Bulow & Bulow - [2022] FedCFamC1A 19

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bulow & Bulow [2022] FedCFamC1A 19

Appeal from:
Bulow & Bulow (No 3) [2021] FCCA 314

Bulow & Bulow (No 4) [2021] FCCA 1175

Appeal number(s): SOA 16 of 2021
SOA 40 of 2021

File number(s): ADC 1674 of 2014

Judgment of: ALDRIDGE, WATTS & TREE JJ

Date of judgment: 18 February 2022

Catchwords:
FAMILY LAW – APPEAL – PROPERTY – Appeal from superannuation splitting orders that equally split the parties’ superannuation interests – Where the husband did not make an appearance at the trial hearing – Apprehension of bias – Procedural fairness – Adequacy of reasons – Assessment of contributions – No error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against the refusal of the stay of the primary judge’s orders – Appeal futile – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband sought to adduce a number of affidavits which were not said to be relied on in proceedings – Mere filing of an affidavit does not make it evidence – Application dismissed.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) ss 79, 90XT

Family Law (Superannuation) Regulations 2001 (Cth)

Cases cited:
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bulow & Bulow (2019) FLC 93-885; [2019] FamCAFC 3

Bulow & Bulow [2020] FamCAFC 120

Charisteas v Charisteas (2021) 95 ALJR 824; [2021] HCA 29

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Number of paragraphs: 73

Date of hearing: 8 November 2021

Place: Adelaide (via video link), delivered in Sydney

The Appellant: Self-represented litigant

The Respondent: Self-represented litigant
ORDERS

SOA 16 of 2021
SOA 40 of 2021
ADC 1674 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BULOW

Appellant

AND:
MS BULOW

Respondent

ORDER MADE BY:

ALDRIDGE, WATTS & TREE JJ

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERED ON 8 NOVEMBER 2021 THAT:
Appeal No. SOA 40 of 2021
1.The Application in an Appeal filed on 9 July 2021 is dismissed.
2.Appeal No. SOA 40 of 2021 is dismissed.

THE COURT FURTHER ORDERS THAT:
Appeal No. SOA 16 of 2021
1.The Application in an Appeal filed on 27 October 2021 in Appeal No. SOA 16 of 2021 is dismissed.
2.Appeal No. SOA 16 of 2021 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bulow & Bulow

Details

AGLC: Bulow & Bulow [2022] FedCFamC1A 19
Case: [2022] FedCFamC1A 19
Decision Date: 18 February 2022

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an appeal against the property settlement orders made in a family law matter. The husband sought to appeal the orders that resulted in an equal split of the parties' superannuation interests. Additionally, the husband sought to stay the primary judge's orders and adduce further evidence. The wife responded to the appeal and the application for a stay, arguing that the appeal should be dismissed and the application denied.

The court examined whether the primary judge should have recused himself due to a reasonable apprehension of bias. The husband claimed that the primary judge had predetermined the outcome and displayed bias towards him. However, the husband failed to provide specific comments or passages in the transcript to support his claim. The court also considered whether the appeal against the refusal of the stay of the primary judge's orders was futile and dismissed it. Furthermore, the court dismissed the application in an appeal to adduce further evidence, as the husband did not seek the reception of the transcripts and relied on affidavits that were not read in the proceedings before the primary judge.

The court found no error in the primary judge's assessment of contributions and concluded that the appeal was without merit. The court dismissed the appeal and the application for a stay. The court also dismissed the application in an appeal to adduce further evidence. No order was made as to costs.

In summary, the Federal Circuit and Family Court of Australia dismissed the husband's appeal against the property settlement orders and the application for a stay of those orders. The court also dismissed the husband's application in an appeal to adduce further evidence. The court found no error in the primary judge's assessment of contributions and no order was made as to costs.

Orders

Orders of the court

SOA 16 of 2021

SOA 40 of 2021

ADC 1674 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BULOW

Appellant

AND:

MS BULOW

Respondent

ORDER MADE BY:

ALDRIDGE, WATTS & TREE JJ

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERED ON 8 NOVEMBER 2021 THAT:

Appeal No. SOA 40 of 2021

1. The Application in an Appeal filed on 9 July 2021 is dismissed.

2. Appeal No. SOA 40 of 2021 is dismissed.

THE COURT FURTHER ORDERS THAT:

Appeal No. SOA 16 of 2021

1. The Application in an Appeal filed on 27 October 2021 in Appeal No. SOA 16 of 2021 is dismissed.

2. Appeal No. SOA 16 of 2021 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The husband has appealed from those orders. He raised 33 grounds, some of which are difficult to understand and some are repetitious. We shall deal with them in groups, as best we can. Grounds 15, 31 and 32 were not pressed.Application in an Appeal to adduce further evidence The husband initially sought to rely on a number of transcripts of various events but ultimately did not seek their reception. The husband also sought to rely on a number of affidavits which had been filed but not relied upon or read in the proceedings before the primary judge. The mere fact of filing an affidavit does not make it evidence. That only occurs when an affidavit is “read” in proceedings. That occurs when it is made plain that one of the litigants wants to rely on its contents. As that was not the case here, it is now too late for the evidence to be received. The Application in an Appeal filed on 27 October 2021 will be dismissed. The appellant prepared an aide memoire, however did not wish to have it adduced as he said they were his speaking notes.The AppealShould the primary judge have recused himself? (Grounds 2, 18, 19, 22 and 26) On 28 June 2019, the husband filed an Application in a Case which sought in part, the recusal of the primary judge. That application was dismissed on 29 July 2019 and the appeal from that decision was unsuccessful (Bulow & Bulow [2020] FamCAFC 120). Thus, unless later conduct of the primary judge revived the earlier conduct in some way, or the combination of matters occurring before and after the application of 28 June 2019 required disqualification, the husband can only rely on events occurring after that time. The matters relied upon by the husband are that:·There was “a continuous thread of predetermination” from statements made by the primary judge from 28 February 2019 to 13 August 2020 (Husband’s Summary of Argument filed on 26 October 2021, paragraph 2.5);·The order made on 7 May 2020 that the scope of the rehearing be limited (Husband’s Summary of Argument filed on 26 October 2021, paragraph 2.7);·The primary judge communicated directly with the wife (Husband’s Summary of Argument filed on 26 October 2021, paragraph 18);·The primary judge displayed open resentment towards every submission made by the husband to the Court (Husband’s Summary of Argument filed on 26 October 2021, paragraph 19);·The primary judge colluded with the wife’s counsel about the appointment of the single superannuation expert (Husband’s Summary of Argument filed on 26 October 2021, paragraphs 22.1–22.2); and·The orders that were made displayed punitive interest (Husband’s Summary of Argument filed on 26 October 2021, paragraph 26.1). Unfortunately, in his submissions, the husband did not take us to any specific comments made by his Honour, or to any particular passages in the transcript but only referred to the entire transcript or to particular days. It is not for us to read the transcript for ourselves to identify the passages that the husband had in mind. It is for him to demonstrate that the conduct of the primary judge gave rise to a reasonable apprehension of bias.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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SOA 16 of 2021 SOA 40 of 2021 ADC 1674 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BULOW Appellant
AND:	MS BULOW Respondent

Appeal from:	Bulow & Bulow (No 3) [2021] FCCA 314 Bulow & Bulow (No 4) [2021] FCCA 1175
Appeal number(s):	SOA 16 of 2021 SOA 40 of 2021
File number(s):	ADC 1674 of 2014
Judgment of:	ALDRIDGE, WATTS & TREE JJ
Date of judgment:	18 February 2022
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Appeal from superannuation splitting orders that equally split the parties’ superannuation interests – Where the husband did not make an appearance at the trial hearing – Apprehension of bias – Procedural fairness – Adequacy of reasons – Assessment of contributions – No error established – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against the refusal of the stay of the primary judge’s orders – Appeal futile – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband sought to adduce a number of affidavits which were not said to be relied on in proceedings – Mere filing of an affidavit does not make it evidence – Application dismissed.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) ss 79, 90XT Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited:	Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bulow & Bulow (2019) FLC 93-885; [2019] FamCAFC 3 Bulow & Bulow [2020] FamCAFC 120 Charisteas v Charisteas (2021) 95 ALJR 824; [2021] HCA 29 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs:	73
Date of hearing:	8 November 2021
Place:	Adelaide (via video link), delivered in Sydney
The Appellant:	Self-represented litigant
The Respondent:	Self-represented litigant

ORDER MADE BY:	ALDRIDGE, WATTS & TREE JJ
DATE OF ORDER:	18 FEBRUARY 2022