Brouwer & Brouwer
[2023] FedCFamC1A 224
•12 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Brouwer & Brouwer [2023] FedCFamC1A 224
Appeal from: Brouwer & Brouwer (No 4) [2023] FedCFamC2F 1145 Appeal number: NAA 234 of 2023 File number: BRC 9061 of 2022 Judgment of: AUSTIN J Date of judgment: 12 December 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from orders made by a judge refusing his application to review orders made by a senior judicial registrar (“the registrar”) – Where the wife commenced proceedings against the husband for financial relief – Where the husband failed to diligently engage with the proceedings – Where the matter was set down for undefended hearing and the husband did not attend – Where the registrar made final orders on an undefended basis – Where the husband sought to set aside the final orders on account of his absence – Where the orders were varied slightly under the slip rule, but otherwise the husband’s application was dismissed – Where the husband filed an Application for Review – Where the primary judge dismissed the review application and made procedural orders as to the later determination of costs – Where the husband did not file a Summary of Argument and failed to attend the appeal hearing – Where the procedural orders do not infringe the husband’s right in any way and so do not constitute a judgment from which an appeal competently lies – Where the husband’s assertion that the primary judge failed to have regard to the totality of the evidence is demonstrably false by advertence to the primary judge’s reasons for judgment – Where the husband’s contention that the primary judge made a mistaken finding is false – Appeal dismissed – Where the wife did not seek costs. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33 and r 10.13
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 38 Date of hearing: 12 December 2023 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Litigant in person (did not participate) Solicitor for the Respondent: Cherry Family Lawyers ORDERS
NAA 234 of 2023
BRC 9061 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BROUWER
Appellant
AND: MS BROUWER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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 Brouwer & Brouwer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal by the husband from orders made on 31 July 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 2) refusing his application to review orders made by a senior judicial registrar (“the registrar”) on 1 March 2023 and 5 June 2023.
Background
The parties married in 1997 and finally separated in 2020.
Two years later, in July 2022, the wife commenced proceedings against the husband for financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The husband failed to diligently engage with the proceedings. He threw the wife’s initiating process in the bin and failed to appear at Court events, save on one occasion in December 2022. He also failed to file any Response, financial statement, or disclosure undertaking, thereby deliberately disobeying multiple procedural orders requiring him to do so.
In January 2023, in the face of the husband’s persistent default, the proceeding was set down for undefended hearing on 1 March 2023. The husband did not attend the hearing. The proceeding was listed before the registrar, who then gave the wife leave pursuant to r 1.33(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to proceed with her application for financial relief on an undefended basis.
As the primary judge later summarised, the final financial orders made on 1 March 2023 by the registrar divided the parties’ property (including superannuation interests) in proportions of 55 per cent to the wife and 45 per cent to the husband (at [27]–[37]).
On 29 March 2023, the husband filed an Application in a Proceeding seeking to set aside the orders on account of his absence when they were made, relying upon r 10.13(1)(a) of the Rules. The application was subsequently amended and ultimately heard on 25 May 2023, at which time the husband did appear. Judgment was reserved, but then delivered on 5 June 2023. The orders made on 1 March 2023 were varied slightly under the slip rule, but otherwise the husband’s application to set aside the orders was dismissed (at [47]–[50]).
On 7 June 2023, the husband filed an Application for Review, which the primary judge treated as a review of both the final financial orders made on 1 March 2023 and the dismissal orders made on 5 June 2023 (at [52]).
The application to review the final financial orders was well out of time and the primary judge dismissed the application for leave to prosecute it (at [53]–[58]). The husband suffered no prejudice because, as the primary judge observed (at [57]), if he successfully reviewed the dismissal orders later made on 5 June 2023, that would re-open the opportunity to challenge the orders made on 1 March 2023.
In respect of the review of the orders made on 5 June 2023, the primary judge correctly recited the legal principles by which her Honour was bound when hearing afresh the husband’s application to set aside or vary the orders made on 1 March 2023 pursuant to r 10.13(1)(a) of the Rules (at [59]–[62]).
As her Honour correctly summarised, it was necessary to consider several factors, being: first, the reasonableness of the explanation offered by the husband for his absence from the Court on 1 March 2023 when the orders were made; secondly, any argument advanced by him that might reasonably result in different orders being made if the original proceedings were to be re-opened; and thirdly, any prejudice which might be borne by the wife if his application to re-open the original proceedings was granted.
Relevantly, the primary judge found:
(a)the husband failed to advance any reasonable explanation to excuse his absence from the hearing before the registrar on 1 March 2023 (at [63]–[92]);
(b)the husband failed to show that different orders from those made on 1 March 2023 might result if he was permitted to re-open the proceedings, adduce evidence and make submissions (at [93]–[119]); and
(c)the wife would be prejudiced if the husband was permitted to re-contest the orders made on 1 March 2023 (at [120]–[124]).
The primary judge therefore dismissed the review application (Order 1) and made procedural orders to enable the residual question of costs to be determined later (Orders 2–5).
The appeal
The husband asserts his intention to appeal from all orders made by the primary judge, but only Order 1 is pertinent. The remaining orders do not infringe his rights in any way and so do not constitute a judgment from which an appeal competently lies (Commonwealth v Mullane (1961) 106 CLR 166 at 169).
The husband sought leave to appeal but, given how the dismissal of his review application terminates his rights in respect of the original proceedings under Pt VIII of the Act, it can be treated as a final order and leave to appeal is unnecessary.
The appeal, as pleaded in the Notice of Appeal filed on 28 August 2023, comprises three grounds, though none is styled as a ground of appeal which properly lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505).
The husband failed to file any Summary of Argument and failed to attend the appeal hearing. However, rather than dismiss the appeal by reason of his failure to prosecute it diligently, the appeal is dismissed for lack of merit.
Grounds 1 and 2
These two grounds assert the primary judge “erred in failing to have regard to the totality of the evidence” – first in relation to the husband’s “long-standing mental health difficulties” (Ground 1) and secondly in relation to his “physical health difficulties” (Ground 2) – in so far as such evidence might, either individually or in combination, explain his absence from the hearing before the registrar on 1 March 2023.
The inherent premise of the grounds – of failing to have regard to evidence – is demonstrably false by advertence to the primary judge’s reasons for judgment.
Her Honour expressly referred to the evidence adduced by the husband in the review hearing (at [68], [69] and [88]) and, upon analysis of the evidence, found it did not explain the husband’s absence from the hearing before the registrar on 1 March 2023, or at any anterior court event (at [66], [69], [74], [77] and [92]). There is no complaint now made in the appeal that the primary judge made mistaken findings on the available evidence. The complaints are really only that the primary judge could or should have been persuaded otherwise by the evidence, which are not proper grounds of appeal.
More to the point, the primary judge observed that, during the review hearing, the husband conceded he made a deliberate decision not to participate in the hearing conducted by the registrar on 1 March 2023 (at [85]), which means no amount of evidence about his medical condition supposedly precluding his attendance at court that day could have been relevant to the determination of the review application (at [87]). The husband could not maintain mutually inconsistent arguments, on the one hand, conceding he deliberately did not appear, yet on the other, asserting his desire to attend was thwarted by his medical condition.
Self-evidently, the primary judge did have regard to the evidence adduced by the husband, but was unsatisfied by it. The dual claims of her Honour “failing to have regard to the totality of the evidence” are untrue. These grounds fail.
Grounds 3(a) and 3(b)
These sub-grounds contend the primary judge erred by finding that no submission advanced by the husband permitted a conclusion that the orders made on 1 March 2023 might be set aside or varied if he was permitted to re-contest them.
The conclusion was expressed by the primary judge in these terms:
119.Although it could not be said that there is no prospect whatsoever that a different outcome would result if the orders were set aside and the matter proceeded to trial, like the Senior Judicial Registrar, I am not satisfied that the Husband has met his onus of demonstrating that setting aside the final orders would lead to a different outcome.
The sub-grounds assert the finding was mistaken for two reasons: first, the failure to take into account evidence of the husband’s potential liability to B Pty Ltd; and secondly, the failure to take into account how a debt owed to the parties’ self-managed superannuation fund by C Pty Ltd might not be recovered and could not be recovered by the husband alone.
Both contentions are false.
The primary judge considered the evidence adduced by the husband about the personal guarantee he gave to B Pty Ltd in relation to loans he raised between June 2021 and February 2022 through a corporate entity he alone controlled (at [98]). That corporation was liquidated and the evidence showed B Pty Ltd sued the husband personally in late 2022, presumably in reliance upon his guarantee of the corporation’s performance of the loan. However, as at the time of the hearing before the primary judge in July 2023, there was no evidence to prove the claim was being pursued against the husband (at [98]). Even if the claim was still being pursued against him, the primary judge found he had guaranteed a post-separation loan by B Pty Ltd to a corporation he controlled, the wife had nothing to do with the relevant financial transactions, and the husband’s personal liability would be quarantined from the pool of assets available for division between the parties (at [101]–[106]).
Evidently, the primary judge did have due regard to the evidence about that potential liability.
The parties were the directors of the corporate trustee of their self-managed superannuation fund. In the original hearing, the wife adduced evidence that, without her knowledge or consent, the husband transferred money from the superannuation fund to C Pty Ltd and then caused C Pty Ltd to transfer the money to another corporation he controlled. The husband conceded those facts to the primary judge in the review hearing (at [112]). The primary judge accepted the wife’s submission that the dissipation of such money from the superannuation fund would be notionally added-back and treated as an asset enjoyed unilaterally by the husband if the proceedings were re-heard, in which event there was no advantage to be gained by the husband in re-contesting the financial orders on account of that issue (at [113]).
Again, the primary judge did have due regard to the evidence about his unilateral use of the money from the superannuation fund. Whether or not the money could later be recovered by or on behalf of the superannuation fund was immaterial when it would be assumed the husband had already benefitted from use of the money.
Ground 3(c)
This sub-ground asserts the primary judge erred by making an order for the self-managed superannuation fund to be wound-up.
At the outset, it must be clarified that the primary judge made no such order. The registrar made orders to that effect on 1 March 2023. The primary judge was only freshly considering whether the husband should be permitted to re-contest that order.
The orders made by the registrar ensured the husband would retain the totality of the parties’ respective interests in the superannuation fund (Order 16), required the husband to indemnify the wife against any liabilities arising from her involvement with the superannuation fund (Order 18), and required the parties to co-operate to wind-up the superannuation fund and roll-out the husband’s superannuation entitlements to another fund (Orders 19 and 20).
In respect of the husband’s grievance about those orders, the primary judge said this:
114.The Husband expressed a grievance about the self-managed superannuation fund being wound up pursuant to the orders before the debt owed to the fund by the third party is repaid if the orders are not set aside. I note, however, that the debt owed to the superannuation fund, if legitimate, is an asset of the fund, and would therefore form part of the benefits held in the fund which are to be rolled over pursuant to the final orders. The orders do not prevent the loan from being called and in and repaid if that is necessary to give effect to their terms.
The husband failed to articulate how that conclusion was wrong.
By the orders made on 1 March 2023, the wife is compelled to co-operate with the husband in the exercise of their duties as directors of the corporate trustee to wind-up the superannuation fund. That process would entail them acting to cause the corporate trustee to recover any debts owed by third parties to the superannuation fund. The fact the corporate trustee may not be able to recover debts owed to it by other corporations controlled by the husband and to whom he unilaterally advanced superannuation fund monies without the wife’s consent, is a natural consequence of his actions. It is not a feature of the evidence which impugns the primary judge’s decision, in a review of the registrar’s decision, to reject his application to re-open the financial orders.
Disposition
The appeal is dismissed.
The wife did not seek costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 13 December 2023
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