Drost & Visser
[2024] FedCFamC1A 110
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Drost & Visser [2024] FedCFamC1A 110
Appeal from: Visser & Drost (No 3) [2024] FedCFamC2F 118 Appeal number: NAA 61 of 2024 File number: PAC 4220 of 2022 Judgment of: AUSTIN J Date of judgment: 11 July 2024 Catchwords: FAMILY LAW – APPEAL – Where the wife appeals from property settlement orders – Where the wife asserted the primary judge denied her procedural fairness – Where the wife was properly bound by an order under s 102NA of the Family Law Act 1975 (Cth) restraining her from personally cross-examining the husband at trial – Where the primary judge made no error refusing an adjournment of the trial – Where the wife’s contention of an erroneous factual finding by the primary judge for his preference of the husband’s evidence over the wife’s is rejected – Where the wife complains the primary judge made factual mistakes – Where it was open to the primary judge to reject the wife’s evidence when he found it unreliable – Where the wife was unable to show the primary judge’s exercise of discretion was manifestly unreasonable – Appeal dismissed – Where the husband’s application for costs is dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 4AB, 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.17, 13.23
Crimes (Appeal and Review) Act 2001 (NSW) s 4
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78
Cases cited: Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 Number of paragraphs: 54 Date of hearing: 4 July 2024 Place: Newcastle (via Microsoft Teams) Solicitor for the Appellant: Abbas Jacobs Lawyers Counsel for the Respondent: Ms Judge Solicitor for the Respondent: Bell Lawyers ORDERS
NAA 61 of 2024
PAC 4220 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DROST
Appellant
AND: MR VISSER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 18 March 2024 is dismissed.
2.The respondent’s oral application for costs 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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an appeal by the wife from property settlement orders made under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) on 20 February 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
For the reasons which follow, the appeal is dismissed.
Background
The parties first met in person in 2013, married in 2016, and finally separated in September 2019, though they did not cease living at the same premises until July 2020 (at [5] and [10]). For periods during the relationship, the wife lived in Europe with her daughter.
The husband commenced proceedings seeking financial relief in August 2022, which cause was heard by the primary judge in November 2023. Earlier trial dates were twice vacated in May 2023 and July 2023, apparently on the wife’s application.
The wife was self-represented at trial and, due to the existence of an order made under s 102NA of the Act, she was unable to cross-examine the husband (at [4]).
Judgment was pronounced in February 2024. Relevantly, the primary judge found: the net value of the parties’ assets and superannuation was just under $1.3 million (at [9] and [125]); the wife’s contribution-based entitlement to the property approximated 10 per cent (at [161]); an adjustment of two per cent in the wife’s favour was appropriate (at [162]); the wife’s overall entitlement was assessed at 12 per cent of the assets and superannuation (at [107] and [162]); but an earlier interim distribution of property to her and the money she owed under a costs order should be deducted from that entitlement (at [163]).
The wife’s net entitlement to the assets therefore equated to $83,000, payable by the husband to her within 90 days (Orders 1 and 2). The husband’s superannuation interest worth $384,781 (at [9]) was split by allocating a base amount of $50,000 to the wife (Order 5), as he proposed (at [106] and [115]).
On 18 March 2024, the wife appealed from only Orders 1 and 2.
The Appeal
The appeal comprises five grounds.
In breach of r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the wife’s Summary of Argument did not set out each ground of appeal together with a statement of the arguments on points of law or fact made in respect of each ground. Rather, the Summary of Argument was a discursive commentary about the invalidity of the procedural order made under s 102NA of the Act and various factual and discretionary errors made by the primary judge. Although there was some overlap between the grounds and the contents of the Summary of Argument, only the submissions which touch upon the grounds of appeal are addressed. The residual submissions are disregarded.
Ground 1
Ground 1 asserts the primary judge denied the wife procedural fairness.
The complaint is unparticularised in the Notice of Appeal and no submission within the Summary of Argument obviously addressed it.
In oral submissions it became apparent the wife’s complaint of the denial of procedural fairness concerned her inability to cross-examine the husband at trial, which had its genesis in a series of anterior complaints about the making of the s 102NA order, the failure to revoke the s 102NA order once she became unrepresented, and, if the s 102NA order was to remain operable, the failure to again adjourn the trial until she could obtain new legal representation.
None of those complaints withstands critical scrutiny.
The s 102NA order was first made by another judge in February 2023, at which time the restraint bound only the husband. Then, in May 2023, the primary judge amended the order to ensure the restraint bound both parties. The wife was represented by counsel when the s 102NA order was amended to extend the restraint to bind her in May 2023. It cannot be said she had no chance to make submissions on the point before the order was made. In the appeal, the mother was unable to demonstrate how any error vitiated the s 102NA order.
By the time of trial on 16 November 2023, both parties were bound by final family violence orders made by State courts, protecting each of them from the other. At trial the wife was without legal representation, but she did not then seek the discharge of the s 102NA order so she could personally cross-examine the husband and it was not an error for the primary judge to abstain from re-consideration of the order of his Honour’s own volition. Even if the s 102NA order had been discharged, either in response to an application made by the wife or on the primary judge’s initiative, it would have made no difference. The existence of the mutual State family violence orders, both made on a final basis, meant the embargo on personal cross-examination would have applied by force of law (s 102NA(1)(c)(ii)) and was not dependent upon the operation of the s 102NA order. The wife had by then also been convicted of stalking the husband, so the embargo automatically applied for another reason (s 102NA(1)(c)(i)).
The wife’s restraint by s 102NA was therefore unavoidable. The husband could only be cross-examined by a lawyer acting on her behalf. She had no lawyer. No explanation was given to the Court for why she lost her legal representative over preceding months. No explanation was given to the Court for why she had not availed of the grant of legal aid freely available to litigants bound by orders made under or by the operation of s 102NA of the Act.
The wife made no application for an adjournment of the trial, at least not until after the evidence had closed and final submissions were complete. When it became apparent to her that she was unlikely to recover the amount of property from the proceeding that she wanted, she had this exchange with the primary judge and the husband’s counsel:
[The wife]: That I need more money to fix up my life after this thing with [the husband]. And if you can’t finish up this matter, then, you know, would you see to it that I get a solicitor so I can start again
HIS HONOUR: No, [addressing the wife], you’re not starting again. The case is coming to an end. You’ve had your hearing. You’ve given your evidence. It’s at the end now. You’re not having another opportunity to delay the matter and go and get other solicitors when you’ve raised no request for an adjournment until now. What else is it you wish to say?
[The wife]: The legal aid will help me if I want to get a solicitor for the court matter again.
HIS HONOUR: [Addressing the wife], your case is not – [addressing the wife], your case has just been heard. We’re in the stage of final address. I can see no proper basis on which you should have any adjournment. Is there anything else you want to say as to why you should have an adjournment?
[The wife]: I want money for my medical matters and, you know, for a unit or a flat, and then to pay all my debts that I have for solicitors, because sum that you said I could get – I won’t be able to get a unit or anything here, and not even in [City Q] – can’t buy anything. It’s not cheap in [City Q] either. If you want to have real estate, it’s not cheap there either. And my daughter wants to stay in Australia and study here, and therefore I would like to get – stay here in Australia with my daughter, and I also have to recover my health.
HIS HONOUR: [Addressing counsel for the husband], is the adjournment – belated request opposed? I don’t need to hear - - -
[Counsel for the husband]: It is, your Honour.
HIS HONOUR: Thank you. Is there anything else you want to say as to why you should have an adjournment at this late stage in the final hearing, [addressing the wife]?
[The wife]: Well, theoretically, it was put out for two days, today and tomorrow, but we can continue tomorrow, then.
HIS HONOUR: I don’t regard that as a proper explanation for an adjournment. The court declines to make an order in favour of the respondent adjourning the proceedings. …
(Transcript 16 November 2023, p.61 line 35 to p.62 line 27)
(Emphasis added)
The primary judge’s refusal to adjourn the trial at such a late stage, particularly given the trial had already been vacated twice before, was unsurprising. Given the trial was then complete, an adjournment would have been of no use at all unless the wife also successfully applied to re-open the evidence, either to adduce more evidence-in-chief of her own or by her engagement of a lawyer to cross-examine the husband. If the latter, the wife gave no explanation for why she was not already represented by a lawyer that day. No error in the procedural decision is identified.
Once it is accepted the wife was properly bound by the s 102NA restraint and there was no error in refusing an adjournment of the trial, the complaint of the denial of procedural fairness dissolves. No procedural unfairness can flow from a correctly made procedural decision, even if the aggrieved party perceives the results of the decision to be disadvantageous.
Ground 3(d)
Ground 3(d) complains that the finding made by the primary judge in respect of the “length of the marriage” was “not supported by the evidence”.
There was no doubt at all about the length of the marriage, because the parties were married in mid-2016 and divorced in early 2022 (at [5] and [62]). There was, however, some controversy about the length of their “relationship”.
The parties began communicating online in December 2012, met in person for the first time in mid-2013, ceased sexual intimacy in early 2019, and ceased sharing the same residence in mid-2020 (at [5], [10], [11], [14], [21]). They contested when their relationship started and when they separated, the latter of which was either in September 2019, when a family violence complaint was made by the wife, or in July 2020, when the husband vacated the family home.
The wife asserted the relationship lasted for eight years, though she conceded they only resided together for six years. She alleged they did not separate until July 2020 (at [49], [58], [60], [117] and [131]). The husband said the relationship commenced upon marriage in mid-2016 and ended in September 2019 (at [122]).
As it transpired, the primary judge concluded the wife’s evidence about the duration of the relationship was “exaggerated” (at [129]) and accepted the husband’s evidence. The primary judge found the relationship began at marriage in mid-2016 and ended in September 2019, when the wife complained to the police of the husband’s family violence and told them she wanted a divorce (at [21], [113], [126], [130], [131] and [135]). By reason of the periods of time the wife spent in Europe during the relationship, which amounted to about 17 months, the parties only lived together in Australia for about 22 months (at [135]).
The wife asserted this in her Summary of Argument:
3. …
c.The Wife’s evidence of the duration of the relationship was consistent with the evidence of the Husband, accordingly an adverse finding of credit on the basis that the Wife sought to exaggerate the duration of the relationship was unsupported…[t]he [primary judge] erred in finding that there was no de facto relationship prior to the marriage…
(As per the original)
But the parties’ evidence about the duration of their relationship was not consistent at all. It was quite different. As was open, the primary judge preferred the evidence of the husband. The bare contention of an erroneous factual finding about the duration of the parties’ relationship by the preference of one’s evidence over the other is rejected.
Grounds 3(a) and 4
These grounds contend for factual mistakes concerning the issue of family violence.
Ground 3(a) alleges the finding that the wife was violent towards the husband was “not supported by the evidence”. Conversely, Ground 4 alleges that the primary judge wrongly failed to find “violence perpetrated by the [husband] towards the [wife]”.
The parties’ evidence about the historical commission of family violence was incompatible, though some facts about past and existing family violence orders were incontrovertible.
The husband alleged he was assaulted by the wife in mid-2020, which incident he reported to the police (at [25]). His application for a family violence order against the wife was later dismissed (at [26], [114] and [139]). Later, in late 2023, the wife attended the husband’s property on several occasions seeking money. On the husband’s application, the police issued a provisional family violence order to the wife for his protection, which was later converted into a final order by a State court in late 2023 (at [43]–[46], [114] and [139]). The order remains in place until late 2024 (at [50]).
Significantly, when the final family violence order was made against the wife in late 2023, she was also convicted of “stalking and intimidating” the husband, for which she was fined $1,400 (at [46]). Although the wife was convicted and sentenced in her absence, there is no evidence that she ever applied to set aside the ex parte judgment (s 4 of the Crimes (Appeal and Review) Act 2001 (NSW)). The conviction is incontrovertible evidence of her commission of “family violence”, as that term is widely defined (s 4AB of Act).
The wife alleged she was physically abused by the husband on multiple occasions throughout their relationship (at [70] and [72]), which she alleged thereby made her contributions to the marriage more onerous (at [76]). She obtained a provisional family violence order against the husband from a State court in late 2019 (at [22]), which was converted into a final order with the husband’s consent in mid-2020, but without him admitting the wife’s allegations in support of it. The order was later extended with the husband’s consent in late 2023, at around the same time as he successfully obtained a reciprocal State family violence order against her (at [42]). The order favouring the wife also remains in place until late 2024 (at [50]).
The primary judge’s findings in respect of family violence were as follows:
128.…The Court does not accept the [wife’s] assertions of family violence by the [husband]. The Court does accept [husband’s] evidence of the family violence by the [wife] during the intermittent period of the relationship of approximately 22 months…
…
137.…The Court also accepts the [husband’s] evidence that the [wife] was verbally and physically violent towards the [husband]. The Court accepts the [husband’s] evidence that the [wife] during the marriage hit him on the face, head and torso, spat on him and on one occasion in 2018 choked him. The Court does not accept that the [husband] engaged in any conduct that supported the ADVO obtains by the [wife] in 2019. The Court finds that the [wife] used to ADVO process, without fearing the [husband], to exclude the [husband] from the home and to continue his exclusion from the same, without any contributions to outgoings by the [wife].
138.The Court does not accept that the ADVO obtained by the [wife] or the condition to exclude the [husband] from the home was based on any family violence by the [husband]. The Court finds the condition and ADVO were obtained by the [wife] to try and exclude the [husband] from the home and not because of any fear by the [wife] of the [husband].
(As per the original)
Such findings reflected the primary judge’s acceptance of the husband’s evidence in preference to the wife’s evidence. His Honour found the wife “evasive” (at [88]) and “not a reliable or credible witness”, who was prepared to “exaggerate and/or embellish her evidence” (at [129]). Some of her evidence was found to be “false” (at [129]).
Evidently, upon acceptance of the husband’s evidence, the finding that the wife perpetrated family violence upon him did have a sound evidentiary foundation, so Ground 3(a) must fail.
On the other hand, the finding that the husband did not perpetrate family violence upon the wife was not foreclosed just because the wife alleged it occurred. The wife contended the primary judge’s finding was irreconcilable with the State family violence order made in her favour in mid-2020, then extended in late 2023, but the submission is rejected. The husband’s unchallenged evidence shows the order was made in mid-2020 with his consent but without his admission. The extension of the order in late 2023 was also granted with his consent and, at least inferentially, without his admission. The final family violence order made by the State court in the wife’s favour did not constitute an issue estoppel because it was not based upon any findings. State magistrates are entitled to make family violence orders with the parties’ consent, without having to be satisfied of the conditions which must ordinarily be proven (s 78 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). Ground 4 must also fail.
Grounds 3(b) and 3(c)
These grounds complain of two factual mistakes. They assert error in the findings relating to the lack of care provided by the wife to the husband’s mother (Ground 3(b)) and the parties’ contributions as homemakers (Ground 3(c)).
During the appeal hearing, the wife’s lawyer said “most of my appeal is about the homemaking contributions”.
The wife contended she made “substantial homemaker contributions” during the longer period of the relationship for which she contended (at [109]). The primary judge found the wife’s homemaking contributions were “minimal and intermittent” in the aggregate period of 22 months during which the parties lived together (at [5], [124], [128], [129], [134], [135] and [141]), though she did the “majority of home duties” in that period, primarily for her own daughter’s benefit (at [15], [128] and [135]).
Those findings were consistent with the wife’s admission that she made no contributions whilst away overseas. She said this in cross-examination:
HIS HONOUR: - - - just to be clear, you weren’t contributing as a homemaker, to the welfare of the [husband], when you were overseas, and he was here in Australia. Correct?
[The wife]: When I was at home, in [Country D], I did not contribute to anything that [the husband] was doing.
(Transcript 16 November 2023, p.27 lines 31 to 36)
The primary judge also found the wife made no contribution to the care of the husband’s mother during the short period in which she lived with the parties before entering a nursing home (at [128] and [137]). In fact, the wife admitted the husband’s mother was in the nursing home at the time she had alleged looking after her (at [88]). This evidence was given by the wife in cross-examination:
[Counsel for the husband]: Right. She was in hospital when you came back. Is that right?
[The wife]: Yes. I – she was already in the hospital when I came back. I met her in the hospital.
[Counsel for the husband]: All right. And then she stayed – after the hospital, she went into the nursing home in 2107, where she lived until her death in 2021, didn’t she?
[The wife]: Yes. It was very long in the hospital, because she was in a very bad condition. Yes. And then they put her under care. But there was an AVO before that, with [the husband]. And then, you know, I spoke several times to the doctors in the hospital. But I did not want to take her – over her nursing, because I knew that she had a good time in the – she was being looked after in the nursing home.
[Counsel for the husband]: So – all right.
[The wife]: And that’s where she went.
[Counsel for the husband]: So the reality is, from the time you returned from [Country D] in 2017 until her death in 2021, [the husband’s] mother was not in your home being cared for by you or him or anybody else, was she?
[The wife]: Yes. I had to go to Guardianship hearings. And [the husband] wanted to bring home his mother.
[Counsel for the husband]: All right. That’s not what I asked you. Would you just confirm this for me. Whatever the circumstances, from the time that you came back to Australia in 2017, [the husband’s] mother was not in the house at [Suburb C], was she? She was being cared for in either a hospital or a nursing home.
[The wife]: Yes, yes. That’s true. That she went straight to a nursing home, from the hospital.
[Counsel for the husband]: Right. And prior to your marriage in 2016, his mother was in hospital, wasn’t she?
[The wife]: Yes. I didn’t understand.
[Interpreter for the wife]: Will you please repeat it, she says.
[Counsel for the husband]: All right. Before you got married – immediately before your marriage and leading up to your marriage in 2016, [the husband’s] mother was either in a hospital or in a respite nursing home, wasn’t she?
[The wife]: She was in [named nursing home].
[Counsel for the husband]: Right.
(Transcript 16 November 2023, p.23 line 25 to p.24 line 24)
The wife was assisted by an interpreter and her lawyer submitted in the appeal that she might have been confused by the questions, but that is rejected. It is not a construction which sits easily with the transcript. At other points during the wife’s evidence, the primary judge intervened to ensure she correctly understood questions. These examples from the transcript illustrate the point:
HIS HONOUR: No. Just pause there. If you didn’t understand it, I will repeat it. …
…
[Interpreter for the wife]: Yes. She just asked me to be very correctly interpreting, because this is the last hearing and so that you and she can exactly know what’s going on.
HIS HONOUR: [Addressing the wife], I’m of the view that the interpreter has correctly interpreted both the questions and the answers in your evidence so far. Is there any evidence that you want to correct because you say it hasn’t been correctly interpreted?
[The wife]: It was about the bank accounts that ..... that, you know ..... psychologist in Australia, after, you know, to improve the marriage. And you have to understand that, you know, very correctly.
HIS HONOUR: [Addressing the wife], I don’t accept that that identifies any error in relation to the interpreter. Is there anything else you want to identify as to an error by the interpreter?
[The wife]: No, no.
(Transcript 16 November 2023, p.25 line 22; p.29 lines 13 to 30)
The wife’s submissions to impugn the relevant findings made by the primary judge were confined to this:
B. …
2. …
e.The assessment of the Wife’s homemaker contributions was further affected by a finding that her homemaker contributions were directed mainly towards her daughter. That finding was not supported by any evidence. The Husband’s own evidence supports substantial homemaker contributions by the Wife.
f.The finding that there was no contribution by the Wife to the welfare of the Husband’s mother is contradicted by the evidence, particularly the Wife’s evidence of attending Guardianship appointments.
(Footnotes omitted)
Such submissions are rejected. They do not explain why the primary judge’s findings were wrongly made. It is not true the husband’s own evidence supported the wife’s assertion of her substantial homemaking contributions, as he expressly submitted for findings that limited the extent of her homemaking contributions (at [124]) and contended her overall contributions should be assessed at only five per cent (at [104]–[105]). Given the view taken by the primary judge about the unreliability of the wife’s evidence, her assertions about the extent of her care for the husband’s mother were rejected, which approach was open.
Grounds 2 and 5
Ground 2 is an unparticularised complaint of the primary judge giving either no weight or “insufficient weight” to an unidentified “relevant factor”. When challenged in the hearing about the competence of this ground of appeal and the written submissions made in support of it, the wife’s lawyer abandoned the ground.
Ground 5 complains of the primary judge giving insufficient weight to the wife’s “contributions to the welfare of the family”.
As already indicated, the primary judge found the wife’s contributions-based entitlement to the parties’ property approximated 10 per cent (at [161]). That finding was premised upon findings that: the wife’s homemaking contributions were “minimal and intermittent” in the aggregate period of 22 months during which the parties lived together (at [5], [124], [128], [129], [134], [135] and [141]); the wife made no contribution to the care of the husband’s mother (at [128] and [137]); the wife gambled away money provided to her by the husband (at [16], [88] and [129]); the wife did not produce any document to verify her alleged financial contributions in the face of the husband’s denial of them (at [109], [122], [127] and [133]); the wife made no contribution to the real property inherited by the husband from his mother in 2021 after the parties’ separation (at [5], [126], [127] and [133]); and the wife made minimal contributions to the husband’s superannuation during the marriage (at [128]).
True enough, such basal factual findings represented a sharp rejection of the wife’s evidence, but the findings are not shown to be wrongly made. Once the validity of the findings made about the parties’ respective contributions is accepted, the weight attributed by the primary judge to the findings was an exercise of discretion, the integrity of which exercise cannot be impugned unless the wife is able to show it was so manifestly unreasonable as to be a fundamental failure to exercise the discretion at all (Lovell v Lovell (1950) 81 CLR 513 at 519). These grounds did not reach those heights.
Disposition
The appeal must be dismissed.
The husband sought his costs of the appeal in the event of its dismissal. He first applied for indemnity costs but, upon debate, that application was abandoned. He then sought his solicitor/client costs, but his party/party costs in the alternative.
If costs are ordered, it is usually on a party/party basis (r 12.17(2) of the Rules). In any event, costs must be fair, reasonable and proportionate (r 12.08 and r 12.17(3)). No submission made by the husband came close to attracting an order for costs calculated on a solicitor/client basis at nearly $23,000.
The husband’s party/party costs, assessed at $11,313.44, were sought on the basis that the appeal would have then been wholly unsuccessful and should not have been brought. Those submissions are accepted, but they do not outweigh the wife’s penury as an important consideration (s 117(2A) of the Act) in determining whether a costs order should be made in a departure from the usual situation of each party paying their own costs (s 117(1)).
The primary judge found the parties’ net assets and superannuation were valued at just under $1.3 million but, under the property settlement orders, the wife received only $83,000 and superannuation of $50,000. She is unable to use the superannuation as a capital asset without making a hardship application to the superannuation trustee. At the conclusion of the trial the wife told the primary judge she owed her former solicitors $140,000, so her capital will likely be exhausted in meeting her legal costs of the litigation. The wife is unemployed. The application for costs is dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 11 July 2024
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