Adderley and Heybourne
[2019] FamCAFC 217
•21 November 2019
FAMILY COURT OF AUSTRALIA
| ADDERLEY & HEYBOURNE | [2019] FamCAFC 217 |
| FAMILY LAW – PROPERTY – Where during the relationship the parties operated a company together as directors – Where following separation the husband operated a new business as sole director – Where the wife says she was excluded from the operation of the business after separation – Where the wife’s grounds of appeal attack the substantive exercise of the primary judge’s discretion –Where an adjustment of 25 per cent in favour of the wife was not made in error – Appeal dismissed – Order that the wife pay the husband’s costs as assessed. |
| Family Law Act 1975 (Cth) s 90SF and s 117 |
| Bennett v Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48 Metwally v University of Wollongong (1985) 60 ALR 68 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Ms Adderley |
| RESPONDENT: | Mr Heybourne |
| FILE NUMBER: | BRC | 5006 | of | 2018 |
| APPEAL NUMBER: | NOA | 48 | of | 2019 |
| DATE DELIVERED: | 21 November 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 9 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | [30 April 2019] |
| LOWER COURT MNC: | [2019] FCCA 1124 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Adrian Hawkes Lawyers |
Orders
The wife’s appeal be dismissed.
That the wife pay the husband’s costs of the appeal as assessed, excluding any costs of or incidental to the assessment of those costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adderley & Heybourne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 48 of 2019
File Number: BRC 5006 of 2018
| Ms Adderley |
Appellant
And
| Mr Heybourne |
Respondent
REASONS FOR JUDGMENT
introduction
Ms Adderley appeals against orders made by the primary Federal Circuit Court judge which effected a division of the net property of the parties 75 per cent to her and 25 per cent to Mr Heybourne. Although the parties were not married, it is nonetheless convenient in these reasons to refer to them respectively as “the wife” and “the husband.” The husband opposes the appeal.
As she did at the trial before the primary judge, the wife self-represented at the hearing of the appeal. Many of the matters that she now raises are not proper grounds of appeal. Further, in her Summary of Argument, although purporting to arrange her arguments by reference to the appeal grounds, she introduced many new matters of complaint, and in some instances did not in fact advance arguments in support of the grounds articulated in her Notice of Appeal. Nonetheless I will attempt in these reasons, in the course of dismissing her appeal, to engage with the matters upon which the wife ultimately relied.
BACKGROUND
The wife is presently 52 years of age, and the husband 51. The parties commenced living together in 2006 and separated in January 2017. There were no children born to the relationship.
During the course of their relationship, the parties operated a construction business via a company of which they were both directors. After separation the husband continued to conduct a construction business, albeit via a new corporate entity, of which he was the sole director.
THE PRIMARY JUDGMENT
The primary judge determined that, as at the time of trial, the parties had assets to the value of $537,450.00, liabilities of $434,325.00, and hence calculated the value of the net pool as being $103,125.00.
Her Honour found that the parties’ contribution based entitlements were equal, and weighed factors under s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) as favouring the wife, principally because she was unemployed, 52 years of age, without the husband’s skill-set, and had some health issues. Her Honour recognised at [66] that a 25 per cent adjustment was “significant” but was mindful that, in dollar terms, it was reflective of only one year of the husband’s after tax income. Her Honour was of the view that, if the husband’s income had been higher, then the adjustment in favour of wife may have been even greater than 25 per cent.
The primary judge was persuaded that a 75 per cent/25 per cent split of the net pool was just and equitable.
THE APPEAL GENERALLY
The grounds advanced by the wife largely attack the substantive exercise of her Honour’s discretion. The difficulties in such a challenge succeeding are well known.[1] Specifically in House v The King (1936) 55 CLR 499 at pages 504 to 505, the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513 at 539; CDJ v VAJ (1998) 197 CLR 172.
GROUNDS 1 AND 4
Ground 1 provides:
The learned trial judge took into account irrelevant matters that she was consistently presented with by the other side.
Ground 4 provides:
The learned trial judge acted upon a wrong principle.
Although one would not normally discuss those grounds jointly, in fact as argued by the wife, ground 4 asserts that her Honour took into account extraneous or irrelevant matters. Further, as argued, ground 1 did not descend into any particularisation of the alleged irrelevant matters. It is therefore convenient to deal with both grounds conjointly.
The first point to note is that no objections to the husband’s material were raised by the wife before the primary judge.
Next, in the wife’s Summary of Argument filed 11 September 2019 at page 4, on appeal she claimed that “[t]he husband presented a changing narrative to the court [to the effect] that the Wife was not central to the [construction] business” However at [50], when assessing contributions, the primary judged specifically said that “the wife’s contributions over an eleven year relationship both generally and to [Company B] [the former construction business] which morphed into [Company C) [the current construction business] cannot be ignored.” Although her Honour did go on to say that the contributions made post-separation to the business were made by the husband, nonetheless her Honour ultimately concluded that an equal contribution based entitlement was appropriate.
One of the wife’s complaints at trial was that she had been effectively excluded from the operation of the business after separation. In a sense that was true, in that post-separation the husband deployed his skills as a tradesman via a company which the wife was not involved with. However given the separation, he cannot justifiably be criticised for doing so. In any event, the business which the husband conducted post-separation remained one of the assets available for division at trial, although it was valued as having no goodwill. That valuation was not challenged by the wife.
To the extent that the wife asserts in her Summary of Argument at page 4 that “[t]he Husband’s case wasted court time and dealt with conjecture and irrelevant matters”, a review of the transcript does not disclose that is an accurate summary. Rather, as the solicitor advocate for the husband said, it was the wife’s conduct before the primary judge which prolonged the proceedings unnecessarily.
Turning to some of the specific matters the wife advances by reference to ground 4, in her Summary of Argument at page 5 she asserts that “the Court was detoured into discussions about several [business assets]” and “[t]here was investigation into a 2011 site fall causing an injury to the Wife (As per the original)”.
To the extent that the primary judge referred in her reasons at [58] to the wife’s business activities, it was only to say that they “do not appear productive of ongoing income.” There does not appear to be any reference in the judgment to a building site fall in 2011, but there is reference at [35] to a fall of the wife in 2014. It was relevant, because it could have potentially had an impact upon her earning capacity, although her Honour identified that the evidence did not enable a finding to that effect. On the contrary, at [35] she said “[i]ndeed on her evidence she continued to work in the business following separation until about early 2017”.
The wife further asserts that there was reference at the trial to a domestic violence matter between the parties being heard in another court (presumably, the Magistrates court) but again, to the extent that is mentioned in the primary judge’s reasons, her Honour only said at [41] “[h]owever the parties’ level of conflict and distrust and resultant police involvement leading to domestic violence proceedings suggest that they were unable to effectively and jointly operate the business together.” That much appears clear.
Finally the wife asserts, seemingly because she says it was irrelevant, that her previous career was wrongly raised in the trial, but the only reference to that in the primary judge’s reasons is at [58] where her Honour said “[w]hat income she was able to generate pre-cohabitation from … work is not in evidence.” The wife goes on to assert in her Summary of Argument at page 5 that she was “committed to building a career in unison with the Husband and the business as she had previously studied building design/interior design and they created a complimentary skilled company together.” Although the wife now appears to assert that this was irrelevant, at trial she in fact pressed that as a significant issue. Indeed that was precisely the finding which her Honour made at [31] where she said “[t]he wife largely provided creative and administrative input in the management of the business and the husband by virtue of his skillset undertook the quoting and construction work.”
There is no merit in either ground 1 or 4.
GROUND 2
Ground 2 asserts:
The learned trial judge was biased including, there was no professional defence advantaged to the wife, and that was not favourable.
The High Court in Johnson & Johnson (2000) 201 CLR 488 (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, stated at [11] that the test for apprehended judicial bias is:
…[W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
At [12] their Honours continued:
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
(Footnotes omitted)
In her Summary of Argument at page 4, the wife identified three particular matters which she said founded her concerns in relation to judicial bias. The first was that the primary judge preferred the husband’s solicitor’s “advantage as a learned lawyer creating bias”, whereas she was self-represented. Secondly, she said that she “wanted to rely on a level of Christian protection being Catholic” which she says proved to be a point of contention. Thirdly, she said that she found the court environment “disempowering” because she was “shut down from communicating.”
Dealing with those matters in that order, the first point to note is that the solicitor whom she asserts had an advantage over her, in fact only appeared on the second of the two days of the hearing before the primary judge, as a different solicitor appeared on the first day. However, in any event, a review of the transcript demonstrates that, far from favouring the second solicitor for the husband, her Honour expressed a degree of exasperation from time to time at what appears to have been perceived by her as his lack of preparation, precision, and referring to matters which were not in evidence.
There is no suggestion that the primary judge failed to adequately explain the trial procedure to the wife, and further, her Honour actively sought on a regular basis to elicit information from the wife to assist in understanding her case. On other occasions the primary judge assisted the wife in the course of cross-examination of the husband. Whilst it is likely that there was a disadvantage to the wife by virtue of not having legal representation, that was not able to be completely remedied by the primary judge. In any event, such disadvantage as remained is not capable of constituting judicial bias.
Turning then to the “Christian protection” issue, there was an exchange on the first day of the trial as follows:[2]
[2] Transcript 15 February 2019, p.45 line 10 to p.46 line 14.
[THE WIFE]: Well, the other thing that is very important is that justice is served, and I am a Catholic and in Corinthians, it says that I should be represented and should only be judged by a Catholic judge.
HER HONOUR: Right. I see. Thank you. Which verse – which chapter in Corinthians can you point me to that? I’ll just bring it up.
[THE WIFE]: Corinthians is quite small. Go in and read it.
HER HONOUR: Just excuse me. Yes. Corinthians chapter 4, verse what?
[THE WIFE]: Are you mocking my religion?
HER HONOUR: I’m absolutely not mocking your religion. I am looking at the particular verse you’re referring to me because I’m - - -
[THE WIFE]: I am – I’m looking - - -
HER HONOUR: - - - not familiar with it - - -
[THE WIFE]: - - - for the truth.
HER HONOUR: - - - so I need to look at it.
[THE WIFE]: I’m looking for truth.
HER HONOUR: Well, can you just - - -
[THE WIFE]: And representation – I have been told I need to go to a righteous person. Somebody who is righteous in delivering the justice in this case, not a masculine takedown of me. That’s not going to happen.
HER HONOUR: Right. Thank you.
[THE WIFE]: It’s not fair.
HER HONOUR: So the - - -
[THE WIFE]: You can continue with it, if you like, but I will protest, and I’ll be saying something. I’m not having this.
HER HONOUR: Yes. All right. Thank you. Well, I’m not quite sure I understand the - - -
[THE WIFE]: You’re just - - -
HER HONOUR: - - - basis of - - -
[THE WIFE]: Well, you’re bullying me and bulldozing me with not the proper representation. Everyone fully, here, understands the truth. The truth is that he has way undervalued the two-acre property. They’re now trying to dump me with tax bills that are not mine, and he has borrowed from this company - - -
There is nothing in that passage that would suggest to a fair minded lay observer that the primary judge was anything other than impartial.
Finally the wife asserts in her Summary of Argument at page 4 that she was “shut down” from communicating. There is an element of truth to this in that, on occasions, when the wife was inappropriately interrupting, interjecting, or otherwise impeding the proper progress of the proceedings, the primary judge did have to intervene to ask her to remain quiet. However the transcript is replete with examples of the wife confidently communicating with her Honour, even to the point of accusing the judge of “bullying me and bulldozing me”[3] as recited above. However that is not a proper characterisation of the primary judge’s attempts to maintain control of the courtroom, in the face of an unruly litigant in person. Her Honour consistently attempted to steer the wife towards relevant matters, and to maintain a proper course for the hearing. True it is that ultimately her Honour, in the face the wife’s continued interruptions and over-talking of her, asked a security guard to sit in, and forewarned the wife that if she continued to interrupt, she would have her removed from the court and proceed with the balance of the hearing in her absence, but that in fact did not transpire, as her Honour’s threat appeared to coerce the wife into better behaviour.
[3] Transcript 15 February 2019, p.46 line 11.
Whilst it may be that some self-represented litigants find the strictures of the trial process disempowering, they are essential to the efficient management of emotionally charged family law proceedings. A judge should be alert to the prospect of a loss of control of the courtroom, as the primary judge here clearly was. There was nothing in her engagement from time to time with the wife which would suggest to a fair minded observer, that her Honour was not bringing an impartial mind to bear.
This ground of appeal is not made out.
GROUND 3
Ground 3 asserts:
The learned trial judge failed to award the appellant procedural fairness. Her Honour was not provided full & correct disclosure by the husband.
(As per the original)
In the wife’s Summary of Argument at page 4, the procedural fairness aspect is not emphasised, but rather it is said that her Honour “failed to seek full disclosure by the husband in an independent forensic audit.”
Her Honour commenced to hear the trial on 15 February 2019, but it proved incapable of conclusion within the day set aside for it, and therefore her Honour sat again on 16 April 2019.
On 15 February 2019, the primary judge adjourned the trial at 11:00am so that the wife could go and consult the duty lawyer. The trial then resumed at 2:21pm in the afternoon. It transpired that the wife in fact had not spent much of that time with the duty lawyer, but only consulted with her for about 10 minutes, before leaving the court precinct. When the matter resumed that afternoon, the wife then sought an adjournment, to investigate “financial issues that have gone under the radar”,[4] particularly relating to a loan of $90,000.00. A little later the wife announced “I’m going to adjourn to have proper valuations done.”[5] Her Honour then returned to the theme of the loan and identified that it does not appear that this was a matter that had been previously raised in the wife’s evidence. The wife explained that this was the reason why she needed the adjournment. A little later her Honour identified that the wife was saying “there needs to be an audit of the assets”[6] after which the wife said she wanted to “seek a proper [valuation]”[7] of the former matrimonial home.
[4] Transcript 15 February 2019, p.29 line 25.
[5] Transcript 15 February 2019, p.32 line 17.
[6] Transcript 15 February 2019, p.37 line 27.
[7] Transcript 15 February 2019, p.37 line 35.
The ensuing discussion elicited that the wife had been unable to obtain legal representation to date, and it appeared unlikely she would be able to do so in the future. Her Honour then ruled upon the application for an adjournment, however her reasons for doing so were not in the transcript obtained by the wife, and were not otherwise before me. It is therefore not possible for me to identify the basis upon which the wife’s application for an adjournment failed.
However, in effect the wife did get an adjournment, because as I have indicated, the matter could not conclude on 15 February 2019, and did not resume until 16 April 2019. However, the wife self-represented again on 16 April 2019, and although she did unsuccessfully seek to rely upon an additional affidavit sworn 12 April 2019, it did not include any form of audit report in relation to the husband’s activities. Rather at [24] of that affidavit, the wife indicated that she had sought the appointment of a forensic accountant, but the husband had refused to jointly engage one.
Absent knowing the reasons for the refusal of the wife’s application to adjourn the trial, it is simply not possible to properly consider this ground. It was incumbent upon the wife to obtain the relevant transcript, and in any event, it is for her to establish error and overcome the presumption of correctness of the decision under review.
I am not satisfied that by refusing the adjournment application on 15 February 2019, the wife was denied procedural fairness. Ground 3 therefore fails.
GROUND 5
Ground 5 asserts:
The learned trial judge erred by preferring the evidence of the husband when the evidence established the wife’s entitlement and right to be paid invoices.
In her Summary of Argument, the wife did not really address this ground, but rather advanced an argument that the decision was affected by mistakes of fact. There are some nine specific mistakes asserted by the wife. I will deal with them in the order that they appear in her outline.
Need for wife to retain building company
The wife says that the primary judge mistook her submission that she needed to have control of the parties’ building company in order to support her aspiration to obtain her own builder’s qualification, via a Housing Industry Association course. Rather she notes that at [56] her Honour said that the husband “is seeking higher qualifications as a builder with no evidence to suggest that he is doing that for academic interest and other than to improve his ability to earn an income.” The wife says that the orders which her Honour made, effectively passing control of both of the building companies to the husband, thwarted her desire to commence work in the building industry on her own account.
However it is by no means clear that before the primary judge the wife ever sought to retain the building company. In the transcript for 15 February 2019, the wife told the primary judge “I did try for my builder’s licence, your Honour, and [the husband] rang the QBCC to protest even though I had a letter from HIA to say that I could go ahead with the course.”[8]
[8] Transcript 15 February 2019, p.23 lines 37-39.
When the trial resumed in April, during submissions, her Honour said to the wife “you’re are not in a position anymore because you don’t have the qualifications as a builder, nor are you insured or registered as a builder, to continue to do the work that you did in partnership with the husband through [Company B] during the relationship (As per the original).”[9] The wife did not then assert that she intended to, or wished to, retain one of the companies to obtain qualifications as a builder. Indeed a little later the wife said to her Honour “like you said, I can’t run a company – I can’t run a building company, so I have to have another income.”[10]
[9] Transcript 16 April 2019, p.50 lines 31-34.
[10] Transcript 16 April 2019, p.61 lines 29-30.
It is therefore incorrect to say that the primary judge mistook the wife’s submissions. Even if at some earlier stage the wife had sought to include the building company as part of her division of property, her ultimate position could not have been made plainer.
Rejection of wife’s April affidavit
When the trial adjourned in February 2019, it was anticipated that all that was left to conclude it was the parties’ submissions. However when it resumed in April 2019, in fact the wife made a series of further applications. The first was to again seek disclosure from the husband, the second was to rely upon a new affidavit, and the third was to submit some videos into evidence. As with ground 3, unfortunately none of the decisions delivered by her Honour in relation to these applications were contained within the transcript before me, nor have they been separately obtained. I therefore do not know the basis upon which her Honour, in each case, refused the wife’s applications. However some additional evidence, in the form of medical reports, which the primary judge did admit into evidence, dealt with the wife’s health.
The wife’s affidavit sworn 12 April 2019, which in large part she was unsuccessful in having admitted before the primary judge, was before me. It is a difficult document to understand. In part, it set out a claim that the husband should pay the wife $180,000.00 for her share in the parties’ business, or transfer to her all his right, title and interest in the parties’ former home. It also sought in the Summary of Final Property Orders Sought at (b) that the husband pay her damages for “injuries, trauma and loss” by virtue of causing her physical, psychological and permanent injury. A number of documents were annexed. Some of these are easily understood, others border on impenetrable.
It is plain that, had that material been admitted, the trial would have been derailed and would have unlikely been able to be concluded. One can reasonably conjecture that may have formed part of the reasons why her Honour declined to accept the evidence. However absent having reference to a transcript of her reasons, I simply do not know. In any event, it cannot be said that the rejection of the material therefore led to the primary judge making a mistake of fact.
Including husband’s motor vehicles and liabilities in the pool
There are two aspects to the wife’s argument in this respect. The first relates to the inclusion by the primary judge in the balance sheet of two motor vehicles acquired by the husband post-separation, together with their attached liabilities, and the second is that this was done without the husband providing up-to-date financial statements for the year ending 30 June 2018.
It appears uncontroversial that the husband’s business’ financial statements for the year ending 30 June 2018 were not in evidence before the primary judge. However there was evidence that post-separation the husband had purchased two motor vehicles, the liabilities attached to which considerably exceeded their value. Although in the course of the husband’s solicitor’s submissions, her Honour contemplated excluding those assets and liabilities from the pool, ultimately she did not do so. Rather at [12], both of the vehicles and their liabilities were included in the pool, but at [57], when discussing factors under s 90SF(3) of the Act, her Honour said as follows:
The court acknowledges that post-separation and for the purpose of the conduct of his business the husband acquired other assets such as motor vehicles and a motorbike necessary for the business. The value of those assets exceed the liabilities attached to them and represent a significant percentage of the pool. They are assets that on his case were necessary for the conduct of the business, not challenged by the wife, liabilities that he will be required to meet for a business from which he will be able to generate an income for his benefit.
Her Honour could have excluded the assets and liabilities from the pool, in consequence of which the pool would have been larger, to the extent of $52,998.00. However as her Honour correctly identified, it was not suggested that the purchase of the assets had been imprudent, or that they were not genuinely business related, and further, the value of the assets, and the value of the liabilities associated with them, were likewise not disputed. In those circumstances, it was permissible to take account of those assets and liabilities as forming part of the pool, and then to recognise the effect of their inclusion in the pool when determining the appropriate adjustment under s 90SF(3) of the Act. In doing so, the primary judge did not make a mistake of fact. To the extent that this ground might assert some other species of error, it has not been established.
Husband’s payout of home loan
It appears as though the husband’s continued servicing of the mortgage secured over the parties’ former home, led to the equity in it marginally increasing. It is difficult to understand what the wife contends is the error of fact committed by the primary judge relating to that. She asserts that the property in question was jointly owned, which whilst legally incorrect, appears to really be an assertion that she had obtained a beneficial interest in it by virtue of contributions made since its purchase. It is then said in the wife’s Summary of Argument at page 6 that the primary judge “did not challenge the Husband’s claim to solely own the property.”
However that is not what in fact occurred. Her Honour identified that the equity in the property was an asset in the pool, which although legally owned by the husband, nonetheless formed part of the joint pool of assets. No injustice was done to the wife by virtue of that approach. It was not an error of fact, nor any other species of error.
“Culture of degradation”[11]
[11] Wife’s Summary of Argument filed 11 September 2019, page 6.
This appears to be something of a continuation of the wife’s complaint that the legal title to the parties’ former home was in the husband’s sole name, in consequence of which she asserts in her Summary of Argument at page 6 that the husband had called her a “squatter,” and apparently tried to have her forcibly removed from the property. Whatever the facts are, and they are far from clear, it does not appear as though a “culture of degradation” was thereby allowed to be introduced by the primary judge, or that even if it did, it informs some species of factual mistake. This aspect of the ground is not made out.
Error of law
In her Summary of Argument at page 6, the wife says:
Her Honour erred in law as to the husband dealing with certain shared funds then under his control such as company profit and home loan overdraft savings, in certain specific ways, also in doing some acts in relation to the conduct of the business carried on by him without giving the wife advanced notice thereof or due respect as shareholder and director.
It is very difficult to understand the nature of the error asserted in this respect; all considered, it cannot be an error of law. This aspect of the ground of appeal is not made out.
Failure to recognise copyright law
This appears to be a claim that the husband infringed the wife’s copyright, by using a derivative of a logo she had designed for the parties’ joint building business, in his new company. It is again very difficult to understand the wife’s claim in this respect, but it appears as though she asserts that she, rather than the original joint building company, owned the copyright to the logo. She then says that by adapting and using that logo, the husband somehow or other infringed her copyright.
At [46] and [47] the primary judge dealt with this issue as follows:
46. The wife asserts that post-separation and without authorisation the husband used the [Company B] logo designed by her in 2008. In January 2019 she [gave] the husband a formal “cease and desist” notice.
47. However she adduced no evidence that the husband had as asserted by her infringed copyright laws nor, if the logo had been available to [Company B] previously, how it came to be that the company was authorised to use it at that time and on what basis she alone had the power to renounce any previous authority to that end.
(As per the original)
It is not clear how it is said by the wife that somehow her Honour thereby erred, and I am not persuaded that she did.
Husband’s alteration of appraisal
Although again it is by no means clear, it seems as though the wife asserts in her Summary of Argument at pages 6 to 7 that the primary judge failed to include certain chattels in the pool at a different value “probably because the Husband altered the document produced for Affidavit evidence and gave it to his lawyer without notice of change to the other party and without including the full original document and valuation. The Wife only discovered in retrospect (As per the original).”
Even if, as the wife asserts, the husband did manipulate a document so that it contained a different figure to that which the valuer had assessed, it was not challenged before her Honour, and hence no error in adopting the unchallenged evidence has been established.
Failure to recognise wife’s claim for rental
Consequent upon the husband commencing operation of a construction business via a new company, the wife issued an invoice, which she said in evidence at trial was “for the lease of all the equipment you’re using and the home office (as per the original).”[12] As regards the home office, that property was of course legally owned by the husband. As to the equipment, there was no lease in existence in respect of the chattels, and in any event, they were not owned by the wife, but rather by the parties’ jointly owned company. The primary judge was therefore correct to ignore the invoice, assuming that it was actually in evidence before her. Certainly her Honour referred to it at [23] as an example of the wife being impossible to negotiate with, saying:
…[the husband] citing for example the wife (describing herself as the managing director of [Company B]) sending [Company C] $90,000.00 “annual restitution” invoice for it (his) occupation of the shed located on matrimonial property registered in his sole name, the shed that had become his home following the parties’ separation.
(As per the original)
[12] Transcript 15 February 2019, p.87 lines 19-20.
This aspect of the wife’s appeal is not made out.
Conclusion
It therefore follows that, as no aspect of ground 5 is made out, the ground fails entirely.
GROUND 6
Ground 6 claims:
The learned trial judge failed to take into account material consideration. Video evidence x 3 and updated financial statement.
(As per the original)
I have already partially traversed the background to this ground earlier in these reasons. The particular difficulty the wife has in establishing this ground is that, as I have previously said, the material before me contains none of the reasons why the primary judge rejected the admission of the video evidence and the wife’s affidavit sworn on 12 April 2019, and hence it is impossible to determine that her Honour erred in doing so. Further, the material before me does not contain the three videos which the wife was apparently seeking to tender. Thus I cannot begin to determine what issue, if any, they may have been relevant to.
I do have the “Affidavit of Financial Circumstances Statement of Claim” in the form of the wife’s affidavit sworn on 12 April 2019. I have already observed that it is a difficult document to understand, but it appears to be, at least in part, an attempt to lead evidence contrary to the previously unchallenged valuation of nil value for the goodwill for the husband’s building business. The accountant who gave that opinion was specifically not required for cross-examination by the wife.
The primary judge was at pains, on several occasions, to explain to the wife that, even though the parties had enjoyed a relatively good income from the construction business during the course of their relationship, it was effectively, as indeed the wife herself eventually conceded, a business which only gave them a “living wage (at [33]).” The wife’s attempt to try to establish that it therefore had some value beyond its physical assets (principally comprising chattels utilised in the building business) was always going to be a difficult one.
I am not persuaded that there is any merit in relation to ground 6.
GROUND 7
Although this ground says that “the learned trial judge failed to provide inadequate reasons”, plainly it is intended to assert an inadequate exposure of reasons.
The specific complaint which the wife raises in her Summary of Argument at page 7 is that:
Her Honour grounded the opinions of the other side and supported notions disempowering the Wife for future business and employment. Although injured there are no grounds that the Wife could not work or run the company on completion of her own studies.
(As per the original)
The test for the adequacy of reasons has been articulated in a number of cases. In Bennett v Bennett (1991) FLC 92-191 at page 414, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18] as follows:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
Earlier in these reasons I have referred to the passage of the transcript where the wife herself conceded that she could not run a building business. Against that background it was not incumbent upon the primary judge to determine an issue which had evaporated during the course of the hearing. Otherwise the reasoning of the trial judge was orthodox and articulated with precision.
This ground fails.
GROUND 8
This ground asserts that:
The learned trial judge’s decision is “plainly wrong.”
Two specific complaints were advanced by the wife in her Summary of Argument referable to this ground. The first is that the decision failed to properly take into account the hardship which the orders would occasion to the wife, by virtue of her poor prospects of employment and her injury, which she said was caused by husband. In this respect a specific complaint at page 8 is that “[her] Honour did not address issues of provision for damages in reasons for judgment (As per the original).” The second matter relates to the value of chattels to be retained by the husband.
Turning firstly to the hardship argument, at [59] the primary judge recognised the wife’s health issues as follows:
The wife has experienced health issues in the process of investigation. She suffers from shoulder pain. She evidences some neurological complaint for which she has an upcoming specialist appointment. She adduces however no evidence of the impact, if any, of her health concerns on a capacity for gainful employment.
That is an accurate reflection of the evidence. Indeed, in her evidence, the wife recognised that she would need to obtain employment, and was contemplating doing so in order to be able to continue to service the mortgage over the former matrimonial home, which she wished to retain.
As to the assertion that the husband had caused the wife’s injuries, the case before the primary judge was not run on that basis,[13] and there was no contest that, after her 2014 injuries, the wife had continued to contribute to the operation of the parties’ construction business.
[13]Metwally v University of Wollongong (1985) 60 ALR 68.
In any event, the wife was given an adjustment of 25 per cent by reference to s 90SF(3) factors, which although in dollar terms was not a great sum, because of the small net pool, it was nonetheless a significant portion of the parties’ assets. I am not persuaded that the primary judge’s decision was plainly wrong in that respect.
The second aspect specifically raised by the wife under this ground is the primary judge’s adoption of a nil value for the goodwill of the husband’s construction business, together with the adoption of values for the business chattels as attributed to them by a valuer.
Her Honour attributed a value of $5,720.00 to the chattels owned by the husband’s current construction company, and a further $3,460.00 for the assets of the previous company. That was in accordance with a valuation undertaken by a Mr A, which was in evidence before the primary judge, and who was not required for cross-examination. Her Honour was therefore entitled to accept that evidence, given the lack of contest in relation to it. Doing so did not result in a decision which was plainly wrong.
This ground is not established.
OUTCOME
No ground of appeal has been made out. It therefore follows that the appeal fails in its entirety.
COSTS
In the event that the appeal failed, the husband sought costs. The wife opposes an order for costs, on the grounds of impecuniosity.
In my view, notwithstanding the default position in relation to costs established by s 117(1) of the Act, this is a case appropriate for an award of costs. Whilst it is true that the wife has limited assets, it is not correct to say that she is without means to satisfy the costs order. The appeal was wholly unsuccessful, and was argued in a way which necessarily made its defence more problematic than it needed to be. I am therefore satisfied that there should be an order for costs.
In breach of the Registrar’s orders made 12 August 2019, by the time the appeal was heard, neither party had filed a schedule of their costs, although the husband’s solicitor advocate told me they were in the sum of $5,500.00. I then made orders extending the time for compliance with the Registrar’s orders. However, inexplicably, in the schedule thereafter filed by the husband’s solicitor, his particularised costs more than doubled, to $12,281.61. Notwithstanding the opportunity under my orders for the wife to make submissions as to the reasonableness of the claimed costs, she did not do so. Nonetheless I am not satisfied that the claimed costs are reasonable. I am particularly troubled that 15 hours preparation has been claimed for an appeal, the hearing of which only occupied a little over two and a half hours. Further, I am also troubled that the first item claimed in the schedule pre-dates the decision under the appeal.
Therefore unfortunately the husband’s costs will need to be assessed. However because the need for assessment arises from the husband’s non-compliance with the Registrar’s orders, I will order that he not recover the costs of the assessment.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 November 2019.
Associate:
Date: 21 November 2019
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