Carevic & Carevic

Case [2023] FedCFamC1A 165

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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CAREVIC

Appellant
AND:

MS CAREVIC

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

28 SEPTEMBER 2023

THE COURT ORDERS…

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Carevic & Carevic [2023] FedCFamC1A 165
Case
[2023] FedCFamC1A 165
Decision Date

CaseChat Overview and Summary

In the matter of Carevic & Carevic, the appellant, Mr Carevic, sought to appeal the primary judge's decision in relation to financial adjustments following the final separation of the parties. The respondent, Ms Carevic, opposed the appeal and the appellant's application to adduce further evidence. The Court was required to determine whether the application for further evidence should be accepted, and if the appeal itself had any merit. The Court found that the appellant's application for further evidence was not admissible as it was available at the time of the trial and did not demonstrate any error by the primary judge that would have produced a different result. Furthermore, the Court held that the grounds of appeal were not clearly identified and did not constitute a recognised category of appealable error. The Court found no merit in the appeal and dismissed both the appeal and the application for further evidence.

The Court further considered the issue of costs and determined that the respondent was entitled to a costs order in a fixed sum of $14,054.63. The Court found that the appellant had the financial capacity to meet the costs order and that there were justifying circumstances for making such an order. The Court noted that the appellant's unreliability as a witness and his conduct during the proceedings warranted the imposition of costs in a fixed sum. The Court dismissed the appeal and the application for further evidence, and ordered the appellant to pay the respondent's costs in the fixed sum of $14,054.63 within 28 days.

Orders

Orders of the court

NAA 153 of 2023

PAC 3667 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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]).

Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.