ANGELLINI & ANGELLINI - [2011] FamCAFC 190

FAMILY COURT OF AUSTRALIA

ANGELLINI & ANGELLINI

[2011] FamCAFC 190

FAMILY LAW – APPEAL – ADJOURNMENT APPLICATION - where the Federal Magistrate dismissed an oral application by the husband for an adjournment and granted the wife leave to proceed undefended – where the husband was represented and the wife was not - where the husband twice failed to comply with orders of the Court to prepare the matter for hearing – where the husband filed no documents nor application for an extension of time to comply with orders – where the husband failed to appear at the hearing and instead provided his solicitor with a letter from his employer saying that he had to attend a compulsory course for the purposes of maintaining his employment- where no explanation was given to the Federal Magistrate as to why the application to adjourn the hearing was not made earlier – where the Federal Magistrate doubted the genuineness of the letter and the bona fides of the husband in making the application for adjournment – where the Federal Magistrate had sufficient evidence to determine the issue of property settlement despite the husband’s non-compliance – where the husband’s claim that he was denied natural justice because he was denied the opportunity to appear and present his case is not made out – where there is no error in the Federal Magistrate proceeding as he did.

FAMILY LAW – APPEAL – PROPERTY – where the Federal Magistrate made orders altering the parties’ interests in the asset pool – where the husband’s grounds of appeal are unable to be addressed in any meaningful way – where the Federal Magistrate adequately addressed the requirements of s 79 of the Family Law Act 1975 (Cth) – where it has not been demonstrated that the exercise of the Federal Magistrate’s discretion miscarried – where there is no merit in any of the challenges made by the husband to the orders of the Federal Magistrate – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – where the wife did not seek an order for costs in the event that the appeal was dismissed – no order for costs.

Family Law Act 1975 (Cth) – s 75(2), s 79, s 94AAA(3)

Aon Risk Services Aust. Ltd v ANU (2009) 239 CLR 175
Hickey & Hickey & A-G for the Commonwealth of Australia (Intervener)
(2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Mr Angellini

RESPONDENT:

Ms Angellini

FILE NUMBER:

MLC

3575

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

20 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 August 2010

LOWER COURT MNC:

[2010] FMCAfam 878

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Leithlean

SOLICITOR FOR THE APPELLANT:

Coleman Lawyers

COUNSEL FOR THE RESPONDENT:

In person

Orders

The Notice of Appeal filed on 30 August 2010 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Angellini & Angellini is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIAAT MELBOURNE

Appeal Number: SA 60 of 2010
File Number: MLC 3575 of 2009

Mr Angellini

Appellant

And

Ms Angellini

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Angellini (“the husband”) against procedural and property settlement orders made by Federal Magistrate O’Sullivan on 2 August 2010 in proceedings between the husband and Ms Angellini (“the wife”).
In summary, the Federal Magistrate’s orders the subject of the husband’s appeal dismissed an oral application by the husband for an adjournment, granted the wife leave to proceed undefended and made orders altering the parties’ interests in the asset pool. The Federal Magistrate determined to divide the asset pool as sought by the wife in her Further Amended Response and her affidavit, both filed on 20 July 2010. The Federal Magistrate’s orders with respect to property settlement provided, inter alia, for the wife to retain the former matrimonial home, for the wife to indemnify the husband with respect to all liabilities in relation to the property, for the husband to retain his tools, two motor vehicles and jewellery he retained after separation and for each party to retain their respective superannuation interests, property in their possession and money standing to their credit in bank accounts.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The wife seeks that the husband’s appeal be dismissed.

Background

The Federal Magistrate’s ex tempore reasons include only limited detail with respect to the background of this matter. The following brief background is therefore taken from the parties’ affidavits and documents filed in the Federal Magistrates Court which were before me, and which does not appear to be controversial.
At the time of the hearing before the Federal Magistrate the husband was aged 40 years and the wife was aged 42 years.
The parties married in November 1992 and separated in August 2008. The husband worked as a cabinet maker during the marriage. The wife worked for MRC for the first few years of the marriage until the birth of the parties’ first child.
There are two children of the marriage, the child A born in December 1996 who was aged 13 at the time of the hearing, and the child B born in May 2001 who was aged 9 years at the time of the hearing.
In 1993 the parties purchased their first matrimonial home. This property was sold in 2007. The parties subsequently purchased the former matrimonial home at C Court.
The husband commenced proceedings in the Federal Magistrates Court on

27 April 2009 seeking parenting and property settlement orders.
The wife filed a Response on 1 June 2009, an Amended Response on 1 December 2009 and a further Amended Response on 20 July 2010. In her Further Amended Response the wife sought in addition to orders in relation to parenting matters and property settlement, that the husband pay child support in accordance with a child support assessment and pay arrears of child support.
On 1 June 2009 interim orders were made which provided, inter alia, for interim parenting arrangements, with the children to live with the wife and spend time with the husband on alternate Sundays at a contact centre, for the wife to have sole occupation of the former matrimonial home, for the wife to make the husband’s tools of trade available for him and for the parties to attend a conciliation conference. The matter was listed for final hearing on 9 December 2009 and orders were made for the parties to file documents preparing the matter for final hearing and for a valuation to be undertaken of the former matrimonial home.
On 9 December 2009, due to the parties’ non compliance with the previous orders, the trial was adjourned to 2 August 2010 and further orders were made, inter alia, for the parties to file documents to prepare for the hearing and obtain valuations of property. The husband was also ordered to attend upon a psychiatrist for assessment as to his suitability to have unsupervised time with the children. Neither party was permitted to redraw funds from the home loan secured over the former matrimonial home.
On 2 August 2010 when the matter came before the Federal Magistrate, an oral application was made on behalf of the husband for an adjournment. That application was refused, ex tempore reasons were delivered and the wife was given leave to proceed undefended. The Federal Magistrate delivered ex tempore reasons in relation to the parenting and property settlement application and made final orders on that date.

Reasons for judgment of the Federal Magistrate

There are two relevant sets of reasons for judgment of the Federal Magistrate, both delivered ex tempore on 2 August 2010.

Reasons for judgment in relation to the husband’s adjournment application

The Federal Magistrate first delivered ex tempore reasons with respect to an oral application by the husband for an adjournment of the proceedings.
His Honour noted that the matter had first come before the court on 1 June 2009 after the application was filed on 27 April 2009. His Honour noted that orders were made on that date preparing the matter for a hearing on 9 December 2009.
His Honour noted that the parties had failed to comply with the orders of 9 December 2009, however, which necessitated the matter being adjourned to 2 August 2010.
His Honour then set out the orders made on 9 December 2009 preparing the matter for hearing, which required, inter alia, the parties to file and serve affidavits, obtain valuations of property and file case outlines.
His Honour noted that the wife was unrepresented, but that the husband had been represented since the orders were made on 9 December 2009.
His Honour also noted that only the wife had filed material in compliance with the orders of 9 December 2009, and that she had filed such material (namely a Further Amended Response, a case outline, an affidavit and an updated financial statement) well in advance of the timeline for the matter to be ready for hearing.
The Federal Magistrate recorded that the husband had filed nothing and that it was not contested that he had “done nothing to comply with the orders”. His Honour recorded that the husband’s solicitor conceded this, as well as conceding that the husband had neither seen the children nor taken steps for that to happen.
His Honour set out in full a letter from the husband’s employer, which the husband relied on in support of his application for an adjournment. The letter outlined that the husband was required to undertake a compulsory firearms requalification exam on 2 August 2010 for him to hold his licence and continue in his employment.
The husband’s solicitor not only relied on this letter as a basis for the adjournment application, but also submitted that the court would be unable to safely proceed and make findings as to the property pool in the face of the husband’s failure to file material and alleged disputes as to the value of the matrimonial assets.
The Federal Magistrate noted that the difficulty with that submission, however, was that there was no evidence from the husband regarding those matters and the court was able to proceed to make findings on the basis of the evidence that was before it.
The husband’s solicitor also raised before the Federal Magistrate that there had been no updated valuation undertaken of the parties’ superannuation. His Honour did not consider that that amounted to a reason why a hearing which had been fixed for over eight months should not proceed.
His Honour considered that the letter from the husband’s employer left “a lot to be desired on its face as the basis for an adjournment application”. His Honour noted at that point in his reasons that the time was 12:10pm and that he had not been told that the husband could not get to court by 2:15pm.
His Honour was also not satisfied that there was an acceptable explanation for why the application was not made before the day of the hearing. His Honour said he had reason to doubt the bona fides of the letter and the adjournment application, although noting that the husband’s solicitor was of course acting on instructions.
His Honour said in considering the application for adjournment, he was required to consider the matters referred to in Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 and other authorities such as State ofQueensland v JL Holdings (1997) 186 CLR 146 and to balance the difficulties faced by the husband with the consequences to the wife of granting an adjournment.
His Honour said that the husband was obliged to get his case ready and given what was before the court and what had happened in the past, that the court “could have no confidence” that an adjournment would see the husband in “any different position months down the track”.
His Honour was not satisfied of the reasons for the husband’s failure to file further material and comply with court orders, or the reasons why an adjournment was sought. His Honour said while it may have been different if the application had been made a week earlier, it was not.
His Honour was thus not satisfied there were sufficient circumstances to warrant an adjournment, and that the prejudice occasioned to the wife if an adjournment was granted could not be remedied by a costs order in her favour. The interests of justice required that the matter proceed to a final hearing, and his Honour determined that that final hearing was to commence at 2:15pm that day.

Reasons for judgment in relation to property settlement and parenting proceedings

The Federal Magistrate first recorded the orders that were sought by the parties when the matter commenced. His Honour then detailed the procedural history of the matter, the previous orders that had been made and the need for the adjournment of the final hearing in December 2009 due to non compliance with orders.
His Honour noted that the husband had had the benefit of solicitors acting on his behalf up until approximately two hours before delivering his reasons for judgment, however the wife had been unrepresented. His Honour noted that the wife had complied as far as she had been able to with the orders of the court and that it was for that reason, and given the orders made on 9 December 2009 and the refusal to grant the husband an adjournment that the wife was given leave to proceed undefended.
The Federal Magistrate then turned to consider the parenting application. As the parenting orders are not the subject of this appeal, it is unnecessary to have regard to the Federal Magistrate’s reasons in relation to this issue, save to record that his Honour determined the children were to live with the wife, that the wife was to have sole parental responsibility for the two children and the husband’s time with the children was “reserved”.
In relation to the property settlement proceedings, the Federal Magistrate recorded that the wife’s affidavit “amply [sketched] out”, so far as it was possible to do so, the situation prior to the commencement of the parties’ marriage in 1992, their involvement and the problems that arose during cohabitation and during the marriage and what happened post-separation. His Honour said it was clear from the affidavit that the wife had shouldered the responsibility for maintaining the former matrimonial home, the mortgage, the children and “so on” and that since separation she had been getting no “meaningful financial support” from the husband.
His Honour identified that the wife set out the factors she contended supported an adjustment in her favour of 30 per cent in her affidavit and case outline. Primarily they were her superior future needs, her sole responsibility for the parties’ children and her superior contributions during the marriage and following separation. The wife also referred to the husband’s wastage or “conduct inimical to the preservation” of the matrimonial property which the husband engaged in during the marriage.
His Honour then summarised the approach the court was to take when determining property settlement applications.
His Honour did not accept that this was a case where the assets should be dealt with in two pools.
His Honour said that the best evidence of what made up the asset pool of the parties was set out in paragraph 96 of the wife’s affidavit filed 20 July 2010, and his Honour accepted that that was the asset pool. Paragraph 96 provided as follows:
96…. Matrimonial Asset Pool.
Assets
Home  $450.000
Jeep Cherokee             $22,000
Mercedes  $14,000
Jewellery  $4,000
Wife’s super                $2,000
Husband’s Super                   $27,843
Furniture  $1,000
Tools  $18,000
Total  $538,843.00
Liabilities
Mortgage  $251,000
Total  $251,000
Total net Asset Pool    $287,843.00
With respect to the issue of contributions, his Honour said that “I have noted the material in the wife’s affidavit going to that”, before turning to consider the third step, namely the parties’ future needs.
His Honour noted the wife would have responsibility for the children given the parenting orders that he was to make, and that based on the husband’s behaviour, the wife would receive “absolutely no support” from him.
His Honour found that the wife had some income-earning capacity, although she was not currently working. However, his Honour said it was not possible to determine what the husband was doing, although he claimed to work for a security service company. His Honour was satisfied that the wife would have fewer financial resources and greater financial commitments due to her responsibility for the children and that, in itself, warranted an adjustment in her favour at the “third stage”.
The Federal Magistrate recorded that both parties had modest superannuation, and that as the wife did not seek a splitting order, the parties would essentially keep what they had. His Honour said that again the best evidence of the value of the superannuation was contained in the wife’s affidavit.
At paragraphs 39 and 40 his Honour concluded:
39. I have, in the context of this case been satisfied that the assets and liability (sic) are as made up at paragraph 96 of the wife’s affidavit; considered the parties’ contributions and future needs, and come to the conclusion that an adjustment along the lines that would be arrived at if the orders that the wife seeks are made, is just and equitable, as this recognises, in my view, that she had to struggle to make contributions during the relationship, in the face of the husband’s wastage and behaviour. That behaviour depleted the parties’ matrimonial property.
40. Since separation the wife has had the overwhelming obligations for continuing to finance that property and also to support the children. The wife is likely to get absolutely zero support from the husband, if his attitude to these proceedings is any indication into the future. For those reasons an adjustment at both the second and third stage in the wife’s favour is warranted.
The Federal Magistrate recorded that the orders he proposed would see the wife refinance the mortgage in her sole name and the husband transfer his interest in the former matrimonial home to the wife. The Federal Magistrate recorded that given the husband’s attitude to the proceedings, if the husband failed to transfer his interest, a Registrar would be authorised to act on his behalf,
His Honour said that otherwise the parties would essentially keep what they have or had, particularly in the husband’s case, as the Federal Magistrate found that the husband had enjoyed the benefit of assets which his Honour was satisfied the husband took with him at the end of the marriage, “either by disposing of them and realising the proceeds (sic)”. His Honour noted the wife would be able to house the children in the former matrimonial home and would take on a significant financial liability. The husband would be left with his superannuation and the proceeds (of the sale of assets) or assets that remain in his possession. His Honour was thus satisfied that a division of matrimonial property in the terms sought by the wife in her Further Amended Response and her affidavit was just and equitable.

Orders made on 2 August 2010

Federal Magistrate O’Sullivan made the following relevant orders on 2 August 2010 with respect to the adjournment application and property settlement:
1.      The husband’s oral application for an adjournment be refused.
2.      The husband’s solicitors have leave to file a notice of ceasing to act in Court this day.
3.      The wife have leave to proceed undefended.
…
9.      The wife retain the property [C Drive], (“the property”).
10.    The husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title, and interest in the property.
11.    Upon the transfer the wife to indemnify the husband against all payments and liability pursuant to the mortgage and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
12.    The husband retain all of his Tools (“the Tools”).
13.    The husband to make a time and date with the wife to collect the Tools within 30 days of these orders.
14.    The husband to retain the Jeep Cherokee that he took after separation.
15.    The husband to retain the Mercedes Van that he took after separation.
16.    The husband to retain the wife’s wedding ring and band that he took after separation.
17.    The husband retain his interest in his Superannuation Funds.
18.    The wife retain her superannuation.
19.    Monies standing to the credit of each party in any bank account are to remain the property of each party to the exclusion of the other.
20.    The wife to retain all furniture items and possessions in the property.
21.    Notwithstanding the provisions of paragraph 10 herein, and upon the wife by affidavit deposing to attempts to secure compliance by the husband with paragraph (10) and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975, as amended, a Registrar of the Federal Magistrates Court of Australia at Melbourne forthwith be appointed to execute the Transfer Documents in the name of the Husband and do all acts and things necessary to give validity and operation to the transfer and the Transfer Documents.
22.    That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
i.Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife).
ii.Monies standing to the credit of each party in any bank account are to remain the property of each party to the exclusion of the other.
iii.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
iv.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
23.    All extant applications be otherwise dismissed and removed from the Pending Cases List.
AND THE COURT NOTES:
A.     The husband failed to comply with 2 sets of Court orders.

The husband appeals orders 1, 3, 9, 10, 11, 17, 18, 19, 20, 21, 22 and 23.

Grounds of appeal and orders sought

The husband’s grounds of appeal as contained in his Notice of Appeal filed on 30 August 2010 are as follows:
1.The Learned Federal Magistrate erred in law.
2.      The Learned Federal Magistrate acted contrary to the evidence.
3.      The Learned Federal Magistrate acted contrary to the weight of the evidence.
4.      The Learned Federal Magistrate failed to take into account relevant matters.
5.      The Learned Federal Magistrate took into account irrelevant matters.
6.      The Learned Federal Magistrate could not reasonably have come to the conclusion that he did on the relevant matters.
7.      The Learned Federal Magistrate erred in proceeding to hear and determine the matter and make the Orders.
8.      The Appellant was denied natural justice.
9.      The Learned Federal Magistrate gave no or insufficient reasons.
10.    The Learned Federal Magistrate made findings in the absence of any relevant material.
11.    The Appellant has new evidence which suggests the Respondent may have misled the Learned Federal Magistrate as to her financial position.
The husband seeks that the appeal be allowed. Although in his Notice of Appeal the husband also sought orders as to property settlement, at the hearing of the appeal counsel for the husband clarified that in light of new evidence that had emerged, he sought that the matter be remitted to the Federal Magistrates Court for re-hearing.

Discussion

The husband was represented by counsel, Mr Leithlean at the hearing of the appeal. The wife was unrepresented.
It is not possible to sensibly address any of the grounds of appeal. They all comprise challenges of a general nature without any specificity. Despite this, and tempted as I am to accordingly dismiss the appeal, the summary of argument filed on behalf of the husband clarifies to a certain extent the specific challenges to the orders made by the Federal Magistrate and I will proceed on the basis that that document sets out the parameters of this appeal. There was though a further problem encountered at the hearing in that the initial oral submissions of the husband’s counsel bore little resemblance to the content of the written summary of argument, or for that matter the general grounds of appeal. For example, in his oral submissions counsel for the husband suggested that his Honour had prejudged the issue to be determined, demonstrated “prejudice and bias” and was “emotive about what had happened on the day of the hearing and let that influence his decisions”. However, there was no application made to his Honour at the time that he should disqualify himself, and there was no ground of appeal or written submission directed to this claim. Accordingly, I propose to ignore this complaint.
I also observe that in ground 11 of the grounds of appeal the husband suggests that there is “new evidence” available to him, but there was no application to lead further evidence and accordingly I disregard this claim and this ground of appeal. In any event it cannot be considered an appropriate ground of appeal.
I should also mention at this point that in the appeal books the husband included documents described as “exhibits”. However, there was only one exhibit tendered to the Federal Magistrate during the hearing and that was a letter from his employer received and marked Exhibit A1. Accordingly, I will disregard all of the other documents included under the heading “exhibits” in the appeal books given of course, and to repeat, there was no application to lead further evidence.
There are obviously two parts to this appeal. The first part challenges the Federal Magistrate’s refusal to grant an adjournment and his decision to proceed to hear and determine the matter on an undefended basis. The second part challenges the orders for property settlement.

The adjournment application

To the extent that I can follow them and to the extent that they are relevant, the submissions of the husband are first, that given that the wife was without legal representation and had not incurred any costs, and as she claimed that she was not working, there was no prejudice to the wife in granting the adjournment. Secondly, it is said that his Honour failed to give any or sufficient reasons outlining the alleged prejudice to the wife that would be caused by granting the adjournment. Thirdly, his Honour erred in finding that the prejudice to the wife could not be remedied by a costs order. Fourthly, his Honour failed to take into account that the only alterations in the property of the parties and the only changes to their respective financial obligations from the final orders as compared to granting an adjournment were relatively minor. Fifthly, his Honour failed to consider whether the adjournment “was sought for a reasonable period of time”, and gave no weight to the proposal that he could make a self-executing order if the husband failed to comply with any future orders.
In my view these, and other similar submissions of the Appellant miss the point entirely in this case.
It is of course relevant to consider the prejudice that would flow from granting the adjournment, and his Honour did do that, and indeed the husband’s solicitor conceded before his Honour that there would be prejudice to the wife, but significantly the husband had twice failed to comply with orders of the Court to prepare the matter for hearing. He filed no documents and made no application for an extension of time to comply with the orders. The husband then failed to appear on the day of the hearing and instead provided his solicitor who appeared before the Federal Magistrate with a letter allegedly from his employer saying that he had to attend a compulsory course for the purposes of maintaining his employment.
The only explanation proffered to the Federal Magistrate as to why the orders made nine months before providing for the filing of documents had not been complied with was his solicitor’s remark to his Honour that apparently documents had been prepared but the solicitor had simply been unable to arrange for the husband to review those documents and then sign them. However, there was no explanation as to why that exercise had proved difficult. Further, there was no explanation given to the Federal Magistrate as to why the application to adjourn the hearing was not able to be made earlier.
In those circumstances the Federal Magistrate was perfectly justified in doubting the genuineness not only of the letter that was for some unexplained reason only made available to the court on the day of the hearing, but also doubting the bona fides of the husband in making the application.
Although the husband’s solicitor raised with the Federal Magistrate the possibility of adjourning the hearing and making self-executing orders, there was nothing put to the Federal Magistrate as to when the husband would be able to comply with the orders for the filing of documents to enable the hearing to take place. Thus, his Honour was again quite justified in finding that he had “no confidence” that an adjournment would lead to compliance with orders.
The Federal Magistrate was ready to proceed with the hearing, the wife had filed her documents comprising a further amended response, an affidavit of her evidence-in-chief, a financial statement and an outline of case and she was ready to proceed, and in those circumstances, and also given the husband had been represented for the entirety of the relevant period, and the orders for the preparation of the hearing had been made some nine months previously, the husband had to do far more than he did to convince the Federal Magistrate to adjourn the matter.
The husband submits that there was information that was not available and that was necessary for the Federal Magistrate to complete the hearing, namely there were no valuations of certain tools in the possession of the wife, a motor vehicle in the possession of the husband, or the respective current superannuation entitlements of the parties, and that justified the adjournment. However, his Honour did have some evidence before him to overcome these deficiencies, and it was not open to the husband to in effect use his failure to comply with the previous orders as a reason for obtaining an adjournment at the last minute.
In refusing the application for an adjournment his Honour appropriately referred to the High Court decision of Aon Risk Services Aust. Ltd v ANU (2009) 239 CLR 175. There the High Court put to rest the notion that adjournments can be obtained regardless of the effect on the court itself including its resources, its lists, and its ability to get through its work, as well as the effect on other litigants. The Federal Magistrates Court is notoriously a very busy trial court with long lists and inevitable delays, and the adjournment of a trial on the day that it is set down for hearing would inevitably create a serious disruption to that Court and its operations. His Honour said this during the course of the hearing (transcript, 2 August 2010, page 11, lines 13 – 19):
HIS HONOUR: … But, in the face of your client’s quite breathtaking attitude to court orders and compliance with them, I really, even considering those issues that you raised, don’t see that there is a valid reason for an adjournment application when I weigh prejudice to Ms [Angellini], the need to bring finality to these proceedings, case management principles which the High Court as recently as this year, have made plain ought to be given greater consideration by the court in determining adjournment applications.
I can find no error in his Honour’s refusal of the adjournment application.
As is apparent, the husband not only complains about the refusal of his adjournment application, but also that the Federal Magistrate proceeded to hear and determine the issue of property settlement on an undefended basis.
When the hearing was called on at 2:15pm the husband did not appear to prosecute his claim, but his solicitor did, albeit without instructions.
His Honour determined to proceed with the hearing on an undefended basis, and in effect required the solicitor for the husband to file a Notice of Ceasing to Act and then to withdraw. There was no ground of appeal challenging this but in passing I observe that it might have assisted the Federal Magistrate to have permitted the solicitor for the husband to remain and to take part in the proceedings, as he had wanted to.
It also seems to me that the approach of the Federal Magistrate demonstrates a misunderstanding of the concept of an undefended hearing. Strictly that phrase is best applied to a hearing where there is no response before the Court either because no response has been filed or there has been an order that the relevant response be struck out. Alternatively, it may be that the relevant application has been struck out and the hearing is to proceed on the response. Here, there was still before the Court the husband’s initiating application in which, inter alia, he sought orders for property settlement. However, that did not prevent the Federal Magistrate proceeding to determine the matter only on the basis of the evidence of the wife. The husband had had ample opportunity to put material before the Court in support of the orders that he sought but he failed to do so.
The complaint that the husband makes in his written summary of argument is that he was “denied natural justice” in that he was “denied the opportunity to appear and present his case.” However, I am not persuaded that this complaint is made out. The application to adjourn had been dismissed, his Honour held the matter until 2:15pm to enable the husband to appear, however the husband did not appear, and his solicitor had no instructions. The Federal Magistrate doubted the genuineness of the letter from the husband’s employer, and in any event the Federal Magistrate was justifiably concerned that the husband had not only failed to comply with the orders for the preparation of the matter for hearing, but also failed to make a timely application for an adjournment and to provide detailed and proper evidence in support of such an application. It was in these circumstances, and with this background, that the Federal Magistrate determined to proceed with the hearing in the absence of the husband and on the basis of the evidence relied upon by the wife. There was no denial of natural justice here, and no error in the Federal Magistrate proceeding as he did.

The orders for property settlement

I observe again that the grounds of appeal are not such that I can address them in any meaningful way in relation to this topic, and as with the challenge to the refusal of the adjournment application I am left to glean the basis of the husband’s complaints from the summary of argument filed on his behalf.
Even though the Federal Magistrate determined the issue of property settlement on an undefended basis, it was still necessary for his Honour to apply s 79 of the Family Law Act 1975 (Cth) and to undertake what is referred to as the four step approach. For example, in Hickey & Hickey & A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 the Full Court (Nicholson CJ, Ellis and O’Ryan JJ) said this at 39:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: …
In his summary of argument the husband appears to suggest that the Federal Magistrate failed to adhere to this approach. However, it is readily apparent from his Honour’s reasons for judgment that his Honour adequately addressed the requirements of s 79.
There is no doubt that the Federal Magistrate was hampered by the lack of fulsome evidence on all issues, and in particular in relation to the asset pool, but his Honour was still able to complete the process by relying on the best evidence that was available in the circumstances.
Turning then to the specific complaints made by the husband, it is submitted that his Honour erred in the findings that he made as to the net asset pool, that his Honour erred in finding that the wife (and the children) were not likely to receive any (financial support) from the husband in the future, that his Honour erred in his finding as to the amount of child support that the husband was paying, that his Honour erred in finding that the wife was not working, and that the wife misled the Court about her employment situation and the status of the two motor vehicles to be retained by the husband.
Addressing each of these complaints in turn:
a)The Federal Magistrate adopted the pool of assets identified by the wife in paragraph 96 of her affidavit. Included in that pool were two motor vehicles, a Jeep Cherokee and a Mercedes Benz van said to be in the possession of the husband, and assigned values by the wife of $22,000 and $14,000 respectively. However, the husband says that these two motor vehicles had been sold by him and that had been acknowledged by the wife in an earlier affidavit of hers sworn on 29 May 2009. Further, the husband says that he detailed the proceeds of these sales in a Financial Statement sworn by him on 13 March 2009 when he commenced the proceedings.
It is also in this context that the husband says that the wife “misled” the court about the status of these two motor vehicles.
There is no doubt that the wife’s earlier affidavit sworn on 29 May 2009 was before his Honour, being referred to and updated in the affidavit of evidence-in-chief filed by the wife on 20 July 2010, but it is not necessarily the case that the wife in paragraph 96 of her later affidavit was suggesting that the husband still had these motor vehicles. It must be remembered that the wife was unrepresented, and it is open to find that all the wife was doing there was identifying that the husband had had the benefit of these motor vehicles at the asserted values. Indeed, it is apparent from his Honour’s reasons that he understood that the husband had retained assets which he then sold and kept the proceeds. For example, in paragraph 42 of his Honour’s reasons he said this:
Otherwise, essentially the parties will keep what they have or had, particularly in the husband’s case, where he has enjoyed the benefit of assets which I am satisfied he took with him at the end of the marriage and has had the benefit, either by disposing and realising the proceeds. The wife will be able to house the children in the former matrimonial home, will take on the responsibility for a significant, in her circumstances, financial liability, and the husband will be left with his superannuation, the proceeds or the assets that still remain in his possession: the jewellery, the cars or the proceeds of those cars.
Thus, the only issue can be the accuracy of the values assigned to these two motor vehicles. The husband had not complied with the orders to file documents and obtain valuations, and his Financial Statement of

13 March 2009 was not before his Honour. Accordingly, the Federal Magistrate proceeded on the best evidence that was available to him, namely that of the wife, and thus there is no error here on his Honour’s part.
b)The husband also seemed to make some complaint that there were no updated superannuation figures. Again that was the case, but the wife relied on valuations of the husband’s superannuation obtained by him previously as well as her own assertions in her affidavit. As the Federal Magistrate said that is the best evidence that was available to him, and in the circumstances I find that he was entitled to rely on it.
c)The husband then submits that the Federal Magistrate erred by finding the value of the jewellery in the husband’s possession was $4,000 when the wife in her Financial Statement filed on 20 July 2010 “indicated (it) was valued at $2,000”. Unfortunately the husband and/or his legal representatives have misread the wife’s Financial Statement. The $2,000 figure inserted by the wife in item 43 thereof clearly represents her 50 per cent share. This is of course not how this item should be completed, but that is the explanation and it is borne out by the figures for the motor vehicles in item 40. In other words, instead of putting the total amount in the right hand column the wife has only put her 50 per cent share. Thus, clearly there is no error here by the Federal Magistrate.
d)In relation to the next finding complained of, I observe that what his Honour said had nothing to do with any issue of support for the wife, but had everything to do with support for the children. His Honour said this at paragraph 36 of his reasons:
… The next or the third enumerated step is to look at the parties’ future needs. Clearly, given [S and A’s] age and the parenting orders that I have made, the wife will have responsibility for them going forward, (if his behaviour is any indication) absolutely no support from the husband (sic).
I consider that such a finding was open to his Honour. The husband attempted to suggest that the financial statements of the parties do not justify that finding. He again sought to refer to his initial Financial Statement sworn on 13 March 2009 wherein he deposed to paying $66 per week child support. To repeat though that Financial Statement was not before his Honour, and in any event, it was completely outdated. With the wife’s financial statements the husband referred to her first statement sworn on 27 November 2009. That also was not before his Honour, but it is again apparent that the husband and/or his legal representatives have misread this document. The husband suggests that in it the wife is saying that the husband pays $150 per week child support when in fact the wife is saying that the husband is obliged under the relevant child support assessment to pay $5,842 per year but he has only paid $150. That interpretation is confirmed in the wife’s Financial Statement filed on 20 July 2010 which was in fact before his Honour, and in which the wife says that of the $5,086 the husband was assessed to pay in the relevant year he had only paid $800.
That explanation also deals with the complaint that his Honour erred in his finding as to the amount of child support that the husband was paying.
e)
Next, as to the issue of the wife working or not. The husband submits that “his Honour acted contrary to the evidence in finding that the wife was not working”. He refers to the wife’s Amended Response filed on

1 December 2009 wherein the wife identified her usual occupation as “florist (part-time)”, her Financial Statement sworn on 27 November 2009 where she again listed her occupation as “Part-Time Florist” and deposed to earning $238 gross per week from her employment, and finally to her Financial Statement sworn on 20 July 2010 in which it is alleged by the husband that she listed her “weekly wage” as “$402.00”.
Once again though an analysis of the wife’s Financial Statement filed on 20 July 2010 demonstrates that his Honour has not erred in finding as follows in paragraph 37 of his reasons for judgment:
The wife has some income-earning capacity; she is not currently working at the moment …
In her Financial Statement the wife clearly deposes to not being in employment, and the amount of $402 appearing in the income section is her “carer’s payment”.
Certainly the wife was working part-time as a florist in late November/early December 2009, but that was not the position as at

20 July 2010 or as at the date of the hearing.
That also quashes any suggestion that the wife “misled” the Federal Magistrate as to her employment.

It is plain that the Federal Magistrate did the best he could to identify and value the asset pool, he then identified the respective contributions of the parties and the relevant s 75(2) factors, and without detailing the specific percentage division, his Honour determined that the orders that he proposed were just and equitable.
It has not been demonstrated that the exercise of his Honour’s discretion miscarried. As the authorities make clear, “[i]t is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere” (Norbis v Norbis (1986) 161 CLR 513, per Brennan J at 539).
Here, I find that the “generous ambit” has not been exceeded.

Conclusion

I have found no merit in any of the challenges made by the husband to the orders of the Federal Magistrate and thus the appeal must be dismissed.

Costs

At the conclusion of the hearing I received submissions as to the costs of the appeal depending on the result.
In the event that the appeal was dismissed, the wife did not seek an order for costs given that she was not legally represented.
Accordingly, there will be no order for costs.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

20 September 2011

Associate:

Date: 20 September 2011