Expedition of leave to appeal

Expedition of leave to appeal

Tullo & Tullo

1. Ms Tullo (“the wife”) and Mr Tullo (“the husband”) are engaged in property settlement proceedings undertaken pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) and related proceedings.
2. By an Application in an Appeal filed on 10 August 2016, the wife seeks an expedited hearing of her application for leave to appeal and, if leave is given, her appeal against certain interim financial orders made by Loughnan J on 7 July 2016, as per her Notice of Appeal filed on 3 August 2016. Today, the wife moved in relation to Orders 3, 4, 5 and 8 of her Application.
3. The orders under appeal require the wife to pay the husband $80,000 by way of partial property settlement and $93,000 by way of interim costs order and otherwise that she pay half of his costs of the interim application calculated on a party/party basis.
4. The husband supports the wife’s application for expedition, however, he opposes other orders that the wife seeks in her application. Those being, inter alia, that the wife’s application for leave to appeal be consolidated with the hearing of the substantive appeal and heard at the same time pursuant to r 22.12(b) of the Family Law Rules 2004 (Cth) (“the Rules”); and also to the extent that the wife sought that the ultimate appeal be dealt with on the papers. I pause to observe that the various orders sought by the wife for a hearing on the papers and limitations on the time to be allocated if the hearing is to proceed by way of oral argument are unusual. There is nothing so unusual about this case that I would depart from the manner in which the Court generally conducts its business. For the reasons explained during oral exchanges that component of the application will be dismissed.
5. In any event, it perhaps is useful for the wife to appreciate that pursuant to r 22.09(1) of the Rules, she is entitled to amend her grounds of appeal without permission in accordance with that rule, and to that extent, the prayer for relief is unnecessary. The point being, the Rules entitle the wife to make those amendments at any time up to and including the date fixed for filing of the summary of argument. No such date has been fixed. The procedural hearing is listed next week.
6. With respect to the consolidation of the issue of leave and the hearing of the substantive appeal, the approach taken by this Court is usually that the question of leave is heard at the same time as the substantive appeal. However, counsel for the husband raises a valid point in effect, that subsequent to the decision of Medlow & Medlow (2016) FLC 93-692 and, in particular, at [57], where an application for leave to appeal appears to have limited prospects of success which it is said, not without some force, is the case here, a bifurcated hearing has obvious merit. I am not though inclined to order a separate leave hearing but as I indicated during exchanges I will ensure this application is brought to the attention of May J as Senior Judge of the Appeal Division, and will leave it to her Honour to decide whether a Full Court should be convened to deal with the question of leave.

Relevant background

7. In order though to give the application for expedition context, it is necessary to refer to some brief background facts. These are largely taken from his Honour’s reasons and the documents filed in support of this application.
8. The husband is currently 58 years of age and the wife is 56. The parties married in 1984 and separated in late 2009. Their relationship of some 25 years produced five children, three of whom are now adults and two who are twin boys aged 16. The twins reside with the wife as do a number of the adult children. They live in the family home.
9. The husband instituted proceedings in the Federal Circuit Court on 13 December 2010, however, those proceedings were discontinued. He contends he discontinued the proceedings in the hope that the parties could reach a settlement of property. However, agreement was not reached and the husband re-instituted proceedings on 24 September 2015 in this Court.
10. The parties participated in a case assessment conference in February 2016. They subsequently attended a conciliation conference but again have been unable to reach an agreement.
11. On 11 April 2016 the husband filed an Application in a Case seeking interim financial orders, including an order for partial property settlement. He filed a further application in May 2016 seeking an anti-suit injunction in relation to an action the wife initiated in April 2016 in the District Court of New South Wales whereby she seeks damages against him arising out of two instances of alleged sexual assault in March 1992 and late 1998. The husband denies the wife’s claim. His anti-suit injunction was dismissed by the primary judge and the proceedings in the District Court continue.
12. The husband’s two Applications in a Case came before the primary judge for hearing on 7 July 2016. As I indicated earlier, the anti-suit injunction sought was dismissed and his Honour made the financial orders which are the subject of this application for leave to appeal.
13. On 3 August 2016 the wife filed her Notice of Appeal and subsequently her application for expedition and to adduce further evidence in the appeal. She also requested that her application not be listed for hearing prior to 5 October 2016. Hence the reason why the matter has not come on for hearing before today.
14. The husband filed a Response to the wife’s Application on 16 September 2016 along with his supporting affidavit material. As I mentioned earlier, he agrees that the appeal be expedited albeit he would seek that the question of leave be dealt with separately.
15. I note that the proceedings at first instance seem to be listed in the duty list in late November 2016.

Discussion

16. Section 94(2D)(j) of the Act provides the Full Court of the Family Court may make an order to expedite the hearing of an appeal, including an application for leave to appeal. There is no provision in the Act or the Rules which specifically deals with the criteria to be applied on an application for expedition of a matter in the Appeal Division.
17. However, r 12.10A of the Rules deals with applications for an expedited trial. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases which is the guiding principle for this application. The potentially relevant factors referred to in the rule and which are also relevant to appeals will be discussed.
18. Sub-paragraph (a) is concerned with whether the wife has acted reasonably and without delay in the conduct of the case. There is no doubt in relation to the application for leave to appeal the wife has moved promptly and done what is required of her to prosecute her application for leave to appeal and the application for expedition. I pause to of course observe that the wife was not so concerned about expedition that she sought that her application be dealt with in the usual way and proffered a later than usual hearing date. In any event, that seemed to be because the solicitor was unavailable and it is not a matter that should count against expedition if it is otherwise justified.
19. Sub-paragraph (c) concerns prejudice to the respondent, in this case the husband. As earlier noted, the husband supports the application for expedition and the application of the sub-paragraph is therefore moot.
20. Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the detriment of other cases. This is a particularly important factor in this appeal as it is an appeal against interlocutory orders and ordinarily the court should be concerned with appeals in relation to final orders. Hence the necessity for leave. In any event, when I say the detriment of other cases, I mean to other cases that have been filed earlier and would be called on for hearing in the ordinary course, but not if this case was expedited. Importantly, of course, it also includes to the detriment of other cases where the orders under appeal are final orders rather than orders of the type with which we are concerned here.
21. Examples of what constitute a relevant circumstance are set out in r 12.10A(4)(a) – (g), however that list does not purport to be exhaustive. The wife’s case for expedition is essentially premised upon the notion that she is financially unable to comply with the orders, as well as what is said to be the underlying weakness in the decision itself.
22. However, it is difficult to see how the premise concerning the wife’s financial inability to comply with the orders can be made good. On either party’s case, as presented to the primary judge, they respectively put their net assets at somewhere between $2.3 and $3 million. The evidence before the primary judge was that both parties are currently employed, with the wife earning some $2,279 by way of wages and then having the investment income referred to in her Financial Statement which became Exhibit A in these proceedings. I note the husband now deposes to receiving an income of some $740 per week. The wife argues that her outgoings exceed her income by approximately $500 per week and of course the husband indicates he has a shortfall of some $410 per week.
23. More relevantly though, the parties own four parcels of real estate; the family home in which the wife resides and three investment properties which are subject to mortgages. It is the wife’s contention that she is unable to realise those investment properties because she requires the investment income in order to meet outgoings and even if she did, the amount produced would be insufficient to satisfy her obligations pursuant to the orders. I am not inclined to accept those propositions. Perhaps the wife might contemplate the sale of the property at Suburb G along with the shares in the wife’s possession. Too much time was taken up today about why the husband and wife cannot agree on the sale of a particular tranche of shares. The net effect of this is that my preliminary view is that the evidence establishes that the wife could realise or have access to sufficient funds to enable her to comply with the orders.
24. Much was made by counsel for the wife about what is said to be his Honour’s flawed reasoning at [44] of the trial reasons which provides:

As to the source of these funds, the orders sought are in the form of a bare order, and I think that is the appropriate course. A fall-back position would be allowing the wife to sell something, and presumably the husband will happily join in that process. There are jointly owned shares. They could be sold. The wife has some shares in her own name. There is the [E Town] property, there is a property at [C Town]. I think probably rather than picking those things out for the wife, on the basis that the husband will cooperate in the sale of any jointly owned asset and will not object to the sale of an asset owned solely by the wife, I should just make a bare order. That leaves the spectre of the parties coming back on an enforcement issue and I would be disappointed if that happened but perhaps then we would be able to address the priority that might be given to one property or another.

25. A proper reading of [44] of the trial reasons demonstrates that his Honour thought it was appropriate to not require the wife to sell any particular asset but to leave it to her to structure her financial circumstances as she thought best. Of course, if the question of enforcement were to arise then the Court would determine which of the assets should be realised if the wife herself decides that she will not take advantage of the generous approach evidenced in [44] of the trial reasons. In the event, the essential plank of the argument that the wife could not raise the funds and hence expedition is required is not made out.
26. Finally, it is necessary to consider the grounds of appeal and the prospects of success in relation to an application for leave. All that needs to be said at this point is that the wife raises a number of challenges to the trial reasons and the exercise of discretion. It is difficult to see on the grounds, as presented, including the amended ground that the appeal is presented on such strong grounds that this Court should dislocate other appeals so as to give this one priority. In any event, those arguments do not really come to grips with the fact that these orders are interlocutory and the requirement for leave must be met. I agree with the assessment by counsel for the husband that the requirement for leave presents a significant hurdle to the wife and is persuasive of the Court declining to give expedition in this case. Of course, these remarks must be understood where the Court is in the position of not having had the benefit of full argument and it may be that at a hearing of the appeal and/or a question of leave that the preliminary view expressed here gives way in the face of more persuasive argument.

Conclusion and Costs

27. The case for this appeal to be given priority over all other appeals awaiting hearing has not been made out and the application for expedition should be dismissed.
28. The appropriate order is that the question of costs be costs in the appeal.