eligibility of the members of the SCBA  to  contest
the elections to  be  elected  and  to  elect  the  Office  Bearers  of  the
Association.  After an extensive hearing, the appeals were disposed of by  a
detailed judgment with various directions, on the basis of the principle  of
“One Bar One Vote” projected by the learned Advocates who  appeared  in  the
matter.

3.    While disposing of the said appeals the Hon’ble  Judges  noticed  that
there were many Advocates, admitted as members of  the  SCBA,  who  did  not
practise regularly in the Supreme  Court  and  were  members  of  other  Bar
Associations and that the majority of them made  their  presence  felt  only
during elections for the Office  Bearers  of  the  SCBA.   This  Court  was,
therefore, called upon to devise a mechanism by which those members  of  the
SCBA who practised regularly in this Court could be  identified  as  members
who could be entitled to vote to elect the Office Bearers of the  SCBA,  and
those who would not be entitled, while  retaining  their  membership.  After
considering the matter at length, Their Lordships  came  to  the  conclusion
that in order to identify those advocates who  practised  regularly  in  the
Supreme  Court,  the  criteria  adopted  by  this  Court  for  allotment  of
Chambers, as explained in Vinay Balchandra Joshi Vs.  Registrar  General  of
Supreme Court of India [(1998)  7  SCC  461],  should  be  adopted  for  the
purpose of identifying the members who would be entitled to  vote  to  elect
the Office Bearers of the  SCBA.   Their  Lordships,  accordingly,  directed
that the criteria adopted in Vinay Balchandra Joshi’s case  (supra),  should
be adopted by the SCBA and its Office Bearers to  identify  those  advocates
who practised regularly in the Supreme Court. A further direction was  given
that the Office Bearers of the SCBA or a small Committee to be appointed  by
the SCBA, consisting  of  three  Senior  Advocates,  should  take  steps  to
identify the regular practitioners in the manner  indicated  in  the  order,
and, thereafter, to prepare a list of members regularly practising  in  this
Court and another separate list of members not regularly practising in  this
Court and a third list of temporary members of the SCBA.  These  lists  were
directed to be posted on the SCBA  website  and  also  on  the  SCBA  Notice
Board. It was also directed that a letter should be  sent  by  the  SCBA  to
each member, informing him about the status of his membership, on or  before
February 28, 2012.  Any  aggrieved  member  would  be  entitled  to  make  a
representation to the Committee within 15 days from the date of  receipt  of
the letter from the SCBA, and if a request was made to be heard  in  person,
the representation  was  to  be  heard  by  the  Committee  and  a  decision
thereupon was to be rendered in the time specified therein. The decision  of
the Committee was to be communicated to the member concerned  and  the  same
was to be  final,  conclusive  and  binding  on  the  member  of  the  SCBA.
Thereafter, a final list of advocates regularly  practising  in  this  Court
was to be displayed by the SCBA.

4.    Several other directions were also given as to what  was  to  be  done
after the final list  of  the  regular  practitioners  was  made  ready  and
published.
The Court also found that the amendment made in Rule 18 of  the  SCBA  Rules
was legal and valid and that no right of the Advocates  had  been  infringed
by such amendment.

5.    In keeping with the suggestions made on behalf of  the  SCBA  and  the
recommendations of the Court, Mr. K.K. Venugopal,  Mr.  P.P.  Rao,  and  Mr.
Ranjit Kumar, all Senior Advocates, practising in the  Supreme  Court,  were
appointed as the members  of  the  Implementation  Committee.   After  their
appointment,  the  members  of  the  Implementation   Committee   issued   a
questionnaire on 2nd January, 2012, which was forwarded to all  the  members
of the SCBA, to be filled up and returned to the office of the SCBA for  the
purposes indicated in the judgment itself.  The questionnaire was meant  for
Senior  Advocates,  Advocates-on-Record  and  Non-Advocates-on-Record.   The
same  was  prepared  in  keeping  with  the  procedure  followed  in   Vinay
Balchandra Joshi’s case (supra).  Thereafter, the  Implementation  Committee
held a meeting on 11th January, 2012 and adopted the  following  resolutions
:


      “2. In view of the directions of the Supreme Court of  India,  in  its
         judgment in SCBA  Vs.  B.D.  Kaushik,  to  the  effect  that  “the
         Committee of the SCBA  to  be  appointed  is  hereby  directed  to
         prepare a list of regular members practising in this Court……”, the
         following categories of members of SCBA, in addition to  the  list
         of members already approved by the Implementation  Committee,  are
         entitled to vote at, and  contest,  the  election  of  the  office
         bearers of the SCBA as ‘regular members practising in this Court’:


               i) All Advocates on Record who have filed  cases  during  the
                  calendar year 2011.


              ii) All Senior Advocates designated as Senior Advocates by the
                  Supreme Court of India, who  are  resident  in  Delhi  and
                  attending the Supreme Court of India.

             iii) All members who subscribed to any of the  cause  lists  of
                  the Supreme Court of India during the calendar year 2011.

              iv) All members who have been members of the SCBA for the last
                  25 years, commencing  01.01.1986,  and  have  been  paying
                  subscription to the SCBA regularly, in each one of the  25
                  years.

      3.    The list of such members who are eligible to  vote  and  contest
         elections will be  put  up  on  the  SCBA  notice  board  for  the
         information of all members and will  also  be  circulated  in  the
         usual manner including circulation  with  the  daily  cause  list.
         Copies of this list will also be available at the  reception  desk
         in Library I.


      4. The persons whose names figure in this list need not reply  to  the
         questionnaire issued earlier.”



6.    At a further meeting of the  Implementation  Committee  held  on  15th
January, 2012, certain other resolutions were adopted  identifying  some  of
the members of the SCBA who were not required to fill up the  questionnaire,
except to indicate the category under  which  they  claimed  to  be  regular
members practising in the Supreme Court.

7.    Thereafter, certain incidents took place to which we  need  not  refer
in these proceedings.  However, certain disputes arose between  the  members
of the Supreme Bar Association regarding  the  criteria  laid  down  by  the
Implementation Committee for identification of  members  who  are  regularly
practising  in  the  Supreme  Court.   As   a   consequence,   Interlocutory
Application No.5 came to be  filed  on  behalf  of  the  Supreme  Court  Bar
Association seeking clarification and directions in regard to  the  criteria
evolved by the Implementation Committee.

8.    The said application was heard in the presence of the members  of  the
SCBA and the Implementation Committee  and  certain  suggestions  were  made
which we feel need to be taken  into  consideration  by  the  Implementation
Committee while identifying the members  of  the  SCBA  who  were  regularly
practising in the  Supreme  Court  for  the  purpose  of  determining  their
eligibility to vote to elect the  Office  Bearers  of  the  SCBA.  In  fact,
certain suggestions were  made  with  regard  to  criteria  evolved  by  the
Implementation Committee.

9.    The first criteria laid down by the Implementation Committee that  all
the members of the SCBA who had 50 appearances and/or 20 filings in a  year,
should be considered to be regular practitioners in the Supreme  Court,  was
duly accepted.  A suggestion was also made to  include  advocates  who  have
been  continuously  representing  the  State  Governments   or   the   Union
Government before the Supreme Court for at least  three  years  and  have  a
minimum of 50 appearances for such Government, in the  category  of  regular
practitioners with right to vote. Another suggestion  was  made  to  include
Advocates, who were Government Standing Counsel  or  counsel  appearing  for
the Government in the Supreme Court and all Advocates-on-Record in the  said
category.  It was also suggested that non-Advocates-on-Record  who  were  in
the panel of Amicus Curiae, approved by  the  Supreme  Court  Registry,  and
members who are working as Mediators in the Supreme Court Mediation  Centre,
be also included in this category.  The said suggestions were  found  to  be
sound and were accepted.

10.   The next suggestion of the Implementation Committee  was  with  regard
to the inclusion of all Senior Advocates  of  the  Supreme  Court,  who  are
resident in Delhi and attending the Supreme Court. It  was  rightly  pointed
out that in view of the close proximity of the  satellite  townships,  which
had grown up around Delhi, such  Senior  Advocates  who  resided  in  Noida,
Gurgaon, Faridabad and Ghaziabad, should also be included in this  category.
The said suggestion is sound and is accepted.

11.   Yet another criteria for identification of  regular  practitioners  in
the Supreme Court as suggested by the Implementation Committee was that  all
members of the SCBA who had attended the Supreme Court at least 90  days  in
the calendar year 2011, as established by the database showing  the  use  of
proximity cards maintained by the Registrar  of  the  Supreme  Court,  could
also be included in the list of regular  practitioners.  It  was  felt  that
instead of attendance of 90 days, the same should be  reduced  to  60  days,
which suggestion is duly accepted. As a supplement to the above, it is  also
accepted that appearances before the  Chamber  Judge,  as  also  before  the
Registrar’s Courts, in the years 2009 and 2010, will be counted towards  the
total number of appearances.

12.   One of the suggestions  made  by  the  Implementation  Committee  with
regard to the directions contained in the judgment delivered  in  the  Civil
Appeals regarding  publication  of  details  of  the  Voters’  List  on  the
website, showing the different categories of members of the  SCBA  who  were
recognized as regular practitioners and those who were not, was  also  taken
up for consideration. It was felt  that  such  publication  could  adversely
affect the learned Advocates who were not shown to be regular  practitioners
in the Supreme Court.  It was generally felt that  the  publication  on  the
website should not be resorted to and individual members should be  informed
of their status either by E-mail or through SMS on their mobile phones.  The
objection has merit  and  is  allowed  and  such  publication  need  not  be
effected.

13.   It was specifically felt that allotment of  Chambers,  other  than  in
the Supreme Court, should not be made a  criteria  for  identifying  members
who were regular practitioners in the Supreme Court and  the  said  decision
was also considered and accepted.

14.   It was lastly indicated that persons who had  contested  elections  to
the Executive Committee of any Court annexed  Bar  Association,  other  than
the SCBA, during any of the years from 2007 to 2012, could  not  be  allowed
to vote to elect the Office Bearers of the SCBA on the “One  Bar  One  Vote”
principle, or to attend the General Body meetings of  the  SCBA.   The  same
would also include a person who had cast his vote in  any  election  to  the
Executive Committee of any Court annexed Bar  Association,  other  than  the
SCBA, for the abovementioned years. The said  suggestion  is  also  accepted
and approved.

15.   I.A. No.5 filed in the disposed of Appeals is, therefore, disposed  of
with a direction to the Members of the Implementation  Committee  to  modify
the criteria suggested by it in the light of the  above  suggestions,  which
have been accepted in this order, for the purpose of identifying members  of
the SCBA, who are regular  practitioners  in  the  Supreme  Court,  for  the
purposes indicated in the judgment dated 26th September, 2011.


16.   The Members of the  Implementation  Committee  are  directed  to  take
expeditious steps in finalizing the Voters’ List  of  members  of  the  SCBA
entitled to cast their votes in the election of Office Bearers of the  SCBA,
and, thereafter, to set  the  programme  for  the  election  of  the  Office
Bearers and conduct the same as expeditiously as possible.  Till  then,  the
arrangement with regard to the management  of  the  SCBA,  as  is  existing,
shall continue.


                                                     ………………………………………………………J.
                                     (ALTAMAS KABIR)





                                                     ………………………………………………………J.
                                     (J. CHELAMESWAR)
New Delhi
Dated :July 20, 2012.
-----------------------

                                     15