Delacey & Redwood (No 2)
[2022] FedCFamC1A 115
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Delacey & Redwood (No 2) [2022] FedCFamC1A 115
Appeal from: Redwood & Delacey [2022] FedCFamC2F 448 Appeal number(s): NAA 101 of 2022 File number(s): DGC 2126 of 2019 Judgment of: TREE J Date of judgment: 26 July 2022 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Summary Dismissal – Where the respondent wife seeks for the appellant husband’s appeal against final property settlement orders to be summarily dismissed – Whether the appeal has no reasonable prospects of success – Grounds of appeal considered – No ground of appeal enjoys reasonable prospects of success – Appeal dismissed. Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth) s 46 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 64 Date of hearing: 14 July 2022 Place: Cairns (via video link) The Appellant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
NAA 101 of 2022
DGC 2126 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DELACEY
Appellant
AND: MS REDWOOD
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
26 JULY 2022
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 9 June 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Delacey & Redwood (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Amended Notice of Appeal filed 9 June 2022, Mr Delacey (“the husband”) appeals against two final orders made on 8 April 2022 by the primary judge in property settlement proceedings in which Ms Redwood (“the wife”) was the applicant.
By her Application in an Appeal filed 15 June 2022, the wife seeks that the appeal be summarily dismissed.
For reasons which follow, that application succeeds, and hence the appeal will be dismissed.
BACKGROUND
The parties are both now in their late thirties. They commenced a relationship in 2014, married in 2016, with their only child being born later that year. Separation occurred around Christmas 2018, meaning that the relationship existed for a little over four years.
The wife brought into the relationship a home at Suburb N (“Suburb N”) together with some shares, savings and chattels, as well as superannuation. The husband brought into the relationship considerable savings, a quarter share interest of a house, some chattels and superannuation.
Early on in the relationship, a home at Suburb F (“Suburb F”) was purchased in the husband’s sole name. The deposit was sourced from his savings, and the mortgage was in his sole name. Shortly after its purchase, the husband utilised further savings in his name to reduce the mortgage. Suburb F then became the parties’ home.
Thereafter the wife contributed to the mortgage repayments in respect of Suburb F until she moved out at separation. Subsequently the husband has been solely responsible for all costs associated with Suburb F.
Property and parenting proceedings between the parties proceeded to trial, with final orders being made in them by a Federal Circuit Court judge on 23 September 2020. Relevant to this appeal, those orders required the husband to pay the wife $224,650. He did not do so in the required time, such that penalty interest and costs were ordered, which saw the ultimate total owing $230,970.78. That sum was paid on 1 April 2021, but subsequently on 8 September 2021, the husband’s appeal against the 23 September 2020 orders was allowed, and the property proceedings were remitted for rehearing before another judge.
The fact of that payment is significant, as at the rehearing both parties regarded those monies as the wife’s, even though the order under which they had been transferred to her had been set aside.
The rehearing took place before the primary judge and resulted in the orders of 8 April 2022 from which the husband has appealed.
THE APPEAL AND APPLICATION GENERALLY
All of the orders which are challenged by the husband’s appeal were made in the exercise of a discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from such judgments. In House v The King (1936) 55 CLR 499 at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The test for summary dismissal is articulated in s 46 of the Federal Circuit and Family Court of Australia Act2021 (Cth). Relevantly it provides:
46 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
…
I will therefore consider each ground of appeal to determine whether the husband has no reasonable prospects of success in the appeal.
GROUNDS OF APPEAL
Ground 1
This ground provides:
1. The Judge errored in a finding of fact of fact within his reasonings as to whether an alteration of property interests is just and equitable.
(As per the original)
As a consequence of the husband having paid the monies due to the wife under the 23 September 2020 orders, at the second trial the property interests in the parties’ names were materially different to that which had prevailed at the time of the first trial. At that rehearing the husband contended that the wife should transfer those monies back to him, and pay him a further $70,259.22 so as to achieve a 50/50 division of the net pool (husband’s Outline of Case filed 18 February 2022, p.12). He therefore contended it was just and equitable to alter the parties’ property interests. Although this ground, on its face, now seeks to revisit that, the husband is bound by the conduct of his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”)). To the extent that under this ground the husband really seeks to argue that the alteration should have been to achieve a 50/50 division, plainly that is not what this ground contends.
Ground 1 is without reasonable prospects of success.
Ground 2
This ground provides:
2. The judge errored by finding fact and giving weight to hearsay arguments.
(As per the original)
In his oral submissions before me, the husband contended that the hearsay evidence was as to his having drawn down amounts from the Suburb F mortgage, but how that is impermissible hearsay is unclear, and more, it does not appear that any objection was made to the tender of the bank statements which contained this evidence.
Later in his submissions, the husband contended that the wife’s evidence of her contributions to the welfare of the family – found by the primary judge at [104] to be “the vast majority” of such contributions – was hearsay, although plainly it was not.
To the extent that the husband has mistakenly employed the term “hearsay” and really just challenges the weight afforded by the primary judge to such evidence, such challenges face a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519; CDJ v VAJ (1998) 197 CLR 172 at 230–231) as matters of weight are quintessentially for the primary judge. There is no reason to think that bar is likely to be cleared here.
Ground 2 does not enjoy reasonable prospects of success.
Ground 3
This ground provides:
3. The judge errored in process by treating superannuation the same as assets in hand and by not providing reasoning as to why this unusual approach was just and equitable in this short term relationship. The outcome orders I must give 46% ($70,000) of my superannuation earned during the 4 year relationship and that it must be paid not through a transfer but cash from my bank account to hers.
(As per the original)
At the second trial, the husband did not make any submissions in support of a superannuation split. To the contrary, he proposed that both parties retain their superannuation (husband’s Outline of Case filed 18 February 2022, p.13). True it is that he sought that there be no payment by him (in the sense the monies paid under the first orders should be wholly repaid, together with a further sum being paid to him) but he made no argument before the primary judge that there should be any split of superannuation if some lesser payment than that required under the 23 September 2020 orders was ordered (albeit as a matter of practicality, in the form of a reduced repayment to him by the wife). He is bound by his trial conduct (Metwally).
Ground 3 is without reasonable prospects of success.
Ground 4
This ground provides:
4. The judge did not consider documents relied upon and discussed at trail.
(As per the original)
The documents in question appear to be some secondary evidence in the form of tabulated financial information supplied by the husband, although it seems that the primary judge preferred to have regard to bank statements instead. Particularly at [70] his Honour noted that there were missing statements and the “[t]he Court is therefore being asked to accept that what is contained in the tables as accurate without being provided with the source documents”, which the primary judge declined to do. He later noted similar problems beset tables produced by the wife.
At [75] the primary judge concluded:
75.In light of the above, it is impossible to determine with any degree of precision what was paid or withdrawn from the Suburb F mortgage account by each of the parties. I would in any event be cautious about doing so. As the authorities note, the assessment and weighing of contributions is not a mathematical exercise and further, the Court does not have the resources and ought not be expected to engage in an exercise of forensic accounting. Moreover, such an approach also favours financial contributions and ignores those contributions which do not have a monetary value attached to them.
His Honour then undertook a review of the parties’ contributions to Suburb F by reference to five periods, before at [82] concluding that:
82.The question that arises from the analysis above is the extent or otherwise of the Husband’s contributions to the Suburb F mortgage when compared to that of the Wife, and what weight should be given to it as part of an holistic assessment of contributions. The review undertaken above suffers from many deficiencies given the state of the evidence before me, the lack of source documents, and the absence of serious cross examination on the issues in question. It is also not the job of the Court to undertake a mathematical exercise which is what the Husband by his submissions and evidence effectively asked me to undertake. Taking all that into account, and doing the best that I can, I am prepared to accept that the Husband made greater net financial contributions to the Suburb F property from the time it was purchased until the time of this trial compared to the contributions made by the Wife. The Wife in her affidavit material concedes as much at paragraphs [89] and [92] of her second affidavit. The evidence, however, does not support the Husband’s contentions as to the extent of that financial contribution. For the reasons given, he has double counted some contributions. He has clearly made drawdowns against the mortgage. I accept his as the greater contribution and one which is to be given weight, but it is not the vastly superior contribution he claims.
Plainly the primary judge was well aware of the information proffered by the husband, and hence considered it, but declined to rely on the tables as there was missing source material. That conclusion was not in any way erroneous.
Ground 4 does not enjoy reasonable prospects of success.
Ground 5 (first occurring)
This ground provides:
5. The Judge errored by finding fact that drawdowns from the Suburb F mortgage occurred.
(As per the original)
This ground appears to be a challenge that various dealings by the husband in relation to the Suburb F mortgage were not properly drawdowns, as the money remained in other bank accounts of the husband.
The primary judge referred to these drawdowns at [82] recited above, and later at [106], where his Honour said:
106.I accept as noted that the Husband made a greater financial contribution to the Suburb F property, but it is nowhere near as great as what he has claimed, particularly in circumstances where he has double counted his contributions, redrawn amounts against the mortgage, and where the Wife also contributed to the Suburb F property through her payments to the Husband which increased when the Suburb F mortgage increased. The Husband’s submissions about his significantly greater financial contributions also pale into insignificance in circumstances where he has not been able to prove the Wife either removed money during the marriage, or wasted money.
There was clear evidence of the husband withdrawing monies from the Suburb F mortgage, seemingly likely (at least notionally) from amounts he had earlier paid off the mortgage. However nowhere does the primary judge quantify them. In any event, the conclusion that the husband’s contributions to Suburb F were not as great as he claimed is easily demonstrated by the unchallenged double counting of the husband’s contributions to the mortgage identified by the primary judge at [19], [21], [25] and [72].
I am satisfied that this ground does not enjoy reasonable prospects of success.
Ground 5 (second occurring)
This ground provides:
5. The Judge found a "gap" as to supposed "drawdowns" of $60,000, when this was explained in court the money remained in my everyday account.
(As per the original)
This ground is seemingly related to the previous ground. At [81] the primary judge said the husband argued that $60,000 of the “missing” $65,000 was in his Everyday Savings Account. Even if that be so, those funds were not a contribution to the Suburb F mortgage, which is the matter to which this issue ultimately relates.
I therefore cannot see that this ground enjoys reasonable prospects of success.
Ground 6
This ground provides:
6. The judge could not confirm contribution amounts to the Suburb F mortgage despite it being an agreed fact that the wife contributed one quarter of mortgage repayments and $60,000 only ($110,600) total with the husband contributing the remaining ($364,576). To get this figure the judge had the agreed balances at commencement of the mortgage and at trail, this less the agreed wife's contribution is my contribution. I contend the failure to confirm this contribution has lead to an unjust and unequitable final outcome.
(As per the original)
This ground is erroneously based on claimed contributions by the husband to the Suburb F mortgage of $364,576, although that figure is not as found by the primary judge and no challenge is made in that regard. The figure is in any event wrong, as the husband at least partly conceded, in that:
(a)it includes the deposit of $66,700 sourced from funds brought into the relationship by the husband;
(b)it includes additional sums paid off the mortgage, some from pre-cohabitation funds, as discussed by the primary judge at [21]; and
(c)it includes $71,000 paid off the Suburb F mortgage from the net proceeds of sale of the husband’s quarter interest in the property he co-owned at cohabitation.
These sums were certainly not agreed by the wife as comprising fresh contributions by the husband, and to regard them as such would have involved double counting.
Ground 6 does not enjoy reasonable prospects of success.
Ground 7
Ground 7 provides:
7. The judge errored to rule the above $253,976 additional contribution should pale into insignificance due to me not being able to prove the wife removed money from the relationship. My reasoning to not follow up on this argument was provided at trail, "that it was her money she spent/removed and I only wanted to keep my own and not to chase hers". I have no equitable interest her property as she does not in mine. We have no common property. To make my additional contributions of such magnitude insignificant I propose to be unjust.
(As per the original)
The words “pale into insignificance” were in the last sentence of [106] which I have recited earlier in these reasons. That sentence is a reference to [91]–[92] where the primary judge had earlier said:
91.The Husband also contended that the Wife’s spending during the marriage was ‘wastage’. As I understand it, this contention was advanced separately to the contention that the Wife had removed $400,000 from the relationship. I was not taken to any evidence of particular expenditure by the Wife which might constitute wasteful expenditure. The evidence of the Husband at its highest appears to be an assertion by the Husband that the Wife did not save as much as he expected her to save. In the circumstances, the Husband has failed to prove that the Wife’s expenditure was significant or wasteful.
92.The Husband’s conduct in respect of the issues above, but particularly the allegation that the Wife removed $400,000 from the relationship, is worthy of serious condemnation by the Court. It is conduct inconsistent with the efficient conduct of litigation and the efficient and speedy resolution of disputes.
I construe what the primary judge said in the last sentence of [106] as meaning that his Honour did not give much credence to the general claims by the husband about his significantly greater financial contributions to the Suburb F mortgage, because his claims of wastage by the wife had proved spurious, in the sense they were not pursued by him.
Whether the husband sought to explain to the primary judge the reasons for his failure to press those wastage claims is not to the point; his credibility in making other claims suffered in any event. There is no reason to think that the primary judge erred in so concluding, even if the language used might have been a little colourful.
Ground 7 does not enjoy reasonable prospects of success.
Ground 8
This ground provides:
8. The judge errored by not ordering the other side to complete their document disclosure.
(As per the original)
It appears that at a pre-trial conference on 5 October 2021, the primary judge declined to require production of a particular document by the wife. No appeal was brought from that refusal within time, and in any event, leave to appeal would be required. There is no reason to think that the requirements for leave established in Medlow & Medlow (2016) FLC 93-692 would be met, even if leave were sought, which it is not.
Ground 8 does not enjoy reasonable prospects of success.
Ground 9 (first occurring)
This ground provides:
9. The judge errored when making a 10% (8 + 2%) adjustment to start from 50%, by doing so the judge did not have regard for the appellants superior initial contributions.
(As per the original)
This ground may be swiftly dealt with. It is plain that the primary judge did acknowledge the husband’s superior initial contributions at [58], [63] and [105], which read:
58.Accordingly, at the commencement of the relationship the Wife had financial interests or assets totalling approximately $273,100.
…
63.Having regard to the matters above, at the commencement of the relationship, the Husband had financial interests or assets totalling $334,985.
…
105.Having regard to the above, the issue that remains for the Court is to assess and weigh the respective contributions of the parties that I have identified above holistically. Both parties came to the relationship with not insignificant assets. The Husband entered, however, with more than the Wife. That is a matter of some significance given the reasonably short duration of the relationship and I give it weight.
This ground does not enjoy reasonable prospects of success.
Ground 9 (second occurring)
This ground provides:
9. The judge errored by not taking action to the evidence of misconduct evidenced in the affidavit filed by the appellant on the 1 Oct 2021.
(As per the original)
This ground is a complaint that the primary judge did not criticise the wife for having, in the first trial, asserted she was a guarantor of the Suburb F mortgage, but her having apparently recanted such a claim by the time of the second trial. How that comprises appellable error was unable to be explained by the husband.
This ground does not enjoy reasonable prospects of success.
Ground 10
This ground provides:
10. The judge errored by allowing a different argument to be put forward then the one at initial trail.
(As per the original)
In the first trial the wife apparently asserted that Suburb N should be excluded from the pool of property for division, but this was not her position in the second trial.
On 5 October 2021, the primary judge had ordered:
14.A party is not permitted to advance a case that is different from that set out in the Application or Response unless the party has first obtained leave of the Court.
Subsequently, the wife filed an Amended Initiating Application which, in effect, abandoned any argument that Suburb N should be excluded.
Order 14 should, however, not be seen as ossifying the parties’ cases, but rather restricting them to their cases as articulated in their Application and Response from time to time. In any event, no prejudice to the husband is identifiable by the wife’s changes to her case, and indeed on 4 February 2022, he himself filed an Amended Response.
Ground 10 does not enjoy reasonable prospects of success.
OUTCOME
No ground of appeal enjoys reasonable prospects of success, and hence neither does the Amended Notice of Appeal. It will be dismissed.
COSTS
In the event the appeal was dismissed, the self-represented wife sought no order as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 26 July 2022
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