B v A
[2014] WASCA 173
•12 SEPTEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: B -v- A [2014] WASCA 173
CORAM: BUSS JA
NEWNES JA
MURPHY JA
HEARD: 19 AUGUST 2014
DELIVERED : 12 SEPTEMBER 2014
FILE NO/S: CACV 97 of 2013
BETWEEN: B
Appellant
AND
A
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MORONI M
Citation :B and A [2013] FCWAM 86
File No :PTW 5066 of 2003
Catchwords:
Family law - Appeal concerning dismissal of application to set aside de facto property settlement - Whether error in finding de facto relationship broke down prior to commencement of pt 5A of Family Court Act 1997 (WA) - Whether orders were beyond power - Section 205ZG and s 205ZI of Family Court Act - Application to adduce additional evidence - Orders made eight years prior to application to set aside - Whether other discretionary reasons relevant to dismissal of appeal - Delay - Failure to lodge an appeal against orders eight years earlier
Legislation:
Family Court Act 1997 (WA), s 205ZG, s 205ZH, s 205ZI
Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
B and A [2013] FCWAM 86
Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
REASONS OF THE COURT:
Introduction
This is an appeal against a decision of Magistrate Moroni, made on 23 August 2013, dismissing certain proceedings commenced by the appellant against his former de facto partner, the respondent. Magistrate Moroni's reasons are recorded in B and A [2013] FCWAM 86. (All references to paragraph numbers in the reasons below are references to paragraph numbers in Magistrate Moroni's reasons unless otherwise indicated.)
The proceedings before Magistrate Moroni involved an application by the appellant, filed 15 June 2012, for orders setting aside previous orders made in relation to a property settlement between the parties some eight years earlier in relation to a property in East Perth that had been jointly owned by the parties. In his application to Magistrate Moroni, the appellant sought orders in the following terms:
SET ASIDE ORDER FOR SALE OF UNIT [address omitted] TO THIRD PARTIES.
[The applicant] SEEKS TO COMMENCE NEW PROCEEDINGS IN THE SUPREME COURT OF WESTERN AUSTRALIA TO RAISE THE MATTER WITH THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA - AS A CLAIM [4].
In his application to Magistrate Moroni, the appellant relied on s 205ZH in pt 5A of the Family Court Act 1997 (WA) (the Act). Section 205ZH(1) of the Act provides, relevantly:
205ZH. Setting aside of orders altering property interests - FLA s. 79A
(1)Where, on application by a person affected by an order made by a court under section 205ZG in proceedings with respect to the property of de facto partners, or either of them, the court is satisfied that -
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (within the meaning of subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a criminal confiscation order has been made in relation to property of the de facto partners or either of them,
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 205ZG in substitution for the order so set aside.
Section 205ZG, also in pt 5A of the Act, provides, amongst other things:
205ZG. Alteration of property interests — FLA s. 79
(1)In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account -
(a)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;
(c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent;
(d)the effect of any proposed order upon the earning capacity of either de facto partner;
(e)the matters referred to in section 205ZD(3) so far as they are relevant;
(f)any other order made under this Act affecting a de facto partner or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
…
(9)A court must not make an order under this section in proceedings with respect to the property of de facto partners, or either of them (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless -
(a)the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with the Principal Registrar, a registrar or a deputy registrar;
(b)the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
Part 5A of the Act commenced operation on 1 December 2002.
Background
The following background facts were found by Magistrate Moroni.
The parties were involved in a de facto relationship which commenced in early 1991. The relationship produced two children, born in 1998 and 2000, respectively. Both children have, since the breakdown of the relationship, lived with the respondent. On 10 September 2003, the respondent filed an application in the Family Court of Western Australia seeking parenting orders pursuant to pt 5 of the Act and financial orders for financial matters pursuant to pt 5A of the Act. (Part 5A of the Act includes s 205ZG, which concerns proceedings with respect to the operation of alteration of property interests between de facto partners.)
The respondent's pt 5A application was listed for trial before a judge of the Family Court of Western Australia on 24 February 2004. The respondent was represented by counsel and the appellant was self‑represented, appearing via videolink. The appellant had not filed any documents in relation to the respondent's pt 5A application. Nor did he file any evidence in chief for the purposes of the trial.
The respondent's pt 5A application was heard before Martin J on 24 February 2004. Her Honour gave each of the parties the right to be heard. At the conclusion of the hearing, her Honour, having made some non‑contentious interim parenting orders regarding the children, made interim orders pending final determination of the application for property settlement to the effect that:
(a)the appellant's interest in the joint property vest in the respondent as trustee for sale; and
(b)the respondent sell the property at the initial asking price of not less than $260,000, and the net proceeds of sale, after the costs of sale, be held by the respondent's solicitors in a trust account, pending delivery of judgment by the court.
Martin J delivered reasons for judgment on 23 April 2004. Martin J found that the parties had separated in January 2003. Her Honour made orders providing that following completion of the sale of the property, the net proceeds of sale should be distributed in proportions of 65%/35% favouring the respondent. The property was sold to a third party.
There was no evidence to suggest that the parties did not receive their entitlements pursuant to Martin J's orders of 23 April 2004.
The reasoning of Magistrate Moroni
Magistrate Moroni considered that the appellant's application raised essentially two issues. One was whether there had been a miscarriage of justice within the meaning of s 205ZH(1)(a) of the Act. The other was whether s 205ZH(1)(d) had any application.
It is convenient to set out the following passages from Magistrate Moroni's reasons:
54.What is clear to the Court is that if the Applicant is to establish a miscarriage of justice by reason of one or more of the matters set out in s 205ZH(l)(a) of the Act, then he needs to establish material facts relating to the judicial process which facts occurred at the time the orders under attack were pronounced or occurred prior thereto. That is to say, to the extent that the Applicant's case is based on s 205ZH(l)(a) of the Act, evidence of events occurring after 23 April 2004 is not particularly helpful.
55.The Applicant's evidence in this hearing was to a large extent directed to the question of when it was that the de facto relationship between the parties broke down. However, this trial was never about a re‑hearing of the question of when it was that the de facto relationship came to an end. It is about determining whether there was a miscarriage of justice in respect of the judicial process and procedure which resulted in the relevant finding of fact being made by the Judge.
56.Her Honour made a finding in her Reasons for Judgment that the parties separated in January 2003. That is to say, the Judge made a clear finding that the de facto relationship ended after the commencement of Part 5A of the Act, hence Part 5A applied to these parties.
57.It seems to the Court that the Applicant is, in effect, simply submitting to the Court now that the Judge erred in finding the date of separation to be January 2003. The Applicant is seeking to prove by evidence presented in this trial that her Honour did err in making this finding.
58.For her part, the Respondent is adamant that the finding of the Judge regarding the date of separation was valid. That is to say, the Respondent's position is that she has maintained at all times since she first commenced proceedings in the Family Court of Western Australia on 10 September 2003 that the de facto relationship came to an end in January 2003. The Respondent does not waiver from that position to this day.
59.In her own trial affidavit and that of her witness, the Respondent provides evidence that certain representations made by the Applicant himself during the course of the child related proceedings between the parties and in the course of some restraining orders proceedings commenced by the Applicant against the Respondent's husband are inconsistent with the Applicant's present case that the parties separated prior to 1 December 2002. There does not appear to be any explanation by the Applicant regarding the obvious inconsistencies which have been highlighted by the Respondent.
60.That said, the Respondent did not seek to cross‑examine those witnesses on the Applicant's side who gave evidence supporting his case regarding the date of separation. However, all of this rather misses the point. It seems to the Court that if there was to have been an argument regarding the date of separation, then the time for that argument to have been conducted was on 24 February 2004 before the Judge, and not now.
61.It seems to the Court that the remedy for the Applicant, if he believed that the Judge had fallen into error in finding that the de facto relationship had ended prior to the commencement date of Part 5A, was to have filed an appeal based on such asserted error.
62.The Applicant made much of the fact that the Judge had come to this conclusion without having all of the relevant facts at her Honour's disposal. However, this submission begs the obvious question which is why it was that the Applicant did not ever file a response to the Respondent's substantive Part 5A application and why he filed no affidavit evidence prior to the hearing conducted on 24 February 2004.
63.It seems to the Court that the Applicant had every opportunity to put his case to the Court under Part 5A of the Act and it remains unexplained why he elected not to do so. That is to say, the Applicant had every opportunity to have filed the very same affidavit evidence he has now filed in respect of the issue of the date upon which this de facto relationship broke down.
64.It appears to be common ground that the Applicant did actually engage in the child related proceedings and that he filed necessary and relevant documentation in respect thereof. Just why he did not do so in relation to the Part 5A proceedings remains unexplained.
65.Indeed, when one has regard to the opening exchanges between her Honour and the Applicant, as per the transcript in evidence, it was clear from the outset that her Honour was concerned by the fact that the Applicant had not filed any documents or presented any evidence in respect of financial issues.
66.Thus, it seems to the Court that what the Applicant is really saying is that her Honour fell into error by finding that the de facto relationship had ended in January 2003 because of his own omission to properly engage in the financial proceedings and to put all of his relevant evidence to the Court at the appropriate time.
67It is difficult for the Court to see how justice miscarried in respect of the finding by her Honour that the parties separated in January 2003. This was a fact unambiguously asserted by the Respondent when she commenced the substantive Part 5A proceedings and she never [wavered] from that stance. The Applicant was always aware that the Respondent was alleging that the de facto relationship broke down in January 2003.
68The Applicant had every opportunity, in the Part 5A proceedings heard by her Honour, to file a response disputing the date of separation and to file appropriate affidavit evidence to support his case that the de facto relationship had actually broken down prior to the commencement of Part 5A.
69.It seems to the Court that there can be no sustainable criticism of the integrity of the judicial process followed by her Honour. On the evidence presented, her Honour's finding regarding the date of separation was the only one available.
70.In his closing submissions, the Applicant appeared to broaden his case under s 205ZH(l)(a) of the Act beyond the issue of the date of separation.
71.The Applicant, as mentioned above, submitted, somewhat curiously, that it was actually her Honour who 'suppressed evidence' by overlooking the fact that there had been an in principle agreement reached to settle the proceedings prior to the hearing in February 2004. It is clear from her Honour's brief reasons for decision delivered in respect of the costs argument that her Honour was indeed aware that there had been some form of in principle agreement struck prior to the trial. However, it is obvious that her Honour was also aware that there was no maintenance of any such agreement to settle as at the time of the hearing of 24 February 2004.
72.Otherwise, the Applicant appeared to submit that there has been a miscarriage of justice by virtue of the fact that the subject property was actually sold to third parties. The Applicant appeared to be concerned that over the years to have elapsed since the delivery of judgment by her Honour the subject property would have increased in value very substantially. Just how this circumstance could amount to a miscarriage of justice the Court is not sure.
73.It is abundantly clear that her Honour had the power to make the form of order which was made for the sale of the subject property. Such orders are made every day in this jurisdiction. They are clearly the types of orders caught by s 205ZI of the Act which provision sets out the general powers of the Court.
74.The Applicant also sought to argue his case by reference to the provisions of s 205ZH(l)(d) of the Act. This was a difficult argument to follow.
75.As the Court understands it, the Applicant's submission was that the children of the relationship, or at least the female child, would suffer hardship if the Court was not to set aside the orders made by her Honour.
76The Applicant appeared to be submitting that the children are somehow adversely affected by the circumstance that the Applicant owns no real property at the present time whereas the Respondent does have an interest in real property, albeit not the subject property which was formerly owned and occupied by the parties whilst the de facto relationship was on foot.
77The Applicant's argument under s 205ZH(l)(d) of the Act is unsustainable in the view of the Court. There is nothing in the evidence which would go close to establishing that circumstances of an exceptional nature have arisen, since the making of her Honour's orders, relating to the care, welfare and development of the two children, which would result in the children suffering hardship if the Court was not to grant the relief sought by the Applicant. In this respect, it needs to be noted that the two children are, and have at all material times since the breakdown of the relationship been, in the primary care of the Respondent.
78Indeed, given that the Respondent is the primary caregiver to the children, it seems to the Court that if the orders under attack were set aside and substituted eventually with orders adverse to the financial interests of the Respondent, then such a course of action may well cause hardship for the children.
79The Applicant's argument under s 205ZG(1)(d) of the Act is supported by one of his two 16 paragraph affidavits received at the Court on 1 February 2013. It is the affidavit which contains evidence of alleged conversations between the Applicant and the female child of the relationship.
80As the Applicant himself acknowledges in paragraph 16 of this affidavit, the evidence of his conversations with the female child is hearsay evidence and thus is inadmissible insofar as it purports to establish the child's views.
81.However, even if the evidence in question was admissible, it falls well short of founding a case under s 205ZG(1)(d) of the Act.
82Finally, the Applicant also asserted that there had been a miscarriage of justice by virtue of the fact that the trial Judge had incorrectly determined that the Applicant had no proposal to retain the property. In this respect, the Applicant's case was directed to the content of paragraph 18 of her Honour's Reasons for Judgment
83When regard is had to the content of the transcript of the proceedings heard on 24 February 2004, it is difficult to see how her Honour could have come to any other conclusion. That is to say, the Court has not been able to find in the transcript any record of the Applicant ever advising her Honour that he had a firm proposal to acquire the interest of the Respondent in the subject property by payment to her of any certain sum.
84.At page 24 of the transcript it is clear that her Honour gave to the Applicant an opportunity to respond to the submissions which were made by the Respondent's counsel.
85.The Applicant took the opportunity to make some very brief comments on the subject of contributions. Her Honour then went on, at page 25 of the transcript, to invite the Applicant to say anything else he wished to say. The Applicant declined the invitation.
86.Then, the Judge made it clear that her Honour was intending to make an immediate order for the sale of the subject property, ahead of the delivery of final judgment. There was then a brief interchange between the Applicant and her Honour, but the transcript does not reveal that the Applicant actually objected to the course which was being clearly foreshadowed by her Honour.
87.There was one final issue which was raised by the Applicant in the course of his closing submissions which requires some attention.
88The Applicant submitted that at some point in the course of the substantive Part 5A proceedings, the Respondent had led the Court to believe that the mortgage over the subject property had fallen into arrears when in fact the mortgage was substantially in credit as a result of the Respondent applying the net proceeds of sale of a certain parcel of listed shares she once owned in reduction of the mortgage debt.
89.However, it is difficult for the Court to see how that point may have contaminated in any way the reasoning of her Honour as set out in the Reasons for Judgment. Again, it seems to the Court that if the Applicant was concerned that her Honour had fallen into error by overlooking material facts, then the appropriate remedy would have been for him to have lodged an appeal based on the point.
90.Once more, it needs to be said that the Applicant himself could have put to her Honour any relevant evidence, including evidence concerning the servicing of the mortgage, which he considered that her Honour ought to have taken into account. The Applicant elected not to put such evidence before her Honour and thus it is difficult to conclude that there should be any criticism of her Honour by reason of her accepting the evidence of the Respondent.
91.The second of the Applicant's 16 paragraph affidavits received at the Court on 1 February 2013 contains some of the Applicant's complaints regarding the nature of the hearing conducted by her Honour on 24 February 2004 and there are certain observations in respect of that evidence which need to be addressed.
92.At paragraph 7 of that affidavit, the Applicant speaks of being aware that the Respondent was seeking an order for the sale of subject property. Curiously, the Applicant says that he felt that such action would never succeed because '...The Court would never destroy the property title ...' As noted above, orders for the sale of real property are made, not by consent, by the Court on a very regular basis.
93.Then, at paragraph 8 of the same affidavit, the Applicant explains that he did not file any documents in relation to the property issue as he was not convinced that the Family Court of Western Australia was '...the correct jurisdiction ...' for the parties.
94.If indeed the Applicant truly believed, as at 24 February 2004, that the Family Court of Western Australia lacked the jurisdiction to hear the Respondent's financial claim, then the onus was upon him to have properly put his case on point to the Court, in documentary form, well in advance.
95.Moreover, when regard is had to page 9 of the transcript of the hearing conducted on 24 February 2004, it is clear that her Honour made it known to the Applicant that the claim he faced was for an order for the sale of the subject property and an unequal division of the assets of the parties favouring the Respondent. Her Honour then asked the Applicant to respond and the Court is unable to see that the Applicant ever raised with her Honour any objections to the jurisdiction of the Court. Further, there appears to have been no application by the Applicant to adjourn the proceedings.
96Otherwise, at paragraph 13 of the relevant affidavit, the Applicant makes the rather odd, and somewhat offensive statement, as follows.
'… I was left wondering if in fact her honour handled our property interests so badly to destroy the title for her own reasons.'
97.Just exactly what the Applicant is suggesting immediately above is difficult to know.
Magistrate Moroni concluded that the appellant had not satisfied the court that there had been a miscarriage of justice by reason of one or more of the matters set out in s 205ZH(1)(a) of the Act and that he had failed to satisfy the court that he had a case under s 205ZH(1)(d) of the Act. His Honour also said:
102.The authorities which deal with the issue of 'miscarriage of justice' in this context make it clear that the focus of the Court has to be upon any contamination of the property [sic] judicial process. Justice does not necessarily miscarry because a litigant is dissatisfied with particular findings of fact or the manner of exercise of judicial discretion.
…
110.As a final word, it might also be mentioned that even if the Court had been satisfied that the Applicant made out a case under s 205ZH(l) of the Act, it is doubtful that the Court would have then moved to the next step which is to exercise its discretion in favour of the Applicant. That is so for the following reasons.
111.The first observation to make is that it has now been a very long time since the substantive Part 5A application was heard and determined. The period in question exceeds nine years, a lengthy period indeed. The Applicant has not provided any convincing explanation for his delay.
112.The terms of her Honour's orders have now been implemented and both parties have received their shares in the relevant asset pool in accordance with her Honour's determinations. Both parties have acted on the judgment, and the Respondent has got on with her life.
113.The subject property has actually been transferred to third parties at arms' length and so that is a transaction which is incapable of reversal.
114.As mentioned above, in relative terms, the asset pool divided by her Honour was of modest dimension and the legal costs likely to be incurred by the parties, if there was to be a fresh set of proceedings instituted now, would likely be quite disproportionate.
115.If the Applicant felt aggrieved by the findings made by her Honour and by the manner of the exercise of her Honour's discretion under s 205ZG(l) of the Act, then, the appropriate remedy for the Applicant was to have filed an appeal. The Applicant did not do so. That was a matter of his own choosing.
Grounds of appeal and application to adduce additional evidence
The appellant's grounds of appeal were in the following terms:
1.Error of fact: it was never proved in the judicial process the Applicant was ever aware the Respondent was alleging the de facto relationship broke down in January 2003 to gain access to the Family Court of Western Australia under new property laws.
2.Error of law: the orders of 24 February 2004 and 23 April 2004 were not orders properly constructed for 'property settlement' within the meaning of s 205ZG or s 205ZI Family Court Act 1997.
By application dated 28 February 2014, the appellant applied to adduce additional evidence pursuant to his affidavit sworn 28 February 2014. The affidavit annexed a document titled 'Authority to Act as Managing Agent' in respect of the property which was sold pursuant to the orders of Martin J in 2004. In his affidavit the appellant deposed:
6.The document shows [the appellant] never signed the 'Authority to Act as Managing Agent'.
7.[The respondent's new husband's] name is written on the document as the contact for the property, it appears to be in his own handwriting.
8.[The respondent] has signed the document.
9.[The appellant] was never given the opportunity to appear or present his case in respect of control of the property by the Real Estate Agent … either before or during trial hearing 24 February 2004.
10.[The appellant] was never aware the agency agreement existed or the date the real estate agent took control of the property until … [he] was approved to inspect these documents in 2013.
11.[The appellant] before 2013 was refused access by REBA to the materials that formed the basis of its investigation, including any agreements or contracts signed in respect of the property …
12.No court orders were ever issued for the leasing of the property.
13.The document proves dates indicated in [the appellant's] submissions to the Court of Appeal and the illegal role of Real Estate Agent … as Managing Agent whom both valued and sold the property to her clients 8 days after orders were issued 24 February 2004.
14.The document forms part of the REBA investigation and finding discussed in exhibit 4 'letter from REBA to appellant'.
Disposition
Ground 1
Ground 1 alleges, in effect, that Magistrate Moroni erred because there was no evidence to support the findings in [67] of Magistrate Moroni's reasons to the effect that the respondent had asserted, for the purposes of the pt 5A proceedings against the appellant, that the parties had separated in January 2003, and that the appellant had always been aware, in relation to those proceedings, that the respondent was alleging that the de facto relationship broke down in January 2003.
Ground 1 is to be considered in the following context.
First, there is no challenge to the following findings of fact by Magistrate Moroni:
(a)the parties commenced the de facto relationship in early 1991 [14];
(b)on 10 September 2003, the respondent filed an application seeking financial orders pursuant to pt 5A of the Act [19];
(c)the respondent's pt 5A application was listed for trial on 24 February 2004 in the Family Court of Western Australia [20];
(d)although the appellant had not filed any documents in respect of the respondent's pt 5A application, Martin J (the trial judge) gave each of the parties the right to be heard and the appellant had every opportunity to provide evidence in respect of the issue of the date upon which the de facto relationship broke down [23], [63]; and
(e)on 24 February 2004, Martin J made interim orders for the sale of the East Perth property in advance of making final orders as to the division of the property [24] ‑ [26].
Secondly, the appellant has not provided to this court for consideration the respondent's pt 5A application determined by Martin J in 2004, nor any affidavits sworn by the respondent in support of that application, with a view to showing that the respondent had never alleged that the parties had separated on in January 2003.
Thirdly, the appellant has included in the materials before this court the appellant's affidavit dated 24 January 2013 (GB 1 ‑ 16) and his two affidavits of 30 January 2013 (GB 17 ‑ 23 and 24 ‑ 29) apparently sworn in support of the appellant's application before Magistrate Moroni. Although in the first affidavit of 30 January 2013 the appellant said that Martin J 'never mentioned the introduction of any new legislation about de facto couples' and did not 'ask questions about when [the parties] separated' (par 11), the appellant confirmed that he received a court document saying the 'order sought was property sale' (par 7), and that Martin J told him at the trial in 2004 that 'the application was to property' (par 9). In none of the affidavits did the appellant expressly depose that he did not know, in the pt 5A proceedings in 2003/2004, that the respondent was alleging, for the purposes of those proceedings concerning property orders, that the parties had separated in January 2003.
Fourthly, the respondent's affidavit dated 21 February 2013, apparently sworn in response to the appellant's application to Magistrate Moroni, annexed:
(a)a letter dated 14 July 2003 from the respondent's solicitors to the appellant, proposing a property settlement (GB 64);
(b)an affidavit purportedly sworn by the appellant in 2004, referring to the appellant having been in a relationship with the respondent 'for 12 years'.
It may be observed here that if the relationship commenced in early 1991, then a period of 12 years would take the period of the relationship up to early 2003.
Fifthly, also in the materials included by the appellant in the appeal is an affidavit by the respondent's husband in her present marriage, which annexes a summons issued by the appellant in July 2003, in which the appellant described the respondent (even at that time) as 'my de facto' (GB 77).
Sixthly, the materials included by the appellant in the appeal also include a letter written by the respondent's solicitors to the Legal Practitioners Complaints Committee dated 3 April 2007 dealing, apparently, with a complaint made by the appellant against their conduct. The letter encloses a chronology said to have been prepared by them for the hearing on 24 February 2004 before Martin J (GB 86). The enclosed chronology stated that in January 1991 the parties had commenced cohabitation, and that in January 2003 'separation occurs when [the appellant] leaves the East Perth property' (GB 106).
In light of the foregoing and on the materials before this court, there is no basis upon which to conclude that Magistrate Moroni erred in relation to the findings at [67]. Ground 1 should be dismissed.
Ground 2
Ground 2 alleges, in effect, that Martin J's orders of 24 February 2004 concerning the sale of the property, and on 23 April 2004 requiring that the sale proceeds be distributed 65%/35% favouring the respondent, were not orders within the meaning of s 205ZG or s 205ZI of the Act.
Section 205ZG has relevantly been set out earlier in [4] above.
Section 205ZI of the Act provides:
205ZI. General powers of court — FLA s. 80
(1)The court, in exercising its powers under this Division, may do any or all of the following -
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
(c)order that a specified transfer or settlement of property be made by way of maintenance for a de facto partner;
(d)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(e)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f)appoint or remove trustees;
(g)order that payments be made direct to a de facto partner, to a trustee to be appointed or into court or to a public authority for the benefit of the de facto partner;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)impose terms and conditions;
(j)make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs), which it thinks it is necessary to make to do justice;
(l)subject to this Act and the rules, make an order under this Division at any time.
(2)The making of an order of a kind referred to in subsection (1)(c), or of any other order under this Division, in relation to the maintenance of a de facto partner does not prevent a court from making a subsequent order in relation to the maintenance of the partner.
(3)The rules may make provision with respect to the making of orders under this Division in relation to the maintenance of de facto partners (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
The appellant's submissions in relation to ground 2 are not easy to follow. Insofar as the appellant alleges that s 205ZI does not permit the court, in the exercise of its powers under div 2 of pt 5A, to make orders with respect to the sale of property owned by de facto partners to a third party, that submission cannot be accepted. Section 205ZI(1)(k) enables the court to make any other order which it thinks it is necessary to make to do justice, and s 205ZI(1)(l) provides that, subject to the Act and the rules, the court may make an order under div 2 of pt 5A at any time.
Also, for the purposes of pt 5A, 'property', in relation to de facto partners or either of them, is defined to mean 'property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion' (s 205T of the Act). The term 'property' in s 205ZG(1) plainly encompassed both the East Perth property and the proceeds of sale of the East Perth property.
Ground 2 should be dismissed.
The application to adduce additional evidence
The additional evidence sought to be adduced in the appeal appears to be in the nature of 'new' evidence, rather than 'fresh' evidence: as to which, see Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, 129; Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [36]. The effect of the evidence, according to the appellant, is that the East Perth property had been leased without his authority prior to its sale pursuant to the orders of the Family Court.
That evidence has no relevance to the disposition of the appeal and, even if it did, the appellant has shown no basis upon which the court would exercise its discretion to allow the evidence to be received pursuant to pt 5 r 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA). Accordingly, the application is dismissed.
Other reasons for the dismissal of the appeal
The orders sought by the appellant on this appeal, if he is successful, are to the effect that this court should 'set aside the orders of 24 February 2004 and 23 April 2004' made by Martin J (WB 31).
Magistrate Moroni found, in effect, that even if the jurisdiction to set aside Martin J's orders were enlivened under s 205ZH(1), it is doubtful that the court would, in any event, exercise its discretion in favour the appellant for the reasons set out at [110] ‑ [115]. It is not contended that Magistrate Moroni erred in his observations in that regard.
Essentially for the reasons given by Magistrate Moroni at [110] ‑ [115] of his reasons, even if the appellant's grounds of appeal, or his application to adduce evidence, had merit, this court would not set aside Magistrate Moroni's orders or make the orders which the appellant seeks in this appeal.
Conclusion
The appeal should be dismissed.
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