Baker & Bond
[2022] FedCFamC1A 219
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Baker & Bond [2022] FedCFamC1A 219
Appeal from: Baker & Bond [2022] FedCFamC2F 862 Appeal number: NAA 143 of 2022 File number: MLC 749 of 2021 Judgment of: AUSTIN, MCGUIRE & CAMPTON JJ Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where appellant appeals from final orders adjusting the parties’ property interests to effect a 50 per cent division of the net non-superannuation assets between the parties – Unsupported allegations of bias – Whether the primary judge denied the husband procedural fairness – Complaint as to mistaken contribution findings arising from the husband’s relatively higher salary – Assessment of contributions to be approached holistically – Where mathematical precision is not required – Whether the primary judge took into account irrelevant considerations in relation to the husband’s past drug use –Where the findings of the primary judge were reasonably open on the evidence – Appeal dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks leave to adduce further evidence – Where the utility of the evidence in advancing the ground of the appeal was not established – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Bennett and Bennett (1991) FLC 92–191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Dakin & Dakin [2012] FamCAFC 120
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Galea v Galea (1990) 19 NSWLR 263
Green & Knowles [2010] FamCAFC 248
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
R v Birks (1990) 19 NSWLR 677
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 72 Date of hearing: 2 November 2022 Place: Heard in Melbourne, delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Dr Smith Solicitor for the Respondent: VFG Legal ORDERS
NAA 143 of 2022
MLC 749 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BAKER
Appellant
AND: MS BOND
Respondent
order made by:
AUSTIN, MCGUIRE & CAMPTON JJ
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 17 October 2022 is dismissed.
2.The Notice of Appeal filed 29 June 2022 is dismissed.
3.Within 14 days from the date of these orders the wife shall file and serve written submissions in respect of the issue of costs, with the husband to have a further 14 days in which to file and serve his written submissions in response.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Baker & Bond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, MCGUIRE & CAMPTON JJ
Introduction
This is an appeal by the husband, Mr Baker, from property settlement orders made by the primary judge in the Federal Circuit and Family Court of Australia (Division 2) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 15 June 2022.
For the reasons which follow, the appeal will be dismissed.
The trial at first instance
The husband was the applicant and sought orders giving him 52.5 per cent of the net value of the pool of tangible assets (being the parties’ non-superannuation assets which the primary judge referred to as “realisable assets”). He did not specifically seek a superannuation split. It was, and remains, transparently clear that the primary object of the husband’s application was for him to retain the former matrimonial home at D Street, Suburb C (“the former matrimonial home”) and that he accepted that a cash adjustment by him to the wife would be required albeit in circumstances of limitations to his borrowing capacity.
The wife, Ms Bond, sought an order that she receive 55 per cent of the net value of the tangible property pool. She too did not specifically ask for a superannuation splitting order.
The primary judge ultimately made orders dividing the net tangible pool on a 50/50 basis between the parties with each retaining his and her existing superannuation entitlements where the husband’s interest was valued at $250,000 and the wife’s at $348,000.
Giving context to the primary judge’s determination and the dispute then before the Court, was an agreed “Assets and Liabilities schedule”, which was provided to the Court during the course of the trial which while not marked as an exhibit became Annexure A to the final orders made (“the joint balance sheet”). It showed the net value of the property pool in the form of tangible assets to be $537,788 (noting that the husband before us argues that the joint balance sheet was not put before the Court with his informed consent). The dispute, in practical terms, before the primary judge, therefore, had an ambit of 7.5 per cent of the pool or $40,334.
The husband sought at trial that he retain the former matrimonial home having an agreed equity of $418,500, that he have the benefit of an offset account valued at $34,910 and that he pay to the wife the sum of $200,000. The primary judge adjusted the tangible property pool so that the husband had the opportunity to retain the home if he paid to the wife the sum of $190,000 and for the wife to retain the benefit of the offset account. The husband agreed in the hearing of the appeal that the difference between the value of what he sought at trial and what was determined by the primary judge pursuant to s 79 of the Act (and hence the value of the complaints on appeal) was $24,910. Importantly, a highly contentious issue at trial, grounded from the husband’s borrowing capacity to enable him to retain the former matrimonial home, was determined in his favour permitting him the opportunity to pay monies to the wife to achieve this objective.
In the appeal it was submitted, without challenge from the husband and apparently mathematically correctly, that the primary judge’s orders provided for the husband to retain the equity in the home ($418,500), a motorboat ($40,000) and a categorised partial property settlement ($10,000) being a total of $468,500 with the primary judge then ordering a payment of $190,000 from the husband to the wife which would leave the husband with property of net value of $278,500. This, in fact, amounts to 51.79 per cent of the relevant pool which provides an advantageous discrepancy to the husband of $9,626. Notably, the wife does not raise any complaint before us as to this mathematical discrepancy favourable to the husband. The husband was not cognizant of the fact and reality of this alleviating factor in his favour until it was first identified in the wife’s Summary of Argument and then highlighted to him in the hearing of the appeal.
Background
Both parties are 41 years of age. They are both currently in employment with the wife’s income in the range of $145,000 per annum plus superannuation. The husband has an income of around $74,000 per annum plus superannuation. There are no children of the marriage or of either party.
The parties commenced a relationship in 2011 and cohabitation in 2012. They married in 2017 and separated in July 2020.
It is agreed that near the end of 2011 the former matrimonial home was purchased and registered solely in the name of the husband. The parties commenced cohabitation upon moving into the former matrimonial home in February 2012. It is common ground that the funds for the deposit for the purchase ($50,000) together with stamp duty and other purchase costs came from the husband. The husband argued to retain that property at trial and before us on the re-exercise of discretion in the event the appeal succeeded.
Prior to cohabitation, the wife together with her sister had purchased a property at E Street, Suburb F in September 2009. In 2011 the wife purchased her sister’s interest becoming the sole registered proprietor. The wife’s unchallenged evidence was of there then being an equity of $35,000 in the property. The E Street property was sold in 2017 bringing net proceeds of approximately $40,000. For the duration of the relationship, except for a few months, the wife was employed in executive type positions and remains so employed.
The husband was initially employed in positions similar to the wife, albeit where the husband says that his initial income was greater than that of the wife. The husband was not effectively in remunerative full-time employment following his retrenchment in November 2018 and for the remainder of the marriage. He is now employed as a technician on a salary of $74,000 per annum. The husband's affidavit material discloses that he no longer considers himself suited to high-level corporate employment.
It is common ground that the husband habitually used illicit drugs during the relationship.
There is no evidence of either party having re-partnered in either a supportive or dependent sense.
Application in an appeal – to adduce further evidence
By his Application in an Appeal filed 17 October 2022, the husband seeks to adduce further evidence in the form of a document being “Letter from [the wife] to Accountant FY 2012”. The application was opposed by the wife.
Notably, the husband made no submissions before us as to the applicable principles on the receiving of further evidence.
Section 35(b) of the Federal Circuit and Family Court of Australia Act2021 (Cth) in similar terms to the repealed s 93A(2) of the Act provides, together with r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a discretion for the Court to entertain further evidence on an appeal.
The discretion to admit further evidence is necessarily constrained by the need to maintain a distinction between original and appellate jurisdictions. Matters exercising such a consideration include the prior availability of the evidence before the trial judge; whether such evidence was obtainable with reasonable diligence; any likely and probative influence on the ultimate determination; whether the evidence is credible; and the general need for finality in litigation.
The leading authority on the issue of the admitting further evidence remains that of the High Court in CDJ v VAJ (1998) 197 CLR 172, where the majority (McHugh, Gummow and Callinan JJ) in considering whether the discretion to admit evidence is unfettered commented as follows:
104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court of Appeal weighs factors, although it although it may of course develop guidelines for weighing those factors and exercising the discretion.
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
(Footnote omitted)
In the absence of any cogent contrary submission by the husband in the appeal, it seems most likely the document could have been procured by him for use at trial. For reasons which remain unexplained, it was not obtained and tendered in evidence. That is a forensic decision by which the husband is bound. He cannot now tender evidence in the appeal he wished he had at trial, for otherwise the distinction between original and appellate jurisdiction would be distorted. The Application in an Appeal filed 17 October 2022 to adduce further evidence is dismissed.
The appeal
The husband’s Notice of Appeal raises 10 separate grounds. Before us, the husband abandoned Grounds 3, 4, and 10.
Where the husband makes complaint of bias (Ground 1) and the denial of procedural fairness (Ground 6) it is appropriate to consider and determine these grounds first as findings in favour of the husband would be determinative of the appeal as a whole.
The grounds of appeal recorded in these reasons are reproduced in the terms as articulated by the husband.
Ground 1
Her Honour acted in a biased way which was clearly evident in her views at the start of the hearing with her disgruntlement at the parties not settling the matter out of court. It is [the husband’s] view her Honour disadvantaged [the husband] unfairly in this matter accordingly.
The husband’s Summary of Argument expands considerably in its particulars from that pleaded in the Notice of Appeal including complaints of pre-determination and other matters not properly argued under the umbrella of “bias” such as asserted mistake of fact but where, to the credit of the husband, those other matters were not agitated before us.
The husband extracts various comments of the primary judge from the transcript in support of his complaint and as follows:
HER HONOUR: Frankly, this is a house and super case. I’m genuinely bemused as to why common sense isn’t prevailing, and I will make this observation, [to counsel for the husband]. I can't see how your client can retain the former matrimonial home. If no one wants the boat, it gets sold. And the house will have to be sold, and it’s just a question, frankly, of whether my gut reaction of 50/50 is wrong.
…
HER HONOUR: … And I’ve rounded up, and that can be subject to confirmation. But I think I had 20 618,966. You can see where I’m saying [$620,000] from. A net non-superannuation pool. [The husband’s] proposal using that figure, [to counsel for the husband], is something like a 43/57 division. On what basis is [the husband] submitting that that’s a just and equitable outcome?
…
HER HONOUR: Well, the problem you have, [the husband], frankly, is you cannot afford to keep the house. You cannot–I am telling you, now that we have an agreed asset pool, you cannot afford to keep the house. That’s just the reality, [to counsel for the husband]. And perhaps when [the husband] has finished his evidence I might stand you down briefly so you can just crunch some numbers with him, because on his own evidence he doesn’t have the borrowing capacity. So I am just putting that out there.
...
HER HONOUR: Well, again, I have made it very clear, [the husband] that you will not be getting the house? …
…
HER HONOUR: Well no, you haven’t. You now need to please – I’ll give you leave to ask additional questions, [counsel for the wife], and I made it very clear what it is that I want and the documents I need. If you can go to that quickly, please? I’m not going to spend much longer on this matter.
(Transcript 14 June 2022, p.6 lines 10–14, p. 4 lines 20–24, p.46 line 43 to p.47 line 2, p.48 lines 43–44, 15 June 2022 p.57 line 31–34)
It is well-established that the test for determining whether a judge is to be disqualified by reason of apparent bias including by making prejudgement is an objective one as to whether a fair–minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide where fundamentally justice must be seen to be done (see Johnson v Johnson (2000) 201 CLR 488).
The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 saw the principle as a two-step process:
8.…First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The primary judge’s comments at the start of the trial and before the taking of evidence and termed “disgruntlement” by the husband, are clearly comments directed broadly and to both parties where the judge was armed with affidavits and appraised of the ambit of the dispute as set out above. Such comments cannot, therefore, show bias against one or other of the parties when directed to both and, in any event, are objectively reasonable preliminary comments.
It is well established that a judge is permitted to express a preliminary viewpoint given the availability of the parties’ proposals and their affidavit material. The Full Court in Green & Knowles [2010] FamCAFC 248 relevantly commented:
40.We are satisfied that his Honour, as permitted by authority, was no more than expressing preliminary views, at a stage when he had (as distinct from a common law trial) the benefit of reading all of the affidavit material, hearing the father extensively cross-examined and had experienced the benefit of observing the father in the witness box. We are satisfied, applying the “reasonable observer” test referred to in the authorities, that his Honour’s remarks could not be construed as demonstrating an apprehension of bias. We find no merit in this ground.
The primary judge’s comments directed to the husband or his counsel during the evidence are made within the context of the material before her Honour, namely, the husband’s proposal to retain the former together with available evidence of his borrowing capacity.
Importantly, specific comments complained of by husband such as “the house will have to be sold” are shown to be preliminary views only but with the primary judge maintaining an open-mind by reason of the ultimate orders which, in fact, did provide for the husband the opportunity to retain the home.
In any event, the husband was represented at trial by counsel and no application was then made for the primary judge to recuse herself. The High Court in Vakauta v Kelly (1989) 167 CLR 568 at 572 (Brennan, Dean and Gaudron JJ), said in this respect:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
No objection was taken before the primary judge. No application for recusal was then made. No exceptional circumstances are now argued before us such that the husband should not be seen to have waived the right of objection or complaint of bias.
For all of these reasons, we find no merit in Ground 1 of the Notice of Appeal.
Ground 6
Her Honour failed to afford procedural fairness when awarding the split of assets and not acknowledging disproportionality of accrued superannuation.
This ground is pleaded in the Notice of Appeal in discrete terms such that we have difficulty understanding it to come under the umbrella of “denial of procedural fairness”. The husband’s Summary of Argument, however, adds considerable particulars of complaint. This resulted in a form of oral application by the husband to argue additional particulars under this ground as set out in [47]–[56] of his Summary of Argument. Under objection, but where the husband is here a litigant in person, the indulgence was granted to the husband to argue those additional particulars.
Should the husband maintain his argument that the primary judge did not acknowledge the “disproportionality of accrued superannuation”, then it is difficult to see the justification for such complaint. Firstly, in altering the property interests of the parties the primary judge was exercising a broad discretion fettered only by the limitations of the statute itself. Secondly, the primary judge was obviously appraised of any “disproportionality of accrued superannuation” and indeed specifically considered this fact:
58.… I am satisfied that there should be an adjustment in the Husband’s favour, for s.75(2) factors given the Husband is currently earning considerably less that the Wife and, more importantly, the clear differential in their superannuation entitlements at this time.
Alternatively, and should the husband be arguing here that there was no splitting order in respect of either party’s superannuation entitlements then it is clear that neither party sought such an order and most evident in the discourse between the primary judge and the husband’s counsel:
HER HONOUR: You’re arguing the greater initial contribution and I accept that and you’re arguing, I think, that given the husband has agreed not to pursue a superannuation split in circumstances where he, presumably, would argue that would be an appropriate outcome, then that is another factor.
[COUNSEL FOR THE HUSBAND]: Yes, your honour. He does argue that…
(Transcript 14 June 2022, p.84 lines 35–40)
From his Summary of Argument the husband complains firstly, that during the trial the primary judge accepted the joint balance sheet where the husband now argues this to be a denial of procedural fairness to him.
The transcript discloses that the joint balance sheet was received during the cross-examination of the husband. He was, however, represented by counsel. An opportunity to give contrary instructions prior to re–examination or even prior to final submissions was available to the husband and not taken up. That opportunity being lost, the husband cannot now sit back, wait upon the judgment, and then make a complaint.
Alternatively, should the husband’s complaint, in fact, be against his barrister then his recourse lay elsewhere and particularly so in circumstances where the husband was unable to point us to any fundamental or probative disagreement or error in the joint balance sheet such that compromised the primary judge’s ultimate determination and orders. In Dakin & Dakin [2012] FamCAFC 120 at [78] the Full Court cited Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, where his Honour set out the relevant principles in relation to whether counsel’s conduct at trial might give rise to a miscarriage of justice and said:
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
(Emphasis added)
Nothing in the form of “flagrant incompetence” is evident here, either from the transcript or even from the husband’s submissions.
There is therefore no merit to this particular of complaint.
Secondly and under this enlarged ground, the husband complains that the primary judge entered the arena of cross-examination of him, but did not do so in respect of the wife.
Firstly, it is not immediately clear how this is a complaint of denial of procedural fairness and might best be argued as a complaint of bias. Secondly, it is well-established that a judge may ask questions to inform himself/herself in respect of the evidence (See Galea v Galea (1990) 19 NSWLR 263 at 281–282, cited with approval by the Full Court in Finch & Finch (2020) FLC 93-949 at [14]).
No objection was taken at the time. The complaint of the primary judge asking questions of the husband during cross-examination is not accompanied by any argument that either party was prevented from fully presenting his or her own case in the sense of a denial of procedural fairness.
Consequently we find the particulars of Ground 6 has no merit.
There being no merit to any of the particulars now argued in respect of the assertion of the denial of procedural fairness, we find no merit to this ground of appeal.
There being no merit to either the bias or procedural fairness grounds, we now turn to the remaining grounds of appeal not abandoned by the husband.
Ground 2
Her Honour mistook facts of the Husband’s initial contribution through differential Salary of 2012–2014, the [husband] admits G bank statements were missing from testimony and wishes to address this to demonstrate higher initial accounts.
The husband’s application in an appeal to adduce further evidence has been dealt with above.
We understand the husband’s complaint, therefore, to be that the primary judge did not specifically consider the husband’s higher salary relative to that of the wife between 2012 and 2014 in respect of contributions.
It is clear that the primary judge was aware of the parties’ salaries at the relevant time, where her Honour records:
11.At the time the parties commenced cohabitation, they were both working with Company N. Shortly after the commencement of cohabitation, the Husband was retrenched from Company N and commenced employment with Company J. In March 2013, the Wife left Company N and obtained employment with Company J. Both were earning incomes in excess of $100,000 per annum.
The above statement is not a mistake of fact but rather quite evidently a finding of fact available to the primary judge on the evidence. The wife gave evidence that she then earned gross annual income of $118,000 and the husband earned gross annual income of $130,000. The finding of equivalence of their incomes at that point in time was open. Fastidious accuracy was unwarranted when the primary judge clearly articulated an holistic approach to the question of contributions and where it is well-established that it is not the task of the Court to conduct a detailed mathematical audit of the marriage (see Norbis v Norbis (1986) 161 CLR 513 at 522–523).
Further, any such differential of income at that time was not the subject of submissions of material specificity at the trial or in the husband’s Case Outline filed prior to trial and hence not argued as such before the primary judge. The complaint cannot not be raised on appeal. The High Court in Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) commented at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. …
We find, therefore, that Ground 2 has no merit.
Ground 5
Her Honour took an irrelevant consideration of the [the husband’s] past recreational escapism practices. This consideration was acted upon wrongly by not accounting for the understanding of the oppressive nature that may have contributed to this. This is documented in the Victorian Bench Book on family violence detailing: “the relationship between family violence and drug and alcohol abuse–drug and alcohol abuse can contribute to family violence and victims of family violence may use substances as an escape from the violence. Substance abuse can also prevent victims and perpetrators of family violence from addressing and dealing with the cause of the problem”.
No literature of the type set out in the ground pleaded was placed before the primary judge and it is not, therefore, proper for such material to occupy our consideration and indeed, the husband did not seek to adduce such evidence before us. The remainder of the ground as pleaded constitutes only comment by the husband and is not probative on the appeal.
It is well-established that a judge may fall into error in taking into account irrelevant considerations (see House v The King (1936) 55 CLR 499 at 505).
The husband here complains that the primary judge took into account an irrelevant consideration, namely his drug use. It was common ground between the parties that the husband suffered substance abuse issues during the relationship. The primary judge was entitled to accept the wife’s evidence in respect of this issue and to make findings open to her on the evidence as relevant to the s 79 consideration, which is clear from the reasons as follows:
21.…It is, again, common ground that from this period onwards, he had a worsening issue with the use of illicit substances and began to regularly use same. … During this period, I think it is a fair observation to make that the Husband would have been expending the party’s (sic) moneys to support his illicit drug usage and it was the Wife that was supporting the family.
…
52.Whilst the Husband made a greater initial contribution to the purchase of the former matrimonial home, I am satisfied the Wife has made greater contributions throughout the entirety of the parties’ relationship, both financially and non-financially in that she was the mainstay of the family from November 2018 when the Husband did not work in part because of his substance abuse issues.
The fact of the drug use was conceded by the husband in cross-examination. The inferences drawn by the primary judge in respect of contributions were therefore open to her. The factual inferences of the husband’s expenditure of household income on the purchase of illicit drugs and his diminished contributions on account of such drug use were undeniably material considerations, in which event this ground is without merit.
Ground 7
Her Honour failed to give sufficient reasons for why the “Buyout” figure of the household should award the [wife] a figure (based on orders and assets sheet of the hearing) a 50.6% favourable decision. This also failed to take into account material considerations of the Redraw facility and car taking the total to a favourable 52.7% split.
Although convoluted and confusing in its particulars, this ground is argued as a complaint of the primary judge giving inadequate reasons.
In Bennett and Bennett (1991) FLC 92–191, the Full Court considered the alleged failure by a trial judge to give adequate reasons for orders made. The Full Court adopted the statement of Gray J in the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 at 18 namely, that reasons would be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done
Firstly, and as dealt with above, the primary judge had before her the joint balance sheet provided to the Court by consent. Secondly, where there was a determination by the primary judge of a 50/50 division of the net value of the tangible assets pursuant to the joint balance sheet, then any mathematical error, in fact, favours the husband in an amount of approximately $9,626 and where the wife raises no complaint.
The primary judge relied upon the joint balance sheet and was entitled to do so and where the agreed pool did not include motor vehicles. The consequent distribution of assets together with the cash adjustment are abundantly and transparently clear from her Honour’s reasons, most notably as follows:
65. Accordingly, the orders that I intend to make are as follows:
(a)On or before 30 June 2022 the K shares will be transferred to the Wife, and she will refinance the L Bank margin loan into her sole name;
(b)The boat will be transferred to the Husband;
(c)The offset account will be paid to the Wife, and the Husband is to either collect his belongings from the Company M storage facility or arrange for his belongings stored in that facility to be held in his name, such that he is responsible for the costs of same. If he fails to do so, then the Wife will be at liberty to dispose of those items, and cancel the account thereafter;
(d)On or before 22 July, the Husband is to make a payment to the Wife in the sum of $190,000. On my calculations, that accords the Wife her 50% of the non-realisable assets. If he fails to do so by that date, then the D Street property is to be sold, the division thereof to reflect a fifty-fifty division of the parties’ total realisable assets.
The content and value of the property pool is relatively limited and in respect of the consent balance sheet, the primary judge’s reasons are transparently clear and detailed. Noting that her Honour delivered judgment ex tempore, we find no merit in this ground of appeal.
Ground 8
Her Honour’s order to not recognise the $10k partial settlement in interim orders as immediate spousal support was plainly unreasonable and unjust.
It is established that orders plainly unreasonable and/or unjust may be set aside on appeal.
In this matter, the sum of $10,000 had been paid to the husband pursuant to interim orders of 29 July 2021. Those orders specifically categorise the payment as “part property settlement”. The primary judge had received a joint balance sheet also categorising the $10,000 payment as a “partial property settlement”, from which the compelling inference was that each party expected the primary judge to count the payment as a notional asset in the husband’s hands. Importantly, no argument to the contrary to these prima facie indications was mounted by the husband in his Case Outline, during the trial, or in final submissions. The husband cannot now, therefore, be seen to raise this novel argument on appeal (see Metwally at 71).
Ground 9
Mistook the facts in granting the wife’s costs from an August Hearing which was ordered by Her Honour … to determine orders requested by the Respondent wife, and not the Husband. The husband requested orders for immediate consideration on July 29 2021 was solely for access to funds as aforementioned. Any subsequent orders for consideration were not at the liberty of the Husband to make, but as response to orders made by the Respondent Wife.
The husband’s Summary of Argument does not address this ground with any substance and the husband at first abandoned the ground but later claimed this to be a mistake and mounted argument in respect of the ground. We were told this ground was confined to a challenge to the validity of Order 10, which was in these terms:
10.The Husband pay the Wife’s costs reserved pursuant to the Orders of 29 July and 31 March 2022 fixed in the amount of $3,500…
(Emphasis added)
As can be seen, the ground entails grievance with only a costs order in the very modest sum of $3,500 arising from the disposition of interlocutory disputes in the litigation.
In relation to that order, the primary judge said this in the reasons for judgment:
66.Finally, I am asked to determine whether the Husband should be required to pay the Wife’s reserved costs of the 29 July 2021 and 31 March 2022. The Wife submits the reserved costs should be paid by the Husband because they were incurred as a result of the Husband’s failure to fully engage and prepare matters that came before the Court and she has been unfairly put to expenses that she should not have otherwise incurred if he had properly prepared and had engaged and cooperated in the conduct of these proceedings.
…
71.The Husband’s conduct in not having the relevant material available to the Court and providing timely responses to the reasonable requests of the Wife and her solicitors have put her to unnecessary cost. As such, I am of the view that the reserved costs of the Wife for 29 July 2021 and 31 March 2022 fixed in the sum of $3,500 should be paid by the Husband. …
None of the confused or convoluted arguments advanced by the husband demonstrated any error in the application of legal principle, nor the exercise of discretion by the primary judge, in which event this ground is rejected.
Conclusion
There being no merit in any of the grounds of appeal raised and argued by the husband, the appeal will be dismissed.
In the circumstances, the Court will take written submissions in respect of the issue of costs from the wife within 14 days of the date of these orders and from the husband within 14 days thereafter.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, McGuire & Campton. Associate:
Dated: 21 December 2022
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