Blatch & Blatch (No 2)
[2023] FedCFamC1A 14
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Blatch & Blatch (No 2) [2023] FedCFamC1A 14
Appeal from: Blatch & Blatch (No 5) [2022] FedCFamC1F 651 Appeal number(s): NAA 215 of 2022 File number(s): SYC 1613 of 2021 Judgment of: TREE, CHRISTIE & SCHONELL JJ Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appeal challenged property settlement and child support orders – Actual bias – Where the primary judge’s assessment of contributions and adjustments could not support a claim of actual bias – Whether the primary judge erred in not accepting a new valuation – Where the new valuation was never part of the evidence and the primary judge was correct to ignore it – Where the husband is precluded from raising contentions not raised before the primary judge – Where leave to appeal is required from the child support orders – Where no ground of appeal succeeds – Leave refused – Appeal dismissed – Costs ordered in favour of wife in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 36
Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Number of paragraphs: 41 Date of hearing: 1 February 2023 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Landers & Rogers ORDERS
NAA 215 of 2022
SYC 1613 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BLATCH
Appellant
AND: MS BLATCH
Respondent
order made by:
TREE, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
17 february 2023
THE COURT ORDERS THAT:
1.Leave to appeal Orders 29 and 30(b) made by the Federal Circuit and Family Court of Australia (Division 1) on 31 August 2022 is refused.
2.Appeal no. NAA 215 of 2022 is dismissed.
3.The appellant is to pay the respondent’s costs in the sum of $20,000 within 28 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blatch & Blatch (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CHRISTIE & SCHONELL JJ:
introduction
By his Notice of Appeal filed 28 September 2022, Mr Blatch (“the husband”) appeals against final orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 31 August 2022 relating to property settlement and child support. Parenting orders in relation to the parties’ two children were also made that day, however they are not the subject of appeal.
Ms Blatch (“the wife”) opposes the appeal.
For the short form reasons (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)) that follow, the appeal will be dismissed.
background
The parties commenced cohabitation in 2003, married in 2005 and separated under the one roof in April 2018. They physically separated in December 2018 after an incident occurred which resulted in the husband being charged with assaulting the wife and an Apprehended Domestic Violence Order being made for her protection.
The parties’ two children were born in 2010 and 2012 and are currently 12 and 11 years of age.
The wife and children presently live with the maternal grandparents in their home. The husband lives in the former matrimonial home and he has re-partnered.
As found by the primary judge, each party had modest assets at the commencement of the relationship (at [272]). Both parties worked during the relationship, with the wife returning to part-time work after the children were born.
The wife has been the primary carer of the children since separation, although as the primary judge found, that was her choice so as to exclude the husband from that role (at [274]).
Since 2019, the wife has been solely responsible for the children’s private school fees which expenditure was found to be approximately $163,000 at the date of trial (at [216]).
The husband ceased paying child support to the wife in March 2021, and thereafter has been the subject of two enforcement orders to pay child support arrears.
At the time of trial, the asset pool comprised the former matrimonial home, some savings, a motor vehicle, motor cycle and superannuation (at [269]). The primary judge included in the balance sheet various add-backs for monies withdrawn, or distributed by way of partial property settlement, and child support arrears.
The appealed orders provide for the husband to pay the wife a cash settlement representing 60 per cent of the parties’ non-superannuation net assets (Order 30(a)), together with a lump sum child support payment of $186,238 to be credited against the husband’s child support liability (Orders 29 and 30(b)), and for the husband to be responsible for one half of the children’s private school fees when they become due (Order 24). In the event the husband is unable to pay the wife the amounts ordered, the former matrimonial home is to be sold and the net sale proceeds used to fund the payments (Order 33).
The husband challenges all those orders in this appeal.
the appeal
The Notice of Appeal filed 28 September 2022 contained three grounds as follows:
1.Ground 1 – The primary judge made an error when she did not accept the updated valuation of the property at L Street, Suburb K that was performed by [a valuer] dated 23 August 2022. There is no justification for not accepting this valuation, and in not accepting or acknowledging the valuation, the primary judge has made an error when determining how much the Respondent Wife should be paid out.
2.Ground 2 – The primary judge made an error when she ordered the Appellant to make a lump sum payment of child support to the sum of $186,238. The primary judge did not consider the changed parenting arrangements and the fluctuating incomes of the parties when making this order.
3.Ground 3 – The primary judge made an error when assessing the Respondent’s contributions when determining her contribution of some $213,000 required an adjustment in her favour.
(As per the original)
However the husband’s Summary of Argument filed 4 January 2023, purported to address some seven grounds (although as cast, none were in fact proper grounds of appeal) as follows:
Ground 1.Accept the Property Revaluation of $2,900,00 [a repetition of Ground 1 in the Notice of Appeal]
Ground 2.Accept the Balance Sheet/property settlement Working paper submitted by the [husband]
Ground 3.Reversal of the 10% and 5% adjustments which are currently in favour of the [wife]. [perhaps a repetition of original Ground 3]
Ground 4.Reduce the Lump Sum Child Support from $186k to $48k [seemingly a repetition of original Ground 2]
Ground 5.Remove the requirement for the [husband] to pay half of Private School tuition, where they have access to excellent … Public Schools.
Ground 6.In the alternative to the [husband] settling with the [wife], for the [husband] to be appointed trustee of the Suburb K property to list for sale within 30 days of these appeal orders.
Ground 7.Invitation for Costs orders against the [wife] for unilaterally withholding children from a meaningful relationship with the [husband] and extended paternal family.
(As per the original)
At the hearing, we permitted the husband to substitute those seven grounds advanced in his Summary of Argument for the three grounds in his Notice of Appeal.
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. There, the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
Ground 3
As argued, this ground contended bias by the primary judge, and a failure to engage with relevant evidence. Grounds which advance an allegation of bias ought be dealt with before all others (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]).
The bias argument is said to arise purely from the primary judge concluding that there was a disparity in contribution based entitlements, and in the adjustment under s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”), both of which favoured the wife to the extent of 10 per cent and 5 per cent respectively. It is therefore apparently contended that there was actual, rather than ostensible, bias. As to that, the test for actual bias requires the complainant to demonstrate that the decision maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“MIMA v Jia Legeng”) at [72]).
In applying the test set out in MIMA v Jia Legeng, von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 discussed the difficulty of establishing actual bias, as follows:
38.In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. …
At [275] the 10 per cent disparity in contributions was said to be referrable to the greater contribution of the wife post separation in respect of the parties’ children’s school fees in the sum of $163,000, together with a $50,000 gift made to the parties in 2006 (at [192]). As the wife’s counsel pointed out, as against a net pool of $2,246,315 (at [270]), $213,000 is almost exactly 10 per cent of that sum (although of course the parties ought share school fees) but only 7 per cent if notional assets and superannuation are included. Whilst an assessment of contributions is not a mathematical exercise, but an holistic one (Jabour & Jabour (2019) FLC 93-898), nonetheless it is immediately apparent that the 10 per cent disparity cannot be said to be without some basis, or otherwise suggestive that the primary judge had prejudged that issue.
As to the 5 per cent s 79(4)(e) adjustment, it was justified by the primary judge by reference to the husband’s greater earning capacity than that of the wife (at [278]). That adjustment was entirely orthodox, and again could not possibly support a claim of actual bias.
We do not understand how the primary judge is said to have failed to engage with relevant evidence, and will not address this complaint further.
Ground 3 fails.
Ground 1
This ground proceeds on an incorrect premise, namely that a property valuation for the former matrimonial home at $2,900,000 (“the new valuation”) was in evidence before the primary judge, whereas it was not.
The trial concluded on 22 August 2022. The following day the parties received the new valuation. Although on that day the solicitor for the husband attached the new valuation to his written submissions, the wife objected to the husband relying upon it. No application to re-open the evidence to include the new valuation was thereafter made by the husband.
The new valuation was therefore never part of the evidence before the primary judge, and her Honour was correct to ignore it.
Ground 1 fails.
Ground 2
The husband annexed a balance sheet to his Summary of Argument in the appeal; it appears that it is this document which he now says the primary judge ought to have adopted. However that was not the husband’s position at trial, where he contended that the balance sheet should include add-backs totalling $436,744, with the wife contending for a lower sum of $366,744. The husband was successful in persuading the primary judge that his total was correct (at [250]–[254]).
The husband now appears to contend for a different amount of add-backs, the total of which should then, in effect, be removed from the balance sheet, as they were “[p]artial [p]roperty settlements absorbed by [the husband] in refinance” (Husband’s Summary of Argument filed 4 January 2023, p.12). This was not a contention advanced by the husband before the primary judge, and it is well established that, unless there was no possibility that evidence could have prevented the new point from succeeding, a party is bound by the conduct of their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”)) as otherwise trials would become merely “a preliminary skirmish” (Coulton v Holcombe (1986) 162 CLR 1 at 7).
Given that we are not persuaded that this point which the husband now seeks to raise could not have been met by evidence, it follows that Ground 2 must fail.
Ground 4
At its heart, the complaint advanced by this ground is that the sum ordered by way of child support did not take into account possible future changes as to the husband’s income or the split of time which the children spend with each parent.
The first problem for the husband with this ground is that leave is required to bring this challenge (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 28(3)(b)). This requires, in part, a consideration of the merits of the ground (Medlow & Medlow (2016) FLC 93-692).
As to that, although no transcript was obtained by the husband, it appears that he did not raise this contention at trial, nor indeed did he dispute the wife’s calculation of the relevant capitalised amount, and thus the proposed appeal on this ground enjoys no merit (Metwally). This is sufficient to dispose of the question of leave, which is refused.
Ground 5
It is not possible to discern any challenge, raised either by this ground, or the elaboration on it in the husband’s Summary of Argument, which contends an error of the kind identified in House.
Ground 5 fails.
Ground 6
The gravamen of this ground, as argued in the husband’s Summary of Argument, appears to be that if the amounts that the husband was to pay the wife were not paid, and thus she were appointed trustee for sale of the former matrimonial home, it was unreasonable to not impose any time limit for her to sell it. Leaving aside the inherent unlikelihood of the wife acting so as to indefinitely defer her receiving the monies due under the orders, in any event if that were to transpire, the husband would have remedies by way of enforcement. Even if the challenge therefore is one of unreasonableness (and that is by no means clear) such as to engage with House, it is forlorn.
Ground 6 fails.
Ground 7
This appears to be a claim for costs of the litigation before the primary judge. As such, it is plainly not a valid ground of appeal, and it fails.
Conclusion
No ground of appeal succeeds and hence the appeal will be dismissed.
costs
The appeal was hopeless, and has inevitably failed. The husband has greater earning capacity (and income) than the wife, although under the primary judge’s s 79 orders, she has more property than he does. Weighing those factors tells in favour of a costs order against the husband, notwithstanding the usual position established by s 117 of the Act. As to quantum, we are satisfied that $20,000 is a reasonable sum, and it should be payable within 28 days.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Christie & Schonell. Associate:
Dated: 17 February 2023
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