Dakin & Dakin
[2012] FamCAFC 120
•10 August 2012
FAMILY COURT OF AUSTRALIA
| DAKIN & DAKIN | [2012] FamCAFC 120 |
| FAMILY LAW – APPEAL – application to adduce further evidence – appellant husband had history of occupational trauma and motor vehicle accidents – husband sought to adduce additional medical evidence regarding the effect of his injuries on his health and earning capacity during and after the marriage – husband also sought to adduce further evidence of loans incurred by him during the marriage – held that the further evidence did not demonstrate that the decision under appeal was erroneous – husband’s evidence was vague and contradictory – application dismissed. FAMILY LAW – APPEAL – property – contributions – Federal Magistrate held that the husband was entitled to 23 per cent of the net marital assets – concession by the husband that the appeal turned on the further evidence application, which was not granted – held on appeal that Federal Magistrate’s discretion did not miscarry, given the parties’ long marriage and the wife’s significant financial and non-financial contributions relative to the husband’s – other appeal grounds not made out – appeal dismissed. |
| Family Law Act 1975 (Cth) ss 75, 79, 93A(2) Evidence Act 1995 (Cth) ss 69, 79, 177 |
| CDJ v VAJ (1998) 197 CLR 172 Collins & Collins (1985) FLC 91-603 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Gillies v Director of Public Prosecutions [2008] NSWCCA 339 Gronow v Gronow (1979) 144 CLR 513 LAM & RAM [2005] FamCA 868 Norbis vNorbis (1986) 161 CLR 513 R v Birks (1990) 19 NSWLR 677 Teeluck v Trinidad and Tobago [2005] UKPC 14; [2005] 1 WLR 2421 TKWJ v The Queen (2002) 212 CLR 124 Tsang Chi Ming & Ors v Uvanna Pty Ltd & Anor (1996)140 ALR 273 Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 |
| APPELLANT: | Mr DAKIN |
| RESPONDENT: | Ms DAKIN |
| FILE NUMBER: | SYC | 972 | of | 2009 |
| APPEAL NUMBER: | EAA | 49 | of | 2011 |
| DATE DELIVERED: | 10 August 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & Loughnan JJ |
| HEARING DATE: | 23 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 March 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 177 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sweet |
| SOLICITOR FOR THE APPELLANT: | Stojanovic Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | Marc Antony Lawyers |
Orders
That the application by the appellant to adduce further evidence be dismissed.
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakin & Dakin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 49 of 2011
File Number: SYC 972 of 2009
| Mr DAKIN |
Appellant
And
| Ms DAKIN |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the appellant husband against a decision of
Federal Magistrate Sexton in relation to orders for property settlement made on 8 March 2011. The orders provided for the former matrimonial home to be transferred by the husband to the wife, and for the wife to discharge the mortgage over the property and pay the husband $78,065.36. Other orders provided for what would occur if the payment was not made by the wife.
At [2] of her reasons for judgment, the Federal Magistrate said:
The significant issue for determination is how the parties’ contributions should be assessed, given the Wife’s history of full time employment, the Husband’s substantial periods out of the work force, the Wife’s domestic and child rearing contributions and the Wife’s allegations of the Husband’s abusive conduct towards her and the children during the marriage.
In his application, the husband sought an equal division of assets having regard to the parties’ respective contributions throughout the marriage, with no adjustment for matters under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The wife sought 80 per cent by way of contribution with a small adjustment to the husband for the factors under s 75(2).
Her Honour ultimately found that by reason of the wife’s greater financial and non-financial contributions over the course of a long marriage, the assets of the parties should be divided as to 77 per cent to the wife and 23 per cent to the husband. Her Honour considered, but made no further adjustment for, factors under s 75(2) of the Act.
As will be apparent on appeal, the husband challenges these conclusions and consequently the orders made by her Honour. He makes no attack on the factual findings made by her Honour.
To summarise his case, he asserts that by reason of several factors, her Honour did not have before her all relevant material relating to:
·a number of accidents experienced by the husband during the marriage and compensation received
·his health problems attributable to injuries from the various accidents
·the effect of the injuries on his capacity to work, both pre- and post-separation
·the effect of his injuries on his personality, demeanour and memory
·his liabilities
·use of monies before and after separation.
Consequently, the husband relied heavily upon an application to adduce further evidence relating to these matters.
The Trial Judgment
The necessary starting point for evaluation for his grounds of appeal and application to adduce further evidence is the Federal Magistrate’s judgment.
Her Honour found that the parties were married in April 1976 and separated in July 2008. The marriage was thus of 32 years’ duration.
At the time of trial the husband was aged 60 years and the wife was aged 52. The husband was a casual self-employed carpenter and the wife was in fulltime employment in hospitality.
The parties’ three children, aged 30, 27 and 25, were all living independently.
Her Honour noted that by the end of the trial there were no issues about the identity of the assets or their values. Her Honour found that the total value of the net pool for division between the parties including superannuation was $383,032. At [9], her Honour set out the respective assets and their values as follows:
Assets and liabilities at the date of hearing
$
Property [in south-western Sydney] (Joint)
400,000
[Croatian] Property (H)
negligible
Motor Vehicle Laser (W)
2,000
Motor Vehicle Holden (H)
1,000
Furniture/household contents (W)
4,000
Furniture/household contents (H)
negligible
Tools (H)
5,000
… Shares (H) …
4,032
Mortgage on [property in south-western Sydney](Joint)
(80,000)
St George Personal loan (W)
(13,000)
Superannuation (W)
60,000
TOTAL NET POOL INCLUDING SUPERANNUATION
383,032
There was no challenge to any of these findings.
After references to the legal approach required in the determination of property disputes, her Honour considered the contributions of the parties to the acquisition, conservation and improvement of the assets of the parties or either of them, as required by s 79 of the Act.
Although her Honour accepted the wife’s evidence of the husband’s violent conduct to her during the marriage, she ultimately made no adjustment for contribution in favour of the wife as a result of his behaviour. This is because her Honour found no causal link to show that the violence had any effect upon the wife’s contributions.
Notwithstanding her Honour’s ultimate finding, the evidence of the parties as to the conduct of the husband was contradictory. The wife’s evidence was corroborated by the children and ultimately her Honour found that because the husband had denied any such conduct, he was prepared to lie on that issue, and she made an adverse finding as to his credit.
Her Honour indicated that although she was not required to separately assess matters occurring after separation in arriving at an assessment of contributions, she intended to give individual consideration to the parties’ contributions both during cohabitation and during the period after separation, and then to assess each party’s contribution overall.
Her Honour was satisfied that there was no dispute that neither party had any assets or liabilities of any significance when they started living together.
Her Honour found that the wife had been in fulltime employment throughout the marriage with the exception of a few months after the birth of each child. Her Honour noted it was common ground that at times the wife worked in three jobs simultaneously, during the day as well as in the evening and on weekends, to make ends meet. Her Honour noted that the wife’s income from her present employment, which she had had for the last 21 years, was relatively modest.
Her Honour found the evidence of the husband’s employment history was much more problematic. Her Honour accepted the wife’s evidence, there being no substantial challenge to it, that the husband was not working for the first eight and a half years of the marriage as he claimed to have suffered a back injury in a car accident in 1975 and been seeking compensation for his injuries. Her Honour found the husband lost his claim for workers compensation but received about $6000 in or about 1986/7 from a third party claim relating to the 1975 accident.
Although the husband claimed to have worked in his own business as a carpenter from 1985 to 1996, he provided no verifying evidence of his income during that period. The wife contended that with the exception of a period of approximately 12 months in or around 1984, when the husband worked full time for the construction company N Company, the husband had only worked casually and intermittently and never for more than one to two days a week between 1985 and 1996. As a result of the absence of any other evidence and in light of her previous credit finding against the husband, her Honour accepted the wife’s evidence on this issue.
Her Honour found that on 6 June 1996 that the husband was involved in a motor vehicle accident which occasioned him injuries, preventing him from working until 1999 when he received a compensation payout. The wife agreed the husband did not work between 1996 and 1999 but rejected the husband’s contention that it was as a result of injuries, although she acknowledged giving false information to medical practitioners on instruction from the husband about injuries he claimed to have received.
The wife contended that whenever the husband received wages he kept them for his own use and did not contribute them towards mortgage repayments or the household accounts.
As far as the payment of compensation following the 1996 accident was concerned, her Honour found that the husband produced no verifying evidence in relation to the payment and was unable to make findings about the precise amount awarded or the composition of the award.
Her Honour found that as far as the husband’s employment after 1996 was concerned, his evidence was contradictory and confused. Her Honour noted in particular that he claimed to have earned less than $3000 a year after 1999 and to have made only minor financial contributions from his earnings after 1996, but on the other hand he claimed to have earned at times $1000 a week.
Her Honour was not assisted by the husband’s affidavit evidence which she found deficient on these issues and observed that he had not filed a taxation return since 1996.
Given that he did not adduce any medical evidence in admissible form as to the impact of any condition he suffered as a result of the 1996 accident, save for the compensation payment, her Honour was not satisfied that the husband made more than minimal financial contributions as a result of his work as a carpenter after 1996.
In summary therefore, in contrast to her Honour’s finding about the wife’s consistent employment, sometimes at three jobs, her Honour accepted the wife’s evidence that the husband was not working except for a period of about 12 months in or about 1984, and that the husband had only worked casually and intermittently and never more than one to two days a week from 1985 to 1996. From 1996 onwards, her Honour found that the husband had made no more than a minimal contribution as a result of his work as a carpenter, excluding any compensation payout.
Her Honour considered contributions to the purchase of the property in south-western Sydney in 1987 and accepted the wife’s claim that the parties borrowed $8000 from her parents. However, due to the length of the marriage, her Honour gave minimal weight to this contribution attributable to the wife.
Her Honour accepted that it was common ground that the parties borrowed the balance of the purchase funds from Westpac Bank and secured the loan by mortgage. The parties later demolished that house and built two separate houses on the land, selling one and retaining the other where the parties lived and where the wife continues to live. Her Honour accepted the wife’s evidence that the other house was sold because the wife could not afford the mortgage payments and accepted that the wife had met the household accounts and the mortgage payments from her income.
Her Honour found that in December 1999 the husband received compensation funds of approximately $196,000 net from his personal injury claim arising from his motor vehicle accident in 1996.
During 2000, the parties purchased an investment property on the NSW Central Coast using the husband’s funds. A year later the wife borrowed a further sum to build a ‘granny flat’ at the property, and after some other renovations, they sold the property in January 2003 for $340,000. The net proceeds of sale of approximately $183,557 were deposited to the parties’ joint account. In April 2003, the husband withdrew $78,979 from the account without consultation with the wife and on the following day the wife withdrew $78,000 to match the husband’s withdrawal and a further $8000 to purchase a motor vehicle for the parties’ son.
Her Honour observed that the husband did not explain how he applied the funds he withdrew from the joint account. The wife’s unchallenged evidence was that she applied approximately half the funds to living expenses, $16,000 to discharge her personal loan borrowed to improve the Central Coast property, $3250 to buy herself a car and $25,000 to meet expenses for the children.
Her Honour found that the damages verdict arising from the husband’s personal injury claim, and receipt by him of $196,000, was a contribution by the husband to be weighed and considered with every other contribution made by the parties.
Her Honour then noted that there were other contribution issues. Her Honour found that the wife was involved in a motor vehicle accident in 2004/5 and that in 2005 the insurance company paid $27,500 for the loss of the car she was driving. The husband obtained those funds. Although he deposed to the funds being applied to the costs of renovations to the property in which the parties were living, he provided no verifying evidence of the payments and her Honour accepted the wife’s evidence that the husband did not contribute the funds to the running of the household or the mortgage payments on their home.
Given there were no verifying documents, her Honour did not accept that subsequent employment of tradesmen was paid for by the husband. Her Honour finally noted, in the consideration of financial contribution, that the husband withdrew in excess of $34,000 from his personal account between
1 August 2008 and 31 October 2008 and was not able to give a credible explanation as to how the funds were applied. Her Honour accepted the wife’s evidence that only minimal, if any, funds were contributed toward the maintenance of the parties’ assets and for the benefit of the family by the husband.
Her Honour then considered the non-financial contributions of the parties during the marriage. Her Honour noted that it was common ground that the parties subdivided their land in south-western Sydney and that the husband was involved in the building of the second home, using his skills as a carpenter and connections in the building industry, and that the wife also provided assistance. Her Honour found that the husband also used his skills to make improvements to the investment property on the Central Coast after he received the funds from the personal injuries claim.
Her Honour found that the husband did some concreting at the home in south-western Sydney and arranged for tradesmen to do other work. Ultimately
her Honour found that as far as non-financial contributions were concerned, that the husband did play a role in the building of the second home in south-western Sydney, did undertake some improvements to the property on the Central Coast and was involved in repairs to and/or improvements of the home in south-western Sydney shortly before separation. However, the husband’s evidence was so vague as to detail that her Honour could not quantify the extent of these contributions.
Her Honour then turned to the contributions to the welfare of the family and maintenance of the home. Her Honour found on the basis of the evidence of the wife and the parties’ two daughters that the wife took sole responsibility for the household tasks and the caring responsibilities for the parties’ three children. Her Honour observed that this evidence was largely unchallenged by the husband. This evidence ultimately led her Honour to find that the wife undertook the vast majority of household tasks and the vast majority of the tasks involved in caring for the children until the children all left home six or seven years prior to the parties’ separation. Her Honour accepted the unchallenged evidence of the wife and the two daughters that the wife continued to assist the children financially and emotionally after they left the home.
Her Honour then considered, as she indicated that she would, the financial and non-financial contributions made by the parties after separation. Her Honour found that the wife continued to maintain the home and pay the household accounts and mortgage payments on the south-western Sydney home. Given the husband’s unsatisfactory evidence regarding whether or not he paid rent after separation, her Honour made no adjustment in his favour by way of contributions as a result of the wife retaining the use of the former matrimonial home. Her Honour was satisfied that the wife made the vast majority of the contributions both financially and non-financially after the parties’ separation, including accumulating additional superannuation as a result of her employment.
Her Honour then considered the effect of these findings and observed, in particular, that she had been unable to make precise findings about the husband’s contributions by way of income at any stage during the marriage. Her Honour accepted that the husband contributed approximately $196,000 in or about 1999 as a result of his personal injuries compensation, but found that he had made few other direct financial contributions and limited non-financial contributions. When considered against the constant income stream provided by the wife over 32 years and her greatly superior non-financial contributions, her Honour concluded that the wife was entitled to a significantly greater percentage of the asset pool which she assessed at 77 per cent of the net asset pool.
Her Honour then turned to consider the issues under s 75(2) to the extent that they were relevant. Her Honour noted that despite the husband’s evidence that his health problems affected his capacity to work, no medical evidence was produced as to any health problems he was presently suffering, nor as to how any such problems might affect his capacity to earn an income. Her Honour observed that the husband did not “suggest [that] his health is preventing him from working” (at [47]). Her Honour observed that the husband told the Court he had not consulted with medical professionals apart from his general practitioner since 1999 and required no medication. In light of this, her Honour did not accept the submission of counsel for the husband that the Court should find that the husband was labouring under difficulties.
Although the wife deposed to suffering from diabetes, high blood pressure and other ailments, she too adduced no medical evidence in relation to health problems or as to how those problems might affect her capacity to work in the future. Her Honour thus found no basis for an adjustment to either party as a result of health issues.
Her Honour found that the wife was living in the former matrimonial home, was employed and earned a net income of $664 a week, and had a superannuation entitlement of $60,000. Noting that the husband claimed to have no fixed place of abode and to be moving from place to place, her Honour found that he gave no credible evidence of his accommodation arrangements. Nor was she able to make any findings as to his current income or expenditure. She noted that he receives no Centrelink benefits and claimed to be earning less than $3000 a year. Her Honour found this inconsistent and said at [50], “I have come to the conclusion that the Husband has chosen not to disclose to the Wife or the Court, the truth about his current living or financial circumstances”. As a result, her Honour found no basis for an adjustment in favour of the husband.
Her Honour then determined that the wife should receive 77 per cent of the net asset pool and that she should be given the opportunity to retain the former matrimonial home and pay out the husband, but that if she were unable to borrow the funds necessary to do so, the house would need to be sold.
Grounds of Appeal
In an amended notice of appeal filed 4 July 2011, the husband identifies six grounds of appeal asserting error by her Honour. Some of those grounds overlap. It is convenient to summarise them as follows:
a)Grounds 1 and 3 assert that her Honour failed to have any or sufficient regard to the contribution made by the husband in December 1999 of $196,000 from his personal injury claim, and as a result a finding of contribution in favour of the wife of 77 per cent was manifestly excessive and beyond the limits of sound discretionary judgment.
b)Grounds 4 and 5 essentially relate to the same complaint, namely that her Honour’s discretion miscarried when she found that the husband’s contribution was only 23 per cent.
c)Ground 2 asserts that her Honour erred in failing to make any adjustment under s 75(2) of the Act in favour of the husband.
d)Ground 6 asserts that her Honour’s conclusion was manifestly unjust and therefore there was a failure by her Honour to properly exercise her discretion, leading to appellable error.
Counsel indicated that the grounds would be treated and argued in three parts, namely that:
a)her Honour failed to properly assess the husband’s financial contribution of $196,000 (Grounds 1, 3, 4 and 5)
b)her Honour failed to make any adjustment pursuant to s 75(2) of the Act
c)her Honour’s decision was manifestly unjust.
Further Evidence Application
Before dealing with the grounds of appeal, it is necessary to deal with the application by the husband to adduce further evidence. The husband filed an application to adduce further evidence from the following:
a)the husband himself
b)Dr A
c)Mr C
d)Mrs P
e)Mr P (son of Mrs P)
f)the husband’s solicitor.
At the commencement of oral argument, counsel for the husband submitted that the proceedings were conducted in such an incompetent manner by counsel for the husband at first instance that the ultimate result was infected by that incompetence. He contended that as the evidence now sought to be relied upon was all available at trial, it demonstrated the incompetence of counsel in not presenting the evidence or, alternatively, in not seeking an adjournment so that it could be presented. In each case, he submitted that the evidence, if accepted, would render the Federal Magistrate’s decision erroneous. Counsel conceded that effectively the success or failure of the appeal fell to be determined by the further evidence application.
As the respondent opposed the application, it becomes necessary for us to consider each piece of evidence sought to be adduced. We intend first to address the medical evidence.
Affidavit of the Husband
In his unsworn affidavit, the husband deposes to having been involved in the following accidents:
a)In 1975, he was involved in a motor vehicle accident and sustained minor injuries to his left shoulder and neck, and he received about $10,000 in damages for these injuries.
b)In 1977, while working in Canberra, he injured his back, which required a spinal fusion and he did not work for eight years afterwards. He deposes to receiving about $25,000 in damages for injuries sustained in this incident.
c)In 1989, he was involved in a motor vehicle accident in which he sustained injuries to his shoulder and chest and also suffered a panic disorder. He deposes to receiving about $10,000 in compensation for injuries sustained in this accident.
d)In or around 1992 or 1993, he was operated on for an injury to his right lower leg caused by a block of stone falling onto his leg at a construction site. He did not receive any damages from this incident.
e)In 1995, he sustained a laceration to his left wrist when a grinder blew up and cut him. He did not receive any damages from this incident.
f)In 1996, he was involved in a serious motor vehicle accident in which he sustained a head injury, laceration to the scalp, injury to the neck and right shoulder region, injury to his back and right lower limb, and seatbelt bruising to his chest. He contends that as a result of these injuries, he suffered post-traumatic stress syndrome; 35 per cent permanent impairment of his cervical spine; 25 per cent loss of the permanent use of his right arm at or above the elbow; 18 per cent permanent impairment of his thoracic spine; 15 per cent permanent impairment of his lumbar spine; and 20 per cent loss of the permanent use of his right leg at or below the knee. After legal costs, he received about $196,000 in damages for injuries sustained in this accident.
The husband also deposes to the following matters:
a)He is a qualified carpenter, having obtained qualifications in the former Republic of Yugoslavia.
b)In 1975, he worked in Canberra for a company doing carpentry, and had only one to two weeks off work after his first accident.
c)After this job, he worked in Canberra full time for about two years with a construction company, D Company. During this period, in 1977, he experienced his second accident, involving injury to his back. He was unable to work for about eight years afterwards.
d)He found it difficult to obtain employment due to his back injury.
e)In 1985, he started working as a self-employed carpenter. He secured a contract with N Company, working on the development of a large estate, and he worked at this site for about one and a half to two years.
f)In 1987, the land in south-western Sydney was purchased and the former matrimonial home constructed. The husband worked on the home as an owner-builder after demolishing the old house that stood on the land. He built the home while continuing in his business as a self-employed carpenter.
g)After the contract with N Company ended, he worked under sub-contract with a number of private builders throughout the Sydney metropolitan area. He worked full time, at least five days per week.
h)After the accident in 1989, he had two weeks off work.
i)In 1990, he commenced building another house on the land in south-western Sydney.
j)In or around 1992 or 1993, after suffering injury to his right lower leg, he had a few weeks of work.
k)In 1995, after the accident with the grinder, he had about two weeks off work.
l)In 1996, the husband experienced his most severe accident and he was unable to do any work for a number of years afterwards.
m)In or about 2000, after receiving compensation for the 1996 accident, the husband began renovation works on the Central Coast property, which had been purchased with the compensation monies. The husband also built a ‘granny flat’ on the property.
n)His heath prevented him from working regularly.
o)In or about 2003, the husband started taking on carpentry work, including framing, roofing and renovation, on a casual basis. He regularly took days off when he felt pain or felt unwell. During this time he was unable to work on successive days.
p)On average, from about 2003 to the date of trial, he worked for about 20 to 25 weeks per year, spread over the course of the year.
q)When he filed his last tax return in 1995/6, his taxable income was less than $30,000.
r)In 2008, he undertook substantial work on the former matrimonial home.
s)In that same year, in order to fund the work on the former matrimonial home, he borrowed $50,000 from Mrs P.
t)During 2011, he has had little work, having worked for a total of about eight weeks spread throughout the year.
u)He continues to experience pain in his back and shoulders and finds it difficult to work on successive days.
v)His work is now restricted to small domestic jobs that do not pay well and he is unable to perform the carpentry work for which he is qualified.
Affidavit of Dr A
In material annexed to his affidavit, Dr A describes having completed his specialist training as an occupation physician in 1986 and as having commenced self-employment as an occupational physician in 1992, in which capacity he, inter alia, visits worksites and assess and advises on the health effects of work in “all its shapes and styles”.
Also annexed to Dr A’s affidavit is his assessment report on the husband dated 11 August 2011. He deposes to his understanding the husband has experienced five, possibly six, events in which he has been injured, and says at p 2 that “[t]he aim of this assessment was to ascertain the cumulative extent that this has affected him”. After describing the various current complaints of the husband and noting that there were no investigations or x-ray reports available, Dr A said the following (at pp 6 – 7):
DIAGNOSIS
51.Mr [Dakin] has experienced the following conditions:
a)Musculo-ligamentous strain of his cervical and lumbar spine.
b)Probable discogenic pathology of the lumbar spine.
c)Musculo-ligamentous (and probably tendon) strain of both shoulders.
d)Closed head injury.
CAUSE
52.Mr [Dakin’s] injuries were associated with the five recorded events which he described.
He was asked specifically whether a vehicle accident had occurred in May 1989, when it was thought that he had experienced injury to a shoulder and his chest and possibly experienced other phenomena. He indicated that he could not remember such an event.
MOTIVATION AND ATTITUDE
53.Mr [Dakin] was a friendly and cooperative gentleman. He did his best to conform with everything requested of him. He regretted not being able to give more accurate information of some of these events as they had occurred so long ago.
54.He came across as being very keen in the concept of trying to continue with some form of occupation and being very frustrated that he was unable to do his full and normal job which he appears to have enjoyed.
TREATMENT
55.The major focus of his treatment was the neuro-surgical procedure to his lower back conducted by [a] Specialist Neuro-surgeon … in Canberra in 1977. There were no details of this. [The specialist neurosurgeon] has an excellent reputation and thus I would naturally assume that this procedure was conducted for excellent clinical reasons. Mr [Dakin] appears to have achieved a good result from this.
56. The remainder of his clinical management appears to have been conservative except perhaps for the suturing of the scalp wound after the vehicle accident of 1996.
57. He is not having any current clinical management other than taking analgesics and anti-inflammatories. I would, however, urge that he should be advised on a simple self-managed programme of stretching, exercising and also working out in the water, where he would be unlikely to damage himself. At this assessment, he was particularly stiff and inflexible and it is important that this should be more fully addressed.
PROGNOSIS
58. The realistic picture is that Mr [Dakin’s] condition will continue and as time goes on, there will be further deterioration to a multiplicity of joint structures due to increasing degenerative change.
Importantly, at p 11 Dr A opined that:
Mr [Dakin] is definitely not fit to return to work to his full and normal occupation of … carpentry. His only capacity for work would be on a part-time basis (very part-time) with very limited lifting, such as a maximum of 20kg conducted ergonomically with both upper limbs.
At p 12, Dr A sets out his responses to two ‘specific questions’:
1. The state of health of Mr [Dakin], including his current injuries and disabilities, and whether such disabilities are permanent.
a)Mr [Dakin’s] current condition is permanent. He has extensive dysfunction of his lower back, where there has been a surgical procedure and to a lesser extent, his cervical spine.
b)It has not been possible to demonstrate any significant dysfunction of any of the limbs, although attention is drawn to the global alteration of sensation in the right arm and right leg.
c)He also has a great deal of stiffness.
d)There also appears to be a deficit of balance.
2. The physical capacity of Mr [Dakin] for appropriate gainful employment.
He is capable of lightweight work with a maximum ergonomic lift of 20kg using both upper limbs. He should be able to manage this for two half days of the week, with at least a day between. His work capacity would be enhanced with attention to the remedial advice described in the Treatment section (para 57).
Affidavit of Mr C
At the request of the husband’s solicitors, Mr C, clinical psychologist, prepared a report on the husband dated 21 August 2011. He was provided with the following reports:
·report of Mr T, dated 7 August 1997
·report of Associate Professor W, dated 21 May 1998
·report of Dr S dated 17 April 1997
·report of Dr S, dated 31 August 1999.
Mr C interviewed and tested the husband. Although the earlier reports from the various health professionals were attached, there is a useful Executive Summary appearing in Mr C’s material.
In this, he reports that the husband was involved in two motor vehicle accidents, one in 1975, resulting in minor injuries to his left shoulder and neck, and another in 1989, reportedly resulting in chest and shoulder injuries and panic attacks. He also suffered several work injuries, the most serious of which was in 1977 while working for D Company, resulting in a lower back injury which required a spinal fusion (he was absent from work for eight years subsequently).
Mr C reports that the husband was able to establish his own roofing and framing business in 1986. He was sub-contracting to a number of building companies until his accident in 1996, at which time he “reportedly worked up to 12 hours a day, 7 days a week” (at 18.1.2).
Mr C further reports that as a result of the 1996 accident, the husband did not work for three years. The history he provided suggested that a severe traumatic brain injury resulted in a post-concussive syndrome, including a tendency to anger and irritability, memory difficulties, headaches, sleep disturbance, intolerance of noise, alcohol and being in the sun, and an Adjustment Disorder, including nightmares relating to the accident, depression, anxiety, driving anxiety and agitation.
The history supplied indicated that he was treated with several anti-depressant medications. Mr C refers to Dr S’s observation that “complicating factors were family and iatrogenic influences reinforcing the sick role, dependent personality and his difficulty acquiring new skills which limited his employment prospects” (at 18.2.2).
Mr C writes, at 18.2.3, that:
It appears that as a result of the 1996 accident, a combination of factors (post-concussional syndrome, Adjustment Disorder, family conflict at least partly associated with emotional changes due to the 1996 accident, reinforcement of the sick role and chronic pain complaints) prevented
Mr [Dakin] from resuming full-time pre-injury work.At 18.2.3, Mr C indicates that the husband “currently works on a casual basis (on small project renovations)” and opines that:
It is likely that he will continue to do limited renovations until retirement (he is 61). He has few transferrable skills and has limited English language and academic abilities which will greatly restrict his job seeking options in other fields. His tendency to temper outbursts, which may relate to traumatic brain injury, is likely to affect his ability to work with others.
Mr C concluded that “[t]he 1996 accident resulted in a moderately severe traumatic brain injury and associated post-concussional syndrome which should have improved by 3 years post-accident” (at 18.9). However, according to Mr C, “the accident caused psychological trauma and emotional changes which contributed to family dissolution and ongoing stress and resulted in an Adjustment Disorder” (at 18.9).
Mr C observed that the husband “continues to report shoulder and lower back pain, which has apparently limited his employment prospects and ability to work full-time” (at 18.9). He further opines that the husband “is unlikely to be able to improve his work prospects in the future given his age and proneness to temper outbursts and pain complaints and Adjustment Disorder” (at 18.9).
In addition to these affidavits, counsel referred to a summary of material contained in Annexure C of the husband’s affidavit sworn 1 July 2010, which was ruled inadmissible by the Federal Magistrate.
The further material sought to be adduced, which had been excluded at trial
In his report dated 7 August 1997, Mr T, clinical forensic psychologist, indicated that “[t]he nature of his head injury does not suggest that he would have suffered from any generalised cognitive impairment although he certainly has had a very significant head injury” (at p 8). In particular, Mr T concluded (at p 8) that:
The fact that [Mr Dakin’s] accident occurred more than 12 months prior to this consultation suggests that any improvement in his cognitive state has already happened and he is probably going to be left with his current difficulties on a permanent basis.
A report dated 25 March 1998 by a rehabilitation counsellor indicated that the husband was, at that time, taking ongoing medication (at p 2).
A report of Dr B, orthopaedic surgeon, dated 8 September 1999, noted that an MRI scan of the husband’s cervical spine showed evidence of changes at the C5/6 and C6/7 level. An MRI scan of his lumbar spine revealed an annular tear at L4/5. The doctor concluded (at p 2):
I felt this gentleman should avoid activities that are particularly arduous in nature or required [sic] him to do bending or twisting movements of his back. This gentleman would perhaps require one hour of domestic assistance per week to help him with arduous type activities at home.
Dr K, in a report dated 20 October 1999, indicated that the husband “had a history of a previous injury to his lumbar spine”, although the husband claimed to have made a “full medical recovery … since his laminectomy in 1977” (at
p 2). The doctor went on to note that as a result of the motor vehicle accident on 6 June 1996, the husband suffered:
·closed head injury resulting in disturbances to his cranial nerves and cerebellar functions
·acute hyperflexion/hyperextension cervical sprain injury (cervical whiplash)
·cervico-genic and vascular headaches
·right biceps tendonitis and associated right gleno-humeral joint capsulitis
·post traumatic stress syndrome
·L4/5 right postero-lateral lumbar disc lesion with associated sciatica
·fracture of right leg and sternum.
The doctor concluded that it was “reasonable to assume that any further improvement in his condition is unlikely to occur” and that “the permanent impairment and disability which remains with [Mr Dakin] will render him unfit” to work as a carpenter (at p 7). The doctor concluded, at p 8, that the husband’s condition had “stabilised” with:
·a 35 per cent permanent impairment of the cervical spine
·a 25 per cent loss of the permanent use of the right arm, at or above the elbow
·an 18 per cent permanent impairment of the thoracic spine
·a 15 per cent permanent impairment of the lumbar spine
·a 20 per cent loss of the permanent use of the right leg, at or below the knee.
The report of an occupational therapist, dated 21 July 1998, sets out the history of the husband’s injuries and indicated ongoing problems.
A report dated 28 October 1997 and prepared by a pain management clinician indicated that there was a permanent impairment.
Before considering the submissions in support of admission of further affidavit evidence, we need to make reference to the material sought to be relied upon by the husband at trial, as annexed in Annexure C to the husband’s affidavit sworn 1 July 2010, and the submissions in relation to it. We have already referred to this material at [64] to [70] inclusive, which it appears her Honour excluded on the basis that the documents were not in admissible form.
The basis of the rejection of the evidence is unclear. Counsel for the wife had objected to the documents, asserting that they were not admissible as a result of ss 79 and 177 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Section 79 of the Evidence Act provides an exception for opinion evidence if the person has specialised knowledge based on the person’s training, study or experience. It would seem fairly clear that some, if not all, of this material fell into this category.
Section 177 provides a procedure for proving expert evidence without requiring the expert to attend as witness. It requires a certificate from the person whose evidence it is sought to admit. The party seeking to tender the expert certificate must serve on the other party a copy of the certificate and a written notice stating the party proposes to tender the certificate as evidence of the opinion. This was not done.
In addition, however, s 69 of the Evidence Act exempts business records from these requirements and it seems to us that this section might arguably have applied to some of the material in Annexure C. However, there is no ground that asserts her Honour erred in failing to admit the evidence and it seems that at trial, counsel for the husband conceded that the documents were not admissible in the following exchange:
HER HONOUR: I see. So it goes right to the end of the annexures.
[COUNSEL FOR THE WIFE]: Yes.
HER HONOUR: Is that all annexure (c)?
[COUNSEL FOR THE WIFE]: That - yes, your Honour.
HER HONOUR: I see. Thank you. And you object to the whole of that annexure?
[COUNSEL FOR THE WIFE]: I do, your Honour.
HER HONOUR: Yes, what do you say about that, [counsel for the husband]?
[COUNSEL FOR THE HUSBAND]: Thank you, your Honour.
Your Honour, the simple reality is – and what my friend says is quite correct. That’s as the Evidence Act stands now. At the time these reports were prepared, this was not the requirement. The – the – those medical reports are, as I understand it and I’ve no reason to doubt this for a second, were in admissible form when the compensation claim came before the district court [sic] I think in 2000 and - what year was it?HER HONOUR: Yes, but … I’m dealing with the Evidence Act as at today. This is the day that I'm - - -
[COUNSEL FOR THE HUSBAND]: No, but the point I wanted to raise is this. If the documents were legally competent, pursuant to the then Evidence Act, and were in fact accepted into evidence albeit in another place. Does – is there some legitimisation passing to those reports. Because at the time that those reports were prepared, those reports were prepared as was then required by the Evidence Act. And were in good form to be submitted to a judge in another court room.
HER HONOUR: How’s that – how’s that relevant?
[COUNSEL FOR THE HUSBAND]: Well I’m just – I’m floating this because of the age of these documents. I’m wondering if some legitimacy has been imparted to the documents because they were legitimate at the time albeit that my friend criticises them.
HER HONOUR: I’m not suggesting they’re not – the question is whether they’re admissible. Not whether they’re legitimate.
[COUNSEL FOR THE HUSBAND]: Well, they’re certainly – the documents were certainly admissible back in – when they were created. These – these are changes to the Evidence Act - -
HER HONOUR: I imagine all these people would have been available, had the matter been heard. I don’t know whether it was settled or not because I’ve got precious little information about that.
[COUNSEL FOR THE HUSBAND]: I – I understand it was contested. That’s my understanding.
HER HONOUR: Well, if there were – if there was evidence given I would have thought all of these people would have had to have been available. I don’t know whether it was contested or not. Your client doesn’t tell me that, does he?
[COUNSEL FOR THE HUSBAND]: Can I say this to your Honour, we have had no requests to have any of these doctors available for cross-examination. And that would weigh, I submit, heavily upon your Honour if my friends now seek to simply – with a sweep of the hand – dismiss them. Why did they not request these doctors to be available for cross-examination? No such request has ever been made.
HER HONOUR: Well, [counsel for the wife’s] point is that - - -
[COUNSEL FOR THE WIFE]: Well, your Honour. Let me – let me address that.
HER HONOUR: [counsel for the wife’s] point, as I understand it, is that the documents are not in an admissible form. So, they are objectionable before even getting to that point. But … you don’t seem to disagree with that. I just need to be clear.
[COUNSEL FOR THE HUSBAND]: I’m – I’m fearful that as the Evidence Act stands now, he’s quite right.
HER HONOUR: All right. So you – you accept that they’re not admissible in their present form. And in any event …
[COUNSEL FOR HUSBAND]: Yes.
HER HONOUR: As I indicated earlier, how would they help me? My – the question before me is whether or not this accident or injuries caused to the husband by this accident, have resulted in impairment to his capacity to earn an income. Or work.
[COUNSEL FOR THE HUSBAND]: Well I can – I can take you to the then words of the different medical specialists .
HER HONOUR: But – but I can’t speculate on what’s going to happen. Neither can anyone.
(transcript 27 January 2011, p 27, lines 11 – 46; p 28, lines 1 – 46; p 29, lines 1 – 2)
Consideration of the Application to Adduce Further Evidence
Counsel for the husband commenced by submitting that the question of further evidence should be considered in light of the proceedings having been conducted in an incompetent manner.
Counsel relied upon what was said in R v Birks (1990) 19 NSWLR 677 and Gillies v Director of Public Prosecutions [2008] NSWCCA 339. In Gillies, Basten JA, Hislop & Price JJ said at [26]:
… A miscarriage of justice will generally be capable of demonstration only by reference to the objectively verifiable circumstances of the trial. What takes place between an accused person and his or her lawyer will usually be irrelevant to that assessment: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8] (Gleeson CJ). Where counsel has been briefed, the general rule is that the accused will be bound by counsel’s conduct of the trial. If counsel fails to follow instructions, the final resort of the disaffected client is to withdraw instructions. Why that is done is usually no concern of the prosecution or the Court. However, in Nudd at [19] Gleeson CJ continued:
“The description of conduct as an ‘error’, and the characterisation of something that happened as ‘unfair’, could in some circumstances turn upon knowledge of why something was done or omitted, and this, in turn, might reveal a departure from standards of professional duty. As Lord Carswell said in Teeluck v Trinidad and Tobago [2005] UKPC 14; [2005] 1 WLR 2421 at 2433, there may be rare cases in which counsel’s misbehaviour or ineptitude is so extreme as to constitute a denial of due process to the client. McHugh J gave two examples in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]: cases where, for no valid reason, counsel fails to cross-examine material witnesses, or does not address the jury. (I take his Honour to have been referring to cases where there is no rational explanation of counsel’s decision; not to cases where an appellate court simply thinks it was unwise to fail to cross-examine. That is indicated by his Honour’s treatment of failure to cross-examine and failure to address as like cases). In Teeluck v Trinidad, Lord Carswell went on to say that, normally, ‘the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict’: at 2433.”
In R v Birks, Gleeson CJ (as his Honour then was) summarised at p 685 the relevant principles in relation to whether the conduct of counsel at trial might create a miscarriage of justice, rendering the decision amenable to successful appeal. His Honour summarised the relevant principles as follows:
1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
The admission of further evidence in proceedings in the Family Court of Australia or the Federal Magistrates Court is governed by s 93A(2) of the Act, which says:
(2)Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a)by affidavit; or
(b)by oral examination before the Family Court or a Judge; or
(c)as provided for in Division 2 of Part XI.
In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow & Callinan JJ said at 201:
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.
The question, therefore, is not whether the proceedings were conducted in such an incompetent manner so as to generate a miscarriage of justice, but rather whether the further evidence sought to be adduced, if accepted, would demonstrate that the order under appeal is erroneous. The admission of further evidence, if it fulfils those criteria, is discretionary, and it may be that the discretion would be more readily exercised where there was incompetence by counsel, if it were established. However, upon an application of s 93A(2), if the Court was satisfied that further evidence, if accepted, would demonstrate that the order under appeal is erroneous, and would determine to exercise its discretion to admit it to remedy an injustice, then competence of counsel in relation the conduct of the case may not be relevant and thus not require consideration. The primary focus thus should be to look at the effect of the further evidence on the order under appeal.
Without therefore being required to determine the question of the incompetence of counsel, we observe that from a general consideration of the transcript and the way the matter proceeded, it would be difficult to infer that counsel was incompetent or, to fairly put it another way, that counsel was not acting on instructions. In Lint & Lint [2011] FamCAFC 115, the Full Court referred with approval to the decision of Rares J (with whom North and Emmett JJ agreed) in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284. In Wills, Rares J wrote:
52.The principles upon which the discretion to admit further evidence in an appeal under provisions similar to s 27 of the Act may be exercised were considered by the High Court in CDJ v VAJ (1998) 197 CLR 172 … In essence, the Court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations developed by the common law may be relevant to the exercise of that discretion (although not as binding rules in the way that the common law fixed). The discretion is more ample than the common law provided. The issues involved in the appeal will point to the considerations which are, or are not, extraneous to the exercise of the power: CDJ 197 CLR 172 at [108].
53.The power is remedial in nature and its principal purpose is to give a Full Court, or a judge of the Court exercising the appellate powers of the Court, a discretion 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.
54.In Williams v Grant [2004] FCAFC 178 at [37], Lander J (with whom North and Dowsett JJ agreed at [1] and [10] respectively) said that the power to receive further evidence was discretionary, and that whilst there were no fixed rules which would govern the exercise of the discretion, matters which were usually relevant include whether the applicant exercised due diligence in attempting to procure the evidence before the trial, but the evidence was not available at trial, and if the evidence had been available at trial, the opposite result would have been obtained. In VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 186 at [18], Gray, Moore and Emmett JJ held that a relevant consideration in exercising the discretion to admit further evidence under s 27 was whether the evidence proffered would be likely to have produced a different result, had it been available at the trial.
55. The discretion given by s 27 does not, however, have the practical effect of eliminating the distinction between original and appellate jurisdiction. It is a power which exists to serve the demands of justice: CDJ 197 CLR 172 at [111].
What does appear from the transcript of the proceedings at trial is that while there were manifest deficiencies in the evidence, her Honour was aware of them and it is by no means clear that they could be attributed to counsel. Much of the evidence given by the husband was difficult to follow and lacking in particularity, as her Honour found. Two matters in particular suggest that the deficiencies in the evidence lay with the husband rather than his counsel.
The first arises from the submission of counsel for the appellant husband that a competent barrister would have asked for an adjournment when the
Federal Magistrate identified that there was no up-to-date medical evidence indicating the husband’s capacity for work. An exchange between her Honour and counsel for the husband provided as follows:
HER HONOUR: You’ve got no current assessment of this man’s capacity for work.
[COUNSEL]: This is – what your Honour is saying is – is very true. But the – the nature of the reports, the medical reports by eminent reporters, does not speak in terms of “at a future date there is a glimpse of hope”. They are simply saying this is a permanent injury. Be it psychiatric or orthopaedic.
HER HONOUR: But your client says he is working and the only reason he’s not working more is because the building industry is depressed. He doesn’t say that he can’t work because of all these other matters. His own case is that he isn’t doing as much as he would like to be doing because there’s a lot of competition for jobs and there’s not a lot of work.
[COUNSEL]: Yes. And I would invite your Honour to find that there’s an overlay over that situation.
HER HONOUR: I can only deal with the evidence … I can’t deal with what you might tell me. I can deal with the evidence.
[COUNSEL]: Well, we have no recent - - -
HER HONOUR: I’ve got no medical evidence at all of a person who allegedly had a serious injury back in ‘96, as to his current capacity for work. I would have thought that’s a fundamental part of your case.
[COUNSEL]: I would accept that what your Honour says is 100 percent accurate. But in a situation where an applicant in this court has extremely limited financial resources, there was simply – if you take this evidence from the bar table – there simply wasn’t the money to obtain those reports of a current vintage.
HER HONOUR: Well I can only deal with the evidence. But thank you … for telling me what your client’s position is.
(transcript 27 January 2011, p 22, lines 1 – 32)
In cross-examination, the husband was asked by counsel for the wife about the effect of his previous injuries:
[COUNSEL]: When was the last time, Mr [Dakin], that you saw a psychologist?---I can’t remember.
When was the last time you saw a psychiatrist?---Between ‘96 and ‘99.
Thank you. Do you take any medication?---No. Only Panadol.
HER HONOUR: Was that ‘96 and ‘99, [counsel]?
[COUNSEL]: That’s as I understood the answer, your Honour, yes.
HER HONOUR: Yes, thank you. And in answer to the last question the answer was no?
[COUNSEL]: Only Panadol, your Honour.
Do you regularly see a general medical practitioner? Do you understand the question?---Yes, I do.
And the answer is?---I see him sometime.
And when you say “sometime”, is that once or twice a year?---I don’t know. I can’t remember.
If you saw a general medical practitioner once a week, would you be able to remember that?---Yes, but I’m not seeing.
All right. So help me if you can, please, Mr [Dakin]. Do you see a general medical practitioner once a month?---No.
If I said to you that you rarely see a general medical practitioner, what would be your answer?
HER HONOUR: I think just put the question, [counsel]. I think it’s too complicated.
[COUNSEL]: May it please the court.
Do you rarely see a general medical practitioner?---When you need him.
In the past year, have you had a need to see a general medical practitioner? ---I saw him last year.
Are you able to say whether that was in the latter half of last year, or the first six months?---I can’t remember.
(transcript 28 January 2011, p 125, lines 14 – 45; p 126, lines 1 – 12)
Her Honour was aware of the problem, as evident in the following discussion with counsel for the wife:
HER HONOUR: Well it seems to me that it’s – it’s common ground that the husband had a motor vehicle accident in June ‘96 and that he suffered injury. And that that put an extra burden or a substantially extra burden – a substantial extra burden on the wife.
[COUNSEL]: Yes, your Honour.
HER HONOUR: In terms of her need to work and in terms of her need to assist with every aspect of day to day living with the children. And there doesn’t seem to be any issue about that, it seems to me, because it’s the wife’s case that she had to make that additional contribution. But it’s also the husband’s case that the wife had to make that additional contribution.
[COUNSEL]: Yes, but there’s no concession, your Honour, in respect of the husband’s capacity to work.
HER HONOUR: Well I don’t have any current evidence about that. That’s the difficulty.
[COUNSEL]: Well it’s a deficiency in the husband’s case.
(transcript 27 January 2011, p 24, lines 27 – 46)
The cross-examination to which we have referred occurred after her Honour had raised this matter. However, as we have indicated, the question is, initially at least, not whether evidence that might have been available was or was not called, nor why, but whether, if evidence is now available, and if accepted, it would demonstrate that the order under appeal is erroneous and the Court’s power to admit the evidence as part of its remedial powers should be exercised. We turn to that consideration.
Medical Evidence
We have already set out the evidence sought to be introduced by the husband. There are two categories of medical evidence sought to be introduced. The first is material which was attached to the husband’s trial affidavit but rendered inadmissible by her Honour at the hearing. The second relies upon the acceptance of further affidavits. The application to adduce further evidence sought to rely upon the affidavits of Dr A and Dr S. In submissions, counsel for the appellant sought to rely upon the affidavit of Dr A, but as Dr S was not available to give evidence, leave was sought to rely an affidavit sworn by Mr C.
In addition to this material, although not sought in the application to adduce further evidence, counsel for the appellant sought to have the court take into account the medical reports annexed to the husband’s trial affidavit in Annexure C, to which we have referred. Counsel referred the court to the decision of the Full Court in LAM & RAM [2005] FamCA 868 where Kay, Holden & Boland JJ found no error in the trial judge admitting medical and other expert reports annexed to an affidavit of a party, not withstanding that notice had not been given under s 67 of the Evidence Act. The trial judge admitted the evidence pursuant to s 78 of the Evidence Act as opinion evidence on the basis that it would be too expensive to require the doctors when there was no real dispute, and that if necessary, cross-examination could be allowed. The Full Court found this to be a proper exercise of discretion and that the basis for the admission of the evidence of the husband was reasonably open to the trial judge. See also the observations of Hill J in Tsang Chi Ming & Ors v Uvanna Pty Ltd & Anor (1996)140 ALR 273, 282.
Counsel for the husband submitted that this evidence should have been accepted by her Honour, as she had the discretion to do so.
There are two problems with this submission. The first is that as we have previously noted, it is not a ground of appeal that her Honour failed to admit the evidence. Secondly, while it was accepted by counsel for the husband that this was a matter for the exercise of her Honour’s discretion, counsel at trial had apparently accepted that the documents were not admissible in their present form, as we have indicated at [73].
Accepting, as counsel did before us, that it was difficult to assert that
her Honour had erroneously exercised her discretion, in view of the concession by counsel at trial that the material was inadmissible, then this Court could have regard to it as further evidence under s 93A(2).
Given that failure to admit the evidence does not form a ground of appeal, we cannot see any basis for considering the material other than as part of an application for the admission of further evidence and we will consider it on that basis.
Before returning to the material in Annexure C, we intend first to consider the evidence of Dr A and Mr C. In his written analysis of the evidence, counsel for the appellant summarised the report of Dr A as follows:
1.1.1This report is dated 11 August 2011. It sets out that the Husband’s current complaints are:
a) Pain in the right shoulder with reduced movement and power. [para 11]
b) Pain in his neck with stiffness. [para 14]
c) Pain in lower back occasionally radiating down to right leg [para 15] associated with pins and needles going down as far as his toes.
d) Ache in his knees the left being more affected than the right. [para 16]
1.1.2 The Husband has experienced the following conditions:
a) Musculo ligamentous strain of his cervical and lumbar spine.
b) Probable discogenic pathology of the lumbar spine.
c) Musculo ligamentous (and probably tendon) strain of both shoulders.
d) Closed head injury.
1.1.3 Concludes the Husband is not fit to return to work to his full and normal occupation and that his only capacity for work would be on a part-time basis (very part-time with very limited lifting). He later recommends “light weight work which he should be able to manage ‘for two days of the week, with at least a day between’”.
(original emphasis)
Affidavit of Mr C, clinical psychologist, sworn 22 August 2011
This affidavit contains a report, dated 21 August 2011, by Mr C which concludes as follows:
a)The husband did not report having any psychiatric condition prior to the 1996 accident (at [4.1])
b)An MRI brain scan performed in 1997 was reported as normal (at [11.1])
c)
The report of Mr T, dated 07 August 1997, concluded that
the husband “had not suffered any intellectual decline due to head injury but had permanently impaired attention/concentration, and fluency, which Mr [T] attributed to frontal lobe damage” (at [11.2]).
To give context to the reports that were not in evidence before her Honour, the husband contends that their relevance is as described in the affidavit of his solicitor, sworn 8 August 2011 and filed in support of the application to adduce further evidence. The husband’s solicitor asserts their relevance to be as follows:
5. The bundle of medical reports revealed that the appellant had been involved in a number of accidents, being:-
(a) in 1975 the appellant was involved in a motor vehicle accident in Canberra when he sustained minor injuries to his left shoulder and neck. The appellant apparently received $10,000.00 in damages for injuries sustained in the accident.
(b) in 1977, while working in Canberra, the appellant injured his back, which required a spinal fusion and he did not work for 8 years after this surgery. The appellant apparently received $25,000.00 in damages for injuries sustained in this incident.
(c) in 1989 the appellant was involved in a motor vehicle accident … when he sustained injuries to his shoulder and chest and also suffered panic disorder. The appellant apparently received $10,000.00 in compensation.
(d) in 1992/3 the appellant was operated on … for an injury tho [sic] his right lower leg, caused by a block of stone falling onto his leg on a construction site.
(e) in 1995 the appellant sustained a laceration to his left wrist when a grinder blew up and cut him.
(f) in 1996 the appellant was involved in a serious motor vehicle accident, when he sustained a head injury (he was unconscious for about 24 hours), a laceration to his scalp, and injury to his neck and right shoulder region, an injury to his back and right lower limb and a seat belt bruise to his chest wall area. As a result of these injuries, the appellant suffered Post Traumatic Stress Syndrome; a 35% permanent impairment of his cervical spine; 25% loss of the permanent use of right arm, at or above the elbow; 18% permanent impairment of his thoracic spine; 15% permanent impairment of his lumber spine; and 20% loss of the permanent use of his right leg at or below the knee.
The appellant apparently receive the sum of $300,000.00 as a result of the injuries sustained in this accident.
6. The appellant’s affidavit sworn 1 July 2010 made no reference to the accidents referred to in paragraph 5 above, other than a reference to the “very severe accident in 1996”. Moreover, there was no evidence contained in the appellant’s affidavit as to his current disabilities, nor was his capacity to work the subject of specific evidence in that affidavit. Further, there was no evidence in the appellant’s affidavit as to the amount of compensation he received.
7. If evidence as to the appellant’s medical condition, as at the date of trial, together with any restrictions on his capacity to work had been lead from the appellant and appropriate medical practitioners at the trial before Sexton FM, it is highly likely that an adjustment under s.75 (2) would have been made in favour of the appellant.
8. Further, if evidence had been adduced before Sexton FM of the various accidents in which the appellant was involved, together with the sums of money he received for damages, it would be anticipated that the percentage of the appellant’s contribution, in terms of s.79 would have increased markedly.
(references to appeal book page numbers omitted)
Discussion
Against those submissions it is necessary to consider the other evidence before her Honour, particularly that of the husband, and to consider her Honour’s findings. Counsel for the appellant contended that, in essence, the learned Federal Magistrate was not fully aware of:
·all of the injuries the husband had suffered, particularly his head injuries
·the extent to which these injuries affected his capacity to work during the marriage
·some of the monetary amounts he had received for accidents prior to the significant accident in 1996.
In particular, counsel asserted that the evidence now sought to be admitted indicated that the husband had suffered an injury in each of the years 1975, 1977, 1989, 1992/3, 1995 and 1996. It is submitted that the substantive body of medical evidence would, if admitted, lead to a conclusion that her Honour had undervalued both the husband’s contributions and his future needs.
In his trial affidavit, the husband referred to his severe car accident in 1996. However, at [31] of his trial affidavit, he annexed a bundle of medical reports (Annexure C), with a summary of them following at [32]. His summary included reference to closed head injury and brain damage to frontal lobes, as well as a back injury in the 1970’s that resulted in a laminectomy. However we note that the husband says at sub-paragraph (b) of [31], “Despite that laminectomy, I was able to function as a carpenter”.
At trial, counsel for the husband indicated to her Honour that the husband had permanent injuries, be they “psychiatric or orthopaedic” (transcript 27 January 2011, p 22, line 6). However, her Honour pointed out:
But your client says he is working and the only reason he’s not working more is because the building industry is depressed. He doesn’t say that he can't work because of all these other matters. His own case is that he isn’t doing as much as he would like to be doing because there’s a lot of competition for jobs and there’s not a lot of work.
(transcript 27 January 2011, p 22, lines 8 – 12)
In the husband’s trial affidavit, at sub-paragraph (l) of [12], he says, “When the wife tries to suggest that I have not worked since 1985 or words to that effect I say that is simply not correct. I have worked continuously and was working in my own business until the accident in 1996”. The wife’s evidence was to the contrary. She asserted that the husband had not worked since 1985. It is difficult to see how counsel for the appellant can now contend, as he did, that the injuries to the husband prevented him from working, something about which he asserts her Honour was unaware or did not give weight to, when the husband’s evidence in his trial affidavit was clearly to the contrary. Counsel sought to explain this difficulty by suggesting that the husband may have been affected by his injuries and had imperfect recollection.
Counsel, as we apprehend it, submitted that in considering the husband’s evidence, we should allow for the fact that the husband suffered a head injury and could not remember earlier accidents. The problem with that submission is that the evidence about the earlier accidents now sought to be admitted was contained in Annexure C to the husband’s trial affidavit. It is, with respect, a disingenuous argument. Clearly the annexures to the husband’s affidavit set out his prior history and the husband could not have been in any doubt about it because he annexed the material. In any event, an example taken from the material indicates the fallacy in this argument:
a)In his psychological report on the husband, in relation to the husband’s health prior to the 1996 accident, Mr T says as follows (at p 3):
He said in 1975 he was involved in a motor vehicle accident in which he injured his left shoulder. He said that this injury resolved. He also said that he has had some minor injuries associated with his work but only one injury was of any significance. This occurred in 1977 when he injured his back. However he said that this injury also resolved.
b)Dr B, providing a report on the husband in relation to the 1996 injuries, says of his history (at p 1):
I saw this gentleman at the request of Dr. [M] on only one occasion. That was on 28th October 1998. At that stage I obtained a history that he had been involved in a motor vehicle accident on 6th June 1996. He was a front seat passenger in a car and was wearing a seat belt. He was a self-employed carpenter. The vehicle in which he was travelling was struck on its side. As a result of this he sustained a head injury (he was knocked out for about 24 hours). He sustained a laceration to his scalp, an injury to his neck and right shoulder region, an injury to his back and right lower limb and a seatbelt bruise to his chest wall area. Of significance he had a laminectomy in 1977 but had recovered well from this surgical procedure. He advised me he had not had problems with his other injured parts prior to the motor vehicle accident.
Further on, Dr B says (also at p 1), “Following the laminectomy in 1977 he had been capable of getting back to full employment and had coped with his work activities”.
In our view it is apparent that the husband had informed medical practitioners at the time of, and following, his injury in 1996 that his previous injuries had not prevented him from working. A third example is sufficient, we think, to dispose of the point.
A pain management clinician, in his medical report dated 28 October 1997, says, in response to questions put to him: “I was unaware of any pre-existing factors contributing to his present disorder. There has been evidence of prior injuries, but which did not preclude return to full time employment, nor did he report a significant pain problem” (at [9]).
This is consistent with the evidence the husband gave in his trial affidavit and at trial.
The test in CDJ v VAJ (supra) is that the Court’s discretion to admit further evidence is predicated on the basis that, if accepted, the further evidence “would demonstrate that the order under appeal is erroneous”. The admission of the material in Annexure C to the husband’s affidavit could not do that, because it supports the evidence that the husband gave. Thus in the exercise of our discretion we would not admit the reports contained in Annexure C of the husband’s trial affidavit, as they do not demonstrate that the evidence, if accepted, would render the order under appeal erroneous.
Finally, in relation to Annexure C, the husband’s solicitor’s affidavit in support of the application to adduce further evidence contends that the material also provided details of funds available to the husband that were not taken into account by her Honour. This he set out at [8]:
Further, if evidence had been adduced before Sexton FM of the various accidents in which the appellant was involved, together with the sums of money he received for damages, it would be anticipated that the percentage of the appellant’s contribution, in terms of s.79 would have increased markedly.
There is no ground which specifically relates to a failure by her Honour to account for financial contributions that were made by the husband prior to his 1996 accident. The grounds relating to contributions are that her Honour did not adequately take into account the funds received in December 1999 after the 1996 accident, and that the percentages arrived at by her Honour in relation to contributions – namely 77 per cent to the wife and 23 per cent to the husband – were manifestly unjust. However, the latter would enable us to consider whether there were any significant funds that her Honour had overlooked and which would affect the outcome.
The husband’s solicitor contends in his affidavit that there were occasions on which there were sums in compensation received by the husband that were not taken into account by her Honour. They were:
a)in 1975, $10,000 in damages for injuries received in a motor vehicle accident
b)in 1997, a work injury in which he received $25,000 in damages
c)in 1989, a motor vehicle accident in which he received $10,000 in compensation.
These assertions come in part from a report of Dr S dated 17 April 1997, which is enclosed in Annexure C to the husband’s trial affidavit. Reporting on the personal history provided by the husband, Dr S writes (at p 7) that:
Mr. [Dakin] injured his back lifting shutters ….
Mr. [Dakin] reports undergoing a spinal operation carried out by [a specialist neurosurgeon] in 1977.
Mr. [Dakin] underwent a spinal operation because of an injury to his L5S1 lumbo sacral intervertable [sic] disc incurred while he was working as a carpenter on the 3/5/76. …
Mr. [Dakin] was unable to work for about 8 years after the operation which took place in 1977. It took Mr. [Dakin] 8 years to receive Workers Compensation as Canberra at that time had different laws. He received about $25,000 or $30,000 in compensation moneys.
Mr. [Dakin] also describes a motor vehicle accident which occurred … in Canberra [in 1975].
…
Mr. [Dakin] received $10,000 in regard to Compensation moneys in regard to the motor vehicle accident.
The third asserted contribution comes from a second report by Dr S dated 31 August 1999, in which she reports (at p 9):
In March 1989 Mr. [Dakin] was involved in a motor vehicle accident … when he was driving with his wife in the passenger seat and 3 children in the rear passenger seat. Mr. [Dakin] had no time off work. … Mr. [Dakin] received $10,000 in compensation.
We do not consider that these three asserted contributions meet the test in
CDJ v VAJ(supra) for the following reasons:
a)The material in Dr S’s affidavit is clearly a history taken from the husband. It is hearsay conveyed by the husband. The husband gave evidence in the form of a trial affidavit and gave oral evidence. The wife conceded in cross-examination that the husband had received a payment after the car accident in 1975 of $6000. Her Honour took into account the wife’s concession the husband received about $6000 in or around 1986/87 from a third party claim relating to the 1975 accident.
b)
The husband gave no evidence of other payments nor was the wife cross examined about them. The only material to support them is the doctor’s reference to payments which come from a personal history given by the husband to a doctor. This is in our view not ‘evidence’ and is at best an assertion by the husband to a third party in a document which was not repeated by the husband in his evidence. It does not meet the test in
CDJ & VAJ(supra). It must also be remembered that having seen both parties give evidence, her Honour, in relation to the husband’s evidence, said at [40]:
As already noted, the Husband adduced confused and contradictory evidence about his employment history and income, both during the marriage and after separation, but acknowledged that he had earned very little since 1999.
The final and important issue regarding admission of the evidence is the overall effect on her Honour’s assessment of the husband financial contributions, as opposed to those of the wife during the marriage. Her Honour’s findings (as distinct from conclusions) are not the subject of challenge. At [44], her Honour says:
As already noted, as a result of the paucity of his evidence and the manner in which he gave his oral evidence in cross-examination, I have been unable to make precise findings about the Husband’s contributions by way of income. I accept that the Husband contributed approximately $196,000 in or about 1999 as a result of his personal injuries compensation. However, he has made few other direct financial contributions to the property of the parties, and limited non-financial contributions. When considered against the constant income stream provided by the Wife over 32 years, and her greatly superior non-financial contributions, I am satisfied that the Wife is entitled to a significantly greater percentage of the net asset pool by way of contributions.
Counsel for the wife then objected, indicating the evidence spoke for itself. Her Honour permitted the witness to see the documents to refresh his memory. Cross examination then commenced:
[COUNSEL FOR THE WIFE]: Thank you.
How much do you claim that Mr [Dakin] owes you?---Myself personally, or both my mother and myself?
No, you?---I would like to think that he owes me nothing. These - - -
No, I don’t want an answer like that, with respect. Does he owe you anything or not?---No.
He owes you nothing? ---That’s right.
I object to this witness being in the witness box, your Honour. If there’s no debt owing to this gentleman, then there’s no basis for the evidence before the court. He is not the third party creditor.
[COUNSEL FOR THE HUSBAND]: Well, I press this witness, your Honour. This witness was – I apprehend, will give you – advise you that he was present at all times when negotiations and loans were made - - -
[COUNSEL FOR THE WIFE]: I object to this, your Honour. If my friend wishes to refer to the affidavit, I have no difficulty.
HER HONOUR: Well, the affidavit says:
My mother and I have lent [Mr Dakin] certain moneys, being presently the sum of X dollars.
The evidence is that – it has just been contradicted by the witness, so if there’s no money owed to this gentleman, then his evidence can’t be relevant, can it?
[COUNSEL FOR THE HUSBAND]: This gentleman, I apprehend, would have – be able to give you oral evidence that he saw cash pass between parties.
HER HONOUR: Well, … you can tell me that now, but I can only go on the evidence that’s before me. As I have said to you earlier, the evidence that is before me is this affidavit. I have allowed the affidavit in its entirety. I’m told that he’s not owed any money by Mr [Dakin].
[COUNSEL FOR THE HUSBAND]: Please the court.
HER HONOUR: You may step down, sir. Thank you.
(transcript 28 January 2011, p 158, lines 33 – 47; p 159, lines 1 – 26)
The Wife’s Evidence regarding the Debts
The wife did not refer to any borrowings by the husband in her trial affidavit. She made reference to the Commonwealth Bank account from which the husband had drawn significant monies in 2008, and she referred to the fact that both parties had removed money from the joint account in 2003, this being $78,979 by the husband and then, in response, $78,000 by her. She set out the manner in which she had expended the money that she had withdrawn. The wife was not cross-examined about the husband’s borrowings, we assume on the basis that the husband had said that these were private matters and the wife was unaware of them.
The documents which were not tended are the documents which are now sought to be introduced into evidence by way of the application for further evidence.
Her Honour’s Treatment of the Debts
It appears that in opening, counsel for the husband submitted to her Honour that the sum of $70,000 borrowed from Mrs P (but not the $50,000 borrowed from Mr P) should be taken into account as a liability of the husband, although counsel seems to have conceded that only ever $25,000 or $26,000 went to tradesmen for repairs to the family home. The following exchange occurred between the counsel for the husband and her Honour:
HER HONOUR: No. Just what is the figure. Just the balance sheet. It’s all I’m interested in.
[COUNSEL]: On the figures that I’ve got, that I have seen receipts for, I could only shoot home about $25 / $26,000 that went into the house. The balance of the money has been borrowed for - - -
HER HONOUR: I just want to know what your client owes to the - - -
[COUNSEL]: $70,000.
HER HONOUR: $70,000.
[COUNSEL]: 70. But I should make it clear to you and my – my friends. About 25 / 26,000 went into tradesmen for repairs to the family home. The rest is being consumed in living expenses by Mr [Dakin].
(transcript 27 January 2011, p 12, lines 27 – 41)
In final submissions, her Honour, addressing counsel for the husband, went through the balance sheet to see what items were the subject of any dispute and said:
… your client was asserting a debt which I’m sure you accept … was not proved, so that debt would come out of the pool; and I’ve got the superannuation of the wife at 60,000.
[COUNSEL]: Yes. That is my understanding of the considerations- - -
HER HONOUR: So you have no issue with any of that?
[COUNSEL]: No.
(transcript 4 February 2011, p 221, lines 23 – 32)
Her Honour’s findings on this point appear at [7] of her reasons for judgment in a consideration of what were the assets, liabilities and financial resources of the parties at the time of hearing, and their values. Her Honour said:
In relation to liabilities, the Husband initially alleged that he had a substantial debt to his friends, Mr [P] and Ms [P]. In cross-examination, Mr [P] denied being owed any money by the Husband. The Husband adduces no evidence from Ms [P]. By the time of final submissions, the Husband accepted that there was no evidence to support the existence of this debt.
It is in the context of that evidence and her Honour’s findings that the application to adduce further evidence arises.
Further Evidence Sought to be Adduced from Mrs P
Mrs P deposes in her affidavit sworn 23 August 2011 to having known the husband since about 1965 and to being good friends with him. She deposes that in 2008, the husband came to her home and asked to borrow about $50,000, agreeing to pay 15 per cent interest when the house was sold. Mrs P contends that she lent the money to the husband. She deposes to the details of the bank account from which the money was withdrawn in order to be given to the husband.
In addition to these monies, Mrs P deposes to loaning additional sums to the husband withdrawn from the same bank account. These loans were purportedly detailed in a numbered carbon book, which she signed and the husband countersigned, and in which a running balance was kept.
Mrs P deposes to the details of seven loans made between 3 August 2009 (at which point in time the husband allegedly already owed Mrs P $61,000) and 10 May 2010. As described in the affidavit, these loans were:
·3 August 2009: $5000
·10 September 2009: $10,000
·1 November 2009: $5000
·14 January 2010: $20,000
·23 March 2010: $5000
·19 April 2010: $2000
·10 May 2010: $10,000
We note that Mrs P’s affidavit omits mention of one additional loan evident in the annexures to that affidavit. Annexure C purports to record the loan transaction of 1 November 2009 as well as a further loan transaction on
9 December 2009. According to that record, Mrs P lent the husband $5000 on each of those occasions.
Mrs P thus deposed to having lent the husband a total of $123,000, of which she says none has been paid back.
Of interest however is that the handwritten first document, dated
3 August 2009, reads as follows:
I [Mrs P] hereby loan Mr [Dakin] $5,000.
Previous loans of $61,000
Current loan $5,000
Total loan $66,000
The document appears to be signed by each of Mrs P and the husband.
Submissions by Counsel for the Husband in Support of the Introduction of the Evidence
In his affidavit, the husband’s solicitor contended that if there had been evidence by Mrs P annexing the handwritten notes or alternatively by Mr P annexing the hand written notes in admissible form, “the asset pool available for distribution would have been markedly different, and a different conclusion reached to that of Sexton FM” (at [12]).
In an exchange with the Bench, counsel for the husband accepted a description of his contention as being one where the $70,000, or perhaps more, should have been taken into account as a liability, thereby reducing the asset pool.
Also in oral submissions, counsel conceded that whatever Mr P’s rights personally, it would be difficult to argue, given his admissions, that there was any money owing to him. Counsel accepted that, but pressed the point in relation to the debt to Mrs P, submitting that Mr P’s evidence ought to have been allowed in by her Honour to corroborate the debt to his mother because he was able to produce a book in which transactions were recorded and he said that he had been present at the time when his mother lent money to the husband and wrote up the book.
The evidence now sought to be adduced is the evidence of Mrs P and the documents which were before her Honour but not admitted. Counsel contended that the evidence, if now admitted and accepted, would indicate that her Honour’s rejection of the loan was erroneous, and if the loan had therefore been taken into account, then the ultimate result would have been different.
Counsel for the wife made no specific submissions in relation to further evidence regarding the loan.
Conclusion
We do not intend to allow the further evidence for reasons that we now set out.
a)The proposition on behalf of the husband that if the debt to Mrs P be taken into account, it would lead to a diminution in the asset pool of at least $70,000 is a proposition that in our view cannot be asserted with any degree of confidence.
b)Importantly, counsel for the husband opened his case by indicating to her Honour that it was only $25,000 or $26,000 of the monies borrowed that had found their way into the property in south-western Sydney. The rest, it was submitted, was spent on living expenses. As the husband did not set out in any detail what his income or living expenses were, there could be no certainty that her Honour would have taken into account any more of the loan than had been spent on the property.
c)Despite the assertion that money was borrowed and went to the property, the husband’s material, both written and oral, did not conclusively establish the amount of funds that went into the property in south-western Sydney, notwithstanding counsel’s opening.
d)The documents themselves that are sought to be admitted commence on 3 August 2009, at a time when the parties had separated. The only evidence of previous borrowings was the first document which referred to previous loans “$61,000” that was not supported by other documents.
e)Accepting the borrowing of $61,000 and the other amounts said to be advanced, which total $123,000, the make up of that total sum was said to be by way of borrowing $70,000 from Mrs P and $50,000 from Mr P and Mrs P both. The documents sought to be admitted do not contain any reference to borrowings from Mr P, and in addition his evidence at trial that he was not owed anything cannot be discounted.
Thus, in our view the documents sought to be relied upon, in and of themselves, as well as when coupled with the evidence of Mr P, are contradictory. If anything, more questions are raised than answers furnished, in regards to the husband’s transactions and borrowings.
Neither the documents nor the affidavit of Mrs P establish exactly how much was put into the property in south-western Sydney and how much was spent on living expenses. As we have already indicated, absent any clear evidence about the husband’s earnings and whether he needed to borrow money for living expenses, her Honour could not have realistically factored in, as a loan to be attributed to both parties, monies borrowed for the husband’s living expenses. As we have also pointed out there was a complete lack of specificity as to what part of the loan had been spent on the property in south-western Sydney, other than counsel’s assertion in opening that it was $25,000 or $26,000.
Regard must also be had to the unchallenged findings of her Honour as to the husband’s credit. In particular, in relation to his employment and income from employment after 1996, her Honour found the husband’s evidence “contradictory and confused”, continuing (at [28]):
On the one hand, he claims to have earned less than $3,000 a year after 1999, and to have made only minor financial contributions from his earnings after 1996, but on the other hand he claims to have earned, at times, $1,000 a week. He says that his ability to work depended on his health problems, which varied from time to time. In cross examination, the Husband often said “I can’t remember” or shrugged his shoulders, when asked questions about his employment history and his financial contributions, and appeared annoyed at being asked such questions. I was not assisted by the Husband’s affidavit evidence which I found seriously deficient on these issues. The Husband has not filed a taxation return since 1996. The Husband does not adduce any medical evidence in admissible form as to the impact of any medical condition he may have suffered as a result of the accident. Excluding the compensation payment, to which I will refer shortly, I am not satisfied that the Husband made more than minimal financial contributions as a result of his work as a [tradesman] after 1996. (footnote omitted) (original emphasis)
In relation to the husband’s non-financial contributions to the building of the second home on the property in south-western Sydney, her Honour found (at [36]) that “the Husband’s evidence is so vague as to the detail that I am unable to quantify the extent of these contributions”.
Taking all of those matters into account, it could not be said that the evidence of Mrs P, if accepted, would have resulted in a finding that her Honour’s decision was erroneous. Accordingly we reject the application for admission of the affidavit of Mrs P.
Finally, we return to the affidavit of the husband, which sought to introduce further evidence about the accidents in which the husband was involved, and about his asserted difficulty in obtaining work was a result of his injuries.
Part of his affidavit involves a recitation of his injuries and damages taken from documents, which we have already rejected.
Otherwise, the husband’s affidavit deposes to matters which conflict with evidence he previously gave and seek to present a case which was not the case presented at trial. In our view, this material should not be admitted and there is no explanation given for why it was not presented at the hearing. In any event, in view of the manner in which the husband gave his evidence and the vagueness of it, it would not work any injustice to the husband for us to reject that evidence now being presented.
Accordingly the husband’s application to introduce further evidence must fail.
The substantive appeal
Consideration of the substantive appeal must be undertaken in the context of counsel for the husband’s concession to the bench as follows:
COLEMAN J: This appeal is really about the further evidence, isn’t it?
MR SWEET: Absolutely.
…
COLEMAN J: Ultimately, you will stand or fall on the further evidence, won’t you?
MR SWEET: That is unquestionably correct.
(transcript 23 August 2011, p 9, lines 10 – 20)
As a result, counsel for the husband relied upon written submissions in support of his substantive appeal.
Grounds 1 and 3 were that the learned Federal Magistrate erred in her assessment of the contributions made by the appellant
Grounds 4 and 5 allege that her Honour’s discretion miscarried when she reached the conclusion that the appellant’s contribution entitlement pursuant to s 79 of the Act was only 23 per cent. Accordingly, the appellant argued Grounds 1, 3, 4 and 5 together.
The starting point in determining an appeal in respect of a decision involving a discretionary judgment is that there is a strong presumption in favour of the correctness of the decision. Before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied that the trial judge acted upon a wrong principle, or the decision was plainly wrong, so that his or her decision was no exercise of the discretion: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
As the High Court said in House v The King (supra) at 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In Gronow v Gronow (supra), Stephen J said at 519 - 520:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Once the Court has rejected the further evidence, the difficulty for the husband becomes stark. There was no challenge to her Honour’s findings on credit issues or contributions by each of the parties, on the evidence her Honour had before her. It is contended that the Federal Magistrate gave too little weight to the contribution of the husband from his personal injury claims, summarised at [2.11] of the husband’s written submissions:
Accordingly, it is respectfully submitted, that the Appellant made a significant financial contribution, relatively late in the marriage of one hundred and ninety-six thousand dollars ($196,000.00) and also had contributed the sum of six thousand dollars ($6,000.00) from a third party claim relating to the 1975 accident.
It was then contended that in assessing the husband’s contributions at 23 per cent, her Honour failed to have any or any sufficient regard to these financial contributions and the percentage of 77 per cent of all of the assets to the wife was manifestly excessive.
There are a number of problems, as we see it, with this submission.
Her Honour accepted that the husband’s compensation funds were used to purchase an investment property on the Central Coast. The property was subsequently sold in 2003 and the sale proceeds of $183,557 were deposited to the parties’ joint account. In April 2003, the husband withdrew $78,979 dollars from the joint account without consultation with the wife. The wife withdrew $78,000 the following day to match the husband’s withdrawal. However, her Honour subsequently found that the wife’s unchallenged evidence was that she applied approximately half the funds withdrawn by her towards living expenses, a further $16,000 to discharge her personal loan (borrowed to improve the Central Coast property), $3250 to buy herself a car and $25,000 to meet expenses for the children (at [30]). In other words, her Honour was able to identify the wife’s use of funds as effectively a contribution to the family.
Conversely, her Honour found that “[t]he Husband does not explain how he applied the funds he withdrew from the joint account” (at [30]). The effect of her Honour’s findings is that although the husband’s initial contribution of compensation funds could be traced directly into the acquisition of the Central Coast property, upon sale of that property, nearly $79,000 went to the husband and was not accounted for as being contributed to other assets or the support of the family generally. The fact that the husband had received this money unaccounted for, was a matter that her Honour, in our view, was entitled to take into account in weighing contributions. Her Honour acknowledged at [30] that “the damages verdict arising from the Husband’s personal injury claim is a contribution by the Husband, and must be weighed and considered with every other contribution made by the parties”.
Her Honour took into account the $6000 compensation the husband received in or about 1986/7 (at [25]).
The other significant and relevant matter, in our view, is that her Honour made findings (unchallenged on appeal) that this sum was the husband’s only significant financial contribution over a very long marriage. Moreover,
her Honour was required to consider, and did consider, all the contributions, both financial and non-financial, to the acquisition, conservation and improvement of the parties’ assets, as well as to the welfare of the family before and after separation.
In weighing and balancing all of these contributions, her Honour found that the wife had contributed significantly more than the husband. We are satisfied that there are ample findings grounded in evidence to support that conclusion, including that the wife:
·worked three jobs (including weekends and evenings) (reasons for judgment at [24])
·undertook the vast majority of household tasks (at [38])
·was the primary carer of the children until they left the former matrimonial home (at [38])
·solely contributed financial and emotionally to the children since the parties’ separation in July 2008 (at [38])
·solely paid the monthly mortgage instalments and solely maintained the former matrimonial home after July 2008 (at [38])
·made the vast majority of the financial and non-financial contributions after July 2008
·accumulated $60,000 in superannuation (at [8]) whereas the husband had accumulated no superannuation.
Having regard to the length of the marriage, and the wife’s significant contributions over that period compared to the husband’s, in our view it is difficult to see how her Honour’s discretion has miscarried and we find no merit in these grounds.
Ground 2
This ground asserts that her Honour erred in failing to make any adjustment under s 75(2) of the Act in favour of the husband. In arguing this ground, counsel relies on medical evidence which was not admitted in by her Honour to establish that the husband’s injuries were permanent and that they prevented him from working in the future, and thus an adjustment pursuant to s 75(2) was required. The written submissions of counsel assert that the medical evidence annexed to the husband’s affidavit in Annexure C provide a sufficient evidentiary foundation for such a finding and conclusion.
However, as we have previously pointed out, the rejection of this material was not a ground of appeal. In any event, as we have indicated at [114] to [127] inclusive, we have found no basis for the introduction of fresh evidence going to this point because we do not regard it, if admitted, as leading to a conclusion that her Honour’s exercise of discretion as to the husband’s capacity for work or health issues would be rendered erroneous. The husband’s own evidence was that economic circumstances were making it difficult for him to work, not health problems, and, as her Honour pointed out, even the evidence that the husband had produced, if admitted, did not address the husband’s future capacity for work. Her Honour balanced this against the wife’s contention that she had difficulties and similarly concluded that there was no evidence that supported the wife’s contentions either.
In so far as any adjustment might relate to the financial position of the parties, her Honour found that the husband did not truthfully disclose his financial position, to the extent that she was unable to make any findings about his current income or expenditure. Her Honour said (at [50]), “I have come to the conclusion that the Husband has chosen not to disclose to the Wife or to the Court, the truth about his current living or financial circumstances”.
Having regard to these findings, in our view, her Honour’s findings on the evidence and conclusions were justified and within the wide range of her discretion. Accordingly we find no merit in this ground.
Ground 6
Ground 6 asserts that her Honour’s conclusion was manifestly unjust, therefore there was a failure by her Honour to properly exercise the discretion, leading to appellable error.
Counsel’s submissions in support of this ground relied upon acceptance of previous grounds in relation to contribution in s 75(2) factors. In written submissions at [4.1], counsel said:
It is respectfully submitted that, the learned Federal Magistrate, in exercising her discretion, so as to make a discretionary decision that firstly; there should be no adjustment in favour of the Appellant pursuant to section 75(2) and secondly; that the Appellant’s contributions, pursuant to section 79 of the Family Law Act 1975 were twenty-three percent (23%), that is to say less than one-quarter (¼) has resulted in a situation where the effect of those findings on the Respondent is that the Orders made by the learned Federal Magistrate exceed the generous ambit within which a reasonable disagreement is possible, is plainly wrong, and that, in these circumstances the Appellate Court is entitled to interfere.
We have found that her Honour was not in error in assessing contributions in the percentages to which she came, nor that there was any error in not making an adjustment in respect of either party for matters under s 75(2). We have indicated already that, by reason of these matters, her Honour did not fall into error.
Standing back, as the Court is required to do, in considering whether under
s 79(2) an order that reflected these proportions would be in all the circumstances just and equitable, we do not consider her Honour fell into error in the exercise of her discretion to make orders which accorded with her findings in relation to contributions and the matters in s 75(2). We accept that her Honour did give considerable weight to the contributions of the wife, in their various aspects, over the course of the marriage, but the result in our view was within the “generous ambit of reasonable disagreement” that “marks the area of immunity from appellate interference”: Norbis vNorbis (1986) 161 CLR 513, 540 per Brennan J.
Accordingly, we find no merit in this ground and as a result the appeal must be dismissed.
Costs
Section 117(1) of the Act governs costs, subject, inter alia, to subsection (2), namely the existence of circumstances that justify the Court in departing from the position that each party pay their own costs. This statutory mandate applies equally to appeals before the Full Court as it applies to first instance decisions.
The discretion conferred by s 117 is a broad one and the factors to which the Court is to have regard in s 117(2A) should not be read in a restrictive way: Collins & Collins (1985) FLC 91-603. Any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]) but nevertheless, as an earlier Full Court said in I & I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in
s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.Counsel for the wife sought an order for costs if the appeal was unsuccessful. One of the factors in s 117(2A) for a costs order is if a party is wholly unsuccessful, and thus a basis for an order is clearly available. Counsel for the husband conceded that the only basis on which an order for costs could be resisted is the fact that the award to the wife might reasonably be regarded as at the top of the range of potential outcomes, whilst not being outside the “generous ambit” of the discretion of a trial judge.
We agree with this analysis. We observe that while we have refused the application for admission of further evidence on the basis it could not be demonstrated that if admitted it would have altered the result, nevertheless, it seems to us that the problems encountered by the husband with admission of evidence, left her Honour largely reliant on the wife’s evidence when she came to make findings. The rejection of the evidence was based on objections by the wife’s counsel, and while this was no doubt forensically advantageous at trial, the result was that the husband received very little from the parties’ property compared to the wife.
In our view an order for costs would compound this effect and in the circumstances we see no reason to depart from the statutory position in s 117(1) that each party bear their own costs.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman & Loughnan JJ) delivered on 10 August 2012.
Associate:
Date: 10 August 2012
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