Bryson & Bryson
[2024] FedCFamC1A 32
•20 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bryson & Bryson [2024] FedCFamC1A 32
Appeal from: Bryson & Bryson [2023] FedCFamC2F 997 Appeal number(s): NAA 261 of 2023 File number(s): CAC 1439 of 2021 Judgment of: RIETHMULLER J Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge took into account evidence that was struck out or not read – Where irrelevant considerations material to outcome – Where the primary judge did not accept that there was family violence despite evidence to the contrary – Appeal allowed – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) ss 79, 102NA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Reserve Bank Act 1959 (Cth) s 85A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: British South Africa Co v Companhia de Moçambique [1893] AC 602
Cassell & Kolar (No 5) [2023] FedCFamC1F 478
Galloway & Midden (No 2) (2014) FLC 93-586; [2014] FamCAFC 60
Manderville & Borah [2021] FedCFamC1A 59
Saltern & Mink [2020] FamCAFC 320
Number of paragraphs: 43 Date of hearing: 29 February 2024 Place: Parramatta, via Microsoft Teams Counsel for the Appellant: Mr Gardiner Solicitor for the Appellant: Mazengarb Family Lawyers Counsel for the Respondent: Mr Stagg Solicitor for the Respondent: Hijazi Curran Cameron Lawyers ORDERS
NAA 261 of 2023
CAC 1439 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRYSON
Appellant
AND: MR BRYSON
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in Appeal NAA 261 of 2023 filed on 9 January 2024 be dismissed.
2.Appeal NAA 261 of 2023 be allowed.
3.Orders 7 to 11 made on 18 August 2023 be set aside and the matter be remitted for re-hearing.
4.The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The respondent be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the new trial ordered.
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 Bryson & Bryson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The wife appeals from a property settlement judgment delivered on 18 August 2023 where the primary judge found that it was appropriate to divide the property of the parties in Australia equally.
The parties married when the wife was 28 and the respondent husband was 33. They separated 26 years later. The two significant issues at trial were claims by each party that the other has property in Country C and claims by the wife that her contributions were made more arduous as a result of family violence.
The primary judge concluded that there was no evidence that property of the husband in Country C had any realisable value (at [50]). The husband said that the land consisted of small parcels in which his sisters had an interest according to customary law, which have to be transferred to the next generation of male family members as a result of Country C law. The husband’s claim was supported by the fact that there was no evidence of any money being paid by or to the husband concerning this land in the last 29 years. The husband said that he had no intention of returning to Country C as he published an article critical of the government and fears he would be arrested if he returned. There was no evidence as to title nor valuation evidence led by the wife.
The primary judge was not satisfied to the requisite standard that the wife held property in Country C. The husband’s attempts to obtain evidence as to the value of land he alleged that the wife holds in Country C were unsuccessful. Whilst the husband had the benefit of an order for the appointment of a joint expert, the wife wrote to various Federal Ministers advising, inter alia, “My brother has the authority to shoot anyone who gets near the [property] like everyone who works there. It is a risky place. If anyone gets hurt, who is going to be responsible? Definitely not my brother, things do not work like here. Me? Not at all.” The husband took this as a serious threat and decided not to put a valuer at the risk of harm. As a result, there was no evidence as to what the wife had title to in Country C, if anything, nor was there valuation evidence.
The wife made significant claims of family violence including “physical assaults”, “sexual assaults”, “controlling behaviours of various types at various times”. The primary judge was not satisfied the husband had engaged in family violence during the relationship, nor that there was a “basis for the wife’s contributions to be considered as more difficult or harder so that they should be accorded any greater weight” ([97] of Reasons).
The primary judge said that the wife did not provide particulars of any alleged incident and that, despite annexing 225 pages of medical records to her affidavit, she was unable to point to any of the records that were said to support her claims of family violence. The wife’s refusal to highlight the evidence of significance in the hundreds of pages of material before the court made it needlessly difficult for the primary judge.
The trial was made particularly difficult by the wife’s angry, garrulous, and often non-responsive evidence and advocacy. Having heard submissions from the wife directly in the appeal proceedings and having read the transcript of the trial, it is clear that the primary judge faced considerable difficulties when hearing the trial. The effect of the wife’s conduct at trial was entirely unhelpful and largely served to distract from the relevant matters the primary judge was required to consider. The wife’s conduct continued on the appeal, initially setting out grounds of appeal that were eight dot points, followed by 72 numbered questions, supported by a Summary of Argument that was 35 pages of a largely rambling general complaint. The prolix nature of the wife’s material was demonstrated by the fact that counsel who prepared the initial Summary of Argument for the husband was able to identify the 10 topics that appeared to be the basis of the wife’s complaints.
The day before the first listing for the hearing of the appeal, the wife filed an Amended Summary of Argument identifying the four substantive grounds of appeal that were ultimately argued. The husband was unrepresented, relying upon the Summary of Argument that had been prepared by his counsel. The husband’s Summary of Argument did not address the grounds now articulated by the appellant’s recently appointed counsel. The appellant was given leave to rely upon her Amended Summary of Argument and to amend the grounds of appeal to reflect those formulated in her Amended Summary. It was necessary to allow the husband time to have his counsel revise his Summary of Argument to address the grounds now being argued. The wife was ordered to pay the costs thrown away.
APPLICATION IN THE APPEAL FILED 9 JANUARY 2024
On 9 January 2024, the wife filed an Application in the Appeal. This application was not pursued at the hearing of the appeal. I therefore dismiss the Application in an Appeal.
GROUNDS OF APPEAL
It is convenient to address Ground 2 and Ground 3 first as these grounds go to procedural fairness.
Ground 2
2 That, by the point at which the Wife's Counsel completed the cross-examination of the Husband and was granted leave to withdraw from the proceedings, the learned primary Judge fell into error by failing to offer, and if necessary allowing, the Wife time to obtain alternative legal representation to continue with the hearing;
The appellant complains that at the time her counsel obtained leave to withdraw (at the conclusion of the respondent’s evidence as the first witness), the primary judge erred “by failing to offer, and if necessary allowing, the Wife time to obtain alternative legal representation to continue with the [h]earing”. The ground relies upon an argument that the primary judge had an obligation to offer the wife an adjournment to obtain alternative legal representatives.
The hearing of the matter was constrained by the operation of s 102NA of the Family Law Act 1975 (Cth) (“the Act”), which prohibited the parties from personally cross-examining each other due to the allegations of family violence. The effect of the provision, once engaged, is to present three alternatives to a party: first, they may engage their own lawyers (as the respondent did); or secondly, they may apply for a grant of aid under the funding scheme for the purpose of having a lawyer represent them in the proceedings; or thirdly, a party may choose to forego cross-examining their spouse. The appellant chose the second alternative. Lawyers, funded by the scheme, filed a Notice of Address for Service on 21 April 2024, well before the trial on 20 July 2023. The husband was represented by a solicitor and counsel throughout the hearing, and thus was unaffected by the restriction imposed by the section.
At the commencement of the trial, the wife’s counsel advised the court that he appeared for the wife “on a strict 102NA basis” (Transcript 20 July 2023, p.2 line 8) before asking for the matter to be stood down so that he could discuss preliminary matters and objections with counsel for the respondent, reiterating that his “role in the matter is, one, … dealing [with] preliminaries and objections, and, two, simply the cross-examination of the husband. I’m not instructed to go beyond that” (Transcript 20 July 2023, p.2 line 23). After dealing with objections to evidence, counsel for the appellant advised that whilst the appellant’s case outline “was prepared. I’m not instructed to file it. So I can’t assist your Honour in that way.” (Transcript 20 July 2023, p.20 line 25) and then said:
COUNSEL: I’ve dealt with the objections as a matter of fairness to my client because there’s legal technicalities involved with that. I’m not in a position to assist your Honour as to the construction of the pool … other than to indicate the documents my client relies upon. But, otherwise, the limits of my instructions are to solely, on a strict 102NA basis, cross-examine the husband. I’ve, nonetheless, despite those instructions, assisted my client in an attempt to assist your Honour and the court, ultimately, with a guide to – a written guide to the relevant matters she will need to address your Honour on, particularly in regards to this matter but also more generally as the law of property settlement would apply. And I can say to your Honour she’s an intelligent lady. She has understood those. And I’ve afforded her the opportunity, and will continue to do so, to raise with me any questions that might arise out of that material. So my brief, as it is, is solely cross-examination of the husband.
HIS HONOUR: And then you intend to depart the proceedings?
COUNSEL: With your … Honour’s leave, if your Honour gives it to me.
(Transcript 20 July 2023, p.20 line 31 to p.21 line 5)
The primary judge granted leave to the appellant’s trial counsel to withdraw and the wife continued without representation. At the time that counsel withdrew, he offered to speak to the appellant about the further conduct of the matter. The primary judge took up that option, adjourning the court for 10 minutes. After this, his Honour provided a summary of the court procedures and the relevant law (including arranging the provision of a copy of s 79 of the Act) to the appellant (Transcript 20 July 2023, p.65 line 46 to p.67 line 18).
The appellant did not seek an adjournment of the trial, either before the hearing commenced, when her trial counsel withdrew, nor upon the resumption of the hearing after counsel withdrew. There was no evidence before the primary judge to show the extent of the grant of aid, whether the withdrawal of the lawyers was upon the wife’s instructions, nor whether the wife had been advised before the hearing began that the lawyers intended to withdraw at the time that they did. The appellant did not seek leave to lead evidence as to these issues on the appeal.
The appellant relies upon two authorities. In Cassell & Kolar (No 5) [2023] FedCFamC1F 478, the mother’s barrister withdrew after consulting with the Ethics Committee of the Victorian Bar. The mother then sought an adjournment which was not opposed. The case is clearly distinguishable, involving an unforeseen loss of representation, and an unopposed adjournment application. In Manderville & Borah [2021] FedCFamC1A 59, the mother’s counsel was given leave to withdraw after advising that the mother had withdrawn her instructions (which the mother denied). The mother’s appeal on the basis that the trial judge in Manderville did not adjourn the proceedings was unsuccessful. Neither case addresses the circumstances that arose in this case.
The underlying principle is that litigants must be provided a reasonable opportunity to be heard. The application of the general principle to the variety of circumstances that confront trial judges depends upon the particular circumstances of each case. In this case, there is no complaint that there was inadequate notice of the date of the trial. It cannot be said that a party has not been afforded procedural fairness simply because the conduct of that party leaves them at a disadvantage, such as engaging representatives on a limited basis, failing to engage representatives, or failing to take advantage of the s 102NA funding scheme in a timely manner. To allow a party to have a trial adjourned (with the inevitable emotional and financial costs to the other party) simply because they have failed to arrange their representation (or make a timely application pursuant to the s 102NA scheme) or have only limited (or no) legal assistance, would impose an unfair burden upon the other party.
There is nothing to indicate that the withdrawal of the appellant’s counsel was unforeseen, nor that it was even the result of something other than the appellant’s instructions. The appellant was given an opportunity to take advice during a brief adjournment following her lawyer ceasing to act for her, and a proper opportunity to participate in the trial thereafter.
This ground of appeal is not established.
Ground 3.
3. That the learned primary Judge fell into error by relying in the reasons for judgment on material not before the court, namely affidavit material to which objection had been taken and which were not read in the proceedings; and
The appellant points to seven paragraphs in the reasons judgment ([14], [25], [43], [44], [91], [95], [107]) where the primary judge quotes from affidavits relied upon at trial, referring to passages that the parties had agreed not to read or rely upon. The primary judge therefore erred by taking into account irrelevant matters as those passages of the affidavits were not in evidence before him. However, an error on the part of a trial judge does not necessarily result in an appeal being allowed, for example, if the error is immaterial to the outcome or there is no miscarriage of justice: Saltern & Mink [2020] FamCAFC 320 at [43] and [44].
Whilst most of the passages were relatively innocuous (except the two significant passages at [25] and [43] of the Reasons, discussed below) the number of passages leads to the inference that the primary judge relied upon the unredacted versions of the affidavits when considering the matter as a whole. How much the other unredacted parts of the affidavits, which were not referred to in the judgment, may have impacted upon the fact finding by the primary judge is not able to be determined. However, none of the other redactions were relied upon by counsel for the appellant.
The second passage identified in argument was relied upon by the primary judge to make adverse findings concerning the wife’s credit. The primary judge said:
25 The wife’s evidence in chief is an abundance of baldly stated claims. As one example, the wife deposes that:
My family contributed financially assisting [Mr Bryson] and me from 1994 to 2019. My family gave cash to [Mr Bryson] and me, and our sons and on numerous occasions, my father gave [Mr Bryson] large sums of money including to buy plane tickets so that we could move to Australia. [Mr Bryson] never repaid any of these funds to my family. …
In total, the monies that were provided by my family to us are more than 300 million [Country C’s currency]. That money spent in [Country C] would be the equivalent of spending Australian dollars in Australia… At no point was any money provided to my bank account. They instead gave the money directly to us.26 For the purpose of this hearing, I take judicial notice that one Australian dollar buys up to 100 [Country C’s currency] which would put the amount given, not by bank transfer, but “directly to us” in the order of $3M AUD in cash. The wife deposes further that her family's non-financial contribution amounts to about $200 million [Country C’s currency] ($2M AUD). There is no direct or indirect evidence to support these extraordinary claims. Nor are there are any circumstances or indications in the lives of the parties that remotely suggest the use or existence of such sums.
(Bold and struck-through emphasis added)
The words in bold that are struck-through in the above quote are part of the wife’s affidavit that she had not read at the trial. While s 85A of the Reserve Bank Act 1959 (Cth) requires that judicial notice to be taken “of statistical information contained in a publication issued in the name of, by, or under the authority of, the Bank”, the primary judge did not refer to any Reserve Bank publication. This is the only example the primary judge provides in his Reasons to support the conclusion that the wife’s evidence was “an abundance of baldly stated claims”.
The primary judge, after giving this example, went on to say that if the:
27 …wife was self-represented for the preparation of her trial affidavit. I take into account that the issues she sought to pursue could have been more elegantly stated.
His Honour said that particulars and corroboration were scarce or absent ([27]-[28]), finding at [29] that:
…the wife’s evidence under cross-examination was poor. She presented only as adversarial, defensive and disagreeable. She was unwilling to entertain even the possibility of alternative versions or explanations for events and attempts to explore the evidence led to some plainly incredulous evidence from the wife. She was unwilling to concede anything that tended to be contrary to her case. She would not follow directions to contain her answers to be responsive to the questions asked.
Whilst the example given by the primary judge (quoted above at [22] of these reasons) was not a finding open to the primary judge on the evidence before him, the finding at [29] of the Reasons appears well supported by the transcript of the wife’s cross-examination with respect to issues other than family violence.
Later in the judgment, when the issue of family violence is specifically discussed, the primary judge said:
93. The descriptions of these incidents lack the corroboration and particulars described at paragraphs 27-28 above. I was not assisted by Annexure L to the wife’s affidavit which was 225 pages of “some medical records and doctors’ certificates, which lists my health issues, and records of the assault of 2011.” At the invitation of the court at hearing, the wife could not or would not point to specific records within those 225 pages that corroborated any of the family violence events she deposed to. Other than a service provider making a record of the wife’s self-reporting, there is no evidence attributing any of the wife’s historical or present physical or mental ailments to incidents or behaviours of family violence.
It was not argued that the primary judge erred when referring to corroboration as his Honour did not suggest corroboration was required. However, referring to corroboration in family violence cases can sometimes distract attention from the central factual issues. This is because the circumstances in which family violence most commonly occurs are such that it is not common for there to be corroborative evidence available (in the sense of the term as used in criminal law). The absence of corroboration, of itself, often provides little real assistance in determining whether or not to accept a claim of family violence.
The wife sets out details of a number of incidents of domestic violence in her trial affidavit, with particulars, identifying time, place, and a narrative of a specific event. For example:
30. In or around 2011, [Mr Bryson] and I were having dinner at our house with the children. An argument began, and [Mr Bryson] became very angry. He lifted the table with the food on it. I was afraid that he would assault me, so I ran away. [Mr Bryson] ran after me and caught me before I got to the garden. He then proceeded to punch me in the back of the bead. [Mr V] followed me. [Mr Bryson] then proceeded to assault [Mr V]. I was in so much pain, and so was my son, so I called the ambulance. The ambulance called the police, but I did not want to give a statement because I was afraid that they would take [Mr Bryson] to jail. The police, as a condition, told me to contact DVCS. This is how I was introduced to DVCS. I can remember the police officer said words to the effect, "Ok, we won't force you, but you will have to talk to DVCS." They left me with a card which contained the incident number, and phone numbers. [Mr Bryson] later found this card and abused me because of it.
(Wife’s trial affidavit filed 6 July 2023)
Within the exhibits to the appellant’s trial affidavit referred to by the primary judge, there are medical records from 2011 (Appeal Book pages 324-326, 334, 342, 344, 349-350, 360, 374, 387-388 and 518) confirming that the wife had presented to her doctor and the hospital emergency department with physical injuries to her neck, tension headaches, altered sensation in the tongue and feet and paraesthesia in the hands. The notes set out that she reported that the injuries were the result of an assault from the husband.
The husband, when cross-examined about the 2011 allegations, denied them, saying that he was unsure as to whether an ambulance was called because he left after an argument. The wife, when cross-examined, was not challenged about the existence of her injuries in 2011, nor was any alternative cause for the injuries put to her. The cross-examination consisted of merely putting to her that the husband had not been violent to her (Transcript 21 July 2023, p.145 line 20 to p.146 line 3).
The appellant, who was unrepresented at the time of final addresses, did not identify the relevant pages from the 255 pages of documents annexed to her affidavit. Had she been represented there may have been arguments about whether she was bound by how her case was run. However, having received the documents into evidence it was incumbent upon the primary judge to peruse the material. The better course may have been to refuse to allow the wife to place the exhibits to the affidavit into evidence as a bundle (exhibits to affidavits not being taken to be in evidence until tendered: see r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and instead allow only the tender of select pages or documents after the relevance of each page or document is established. Such a course would have avoided the problem of an unrepresented litigant failing to identify an important document that is, in practical terms, hidden in a large bundle of documents, and would have ensured that the relevance of the documents is drawn to the primary judge’s attention.
When considering the material before the court with respect to the family violence issue, it is not possible to conclude that the reliance upon the evidence not before the court did not materially affect the primary judge’s assessment of the wife’s credit and consequently, the findings with respect to family violence.
The third and fourth passages referred to in argument were quotes from the husband’s affidavit relating to land in Country C and the law in Country C (at [43] and [44]). The passages were not led in evidence, presumably because they required expert evidence of Country C law. However, this error ultimately made no difference to the outcome of the matter for two reasons. First, the primary judge did not conclude that the appellant had land in Country C that could be taken into account. Secondly, there was no evidence of the value of the husband’s interest in the land in Country C (which, although it was his inheritance, it is occupied by his sister and her family who do not appear to pay him any rent). Without evidence of the value of the husband’s interest, and in the absence of any evidence that the husband had ever received any financial benefit from (or paid any contribution toward) the land, nor evidence as to what orders could be made that may be enforceable, there was no basis upon which to take his interest in family land in Country C into account. The reliance upon inadmissible evidence with respect to the Country C land issues appears to have made no difference to the outcome on that issue.
The reliance by the primary judge upon the material that was not in evidence, particularly the example supporting the conclusion that the wife’s evidence was an abundance of baldly stated claims, appears to have distracted his Honour from the evidence that was before him. It is apparent that there is a real chance that the findings as to the wife’s credit, particularly with respect to family violence, may well have been different had the primary judge not relied upon or been distracted by the extraneous material. The wife has made out this ground of appeal.
Ground 1.
1. That, in relation to the Husband's [Country C] properties the learned primary Judge fell into error by:
i. Adopting a nominal value for the properties without any expert or corroborative evidence on the matter;
ii. Permitting himself to proceed on evidence that did not contain adequate information that would otherwise allow him to determine values of the Husband's interest in these properties on proper principles; and
iii. In the absence of there being sufficient evidence to make a finding as to the value of each property, failing to order either that admissible evidence of their values be obtained, or the sale of the properties and thus determination of the quantum that would become available for division between the parties;
There was no valuation evidence placed before the primary judge by the parties which would have provided a basis for making a finding as to the value of property in Country C. In the absence of evidence of the value, it was not open to the primary judge to adopt a particular value for the property. The appellant then complains that the primary judge ought not to have proceeded to hear the case when there was inadequate evidence. In large part, it was the acts of the appellant that resulted in joint expert evidence not being obtained (making threats that her brother would shoot anyone that attended at the property alleged to be owned by her in Country C). It was not for the primary judge to prepare the case of the parties. The parties chose the evidence to present to the court and the primary judge had to deal with the case as best he could on the evidence before him.
In the alternative, the appellant argues that the primary judge ought to have ordered the sale of the properties. This was not sought by the appellant at the trial. Such an order could not be made as there is no power for an Australian Court to cause a property in Country C to be sold. Land law in Country C is governed by Country C law and remedies must be obtained from the Country C courts: see British South Africa Co v Companhia de Moçambique [1893] AC 602. Whilst it is possible for an Australian court to make in personam orders against a party requiring them to deal with property overseas, consideration must be given to whether such orders would be in conflict with the laws of the country where the property is located: see Galloway & Midden (No 2) (2014) FLC 93-586. The husband’s evidence was that he could not return to Country C. There was no evidence to show that the husband could effect a sale of the land from Australia, such that a personal order against the husband requiring him to effect a sale could be effective, nor as to the nature of the claim (if any) of his sisters, nor even evidence that the sister residing there was on notice of a claim concerning land she appears to have occupied for an extensive period. On the limited evidence before the primary judge at the trial, it could not be said that his Honour erred in not ordering the respondent to sell the land in Country C.
The ground of appeal is not made out.
Ground 4.
4. That the learned primary Judge fell into error by "double-dipping" and not deducting from the addback amount of ~$40k allowed for reduction of matrimonial assets the value of furniture purchased with these funds and which were otherwise included as part of the asset pool for distribution.
The primary judge notionally added $39,906.53 to the assets of the parties as it represented a sum that the wife had withdrawn from the joint home loan account after separation. The wife’s Summary of Argument gives the impression that this addback amount comprised of small amounts over a period of time, however, the primary judge was referring to a single transaction on 7 October 2020, that appears in the bank statements.
The appellant argues that the primary judge accepted the wife’s evidence that she used the money to buy some furniture, which formed part of the furniture entry in the balance sheet, which was valued at $5,000 (at [73] to [74] of the Reasons). Whilst the primary judge recounted the wife’s version, his Honour did not say that he accepted it. The primary judge referred to the appellant’s lack of disclosure on this issue (at [75]) and that purchases of furniture would have resulted in documentation (at least bank statement entries). The primary judge’s finding was (at [78]):
(b) The wife has not provided any proper explanation to her use of those funds. She has not established that they were used on reasonably incurred necessary living expenses.
As the wife failed to establish that part of the $39,906.53 was actually expended to purchase furniture, the appellant has not shown error on the part of the primary judge with respect to this ground of appeal. Even if there had been an error, it represented less than $5,000 in a case involving net assets and superannuation of over $2 million. An error of such a small amount is not sufficient to demonstrate a miscarriage of justice: see Saltern & Mink [2020] FamCAFC 320. This ground has not been made out.
CONCLUSION
The appellant has succeeded in establishing Ground 3. The parties agreed that the matter must be remitted for a rehearing in these circumstances. As Orders 1-6 that were made by the primary judge have now been carried out there is no purpose to be served in setting them aside. The parties agreed that Orders 7 to 11 should be set aside if the appeal were allowed.
COSTS
The parties agreed that in the event that the appeal was allowed, then it would be appropriate for costs certificates to be awarded. Since the appeal is successful due to an error on the part of the primary judge that does not appear to have been caused by either of the parties, I am persuaded it would be suitable for costs certificates to be issued to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. I am satisfied that the respondent should have a certificate under s 8 with respect to the costs of the new trial. As the appellant did not incur costs in the first trial (her counsel being funded by a s 102NA grant) I am not persuaded to issue a certificate with respect to her costs in the new trial.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 20 March 2024
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