Fernsby & Zhao
[2023] FedCFamC1A 107
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fernsby & Zhao [2023] FedCFamC1A 107
Appeal from: Fernsby & Zhao (No 2) [2023] FedCFamC2F 79 Appeal number(s): NAA 41 of 2023 File number(s): BRC 11937 of 2020 Judgment of: TREE J Date of judgment: 5 July 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file affidavit material – Where the final hearing proceeded on an undefended basis – Whether the primary judge failed to consider relevant matters – Where there was no evidence of the purported matters before the primary judge – Whether there was a miscarriage of justice – Where no ground of appeal is successful – Appeal dismissed – Orders made for the filing of written submissions on costs. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Saso & Saso [2023] FedCFamC1A 65
Number of paragraphs: 35 Date of hearing: 22 June 2023 Place: Cairns (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Linklater-Steele Solicitor for the Respondent: Cooper Grace Ward Lawyers ORDERS
NAA 41 of 2023
BRC 11937 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FERNSBY
Appellant
AND: MS ZHAO
Respondent
order made by:
TREE J
DATE OF ORDER:
5 july 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.No later than 4.00pm on 12 July 2023 the respondent is to make file and serve submissions and any material in support of her application for costs against the appellant.
3.No later than 4.00pm on 19 July 2023 the appellant is to make file and serve submissions and any material in response to the respondent’s application for costs.
4.No later than 4.00pm on 26 July 2023 the respondent is to make file and serve any submissions strictly in reply to any material filed by the appellant under Order 3.
5.Upon the filing of submissions under Order 4 above, the judgment in relation to costs is reserved.
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 Fernsby & Zhao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Mr Fernsby (“the husband”) appeals from final property settlement orders made by the primary judge on 2 February 2023.
Ms Zhao (“the wife”) opposes the appeal. For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The husband was born in Australia and the wife in Country D. At the time of final hearing, the husband was aged 43 years and the wife 46. They have no children to their relationship, although they each have one child from previous relationships.
In 2013, the parties commenced cohabitation in Country D and were subsequently married in 2014. In 2017, they moved to Australia. Later that year, they first separated and the husband commenced property proceedings in the Country D Family Court, but subsequently discontinued them the following year. In 2018, the parties reconciled.
In 2020, the parties separated on a final basis, and the husband commenced these property proceedings in Australia.
On 31 August 2022, the primary judge listed the matter for a final hearing to commence on 1 November 2022 and made orders which readied the matter for trial. The husband failed to attend that hearing on 31 August 2022 and failed to comply with the orders to file trial material, save for what purported to be his Financial Statement filed on 18 October 2022.
On 1 November 2022, the husband appeared by way of telephone. Although he had filed no trial affidavit as required under the 31 August 2022 orders, on the day of trial he filed an application seeking that the proceedings be stayed. The primary judge dismissed that application and, as contemplated by the 31 August 2022 orders, the final hearing proceeded on an undefended basis.
The primary judge’s 2 February 2023 orders essentially provide for each party to retain the property (including liabilities attached to those assets) that is held in their respective names or in their possession, although that said, the pool was negative, as the liabilities exceeded the assets by well over $1 million. Specifically, the wife retained property worth $4,374,452 and liabilities of $5,713,650 (Order 3). The assets the husband is to retain under the orders were worth $120,000 and he assumed responsibility for no liabilities (Order 1). The orders further provide that all previous orders are discharged and all extant applications are dismissed (Order 6). The husband appeals only Orders 3 and 6.
THE APPEAL
The Notice of Appeal was amended at the commencement of the hearing. However the husband’s Summary of Argument did not address the grounds as they appeared in the Amended Notice of Appeal, but rather addressed only new Ground 8. He clarified that only those matters in Grounds 8(b), (c), (d) and (e) – which in any event substantially overlapped the other grounds – were pressed. I shall adopt that approach in dealing with the appeal.
The appeal raises no matter of general principle and hence these reasons are in short form (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)).
Ground 8(b)
This ground provides:
b.The [husband] was not afforded procedural fairness or natural justice resulting in the making of the property orders against him.
As argued, this challenge was that, by the primary judge proceeding to conduct an undefended hearing, the husband was denied procedural fairness and natural justice.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [94]).
As I have already noted, under the 31 August 2022 orders, the primary judge had sought to prepare the matter for trial, relevantly as follows:
1.That the matter be set down for final hearing for not more than one (1) day commencing at 10:00am on 1 November 2022 in the Federal Circuit and Family Court of Australia at Brisbane.
2.That if the husband fails to file and serve his affidavit of evidence in chief and/or fails to appear on 1 November 2022 the matter will proceed by way of undefended hearing.
…
4.That with the exception of expert witnesses, only one (1) affidavit of evidence in chief for each party and witness is to be filed and served by no later than 4:00pm on 11 October 2022.
5.That each party file and serve an updated Financial Statement by no later than 4:00pm on 11 October 2022.
6.That unless otherwise ordered parties are not permitted to rely on affidavits previously filed.
(Emphasis in original)
Plainly then those orders, which apart from purported, but late, compliance with Order 5, were not complied with by the husband, afforded him the opportunity to put affidavit material before the Court.
Although the husband claimed before the primary judge that he had only just become aware of the 31 August 2022 orders, the evidence established that he had been sent both an electronic and a paper version of them by the wife’s solicitor on 5 September 2022. More, the order was accessible to the husband on the Court’s portal, via which, as at 1 November 2022, he had recently lodged documents, including his “Financial Statement” on 18 October 2022.
For the first time, the husband now contends:
17.The [husband’s] non-compliance with the court’s orders on 31 August 2022 was due to circumstances beyond his control. The [husband] was continuously travelling at the relevant time. The [husband] faced a lot of issues in accessing the portal. The [husband] was going through difficult times in relation to his employment and other matters.
(Husband’s Summary of Argument filed 15 May 2023) (Footnote omitted)
However that was not raised with the primary judge and indeed there is still no evidence of those matters.
It is further said that there were earlier affidavits filed by the husband which he could have relied upon at trial, however they appear to all pre-date the 31 August 2022 orders, which specifically forbade reliance on earlier filed affidavits. On the facts of this case, neither natural justice nor procedural fairness required the primary judge to try to manufacture some means of enabling the husband to avoid the consequences of his clear non-compliance with the 31 August 2022 orders. Re F: Litigants in Person Guidelines (2001) FLC 93-072 is not authority to the contrary.
Insofar as some complaint is raised that the husband was prevented from cross-examining the wife, that is the product of s 102NA of the Family Law Act 1975 (Cth), and the husband’s failure to arrange representation to conduct any cross-examination is not any error by the primary judge (cfSaso & Saso [2023] FedCFamC1A 65).
No challenge was mounted under this ground that the lack of opportunity for the husband to make submissions was procedurally unfair (cf Morgan & Valverde (2022) FLC 94-100).
Ground 8(b) fails.
Ground 8(c)
This ground provides:
c.The Impugned Order was made with improper consideration of facts and evidence.
In his Summary of Argument, the husband argues:
29.… The Court failed to consider the following facts while making the order:
a)Fixed Charge over [Company B] for the Director Loan Debt owed to former Director /Shareholder [husband] and transfer or assignment of Debt for third party Debt collection in commercial proceedings.
b)The Illegal removal of [husband] as director and transfer of shares in company to be referred to ASIC for case review investigation.
c)Debt Matter to be referred to criminal DPP to investigate Embezzlement of funds used in money laundering to obtain financial benefit by deception of shareholders.
d)The transfer of funds from Australia and subsequent funds transfer to Australia from foreign bank accounts to acquire property with embezzled company funds.
e)Security of [Town W] Qld Property and [Country D] Properties.
f)Unrestricted to peruse and secure assets in [Country D] and other foreign jurisdictions.
g)No restrictions to commence court proceedings in a foreign jurisdiction either civil or family courts in [Country D] or elsewhere. Due to the International nature of the asset pool.
h)Copy of all bank statements & loan statements in [Country D] and Australia and other jurisdictions.
i)Details of the sale of proceeds from Sale of [motor vehicle] and date of any sale.
j)Details of the transaction and funds transferred from the sale of the [vessel] sold.
k)Details and source of any income from [Company C] or associated entities directly or indirectly.
(As per the original)
However the simple fact is that there was no evidence of any of these matters before the primary judge, and therefore her Honour was not obliged to consider them.
Ground 8(c) fails.
Ground 8(d)
This ground provides:
d. The Impugned Order suffers from error in law.
This ground was not separately pressed, and fails.
Ground 8(e)
This ground provides:
e. That there is a miscarriage of justice and financial hardship.
As argued, this ground asserted two things. The first was that the outcome of the proceedings was patently unjust. The second was essentially an extension of Ground 8(b), in that it was said that, but for the matter proceeding by way of undefended hearing “it is highly likely that a different result would have been achieved if [the husband] had been able to provide evidence of the related party loans and related party transfers of assets” (husband’s Summary of Argument filed 15 May 2023, paragraph 40).
As to the first, it cannot be overlooked that the pool was negative, as was the wife’s entitlement under the orders, whereas the husband’s entitlement was small, but positive. How that outcome per se was in any way unjust to the husband is unclear.
As to the second, the incontestable fact is that the husband did not put on any material about related party loans or transfers of assets, and indeed, beyond the assertions in his Summary of Argument, there is still no evidence of them.
This ground fails.
OUTCOME
No ground of appeal succeeds, and hence it will be dismissed.
COSTS
In the event the appeal failed, the wife sought an order for costs, but foreshadowed an intention to rely on offers to settle the proceedings in support of that application. The parties agreed a timetable to facilitate that, and I will pronounce orders accordingly.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 5 July 2023
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