Baldoni & Baldoni
[2023] FedCFamC1A 167
•3 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Baldoni & Baldoni [2023] FedCFamC1A 167
Appeal from: Baldoni & Baldoni (No 2) [2023] FedCFamC1F 337 Appeal number: NAA 139 of 2023 File number: SYC 1234 of 2019 Judgment of: AUSTIN, WILSON & CHRISTIE JJ Date of judgment: 3 October 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant husband asserted the primary judge’s decision was impugned by bias – Where the husband could not demonstrate the conduct of the primary judge was inconsistent with the fair performance of judicial duty – Where the primary judge preferred the uncorroborated evidence of the wife to that given by the husband – Where the husband complained the primary judge denied him procedural fairness – Where the assessment of the spouses’ credit was open to the primary judge – Where the husband complained the primary judge did not properly consider the evidence – Where there is no rational foundation from which to impute the husband’s case and evidence was not properly evaluated by the primary judge – Where the husband asserted the primary judge made mistaken findings – Where the husband failed to point to the specific error – Appeal dismissed – Where the appeal lacked merit – Costs ordered in a fixed sum on a party/party basis. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 and r 13.23
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Adacot & Sowle (2020) FLC 93-982; [2020] FamCAFC 215
Baldoni & Baldoni (No 2) [2023] FedCFamC1F 337
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Commissioner of Taxation & Worsnop and Anor (2009) 40 Fam LR 552; [2009] FamCAFC 4
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fierro & Fierro (No 3) [2022] FedCFamC1A 175
Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gilbert-Siddon & Gilbert-Siddon [2009] FamCAFC 190
Goswami & Rapozo (No 2) [2020] FamCAFC 282
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the Marriage of Kowaliw (1981) 7 Fam LN N13
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jabour v Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78
Jones v Hyde (1989) 63 ALJR 349; [1989] HCA 20
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Moon & Moon (No 2) [2022] FedCFamC1A 69
Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3
Steinbrenner & Steinbrenner [2008] FamCAFC 193
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120; [2009] FamCAFC 20
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Welter & Katz [2019] FamCAFC 219
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Number of paragraphs: 78 Date of hearing: 28 August 2023 Place: Sydney For the Appellant: Litigant in person Counsel for the First Respondent: Mr O Solicitor for the First Respondent: Edwards Moloney Family Law Counsel for the Second Respondent: Mr Noakhtar Solicitor for the Second Respondent: Somerset Ryckmans Lawyers ORDERS
NAA 139 of 2023
SYC 1234 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BALDONI
Appellant
AND: MS BALDONI
First Respondent
MR VERTUE
Second Respondent
ORDER MADE BY:
AUSTIN, WILSON & CHRISTIE JJ
DATE OF ORDER:
3 OCTOBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA139/2023 is dismissed.
2.The appellant pay the first respondent’s costs in the sum of $20,000.
3.The appellant pay the second respondent’s costs in the sum of $12,000.
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 Baldoni & Baldoni has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN & CHRISTIE JJ:
By Further Amended Notice of Appeal filed on 30 June 2023, the husband appeals from property settlement orders made between the spouses by a judge of the Federal Circuit and Family Court of Australia (Division 1) under Pt VIII of the Family Law Act 1975 (Cth).
The orders provided for adjustment of the spouses’ interests in property following the end of their no more than three and a half year relationship.
A corporate liquidator appeared in the proceedings below and was the second respondent to the appeal. Both respondents sought that the appeal be dismissed.
The reasons given by Wilson J explain the unsatisfactory way in which the four grounds of appeal comprise some 35 pages of narrative, which obfuscation is compounded by the lack of correlation between the grounds and the content of the husband’s Summary of Argument. No more need be said about that.
We agree the appeal should be dismissed, but such dismissal can be explained by reasons given in short form because no question of general principle is at stake in this appeal (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
THE TRIAL
The primary judge set out uncontroversial facts which were not challenged on appeal at [8]:
8. The short history of the parties and their relationship is as follows:
(a) The husband was born [in 1963] and he is 60 years of age.
(b) The wife was born [in 1969] and she is 53 years of age.
(c)The parties began their relationship after meeting on an online dating website sometime in late 2014.
(d) The parties began living together [in March 2015], when the husband moved to live with the wife at her property at [B Street, Town C].
(e) The parties married [in August 2015], having earlier participated in a "symbolic" wedding ceremony in [Country W] in July 2015.
(f) There is a dispute as to the date of final separation. The wife asserts that the parties finally separated [in December 2018], whereas the husband asserts the relationship ended in January 2019. It is not clear what if anything turns on this dispute, other than perhaps matters related to the [R Company].
(g) [In late 2019], the wife obtained a Final Apprehended Domestic Violence Order naming the wife as the protected person and the husband as the defendant. That order expired [in late 2021].
(h) The parties divorced [in mid-2020].
(i)Prior to their final separation, the parties separated for a period of approximately 4-5 months between about October 2015 and February 2016.
(j) There are no children of the relationship.
The primary judge outlined the issues in dispute at [13] as follows:
13.The parties do not agree [on] their initial financial contributions. The central dispute between the parties relates to two topics, namely:
(a) The value of the assets held by the wife, in circumstances where the wife now asserts values for certain items of property that differs from that which she disclosed in the Application for Consent Orders that was lodged when the final order for property settlement was made between the wife and her former husband [Mr X].
(b) Whether the husband brought and/or applied any cash funds of significance into the relationship.
THE APPEAL
The Further Amended Notice of Appeal outlined the grounds upon which the husband sought that this Court find error. They were:
1. The judge did not consider all the evidence properly
2. The judge did not take into consideration procedural fairness
3. The Judge acted in a biased manner
4. The Judge made erroneous desisions [sic]
(As per the original)
Having outlined the grounds in that way, the husband’s submissions ranged considerably more broadly. We have had regard to the content of those submissions but in approaching the determination of the appeal have only addressed those matters which relate to the grounds.
Ground 3: Bias
Consistent with principle, we will deal with the assertion that the primary judge’s decision was impugned by bias (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 611).
This ground asserts “the judge acted in a biased manner”, strongly implying a contention of actual rather than apprehended bias.
To sustain the claim it must be shown the primary judge’s conduct was quite inconsistent with the fair performance of judicial duty (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116). In other words, it must be inferentially demonstrated the judge’s mind was committed to a conclusion already formed and incapable of alteration (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [101]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], [127], [176]).
The husband came nowhere close to meeting that standard.
The husband, who appeared on the appeal on his own behalf, did not articulate the nature of the bias but his Summary of Argument and annexure to the Further Amended Notice of Appeal raised the following matters:
(a)Did the primary judge “[pander]…to [Mr O’s] status as a well-known Senior Council [sic] and at one point during the hearing asked [Mr O] if he was ‘sponsoring’ the Legal Conference that she said she was co-chairing… in Adelaide”?
(b)Did the primary judge “bully” the husband’s counsel to pressure him “to give responses he was not instructed by [the husband] to give”;
(c)Were her Honour’s interventions in the cross-examination indicative of bias?
(d)Was the primary judge’s acceptance of a document into evidence indicative of bias?
It should be noted at the outset that no complaint was raised at the hearing of the matter concerning the primary judge’s conduct of the proceedings and specifically no reference to bias or a failure to afford procedural fairness to the husband (Vakauta v Kelly (1989) 167 CLR 568, per Brennan, Deane and Gaudron JJ; Cf. Adacot & Sowle (2020) FLC 93-982). While failure to raise a claim of apprehended bias at trial will not inevitably preclude its agitation on appeal, it would be necessary for the husband to be able to identify how the issue was clarified by the reasons as opposed to being apparent at the time.
It is necessary to set out the exchange between counsel and the primary judge which dealt with the participation of counsel in the legal education conference to evaluate the husband’s contention. Just prior to the lunchtime adjournment on 20 June 2022 the following exchange occurred between the primary judge and counsel for the wife:
[MR O]: Yes. No doubt [husband’s counsel] and I look forward to seeing your Honour in August.
HER HONOUR: At the conference.
[MR O]: In the conference which - - -
HER HONOUR: Well, can I – I’m glad you raised that, because there’s a fair chance I will still be reserved. I just – for the parties benefit, starting next week, I’m taking some long leave for personal reasons, and my first period of time back, my first week back is the week of the Adelaide conference, which I’m co-chairing. Can I just – so I raise that for two reasons: (a) my judgment will be delayed longer than normal because I’m taking some time off. But (b) and more importantly, there’s a fair chance, given I’m the co-chair of the national conference, and playing a very prominent role in that process, that I may encounter one or both of you at some point. I don’t know if your instructors are going. And so I make it clear to everybody, if I was to see counsel or solicitors, that I would not – other than a brief hello, I wouldn’t be talking about the matter, such that I would be conflicted or impacted in any way. So really for the parties’ benefit, they should know that there’s a chance that I might see the practitioners at this conference. It’s a legal conference. There will be upwards of 800 people there. I don’t know, [Mr O], if you’re sponsoring the Junior Lawyers Program? Are you – and the only reason I ask that is because I’m chairing that – I’m actually coordinating that whole day.
[MR O]: Well, the short answer to your Honour’s question is yes.
HER HONOUR: All right. So Mr – I might have more to do with [Mr O] as a consequence of that, because you will be in the room of a session that I’m running for a full day – or three quarters of a day, I believe it is.
[MR O]: I mean, so that there’s no issue about it, I’ve been approached to be a mentor as occurs at each of these conferences.
HER HONOUR: Yes, yes.
[MR O]: And I think that has got to do with my age, more so than anything else, but - - -
HER HONOUR: I suspect that’s right, [Mr O]. All right, thank you. Thank you all. I will adjourn the court. Thank you.
(Transcript 20 June 2022, p.539–540 lines 19–10)
The exchange was anodyne. It was appropriate of the primary judge to take the opportunity to confirm in open court that she may encounter counsel at a legal education event. The comment does not raise a concern that counsel for one party might obtain an advantage or more favourable treatment.
The husband is correct that counsel who appeared on his behalf in the trial below was asked by the primary judge whether the evidence supported various propositions. The husband asks this Court to find that the conduct of the judge in this regard is indicative of bias. The primary judge set out one of the relevant exchanges in her reasons at [62]. She was calling upon a member of the bar to candidly, in keeping with his duty to the Court, provide submissions about what adjustment to assets was supported by the available admissible evidence at the end of the trial. There is nothing unusual in the primary judge pressing counsel for assistance in closing submissions.
Another issue upon which the husband relies to allege bias relates to the primary judge’s failure to intervene in cross-examination of the parties. In essence the husband’s Summary of Argument is concerned with the nature and tone of counsel’s cross-examination of him and inferentially the failure of the primary judge to prevent it. The assumption her Honour ought have done so is false. The husband’s counsel made no complaint about the manner in which his cross-examination was conducted during the trial. If there were grounds for complaint, it was waived.
It should first be observed that ordinarily the role of taking objections is that of counsel and a failure on the part of the husband’s counsel to take objections in the proceedings before the primary judge to questions which he now contends were improper is unlikely, without more, to result in appealable error.
As to the primary judge accepting an insurance policy as an exhibit in the proceedings, it should be noted that the husband’s counsel did not object to the tender of the subject document by the wife’s senior counsel. The husband, not having taken any objection to the admissibility of the document before the primary judge, cannot now complain in the appeal of its inadmissibility (Smits v Roach (2006) 227 CLR 423 at [46]; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [118]).
No error on the part of the primary judge has been demonstrated.
Ground 2: Consideration of procedural fairness
This ground contends the primary judge “did not take into consideration procedural fairness”, which complaint was re-stated in the Summary of Argument to be a complaint that her Honour “failed to provide procedural fairness to the husband”.
The husband failed to identify either in his lengthy written submissions or orally what matters are said to have resulted in a denial of procedural fairness. Under this heading the husband’s written submissions deal in detail with perceived inconsistencies in the wife’s evidence but make no connection to the primary judge’s reasons or resulting orders and certainly no reference to matters which would traditionally be considered miscarriages arising from the failure to afford procedural fairness.
The primary judge certainly preferred the uncorroborated evidence of the wife to that given by the husband (at [78]–[79] and [82]–[89]), but that credit finding does not manifest the denial of procedural fairness. Nor does the rejection of submissions made on the husband’s behalf, no matter how fervently he may believe in their truth.
As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). The husband made no complaint about the manner in which the trial was conducted, save in relation to the contentions of bias, already addressed.
In those circumstances the appellant has failed to demonstrate error.
Ground 1: Proper consideration of the evidence
The failure to “properly consider the evidence” is probably best understood as a one of the following:
(a)Failure to consider relevant matters; and/or
(b)Consideration of irrelevant matters; and/or
(c)Failure to afford proper weight to matters.
The matters which the husband raised in his written submissions were primarily concerned with the financial advantages that the wife had obtained from [R Company]. The primary judge acknowledged those financial advantages in her reasons at [226]–[230]. It cannot therefore be concluded that her Honour failed to consider relevant matters.
The appellant’s submissions do not contend that the primary judge took into account irrelevant matters and therefore that need not be considered further.
The submissions made by the husband in support of this ground comprise a litany of allegations about the wife’s perfidy, including that she: lied in evidence to a State court in 2019; defrauded the corporation via which the parties had formerly conducted business; under-stated her income on past taxation returns; made false representations to a finance company; and defamed the husband on social media.
The primary judge did not make the findings for which the husband contended in respect of those issues, but that is not the same thing as “not considering all the evidence properly”. The primary judge recorded the husband’s proposal (at [62]) and was familiar with the evidence upon which he relied to prosecute his application (at [47]). There is no rational foundation from which to impute the husband’s case and his evidence was not properly evaluated.
Ultimately, her Honour resolved to make orders that more closely resembled those sought by the wife, but she did not have it all her own way. The primary judge found the parties’ debts to the corporation they once controlled should be brought to account in their schedule of assets and liabilities (at [232] and [237(b)]) with the greater share borne by the wife (at [242]–[244]).
Ground 4 – erroneous decisions
This ground asserts the primary judge “made erroneous decisions”.
The use of plural rather than singular terminology provides insight into this complaint. Rather than contending the overall result was plainly unreasonable or unjust, being a recognisable ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505), this is really a complaint of the primary judge making mistaken findings in respect of certain factual disputes.
Specifically, the husband asserts the primary judge made mistaken findings about these issues: an insurance claim; the husband’s use of post-separation income; the circumstances under which a family violence order was made against the husband by a State court in 2019; and the interim injunction made against the husband in April 2022 restraining him from posting comments on social media.
The husband’s submissions in support of this ground do not explain how the findings made in respect of those issues were not open to the primary judge on the available evidence, particularly in light of her Honour’s stated preference for acceptance of the wife’s evidence, in which event the ground fails. Appealable error is not demonstrated by the husband’s plaintive wish that his evidence on those topics had instead been accepted.
If we have understood the husband’s written material correctly, part of his complaint is about an injunction said to have been made on 8 April 2022, but his appeal is against the orders later made on 5 May 2023.
It is otherwise difficult to discern from the narrative in the husband’s written submissions whether it is more a complaint of the matters which he considered were material were not given the weight he deemed appropriate. Where an appellant fails to point to the specific error in the primary judge’s assessment it is almost impossible for an appeal court to try to fathom the connection for itself.
COSTS
Assuming the dismissal of the appeal, the wife sought an order that the husband pay her costs, preferably on an indemnity basis, but otherwise on a party/party basis. There was no justification for an award of indemnity costs but, given the lack of merit evident in the appeal, a party/party order is warranted. The husband contended his limited financial circumstances would militate against any costs order being made, but that consideration carries less weight than the appeal’s abject lack of merit.
The wife’s assessment of her party/party costs at $34,049 was still excessive and she properly conceded a lesser sum could be fixed by reliance upon r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The wife’s Summary of Argument was commendably succinct and her senior counsel felt no need to supplement it with oral submissions at the hearing. Given the relative simplicity of the appeal, $20,000 is a proper sum for costs.
The second respondent to the appeal, being the liquidator of the corporation formerly controlled by the spouses, who intervened in the proceedings below, also sought his costs from the husband in the event the appeal was dismissed. He reasonably assessed his party/party costs at $12,000. He should have those costs.
WILSON J:
By notice of appeal sealed 30 June 2023, the husband appealed against orders made by the primary judge on 5 May 2023 (Baldoni & Baldoni (No 2) [2023] FedCFamC1F 337) pursuant to which the primary judge altered the parties’ property interests dividing them as to 75% to the wife and 25% to the appellant.
For the reasons that follow this appeal must be dismissed.
At trial the appellant contended that the parties’ net assets should be divided equally. The primary judge made various factual findings about the composition of the pool of assets that fell for division, concluding that the gross value of the property to be divided was $4,663,447, gross liabilities were $1,272,735 and that the net value of property was $3,390,712.
The appellant was not legally represented on the hearing of the appeal, although at trial he was represented by junior counsel. The appellant prepared his own second further amended notice of appeal as well as his summary of argument. The wife was represented by [Mr O] and the liquidator was represented at trial and on this appeal by Mr Noakhtar of counsel.
The respondents on this appeal submitted that Annexure 1 to the further amended notice of appeal was “discursive, often contentious (and) comment”. The respondent contended that the appellant’s summary of argument did not comply with the mandatory requirements of rule 13.23(2)(c) because it exceed 15 pages in length. The appellant’s further amended notice of appeal ran for over 30 pages. While the page length restrictions in the rules referrable to the appellant’s summary of argument were not contravened in relation to his further amended notice of appeal, nevertheless the appellant failed to particularise any of the four grounds of appeal.
The appellant’s four grounds of appeal were as follows, with errors in the original –
(a)the judge did not consider all of the evidence properly;
(b)the judge did not take into consideration procedural fairness;
(c)the judge acted in a biased manner; and
(d)the judge made erroneous decisions.
Annexure 1 to the appellant’s further amended notice of appeal was not a document that grouped together particulars subjoined to each of the appellant’s four grounds of appeal. Instead, it was mostly narrative in form and recorded such matters as –
(a)the appellant’s view of what he said was the confusing nature of the cross examination to which he was subjected;
(b)observations allegedly made by the primary judge about the length of the appellant’s final written submissions;
(c)his own affliction with depression and post-traumatic stress disorder;
(d)his contentions that the wife was “maliciously instrumental” (his words) in the collapse of [R Pty Ltd], a valuable operating company;
(e)his contention that the wife’s senior counsel and the primary judge attended a legal conference in August 2022; and
(f)his contention that the primary judge bullied or pressured his counsel.
There were many others.
FIRST GROUND OF APPEAL
Under the first ground of appeal in Annexure 1, headed “the judge did not consider all evidence properly”, the appellant subjoined 26 paragraphs. He did not state in what way one or more of those 26 subjoined paragraphs revealed how the primary judge’s discretionary judgment was allegedly vitiated within the contemplation of House v The King (1936) 55 CLR 499.
Each of those 26 paragraphs was discursive and devoid of particularity rendering each (whether individually or in aggregate), meaningless and incompetent (Goswami & Rapozo (No 2) [2020] FamCAFC 282, Welter & Katz [2019] FamCAFC 219, Gilbert-Siddon & Gilbert-Siddon [2009] FamCAFC 190, Fierro & Fierro (No 3) [2022] FedCFamC1A 175 and Moon & Moon (No 2) [2022] FedCFamC1A 69).
The appellant bore the evidentiary burden of demonstrating that the primary judge’s decision was erroneous and that the primary judge’s orders should be set aside. In my view, he failed to discharge that burden in relation to the first ground. On examining each subparagraph of Annexure 1 referrable to the first ground, I take the view that the primary judge had a firm evidentiary basis for making findings of fact about which the appellant complained. For example –
(a)having heard all witnesses, considered what each said, observed them while giving evidence and comparing the viva voce evidence each gave against relevant documentary evidence adduced in the trial, the primary judge properly concluded that the wife’s evidence was to be preferred over the appellant’s evidence on a given issue where on the same issue the evidence of the wife and appellant diverged;
(b)having heard the appellant’s evidence and observed him in the witness box the primary judge was entitled to express her Honour’s “very serious concerns” (her Honour’s words) about the appellant’s overall veracity;
(c)the primary judge’s favourable observations about the veracity of the wife on the one hand and about the primary judge’s unfavourable observations about the appellant on the other hand was permissible having regard to authority such as Paterson v Paterson (1953) 89 CLR 212, Warren v Coombes (1979) 142 CLR 531, Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, Jones v Hyde (1989) 63 ALJR 349, Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472, State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 and Fox v Percy (2003) 214 CLR 118.
To the extent that the primary judge made factual findings about the reasons for the collapse of [R Pty Ltd], those findings were open. It must not be overlooked that the primary judge was satisfied that the appellant’s conduct in relation to [R Pty Ltd] was “abhorrently fraudulent, negligent and wasteful”. That was a significant factual finding and it was highly detrimental to the appellant. Nevertheless, the primary judge found both the wife and the appellant benefitted from funds drawn from [R Pty Ltd], and her Honour’s refusal to exclude the parties’ debts to [R Pty Ltd] was open in the valid exercise of her Honour’s discretion when making findings about the parties’ net assets in the overall.
So far as the primary judge’s treatment of contributions was concerned, under the first ground of appeal the appellant made unparticularised submissions in respect of specific items having specific monetary amounts. However, her Honour relied on the observations in Jabour v Jabour (2019) 59 Fam LR 475, in Dickons v Dickons (2012) 50 Fam LR 244 and in Steinbrenner & Steinbrenner [2008] FamCAFC 193 in which various Full Courts have warned against emphasising any particular contribution at the expense of the myriad of contributions made by each party during the course of the relationship. In my view the primary judge was correct in adopting their approach.
Equally, the primary judge was of the view that the wife’s initial contributions significantly exceeded those of the appellant. Her Honour held that during the marriage and in the post separation period the appellant was financially incompetent. That led the primary judge to conclude that by adopting a holistic approach to contributions, overall contributions favoured the wife as to 75% and the appellant as to 25%.
The marriage was of three and a half years’ duration.
I detected no error of reasoning in the approach adopted by the primary judge.
The primary judge rejected the appellant’s contentions that the wife was responsible for the collapse of [R Pty Ltd]. The appellant contended before the primary judge that the wife had engaged in conduct that was wasteful within the contemplation of In the Marriage of Kowaliw (1981) 7 Fam LN N13. The primary judge’s consideration of the appellant’s wastage argument was correct, it seemed to me. The primary judge rejected the contention that the wife had caused the financial demise of [R Pty Ltd]. Instead, the primary judge held that the appellant spent profligately when funds came into his hands and that the appellant had a serious issue with gambling. Her Honour further held that the appellant’s conduct in relation to [R Pty Ltd] led to unquantifiable losses and that the sum of $225,000 had been assessed by the liquidator of [R Pty Ltd] (in liq) as a preferential payment to the appellant under the insolvency provisions of the Corporations Act (2001). Those factual findings were squarely open to the primary judge.
The appellant’s contentions in Appendix 1 in relation to what he called the wife’s damaging and false representations made to [BS Pty Ltd] were not particularised especially in relation to causation. The appellant did not say how he alleged that any of the so-called damaging false representations made by the wife led to [BS Pty Ltd] withdrawing a $4 million facility to [R Pty Ltd]. Instead, her Honour concluded (at paragraph 225) that the insolvency of [R Pty Ltd] came about because –
(a)fraudulent book keeping and accounting practices engaged in by the appellant by which funds owned by [R Pty Ltd] were diverted to the appellant; and
(b)the failure to make an insurance claim in respect of stock lost in a fire at the [Town C] property.
Those factual findings were open. The appellant made no attempt to draw any causal link between the collapse of [R Pty Ltd] and allegedly damaging statements by the wife, in accordance with the observations of the High Court in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
The appellant criticised the primary judge for her Honour’s treatment of the parties’ unsecured liabilities. The primary judge recited how the decisions in Commissioner of Taxation & Worsnop and Anor (2009) 40 Fam LR 552 and Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120 were irreconcilable and that the explanation offered by Berman J in Bertrand & Bertrand [2021] FedCFamC1F 70 was to be preferred. That approach was open.
In my view, ground one failed.
SECOND GROUND OF APPEAL
The second ground of appeal was that “the judge did not take into consideration procedural fairness”, although the appellant did not say in what way or in respect of which issue any want of procedural fairness arose.
The wife objected to this so-called ground of appeal on the basis that none of the issues raised on appeal under this ground were raised before the primary judge. The wife’s counsel in this court submitted that at trial, neither counsel made any submission that the appellant had been denied procedural fairness in any way. Counsel for the wife relied on the observations of the High Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 contending that the appellant, at trial, was represented by experienced family law solicitors and counsel and that if those legal representatives had taken the view that circumstances justified making a submission to the primary judge about any want of procedural fairness, ample opportunity existed to do so yet they failed to do so.
In my view, the appellant failed to discharge the burden that fell to him to discharge in demonstrating the existence of any want of procedural fairness. A careful examination of the transcript revealed that neither counsel applied to the primary judge during the running of the trial with submissions in respect of any procedural fairness issue. To the extent that the appellant may have relied on comments by the primary judge in respect of the unduly complicated balance sheet, the exchange on which the appellant relied revealed that the primary judge gave the appellant’s counsel ample opportunity to make whatever submissions he thought appropriate about the balance sheet. In other words, far from denying the appellant procedural fairness the primary judge alerted the appellant’s counsel to her Honour’s concerns about the balance sheet and invited the appellant’s counsel to make whatever submissions he chose, recognising that the primary judge indicated to the appellant’s counsel that notes to the balance sheet were not submissions in relation to a balance sheet.
The appellant’s contentions about any denial of procedural fairness failed. This ground of appeal was devoid of merit.
THIRD GROUND OF APPEAL
The appellant contended that the primary judge acted in a biased manner.
As with all other grounds of appeal, this ground was unparticularised. It was therefore near impossible to assess the conduct on which the appellant relied to base his contentions that the primary judge "acted in a biased manner”. He did not say whether he asserted actual bias or apprehended bias. The distinction was important yet the appellant failed to differentiate between the two. The authorities make that plain including Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, Isbester v Knox City Council (2015) 255 CLR 135 and Charisteas v Charisteas (2021) 273 CLR 289, to name but a few.
The suggestion that the primary judge engaged in bullying when exploring the reality of the appellant’s contentions for a 50/50 division of the net assets was not supported by facts or authorities. I reject it.
In debate it was raised with the appellant that any complaint about bias had to be enlivened as soon as possible (Smits v Roach (2006) 227 CLR 423). The appellant submitted that he took no steps to pursue his remedies for bias – actual or apprehended – until he raised it in this court.
I am unable to see how the primary judge exhibited bias – actual or apprehended – in the circumstances of this case. The third ground of appeal failed.
FOURTH GROUND OF APPEAL
The fourth ground of appeal was that the judge made erroneous decisions. No particulars were given. In the absence of some connecting link between his contention of error and the facts on which the appellant relied, I am unable to conclude that this ground of appeal had merit. I reject it.
OUTCOME
All four grounds of appeal failed.
COSTS
The appellant was wholly unsuccessful in his appeal. That enlivened an application for costs under s 117(2A)(e) of the Family Law Act. The wife sought costs of up to $60,000 and the liquidator sough costs of $20,000 or thereabouts. Very little information about the appellant’s financial circumstances was advanced. According to Fitzgerald v Fish (2005) 33 Fam LR 123 it is not necessary to go beyond one of the subsections of s 117(2A) in order to properly invoke a costs order – here, against the wholly unsuccessful appellant.
The appellant failed to persuade the primary judge that he was entitled to an order for the alteration of property interests on any basis other than the basis ordered by the primary judge, namely 75% to the wife and 25% to him. Even recognising that the appellant is a litigant in person, many of the propositions in Annexure 1 were similar to, if not identical with, submissions urged to the primary judge and rejected. There is merit in the submission that the unsuccessful points run below had little prospect of success when advanced in this court.
While true that a costs order should not be crushing and any order in the upper range sought by the wife ($60,000) may well be crushing, I take the view that the wife’s costs should be limited to an amount of not more than $30,000 and the liquidator’s to $10,000.
It must not be overlooked that [Mr O] agreed that his client could have, but failed to, seek an order for security for costs, in default of the payment of which this appeal could have been halted. The wife failed to avail of herself of that process. She did so at her peril.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Wilson & Christie. Associate:
Dated: 3 October 2023
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