Carevic & Carevic
[2023] FedCFamC1A 165
•28 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Carevic & Carevic [2023] FedCFamC1A 165
Appeal from: Carevic & Carevic [2023] FedCFamC2F 524 Appeal number(s): NAA 153 of 2023 File number(s): PAC 3667 of 2019 Judgment of: SCHONELL J Date of judgment: 28 September 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was available to the appellant at the time of the trial – Where the Court is not satisfied that the evidence has any bearing on the appeal – Application dismissed.
FAMILY LAW – APPEAL – Where the grounds of appeal as presented in the Notice of Appeal and/or the appellant’s Summary of Argument are difficult to ascertain – Where the appeal is from the exercise of discretion – Where the grounds of appeal appear to relate to error on part of the primary judge in findings made in relation to money that was contended to be missing, family violence, the appellant’s gambling and the appellant’s credit – Where no error is established – Where the appellant also contended that his solicitor at trial failed to present his case – Where the Court does not find that there was a miscarriage of justice occasioned by the conduct of the solicitor – Appeal dismissed – Costs ordered in a fixed sum.
Legislation: Evidence Act 1995 (Cth) ss 138, 140
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hulme v Hulme [2023] NSWSC 299
Maddax & Danner [2016] FamCAFC 176
Mulroney & Mulroney [2023] FedCFamC1A 102
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
Neil v Nott and Another (1994) 121 ALR 148; [1994] HCA 23
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Number of paragraphs: 77 Date of hearing: 25 September 2023 Place: Sydney The Appellant: Litigant in person (with Ms O appearing as a McKenzie friend) Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Beale Lawyers ORDERS
NAA 153 of 2023
PAC 3667 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CAREVIC
Appellant
AND: MS CAREVIC
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 18 August 2023 is dismissed.
2.The Notice of Appeal filed 5 June 2023 is dismissed.
3.Within 28 days, the appellant pay the respondent’s costs fixed in the sum of $14,054.63.
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 Carevic & Carevic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 8 May 2023, a judge of Division 2 of the Court delivered reasons after a hearing over two days in relation to financial matters between the appellant and the respondent following upon the breakdown of their marriage. On 5 June 2023, the appellant filed a Notice of Appeal.
Part E of the Notice of Appeal directs the drafter to “[s]tate briefly the grounds of appeal / proposed appeal, numbering each ground of appeal”. In this instance, what followed over the succeeding 10 pages were a series of largely unnumbered paragraphs of complaint and submission. None of the paragraphs are an immediately recognisable ground of appeal. The task of identifying error is not made any easier by the Summary of Argument filed on 30 August 2023.
The appellant has chosen to be unrepresented notwithstanding that it is clear from the terms of the orders made by the primary judge that he has available to him cash of in excess of $1.1 million. As Austin J recently observed in Mulroney & Mulroney [2023] FedCFamC1A 102:
6.The appellant is self-represented, but such disadvantage does not entitle her to prosecute an incompetent appeal. She remains bound by the same legal principles as any other litigant. …
I have determined that any attempt to refine the Notice of Appeal would not be an efficient use of Court resources. The observations of the High Court in Neil v Nott and Another (1994) 121 ALR 148 are apposite to this appeal, where their Honours observed at 150:
… A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. …
In these circumstances, I will do my best to attempt to identify what the appellant’s arguments are from the morass of words.
The appellant also filed an Application in an Appeal on 18 August 2023 to adduce further evidence.
As will be apparent from these reasons, I have found no merit to any of the matters the subject of the Application in an Appeal, the Notice of Appeal, and the Summary of Argument. Accordingly, both the application and the appeal will be dismissed.
BACKGROUND
To provide some context to the matters raised in the Notice of Appeal and Summary of Argument, some background is necessary.
The appellant is currently 65 years and the respondent is currently 59 years.
The primary judge recorded that the parties commenced cohabitation following their marriage in September 1983 (at [27]) and found that separation occurred on a final basis in 2019, contrary to the appellant’s assertion that it occurred in 2009 (at [160]).
On 1 August 2019, the respondent commenced proceedings seeking orders for financial adjustment.
The parties have three children, Ms G, Mr H and Mr J. All three children were adults at the time of separation in 2019, with the youngest child Mr J having turned 18 in 2014. The primary judge found that both parties contributed to the care of the children and in undertaking the homemaker duties, but that overall, the respondent’s contributions exceeded those of the appellant (at [205]).
The primary judge found that the appellant perpetrated family violence against the respondent, which included both physical and verbal abuse, and that such violence caused the respondent to flee and seek refuge on multiple occasions (at [113]). Her Honour found that the respondent’s contributions were made significantly more arduous as a result of the violence (at [120]).
At the commencement of cohabitation, neither party had any assets of significance (at [27]). Her Honour found that both parties contributed financially towards the children and the household.
Throughout the relationship, the parties owned and operated a number of businesses. The evidence before the primary judge was that these businesses had been deregistered, except for the respondent’s current business F Business, which she still operates.
Throughout the relationship, the parties bought and sold several properties. This included purchasing vacant land and building on it. Her Honour found that the appellant was heavily involved in the builds but that the respondent also made indirect contributions through the support she provided (at [189]).
The primary judge noted that the parties agreed that the pool of assets should have been much larger by at least $750,000 (at [129]). The parties were at issue as to where the money had gone, with the appellant contending that the respondent had stolen and/or taken the money and the respondent contending that the appellant had gambled it. Her Honour found that the appellant gambled significant sums of money but was unable to ascertain the exact amount (at [132]). Her Honour also found that the appellant had not established on the evidence that the respondent had stolen or taken a significant sum of money (between the amounts of $750,000 and $1.5 million) as contended by him (at [146]).
On 8 May 2023, the primary delivered reasons and made orders dividing the parties’ assets in the proportions of 42 per cent to the appellant and 58 per cent to the respondent. Her Honour found that both parties’ contributions were equal but for the appellant’s gambling/waste of monies and the adjustment for family violence (at [209]).
APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE
By Application in an Appeal and affidavit filed 18 August 2023, the appellant requests that the Court consider “new evidence and reconsider the orders that it made on 8 May 2023” (appellant’s affidavit filed 18 August 2023, paragraph 3).
The new evidence is identified in his affidavit as follows:
4. I claim [a]nd have evidence that my ex-wife [the respondent] has defrauded me and has taken money from the marital assets and it seems that her fraudulent behavior [sic] in stealing money for a number of years up until the breakdown of our marriage in 2009 so she can enrich herself with assets and deplete the marital assets.
(Appellant’s affidavit filed 18 August 2023)
He goes on to say that his former partner had:
5.… taken a total of $1,362,315 (approximately) in bank cheques withdrawn as cash and she has also withdrawn from [their] various joint line of credit and business accounts a total of $2,160,117 (approximately) without [his] permission and knowledge.
(Appellant’s affidavit filed 18 August 2023)
Referred to in the text of the affidavit and exhibited to it are a series of bank cheques. The affidavit comprises some 530 pages that largely consist of photocopies of various bank cheques, which the appellant submitted totalled $1,362,315. Also referenced in the exhibits are transcripts of conversations between himself and his daughter and between his former wife and his son, which are said to contain admissions in relation to the use of monies by the respondent.
Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that this Court may in its discretion receive further evidence. The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) laid down clear guidelines that are to apply to the reception of further evidence on appeal. In particular, the plurality said:
108.When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to 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.
…
111.… Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
(Emphasis added) (Footnote omitted)
Rule 13.39(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires a party seeking to adduce further evidence to identify the grounds to which the application relates.
As referred to earlier, given the poor drafting of the Grounds of Appeal, I will assume in a general sense that the evidence has some nexus to the matters raised in the Notice of Appeal.
The issue of what was described in the judgment as “the missing money” consumed a significant part of the cross examination and was identified by the primary judge as one of the issues for determination.
It is unquestionably the case that all of that which the appellant seeks to rely upon in the Application in an Appeal was evidence that was available to the appellant at the hearing. Attached to the appellant’s trial affidavit was a table that set out various cheques totalling $2,160,117. Whilst the primary judge upon objection struck out the table, the appellant’s counsel cross examined the respondent about various cash cheques and put propositions to her that cheques were drawn without the appellant’s knowledge. The respondent denied these propositions.
The conversations were all recorded around 2009. They were therefore available to be used in the hearing subject to questions of their admissibility (s 138 of the Evidence Act 1995 (Cth)). The “further evidence” does not fall into the category of that identified by the High Court in CDJ v VAJ, namely evidence of events that occurred after the trial.
I am not satisfied that this further evidence has any bearing on the appeal and thus does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellant principles” (CDJ v VAJ at [109]).
The application to adduce further evidence will be dismissed.
THE APPEAL
This is an appeal from the exercise of discretion. For the appellant to succeed, he must bring his appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499.
In Hedlund & Hedlund (2021) FLC 94-065, the Full Court recently observed apposite to this appeal:
36.These grounds … also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
53.… The first and second [grounds of appeal] were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention [“one or more specific errors of principle or of fact” (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. … The third [ground of appeal] was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category [“in the totality of the circumstances was unreasonable or plainly unjust” (at [51])].
37.To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. …
As I indicated earlier, ascertaining from the Notice of Appeal and the Summary of Argument asserted error is a task that is significantly obscured by the way the documents have been prepared. Doing the best I can by reference to the Notice of Appeal, the Summary of Argument and the matters raised in oral argument, I identify the errors as asserted by the appellant to be as follows:
(1)An assertion that the primary judge did not properly consider and/or deal with what is described as the “missing money”.
(2)That the primary judge was in error in relation to her findings that the respondent had been the victim of family violence perpetrated upon her by the appellant in circumstances where the appellant contended in the Notice of Appeal that he had “never acted violently” (at page 2), and further that “[he] was not [a] violent person back then nor [is he] violent now. Was [he] angry back then, yes and [he is] angry today” (at page 6).
(3)That the primary judge erred in finding that the appellant had gambled and was in error in finding that the appellant’s gambling reduced the available assets for distribution.
(4)That the finding by the primary judge in preferring the evidence of the respondent where it conflicted with that of the appellant was erroneous in that, according to the appellant, the respondent is “a liar” and/or “a pathological liar” (Notice of Appeal filed 5 June 2023, pages 6, 7 and 10).
(5)That the appellant’s solicitor did not act in accordance with his instructions and did not “act in his full interest to support [his] case” (Notice of Appeal filed 5 June 2023, page 8).
I will deal with each assertion below.
The “missing money”
As best I can ascertain, the appellant contended that the primary judge had not properly considered or dealt with the “missing money”. Such contention is without foundation. The primary judge identified that the parties were in a significant disagreement about whether the respondent had secreted away monies.
The primary judge between paragraphs 133 and 146 identified the assertions made by the appellant as to the missing monies and concluded that the appellant had not established on the evidence that the respondent had “stole[n] money from him or that she ha[d] otherwise managed to secret away between $750,000 to $1,500,000 over the years, or indeed any amount” (at [146]). The appellant bore the onus of proof to establish these contentions.
Section 140 of the Evidence Act 1995 (Cth) provides that in civil proceedings, “the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, their Honours observed as follows in discussing the standard of proof at 449–450:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. …
There is no error identified in the conclusion reached by her Honour that the appellant had not discharged the onus of proof that fell to him. It was his case to prove that the respondent had either stolen, to use his language, or failed to account for monies that he asserted she had misappropriated in some way. He simply failed to establish that which was required of him.
Family violence
The primary judge’s findings that the respondent had been subjected to family violence at the hands of the appellant is set out in exhaustive detail commencing at paragraph 102 and its various sub-paragraphs through to paragraph 120. The primary judge observed in relation to the appellant’s evidence that there were omissions in respect of his violent behaviour and a lack of acknowledgement for his actions and their consequences. The primary judge concluded that various phone calls made by the appellant were harassing and intimidating. The primary judge also recorded that the appellant agreed that he had thrown a bottle of water in anger, albeit denying that it was thrown in the respondent’s direction or that it hit her.
There was more than sufficient basis for the primary judge to reach the conclusions that she did in relation to the allegations of family violence. I am not satisfied that there is any merit to the appellant’s appeal on these grounds.
The appellant’s gambling.
The appellant’s assertion of some error in the finding that the appellant had gambled is curious, particularly in circumstances where he stated in his trial affidavit filed on 6 May 2022 that “[d]uring the time [the parties] were together [he] did play poker machines from time to time socially and [he] attended the [N Venue] at [Suburb L] many times” (at paragraph 6).
The primary judge recorded the following:
128. In cross-examination the [appellant] gave evidence to the effect:
• That he played up to 10 poker machines at one time;
• That he did gamble, party, and drink;
• That he had control of his money and his life;
• That he was not a gambler; and
• The [appellant] states “I deny any gambling allegations by my wife, and I never had the trouble in my house about gambling about the money issue until 2009.”
…
130. It seems likely that there were vast amounts of money that were wasted in this manner, likely hundreds of thousands of dollars over the years. On the [appellant’s] own evidence, he was speculating in 2009 that by then he had gambled away $200,000. The Court accepts that it is entirely within the [appellant’s] knowledge how much he gambled and that he is in the best position to quantify his gambling losses. He has not done so.
It is not immediately apparent how, considering the appellant’s admissions, he maintains error on the part of the primary judge. For these reasons, I am satisfied that there is no merit to any contention that the primary judge was in error in concluding that the appellant had gambled and that the gambling had resulted in a reduction of the assets available for distribution.
The appellant’s credit.
The primary judge under the heading of “[c]redit and [e]videntiary [i]nferences” found the respondent to be an impressive witness “who did not shy away from answering difficult questions” (at [9]) and found the appellant to be argumentative and non-responsive, making many admissions against his interests (at [10]). The primary judge concluded that where the parties were in conflict, she preferred the evidence of the respondent to that of the appellant (at [11]).
There was more than sufficient foundation for the primary judge’s conclusions about the appellant, including her findings as to family violence, gambling and in relation to the dispute about the date of separation.
A point made by the primary judge in dealing with matters relevant to the appellant’s credit was an observation that the appellant often made admissions adverse to his interest. In that respect, her Honour recorded “[h]e however, made many admissions which were against his interests and it seems, contrary to the case he was running” (at [10]).
I am satisfied that the primary judge has given more than sufficient reasons for why it is that she preferred the evidence of the respondent to that of the appellant.
An appellant seeking to reverse a primary judge’s determination based on matters of credit must squarely demonstrate error on the part of the primary judge. As McHugh J said in Fox v Percy (2003) 214 CLR 118:
90.… there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. …
Having read the judgment as well as the cross-examination of the parties, I am satisfied that the primary judge’s findings on matters of credit are soundly based and that the primary judge was on firm foundation in preferring the evidence of the respondent to that of the appellant.
I note in passing that it would have been difficult, if not nigh on impossible, for the primary judge to conclude that the respondent was a “pathological liar” in the absence of any medical evidence.
Failure of the appellant’s solicitor
The appellant contended in some fashion or other that his former solicitor had failed to properly present his case. In that respect, he asserted in one of the many paragraphs of the Notice of Appeal that his solicitor did not act in his full interest, had no interest putting in an affidavit what he asked him to, and would appear to have refused to obtain an affidavit from the forensic accountant retained by the appellant. He further indicated that his solicitor did not show him any of the subpoenaed documents. There was no criticism of counsel who presented his case.
In Maddax & Danner [2016] FamCAFC 176, the Full Court observed as follows:
68.The gravamen of this ground is that it is said the trial miscarried because counsel for the father was both negligent and incompetent in his conduct of the father’s case. The principles relevant to the question of when an appellate court will allow an appeal on account of the incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at 298 as follows:
[123] We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
[124] On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
These observations are apposite to the role of a solicitor. To succeed, the appellant would need to have adduced some evidence that decisions made or not made by his solicitor have in some way led to a miscarriage of justice.
It does not appear on the face of the transcript or from the judgment that incompetence by the appellant’s solicitor has led in any way to a miscarriage of justice, such that his case was not properly presented by his chosen counsel.
Further, whilst there is some complaint that various witnesses were not called, namely some of the parties’ children, and there seems to be some veiled criticism of the solicitor in failing to do so, the appellant in his Notice of Appeal asserts as follows at page 5:
… I did ask my solicitor to call the kids to the court and I asked my solicitor to subpoenaed my daughter [Ms G] to the court because she is the only one that admitted about the stolen money to me. Instead my solicitor was always asking me to provide him with [Ms G’s] phone number. Since providing the solicitor with [Ms G’s] phone number he decided on his own not subpoena and I was angry about this decision.
(As per the original)
The difficulty with the appellant’s proposition is that it carries with it an assumption that the evidence of his daughter would have been favourable to his case.
This ground fails at a granular level to establish any basis for the assertion. At its highest it is mere speculation. It is impossible to determine and then dissect what may have been tactical or forensic decisions made by the appellant’s solicitor or counsel or by them jointly that would then permit the Court to conclude that the hearing miscarried.
A review of the transcript demonstrates that in fact the appellant’s counsel pursued matters presumably based on instructions from the appellant’s solicitor for the purposes of attempting to demonstrate aspects of the case favourable to the appellant.
I am not satisfied that there is a basis to conclude that there was a miscarriage of justice occasioned by the incompetence or otherwise of the appellant’s solicitor. There were documents available to the Court that were supportive of the appellant’s contentions, and there was cross-examination on those documents and various propositions put which were denied by the respondent.
Otherwise, the balance of the Notice of Appeal and the Summary of Argument contains a series of complaints that at their highest amount to a rejection of or dissatisfaction with the findings by the primary judge. As such, they do not amount to a recognised category of appealable error and are incompetent.
CONCLUSION
For the reasons advanced above, the Notice of Appeal will be dismissed.
COSTS
In circumstances where the appellant was unsuccessful, the respondent sought an order that the appellant pay the respondent’s costs in a fixed amount of $14,054.63. The appellant submitted that each party should pay their own costs.
In support of the application, the respondent relied upon the observations of Hallen J in Hulme v Hulme [2023] NSWSC 299. The respondent submitted that this was not an ordinary case and that the reasons of the primary judge show that the appellant was an unreliable witness who by his own conduct had wasted substantial sums of money and that, having failed at trial, he continued with his case on appeal. The respondent submitted that in all the circumstances this is a matter where it is appropriate to make a costs order in a fixed sum.
Discussion
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the subsections in s 117(2A) such as are relevant.
(a) the financial circumstances of each party to the proceedings
I have had regard to the findings in the judgment under appeal. The appellant has cash and other assets having a total value of over $1,200,000. I am satisfied that the appellant has the capacity to meet a costs order. I further note that impecuniosity is not a basis for not making an order for costs.
(b) whether the parties are in receipt of legal aid
Not relevant.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 Fam LR 31). The appellant was not wholly unsuccessful in the proceedings.
(f) whether any party has made an offer in writing
Neither party relied upon an offer in writing.
(g) Any other matter the Court considers relevant
The appeal having been filed by the appellant will be dismissed. As such, the appellant has been unsuccessful.
CONCLUSION
The appellant has been unsuccessful in the appeal and in those circumstances, I am satisfied that it is just that a costs order be made.
The Rules and authorities make plain that I can fix an amount for costs (see Pascoe & Larsen (No 2) [2022] FedCFamC1A 126 at [27]– [28]). To fix the costs avoids further costs and delay, which is consistent with the overarching purpose of family law practice and procedure as set out in s 67 of the FCFCOA Act.
I have had regard to the costs schedule filed by the respondent. I am satisfied that it is just that an order for costs should be made in the quantum as sought by the respondent.
The appellant has funds available to meet the order and I will order the sum to be paid to the respondent within 28 days of the date of the making of this order.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 28 September 2023
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