Brayden and Brayden
[2012] FamCAFC 111
•27 July 2012
FAMILY COURT OF AUSTRALIA
| BRAYDEN & BRAYDEN | [2012] FamCAFC 111 |
FAMILY LAW – APPEAL – ENFORCEMENT OF PROPERTY ORDERS – Where the appellant’s ultimate purpose in appealing was to challenge substantive property orders which formed the basis of the enforcement orders the subject of the appeal – Where those earlier substantive property orders had not been appealed – Where the appellant had numerous opportunities to raise complaints about the substantive property orders when the orders were reviewed on occasions prior to the enforcement proceedings, but failed to do so – Where the complaint of procedural unfairness was not made out – Where the transcript of proceedings demonstrated the Federal Magistrate had allowed the appellant’s evidence and in any event that evidence would have made no difference to the orders made – No appealable error demonstrated – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where the appellant had not complied with orders directing him to file material in relation to the determination of the liabilities and entitlements between the parties – Where the enforcement proceedings commenced by the respondent wife were necessitated by the appellant husband’s failure to comply with orders – No appealable error demonstrated.
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1988) 197 CLR 172 House v The King (1936) 55 CLR 499 In the marriage of Greedy (1982) FLC 91-250 In the marriage of Robinson (1991) FLC 92-209 |
| APPELLANT: | Mr Brayden |
| RESPONDENT: | Ms Brayden |
| FILE NUMBER: | BRC | 13044 | of | 2007 |
| APPEAL NUMBER: | NA | 96 | of | 2011 |
| DATE DELIVERED: | 27 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 27 April 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1154 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Theobold |
| SOLICITOR FOR THE RESPONDENT: | Carswell & Company |
Orders
The appeal is dismissed.
The application to adduce further evidence is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brayden & Brayden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 96 of 2011
File Number: BRC 13044 of 2007
| Mr Brayden |
Appellant
And
| Ms Brayden |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 November 2011, the husband filed a notice of appeal against orders made by Federal Magistrate Spelleken on 1 November 2011. The hearing took place on 23 February 2011 when the husband appeared for himself and the wife was represented by counsel. The orders appealed were made in response to the wife’s successful application for enforcement of property orders, relating to final orders for property settlement made on 20 June 2008.
The enforcement application followed a number of property orders. The Federal Magistrate was faced with considerable difficulties amounting to performing an accounting exercise about what was owed and to be divided between the parties in accordance with the earlier property orders.
The order made by Federal Magistrate Spelleken provided that the husband pay the wife $9,352.94 within 28 days, that the whole of the moneys in the sum of $11,000.00 held in an interest account be paid to the wife and the husband pay the wife’s costs fixed at $3,360.00. These were the same orders the wife sought in her case outline.
In the notice of appeal the husband seeks orders that leave be granted to amend the notice of appeal pending provision of a transcript of proceedings, and that the orders made 1 November 2011 be stayed or set aside. On 10 February 2012 the husband filed an application in an appeal, seeking that the Court provide the transcript of proceedings before the Federal Magistrate “if necessary”.
After delivery of the reasons and orders on 1 November 2011, on
7 December 2011 the wife filed an application in a case seeking leave to enter judgment against the husband in relation to the orders. On 15 December 2011, the husband filed an application in a case in the proceedings before the Federal Magistrate seeking a stay of the orders made 1 November 2011.
On 13 March 2012, the Federal Magistrate granted the husband’s stay application, and made a notation on the orders that the wife’s application to enforce the orders should be listed in the Hervey Bay circuit on a date to be advised after these appeal proceedings are finalised.
It is apparent from the husband’s summary of argument and oral submissions that the orders he seeks are a rehearing not just of the enforcement proceedings, but of the substantive proceedings when the entitlements of the parties were determined. The husband submitted he could not make submissions about what the proper orders in the property division should have been without further disclosure from the wife.
It is important to emphasise at the outset of these reasons that this is not an appeal against the original property orders, but rather enforcement orders giving effect to earlier property orders. Those earlier orders were not appealed by the husband at the time the orders were made, nor does he now seek to leave to appeal from them. Accordingly in these appeal proceedings, the husband can only raise as grounds of appeal, errors of fact and law in the Federal Magistrate’s decision leading to the orders made on 1 November 2011. This was explained to the husband at the appeal hearing.
The husband’s arguments in the notice of appeal appear disorganised. The following is a repetition of parts of the notice of appeal, some of which is under the heading Leave to Appeal, together with a restatement of these apparent grounds to give them some form and meaning.
Leave to appeal
1. There has been a denial of natural justice, as according to the reasons for judgment, my evidence, which was rejected by the courts on a technicality, wasn’t taken into account and the orders have been based on the sole evidence of the applicant wife. Further, I didn’t realize I had to resubmit evidence that was already on file, as FM Spelleken informed me, in order for that evidence to be taken into account for that particular trial.
The Federal Magistrate erred by not allowing the husband’s evidence and relying on the evidence of the wife only.
2. That insufficient weight was given to evidence given in court by myself and on previous filings with regards to the applicant’s flagrant contempt for court orders requiring that she sell the home, and further that this wasn’t taken into account concerning legal costs imposed by Gaden’s lawyers or the court.
The Federal Magistrate erred by giving insufficient weight to the husband’s evidence about the wife’s failure to comply with previous court orders.
3. That injustice has occurred for no fault of the respondent in the respondent’s appointed legal aid lawyer failing to put forward the respondent’s evidence and proof when said lawyer had personal family problems and submitted (begged!) adjournment pleas alluding to this.
The Federal Magistrate erred by failing to grant an adjournment of the proceedings.
4.That the husband’s status as an unrepresented litigant and without the benefit of legal counsel throughout the proceedings has meant that existing orders reflect the wife’s lawyers’ superior experience and not the merits of the circumstances.
Grounds of appeal
1.A transcript and legal advice are required in order to complete the grounds of appeal, for which I do not have to necessary money at present and am relying on community legal aid, which limits the time available to each session.
2.Further my disability and financial state dictate that I don’t have the money necessary to carry out the orders.
The Federal Magistrate erred by making orders which the husband did not have the physical or financial capacity to pay.
The husband suggests there are further grounds of appeal he may wish to rely upon, however he requires the transcript of proceedings and legal advice to complete the grounds. He says he is currently relying on limited time with community legal aid as he does not have the money required to retain legal counsel. It is apparent that the husband has no financial capacity to engage lawyers.
In view of the concern expressed by the husband that the Federal Magistrate may not have considered his affidavit an order was made on 9 July 2012 providing the transcript of the proceedings before the Federal Magistrate.
The husband and the wife were given 14 days within which to file and serve submissions in relation to the contents of the transcript. No submissions were received.
Relevant Background
As mentioned, the orders relate only to enforcement of earlier property orders, which the husband did not appeal and therefore cannot seek to disturb in these proceedings. It is unnecessary to set out in detail the history of the relationship.
It is necessary in these circumstances however to briefly explain the evolution of the property orders which gave rise to the enforcement proceedings. As will be seen, one of the arguments concerns consent orders which did not form part of the enforcement proceedings before the Federal Magistrate. Those orders were made at the State Magistrates Court on 3 May 2007 and are reproduced below:
Part E – The basis of the Consent order agreed upon between [Ms and Mr Brayden]
This agreement describes the terms of settlement of the separation and dissolution of partnership of [the wife] and [the husband], both formally [sic] of [A Street], Queensland.
It is herewith agreed and witnessed that:
1.All assets once owned by the [Brayden] family will be shared equally, unless otherwise agreed to in writing. All said assets over $500 in value will be inventoried, market valued, and total value will be shared equally or as agreed in writing.
2.[The husband] has been bought out of [Business S] for the sum of $20,000 and this money will be settled at the time of the sale of [the A Street property] or as agreed to in writing. [The husband] will continue to sell for [Business S] gaining a commission of 30% on whatever clients he refers to [Business S]. [The husband] will also be paid $60/wk for miscellaneous printing and administration services.
3.[The wife] will move into another home, paying the costs of her own rent and allowing me to rent at [the A Street property] at the rent equal to the amount necessary to keep the mortgage in good standing until I can finish the renovations and sell the house. Upon selling [the A Street property], this asset will also be split equally. All expenses relating to preparing [the A Street property] for the sale will be shared equally. The time frame allocated to the sale of [the A Street property] is maximum 6 months, unless otherwise agreed to in writing at which time, either party may force the sale of the home and settlement of assets, or receive payment from the other party.
In my view, if this can be seen as an order it was more a statement of intention by the parties at that time and clearly was superseded by subsequent orders.
Three property orders were made by Federal Magistrate Jarrett on 30 January 2008, 20 June 2008 and 7 May 2009.
On 30 January 2008 interim orders were made as to parenting and the payment of the mortgage, including that “so long as the [husband] occupies the former matrimonial home at [A Street] he shall promptly make all repayments as and when they fall due in respect to the mortgage over the property” (order 6).
On 20 June 2008 orders were made by consent that the parties would do all things necessary to effect a sale of the former matrimonial home. The orders also provided that in the event of the property not being sold from listings, the parties procure a sale by public auction four weeks after the deadline date for sale by private treaty, and if necessary a further public auction within eight weeks of the first auction (order 1).
In addition to those 20 June 2008 orders the parties agreed to provide to one another, via the wife’s solicitors, documentation as to joint debts and moneys paid by the husband post-separation, and joint debts shared by the parties as at separation (order 2). Order 3 of those orders provided:
3.That upon completion of the sale, the proceeds of sale shall be applied as follows:
a)Firstly to pay all costs, commissions and expenses of the sale and to pay any Council and water rates and maintenance levies outstanding in respect of the matrimonial home;
b)Secondly to discharge the mortgage, if any, and any other encumbrances effecting the property;
c)Thirdly:
i)the sum equivalent to 57.5% of the net then remaining to the wife plus or minus any amount owed by her or to her pursuant to Order 2 above;
ii)the sum equivalent to 42.5.5% of the net then remaining to the husband plus or minus any amount owed by him or to him pursuant to Order 2 above.
By May 2009 the property had not been sold and the parties agreed that the husband would purchase the home at a purchase price of $254,000. The orders made 7 May 2009 varied part of the orders of 20 June 2008 by consent of the parties. The 7 May 2009 orders were expressed to be “By consent by way of final order with respect to property proceedings”. The order relating to the listing and auction of the property was deleted, and replaced with:
1.That the final Orders with respect to property proceedings made in the Federal Magistrates Court on 20 June 2008 be varied by deleting clause 1 and inserting the following paragraphs in its place:
That the Applicant Wife shall transfer all of her right, title and interest in [the A Street property…] to the Respondent Husband upon the sealing of these Orders. The Applicant Wife accepts that she shall be responsible for all costs, commissions and expenses of transfer with the exception of the Respondent Husband’s legal, duty and registration outlays. She will further be solely responsible for repayment and release of registered mortgage no […] (in favour of [the wife’s solicitor] and [Mr R]).
That the Respondent Husband will pay to the Applicant Wife the sum of TWO HUNDRED AND FIFTY FOUR THOUSAND DOLLARS ($254,000.00) within thirty (30) days of the sealing of these Orders, to be distributed as follows:
(a)To repayment and release of registered mortgage number […] currently secured by [the A Street property] ; and
(b)As to balance monies:
(i) The sum equivalent to 57.5% of the net then remaining to the Applicant Wife; and
(ii) The sum equivalent to 42.5% of the net then remaining to the Respondent Husband.
(original emphasis)
It was correspondingly ordered that order 3 of the 20 June 2008 orders be deleted (being the provisions upon sale of the house) but that the remainder of those orders remain in full force and effect. There appears to have been an oversight however in deleting the entirety of order 3 of 20 June 2008, as the adjustments to be dealt with at settlement in relation to the separation and post separation liabilities, pursuant to order 2 of the 20 June 2008 orders, were not repeated in the new orders. As will be seen however, Federal Magistrate Spelleken considered, correctly in my view, that these liabilities were still to be taken into account.
The husband ceased paying the mortgage and as a result the bank took steps including instructing solicitors. The settlement of the sale of the house took place on 17 July 2009 when the sum owing to the bank (including solicitor’s fees) was $166,645.18. The husband had lived in the house from October 2007 until settlement of the sale.
In an affidavit from the solicitor for the wife filed 18 November 2010 it was explained that the effect of the non-payment of the mortgage was that fees for the default and fees for the solicitors were incurred in the sum of $3,708.00. In summary the solicitor for the wife explained the wife’s claim as follows:
6.Pursuant to the same Order referred to in 5 above the wife claims the following:
$4,748.56being half of the Visa Account at end of April 2007 ($9,498.13)
$3,000.00being payments she made on the mortgage home loan after Order 6 of the Order 30.01.2008
________
$7,748.56Total
Now produced and shown to me and marked “PFP7” is a true and correct copy of the BankWest Gold Card Statement for the period 11.04.2007 to 09.05.2007.
Accordingly at settlement an adjustment was required (but as yet not made) to the wife of $3,720.15 ($7,748.56-$4,028.41).
The wife’s application was first mentioned before Federal Magistrate Spelleken on 22 November 2010. The husband was ordered to file material and the matter adjourned. An outline of case document was filed by the husband on 17 February 2011. In that document he asked that the property orders be varied.
The wife’s initiating application filed 20 January 2010 seeking enforcement of property orders referred only to Order 6 of those made 30 January 2008, that the husband would make all mortgage repayments so long as he occupied the former matrimonial home. However in her case outline filed 7 February 2011, it became apparent that the wife sought enforcement also of Order 2 of
20 June 2008 and Order 1 of 7 May 2009.
On 30 July 2010 the husband filed an application in a case, seeking that the wife’s enforcement application, “together with [his] applications for contravention and contempt [be] listed to be heard in Hervey Bay”. The enforcement application was heard by the Federal Magistrate at Hervey Bay on 23 February 2011, and orders and reasons were delivered at Brisbane on 1 November 2011.
Reasons of the Federal Magistrate
In the reasons for judgment, the Federal Magistrate set out the previous orders related to the enforcement determination to be made by her.
4.The particular orders that are relevant to the application currently before the Court include Order 6 of the orders made 30 January 2008 which provided as follows:
“That so long as the respondent occupies the former matrimonial home at [A Street] he shall promptly make all repayments as and when they fall due in respect to the mortgage over the property.”
5.Order 2 of the orders made 20 June 2008, (being the final property order) provided as follows:
That by Friday 11 July 2008, each party will present to the other, via the wife’s solicitors, the following documentation:
i)By the husband: invoices and receipts from [Business C], along with bank statements confirming any and all payments of rent made by the husband for the [Business S] from separation to the present
ii)By the husband: invoices and receipts from BarterCard, along with bank statements confirming any and all payments of the wife’s BarterCard account made by the husband from separation to the present
iii)By the wife: bank statements confirming the balance of the Visa and AMEX Credit Cards at separation
iv) By the wife: bank statements confirming any and all payments made by her to the mortgage from 30 January 2008 (being the date upon which Order 6 of the Order of 30 January 2008 was made) to the date of settlement
Upon receipt of the documents above, the wife’s solicitors will advise each party in writing of their respective totals and consequent amount to be adjusted at settlement.
…
10. Order 3 of the orders of 20 June 2008 provided that:
On the sale of the home the sale proceeds be used firstly to pay all costs, commissions and expenses on the sale, secondly to discharge the mortgage, thirdly the sum of 57.5% was to be paid to the wife plus or minus any amount owed to her pursuant to Order 2 and the sum equivalent to 42.5% of the net then remaining was to be paid to the husband plus or minus any amount owed by him or to him pursuant to Order 2.
(original emphasis)
The Federal Magistrate then turned to a determination of the claims and liabilities of the parties in order to fulfil the property orders of 20 June 2008.
The Federal Magistrate said:
6. Having regard to all of the material filed on behalf of the parties, including the lengthy Case Outline provided by the husband, I accept the evidence of the wife that pursuant to Order 2, the husband can claim the following amounts:
a) $428.41 for [Business C] property rent
b) $2,800 for [Business C] property rent
c) $800 paid to the wife
Total $4,028.41
7.In relation to other payments the husband claimed he could make pursuant to order 2, I note Annexure PFP6 to the wife’s affidavit being emails from the husband to her on 27 June 2008. Having read that email however I accept the evidence of the wife that no proof of the payment of those sums has been provided to her or the Court and in those circumstances the husband is unable to make any further claim for the refund of any other expenses pursuant to this order.
8.In relation to that same order, the wife made the following claims:
a) $4,748.56 being half of the Visa account at the end of April 2007 which was a total of $9,498.13;
b) $3,000 being payments she made on the mortgage home loan after Order 6 of the orders made 30 January 2008.
Total $7,748.56.
9.Proof of the payment of those amounts appear at PFP7 of the affidavit of Mr Ponti [the wife’s solicitor] filed 18 November 2010.
…
11.Taking into account that I accept that the husband’s claim pursuant to Order 2 totals $4,028.41 and the wife $7,748.56 an adjustment should be made in wife’s favour pursuant to Order 3(c)(i) of $3,720.15 (calculated by $7,748.56 minus $4,028.41).
12.In relation to the other amounts claimed by the wife to be owed to her, I note, as mentioned earlier, the husband’s obligations pursuant to Order 1 of the orders of 30 January 2008 which provide that he was to promptly make all repayments as and when they fall due in respect of the mortgage over the property.
13.On the settlement of the sale of the former matrimonial home, pursuant to the order of 7 May 2009, it is not in dispute that the total amount owed to the mortgagee was $167,112.68 made up of the mortgage balance of $166,645.18 and an amount claimed by Gadens Lawyers for the enforcement of the payment of the mortgage of $467.50.
14.The balance available for distribution to the parties therefore was an amount of $86,887.32 from which an amount of $11,000 was paid to the trust account of the solicitors for the wife to meet special conditions under the contract. This amount is still retained in the trust account and available to the parties to be distributed as to 57.5% to the wife and 42.5% to the husband.
15.The balance at settlement that was available and was divided between the husband and wife as to 57.5% to the wife and 42.5% to the husband was $75,887.32.
16.The wife argues however, supported by documentary evidence, that had the husband met his obligations pursuant to Order 1 of the orders of 30 January 2008 the amount owed to the mortgagee would have been $149,186.78 and not $166,645.18. I note that the husband did not challenge that calculation but did argue, when the matter was before me, that the orders of 30 January 2008 were effectively discharged after the making of later orders by the Court and that he was therefore no longer required to make the mortgage payments.
17.It was explained to the husband at the hearing of this matter however that at law that was not correct and that his obligations to meet the mortgage payments continued from the making of those orders until the settlement of the sale of the property and the only way those obligations could have been discharged would have been with the consent of the wife or an order of the Court. It was further explained to the husband that an order of the Court may have been made if he had made an application to the Court to discharge him from that obligation for reasons such as his changed financial circumstances but no such application was made.
18.It was noted earlier that $11,000 from the net sale proceeds were paid to the trust account of the wife’s solicitors and that they are now available for distribution in accordance with the property order. Had the husband paid the mortgage payments however and after the deduction of $11,000 paid to the trust account, there should have been available for division between the husband and the wife the sum of $93,814 which would have meant a payment to the wife of $53,943.00 and not $43,635.21, a difference of $10,307. The wife then would have been entitled, pursuant to Order 3 of the orders of 20 June 2008 an adjustment in her favour, as referred to earlier, of $3,720.15, making the total that should have been paid to the wife at settlement $14,027 more than what she was actually paid.
19.In addition to that amount the wife is entitled to 57.5% of the monies held in the trust account of her solicitors which is an amount of $6,325.
20.The total amount therefore that is owed to the wife in accordance with the property order referred to earlier is $20,352.
21.To effect a payment of that amount to the wife, I accept that it would be appropriate to order that all of the monies held in the trust account of the wife’s solicitors be paid to her, namely $11,000, and that the husband be responsible for the balance of the monies owed to her, namely $9,352.94. I therefore make orders in accordance with the orders sought by the applicant wife.
(emphasis added)
In relation to the making of an orders for costs, which is also the subject of the husband’s appeal, the Federal Magistrate made reference to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) and found that:
24.In deciding to make an order for costs, I have taken into account the following:
a)The wife has been wholly successful in pursuing the husband for the enforcement of the property orders.
b)The husband may be in strained financial circumstances but that does not prevent a court from making an order for costs it may however affect the wife’s ability to recover the costs.
c)The husband’s reasons for refusing to at least release the monies from the solicitor’s trust account, namely that he believed his obligations to pay the mortgage prior to settlement were discharged in later order by Federal Magistrate Jarrett, was totally without merit,
25.In relation to the amount of those costs, I have had reference to the Federal Magistrates Court’s Scale of Costs and have determined, given the nature of this application, that the following amounts should be paid:
a)Stage 1A initiating or opposing application $1,760;
b)Solicitor’s attendance at Court on three occasions prior to hearing $720
c)Daily hearing fee – half day hearing $880
Total $3,360.00
(emphasis added)
Relevant Law
The husband’s grounds of appeal assert that the Federal Magistrate erred in the exercise of her Honour’s discretion. It is as well to recall the well settled principles in relation to appeals from discretionary judgments, as stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, where it was said by their Honours at 504-05:
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.
The husband’s appeal includes an appeal against the order for costs. Section 117 of the Act governs costs. The primary position is clear from the legislation, each party pays their own costs in proceedings unless there are justifying circumstances. There is no presumption that an order for costs will be made in favour of a successful party. Subsections 117(1), (2) and (2A) relevantly provide:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
It was said by the Full Court (Nygh, Smithers & Simpson JJ) in In the marriage of Robinson (1991) FLC 92-209 that although an appeal court should be very reluctant to interfere with the exercise of discretion in respect of costs, it can and should interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles”.
Furthermore, an appeal court will uphold an exercise of discretion to order costs (or refuse such an order) if it is apparent that there are appropriate reasons on which the judge could rely (see In the marriage of Greedy (1982) FLC 91-250).
Discussion
It became apparent in oral submissions that the husband particularly wishes to argue four grounds summarised as follows:
1.That the Federal Magistrate erred by not allowing the husband’s affidavit evidence and relying on the evidence of the wife only, specifically in relation to the husband’s failure to make the mortgage repayments.
2.
That the Federal Magistrate erred by giving insufficient weight to the husband’s evidence about the wife’s failure to comply with previous Court orders, specifically the consent orders made
20 April 2007 which provided that the wife would pay to the husband $20,000 upon settlement of the property sale to purchase his interest in Business S.
3.That the Federal Magistrate erred by failing to grant an adjournment of the proceedings to permit the husband to put his evidence properly before the Court.
4.That the Federal Magistrate erred by making orders which the husband did not have the capacity to pay.
Ground 1 – Failure to admit evidence
The husband submitted that his affidavit in support of his response to the wife’s application had been refused filing by the Registry because of “technicalities”.
Counsel for the wife submitted that although the husband had not been permitted to file the affidavit by the Registry, it was nonetheless before the Federal Magistrate. It was further submitted that even if this were not the case, had the affidavit had been formally filed and read the orders would not have been any different, because the husband’s affidavit essentially sought to challenge the original substantive property orders.
The affidavit in question, dated 15 February 2011, is contained inside the Court file, however it is not recorded as having been filed.
Having obtained the transcript (or such part that is available) it is quite clear that there was discussion about this affidavit and despite its limitations was accepted by the Federal Magistrate (see transcript p.14 commencing l.9). The reference to rejecting any document for “technical difficulties” was in relation to a contravention application of the husband, not served on the wife (transcript p.14 l.32-34).
The contentious affidavit – did the Federal Magistrate take into account the husband’s evidence?
Read carefully it is difficult to find any relevant evidence to the application before the Federal Magistrate. In the affidavit the husband:
·Contended that he believed that he was not obliged to pay the mortgage and was otherwise argumentative about appropriateness of past orders and made allegations about the conduct of the wife not relevant to the issue before the Federal Magistrate;
·Made reference to orders made in the State Magistrate’s Court which were superseded;
·Complained that the wife’s conduct delayed the sale of the home;
·Alleged incompetence of his own lawyers and made serious allegations about the ethical standards of the wife’s lawyers;
·Challenged the existing orders as to the percentage division and sought a re-hearing from the commencement of proceedings.
Annexed to the affidavit were the following documents:
1)Order made in the State Magistrates Court – also in his application and affidavit filed 23 July 2007;
2)Orders made by Federal Magistrate Jarrett on 30 January 2008 (order 6) and 20 June 2008;
3)Orders made by Federal Magistrate Howard on 7 May 2009 – variations orders and 21 July 2009 – parenting orders;
4) Correspondence about children’s matters;
5)Tenancy agreement regarding the former matrimonial home between the parties that the husband be the tenant and pay the mortgage;
6)Affidavit of Mr V regarding an ‘incident of 30 October’ where it is alleged that the wife and her boyfriend broke into the house removing property;
7) List of property;
8)Letter and other invoices from BarterCard dated 20 January 2009 demanding the sum of $1,373.82 associated with Business S;
9)Letter from Business C demanding $3,228.41 arrears rent on shop (Business S rent);
10)Various accounts from Ergon Energy relating to the shop and other documents not relevant including registration renewal for the dog, parts of affidavits and reports and emails.
At no time did the husband comply with paragraph 2 of the orders of 20 June 2008 and provide a list of amounts that he claimed that he was owed along with evidence to support such a contention. Additionally, he did not provide any evidence of those amounts that he had paid when he had the opportunity.
The content of the affidavit is largely focussed on the husband’s complaints about the wife’s failure to comply with the specific details of the 20 June 2008 orders relating to listing and selling arrangements of the former matrimonial home.
At the appeal hearing the husband said that he had paid the mortgage up until the time the wife “refused” to list the home, and he considered this a “reasonable excuse” to not comply with order 6 made 20 January 2008 that he make the mortgage payments so long as he remained in the home. The husband also alleged that the wife and her new partner had “broken in” to the house and taken items belonging to the husband. It was the husband’s contention that the wife’s behaviour in effect absolved him of the responsibility to continue paying the mortgage.
The husband asserts that the Federal Magistrate further erred in giving preference to the evidence of the wife about his failure to make the mortgage repayments.
It was submitted for the wife that the husband had lived in the house for the entire period and notwithstanding his alleged reasonable excuses for failure to pay, he had still been required by the 20 June 2008 orders to make the mortgage repayments.
In the reasons for judgment, the Federal Magistrate noted the husband’s opposition not to the calculations about the mortgage payments but rather his obligation to pay. Before her Honour the husband had argued that the orders were effectively discharged after the making of later orders by the Court and that he was therefore no longer required to make the mortgage payments.
Her Honour recorded in the reasons for judgment that she had explained to the husband at the hearing, correctly in my view, that his obligation to continue to make the repayments continued up until the settlement of the sale of the property and the only way in which he could have been discharged from that obligation was by consent of the wife or an order of the Court. Her Honour noted that no application for such orders had been made by the husband.
The husband’s affidavit was accepted into evidence by the Federal Magistrate. However, in addition to the affidavit, it is clear that these matters were raised by the husband in his case outline, which was understood, read and mentioned by the Federal Magistrate in her Honour’s reasons. It is clear that the obligation to make the mortgage repayments had not been terminated and no “reasonable excuse” was available or relevant. The affidavit of the husband was of very little assistance to the Federal Magistrate.
Accordingly, this ground of appeal is not made out.
Ground 2 – Failure to consider earlier orders
The husband contends that the Federal Magistrate erred by not having regard to the consent orders made by the parties on 3 May 2007 at the State Magistrates Court, which provided that the wife would pay to the husband $20,000 for his share of Business S, to be settled as the time of sale of the former matrimonial home.
The husband suggested that the Federal Magistrate should have understood the husband was owed $20,000 and that her Honour erred by not factoring this amount in to the determination of the enforcement application.
It was submitted for the wife that the final property orders made 20 June 2008 amounted to a variation by consent of those earlier orders.
In the reasons for judgment, the Federal Magistrate did not make reference to the consent orders made at the State Magistrates Court. The complaint of the husband about these orders was raised in his case outline, which was read by her Honour. The order itself was contained in the wife’s material before her Honour.
Reference to the transcript (p.17 commencing at l.40, p.32 commencing at l.20 and p.33 l.33) demonstrates that the husband raised this issue before the Federal Magistrate. Ultimately the Federal Magistrate explained that should the husband wish to pursue this argument the only avenue available was a s 79A application (transcript p.34 l.5).
It is important to recall that the parties had appeared in the Federal Magistrates Court for the purposes of adjusting the substantive property orders on numerous occasions after the 3 May 2007 orders were made. Having had the opportunity to raise the consideration and incorporation of those consent orders on occasions where substantive orders were being made, it would have been unreasonable and unfair to the wife for the Federal Magistrate to take the consent orders into account in enforcement proceedings.
No error on the part of the Federal Magistrate has been demonstrated and this Court cannot provide the relief which the husband seeks.
Ground 3 – Denial of procedural fairness
This ground appears to be a complaint about a denial of procedural fairness. The husband submitted that the Federal Magistrate erred by failing to grant an adjournment of the proceedings in order to put his evidence properly before the Court.
In addition to an adjournment being required to file his evidence, the husband asserts an absence of procedural fairness by submitting it was his understanding, based on his recollection of the hearing, that another hearing would be held subsequently. In particular the husband recalled the Federal Magistrate had said there would be another hearing by telephone appearance, where her Honour might have directed the husband to supply his evidence. Although only part of the transcript is available, that which can be read demonstrates clearly that the Federal Magistrate said the matter was to be heard before her that day.
The husband also referred to the orders having been made eight months after the matter was heard. It was not suggested by the husband that this delay was so unreasonable as to constitute a ground of appeal. Instead he referred to the delay in support of his suggestion that the Federal Magistrate may have forgotten with the lapse of time that she had, at the time of the hearing, indicated or directed there would be another hearing.
Counsel for the wife submitted his instructions were that no adjournment application could be recalled by the wife, or at least no formal application had been made.
In any event, the husband had an opportunity to file material and make submissions. It is not apparent how an adjournment would have assisted him.
This ground must also fail.
Ground 4 – Failure to consider capacity to pay
Ground 4 asserts that the Federal Magistrate erred by making substantive and costs orders which the husband did not have the capacity to pay. It is important to distinguish between the substantive property orders made in the determination of the enforcement application, and the costs order made against the husband in respect of that application. The former orders were that the husband pay to the wife $9,352.94 within 28 days, and that the $11,000 held in trust by the wife’s solicitor be paid to the wife.
The husband did not cavil, neither at the hearing of the enforcement application nor in the appeal, with the calculations in relation to the mortgage repayments, which resulted in the order that he pay monies to the wife.
The proceedings being for enforcement of property orders which had not been appealed by the husband, the capacity of the husband to meet those orders was not relevant to the making of the orders. Nor does the incapacity to pay appear to be an argument put forward by the husband before the Federal Magistrate. It should be noted that the Federal Magistrate did discuss with the parties the financial implications of the application (see transcript p.19 and following).
In the appeal, the husband did not make extensive written or oral submissions on this ground and in the absence of further submissions in support, it must be concluded that no appealable error has been demonstrated.
Additional ground – Date of separation
At the appeal hearing the husband also raised an additional issue further to the grounds of appeal. This was in relation to the date of separation used by the Federal Magistrate in her Honour’s calculations of liabilities between the parties. In particular, the husband says the calculations as to his share of the credit card expenditure were incorrect, because the date of separation used was April 2007, the date adopted by the wife in her material before the Federal Magistrate. At this time, the amount owed on the credit card was approximately $11,000. The husband submitted that a large portion of this sum was attributed to plastic surgery expenditure, a holiday to Melbourne and personal shopping by the wife. The husband submitted that the separation date was in fact December 2006, at which time the amount owed on the credit card was nil.
In response, counsel for the wife submitted that the April 2007 date was the time at which the parties separated financially, as distinguished from relationship separation generally. It was further submitted that the wife was still living in the former matrimonial home up until that time, and the expenditure on the credit card was for reasonable household expenses. Counsel referred to statements annexed to the wife’s solicitor’s affidavit of 18 November 2010 which demonstrated also that the transactions did not occur in Melbourne, as the husband had asserted in support of his purported December 2006 separation date.
The submissions of the husband were canvassed in essentially the same terms in the husband’s case outline, which the Federal Magistrate read, as expressly stated in her Honour’s reasons. In addition, the husband made submissions about this topic before the Federal Magistrate (see transcript p.29).
That the Federal Magistrate did not address at length the husband’s assertions raised in the affidavit and or the case outline in relation to the matters contained in the grounds of appeal cannot be said to be in error, because the content was largely irrelevant to the determination of the enforcement application before her Honour.
It cannot be said therefore that the Federal Magistrate erred by failing to conduct a further hearing or by adopting the wife’s April 2007 separation date, which was reasonably open on the evidence, for use in the determination of the enforcement application. This additional ground of appeal therefore fails.
Costs Appeal
In relation to the costs order made by the Federal Magistrate which ordered the husband pay the wife’s costs of the application fixed in the amount of $3,360, the husband submitted the Federal Magistrate erred in finding that the wife was wholly successful in the proceedings because “none of [his] evidence was taken into account, and [he] didn’t have sufficient time or money…to get legal advice”.
The wife was successful in her application and was entitled to an order for costs for the reasons given by the Federal Magistrate. The submission that the Federal Magistrate did not take into account his evidence is not supported by reference to the transcript. In addition, the wife was wholly successful and put to the expense of bringing the application.
Applications in the Appeal
Application to adduce further evidence
The husband filed an application in the appeal which can be taken as an application to adduce further evidence. The husband’s further evidence application is opposed by the wife. The principles pertaining to further evidence being adduced in appeals are well settled, as stated by the majority (McHugh, Gummow & Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 in particular, as relevant to this matter at page 201:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
The proposed evidence is an affidavit of the husband filed 23 April 2012. It includes an undated home loan approval document from Westpac bank in the husband’s name, an overdue Child Support account statement dated
18 April 2008, correspondence between the husband and the wife’s solicitor, letters advising of a settled BarterCard account, credit card statements, and police records of the husband’s complaints about the wife’s trespassing on the former matrimonial home property and breach of domestic violence orders.
It is difficult to understand the relevance of these documents as it is unexplained in the affidavit. Some documents go to the issue of when the parties separated, to which reference has already been made. As to accounts the husband said he has paid, this is not the method to prove such debts as prescribed in the orders. In addition, the husband had the opportunity to place such documents before the Federal Magistrate.
Otherwise the affidavit contains assertions about the wife’s refusal to cooperate with the sale of the home and conduct by her which the husband says has affected him.
Counsel for the wife submitted that all the evidence sought to be adduced in the appeal was before the Federal Magistrate at the time of the hearing. In the application, the husband himself states that the evidence he seeks to adduce had already been filed in the substantive proceedings.
The evidence contained in the father’s affidavit in this application is not contained in the affidavit which he put before the Federal Magistrate at the hearing. Insofar as the Federal Magistrate only considered the materials specifically referred to by the husband, this evidence was therefore not before her Honour.
The evidence is not however fresh evidence. It was available at the time of the hearing, and the husband had been given an opportunity to put any available evidence he wanted to rely on before the Court. If the evidence had been previously filed as the husband says, he could have asked the Federal Magistrate to consider those documents in which the evidence was already contained.
The further evidence sought to be adduced does not fall into any of the categories as described in CDJ v VAJ. The application should be dismissed.
Conclusion
The grounds of appeal have no merit. The appeal should be dismissed.
Costs
In the event that the appeal was successful, counsel for the wife requested a costs certificate for the appeal and the rehearing. In the event that the appeal was unsuccessful counsel confirmed the wife seeks costs, based on the husband’s purpose in mounting the appeal being largely to have a rehearing of the parties’ property entitlements.
The husband submitted that he had no capacity to meet a costs order and explained his financial circumstances as having no assets beyond his liabilities and being dependent on a disability pension.
Although the appeal was without merit, I take into account the order made in the enforcement proceedings that the husband pay the costs and his current financial circumstances. There should be no order as to costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 27 July 2012.
Associate:
Date: 27 July 2012
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