Alston & Alston
[2021] FedCFamC1A 96
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Alston & Alston [2021] FedCFamC1A 96
Appeal from: Alston & Alston [2021] FCCA 800 Appeal number(s): EAA 64 of 2021 File number(s): SYC 1504 of 2018 Judgment of: MCCLELLAND DCJ, WILLIAMS & WILSON JJ Date of judgment: 23 December 2021 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against property settlement orders – Where there was no error in the primary judge’s assessment of contributions – No error of fact or law established – No merit in any grounds of appeal – Appeal dismissed – Indemnity costs ordered in the sum sought by the respondent. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4), 81, 117(2A)
Evidence Act 1995 (Cth) ss 41, 131
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181
Buckley & Buckley [2013] FamCAFC 150
Calder & Calder (2016) FLC 93-691; [2016] FamCAFC 36
Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Grier & Malphas (2016) 55 Fam LR 107; [2016] FamCAFC 84
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 386 ALR 632; [2020] WASCA 77
House v the King (1936) 55 CLR 499; [1936] HCA 40
Hunter v Roberts (No 2) [2019] NSWCA 235
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Johnson & Johnson (1997) FLC 92-764; [1997] FamCA 32
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Massalski & Riley (No. 2) [2021] FamCAFC 152
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
McFadzean v Construction, Forestry, Mining & Energy Union (No 2) [2007] VSCA 313
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92-784
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASCA 208
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Pennisi v Pennisi (1997) FLC 92-774; [1997] FamCA 39
Re F: Litigants in Person Guidelines (2001) FLC 93–072; [2001] FamCA 348
Robb and Robb (1995) FLC 92-555; [1994] FamCA 136
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Somers & Ettridge [2020] FamCAFC 37
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91
Number of paragraphs: 113 Date of hearing: 10 November 2021 Place: Sydney (via videolink) The Appellant: Self-represented litigant Solicitor for the Respondent: Watkins Tapsell ORDERS
EAA 64 of 2021
SYC 1504 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ALSTON
Appellant
AND: MS ALSTON
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILLIAMS & WILSON JJ
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs in the appeal on an indemnity basis fixed in the sum of $16,315.20 inclusive of GST.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Alston & Alston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McCLELLAND DCJ, WILLIAMS & WILSON JJ:
INTRODUCTION
By an Amended Notice of Appeal filed on 18 October 2021, the appellant husband (“the appellant”) appeals against property settlement orders made by the primary judge on 25 May 2021. The appellant is self-represented and appeals on both procedural fairness and substantive grounds. The respondent wife (“the respondent”) resists the appeal.
The parties were together for around 36 years and have been separated for around 4 years. They have two adult children together, and the appellant has three adult sons from a previous marriage. The appellant is 78 years of age and receives the aged pension while the respondent is 68 years of age with a part aged pension supplemented by working limited hours as a retail assistant.
Subject to the property settlement orders was the parties’ matrimonial home, a property in Suburb C (“the former matrimonial home”), in respect to which both parties accepted that an order for sale was appropriate. However, while the respondent sought such sale immediately, the appellant sought that the sale occur after he had vacated the property due to ill health, incapacity, personal choice or death (at [130]). The primary judge rejected the appellant’s approach and made orders for the immediate sale of the property.
The appellant appeals on the basis that he contends the primary judge failed to afford procedural fairness to him in his capacity as a litigant in person. He further appeals the primary judge’s calculation of the parties’ property, asserting that his Honour failed to notionally add back to the property pool, monies accessed by the respondent in the period subsequent to the parties’ separation. The appellant also challenges the primary judge’s assessment of the parties’ contributions under s 79(4)(a), (b) and (c) of the Family Law Act 1975 (Cth) (“the Act”) as 52.5 per cent to the appellant and 47.5 per cent to the respondent. The appellant further challenges the decision of the primary judge in making a 2.5 per cent adjustment in favour of the respondent pursuant to s 75(2) considerations, which was primarily based on his Honour’s assessment of the respondent’s contributions in caring for the appellant’s three children from his former relationship.
BACKGROUND
The parties began living together in January 1980, were married in January 1981 and had two children together, who are now adults. As noted, the appellant has three adult sons from a previous marriage. After around 36 years together, the parties separated sometime between 2016 and 2017. The primary judge found that the differing recollections of the parties in that respect was not material to his Honour’s decision (at [29]).
Prior to cohabitation, the appellant was a professional involved in the computer industry. When the parties began to cohabitate, the respondent had no significant assets whilst the appellant had a sum of $40,000 from his previous marriage settlement (at [38]). The appellant was then employed by a company and shortly thereafter conducted business through a corporation with two other people. After leaving this corporation in 1981, the appellant set up L Pty Ltd. The appellant and the respondent were directors and shareholders of that company (at [31]).
During the relationship
The appellant was the principal of L Pty Ltd from its beginnings in 1982 up until his retirement in 2009, with ‘wind down’ business being conducted through the company until its deregistration in 2016. The primary judge accepted the evidence of the appellant that he worked 12 to 14 hours daily, seven days a week, at L Pty Ltd for around 25 years (at [109]).
The primary judge found that the respondent participated in the day-to-day running of L Pty Ltd from inception until the appellant’s retirement in 2009 – the respondent’s initial clerical work at home later included meeting with customers, installing hardware and software, and undertaking maintenance calls. There was some dispute as to the value of the contributions made by the respondent to L Pty Ltd. The primary judge found that the appellant sought to minimise the respondent’s contributions, claiming they were “limited and low-value”, and set out his own assertions regarding the respondent’s duties in his evidence (at [37]). The primary judge found that his Honour did not need to resolve these differences but accepted that the respondent’s contributions to the company were “significantly less” than that of the appellant (at [37]).
Further, in circumstances where the primary judge accepted the appellant’s evidence that he worked long hours in his business, the primary judge also accepted the evidence of the respondent that she had been the primary homemaker throughout cohabitation, being the primary day-to-day carer for the parties’ two children, as well as the appellant’s three sons from a former relationship when they resided with the parties (at [40] and [109]).
In addition, his Honour noted that from about 2008 the respondent commenced working 15 hours a week at Employer M at Suburb N (now Employer O) and was still engaged as a part-time worker at the time of hearing (at [33]).
Between May and July 1985, the parties purchased the former matrimonial home for $85,000, with the respondent being the sole registered proprietor. The appellant contributed his $40,000 marriage settlement sum to the purchase and the balance was financed through a mortgage. This loan was paid out by the parties in March 1998 (at [38]–[39]). That property became the former matrimonial home.
In 1991, the appellant received a legacy of $2,000 from his late mother’s estate, which was used to purchase an air-conditioner for the former matrimonial home (at [42]). In 1997, after the appellant’s suggestion and on the invitation of both parties, the respondent’s elderly parents moved in with the parties. The respondent’s parents gave the respondent $26,000 in 1999 or 2000 for renovations to the former matrimonial home to accommodate the parents living there. The respondent’s father passed away in April 2001 and her mother continued to live with the parties until Christmas 2001 (at [41]).
In 2008, the appellant was involved in proceedings in the Supreme Court of New South Wales regarding stock options that were assigned to him by a customer of L Pty Ltd. The proceedings settled on the basis that the appellant would receive a sum of $280,000 ($265,200 after payment of legal costs) (at [43]). The primary judge found that the monies were payable to the appellant, as they were initially paid into the L Pty Ltd account and then paid into the parties’ private accounts. His Honour also found that the parties acted lawfully with respect to taxation considerations regarding this sum (at [43]). The $265,200 was divided equally between the parties, with the appellant asserting that each party received an initial amount of $134,592 (at [44]). In 2009, the parties each set up H Bank accounts and the appellant passed the entire amount into his H Bank account. The respondent transferred a sum of $182,000 from her U Bank account to the H Bank account in 2009, giving evidence, in cross-examination, that this composed of the $26,000 from her parents, $132,500 from stock options damages and the remainder being from other sources already in her U Bank account (at [45]).
The respondent attested that she applied the monies from both her and the appellant’s H Bank accounts to their daughters’ weddings and paying bills, accounts and outgoings where other funds were insufficient. The appellant gave evidence that he had never drawn down against either account but that the respondent was authorised to pay for their daughters’ weddings with these funds, and apply the interest earned toward living expenses. The primary judge found that there was a sum of about $101,000 remaining in each account at the time of separation (at [46]).
After separation
In early 2017, after separation but whilst still cohabitating, the appellant purchased a vehicle in his sole name using $9,800 from his H Bank account. Sometime after, the respondent purchased a vehicle for an undisclosed purchase price, using the funds in her H Bank account. When the respondent left the former matrimonial home in 2017, each account had a sum of about $88,000. At the time of hearing, the appellant’s H Bank account had $86,608 while the respondent’s H Bank account had $56,112. It was the respondent’s evidence that, substantially, she applied funds from this account towards her day-to-day living expenses after leaving the former matrimonial home (at [48]). That evidence was accepted by the primary judge (at [65]).
Since 2017, the appellant has remained at the former matrimonial home (which was unencumbered by any mortgage) while the respondent arranged her own accommodation in one of their daughter’s family home. The respondent states that she does not pay rent or board, but has an arrangement whereby she purchases food and other consumables for the household (at [49]).
At trial, the primary judge found that the appellant included considerable amounts of evidence regarding his efforts to restore the amenities and water views of the former matrimonial home including interactions with the local council and neighbours (at [50]). The appellant asserted that the respondent frustrated or otherwise hampered him in these efforts. However, the primary judge noted that the appellant did not present any evidence to establish these contentions or that the value of the former matrimonial home had been adversely impacted by any conduct on the part of the respondent (at [51]–[52]). Accordingly, the primary judge found that any loss or restoration of “amenities and water views” was not relevant in the proceedings and would not form any part of his Honour’s consideration as to what was an appropriate, just and equitable adjustment of the parties’ property pursuant to s 79 of the Act (at [53]).
The parties agreed on a valuation of $1,200,000 for the former matrimonial home for the purpose of the trial. However, that valuation was relevant only for the purpose of preparing a trial balance sheet as it was the position of both parties that the property should be sold either immediately (as per the respondent’s case) or once the appellant vacated the property for one of his proposed reasons (as per the appellant’s case) (at [52]). In other words, the value of the property was to ultimately be determined by the market.
At the time of the trial, the respondent was earning about $706 weekly, consisting of $415 as a shop assistant at a supermarket, $30 from ironing, $240 from a part aged pension and $21 from dividends on her T shares and H Bank account interest (at [54]). The primary judge recorded the respondent’s expenses as $376 per week excluding accommodation costs (at [56]). The appellant’s income was recorded as $474 weekly, consisting of $464 from an aged pension and $10 interest on his H Bank account. The appellant’s expenses were recorded as $400 per week excluding accommodation costs (at [56]).
Issues with the matrimonial asset pool
At the trial, the parties’ agreed asset pool amounted to a total of $1,376,158 with no liabilities (at [59]). The primary judge noted that the respondent’s superannuation was valued at $17,276. The appellant asserted that the monies expended by the respondent from both her H Bank account and the appellant’s H Bank account since agreed separation in 2019 should be added back to the asset pool. On the basis that the respondent’s H Bank account balance was $100,960 in 2019 and subsequently decreased to $56,112 at the time of the hearing, the appellant asserted that $44,848 should be added back. Further, with the appellant’s H Bank account having $98,940 in 2019 and $84,107 in 2017 (when the respondent vacated the former matrimonial home), the appellant asserted an addback of $4,833 (at [61]–[63]). The primary judge rejected the appellant’s arguments that his Honour should add back the amounts as contended by the appellant.
Adjustment
His Honour found that the appellant made a superior initial contribution to the parties’ property insofar as he contributed $40,000 to its purchase, together with an additional amount which his Honour found was probably paid by the appellant in respect to transaction costs and stamp duty (at [106]). However, his Honour found that the contribution of those amounts needed to be considered in the context of the nature and quality of the totality of the parties’ contributions throughout their long relationship, during which the appellant was the primary income earner and the respondent was both the primary homemaker and primarily responsible for caring for the parties’ children.
Having regard to those contributions, his Honour determined that it was appropriate for there to be a 2.5 per cent adjustment in favour of the appellant in the context of the primary judge’s assessment of those matters set out in s 79(4) of the Act (at [118]).
That adjustment in favour of the appellant was, however, offset by a 2.5 per cent adjustment which the primary judge made in favour of the respondent pursuant to s 75(2) considerations (at [128]). Most relevantly, applying the decision of Robb and Robb (1995) FLC 92-555 (“Robb and Robb”), his Honour had regard to the fact that, during the initial years of the parties’ marriage, the respondent provided care to the appellant’s three children from his previous relationship.
THE APPEAL
The grounds of appeal raised in the appellant’s Amended Notice of Appeal filed on 18 October 2021 are set out below, as per the original:
1. As to procedural fairness
(a)On 14 May 2018 within minutes of first appearance on the docket before […]
In the course of the first appearance 14 May 2018 before […]her Honour erred in endorsing the [respondent’s] 50:50 split application and in pre-judging the [appellant’s] application that he remains in the home with provision for the [respondent] having heard neither evidence nor argument on either issue.(b)In conducting the trial [the primary judge] erred in not providing opportunity or procedural guidance for the [appellant] as a litigant in person to rebut the [respondent’s] Trial Affidavit by way of oral Evidence in Chief.
(c)During the last afternoon of the trial reference was made to continuing until 8pm. Late in the afternoon the elderly [appellant], having had little sleep and being on my his feet all day under pressure to conclude I said “Your Honour, I’m exhausted”. His Honour erred in not terminating the day’s proceedings at that point.
(d)During the Conciliation Conference Compliance Check (telecom) of 20 July 2018 when the [appellant]
Ipressed for documents that had not been produced in compliance with court order the Registrar patronizedmethe [appellant] saying “Let’s humour him [solicitor for the respondent], give him the documents”. This demeaning approach leftmethe [appellant] with little expectation of fair hearing at the Conciliation Conference and an abiding apprehensionIhe was an outsider as a litigant in person.2. As to conduct of the trial
(a)His Honour erred during cross examination of the [respondent] by subjecting a litigant in person of 76 years to an intimidating exchange of no relevance regarding electrical works licencing “just thrown in”. The [respondent] was subjected to no such treatment. This left the [appellant] apprehensive as to how the judgement might be coloured by this exchange “just thrown in”.
(b)His Honour erred by interrupting a litigant in person in the train of cross examination regarding the Retirement Fund with an intimidating inquiry of no relevance regarding superannuation. The [respondent] was subjected to no such treatment.
(c)His Honour erred by interrupting a litigant in person’s cross examination to cross examine that litigant in person in regard to taxation matters – “it’s just information”. The [respondent] was not handled in this way.
(d)His Honour erred in terminating a line of cross examination with an unjustifiable berating of a litigant in person making a valid point.
(e)His Honour erred in pressuring a litigant in person to truncate proceedings to avoid the matter going over part heard until November 2020 later offering an earlier date in June to the solicitor for the [respondent].
His Honour erred in not dealing with the [respondent’s] objections to tender during the re-opened hearing on 24 February 2020.(f)His Honour erred in truncating cross examination of the [respondent] on contribution issues related to loss of amenity.
His Honour erred in deriding the [appellant’s] reference to homelessness.(g)His Honour erred in directing the [appellant] could not press for a yes or no answer to a yes or no question:
As to admitting certain Tender Bundle documents.a)His Honour erred in rejecting RD1 to RD5 inclusive and RD9 having admitted over objection on the same issue the [respondent’s] Trial Affidavit ¶21 through ¶23 as relevant in circumstances where the [respondent’s] evidence, largely an ad hominem attack on the [appellant], was admitted, the cross examination on it subsequently truncated and the [appellant’s] tender on subject rejected on relevance.b)In the same context as above His Honour erred in rejecting photographs RD29 and RD32 as not relevant.c)His Honour erred in not admitting documents RD20 through RD23 consequent to admitting the base document RD30.3. As to the judgement [sic]
a)His Honour manifestly erred in determining a contribution ratio of “52.5 per cent by the [appellant] and 47.5 per cent by the [respondent].”
b)His Honour erred in the assessment of ‘addbacks’.
c)His Honour erred in application of Robb & Robb and in evaluating such contribution
to advantage the [respondent] by $69,670. Should the real estate appraisal of the property at $1.6 million (in todays market) be realized that advantage would increase to $89,670. ,without evidence, to advantage the [respondent] by $70,000 to $100,000.His Honour erred in the pathway to the above via s75(2)(o) of the Family Law Act 1975. A fair minded lay observer may form an apprehension that this error was driven by an intention to favour the [respondent] targeting the 50:50 goal despite the High Court guidance of Mallet v Mallet.d)His Honour erred in rejecting the [appellant’s] claim to remain in his home on misinterpretation of the Family Law Act s81 and the body of authority on its reading.
(e)His Honour erred in failing to credit the [appellant] for sheltering the [respondent’s] parents from the age of 66 while seeking to deprive the [appellant] of the amenity constructed for and provided to her parents.(f)His Honour erred in deprecating the initial contribution of the [appellant] of 45% of the purchase cost of the principal asset the matrimonial home and in the application of various authorities.(g)His Honour erred in not considering Stanford & Stanford in relation to the [appellant] staying in his home; the home he largely rebuilt. This is his home; not just a house.e)His Honour erred in the following statements expressed in the Judgement which are simply wrong:
[21](4) “…no list could be found in any place” in regard to the [appellant’s] personal property list. (Appeal Book pp34)
[26] “When the matter was mentioned on 24 February 2020, the Court indicated that the [respondent’s] objections to documents in the [appellant’s] Tender Bundle would be dealt with in the reasons…” (Appeal Book pp35)
[30] “… [respondent’s] care of the children, which the [appellant] concedes was of high quality…” (Appeal Book pp36)
[49] “…In relation thereto, the [respondent] deposes in her financial statement that she does not pay any rent…is accommodated there pursuant to an arrangement whereby she purchases food…”.(Appeal Book pp40)
[65] Second finding: “I find that the expenditure by the [respondent] from her [H Bank] account from the time of the parties’ separation until the hearing, so as to retain a credit balance at hearing of $56,112, was for living expenses for the [appellant] and [respondent] while co-occupants of the [former matrimonial home], living expenses of the [respondent] after vacating the [former matrimonial home] and the accumulation of assets and in relation to their daughters’ weddings.” (Appeal Book pp44)
[65] Third finding: “Accordingly, I find that there is no addback to be made…” (Appeal Book pp44)
[92] “The [appellant] submits that “the [respondent] did not offer oral evidence”, but that is his misconception of the trial process”. (Appeal Book pp50)
“The [appellant] also criticises the [respondent] in paragraph 43 of his submissions for not filing an Amended Initiating Application…”. (Appeal Book pp50)
“Such an outcome would patently not make “proper provision for [the respondent’s] needs”. (Appeal Book pp50)
[114] “The [appellant] in his evidence and written submissions attempts to assert that the [respondent] has made some form of “negative contribution” by her conduct at, and attitude to, meetings with customers and referrers of work of [L Pty Ltd] overseas.” (Appeal Book pp54)
[125] “…whilst the [respondent] would be in significantly reduced circumstances from that standard.” (Appeal Book pp56)
(As per the original)
RELEVANT PRINCIPLES
The persuasive onus is held by the appellant to show that there was some error in the decision under appeal (Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]).
The decision of the learned primary judge was one which was discretionary. Accordingly, the standard to be applied in this appeal is that described by the High Court of Australia in House v the King (1936) 55 CLR 499 (“House v the King”) at 504–505, namely that:
…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...
In the absence of an express or implied error on the part of the primary judge, the weight to be afforded to the various considerations relevant to his Honour’s decision were a matter for the primary judge.[1]
[1] Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASCA 208 at [25]; Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 386 ALR 632 at [344].
As was made clear by the majority of the High Court of Australia in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120]:
… when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious.
CONSIDERATION
The appellant has structured his grounds of appeal into a number of sub-grounds. While inconveniently presented in that form, we will address each of those grounds and explain why each of those grounds is without merit.
Before doing so, we note that it can be inferred from aspects of the appellant’s appeal that he contends that the primary judge was biased in favour of the respondent. Ordinarily, it would be appropriate to deal with that issue first because a finding of either apprehended or actual bias and, by extension, procedural unfairness, must result in a retrial, irrespective of the outcome of the findings on other issues (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The allegations of bias, in this matter are, however, intertwined in Ground 2 of the appellant’s grounds of appeal, which relate to the manner in which the trial was conducted. In those circumstances, and where we have found the allegations of bias to be without substance, we have deferred setting out our reasoning in rejecting the contentions of bias until dealing with that particular ground of appeal.
Ground 1 – As to procedural fairness
(a) At an earlier court listing in 14 May 2018, her Honour erred in endorsing the [respondent’s] 50:50 split application and in pre-judging the [appellant’s] application that he remains in the home, having heard neither evidence nor argument on either issue.
This ground is essentially in two parts. There is no merit in the first part pertaining to the matter’s earlier court listing. The comments, which the appellant attributes to a judge other than the primary judge, at an interim hearing which occurred on 14 May 2018, have no relevance to the decision made by the primary judge in this matter.
With respect to the second part of this ground, as will be explained in greater detail, no error has been established on the part of the primary judge in making an order requiring the immediate sale of the former matrimonial home. To do otherwise would have deferred, for an indefinite period, the respondent’s access to a share of the parties’ marital property, which the primary judge found represented a just and equitable apportionment. In the circumstances of this case, such an outcome would not have been appropriate or just and equitable as required by s 79(2) of the Act.
Accordingly, this ground of appeal fails.
(b) In conducting the trial, the primary judge erred in not providing opportunity or procedural guidance for the [appellant] to rebut the [the respondent’s] trial affidavit by way of oral evidence in chief.
This ground is also without merit. Both parties filed trial affidavits in this matter in accordance with trial directions made by the primary judge and within the time prescribed in those trial directions. Specifically, the respondent filed her trial affidavit on 6 September 2019. The matter was listed for hearing before the primary judge from 8 to 9 October 2019. In other words, had he so chosen, the appellant had a period in excess of 28 days to make such application as he saw fit for leave to file an additional affidavit in reply to the respondent’s affidavit. The primary judge was under no obligation to advise the appellant that, subject to obtaining leave, he had a theoretical right to apply to call evidence in reply to that presented by the respondent.
In Johnson v Johnson (1997) FLC 92-764, the Full Court set out guidelines for trial judges in circumstances where a party was self-represented. Those guidelines were subsequently reviewed in Re F: Litigants in Person Guidelines (2001) FLC 93–072 (“Re F”). In Re F at 88,278, the Full Court confirmed that there is an obligation on a trial judge “to ensure that proceedings are conducted fairly and impartially” but, in doing so, a trial judge is not required to provide advice to a litigant in person as to the nature of evidence that they should seek to rely upon. At 88,277, the Full Court explained that such an intervention by a trial judge would be “too dependent upon an intimate knowledge of the party’s case which goes beyond the material on the record and is thus a function of advocacy rather than assistance or information.”
Accordingly, this ground of appeal also fails.
(c) During the last afternoon of the trial reference was made to continuing until 8pm. Late in the afternoon, the elderly [appellant] said “Your Honour, I’m exhausted”. His Honour erred in not terminating the day’s proceedings at that point.
This ground of appeal is also without merit. A reading of the transcript establishes that the primary judge was exemplary in the patience and courtesy that his Honour extended to the appellant. It is unfortunate that, in his submissions in support of this ground of appeal, the appellant failed to include the totality of the relevant transcript sections, which are as follows:[2]
[2] Transcript 8 October 2019, p.189 lines 24–27; p.190 line 31 to p.191 line 2.
HIS HONOUR: if you have more cross-examination to go, but you don’t feel you can go today, please say so. I'm not here to restrict you from appropriate and relevant cross-examination, but if you have covered everything, then you have covered everything.
…
HIS HONOUR: ...Mr Alston, have you concluded your cross-examination?
MR ALSTON: There's other material, your Honour, but - - -
HIS HONOUR: What sort of topics does that other material go to?
MR ALSTON: Look, leave it rest.
HIS HONOUR: Are you sure?
MR ALSTON: Leave it rest.
HIS HONOUR: I'm not pressing you, because it would be wrong of me to press you, so make your own judgement.
MR ALSTON: Thank you, but I actually welcome your commentary. I can't give a snap answer, so I will have to, therefore, fold.
The decision on the part of the appellant to “fold”, particularly in respect to the timing of such decision, was entirely his own. He was not pressured to either discontinue or terminate the cross-examination of the respondent by the primary judge.
Accordingly, this ground of appeal also fails.
(d) During the Conciliation Conference Compliance Check (telecom) [sic] of 20 July 2018, when the [appellant] pressed for documents that had not been produced in compliance with court order the Registrar patronized the [appellant] saying “Let’s humour him [solicitor for the respondent], give him the documents”. This demeaning approach left the [appellant] with little expectation of fair hearing at the Conciliation Conference and an abiding apprehension he was an outsider as a litigant in person.
For reasons explained above in Ground 1(a), in respect to the appellant’s criticism of comments made by a judge other than the primary judge, this ground of appeal is also without merit. The suggestion that the primary judge was influenced by any comments made within the confines of the conciliation conference, in which discussions are subject to the confidentiality provisions set out in s 131 of the Evidence Act 1995 (Cth), is without merit.
Accordingly, this ground of appeal must also fail.
Ground 2 – As to conduct of the trial
(a) His Honour erred during cross examination of the [respondent] by subjecting a litigant in person of 76 years to an intimidating exchange of no relevance regarding electrical works licencing “just thrown in”. The [respondent] was subjected to no such treatment. This left the [appellant] apprehensive as to how the judgement might be coloured by this exchange “just thrown in”.
In the course of the appellant’s cross-examination of the respondent about building works and renovations that the appellant completed on the former matrimonial home, the appellant sought the respondent’s agreement that he “fitted out ample power points” in a built-in wardrobe.[3] That concession was given by the respondent. Subsequently, in response to a question from the primary judge as to whether the appellant was aware that undertaking unlicensed electrical work was an offence, the appellant acknowledged that to be the case.
[3] Transcript 18 October 2019, p.139 lines 45–47.
It is not clear why the appellant became, as a result of that exchange, apprehensive as to how the judgment might be coloured by the primary judge’s intervention in respect to that issue. It is quite clear that the judgment was not impacted by that exchange, with the primary judge acknowledging, in his Honour’s reasons for judgment, the renovation work undertaken by the appellant was a direct contribution which he made to the property of the parties (at [111]).
While not specifically stated, insofar as it may be inferred that the appellant alleges that, in making those comments, the primary judge showed bias, either actual or apprehended, we note the succinct summary of relevant principles set out in Lennon & Sanil (2020) FLC 93-962 where the Full Court said at 79,678:
Actual bias can only be established by proof of high probability that the judge’s conduct was inconsistent with any fair performance of judicial duty (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116). Inferentially, the judge’s mind must have been committed to a conclusion already formed and incapable of alteration (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [101]). Patently, on any objective perusal of the extracted oral comments and the written reasons, none could reasonably be said to satisfy the requisite high standard of proof of inviolable prejudgment by the primary judge. No submission was made by the appellant as to how it could.
For the appellant to instead sustain her complaint about the primary judge’s apprehended bias, she had to demonstrate that a fair-minded lay observer might reasonably apprehend from the identified conduct that his Honour might not bring an impartial mind to the resolution of the dispute (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at 492).
The criticised intervention of the primary judge in respect to the requirement for electrical work to be undertaken by a licensed engineer cannot reasonably be said, in our opinion, to establish either actual bias or give rise to an apprehension of bias on the part of a fair-minded lay observer.
While it has not been necessary to further consider the issue of bias, we note that the appellant did not make any application for the primary judge to disqualify himself on either of the two hearing days. Had it been necessary to further consider the issue of bias, the appellant’s failure in that respect presents a difficulty for the appellant in terms of a waiver of his right to now raise an objection of bias in an appeal (Vakauta v Kelly (1989) 167 CLR 568).
Accordingly, this ground of appeal also fails.
(b) His Honour erred by interrupting the appellant’s train of cross examination regarding the retirement fund with an intimidating inquiry of no relevance regarding superannuation. His Honour noted that [L Pty Ltd] had been non-compliant with superannuation contribution increases for its employees for a period of time, which would have repayment and penalty ramifications, to which the appellant replied, “you’ve filled me with foreboding, your Honour”.
Again, this issue is not a matter that was material in any way to his Honour’s reasons for judgment and, for reasons similar to that set out in respect to Ground 2(a) immediately above, this ground of appeal must also fail.
(c) His Honour erred by interrupting a litigant in person’s cross examination to cross examine that litigant in person in regard to taxation matters – “it’s just information”. The [respondent] was not handled in this way.
Once again this issue was not material to his Honour’s reasons for judgment and, once again, for reasons which have been set out immediately above in respect to Ground 2(a), this ground of appeal must also fail.
(d) His Honour erred in terminating a line of cross examination with an unjustifiable berating of a litigant in person making a valid point.
Contrary to that which is asserted by the appellant, the transcript establishes that the primary judge was remarkably tolerant of the appellant despite his engaging in unnecessarily inflammatory questioning of the respondent in respect to issues which were, at best, of marginal relevance to the issues to be determined in the proceedings. That patience continued until the appellant’s use of the word “scurrilous” in his questioning of the respondent on two occasions.
During cross-examination, the appellant asked the respondent, “[i]s that why you and your legal person come before his Honour today with a scurrilous affidavit and a carelessly flawed financial statement as evidence?”[4] That question was disallowed by the primary judge under s 41 of the Evidence Act 1995 (Cth). The expression was then used by the appellant on a second occasion,[5] after the primary judge provided a detailed explanation to the appellant as to why, in the context of the questioning that was occurring, the use of that expression was inappropriate. The conduct of the appellant in using that expression on a second occasion, understandably, evoked an immediate response from the primary judge, who again disallowed the question containing that word.
[4] Transcript 8 October 2019, p.54 lines 18–20.
[5] Transcript 8 October 2019, p.55 lines 5–6.
Again, this ground of appeal must fail.
(e) His Honour erred in pressuring a litigant in person to truncate proceedings to avoid the matter going over part heard until November 2020, later offering an earlier date in June to the solicitor for the [respondent].
The relevant comment by his Honour occurred on the first day of the hearing and cannot reasonably be said to have pressured the appellant to truncate the proceedings. His Honour, quite appropriately, requested the appellant to focus upon those issues which were relevant to the matters that his Honour was required to determine in order to effect a just and equitable adjustment of the parties’ property. His Honour explained that, if the matter was not finalised within the allotted time for the hearing, the consequence would be that the matter would be adjourned part heard and the period of that adjournment could be lengthy. His Honour was stating no more than the reality and, contrary to that which is asserted by the appellant, his Honour would have, in our view, been remiss not to have advised the parties of that reality. The advice did not become less meritorious because subsequently, during the course of the hearing, his Honour indicated to the parties that he had the potential capacity for a date for hearing in the following July rather than November.
Accordingly, this ground of appeal must also fail.
(f) His Honour erred in truncating cross examination of the [respondent] on contribution issues related to loss of amenity.
At the trial, the cross-examination followed a series of questions by the appellant of the respondent that she had failed to support the appellant in his making of a complaint to the New South Wales Independent Commission Against Corruption in respect of the conduct of the parties’ local council. The complaint related to what the appellant contends the council should have done to assist in restoring the view that the parties apparently previously had from the former matrimonial home overlooking the nearby river.
The primary judge’s actions in requesting the appellant to desist from cross-examining on this issue were entirely appropriate and occurred in the context where the appellant set out, in his affidavit, the material upon which he intended to rely to establish what he contended to be the respondent’s failure to assist him in respect to his endeavours.
In other words, the appellant had every opportunity to present the evidence that he wished to in respect to this issue and the primary judge acted entirely appropriately in terminating cross-examination of this issue, which the primary judge determined to have no relevance to the issues to be determined in these proceedings. No criticism can be made of the primary judge’s actions in doing so. The primary judge’s actions were entirely consistent with efficient and fair case management.
Again, this ground of appeal must also fail.
(g) His Honour erred in directing that the [appellant] could not press for a yes or no answer to a yes or no question.
The appellant contends that his Honour “severely disrupted and prolonged subsequent cross-examination” (appellant’s Amended Summary of Argument filed on 25 October 2021, paragraph 12). The relevant exchange in respect to the primary judge’s intervention in this matter records the appellant questioning the respondent in respect to the intentions of the parties when they purchased a motor vehicle in November 2016.[6] Specifically, as the appellant asked the respondent whether the vehicle “was to be your vehicle?”, the respondent proceeded to answer by stating “[t]hat’s how it started to be”, but was interrupted by the appellant saying “[y]es or no, please”. The primary judge, appropriately, intervened to advise the appellant that he should not attempt to “dictate” the answer provided by the witness and that the responsiveness of the witness, or lack thereof, would be assessed after the answer was provided.[7]
[6] Transcript 8 October 2019, p.23 line 45.
[7] Transcript 8 October 2019, p.23 line 45 to p.24 line 6.
Again, no criticism can be made of the conduct of the primary judge in providing that advice to the appellant and, therefore, this ground of appeal must also be dismissed.
Ground 3 – As to the judgment
(a) His Honour manifestly erred in determining a contribution ratio of “52.5 per cent by the [appellant] and 47.5 per cent by the [respondent].”
The primary judge correctly stated the law in respect to the steps usually followed by trial judges in determining whether there should be an adjustment of matrimonial property following the separation of parties and, if so, what that adjustment should be, having regard to the matters set out in ss 79(2) and 79(4) of the Act.
A significant fact underpinning the primary judge’s decision regarding contributions was the length of the parties’ marriage. Additional to the authorities referred to by the learned primary judge, we note that in Wallis & Manning (2017) FLC 93-759, the Full Court said at 77,043:
The length of the marriage can be seen to be of considerable importance in the assessment of contributions. In Waters and Jurek Fogarty J, in the context of s 79(4)(e) of the Act, said:
When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed.
(Citations omitted)
In terms of the practical application of those principles, in Jabour & Jabour (2019) FLC 93-898 the Full Court, at [136], found that the evidence in that case established that:
Whatever was the value of the property at the commencement of the relationship its significance has been largely lost given the myriad of the contributions by each of the parties to their various business ventures, through their employment and care of the family over a long relationship, including the contributions made to the retention of the property which we have discussed above. There is no doubt that they both worked hard and over many years they both contributed to the full extent of their capacity within the roles each took within the marriage...
In considering the manner in which the primary judge exercised his discretion, it is to be observed that his Honour recognised the superior initial contribution by the appellant to the marital property, insofar as he contributed what his Honour found to be $40,000 to the purchase of the former matrimonial home, together with stamp duty and transaction costs (at [106]). His Honour carefully and methodically set out his findings not only in respect to the parties’ initial contributions, but also in respect to the contributions that the parties made during the course of and subsequent to their relationship. By way of summary:
(a)His Honour found that the appellant worked very hard in his business and was the primary income earner for the family;
(b)His Honour also referred to other contributions made by the appellant in respect to assisting with the care of the children and general maintenance and improvement of the parties’ property (at [110]–[111]);
(c)His Honour also set out the role of the respondent as the primary homemaker who principally cared for the parties’ children;
(d)Further, his Honour noted that the respondent also assisted the appellant in his business and made some financial contributions that were applied to the parties’ joint purposes;
(e)His Honour noted the circumstances of each of the parties in respect of the period subsequent to the termination of their relationship, including the fact that the appellant has been living rent-free in the parties’ former matrimonial home since 2017 (at [113]).
The submissions of the appellant made during the appeal hearing and the orders which he is seeking in the event of his appeal being successful appear, with respect, to unreasonably and unrealistically conflate the contributions that an income earner makes to the marital property, over and above those of the homemaker and party who cares for the children.
Authorities confirm that, in a work-value sense, work undertaken by a party as a homemaker and parent is to be equally valued to that of a professional with considerable training. In that context, in Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631, Cronin J summarised the applicable principle, as he derived it from authority, in the following terms at [113]:
…where one party was earning an income and the other fulfilling responsibility at home, there was no reason to attach greater value to the contribution of one of them to that of the other because that was the way the parties arranged their affairs. Her Honour said that the contribution of each should be given equal value…
That approach was confirmed by the Full Court in Grier & Malphas (2016) 55 Fam LR 107. In that case, during the course of the relationship, the appellant built up a substantial business, which was eventually sold for $9.75 million. The appellant argued that he was entitled to a greater distribution as result of the diligent application of a special “skill set” that resulted in the success of the business. However, at the same time, the appellant agreed that both parties did their best “in business, parenting and all aspects of [the parties’] relationship”.[8] In those circumstances, Murphy and Kent JJ stated at [136] that “it is not a party’s “skill set” which must be considered, but their contributions.”
[8] Grier & Malphas (2016) 55 Fam LR 107 at [71].
In other words, it is not the particular skills that are important, but rather, the task is to evaluate in each case the actual contributions made by the parties during the course of their relationship. In that respect, in Fields & Smith (2015) FLC 93-638, the Full Court said at [43]:
… the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important [than] another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.
His Honour methodically set out his findings in respect of the parties’ respective contributions and carefully explained their relevance to his assessment of the adjustment which his Honour considered to be appropriate pursuant to s 79(4) of the Act. The appellant has failed to establish any error in the manner in which the primary judge has exercised his discretion in that respect.
Further, the appellant erroneously continues to contend that, in determining a just and equitable adjustment, the primary judge should have initially made a mathematical calculation which effectively determined the appellant’s percentage contribution to the purchase of the former matrimonial home and updated that percentage, in dollar terms, to the current present-day value of the property.
The primary judge, by reference to appropriate authorities, correctly explained that the assessment of parties’ contributions is not a mathematical exercise, but rather, is to be considered in the context of the parties’ relationship, the length of their marriage and the nature and quality of the totality of the parties’ contributions, initially, during the course of their relationship and subsequent to the termination of their relationship (at [100]–[105]). His Honour did precisely that.
Accordingly, this ground of appeal must also be dismissed.
(b) His Honour erred in the assessment of ‘addbacks’.
The finding of the primary judge in respect to addbacks was summarised at [65] of the primary judgment as follows:
I find on all of the evidence that moneys expended by the [respondent] from the [appellant’s] [H Bank] account prior to her vacating the [former matrimonial home] in 2017 was expenditure in relation to either the accumulation of assets or living expenses for the [appellant] and [respondent] as co-occupants of the [former matrimonial home] and for their daughters’ weddings. I find that the expenditure by the [respondent] from her H Bank account from the time of the parties’ separation until the hearing, so as to retain a credit balance at hearing of $56,112, was for living expenses for the [appellant] and [respondent] while co-occupants of the [former matrimonial home], living expenses of the [respondent] after vacating the [former matrimonial home] and the accumulation of assets and in relation to their daughters’ weddings. Accordingly, I find that there is no addback to be made, that the appropriate amounts to be included in the net matrimonial asset pool from the moneys received by the [appellant] in consequence of the Supreme Court “share options” proceedings is the agreed balance of each of their H Bank accounts, being $56,112 for the [respondent’s] account and $86,608 for the [appellant’s] account.
By way of his Amended Summary of Argument filed on 25 October 2021 at paragraph 14, the appellant appears to contend that the primary judge erred in failing to find that an amount of $15,356 drawn from the H Bank account was applied by the respondent towards her legal costs. However, the evidence set out on the relevant page of the transcript records questions asked by the appellant in which he contended that the respondent had paid legal fees from her H Bank account rather than from income earned by the respondent during the relevant period.[9] The transcript records the primary judge advising the appellant, as a self-represented litigant, that the mere assertion of a proposition from the bar table was not evidence.
[9] Transcript 8 October 2019, p.170 line 44 to p.172 line 19.
In oral submissions before us, the appellant also made reference to his written submissions to the primary judge in which he sought to correlate two amounts drawn from the respondent’s H Bank account in the sum of $1,500 and $3,500 with payments made to the respondent’s lawyers. The difficulty for that proposition is that the neither the specific details of those payments nor the asserted coincidence were presented to the respondent for her response during cross-examination at the trial.
Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]). The appellant’s contentions that the respondent withdrew funds from the H Bank account to pay legal fees raises no higher than conjecture, and the primary judge was entitled to rely on the evidence of the respondent that her legal fees were paid from her income.
This is significant because, other than where funds have been spent on legal fees,[10] it will be the exception rather than the rule for funds to be added back into the matrimonial property pool. In that respect, in Trevi & Trevi (2018) FLC 93-858 (“Trevi”) the Full Court, at [30], stated:
Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Citations omitted)
[10] Calder & Calder (2016) FLC 93-691.
We respectfully agree with the primary judge’s analysis of this issue, including his reference to Omacini and Omacini (2005) FLC 93-218 and other relevant case law.
In respect to the reference to the “technically more correct” approach referred to in Trevi above, their Honours at 78,454 referenced earlier decisions in which the Full Court confirmed that:
… an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
(Emphasis added, citations omitted)
The appellant has failed to establish that the primary judge erred in treating the respondent’s drawings from her H Bank account as being applied to meet reasonably incurred expenditures and, therefore, not appropriate to be added back to the matrimonial property pool.
(c) His Honour erred in application of Robb & Robb and in evaluating such contribution, without evidence, to advantage the [respondent] by $70,000 to $100,000.
As previously noted, the primary judge determined that, in accordance with the principles adumbrated in Robb and Robb, there should be an adjustment of 2.5 per cent to the respondent as a result of the fact that she provided care to the appellant’s three children from his earlier relationship when they spent time with the parties during the earlier years of their marriage (at [127]–[128]).
It is the appellant’s case that the respondent did not, in submissions to the primary judge, refer to Robb and Robb. However, that case had been the subject of discussion between the primary judge and the solicitor-advocate for the respondent during the course of the proceedings. This was in circumstances where it was clear that the respondent claimed, as a recognition of contribution on her part, that she cared for the three children. As noted in the respondent’s Summary of Argument filed on 1 November 2021 at paragraphs 40 to 41, the respondent was not challenged on her evidence as set out at the trial.
The manner in which the primary judge recognised the respondent’s contribution in providing care for the appellant’s children from his previous relationship was consistent with the authorities. The authorities are quite clear that such a contribution, in assisting in the care of a non-biological child, should be assessed as a factor of potential relevance under s 75(2)(o) of the Act, rather than as contributions made pursuant to s 79(4)(e).[11]
[11] See Zaruba & Zaruba (2017) FLC 93-776 at 77,312.
Accordingly this ground of appeal also fails.
(d) His Honour erred in rejecting the [appellant’s] claim to remain in his home on misinterpretation of s 81 of the Family Law Act 1975 (Cth) and the body of authority on its reading.
We have previously dealt with this ground of appeal. The appellant has failed to establish that the primary judge made an error within the principles of House v the King, or that the manner in which he exercised his discretion was “unreasonable or plainly unjust.” To the contrary, it was reasonably open to the primary judge to find that deferring, for an indefinite period, funds equivalent to the respondent’s share of the adjusted property would result in unfairness to the respondent, such that the outcome was not one which was just and equitable as required by s 79(2) of the Act.
Accordingly this ground of appeal also fails.
(e) His Honour erred in respect to a number of statements set out in his judgment which are contended to be wrong.
The primary judge’s “statements” which the appellant contends are “wrong”, were set out by the appellant by way of his Amended Summary of Argument filed on 25 October 2021, from pages 14 to 15, as follows:
a) Judgement: Appeal Book pp34 [21](4):
“…no ([appellant’s]) list could be found in any place”.
The [respondent’s] personal property list was in Annexure 1 to her
submission see Appeal Book pp355[4].
The [appellant’s] personal property list was Attachment 4 to his
submission see Appeal Book pp539 & pp546.
b) Judgement: Appeal Book pp35 [26]:
“…[respondent’s] objections…Tender Bundle…dealt with in the reasons”
This is neither recalled nor found in the transcript.
Trial Transcript pp 199-200 refers
[Appellant’s] Aide Memoir of 24 February 2019 refers.
c) Judgement: Appeal Book pp36 [30]
“…[appellant] concedes was of high quality”
There is no evidence to that effect.
d) Judgement: Appeal Book pp40 [49]:
“…In relation thereto, the [respondent] deposes in her financial statement
that she does not pay any rent…is accommodated there
pursuant to an arrangement whereby she purchases food…”.
There is no such deposition.
Parts E & F are not completed.
[Respondent’s] Financial Statement Appeal Book pp279 refers.
e) Judgement: Appeal Book pp50 [92] :
“The [appellant] submits that “the [respondent] did not offer oral evidence”.
Simply listed in Summary of Proceedings.
[Appellant’s] Submission Appeal Book pp369 [4] refers.
f) Judgement: Appeal Book pp50 [92] :
“The [appellant] also criticises the [respondent] in paragraph 43 of his
submissions for not filing an Amended Initiating Application”.
Simply listed in Summary of Process.
[Appellant’s] Submission Appeal Book pp374 [43] refers.
g) Judgement: Appeal Book pp50 [93] :
“Such an outcome would patently not make “proper provision for
[the [respondent’s]] needs”.”
The outcome may not satisfy the [respondent’s] wants but her needs are
satisfied in exactly the same way as the [appellant’s].
h) Judgement: Appeal Book pp54 [114]:
“…attempts to assert that the [respondent] has made some form of
“negative contribution”…”.
[Respondent’s] Trial Affidavit Appeal Book pp274 [41]
[Appellant’s] Trial Affidavit Appeal Book pp88 [11(viii)]
[Appellant’s] Submission Appeal Book pp428 [157]
i) Judgement: Appeal Book pp56 [125]
“…whilst the [respondent] would be in significantly reduced
circumstances from that standard.”
There is no evidence to that effect.
There is contrary evidence.
(As per the original)
As previously noted, the appellant carries the persuasive onus of establishing error on the part of the primary judge. We respectfully agree with the submission of the solicitor-advocate for the respondent that the appellant has failed to discharge that persuasive onus.
Moreover in Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [53], the Full Court of the Federal Court of Australia observed:
In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.
The appellant has failed to establish that those errors, even if found, have in a material way affected the result of the trial and, specifically, the orders made by the primary judge. In that respect, the appellant appeared to concede that, when examined individually, none of the asserted errors to which he referred could reasonably be said to be such that they would have, if determined differently, led to a different result in the proceedings. He contended, however, that when considered in totality, it can be inferred that the asserted errors were material to the primary judge’s decision. We are not persuaded by that argument and respectfully agree with the submission of the solicitor-advocate for the respondent, firstly, that the appellant has not discharged the onus he carries to establish error on the part of the primary judge and, also, that the materiality of the alleged individual errors to the decision is not enhanced by considering them in aggregate.
Accordingly this ground of appeal must also be dismissed.
COSTS
As a result of the appeal being wholly unsuccessful, the respondent seeks an order for costs on an indemnity basis in the sum of $16,315.20.
As recently noted by the Full Court in Massalski & Riley (No. 2) [2021] FamCAFC 152 at [8], an order for costs, including in respect to an appeal:
…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.
Relevant principles in respect of the consideration of an order for costs include, by way of summary, the following:
· Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: (Penfold v Penfold (1980) 144 CLR 311 at 315).
· No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400).
· In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at 124, the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) of the Act to be met in order for the Court to make a costs order.
Those matters set out in s 117(2A) of the Act to which we regard as being relevant to the consideration of costs in this matter are as follows.
In terms of the financial circumstances of the parties pursuant to s 117(2A)(a), it cannot be said that either party is well off, with both parties being in receipt of, at least, a part pension. However, both parties will, as result of upholding the primary judge’s decision, divide the net proceeds of the sale of the former matrimonial home between themselves equally. In any event, impecuniosity is no bar to an order for costs being made where it is otherwise warranted.[12] In this matter, an order for costs against the appellant would further diminish those funds that will be available to him. On the other hand, if the respondent is not compensated in respect to cost she has incurred in respect of this appeal, she too will be disadvantaged.
[12] Buckley & Buckley [2013] FamCAFC 150.
In terms of s 117(2A)(c), it should have been apparent to a reasonable litigant, properly advised, that having read the decision of the primary judge, the appeal lacked reasonable prospects of success. It is the case that unrepresented litigants are given some latitude in that respect, however, even given that latitude, the manner in which the appellant conducted the appeal in this matter unnecessarily increased the costs incurred by the respondent, including his bringing of an unmeritorious oral application to rely upon an additional tender bundle of documents of some 1,200 pages during the appeal.
In terms of s 117(2A)(e), the appellant has been wholly unsuccessful in these proceedings.
In terms of s 117(2A)(f), the appellant acknowledged that the very first letter he received from the solicitor for the respondent proposed a 50/50 division of the parties’ matrimonial property, which he rejected. That position was stated in the respondent’s Initiating Application filed on 9 March 2018 and has remained an open offer by the respondent since that time.
The Full Court in Pennisi v Pennisi (1997) FLC 92-774 (“Pennisi”) at 84,547 observed that:
…Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
It is unnecessary for us to consider whether it was unreasonable for the appellant to have rejected the respondent’s offer of settlement when it was initially made early in the proceedings. In that respect, we note that there is some authority to the effect that a party may not, at that stage, be in a position to effectively assess the strength of their position in respect to the litigation.[13]
[13] See for instance Pennisi v Pennisi (1997) FLC 92-774; Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [22]; and McFadzean v Construction, Forestry, Mining & Energy Union(No 2) [2007] VSCA 313 at [9].
That does not apply, however, in respect of the appeal which was initiated by the appellant in circumstances where he was aware of the primary judge’s cogent reasons for judgment explaining why an adjustment of the parties’ property on a 50/50 basis was appropriate, just and equitable.
Accordingly, for these reasons we are satisfied that an order for costs should be made. The question then becomes whether an order for costs should be made on an indemnity basis.
The Full Court, at 84,767 in D & D (Costs) (No. 2) (2010) FLC 93-435, conducted a useful review of authorities dealing with the issue of indemnity costs in the following terms:
In Limousin & Limousin (Costs) [2007] FamCA 1178; [2007] 38 FamLR 478, the Court reviewed the authorities in relation to indemnity costs. Reference was there made to the judgment of the Full Court in Kohan and Kohan (1993) FLC 92-340. It was recorded at 79,614 (citations omitted) in which it was said that:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v Wright (No 2) [1983] 2 NSWLR 354]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 at 368–70.
Indemnity costs orders are still an exception in this and other jurisdictions.
(As per the original)
In Somers & Ettridge [2020] FamCAFC 37, Strickland J at [18] confirmed the principle in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, that “[a]n imprudent refusal of an offer of compromise” might, in an appropriate case in the context of family law proceedings, warrant the exercise of discretion to award indemnity costs.[14]
[14] Citing Munday v Bowman (1997) FLC 92-784 at 84,660.
The assessment as to what may constitute “an imprudent refusal of an offer of compromise” is assisted by authorities in other jurisdictions which have considered the principles of what are known in other jurisdictions as ‘Calderbank offers’.
A useful summary of the principles of Calderbank offers is set out in the following passage of the New South Wales Court of Appeal in Hunter v Roberts (No 2) [2019] NSWCA 235 at [6]–[7]:
…The making of an offer of compromise in the form of a Calderbank letter may justify a departure from the ordinary basis on which costs are awarded and assessed and, as Giles JA observed in SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37], the ultimate “question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule”. Subsequent authorities (including Leichhardt Municipal Council v Green [2004] NSWCA 341) have proceeded on the basis that such a departure will not be justified unless in all the circumstances it was unreasonable for the offeree not to accept the offer.
The relevant principles are not in issue and sufficiently summarised in the following statements of the Court in Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [14], [16] and [60]:
[14] There is no presumption that an offeree who does not accept an informal offer and does not obtain a judgment more favourable than the offer, will necessarily pay indemnity costs from the date of the offer: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [19] (Santow JA, Stein AJA agreeing); Jones v Bradley (No 2) [2003] NSWCA 258 at [6]-[9]; Ambulance Service of New South Wales v Worley (No 2) [2006] NSWCA 236; 67 NSWLR 719 at [18] and Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 (Miwa) at [8].
…
[16] It has been said an assessment of the reasonableness of a party’s conduct in not accepting an offer must be made on a summary basis: Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 (Elite v Salmon) at [148] (Basten JA). The factors relevant to the question whether a rejection of an offer is unreasonable include whether the offeree had an adequate opportunity to enable it to consider and deal with the offer: Elite v Salmon at [99] (McColl JA) citing Donnelly v Edelstein (1994) 49 FCR 389 at 396.
…
[60] Considerations relevant to the determination of an unreasonable refusal are identified in Miwa (at [12]), based on Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435 at [25], and include:
(a)the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d)the offeree's prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.
It is noted, in this matter, that the respondent’s offer of compromise was made at the very outset of the proceedings, indeed, prior to the commencement of proceedings. The offer has remained live throughout the course of the proceedings with no termination date being specified in respect of the offer. Again, it has been confirmed as an open offer in the core documentation filed by the respondent.
The offer made by the respondent, in the context of a 37 year marriage where the parties had two children and the primary asset was the former matrimonial home, was entirely reasonable.
The respondent’s offer was expressed in the clearest of terms.
It is unnecessary for us to determine whether, prior to the delivery of judgment by the primary judge, it would have been reasonable for the appellant to have at that point, questioned the respondent’s prospects of succeeding with her Initiating Application. As we have said, once the primary judge’s reasons were made available, however, a reasonable litigant, properly advised, would have considered that they had no reasonable prospects of successfully appealing what was a thorough, well-reasoned, fair and logical decision.
Having regard to all those factors, we are of the opinion that this matter falls into the exceptional category referred to by the Full Court in earlier authorities and, on that basis, we order the appellant to pay the costs of the respondent on an indemnity basis.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Williams & Wilson . Associate:
Dated: 23 December 2021
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