Durand & Gilson
[2025] FedCFamC1A 36
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Durand & Gilson [2025] FedCFamC1A 36
Appeal from: Durand & Gilson [2024] FedCFamC2F 1321 Appeal number: NAA 273 of 2024 File number: BRC 13077 of 2020 Judgment of: ALDRIDGE J Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found there was no property capable of division – Where the appellant contends that finding was in error – Definition of property – Discussion of add backs as notional assets – No error identified – Where the appellant contends she did not agree with the way her counsel ran her case – No evidence that conduct of counsel led to an unfair result – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 4, 75, 79 Cases cited: OP v TP (2002) 30 Fam LR 281; [2002] FamCA 1155
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Number of paragraphs: 39 Date of hearing: 27 February 2025 Place: Sydney (via video link) The Appellant: Self-represented litigant The First Respondent: Self-represented litigant The Second Respondent: No appearance ORDERS
NAA 273 of 2024
BRC 13077 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DURAND
Appellant
AND: MR GILSON
First Respondent
B PTY LTD
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 21 February 2025 is dismissed.
2.The appeal 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Durand & Gilson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 September 2024. Each party was to retain the property held by him or her and otherwise the application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) was dismissed.
The reason for the order is plain. Her Honour said:
43Put very bluntly, there is no property to alter. I therefore cannot see how it is possible for me to make any order for the division of property if the parties themselves cannot even identify it. I understand that there are several issues in dispute, particularly with respect to the source of funds which were injected into [C Company] in 2012 however, arguments as to contributions are of no great significant [sic] in circumstances where there is no evidence of the existence of any property to be divided.
The appellant’s counsel had submitted to the primary judge that there were “funds to make an adjustment of $700,000.00” having regard to the assets listed in the appellant’s affidavit filed 14 June 2023 at paragraph 29 (appellant’s written submissions dated 10 April 2024, paragraph 52).
As to this, her Honour said:
45The ‘list of assets’ referred to above consists largely of add backs in the amount of approximately $1,538,332.37. I made it clear to counsel for the wife at the final hearing that I am unable to add back funds into the property pool if it is unclear where I am to add them back from. Taking out the add backs from the wife’s property pool, there is $75,000 worth of the wife’s jewellery which she alleged that the husband withheld and $11,492.85 in the husband’s superannuation. The other items included in the wife’s property pool are either nominal value or unknown.
46The husband’s pool is also relatively unclear however, it is submitted on his behalf that there is no sale proceeds left from the sale of [Suburb D] property and that on his side of the property pool, there is only approximately $30,600. The husband has provided settlement statements which evidences the sale proceeds from the sale of the [properties] in 2018 being applied towards the acquisition of the [Suburb D] property and were minimal sale proceeds from the subsequent sale of the [Suburb D] property.
(Footnotes omitted)
The primary judge found both parties to be unimpressive witnesses (at [22]). There had also been little compliance with the parties’ obligation of disclosure.
Further, her Honour said:
21I was assisted very little by submissions made by both counsel for the wife and husband. I am ultimately placed in a position where I am being asked by the parties to make certain findings with absolutely no evidence to support same. This is particularly the case with respect to who contributed substantial funds towards [C Company] in 2012. When I spoke to counsel at the final hearing about preparing written submissions, I specifically requested that the submissions refer me to specific paragraphs in and annexures to the parties’ affidavits to show the source of funds coming in and out. This was not done.
The primary judge held there was insufficient evidence to establish the appellant’s allegation that the respondent had retained her jewellery valued at $75,000.
The conclusion was that “the demonstrable roadblock in this matter is the fact that there is no property which is available for distribution” (at [35]).
I note that no superannuation splitting order was sought but the amount to be split was small indeed.
THE APPLICATION IN AN APPEAL
The appellant did not comply with the directions of the appeals judicial registrar to file a Summary of Argument by 20 December 2024. On 21 February 2025 she filed an Application in an Appeal seeking an extension of time to file it.
The affidavit accompanying her application offers no explanation for the delay. The attached document is not a Summary of Argument – it is merely the Amended Notice of Appeal set out again. It is in a narrative form which is of little assistance. It is set out in five parts (not grounds) with assertions of error along with many general assertions about the respondent.
Nonetheless, the appellant sought to rely on the attached document as her Summary of Argument. The respondent did not object to this course and the hearing of the appeal proceeded on that basis.
THE APPEAL
Part one of the Amended Notice of Appeal is entitled “Background on the Defendant (The defendant has a bad record) The Defendant fraudulent misrepresentation and has concealed and transferred assets, there are principle errors in the court’s judgment”(as per original). Paragraph three under that heading is:
Ultimately, the judge concluded that this was a case without property settlement, which represents a significant error and fundamental flaw in the judge’s reasoning.
No further elaboration is given.
It is to be recalled that at the end of the hearing the appellant sought a cash payment of $700,000 based on the assets set out in her affidavit. Whilst a number of companies and other assets are listed in that affidavit, they are described as having an unknown value. Ultimately, the payment sought reflected what the appellant proposed as her percentage of add backs.
Section 79 of the Act relevantly provides:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
…
“Property” in relation to parties to a marriage or either of them is defined by s 4 as meaning “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”.
Section 79, therefore, speaks in the present tense of the property held by the parties at the time of the order, altering the interests in it, if appropriate. Self-evidently, property which was held by the parties but no longer exists cannot be the subject of an order because the parties, or either of them, no longer have an interest in it.
Whilst in certain circumstances the court can take into account, as a matter supporting particular orders, the disposition of property under s 75(2) or, less preferably, by way of add backs (Trevi & Trevi (2018) FLC 93-858), what has been disposed of is no longer property of the parties capable of division. Thus, whilst add backs in respect of such dispositions are far too commonly added to balance sheets as assets, this is apt to mislead. The entries are notional only and do not represent actual property held by the parties. They cannot be the subject of orders – they are only capable of informing the appropriate division of property that actually exists.
The first step therefore, in any property case, is the identification of the property. The majority of the High Court in Stanford v Stanford (2012) 247 CLR 108 said:
37First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
(Emphasis in original)
It follows that in order to succeed on this appeal, the appellant must establish, contrary to her Honour’s finding, that there was in fact property available capable of division.
There is no ground of appeal asserting that the primary judge erred in finding that there was no property.
In oral submissions, the appellant referred to a commercial property at Suburb D which was sold by the respondent. As the earlier quote makes clear, the primary judge was aware of the sale, but found there were no proceeds of sale left. On the appeal the appellant submitted that, in reality, it was a sham transaction.
The Suburb D property was referred to in paragraph 6.8 and 6.9 of the appellant’s affidavit of 21 August 2023. There she refers to its transfer in 2018 and asserts that there was no real asset transfer and that the documents were false, having been forged.
The respondent was cross-examined on this by counsel for the appellant. His evidence was that the proceeds of sale were used to pay debt. Clearly, counsel had the settlement sheet for the sale of the property in his hands as he asked questions about it.
A question was put and denied that the respondent’s current partner has an interest in “that business” (Transcript 28 February 2024, p.182 lines 5–15). That business, being F Company, appeared to be one that received part of the proceeds of sale.
It was not put to the respondent that the sale was a sham transaction.
There are further difficulties in raising the point now. The Initiating Application did not seek any orders in relation to this property and the appellant’s Case Outline did not include this property, only an add back for the sale proceeds.
The appellant’s written submissions referred to the Suburb D property as follows:
The Settlement Funds
48.When the Husband sold the [E] Street Property, he alleges there was outstanding fees to [G Company] of $713,000.00 (rounded) and about $400,000.00 to [F Company].
49.It is noted that at no point did the Husband actually disclose anything apart from a settlement statement and letter stating an amount owed, noting he is critical of the Wife for her lack of disclosure. It seems no actual disclosure of same can show any alleged actual bank statement or transfer nor receipt nor confirmation, of depositing those funds to an alleged corroborated account of [G Company] nor [F Company].
(Appellant’s written submissions dated 10 April 2024)
This led to the claim for add backs identified by her Honour.
This is not the identification of an asset overlooked by the primary judge. This is not a case where it was suggested that the respondent, in reality, continued to hold assets in the name of others which had not been disclosed. No order was sought against the two entities which received the funds and neither was a party.
It follows that even if the payments to these entities could be categorised as payments that needed to be taken into account in adjusting the interests in the parties’ property, there were no interests to adjust.
Thus, no error has been identified in the primary judge’s finding that there were no assets capable of division and her Honour’s subsequent decision that this was fatal to the property application.
The appellant submitted that it was her lawyer’s fault that the property was not included in the relevant documents and that a claim of sham was not made.
The appellant also complained that the final judgment was based on written submissions which were lodged on her behalf that she did not agree with, that did not reflect her intentions and were merely what counsel considered appropriate.
A litigant is bound by the actions of his or her lawyer unless it can be demonstrated that the incompetence of counsel led to a miscarriage of justice (OP v TP (2002) 30 Fam LR 281 at 294–298).
There is no evidence of the incompetence of counsel that led to an unfair result. Submissions are not evidence. The appellant did not seek to adduce evidence on the appeal either to show that the recipients of the proceeds of sale or the new owner of the Suburb D property were holding them or it for the benefit of the respondent, or were his alter ego. There was no evidence from which it could be inferred that the lawyers were incompetent, let alone to a degree that caused a miscarriage of justice.
The “part” of the Amended Notice of Appeal that raises this issue does not succeed.
There is therefore no point in dealing with the other “parts” (grounds) of the appeal which relate to quantification of the claim. The appeal is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 March 2025
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