Bircher & Bircher and Anor
[2016] FamCAFC 123
•15 July 2016
FAMILY COURT OF AUSTRALIA
| BIRCHER & BIRCHER AND ANOR | [2016] FamCAFC 123 |
| FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made findings as to the existence of two loans between the husband and the second respondent – Where the trial judge failed to confront and make findings by reference to the evidence as to the provenance of the loan agreements, the terms of the loans, and if they existed, who should bear liability for those loans – Where it was not open for the trial judge to ignore the plainly relevant evidence of the wife in relation to the inconsistencies between the evidence of the husband and the evidence of the second respondent and which called into question the authenticity of the alleged loans and the mortgages purportedly securing them without giving reasons for doing so – Where the absence of findings by the trial judge in respect of the wife’s case led to a failure to provide adequate reasons – Where there was no error in the trial judge’s treatment of spousal maintenance – Where there was a lack of findings in relation to the trial judge’s assessment of contributions during the marriage and post-separation to sustain her ultimate conclusion that the parties’ contributions were ostensibly equal – Where the trial judge plainly erred in making a finding of negative contribution against the appellant – Where there was no error in the trial judge’s treatment of the parties’ superannuation entitlements – Where the trial judge was entitled to exclude a motor vehicle from the pool of assets as there was insufficient evidence to allow it to be included – Where the appellant’s counsel did not raise the issue of bias at trial and a reading of the transcript did not reveal bias by the trial judge – Appeal allowed. FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the parties sought that the discretion be re-exercised in the event the appeal was successful – Where there was an absence of findings by the trial judge on the evidence in relation to the primary issues – Where it is likely that further evidence would be controversial and would require cross-examination – Where the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing. FAMILY LAW – APPEAL – COSTS – Where all parties were self-represented but indicated they had incurred some costs – Where the respondents were wholly unsuccessful – Costs awarded to the appellant payable by the respondents jointly and severally. |
Family Law Act 1975 (Cth) – ss 75(2), 79
| Af Petersens and Af Petersens (1981) FLC 91-095 Antmann and Antmann (1980) FLC 90-908 Biltoft and Biltoft (1995) FLC 92-614 Gronow v Gronow (1979) 144 CLR 513 Kowaliw and Kowaliw (1981) FLC 91-092 Mallet v Mallet (1984) 156 CLR 605 Vakauta v Kelly (1989) 167 CLR 568 Vass v Vass (2015) 53 Fam LR 373 Warren v Coombes (1979) 142 CLR 531 |
| APPELLANT: | Ms Bircher |
| FIRST RESPONDENT: | Mr Bircher |
| SECOND RESPONDENT: | Dr Bircher |
| FILE NUMBER: | BRC | 1459 | of | 2011 |
| APPEAL NUMBER: | NA | 77 | of | 2014 |
| DATE DELIVERED: | 15 July 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy & Hogan JJ |
| HEARING DATE: | 28 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3045 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE FIRST RESPONDENT: | In person |
| THE SECOND RESPONDENT: | In person |
Orders
The appeal be allowed.
The orders made on 9 December 2014 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Demack.
The husband and the second respondent, jointly and severally, pay the costs of the wife of and incidental to the appeal, such costs to be assessed in default of agreement
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bircher & Bircher and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 77 of 2014
File Number: BRC 1459 of 2011
| Ms Bircher |
Appellant
And
| Mr Bircher |
First Respondent
And
Dr Bircher
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Notice of Appeal (NA 77 of 2014) filed on 1 June 2015, Ms Bircher (“the wife”) appeals against financial orders made by Judge Demack on 9 December 2014. The appeal is opposed by Mr Bircher (“the husband”) and the husband’s father, Dr Bircher (“the second respondent”).
In summary, the orders appealed provided, inter alia, that the wife’s application for spousal maintenance be dismissed; that the injunction made on 18 September 2013 (order 5(c)) and varied by order 7(a) of the orders dated 24 October 2013 against the second respondent be dismissed; that the second respondent be declared to be the sole and absolute owner of the X Online Saver account; that the net sale proceeds of the former matrimonial home be distributed as to 55 per cent to the wife and 45 per cent to the husband; that the husband calculate the final position of the Y Superannuation Fund as at the date of the orders; that such superannuation fund be deregistered; and, that there be a superannuation split in relation to this fund.
At trial the wife was legally represented, but the husband and the second respondent were not. In the appeal none of the parties were represented, and that has led to a number of difficulties including, and in particular, the expression of the grounds of appeal and the articulation of the arguments relied on by the wife.
The Appeal In Context
Background
The wife was born in 1973.
The husband was born in 1968.
The second respondent was born in 1943 and is a self-funded retiree.
The relationship between the husband and the wife (“the parties”) began in 1997, and they commenced cohabitation in 1998 in a house owned by the second respondent. The parties lived in this property rent free until September 2002, paying only the rates on the property.
The parties married in 2003.
There are three children of the marriage; A, born in 2007; B, born in 2008; and, C, born in 2009 (“the children”). Each of the children suffers from Autism Spectrum Disorder (“autism”).
The parties separated in January 2011, reconciled in June or July 2011, and then separated under one roof in September 2012.
In March 2013, the husband left the household pursuant to an order made by the State Magistrates Court on 10 March 2013.
On the first day of the trial the parties agreed on final parenting orders. Pursuant to these orders the parties have equal shared parental responsibility for the children and the children live with the wife and spend substantial and significant time with the husband.
Despite being described as “ex tempore” her Honour’s reasons for judgment in respect of the competing applications for settlement of property were delivered on 9 December 2014, namely within three weeks of the last date of the hearing. Nevertheless, in delivering her reasons for judgment so quickly, her Honour was seeking to expedite the conclusion of litigation which her Honour described as “protracted” and within which the parties had been “pedantic and pernickety” (at [11]). Her Honour said this:
12.…They have both filed affidavit after affidavit … Their material is self-serving. Their material is over-particularised. They both appear to have done an accounting of the marriage. They set out with precise details down to the last dollar what they say they have spent and what they say they have contributed. Neither of them seems to have been able to see the wood for the trees. The level of detail on such a small pool is wholly disproportionate and it is not my intention to favour the parties with a judgment which reflects the level of detail they have decided to put into their material.
Her Honour’s reasons and the appeal record more broadly, demonstrate that her Honour’s comments are entirely apt and illustrate the difficulties which her Honour faced in discerning and deciding the relevant issues; there was an inordinate amount of material, much of it irrelevant and otherwise inadmissible.
The Property of the Parties and the Alleged Debt to the Second Respondent
The “pool” of assets, as found by her Honour, consisted of gross non-superannuation assets of $74,947 and gross superannuation assets of $165,493. The liabilities as found by her Honour amounted to $55,269. Thus, the net pool as found comprised $185,171, of which $165,493 consisted of superannuation interests.
At trial, the wife was aged 41 years and the husband 46 years. Absent unforeseen circumstances, neither party could access any superannuation interest for many years subsequent to the trial. By reference to her Honour’s findings, the husband and the wife were, then, effectively litigating over disposable net assets of about $20,000.
However, the assets as found by her Honour excluded an amount of $64,467 standing to the credit of the parties in a solicitor’s trust account. That sum represented part of the net proceeds of the sale of the former matrimonial home. The order made by her Honour that “the second respondent be declared to be the sole and absolute owner of the [X] Online Saver account” earlier referred to represented an acceptance of the case agitated by the husband and the second respondent that the latter was owed that money (indeed more than that amount) by reason of two loans said to be evidenced by mortgages given by the husband to the second respondent dated respectively 31 January 2002 and 20 May 2002.
The wife contended that the alleged loans, and indeed the mortgages evidencing them, were shams, the product of a concoction between the husband and the second respondent to remove from the property susceptible to property settlement orders a significant amount of cash otherwise available.
As well as asserting that the alleged loans were shams, the wife also asserted that the husband paid approximately $11,000 in alleged loan repayments to the second respondent after separation. In light of her contention that the loans were shams, the wife contended that this amount should be added to the pool. Effectively, it was alleged that repayments amounted to a unilateral premature distribution by the husband and should be added back. Further, as we will explain later in these reasons, there is an issue as to her Honour’s treatment of these repayments in fixing the amount allegedly owed by the husband to the second respondent.
Those contentions formed the central issues before her Honour and, although there are eight grounds of appeal, they are also the primary issues on this appeal, embraced by grounds 2 and 3.
The Grounds of Appeal
In her Further Amended Notice of Appeal (NA 77/2014) filed on 1 June 2015, the self-represented wife’s grounds of appeal are as follows:
(1)The Learned Judge Demack erred at law and her discretion in dismissing the spousal maintenance application.
(2)The Learned Judge Demack erred in law and fact stating that the first alleged loan of $20,000 between the First and Second Respondent was a loan and required repayment.
(3)The Learned Judge Demack erred in law and fact stating that the second alleged loan of $20,000 was a loan and required repayment.
(4)The Learned Judge Demack erred in law not giving any percentage adjustment for the large contributions made by the Applicant during the relationship, which far outweighed the First Respondent’s contributions during this period, and not making an equitable adjustment for section 75(2) factors in the Applicant’s favour.
(5)The Learned Judge Demack erred in fact stating the superannuation total was $165,493, and that the Applicant’s allocation of Superannuation is $46,600, and erred in law not giving the Applicant an equitable percentage split of the total.
(6)The Learned Judge Demack erred in law by not including the vehicle of the First Respondent, a Holden Jackeroo, in the property pool and erred in fact using an incorrect value for the First Respondent’s vehicle that was included, a Holden CBR XXX Motorbike.
(7)The Learned Judge Demack erred in fact by including the incorrect credit card amount for the First Respondent in the property pool.
(8)The Learned Judge Demack erred in law displaying procedural unfairness and applying inconsistent standards towards the parties.
The Trial Judge’s Findings As To The Alleged Loans
The findings made by her Honour at [33] to [45] comprise a rejection of the wife’s contentions.
It was the wife’s case that the husband had been emotionally and financially abusive during the marriage, and this argument formed the basis of the order in the Magistrates Court requiring the husband to leave the home. However, her Honour found that both parties “were plainly unhealthily interested in making money through means other than just getting a job and working” (at [34]). Her Honour noted that the wife purchased two pieces of real property in her own name early in the relationship, and the husband sought to purchase some real property in his name (at [34]), but was initially unable to obtain a loan. The husband did eventually purchase land, but with the assistance of money provided by the second respondent (at [35]).
Her Honour found:
36.The husband and [the second respondent] both say that the wife had knowledge of these loans and had knowledge of these loans historically. That might be the case, but the conversations between the husband and [the second respondent] about the borrowing of the money were between them. The conversations were between the two of them. They are recorded, it would seem, with a great deal of particularity in [the second respondent’s] affidavits. They occurred over a prolonged period of time, not just about these mortgages but about [the husband’s] financial position and he and his wife’s financial position. Those conversations happened between the husband and [the second respondent], not between the husband and wife and [the second respondent].
37.Having said that, though, the fact of the loans from [the second respondent] to [the husband] were much earlier known to the wife than she seeks to pretend in Court. The earlier information which had been provided to her, the date of which I cannot put my hand on because of the sheer volume of unnecessary material in this case, showed that she was well aware that there was a loan from [the second respondent] to [the husband] for their own purposes.
Her Honour went on to find in relation to the two loans:
39.I am satisfied that the money was paid by [the second respondent] to [the husband] for the purposes which are asserted, that is, to conclude purchasing the land and conclude building the property. I conclude that the wife, even if she did not know the particulars of it and was not part of the conversations, was not part of the negotiating, was not part of the signing up of any documents subsequently, was aware or should have been aware from the state of the parties’ finances that they had taken the assistance of [the second respondent]. I am further satisfied that, without [the second respondent’s] assistance they would not have been able to complete the purchase of the former matrimonial home and the building of the former matrimonial home. The wife took the benefit of that. The loan was a real loan. It was not a gift by [the second respondent]; it was a loan that required repayment.
40.I am further satisfied that the interest that [the second respondent] sought to enforce is a reasonable amount and that it is reasonable, given that he loaned this money in 2001/2002, that there be interest due and owing on that money. There is no reason for [the second respondent] to be out of pocket with respect to his money when he could have been applying it for his own purposes rather than applying it for his son and daughter-in-law’s purposes.
Her Honour’s ultimate conclusions emanate in large part from the significant weight attached to a schedule prepared by the second respondent. Her Honour found:
41.[The second respondent] has completed a careful schedule which was annexed to his affidavit at AMB06 of his affidavit of 19 August 2014. It is an indicator of the sheer volume of material that neither the wife nor her lawyers seemed to know that that document was included in [the second respondent’s] affidavit. That schedule sets out clearly how he has calculated the moneys owing to him, what he has had paid off over time and how it comes to stand at the present amount. I am satisfied that that document faithfully reflects the reality of what is owing to [the second respondent].
42.So there is money off to one side which, if I find that the loan from [the second respondent] was something for which he should be paid back out of former matrimonial pool, is of the pool of assets and liabilities between the parties. I am satisfied that the loan was real, I am satisfied that [the second respondent] has first call on his money and I am satisfied that the amount was paid; that it was for the benefit of the parties; that, if the wife did not have actual knowledge as having not been a party to the conversations, she should have had at least constructive knowledge of the fact of it given the parties’ financial positions at the time that this was all happening and her apparent keen interest in money matters. I am also satisfied that the interest which has been charged by [the second respondent] is a proper amount.
The Alleged Loans – Grounds 2 and 3
These grounds can conveniently be addressed together.
The respective contentions of the wife on one hand and the husband and second respondent on the other as to the alleged loans, required the trial judge to confront and make findings in respect to these questions by reference to the evidence before her, including:
(a)Were there agreements for loans as alleged or at all?
(b)If so, when were those agreements made?
(c)What were the terms of the loans, including but not limited to:
·The term of the loan;
·The rate and calculation of interest if any;
·The required repayments;
(d)Were mortgages executed as alleged and when?
If her Honour’s conclusions were that the loans and mortgages existed, given that the loans were uncontroversially those of the husband alone, her Honour was required to determine if the parties should together bear those liabilities and, if so, in what proportion.
In answering those questions her Honour needed to examine the evidence so as to address the wife’s claim that there were significant inconsistencies in the evidence of the husband and the second respondent which called into question the authenticity of the alleged loans and the mortgages purportedly securing them.
It goes without saying that it was a matter for her Honour as to what weight and veracity she might attribute to the evidence of the relevant parties. It was, though, not open for her Honour to ignore evidence plainly relevant to the case advanced by the wife – or, at least, not without explaining why no or negligible weight was attached to it in arriving at her ultimate conclusions. With respect to her Honour, and while acknowledging the difficulties her Honour faced, we are bound to conclude that her Honour did not do so and injustice has been occasioned to the wife as a result.
Before looking at that evidence more closely, we should observe that her Honour plainly erred in respect of the approximately $11,000 repayment by the husband. Her Honour found specifically (at [45]) that “the source documents” demonstrate the husband repaid $11,000 to his father. It seems tolerably clear that this sum is separate to any amount which the second respondent’s schedule contains as a repayment. Certainly no payment in this amount is shown as such within the schedule. In respect of this amount, her Honour found as follows:
45.…Having found that the loan was real and the interest properly sought, it seems to me that those repayments are not alleged, they are real and they do not need to be added back into the pool. That does, though, seem to me to mean that the liability owing should be reduced accordingly, but the wife has not seemed to have made submissions about that issue and so I don’t intend to take it any further.
The first point is that the wife’s counsel did in fact raise with her Honour this sum and the fact that it needed to be deducted from any liability found to exist (Transcript, 19.11.14, p.17). Secondly, the wife did not contend that the payment of $11,000 was not real; she alleged it was not in repayment of any real loan. If, as appears to be the case, her Honour found the $11,000 was in fact a repayment of indebtedness, the liability should indeed “be reduced accordingly”. The fact that (as her Honour asserts) no submission was made to that effect is, with respect, not to the point. Her Honour’s task was to make findings on the basis of the evidence as to, inter alia, the level of indebtedness. In this regard, the second respondent admitted in cross-examination that the amount of $11,000 should be deducted from the debt he was alleging (Transcript, 19.11.14 pp 58 and 59). However, this is not a finding that her Honour made.
That error is not the subject of any specific ground of appeal pleaded by the wife. In addition, we observe that a lack of findings also exposes a lack of adequate reasons. There was also no ground of appeal pleading a failure or inadequacy of reasons.
However, where an appellate court considers there is error by a trial judge that court is nevertheless able, indeed bound, to correct it. As was said by the High Court in Warren v Coombes (1979) 142 CLR 531, at 552:
…To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment…
The Loans: Relevant Evidence
Evidence as to the issues under consideration came from four primary sources: the affidavit evidence of the second respondent; the affidavit evidence of the husband; documents annexed to the affidavits of each including a self-serving schedule prepared by the second respondent entitled “Schedule of Mortgage debts and payments re [the second respondent] (Mortgagee) and [the husband] (Mortgagor)”.
As her Honour’s reasons reveal, it is the last document to which her Honour attached primary importance. Her Honour did not refer at all to the other evidence emanating from the husband and the second respondent themselves which the wife asserted threw doubt upon the bona fides of the loans, and which also pertained to how any amount owing under the loans might be calculated if the loans were held to be genuine. As will be seen, that evidence threw doubt on the schedule upon which her Honour placed primary reliance.
The Affidavit Evidence of the Husband
On both the husband’s case and the second respondent’s case the husband initiated a request for, and discussions about, borrowing money from the second respondent, and although his affidavit material contains much detail about the purposes of the alleged loans, that might be contrasted with the lack of detail about the alleged loans, and their terms. Relevantly, in his affidavit, the husband:
·Deposed that he had “solely owned liabilities” which included a “personal loan to ‘AMB’” (uncontroversially, the second respondent);
·Deposed that the “solely owned liability” was in the amount of $28,000;
·Distinguished this liability from a number of “jointly owned liabilities of the relationship” which were sub-divided into “Wife’s liabilities” and “Husband’s liabilities”, and consisted of credit card debts;
·Despite deposing to a loan in the singular (“loan” and “liability”), went on to depose that two sums were lent to him by the second respondent, described as “home loan of $20,000 pursuant to a mortgage loan document dated 31 January 2002 for the purpose of land purchase” and “[a] further $20,000 home loan pursuant to a mortgage loan document dated 20 May 2002 for the purpose of construction cost variations”.
(Affidavit of husband filed 21 August 2014, [19], [20] [40](a), (b).)
The husband also deposed:
41.In order to comply with the then more recent requirements of the Queensland Department of Resources, Environment and Management for ‘property description details’ a consolidated mortgage loan of $66,900 incorporating, but not in addition to, the above two mortgage loans plus unpaid outstanding interest on those loans at 6% to date was registered with the above Department. My father has since granted me an ex gratia reduced interest rate from 6% to 4% from the date of the formal registration of the mortgage due to hardships experienced since March 2013 and that the mortgage was paid out before the end of the period of the loan. This reduced payout sum is obviously now reflected in a corresponding increase in the available property pool.
Thereafter the husband deposed to what he called the “historical narrative of the events leading to the formal registration of these mortgages”. To the extent that this narrative deposes to the terms and conditions of the loan, it is said that:
·$20,000 would be lent on the “condition that any money lent … would have to be secured and would attract interest” ([41](a));
·“[T]he purchase was to be made in my name with all financial liabilities incurred flowing to me” ([43](b));
·An additional request for money was later made “for potential construction cost overruns”. The second respondent agreed “on the proviso that the loan would again have to be secured via mortgage, and that it was limited to construction costs overruns”([43](e));
·Following a meeting with the second respondent in January 2002, the second respondent “drew up a Mortgage agreement for the initial $20,000 loan for land purchase, which we agreed to sign on 31 January 2002, in Brisbane” ([43](g));
·The second respondent held it as a registrable mortgage instrument, and “[h]e agreed not to lodge the mortgage until my bank mortgage was finalised, and my initial new house outlays were complete” ([43](g));
·The second respondent agreed to “draw up another mortgage instrument to secure [the] second loan. This was duly signed and witnessed in May 2002, again in Brisbane” ([43](h));
·“When meeting with [his] father to discuss the dire position of our finances, [the husband] continued to request that he postpone lodging the mortgage documents, as this would obviously affect [his] ability to refinance the primary house mortgage” ([43](j));
·Registration by the second respondent of his mortgage is linked to the second respondent’s cancer diagnosis in March 2009. The husband says he “agreed to” the mortgage being registered and that the second respondent “did so in October 2010”. The husband says he “commenced paying back on an interest only basis, with regular payments in November 2010 ([43](k)).
The husband deposes to the wife and he “experiencing personal difficulties” and that those difficulties became “more serious … from 2007 onwards”. The wife contends that the consolidated mortgage produced by the husband and the second respondent came into existence and was registered at a time when their marriage had effectively broken down. The two mortgages dated in 2002, and the later mortgage to which the husband deposes, are annexed to his affidavit. The terms of those mortgages will be referred to in more detail below.
Leaving aside the contents of those documents, the evidence just referred to represents the totality of the evidence of the terms and conditions of the loans and mortgages to which the husband deposed.
The Second Respondent’s Affidavits
The second respondent filed five affidavits between May and August 2014. (The husband filed five affidavits between July and September 2014).
In an affidavit sworn on 30 May 2014 the second respondent deposes:
5.1On 30 September 2001 at a “Financial and Risk Management meeting” I agreed with [the husband] to consider creating a Mortgage in Registrable form for a sum of $20,000 to assist him to obtain a first mortgage on a specific parcel of residential land with a view to then constructing a house on it. After further discussions by phone, the following general terms were agreed:
·Any initial loan provided would be deposited in a bank account on an as needed basis. The funds could not be committed to third parties until a final assessment and agreement had been reached between [the husband] and me AND a formal agreement had been signed and witnessed.
·The financial instrument used would be a “Mortgage in Registrable form”.
·A commercial, but favourable, flat interest rate of 6% would apply. Compare Reserve Bank of Australia data – commercial mortgage rates for the period 2001 t0 [sic] 2010 …
·The mortgage would be formally registered as soon as practical, depending [sic] [the husband’s] financial circumstances.
5.2On 15 October 2001, after further discussions, I provided [the husband] with an initial short term loan of $20,000, on the above conditions…
…
5.5On 11 December 2001, I provided a second short term loan of $20,000 to [the husband] on the above conditions via an ANZ Bank Cheque…
5.6On 31 January 2002, the 1st tranche of my mortgage for $20,000 was signed by myself and [the husband] and witnessed by a JP (Qual) and entered into a sequentially dated witness Log, for the land purchase…
…
5.8On 20 May 2002, the 2nd tranche of my mortgage for $20,000 for construction cost overruns was executed as a result of further consideration by me … [t]he mortgage was signed by myself and [the husband] and witnessed by JP(Qual) [sic] for additional construction costs…
In an affidavit sworn some three months later on 19 August 2014 the second respondent deposes to precisely the same arrangement:
13b.[The husband] and I agreed that the general terms of any such mortgage were:
i. A specific property must be identified and inspected.
ii.Any initial loan provided to him would be deposited in a bank account on an ‘as needed’ basis. The funds could not be committed to third parties until a final assessment and agreement had been reached between [the husband] and me AND a written agreement had been signed by both parties and witnessed.
iii.A commercial, but favourable, compound interest rate of 6% would apply, see published rates for period …
iv. [The husband] would use his best endeavours to re-arrange his financial affairs and refinance his primary mortgage at which event some or all of the surplus funds from the refinancing would be applied to reduce the mortgage and the mortgage could then be registered for the remaining amount owed.
No explanation is given why a condition of the initial agreement that a “flat” interest rate would be paid, changed three months later to a requirement for a compound interest rate to be paid, nor as to the apparent change of the conditions by reference to which the mortgage would be registered.
During cross examination by counsel for the wife, the second respondent admitted that the 2010 mortgage document contained details about a required minimum monthly repayment, and a standard monthly payment, and that interest at six per cent was then recorded as compounding and, in essence, that this was the first time such conditions appeared. He also admitted that the “attached schedule” (that is, attached to the 2010 mortgage) talked about terms that were different to the original loan, an example being that the period was then five years. Counsel suggested to him that, despite his evidence that the 2010 mortgage did not create any new obligations for the parties to it, it did in fact do so as its terms were quite different in substance from the original loan documentation (Transcript, 19.11.14, p.54).
The same mortgages ostensibly signed on 31 January 2002 and 20 May 2002, are again annexed to that affidavit as evidence of the agreement reached between the husband and his father.
The Initial Mortgages
Sworn depositions as to the terms and conditions of the “mortgage loans” to which reference has just been made should be compared to the mortgages annexed to each of the affidavits. The mortgages respectively dated 30 January 2002 and 20 May 2002 are in effectively identical terms. Each secures a principal sum of $20,000. Under the heading “Details of Repayment” each provides:
a)The principal sum is to be fully repaid within three years of the effect of this mortgage.
b)If the principal is not paid in full in accordance with 6 a) above, interest shall accrue from the date of this mortgage at the rate of six per cent (6%) per annum compound in monthly rests.
The witness to each of the mortgages is “[Ms H]”. She is described in an affidavit by the second respondent as his “administrative assistant” at his previous place of employment. She is also the witness to the mortgage executed some years later. She is the second respondent’s now wife. She was not called as a witness in the proceedings nor did she provide an affidavit.
It can be seen from the terms of the mortgages that they contemplate repayment of the loan by not later than January and May 2005 respectively. Interest does not accrue immediately but accrues only in the event that the amounts have not been repaid by those dates, in which event it is payable from the respective dates of the mortgages.
The Second Respondent’s Schedule
A number of anomalies emerge from the schedule.
First, each of the two loans are recorded as being made respectively on 15 October 2001 and 11 December 2001, and they are said to be “interest free”. Secondly, a number of purported expenses are included in the amounts said to be owing. No reference is made to any agreement whereby expenses are to be added to the amounts of the loans purportedly advanced. Included among those expenses are items such as “meeting”; “appraisal fee”; “travel to Brisbane”; and the like. Those expenses are added to the principal sum upon which interest is payable. Thirdly, interest is payable on those expenses. Fourthly, interest is recorded as being calculated (for the first time) on 31 December 2003 as “Compound interest on Principal c/f @ 6% @ monthly rests”. Fifthly, the total of the two loans contained in the schedule amounts to the sum purportedly secured by the mortgage registered on 27 October 2010. As a result, that mortgage purports to charge interest upon interest, including interest upon interest in respect of the expenses just referred to. No material, nor any earlier mortgage, refers to any agreement as between the husband and the second respondent that might justify the terms of the mortgage in those terms.
Importantly, it is the amount secured by that mortgage of $69,400 that the second respondent claims is the amount owed (and is that which her Honour finds). Yet, as has been seen, the second respondent admitted in cross-examination that, subsequent to the compilation of the schedule (as he alleges) an amount of $11,200 was repaid being 56 fortnightly payments of $200 (Transcript, 19.11.14, pp 58 and 59).
It will immediately be apparent that there were a number of inconsistencies and differing sworn evidence in respect of the terms of the loan, the amount of interest, how it might be calculated, and the inclusion of matters not deposed to as forming part of the amount said to be owing.
With great respect to her Honour, we do not regard it as sufficient to find that “the loan was real and the interest properly sought” without making a finding as to the terms of the loan and the evidence accepted by her Honour which sustains that finding. While it might be the case that conversations between the husband and the second respondent are “recorded … with a great deal of particularity” in the second respondent’s affidavits, it is not clear by reference to her Honour’s reasons how any inconsistencies between the accounts given by the second respondent (many of which, inadmissibly, purport to give evidence of what was in the husband’s mind and the like) are dealt with.
It is entirely open to her Honour to have found by reference to what is said at [39] of the reasons that the husband and wife should share in such liabilities as are owing, but we cannot find any reasons in which her Honour addressed the wife's case in respect of the amount of any such loan and whether the wife should share in the totality of the liability as claimed.
In a similar vein, it is not to the point that the interest that “[the second respondent] sought to enforce is a reasonable amount and that it is reasonable, given that he loaned this money in 2001/2002, that there be interest due and owing on that money”.
The second respondent’s entitlement to interest is entirely dependent upon the loan agreements entered into between the husband and the second respondent (if they be found to exist or to exist as claimed). In that respect, there are at least two significant disparities in what was deposed to by the second respondent. First, on the one hand he deposes that interest would be “flat” and, some three months later, he deposes that it was agreed that interest would be “compound”. Secondly, there is what is said about the payment of interest and its calculation in each of the two mortgages, and the apparent inconsistency with at least one of the sworn versions of the agreement between the husband and the second respondent in respect of the calculation of interest. Her Honour does not address either.
Her Honour also does not address the fact that the husband (i.e. the borrower) does not at all depose to the terms of the agreement. In particular, he does not depose to the rate of interest or how it might be calculated when detailing the terms of the agreement reached between him and the second respondent.
Her Honour was of course entitled to attach weight to the schedule produced by the second respondent (albeit that it is entirely self-serving), but, in doing so, it was necessary for her Honour to analyse what was contained in the schedule by reference to what the evidence revealed as to the terms of any loan agreement between the husband and the second respondent. In that respect we are unable to discern the process of reasoning by which her Honour concluded that “the document faithfully reflects the reality of what is owing to [the second respondent]”. Her Honour’s conclusion that the “interest which has been charged by [the second respondent] is a proper amount” does not at all address the absence of evidence as to how expenses are purportedly included in the amount owing to the second respondent and how it is said that interest is chargeable upon them.
The wife alleged that not only were the loans shams, but so, too, were the mortgages said to secure the loans. We cannot see that her Honour addressed this issue at all. In essence, the wife asserted that the existence of the mortgages was a recent invention or that they were created so as to deny her a property settlement entitlement. That issue was not, with respect, “neither here nor there” as her Honour found at [35]; it was central to the wife’s case.
In those circumstances, we consider ourselves bound to conclude that there is an absence of findings by the trial judge in respect of the case advanced by the wife, and, concomitantly, a failure to provide reasons which adequately explain the path by which her Honour reached the conclusions that she did. There is the potential for significant injustice to the wife as a consequence, particularly in light of the fact that, as we have earlier mentioned, the subject sum represents the vast bulk of the liquid assets of the parties which, absent a finding of the amount, or an amount owing to the second respondent, might be made the subject of orders pursuant to s 79 of the Act.
Accordingly, we conclude that the appeal should be allowed.
In light of that conclusion, we will consider only briefly the other challenges raised in the grounds of appeal. We are conscious of arriving at conclusions with respect to contributions and the like which will be the province of the judge hearing the remitted proceedings.
The Maintenance Challenge – Ground 1
According to the appeal record there was no formal application for spousal maintenance filed by the wife, but in her amended outline document filed on 13 November 2014 she sought an order that “the First Respondent [the husband] pay spousal maintenance at an amount as deemed fit by this Honourable Court”.
At the conclusion of the evidence her Honour said this in relation to that claim:
HER HONOUR: There is no evidence on the cross-examination of [the husband] that he has a capacity to pay spousal maintenance on an ongoing basis. There is certainly evidence that [the wife] has a relevant need for spousal maintenance, but that’s only half of the test, and there is no evidence that [the husband] has the capacity to pay periodic spousal maintenance. Otherwise, there plainly needs to be a percentage adjustment to [the wife], as I have already said, and as [the husband] himself seems to now understand.
(Transcript 19.11.14, p.62, lines 37 – 42)
Thus, during his final address to her Honour the husband put this to her:
[MR BIRCHER]: … Your Honour has indicated that there is a good possibility of a spousal maintenance or a personal maintenance allocation of some sort for you to determine. Your Honour, I would seek that that was made from super if that was possible in your orders.
(Transcript 19.11.14, p.70, lines 15 – 18)
However, plainly that is not what her Honour said, and the husband has presumably misunderstood the position. In any event, at the commencement of her final address, the wife’s counsel acted on the indication from her Honour and said this:
MS [BERTONE]: Paragraph 1, in terms of [the wife’s] claim for periodic spousal maintenance as the evidence fell, that periodic maintenance is not pursued.
(Transcript 19.11.14, p.72, lines 18 – 19)
In our view, that then was the end of the claim for spousal maintenance, but her Honour felt it necessary to consider whether an application for lump sum spousal maintenance “remained”, and her Honour addressed that in her reasons for judgment as follows:
79.I dismiss the wife’s application for spousal maintenance. The application for periodic maintenance was not persisted with. Whether that meant that an application for lump-sum spousal maintenance remained at the conclusion of the trial I am not at all clear. If it did, I dismiss it. There is no evidence before me that the husband has the capacity to pay out of the lump sum that he will receive, which will also be modest. He is already receiving lesser of the pool than the wife and the wife, as I found, has some capacity to earn money once the youngest child starts school next February.
We do not consider that there was any basis for her Honour to think that there was a claim for lump sum spousal maintenance before the court. What was put to her Honour by the wife’s counsel, was that given no claim for periodic spousal maintenance was pursued, her Honour should make an adjustment in the wife’s favour when considering the relevant s 75(2) factors, on the basis that the husband’s income and income earning capacity were greater than the wife’s. In this regard the wife’s counsel said this in her final address:
MS [BERTONE]: Your Honour has found and the evidence showed that there – whilst there was a need for [the wife] to have a spousal – a periodic spousal maintenance order, there was not capacity for that. But that doesn’t change the fact that in having such reliance on Centrelink benefits has and living with her parents, with these three children, is not the standard of living to which she was accustomed during the relationship and it is a lower standard of living, I would submit, than [the husband] is able to offer due to his higher income.
…
But in terms of [the wife] there will be a lag, if you like, and that’s something that I invite your Honour to take into account in making a greater adjustment to the overall division because this is the only property settlement these parties can get and the fact that there’s no capacity for a periodic spousal maintenance order might well – well, I submit can be taken up in terms of your perhaps giving a greater adjustment than you might otherwise have been included to give, on my submission, which we’re seeking at 15 percent. Your Honour, in the overall justice and equity of the case, in my respectful submission, will be served by a division of 75 percent of the assets in [the wife’s] favour.
(Transcript 19.11.14, p.90, lines 1 – 7 and lines 25 – 33)
That is in fact what her Honour did, although not to the extent sought by the wife (at [63] – [67]). Her Honour concluded as follows:
67.There should be an adjustment in favour of the wife for that difference in earning capacity because of her ongoing obligations to be available for the children outside of school hours and, doing the best I can, I assess a five per cent adjustment as the parties have the orders in place which will have the children with the father from a Thursday to a Tuesday in every second week, which, on my maths, is a six/eight fortnight regime. So I assess a five per cent adjustment to the wife for her future needs.
It has been necessary to recount the background to this issue in order to put the claim for spousal maintenance into context, and to understand how her Honour dealt with it. With that knowledge, this is a ground of appeal that cannot succeed. The claim for periodic spousal maintenance was withdrawn, and there was no claim for lump sum spousal maintenance. Certainly, her Honour found that if there was such a claim then it should be dismissed, but we can find no error in how her Honour addressed that.
In her written summary of argument the wife has referred to a comment made by her Honour during the course of the trial, about the prospect of a lump sum amount being necessary (Transcript 19.11.14, p.39, lines 1 – 9). However, that was nothing more than her Honour postulating what might be appropriate, and it certainly was not her Honour making a finding or reaching a conclusion. In any event, it is what her Honour says in her reasons for judgment, after all the evidence has been given, and submissions made, rather than any comment made during the hearing, that is looked at when considering whether her Honour has made an error, and to repeat, there is no error here.
The Contributions and s 75(2) Challenge – Ground 4
This ground challenges both the trial judge’s assessment of the respective contributions of the parties and her assessment of the relevant s 75(2) factors.
Once again it is apparent that there is a lack of findings by the trial judge in support of her conclusions.
As to the issue of contributions, her Honour only perfunctorily addressed the evidence of the parties, but particularly the evidence of the wife in arriving at her conclusion that the parties’ contributions were “ostensibly equal”.
Her Honour did identify from the evidence what each party brought into the relationship as an initial contribution (at [48] and [49]), and it was open to her Honour to find as she did that those contributions were equal. Thus, her Honour cannot be criticised at that point, but it is her Honour’s assessments of the contributions during the marriage and post-separation which are the most concerning. In relation to the former, there was no reference by her Honour to the evidence of the parties as to their respective financial contributions during the relationship, despite that being a significant area of dispute. Her Honour merely recorded that “[d]uring their relationship they both worked”, although they spent “significant periods of time out of work”, and noted that they were involved in unsuccessful money-making schemes (at [51] and [52]).
The husband of course points to what would appear to be a concession by the wife during her cross-examination when being asked questions by the trial judge, and by the wife’s counsel during her final address, that the respective contributions of the parties during the relationship were equal (Transcript 19.11.14, p.61, lines 39 – 44; Transcript 19.11.14, p.89, lines 9 – 18).
As to the wife’s “concession”, a plain reading of the transcript reveals that the wife and the trial judge were not talking the same language, and the wife cannot be taken to be conceding that the contributions during the relationship in terms of s 79(4) of the Act were equal, although that was clearly the thrust of her Honour’s questions.
As to the wife’s counsel’s “concession”, it is apparent that that was not the wife’s case, and that her counsel was in effect pressured into agreeing with her Honour’s proposition about this bearing in mind her Honour was relying on the wife’s earlier answer which in turn was at least ambiguous. Further, in her Honour’s reasons for judgment she did not simply rely on a concession by the wife (or her counsel); indeed her Honour did not mention any concession at all, and although inadequately in our view, her Honour appeared to address the issue on the basis that it was necessary for her Honour to make a finding about the respective contributions of the parties during the relationship.
As to the post-separation contributions, her Honour did find that the contributions of the wife were as a parent given that she had the primary care of the three children who were all autistic, but there was no specific finding as to the contributions of the husband, either financial or non-financial yet, effectively, her Honour concluded that the contributions were equal.
There is one other issue in relation to her Honour’s treatment of the post-separation contributions of the parties; her Honour made a finding of a negative contribution against the wife:
60.When I consider the wife’s contributions since separation, notwithstanding her contribution with respect to parenting matters, her failure to take care of belongings, it seems to me, amounts to a disruption to the matrimonial pool. I will not call it “wastage”, as such, but what she seems to have done is to have had such a disregard for items which were in her possession and control that she has caused them to be ruined or lost. That, it seems to me, needs to be factored into her contribution such that the contribution that she has made to the children must be offset by this failure to take proper steps that one would have thought she was obliged to take.
Her Honour followed that up with this conclusion:
61.…It seems to me that the post-separation contribution by her with respect to the children might be considered to be in the order of five per cent, but I immediately discount that five per cent because of the issues that I have just raised.
The first point to note is that this sentence makes no sense; the wife’s post-separation contributions cannot be “five per cent”. Presumably what her Honour meant was that because of the wife’s post-separation contributions, then overall the contributions of the parties should be assessed at 55 per cent / 45 per cent in the wife’s favour. However, that too has its problems in that it could be said that her Honour used a starting point of equality and then looked to adjust from there, something which is not permitted under the legislation (Mallet v Mallet (1984) 156 CLR 605).
In any event, her Honour determined to “offset” or discount the “five per cent” because of the wife’s “failure to take care of belongings”; in other words, a finding of a negative contribution by the wife. However, this court has long held that there is no room for such a consideration in s 79(4)(a) or (b) of the Act (Antmann and Antmann (1980) FLC 90-908, at 75,744), and thus her Honour has plainly erred in this regard.
It may of course be a relevant fact under s 75(2)(o) of the Act that a party has committed “waste” of the assets of the parties (Antmann; Kowaliw and Kowaliw (1981) FLC 91-092), but her Honour specifically found that the wife’s conduct was not in that category (at [60]), and moreover she applied the discount when considering contributions rather than the s 75(2) factors. Thus, this cannot explain or justify her Honour’s approach.
As to the issue of the relevant s 75(2) factors, we are not persuaded that her Honour erred in her treatment of those factors. On this occasion her Honour did address the evidence and make findings which led her to her conclusion that there should be an adjustment of five per cent in the wife’s favour.
We note that in her written summary of argument the wife complained that “[h]er Honour erred in law and her discretion where there was not enough weight given to Section 75 (2) factors for [her]”. To succeed in such a challenge though the wife needs to demonstrate that her Honour’s decision was “plainly wrong” such that her exercise of discretion was no exercise at all (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 520 – 521). The wife has not been able to establish that, but we do not need to pursue that issue because the 5 per cent adjustment is an adjustment which is made to her Honour’s conclusion as to the appropriate percentage division based on the respective contributions of the parties, and we have found that assessment is unsafe because of a lack of findings (and lack of reasons). That outcome necessarily means that her Honour’s conclusion as to a 5 per cent adjustment for s 75(2) factors is also unsafe, and for that reason we find this ground of appeal must succeed. Indeed, we observe that the husband’s submission as to the appropriate percentage division overall to take account of contributions and s 75(2) factors was 60 per cent / 40 per cent in the wife’s favour, yet her Honour fixed on a 55 per cent / 45 per cent division.
The Superannuation Challenge - Ground 5
Her Honour was correct in finding that on the evidence that was before her the total value of the superannuation entitlements of the parties was $165,493. That comprised the wife’s entitlement of $46,600 in the self-managed superannuation fund of the parties, and the husband’s entitlement therein of $103,963, together with the husband’s entitlement in two other funds, one at $7,530 and the other at $7,400. However, a significant issue for the wife was that the actual amount in the self-managed superannuation fund was not before her Honour because tax returns had not been done for 2013, 2014, and for part of 2015 to the date when the fund would be wound up, and interest had not been added. However, this does not expose any error by her Honour. It was up to the parties to provide the evidence to her Honour, and if that was not done, her Honour could only do the best she could on the actual evidence before her.
Separately, the wife complains that she only received 40 per cent of the total amount in the superannuation funds, and that it should have been far more. That necessitates looking at what her Honour did in that regard.
Her Honour calculated that the total net pool of assets available for distribution including the superannuation assets was $185,171. The wife was to receive 55 per cent of that amount, namely $101,844.05, and her Honour then looked at how that could be achieved. Taking into account the assets (and liabilities) to be retained by the wife, including her superannuation entitlement of $46,600, there was a shortfall of $31,047.20. Her Honour then determined that that should come from the husband’s entitlement in the self-managed superannuation fund.
To return to the wife’s complaint that this result only gave her 40 per cent of the superannuation assets, when it should have been 85 per cent, which would include 10 per cent for spousal maintenance, the first thing to note is that in fact it was about 44 per cent, but more importantly, there is no proper basis on which the wife can suggest that her Honour has erred in her approach, and in particular, it is not possible to provide 10 per cent of the superannuation for spousal maintenance.
Her Honour could have adopted a two pools approach, but as can be seen, the overwhelming majority of the net asset pool comprised the superannuation ($165,493 out of $185,171), and thus, on her Honour’s findings with respect to the pool, including the finding with respect to the loans, that would not have provided either party with a just and equitable result.
In short, we are not persuaded that her Honour has erred in how she has treated the superannuation entitlements of the parties. That said, we have found that her Honour’s overall percentage division of 55 per cent / 45 per cent cannot stand, and that plainly has implications for what the wife should in fact receive, and the make-up of that from the assets of the parties, including their superannuation entitlements.
The Motor Vehicles Challenge - Ground 6
There are two issues here. The first relates to a motor vehicle purchased by the husband since separation, and in respect of which her Honour said this:
26.The husband had purchased a Jackeroo maybe since final separation. There are no details about that and I do not intend to include it in the pool. The husband, I note, in his orders had sought moneys in the first instance to be able to buy a vehicle to transport the children so I am not at all sure of the status of the Jackeroo.
Plainly, it was open to her Honour to exclude that motor vehicle from the asset pool, and she did so because she was not satisfied on the evidence that there was sufficient detail to allow her to include it. We can find no appealable error by her Honour in that approach.
The second issue relates to the value adopted by her Honour for the husband’s motor bike. Plainly there was no independent valuation presented to her Honour of this vehicle, nor it seems, of any of the vehicles. In those circumstances her Honour had to do the best she could on the evidence that is available, and we are not persuaded that her Honour erred in the approach she adopted.
There is no merit in this ground of appeal.
The Credit Card Amount - Ground 7
As explained by the husband in his summary of argument, the amount used by her Honour was the most recent figure available, and came from the husband’s financial statement filed on 29 September 2014.
There is no error here by her Honour.
Procedural Unfairness - Ground 8
This is a ground of appeal that cannot succeed. It is impossible for us to address it as it comprises mere assertions and no specificity. Nor are we assisted by what is contained in the wife’s summary of argument.
In her oral submissions the wife did identify examples of what she described as “bias” by the trial judge, but the difficulty for the wife is that she was legally represented during the trial and the issue of bias was not raised with her Honour at any stage by the wife’s counsel, and she cannot now raise it on appeal (Vakauta v Kelly (1989) 167 CLR 568).
We should observe that our own reading of the transcript does not reveal any basis upon which the allegation of “bias” could reasonably have been made.
Conclusion
Having found merit in Grounds 2, 3 and 4 the appeal must be allowed.
All parties request that this court re-determine the matter, and in that event the only further evidence that would be presented is an update as to the self-managed superannuation fund, and in particular, evidence of the current respective entitlements of the husband and the wife. Obviously enough, that course of action commends itself by reason of the protracted litigation, the nature and breadth of the issues between the parties and the extremely modest assets and superannuation potentially the subject of s 79 orders.
However, authority dictates that it is not necessarily that simple. We are mindful of what the Full Court said recently in Vass v Vass (2015) 53 Fam LR 373, when considering whether to re-exercise the discretion in that case, namely:
147.As this Court has sought to explain on a number of occasions, we are of course always anxious to avoid the parties being exposed to yet further expense and delay. However, this court is constrained in re-exercising not by willingness or whim, but by principle.
148.It is plain from the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172 [parallel citations omitted] that on any re-exercise of discretion, this court is obliged to achieve a just and equitable outcome by reference to the law and facts as they exist as at the date of re-exercise.
149.That presents difficulties both evidentiary and practical…
The major hurdle here is that there is an absence of findings by the trial judge on the evidence in relation to the primary issues – including, centrally, the bona fides of the loans and mortgages, and, if bona fide, their terms and how any such liabilities as found should be shared by the husband and wife. From what the husband and wife said to us about proposed further evidence, it is highly likely that any such evidence will be controversial. In light of the history of this matter that is hardly surprising. The resolution of those issues cannot be done by reference solely to the record; a fact-finding exercise including in all likelihood, cross-examination, would need to be carried out and that cannot be undertaken by this court.
Costs
At the conclusion of the hearing we sought submissions from the parties in relation to the costs of the appeal. Whilst each of the parties was self-represented, they all indicated that they had incurred some costs in the preparation of the appeal.
In the event that the appeal was successful, the wife sought an order for costs against both respondents, or, if an order for costs was not granted, a costs certificate.
The wife's application for costs was opposed by the husband and the second respondent on the basis of their financial circumstances. The husband asserted that his financial situation is such that he is unable to obtain a loan from a financial institution and that he had "marriage" debts and other debts he was paying. He conceded though that he has an annual gross salary of approximately $139,000. The second respondent asserted he was a self-funded retiree with an approximate income of $48,000, and thus, could not afford a costs order against him.
In the event that there was no order for costs the husband and the second respondent also sought costs certificates.
There should be orders for costs as sought by the wife. The order is in our view justified by reason of the husband and the second respondent having been wholly unsuccessful in their opposition to the appeal, and the respective financial circumstances of the parties.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Hogan JJ) delivered on 15 July 2016
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