FIELD & MIGHELL

[2015] FamCAFC 32

FAMILY COURT OF AUSTRALIA

FIELD & MIGHELL [2015] FamCAFC 32

FAMILY LAW – APPEAL – PROPERTY – Where the parties have property in Australia and overseas – Where it is alleged that the husband is significantly in child support arrears referable to an overseas order – Where the overseas property may be subject to an encumbrance due to unpaid child support arrears – Where the overseas property was not sold in accordance with the trial judge’s orders due to the existence of an encumbrance attached to the property – Where the evidence before the trial judge regarding the litigation in relation to the child support orders is disputed – Where the evidence before the trial judge regarding overseas proceedings is unsatisfactory – Whether the trial judge should have taken the existence of an overseas child support debt into consideration when adjusting the parties’ interests in property – Whether the trial judge erred in declaring the parties’ interests in the overseas property – Whether the trial judge erred in assessing the parties’ contributions – Where the wife challenges the trial judge’s findings of fact – Where the wife challenges the weight placed by the trial judge on the evidence – Whether the trial judge’s exercise of discretion was “plainly wrong” – Where the wife alleges denial of procedural fairness – Where the wife asserts fraud, coercion and duress on the part of the husband – Where the trial judge was unable to bring the parties’ financial relationship to an end due to the conflicting evidence regarding the parties’ overseas property – Appeal dismissed.

FAMILY LAW – APPEAL – Application to adduce further evidence – Where the evidence sought to be adduced does not demonstrate the orders of the trial judge are erroneous – Where the evidence sought to be adduced would not have produced a different result had it been available at trial – Application dismissed.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth)

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Bevan & Bevan (2013) 49 Fam LR 387
Boulos and Boulos [2003] FamCA 1185
CDJ v VAJ (1998) 197 CLR 172
Coghlan and Coghlan (2005) FLC 93-220
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
Hickey & Hickey (2003) FLC 93-143
Mighell & Field [2011] FMCAfam 591
Mighell & Field (No.2) [2011] FMCAfam 1176
Mighell & Field [2012] FMCAfam 950
Pierce v Pierce (1999) FLC 92-844
Schenck & Schenck (1981) FLC 91-023
Stanford v Stanford (2012) 247 CLR 108

APPELLANT: Ms Field

RESPONDENT: Mr Mighell

FILE NUMBER: MLC 1145 of 2010

APPEAL NUMBER: SOA 72 of 2012

DATE DELIVERED:: 25 February 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Melbourne

JUDGMENT OF: Faulks DCJ, Ainslie­Wallace and Bennett JJ

HEARING DATE: 14 October 2013 and 7 October 2014

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 21 June 2011;
10 November 2011; and 31 August 2012

LOWER COURT MNC: [2011] FMCAfam 591; [2011] FMCAfam 1176; and [2012] FMCAfam 950

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person

Orders

1. The appellant’s application to adduce further evidence is dismissed.

2. The appeal is dismissed.

3. (a) If the respondent wishes to make any submissions as to costs he must do so in writing on or before 10 March 2015, filed in the Appeals Registry in Melbourne and served on the appellant.

   (b) Any submissions in reply by the appellant must be in writing and filed on or before 17 March 2015 and served on the respondent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Mighell 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 MELBOURNE

Appeal Number: SOA 72 of 2012
File Number: MLC 1145 of 2010

Ms Field

Appellant

And

Mr Mighell

Respondent

REASONS FOR JUDGMENT

Faulks DCJ

1. In this matter it is necessary to begin by reviewing the three sets of Reasons for Judgment delivered by the trial judge, for making what amounted to three sets of orders.  In the first of his Reasons for Judgment on 21 June 2011 his Honour made interim orders and adjourned the matter for further mention on 21 September 2011.  One of the interim orders made was that the respondent wife do all acts and things necessary to sell a property in Mexico.  He also ordered the applicant husband do such things as may be required to enable her to do this. 

2. His Honour also ordered that the applicant’s solicitors prepare draft orders, which if made, would effect the division of the husband’s superannuation on the basis that the wife received $32,000 as a base amount in a splitting order.  

3. A further order provided that there be a payment by the applicant to the respondent of $20,000 in part property settlement and then ordered “save as ordered above each party retain to the exclusion of the other all chattels presently in their possession and each party retain to their sole benefit any superannuation held on trust for them and any superannuation fund”.

4. The property of the parties fell within fairly narrow compass.  There was a house in Melbourne[1], the Mexican property and the husband’s superannuation. Liabilities were identified as a mortgage on the Melbourne property and rates apparently owing on the Mexican property. 

   [1] Mighell & Field [2011] FMCAfam 591[78].

5. The situation was complicated by the fact that it was asserted (and indeed agreed between the parties) that there were still current proceedings between them in the Mexican courts about asserted arrears of child support.  This involved a substantial sum of money (although there was some confusion in proceedings before us relating to whether the figures were in pesos or Australian dollars) of somewhere in the vicinity of $385,000.  By the time the matter had come on for hearing before us, that amount had grown to over $400,000. 

6. As a consequence of those proceedings some charge had been placed on the Mexican property. There was also a relatively minor amount (some $7,000 or thereabouts) also charged against the property for outstanding rates. 

7. In this first judgment, his Honour, having determined a preliminary matter, set out the facts that were before him.[2]  In the course of doing so, he made certain findings of fact which were open to him on the evidence and indicated his reasons for doing so.  There was nothing inappropriate in the way in which his Honour conducted that aspect of his considerations. 

   [2] Ibid [13-56].

8. Having made observations about the witnesses, and on the evidence as a whole,[3] his Honour made adverse findings as to credit against both the husband and the wife.[4] 

   [3] Ibid [57-72].

   [4] Ibid [70].

9. His Honour then considered the pool of property for distribution, identifying the properties and liabilities referred to above and concluded that the value of the Melbourne property was $1,250,000 and the mortgage (then agreed) was $150,000.[5]  He reviewed the evidence about the value of the husband’s superannuation, including making a finding that it was worth about $17,000 at the time of the commencement of the relationship and $81,000 when the relationship finished.[6]

   [5] Ibid [77].

   [6] Ibid [75].

10. The value of the Mexican property was at that point (and has remained) a matter of some contention between the parties.  His Honour noted that fact in [73] and in the summary table in [78] of his judgment.

11. His Honour then began a consideration of the question of the child support debt referred to above.  There was some suggestion that some form of enforcement might have been attempted in Australia but there was no evidence about this nor was there any joinder of any third party (including any person from the Attorney-General’s Department) as appears from [80] of the judgment. 

12. His Honour then concluded in [85] as follows:

    I have given earnest thought to what is the proper way to proceed with this aspect of the dispute.  I am bound to assume, and do, that the proceedings in Mexico have been regularly conducted.  I appreciate that the husband asserts fraud on the wife’s part, but that is a matter for the Mexican Curial Authority. 

13. He then continues in [86]:

    In the ultimate, if the husband has a liability under Mexican law as a result of failure by him to do what he is lawfully required to do, then that is his difficulty.  By the same token, if in the ultimate he is not required to pay any moneys pursuant to the Mexican Court orders then so be it.

    While clearly the outcome of the Mexican proceedings will alter, and radically at that, the parties’ financial positions, the reality is that a child support debt is either owing or it is not.  It should not, in my view, properly be taken into account in the pool…

14. His Honour had no evidence before him at that stage (or for that matter at any subsequent stage) as to what was happening in the Mexican proceedings or whether they were concluded.  While there can be no doubt that either the receipt of or the payment of such a debt might alter the way in which the division of property between the parties might be considered, without any evidence, his Honour was in an invidious position.  His Honour was right in determining that it was not to form part of the pool of property of the parties. 

15. His Honour then considered, assessed and weighed the disparate contributions made by the parties.  He took account of the initial contribution of the husband and made findings about it, and examined the assertion by the wife that she had some $50,000 US at the beginning of the relationship before concluding, in my opinion as he was entitled to do, that the husband’s contribution at the commencement of the relationship was “far the greater”.[7] 

    [7] Ibid [87].

16. His Honour then assessed the non-financial contributions made by each of the parties and also the role that each of them played in relation to the care of the children.  His Honour correctly stated these are not areas of precise evaluation.[8] 

    [8] Ibid [91].

17. His Honour made reference to Pierce v Pierce[9] and considered (in my opinion appropriately) how a contribution as home-maker and parent should receive substantial and proper recognition. 

    [9] Pierce v Pierce (1999) FLC 92-844

18. At [98] his Honour concluded that the contributions should be regarded as being 20 per cent higher by the husband than by the wife.  I presume this means a 70/30 division of contributions as appears from his subsequent consideration of s 75(2).  This conclusion by his Honour does not fall so far outside the generous ambit of discretion as their Honours in the High Court suggested in Gronow v Gronow[10] as to require appellate interference. 

    [10] Gronow v Gronow (1979) 144 CLR 513.

19. His Honour then assessed s 75(2) factors, hampered by a number of matters, including a lack of information about capacity to earn on the part of the wife and also the future care of the children. 

20. At [103] his Honour concluded, as I believe he was entitled to do, that there should be an adjustment in favour of the wife, of some 5 per cent.  This suggested that there should be a division of the assets of the parties on the basis of 65 per cent to the husband and 35 per cent to the wife. 

21. His Honour took account of the husband’s submission that the superannuation engendered during the relationship should be split 50/50 and indicated that there would be a splitting order to produce some $32,000 to the wife.[11] 

    [11] Mighell & Field [2011] FMCAfam 591 [104].

22. This figure was apparently arrived at by the deduction from $81,000 (being the value of the superannuation (apparently conceded) at the end of the relationship) of the $17,000 that it was asserted that the superannuation was worth at the beginning of the relationship, creating a figure of $64,000 which he then divided by two.  His Honour provided no particular reason for dealing with the superannuation in that way.  Coincidentally, the figure of $32,000 would represent about 35 per cent of the value of the superannuation as it was before his Honour ($109,000) less the value of the superannuation at the beginning of the relationship ($17,000).  His Honour was entitled to take account of the greater contributions made by the husband (particularly pre‑relationship) and in the end even if his Honour was wrong in dividing the superannuation generated during the relationship equally (and I pass no opinion in relation thereto) the difference between what his Honour might have ordered differently and what he did order is not such that it would give rise to any appellate interference. 

23. It was not necessary for his Honour to deal with the superannuation as part of one pool of property.[12]

    [12] Coghlan and Coghlan (2005) FLC 93-220.

24. His Honour then moved to consider whether by “taking a step back, as it were”, the outcome he proposed was going to be just and equitable.  This approach is compliant with what was thought to be the correct approach at that time in accordance with Hickey & Hickey.[13] 

    [13] Hickey & Hickey (2003) FLC 93-143.

25. Since Stanford v Stanford[14] it may well have been more appropriate to consider at the beginning whether orders should have been made altering the parties’ interests in the property.  However in this matter both parties sought an alteration in the interests of the property of the parties.[15] Accordingly, the addition of that step would not have changed the result. 

    [14] Stanford v Stanford 247 CLR 108.

    [15] See Stanford v Stanford 247 CLR 108 [42].

26. As was pointed out in Bevan & Bevan[16] the concept of justice and equity permeates the whole of the proceedings.[17] His Honour’s consideration of whether the orders that he was proposing would be just and equitable was hampered by some practical problems. 

    [16] Bevan & Bevan (2013) 49 Fam LR 387.

    [17] Ibid [86]

27. There was a lack of agreement (in fact substantial disagreement) about the value of the Mexican property and the factors affecting the disposition of that property, that is, the potential child support debt and the rates debt. 

28. What his Honour then concluded in this first judgment was that to overcome this deficit in information he should order that the parties cooperate in the sale of the property so that the balance could be ascertained.  He then provided that after the sale there should be an appropriate adjustment “to ensure the wife receives 35 per cent of the total pool”.[18]  This was consistent with the conclusions his Honour had reached about the contributions the parties had made before, during and after the relationship and also the factors that might properly be brought into account for the future financial circumstances. 

    [18] Mighell & Field [2011] FMCAfam 591 [107].

29. He therefore in effect made interim orders, although he covered almost all the matters required to be covered by the Act to facilitate the final identification of the property and to enable the appropriate adjustments to be made. It is to be noted this included the prepayment by the husband to the wife of $20,000 (the husband had himself endorsed a proposal for pre-payment to the wife of $100,000 at [108]) so that she would have the wherewithal to discharge any taxes upon the Mexican property.

Second Reasons for Judgment

1. In accordance with the orders made in the first judgment, the proceedings were adjourned for further mention on 21 September 2011. 

2. The first part of the second judgment was a review of what had happened in the matter since 21 June 2011 (the publication of the first judgment). 

3. These reasons for judgment recited (properly) that they were to be read in conjunction with the earlier reasons for judgment.  His Honour expressed what I believe was apparent from the first judgment, that it was his intention (although perhaps optimistically) that the Mexican property would be sold enabling a quantification of one of the other assets of the parties.  This was partly because the estimates of value of the Mexican property varied between $300,000 from the husband and $115,000 from the wife.[19] 

   [19] Mighell & Field (No.2) [2011] FMCAfam 1176 [3].

4. His Honour affirmed that he had decided to “exclude the child support in Mexico” and then reviewed what was said in the previous judgment about the property in Mexico being divided as to 65 per cent to the husband and 35 per cent to the wife.[20] 

   [20] Ibid [6].

5. The interim nature of that intention (as opposed to an order) was illustrated at [7] of his Honour’s Reasons for Judgment:

   What I had in mind was that between May and September 2011, the wife would sell the property in Mexico and the matter would then be the subject of adjustment.[21]

   [21] Ibid [7].

6. His Honour was making determinations about property outside Australia and this, therefore, could only be the subject of orders made in personam.  If that were not enough, the evidence relating to the property (which included, at least inextricably, evidence relating to the child support dispute in Mexico) was unsatisfactory at all levels. The evidence relating to the property was the subject of contradictory assertions by each of the parties and the trial judge had found that the evidence of each of them was, on a number of matters, unsatisfactory.  His Honour was, in my opinion, doing everything possible to find a solution in these difficult circumstances. 

7. Since the first Reasons for Judgment, each of the parties had attempted to make further submissions and file further documents.  These involved mutual recriminations about why the property in Mexico had not been sold and led

   
   

   his Honour to comment that:

   … both sides are plainly in breach of the orders I made on June 2011.[22]

   [22] Ibid [12].

8. Each of the parties also made various assertions about other matters that had occurred, leading his Honour to observe that:

   This documentation formed part of her endeavour to reopen the case.[23]

   [23] Ibid [14].

9. On that basis his Honour was presented with additional documents which he correctly interpreted as attempts to adduce further evidence which could only be admissible (if at all) if leave were to be given for the reopening of the cases for either or both of the parties.

10. The husband was also recorded as requesting that there be a 65/35 split of the non-superannuation assets with the wife being obliged to have the Mexican property, valued at $300,000, as part of her share of that division. 

11. The husband also appeared to want to lead extraneous material about orders which might be made advising the court in Mexico that the children had been living with him since March 2009. 

12. His Honour also commented on other submissions and not previously admitted facts which the wife sought to put before the Court.[24]

    [24] Ibid [21].

13. His Honour summarised the effect of these materials in [31].

14. Because of the significance that this issue took before us in due course I should record that in [32] his Honour remarked as follows:

    Counsel for the husband asserted that the conclusion of the various proceedings in Mexico would take 18 months, a submission that seems all too probably correct given the fact that the parties had been embroiled in litigation it seems since 2003 in that country. 

15. This is mentioned because it is important to draw attention to the fact that

    
    

    his Honour was aware of the ongoing proceedings and had chosen, in my opinion quite rightly, to quarantine them from the considerations he was undertaking in Australia. 

16. There can be no doubt that the outcome of those proceedings might have an effect on the division of property in Australia, representing, as it might if the wife were successful, additional funds available to her when they were paid. So far as the husband was concerned, the potential for another liability might have affected the trial judge’s determination of the factors under s 75(2). 

1. It is not the case however, that a trial judge is obliged to do more than determine the issues before him or her on the basis of the evidence properly presented by the parties.  If the parties want a wall built, they need to supply the bricks.  Given that the outcome of the child support proceedings in Mexico were not capable of being definitively forecast, short of adjourning the proceedings generally until matters in Mexico had been completed, it is hard to know what his Honour might otherwise have done in these proceedings. 

2. I note in passing that his Honour, certainly properly and perhaps generously, accommodated a misconception on the part of the wife that the matter had been listed for mention only and not for further hearing, by permitting a further period for written submissions.[25] 

   [25] Ibid [35].

3. His Honour then considered the wife’s application to reopen her case and disallowed that application.  His consideration and reasons, which appear in [37]-[45] inclusive, properly explain his reasons and no appealable grounds are discernible therein. On this point I draw attention to Aon Risk Services & ANU,[26] particularly as it relates to the injustice of late amendments in proceedings. 

   [26] Aon Risk Services Australia v Australian National University (2009) 239 CLR 175.

4. His Honour then expressed the view that the non-superannuation assets between the parties should remain divided between them as to 65 per cent to the husband and 35 per cent to the wife, concluding:

   This trial has become somewhat convoluted by virtue of the way in which the parties have sought, in effect, to reopen the cases when that was not something that the court had envisaged or desired in the original reasons for judgment.[27]

   [27] Mighell & Field (No.2) [2011] FMCAfam 1176 [47].

5. This continual pressing for the admission of further material and the making of further submissions was, and to some extent even before us remained, a feature of this litigation. 

6. Having reiterated at [51] that:

   … the position in Mexico so complicated … that it is impossible to decipher exactly what is going on.  It is even more difficult to establish what the likely outcome of the Mexican proceedings will be and when it may occur.

7. His Honour concluded:

   Nothing I have heard alters my conclusion that the just and equitable division of the parties’ non superannuation assets should be 65 per cent to the husband and 35 per cent to the wife. [28]

   [28] Ibid [53].

8. His Honour then goes on to comment in a passage referred to by the wife in proceedings before us as follows:

   This finding, as indeed was the case in my earlier Judgment necessarily puts aside the child support debt in Mexico.  It is self-evidently utterly unsatisfactory that such a significant liability should not be included in the pool of assets and liabilities of the parties, but in circumstances where it is vividly contested and the outcome of that contest remains wholly unclear, there is simply no other alternative than to delay the final outcome of these proceedings on an indefinite basis until the next proceedings are concluded.[29]

   [29] Ibid [54] (Emphasis added).

9. His Honour then concluded:

   … it would be plainly unconscionable not to deal with the matter as best one can now. [30] 

   [30] Ibid [55].

10. With respect, I agree.  His Honour then went on to indicate further orders he proposed to make on a “part property settlement only”.[31] 

    [31] Ibid [56].

11. His Honour then made the following orders:

    (1)The husband pay to the wife 35 per cent of the net value of the [Melbourne] property of $1,100,000 (being $385,000) within 90 days failing which that property must be sold and the proceeds of the sale be applied:

    (a)First to pay all costs, commissions and expenses of the sale;

    (b)secondly to discharge the mortgage and any other encumbrance affecting the real property; and

    (c)the remaining sum be divided 65 percent to the husband and 35 percent to the wife.

    (2)The sum referred to in Order 1 shall be reduced by the $20,000 the husband already paid to the wife pursuant to earlier Orders. 

    (3)In order to facilitate the sale of property the parties do all such acts and things and sign all such documents as are necessary to properly market and complete the sale of the [Melbourne] property [details omitted].

    (4)In the event that either party refuses or neglects to execute any document required to give effect to these orders within 14 days of request the Registrar of the Melbourne Registry of the Family Court of Australia is hereby appointed and authorised pursuant to section 106A of the Family Law Act to sign any such document and to otherwise do all acts and things in the name of the husband and/or the wife necessary to give validity and operation to such document.

    (5)The property is to be sold at public auction:

    (a)By an agent chosen by agreement between the parties and in default of agreement by an agent nominated by the President of the Real Estate Institute of Victoria;

    (b)the parties are to engage a solicitor to effect the sale, to be nominated by the agent;

    (c)the agent is to nominate the reserve price and the date of sale; and

    (d)in default of sale at the auction and the parties are subsequently unable to agree to the sale of the property by private treaty at a reduced price the property is to be again offered for sale within three calendar months without reserve.

    (6)Pursuant to s 90MT (1)(a) of the Family Law Act 1975 [the husband] a member of the [W] Superannuation Service (the Superannuation Fund) and [W] Limited trustee of the Superannuation Fund (“the Trustee”) do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to [the husband] [account details omitted] from his interest in the Superannuation Fund [the wife] is entitled to an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $32,000 (thirty-two thousand dollars) and that there is a corresponding reduction in the entitlement of the [husband] had these Orders not been made.

    (7)For the purpose of this Order:

    (a)The base amount to be allocated to [the wife] in the Superannuation Fund is $32,000 (thirty-two thousand dollars); and

    (b)the operative time for this order is four business days after the service of this Order on the Trustee.

    (8)Each party keep the chattels in their possession.

    THE COURT DECLARES THAT:

    (9)The parties own their property in […] Mexico in the following proportions:

    (a)The husband – 65 per cent; and

    (b)the wife – 35 per cent.

    (10)Following sale of the [Mexican] property the net proceeds of sale should be divided:

    (a)As to the husband – 65 per cent; and

    (b)as to the wife – 35 per cent. 

    (11)These orders and declarations are by way of part-property settlement only.

    AND THE COURT NOTES THAT:

    (12)This Order and payments made as a result will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

12. His Honour concluded in relation to these orders as follows:

    These orders are not in any way entirely satisfactory.  They represent the best the court can do.  The forensic task imposed on the court in this case by the inadequate and conflicting material filed by the parties is enormous.  It is all but insuperable.  It is further complicated by the fact that I have no great confidence that either of the parties is particularly truthful. 

    To the extent that these orders may visit some element of injustice upon the parties, in my opinion they have no one but themselves to blame. [32]

    [32] Ibid [57].

Third Reasons for Judgment

1. His Honour sought submissions on draft orders which were duly made.[33]  As his Honour then said:

   Their matters rested until April 2012. 

   [33] Mighell & Field [2012] FMCAfam 950 [10].

2. The husband then filed a further affidavit in relation to questions essentially of enforcement.  Perhaps predictably the wife filed an affidavit in reply which is somewhat evocatively referred to by his Honour as “densely packed and hard to follow”.[34] Various documents from Mexico were included in the affidavit and his Honour then adjourned the proceedings to enable affidavits to be filed by the husband. This also elicited further correspondence from the wife,[35] and his Honour reported on 16 August 2012 the husband filed an affidavit which putting the matter broadly, essentially “refuted” all the assertions made by the wife.[36] 

   [34] Ibid [11].

   [35] Ibid [16].

   [36] Ibid [17].

3. The use of the word “refuted” was not appropriate.  It obviously should either have been “joined issue with” or “contradicted”.  I mention this because in her subsequent submissions before us the wife asserted vehemently that the husband did not refute the matters raised by her.  He did however respond to them. 

4. The delay in the proceedings did not prevent the parties from engaging in various interim and interlocutory applications which are generally summarised in the course of his Honour’s second Reasons for Judgment. 

5. These included, on behalf of the wife, an oral application under s 79A of the Family Law Act 1975.[37]  As his Honour said:

   The grounds of this were said to be that the husband had lied about everything.[38]

   [37] Ibid [24].

   [38] Ibid.

6. It appears that in addition the wife also sought “compensation for interim maintenance and sought to reopen the case about the children notwithstanding they were now over 18”.[39]

   [39] Ibid

7. In the meantime the value of the property in Melbourne appears to have diminished but nothing turns on that, at this point.

8. His Honour rejected the application to reopen matters about the children and dealt with the s 79A application “to the extent that there is one before the court”. [40] 

   [40] Ibid [27].

9. His Honour was right to reject the application under s 79A. His Honour had still not made any final orders. His Honour summarised the decision as follows:

   The wife’s material essentially seeks to re-litigate the issues she has lost, and it is not proper to permit her to do so. [41] 

   [41] Ibid [29].

10. With respect to his Honour, I agree. 

11. His Honour was next obliged to deal with what amounted to an application for an injunction to prevent the sale of the Melbourne property. I have no reason to disagree with his Honour’s reasoning in [32].

12. His Honour disposed of issues about spouse maintenance and with accounting for rental arrears in relation to the Melbourne property.[42]  His Honour commented:

    The likely amounts are not significant, this matter should come to an end. [43]

    [42] Ibid [33].

    [43] Ibid [35].

13. I see no ground to interfere. 

14. His Honour then dealt with the Mexican child support debt again.  He commented:

    … but the appeals seem to me likely to go on indefinitely and the outcome of them remains wholly uncertain.[44]

    [44] Ibid [36].

15. But he, having referred to his earlier reasons for delaying proceedings (to which I have already referred), concluded in [38] as follows:

    Unlike what I said in paragraph 54 [of the previous judgment] I have not for now come to the conclusion that this matter can be delayed until the Mexican proceedings are ultimately finished.  As I understand it, they have been going forward in one form or another since 2003 and appear to involve at least one or two further grounds of curial activity.  One wonders if it will ever finish. 

16. Accordingly, his Honour effectively made the orders that he had previously made on 10 November 2011 final by setting aside the declaration number 11 he had made on 10 November 2011:

    These orders and declarations are by way of part – property settlement only. 

17. This he concluded would bring about a situation where:

    The orders will otherwise be final orders, and all extant applications will be dismissed.[45] 

    [45] Ibid [39].

18. His Honour apparently received yet a further affidavit from the current appellant a few days later.

19. His Honour concluded that the mother wanted to adduce evidence that the husband should pay what was now asserted to be $467,000 worth of child support debt as follows:

    From what I have already said it is clear I will not revisit the orders and declarations made in respect of the Mexican interests.  I have done the best I can with the materials provided, and I note again that all aspects of the Mexican dispute are in my view, impenetrable.  The parties will have to sort the property and the child support debt in Mexico out themselves.[46]

    [46] Ibid [43].

20. The effect of his Honour’s orders then were to make the orders previously made final orders.  It is from these orders that the appellant brings her appeal. 

Grounds of Appeal

1. The grounds of appeal, relied upon at the hearing, were filed on 7 June 2013. The grounds of appeal, as set out in the 3^rd Amended Notice of Appeal, including amendments and with deletions removed, are:

   1.With regard to the set of orders made on 10 November 2011 under paragraph 1, integrated by a first order brought into existence which provides for a payment of $385,000 from funds which are outside the pool of assets be made by the husband to the wife within 90 days (hereinafter "the existing order"), and an alternative order which consents to a disposition of assets being made as follows:

   "The [Melbourne] property must be sold and the proceeds of the sale be applied:

   a.first to pay all costs, commissions and expenses of the sale;

   b.secondly to discharge the mortgage and any other encumbrance affecting the real property; and

   c.the remaining sum be divided 65 per cent to the husband and 35 per cent to the wife."

   (hereinafter "the alternative order"), his honour erred in making the alternative order, since it is wrong and manifestly unjust.

   2.His honour erred in granting a 20 per cent loading in the husband's favour in regard to his contribution (see paragraph 6 of the reasons), this loading having been determined:

   a.in relying upon fraudulent evidence provided by the husband about his initial assets

   b.in making mathematical mistakes as a consequence of the preceding error.

   c.in relying upon fraudulent evidence provided by the husband about the divorce.

   d.in relying upon fraudulent evidence provided by the husband about the children custody.

   e.in relying upon evidence glaringly indicating that the husband has been fraudulently hiding assets from the wife since the commencement of the relationship.

   3.Directly in relation to the orders made on 31August 2012, dismissing the applications filed by the wife in August 2012, his honour erred in making those orders that end the property settlement proceedings without determining the entire property settlement dispute, and in not providing appropriate reasons to do so.

   4.His honour erred in issuing an opinion on an important issue that is not supported by the evidence, in appreciating the wife's material filed on 7 August 2013, by stating that such material essentially seeks to relitigate the issues the wife has lost (at paragraph 29 of his reasons)

   5.His honour erred in fact in stating that the affidavit filed by the husband on 16 August 2012 essentially refuted all the assertions made by the wife (paragraph 17 of his reasons).

   6.His honour erred in being guided by irrelevant matters and in not taking into account relevant ones, in finding that the affidavits filed by the two children in August 2012 were drafted by the wife (paragraph 13 of his reasons); in stressing that both the children are over 18 years old (paragraphs 13 and 24); and in not taking into account a relevant fact: that the husband has not refuted most of the assertions made by the children in those affidavits.

   7.His honour erred in failing to take into consideration relevant matters (at paragraph 27 of his reasons) in noticing in an isolated way that the wife allegations in her documents filed in August 2013 relate to conduct prior to his judgment, and in not considering that the main orders sought by the wife by means of those documents had become viable due to events happened/unveiled after his judgment.

   8.His honour erred in failing to perceive that the proceedings are heavily being tainted by fraud, coercion suppression of evidence including failure to disclose relevant information, and the giving of false evidence (see paragraph 28 of his reasons).

   9.His Honour erred in providing irrelevant or inadequate reasons, in opposing that the husband's mother is not even a party to the proceedings as a reason not to reopen the wife's case in relation to the husband's mother (at paragraph 44).

   10.His honour erred in giving inadequate reasons, in opposing as a reason not to allow the wife to reopen her case in relation to the children that the children are now both over 18 (at paragraph 24).

   11.His honour erred in fact, in ascertaining that in the wife's affidavit filed on 23 August 2012 under the heading "Why orders previously made should be modified", the wife refers to fraud and duress and the like, although no particularisation of the same is given (at paragraph 19 of his reasons).

   12.His honour erred in law (at paragraph 28 of his reasons) in paying more regard to s.42 of the Federal Magistrates Act 1999, than to section 81 of the Family Law Act 1975, in determining to bring to an end the s 79 proceedings without having made such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

   13.His honour erred in finding irrelevant that the husband has been receiving and using the rents of the [Melbourne] house of the parties that is in Australia since separation (see paragraphs 17, 26 and 34 of his reasons).

   14.His honour erred in failing to determine /properly determine in relation to the extant applications, and in failing to give appropriate reasons for dismissing them all.

   [Grounds of appeal 15-34 were withdrawn and deleted in the Third Amended Notice of Appeal]

   35.In relation to order 2 of 10 November 2011, his honour erred in ordering a reduction of the payment to be made by the husband to the wife by way of property settlement by "the $20,000 the husband already paid to the wife pursuant to earlier orders", in disregarding that that sum had been paid by the husband to the wife "to assist her in discharging municipal rates and selling the property in Mexico" (see paragraph 12 of his reasons made on 10 November 2011).

   36.In relation to orders 6 and 7 made 10 November 2013 settling the superannuation fund, his honour erred in assuming known values of the superannuation assets at the commencement of the relationship, at the date of the separation and at present which are not supported by appropriate evidence; in dividing this fund making an assumption that the husband has contributed more to this fund that is not supported by any evidence, and in not taking into account the wife's request to modify the orders previously made with regard to superannuation in my affidavit filed on 23 August 2012, at paragraph 69, under the heading "WHY THE ORDERS PREVIOUSLY MADE SHOULD BE MODIFIED".

   37.The trial judge, having decided to set the Mexican proceedings aside (see transcript 24.08.12 page 24 line 6), erred in unfairly setting the Mexican proceeding aside, in dealing with the husband's liability to the wife of $385,000 (referred to in paragraphs 4 and 54 of his reasons for judgment of 21 June 2011), in dealing with the situation that "such a significant liability should not be included in the pool of assets and liabilities of the parties" (paragraph 37.54 of his reasons), and in dealing with the fact that the husband is under an ongoing obligation to pay child support of up to $1,900 per fortnight pursuant to the Mexican orders (paragraph 5.85 of his reasons), taking into consideration that "it will not be possible for the court to make any orders that countervail or off-set the orders made in Mexico" (according to paragraph 5.85 of his reasons).

   38.His honour erred in fact, in ascertaining that "the wife made no mention of the assets in Mexico in her affidavit filed on 15 October 2010" (at paragraph 2 of his reasons).

   39.In relation to declaration 9 of 10 November 2011, dividing the house situate in Mexico, his Honour erred in dividing real property in a foreign country without having jurisdiction to do so.

   40.In relation to the declaration 10 made 10 November 2011, whereby his Honour divides the net proceeds of an eventual sale of the house in Mexico nearly two years after having made orders providing for the sale of that house (dated 21 June 2011) as if the property could not be sold, his honour erred in not having dealt with the husband for contempt in the face of the court, since it has been uncontrovertibly established that the husband is and has been in position to enable the wife to sell the property in Mexico as directed by order (3) made on 21 June 2011 that states:

   (3) The applicant do all acts and things that may be required to enable the respondent to sell the Mexican property.

   but he has been contravening this order since then (for TWO YEARS) using false excuses - such as that the house cannot be sold due to the encumbrance it has - adopting an attitude that involves a flagrant challenge to the authority of the court in the face of the court.

   41.In relation to the aforementioned contravention, his honour erred in failing to take action while the husband contravention has been flagrant in the face of the court.

   42.His honour has also erred in not taking any action in relation to the same issue (i.e. contempt) when raised by the wife on 7 August 2012 (order sought 18) requesting that the court force the husband to comply with order (3) made on 21 June 2011 through contempt proceedings (referred to in s. 112AE(l)(b)(i) of the Family Law Act 1975) and other orders for dealing with the costs incurred by the wife as a consequence of the contravention. His honour has also erred in not giving any reason for not dealing with the whole contravention/contempt issue.

   43.In relation to orders sought 12 to 19 of the wife's application in a case filed on 7 August 2012 that his honour is not determining because those orders "refer to the orders sought in respect of the Mexican property" (see paragraph 40 of his reasons), it is apparent that his honour erred in letting himself be deceived by the FALSE statement frequently made by the husband that the house in Mexico cannot be sold because the encumbrance placed upon it within the Mexican proceedings is preventing its sale.

   44.His honour erred in fact at paragraph 48.b) i) of his reasons for judgment of 10 November 2011, where he refers: "The husband is the subject of a very substantial liability to the wife of some $365,000 for what, for these purposes, can be called Mexican child support proceedings." - Since He had already found (see paragraphs 4 and 54 of his reasons for judgment dated 21 June 2011) that: "What is clear is that the net result of that is that the husband has been ordered to pay an amount of some $385,000 to the wife".

   45.His honour erred in making the alternative order providing for a disposition

   a.which can be made to defeat the existent order

   b.the effect of which is the diminution of the size of the pool in comparison with that of the existing order.

   in consenting to a voidable disposition being made.

   46.His honour erred in making the alternative order providing for a disposition, in failing to elaborate on the description/details of the property referred to by the order.

   47.Regarding order 3 made 10 November 2011, his honour erred in failing to provide reasons for the parties to facilitate the sale of the [Melbourne] property [details omitted].

   48.Regarding order 4 made 10 November 2011, his honour erred in appointing the registrar to sign instruments such as a transfer of real property in the name of any of its proprietors not consenting to the transfer, in failing to describe in detail the property to which the order refers.

   49.His honour erred in relying on that "the wife has, after all, her rights of appeal" (at paragraph 45 of his reasons) to make his judgement, in not taking into account that those rights can be limited, for example: the wife would NOT consent to an extension of time being granted to the husband to appeal the orders currently under appeal.

   INTERPRETATION:

   ·"The reasons" or "his reasons" refer to the reasons for judgment of 31 August 2012 unless otherwise specified.

   ·[Melbourne property] refers to the […] former matrimonial home.

   ·"Mexico house" or "Mexico property" or "Property in Mexico" refers to the house situate in Mexico

   ·"The husband" refers to […] [the] respondent at this appeal and applicant within the divorce and property settlement proceedings MLC 1145/2010

   ·"The wife" refers to […] [the] appellant and respondent within the property settlement proceedings MLC 1145/2010.

   ·"The children" refers to the two children of the parties, [C] and [D] who are 20 and 19 years old at the time this notice of appeal is being filed.

1. In the course of her oral submissions before us on 14 October 2013 the appellant appeared to incorporate into her grounds of appeal ground 2A as that was set out in her Summary of Argument/Authorities/Orders filed on 8 August 2013.[47]  This, to the extent that it was sought as an amendment, would incorporate the following (omitting the arguments which appear under the various headings on pages 6, 7 and 8 of the Summary of Argument/Authorities/Orders). 

   “The FM erred in assessing the rest of the parties’ contributions as equal in terms of child care…

   (o)      … in not realising that the Mexican child custody orders that the husband tendered to the court made in Mexico on 22/Apr/09 expired three months after they were effective. 

   …

   (p)      … in rewarding the contributions made by the husband by way of child care after 2009.

   …

   (q)      … in not properly rewarding the wife for the support she provided to the children of the parties since separation.

   …

   (r)       In making an important finding of fact, namely, that the parties were only married for some ten years, which is not reasonably supported by the evidence and is extremely unlikely.”

   [47] T 141013 ll 29ff

Ground 1

1. It appears that the gravamen of the first ground of appeal is that there was an “alternative order”.  It is a little difficult to ascertain whether it is the fact that there was an alternative order which constitutes what the appellant says is wrong and “manifestly unjust” or whether it was the form of the order itself in the alternative which required the sale of the Melbourne property and the division of the proceeds as to 65 per cent to the husband and 35 per cent to the wife. 

2. In either case, the ground of appeal is without merit.  For the reasons articulated above, the determination made by his Honour about how the property should be divided (that is, in what proportions) was in my opinion open to him.  It is not for the judges of this Court to substitute our discretion for the trial judge’s in circumstances where he has not exceeded the generous ambit of discretion available to him. 

3. Ground 2 asserted that the 20 per cent loading for contributions made by the husband was wrong.  Again, I have indicated above why I do not believe that the exercise of discretion by his Honour necessarily miscarried in this regard. 

4. The reasons supplied in support of the ground of appeal were that the

   
   

   trial judge erred in relying upon fraudulent evidence, fraudulent mathematical mistakes and evidence “glaringly indicating that the husband has been fraudulently hiding assets from the wife…”.  I have already commented on the nature of credit issues in this matter. It sufficies to say that his Honour made findings which were open to him about credit and about the facts. The exercise of his discretion to give weight to the husband’s contributions of the order he stated did not miscarry. 

5. To the extent that this ground and subsequent grounds depend upon an argument that the trial judge gave the wrong weight to some of the contributions, that submission is rejected.  The determination of the weight to be applied to disparately constituted contributions is quintessentially a matter for a trial judge and in this case I am unable to detect that that discretion has so clearly miscarried as to warrant appellate intervention. 

Ground 2A

1. Matters referred to in ground 2A were essentially amplification of the matters referred to generally under ground 2.  They do not alter the conclusion I arrived at in [84] above. 

2. However, for the sake of completeness I make the following additional comments.  Whether or not the children remained in the care (“custody”) of the husband after court orders awarding that custody expired or not is irrelevant to the proposition that the respondent cared for the children during the relevant period.  The proposition that to take this into account in some way rewarded the husband for some impropriety (2A(p)) is misconceived.  During the course of oral argument the appellant referred to Schenck & Schenck[48] and in particular to page 76240.  Schenck & Schenk is a case related to orders about children and was not concerned with the distribution of property.  Their Honours in the Full Court in that matter concluded that notwithstanding that the father had deliberately and inappropriately removed the child from contact with the other parent and hence would generally be seen as having “acted contrary to the welfare of the child” the child’s best interests nevertheless dictated that the child should remain living with the father.  This case has no relevance to the matter contended for by the appellant.  His Honour was entitled to take into account and did take into account that the respondent had made a contribution as parent during a relevant period. 

   [48] (1981) FLC 91-023.

3. Whether that period was circumscribed by proper evidence about when the divorce occurred or not is substantially irrelevant.  The period may or may not have been shorter.  The adjustment of contributions by reference to any difference in the relevant period is not a matter which would invite appellate intervention. 

4. In addition, his Honour was entitled to weigh and give such weight as he considered to be appropriate to the contributions that each of the parents had made as parents.  This exercise is not one capable of precise mathematical calculation and the wording of ground 2A(q) identifies in its terms that this is in fact a complaint about the weight to be given to a matter.  The ground fails.

Ground 3

1. It is a little difficult to determine precisely what this ground refers to.  It seems to assert that his Honour was wrong in bringing an end to proceedings “without determining the entire property settlement dispute and in not providing appropriate reasons to do so”.[49] 

   [49] Ground of appeal 3.

2. His Honour struggled to bring the matter to an end in the tortuous process that has been outlined in this judgment.  His Honour in the orders of 31 August 2012 did indeed provide that the matter had been completed.

3. His Honour’s patience in dealing with the parties was manifest. He did his best to fulfil his obligations under the Act and the Rules to bring the matter to an expeditious conclusion. His efforts to expedite the finalisation of the matter have been catalogued above. The frustrations he endured and encountered in doing so have also been catalogued. His reasons for making final orders have been adequately identified and are clearly discernable in his judgment. It is not necessary that every finding or every determination must necessarily be accompanied by comprehensive reasons. It is enough that the pathway of the judge to the conclusion that he reached can be discerned. In this matter the pathway is littered with unnecessary and irrelevant applications, inadmissible assertions, failures to comply with orders and inability to understand process or to frame either affidavits or applications in a proper way and by the lack of knowledge on the part of both litigants adequately to conduct their case without a lawyer. (This later point is not one of criticism of the parties who are entitled to represent themselves. However, the consequences of a party being self-represented may affect that party’s prospects of success.)

4. In this matter the parties’ inexperience and inability to comprehensively and coherently present their respective positions affected the judge’s ability to make determinations as each sought.

Ground 4

1. Ground 4 appears to be a reference to [29] of the third Reasons for Judgment which reads as follows:

   These are short reasons but, in my view, the position is clear.  The wife’s material essentially seeks to litigate the issues she has lost, and it is not proper to permit her to do so. 

2. I have already commented on this matter above. It arises in the context of an application under s 79A(1) of the Family Law Act 1975. The application was premature. His Honour had not made final orders at that point. Whether to accept the application or not was a matter for his Honour’s discretion, I find no reason to interfere with that discretion.

Ground 5

1. I have already commented about his Honour’s incorrect use of the word “refuted”.  Leaving that to one side there is nothing in [17] of his Honour’s reasons which would lead me to interfere with the conclusions he reached.

Ground 6

1. This paragraph essentially goes to the question of weight to be given to evidence.  The comments I have made previously about this matter are applicable.  His Honour was entitled to give the weight he did to the evidence of the children. 

Ground 7

1. This relates to [27] of his Honour’s judgment and in particular to the issue of whether his Honour should entertain an application under s 79A of the Family Law Act 1975.

2. His Honour’s comments that the matters occurred prior to the previous judgment are proper because they record essentially that matters available to the parties to adduce during the first of the proceedings should not then be used in the context of s 79A. His Honour did not make an error.

Ground 8

1. In ground 8 it is asserted that his Honour failed to perceive that the proceedings were “heavily being tainted by a fraud, coercion, suppression of evidence…”. 

2. His Honour rejects the evidence about fraud.  It was within his discretion as a trial judge to do so.  He comments, in my opinion correctly, that the matters raised have been substantially dealt with in his earlier judgment. 

3. His Honour concludes, in my opinion again correctly, that he has discretion as to whether or not to permit an application under s 79A. I agree with his Honour that “further proceedings are wholly inappropriate”. I add by way of further comment that evidence of fraud, coercion and suppression of evidence were not immediately apparent to his Honour or to us.

Ground 9

1. This essentially is an allegation that his Honour provided irrelevant or inadequate reasons.  His Honour provided appropriate reasons.  The fact that the husband’s mother was not a party to the proceedings would have prevented his Honour in any event from making some order about enforcement against her. 

Ground 10

1. This ground is a misconception of the process his Honour engaged in.  It was not because the children are now over eighteen that his Honour refused to allow the reopening of the case.  His Honour did not accept that the affidavits were relevant for the purposes of considering the mother’s application. 

2. If in fact this ground relates to the question of interim maintenance, his Honour was entitled in any event to reject that application because the children were now over the age of 18 years.  On either interpretation of the ground, there is no basis for an appeal.  Again this ground is somewhat difficult to interpret.  His Honour, in [19] of his Reasons for Judgment of 31 August 2012, is summarising the arguments put forward by the wife.  He correctly comments that the appellant refers to fraud and duress and the like “although no particularisation of the same is given”. 

Ground 11

1. There was an apparent reference by the appellant to [50]-[69] of her affidavit, sworn or affirmed on 23 August 2012.  In [52] of that affidavit she asserted that the orders on 10 November 2011 should be set aside because “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence… the giving of false evidence and negligence of my lawyer”.  In [53] she asserts that she was under duress because “since these proceedings were started in Australia, by children were hostages of their father and their grandmother, economically dependent”.  I do not accept that this would constitute duress by any reasonable definition let alone that the assertion is simply put without any evidence necessarily to support it.  The suggestion that there had been a failure to disclose the child support debt, which appears in [54] of her affidavit, is plainly at odds with the fact that it was a matter well known through the whole of the proceedings. 

2. I see no grounds in the other matters raised which would suggest that there is any basis for the setting aside of the orders for the grounds nominated by the appellant.  His Honour gave sufficient reasons. 

Ground 12

1. This ground is misconceived.  His Honour was commenting simply upon his duty to bring the proceedings to an end and the fact that they had self-evidently been unreasonably sustained by additional matters raised by each of the parties which were not necessary to the determination of the s 79 proceedings. 

Ground 13

1. It is not entirely clear what this ground of appeal relates to.  Perhaps it is a question of weight, in which case the comments I made previously are applicable.  Perhaps it is an assertion that his Honour failed properly to take into account, in some way, the fact that the husband had used the rent from the Melbourne house.  His Honour has correctly pointed out that the respondent to this appeal had admitted that he used the money to support himself (and the children).  That does not appear to be raised as a separate ground of appeal and in any event would be misconceived if it were. 

Ground 14

1. Unfortunately this ground does not make any sense.  To the extent that it appears to assert that there had been a failure on the part of the trial judge to determine what were referred to as “extant applications” such applications are not specified and it is therefore not possible to determine whether there had been a failure to (presumably) finalise such applications.  Even more strongly therefore, it is impossible to determine that there were no appropriate reasons given “for dismissing them all”.  The ground is dismissed. 

Ground 35

1. It appears that the substance of this ground of appeal is to suggest that an interim order for payment to the wife of $20,000 to discharge rates and to assist in the selling of the property in Mexico should not have been the cause of a reduction of the amount due to the wife under the orders made by his Honour.  In essence, it appears that the assertion is that the $20,000 should have been regarded as a joint expense rather than as one that ought to be the responsibility of the wife. 

2. The first comment which might reasonably be made is that his Honour had been at pains to point out that when the sale of the property was effected, there would need to be an adjustment. 

3. This proposition is superficially attractive except that in [12] of the Reasons for Judgment on 10 November 2011 (to which my attention was drawn by the grounds of appeal) his Honour notes, in effect, that the wife did not expend the money as was originally contemplated.  In such circumstances the funds should properly be debited to her share of the distribution of property. 

Ground 36

1. The reference to the orders presumably being appealed against is to orders 6 and 7 on 10 November 2013.  It would be reasonable to suppose that this is a typographical error and what is referred to are the orders of 20 November 2011.

2. This ground of appeal would have more force if the parties had in fact provided evidence in accordance with the regulations about the value of superannuation.  His Honour, in making the determination he did, was acting upon whatever evidence he had available to him as provided by the parties.  It is not asserted that the appellant tried to put into evidence other values in relation to superannuation and to the extent that the valuation did not accord with the regulations might be relied upon that ground is rejected.  To the extent that it is suggested that the division of superannuation was inappropriate in some way, because of the other factors relating to contribution and matters relating to the future financial circumstances of the parties, I have already dealt with that. I indicated that, to some extent, I agree that the approach undertaken by the

   
   

   trial judge may not have been entirely logical.  Nevertheless, as I have indicated above, any such error on the part of the judge would not in the circumstances of the amounts involved warrant any appellate interference.

3. I add for completion that [69] of the wife’s affidavit filed on 23 August 2012 referred to in this ground of appeal reads as follows:

   The above reasons are enough for this Court to set aside the decisions previously made and made different orders to more fairly divide all matrimonial assets (including superannuation). 

4. The last word in that section of the wife’s affidavit is the only reference in that section to superannuation.  It does not, and did not, provide a basis, as was suggested, for the modification of the orders that his Honour made in relation to superannuation.

Ground 37

1. The part of the transcript referred to in ground 37 appears on page 135 of the appeal books.  Without being critical of the wording of the ground of appeal, it appears to refer to the setting aside of the Mexican proceedings.  There was never any prospect of an Australian Court setting aside the Mexican proceedings (at least while they were continuing in Mexico).  What his Honour was referring to, both in his Reasons for Judgment and in the part of the transcript referred to is that because the evidence in relation to value was in conflict and unresolved (and in practical terms, unresolvable) and because the parties had failed or refused (depending upon which version of the various materials he had before him were to be accepted) to sell the property, there was no basis upon which he could make orders which would adequately deal with the property.  In addition, the failure of the parties to provide adequate evidence about the state of the proceedings in Mexico meant that if the appeal was successful, there would be a debt which he accepted as being some $385,000 due from the respondent to the applicant with a consequential effect for both parties in a property settlement.  But until that issue was determined the consequences could not be either appreciated or calculated.  In addition, the enforceability of the judgment in Mexico, irrespective of whatever it may have been, was not the subject of evidence before his Honour and in particular, whether or not such an order was to be registered in Australia and enforced in Australia was something that might still have required further Court proceedings which may have involved further uncertainty as to enforceability.  His Honour, as indicated above, was totally justified in taking the position that he did.  To put it bluntly, his Honour was aware of the significance of both the proceedings in Mexico and the Mexican property but was unable by reason of the actions of the parties to come to any conclusion about it and hence took the only course he could reasonably take, which was to enable the matters in Mexico to be resolved in accordance with Mexican law and the matters in Australia to be dealt with by him.  He took account of the fact that the Mexican property, if sold, may produce some net result and that that net result should be divided on matters between the parties in the same proportions as the property in Australia. 

2. I do not agree that the matters set out in the later part of ground 37 were uncontroverted matters of evidence before his Honour and although I appreciate that the appellant was arguing that the alleged debt in Mexico should be offset against Australian property, without a final determination about the debt such an action would not only have been inappropriate, it would have been contrary to prescriptions in Stanford v Stanford that an alteration should only be made to the interests of parties once those interests have been identified. 

3. If the result of the proceedings in Mexico were that there was a debt owed by the husband to the wife in Mexico, either that would or would not be recovered in Mexico.  If the debt is due and is registered in Australia and the registration is accepted, that debt may or may not be recovered in Australia.  The appellant suffers no injustice by his Honour excluding it from the pool of property except, she would argue, to the extent that it could not be offset against property that the respondent otherwise has in Australia.  Short of waiting for all of these matters to be finally resolved it is difficult to see what else his Honour could have done in the circumstances.  The ground is rejected.

Ground 38

1. It is arguable that in his Honour’s third judgment in [2] that when he said “her affidavit material made no mention of the assets in Mexico…” that he had failed to take account of [24] of the appellant’s affidavit affirmed on 11 October 2010 as it appears on page 124 of the appeal books.  That paragraph refers to the fact that there was a home in Mexico in the names of both parties in equal shares and contained the following comment:

   In that regard I have been informed by my own lawyers in Melbourne that the Australian Courts do not hold jurisdiction or power to make Orders in respect of any property overseas, such as in Mexico and that any such Order (if made) cannot be enforced. 

2. His Honour’s comment in the circumstances may have been, in part, in error but was irrelevant for the purposes of his determinations in any event, as was that particular paragraph of the wife’s affidavit in the circumstances of the matter.  No ground for appellate intervention is demonstrated. 

Ground 39

1. His Honour, in relation to ground 39, did not purport to divide the house or to act in legal terms in rem in relation to the property in Mexico.  His Honour acknowledged that he did not have the power to do that.  What he did do, as set out above and in my opinion justifiably did, was to make orders binding the parties personally (in personam) to divide proceeds of the sale of the property in accordance with his general determination about contributions and future financial factors in so far as he was able to do so.  There is no substance to this ground. 

Ground 40

1. This ground appears to be an assertion that the husband had in fact failed to do things that may have been necessary to enable the current appellant to sell the Mexican property.  This is asserted to be contempt in the face of the Court.  It is clearly not that, even if the order had in some way been contravened.  The alleged contravention was not found by his Honour to have been satisfactorily established on the evidence before the Court. 

2. Perhaps more importantly irrespective of whether or not his Honour (as had been requested by the appellant) failed to find there was a contempt in the face of the Court, this ground does not go to the orders made by his Honour, the subject of the appeal, and is accordingly not made out. 

Ground 41

1. This is simply the same ground rebadged for the purposes of a new ground of appeal.  It has no substance.

Ground 42

1. The reference in this matter is to an Application in a Case filed by the appellant on 7 August 2012 in which she sought a number of orders including, as she suggests, orders sought number 18 as follows:

   That the husband be compelled to comply with the order to empower the wife to sell the [Mexican] house through the procedure provided by the rules of Court for contempt in the face of the Court. 

2. Order 19 sought by the wife on that day dealt with questions of costs “incurred and wasted away by the wife and the children in the unfruitful attempt they made towards complying with order 3 made on 21 June 2011…”.

3. Notwithstanding that the appellant appears to think that the matters set out in her affidavit were clear and unequivocal, his Honour found in his judgment on 6 September 2012 [43]:

   I have done the best I can with the materials provided, and I note again that all aspects of the Mexican dispute are, in my view, impenetrable. 

4. In such circumstances where there was clear conflict in the evidence of the parties and his Honour was faced with no basis upon which he could reasonably resolve those conflicts, his Honour was not in error.

Ground 43

1. Again it is a little difficult to work out what was intended by this ground as to the error in his Honour’s reasons to which I was being referred. 

2. Again there is a reference to paragraphs in an Application in a Case filed on 7 August 2012.  The paragraphs nominated in ground 43 appear under a heading “to give effect to order 3 made on 21 June 2011”.  They set out a number of orders that are sought both in relation to money the wife required to be paid for things such as taxes, interest on a sum she asserts should be paid, an exemption from complying with order 2 made on 21 June 2011 on her part and further costs of the maintenance of the property.  I have already dealt with orders 18 and 19 sought on that day.  The appellant asserts:

   that his honour is not determining (sic) because those orders “refer to the orders sought in respect of the Mexican property” see paragraph 40 of his reasons…

3. The reference to [40] is erroneous.  Paragraph 40 of his Honour’s relevant judgments reads as follows:

   Finally I should say that these remarks were written out in a note from some days ago but yesterday the Court received an affidavit of [the wife] and what purports to be an application in a case. 

4. I have already commented that subsequently what his Honour said in paragraph 43 is that he would not revisit the orders and declarations made in respect of the Mexican interests.  Paragraph 43 made reference previously to the fact that aspects of the Mexican dispute are, in his view, impenetrable. 

5. It is not clear to me where the balance of ground 43 comes from.  There is an assertion that the evidence of the husband was false but the determination of issues between the parties was part of the “impenetrability” faced by his Honour. 

6. In my opinion the ground is without substance. 

Ground 44

1. This ground cannot be construed as a proper ground of appeal.  What it seems to suggest is that his Honour made a mistake where he referred to the child support debt as being $365,000 whereas previously he referred to it as being $385,000. 

2. There was also a reference in his judgment that the mother asserted the debt was $467,000.[50]   

   [50] Mighell & Field [2012] FMCAfam 950 [42].

3. Part of his Honour’s difficulty in reaching any conclusions about a number of factors was the uncertainty of the evidence other than that there were proceedings for child support arrears in Mexico and that they were apparently of a substantial nature.  If the ground of appeal is directed to the difference in the findings referred to in ground 44 it is in the circumstances an error of a typographical nature which has no bearing on the determination of the matter at all.  There is no basis for any appellate interference.

Ground 45

1. This is a repetition of an earlier ground to some extent, in that it is asserting that his Honour was in error in “making the alternative order providing for a disposition…”.  This ground of appeal is misconstrued.  The provision for the sale of the [Melbourne] property to which it presumably (though not necessarily) refers is in default of there being a payment already stipulated.  This is a common practice, a reasonable practice, and cannot be construed as ground 45 suggests that it might.  The ground has no merit. 

Ground 46

1. This ground appears to suggest that there is a failure on the part of his Honour to set out the detail of property referred to in making the default order to which I have just referred.  This ground again is without merit. 

Ground 47

1. I have nothing to add to what I have said above.  The process of sale in default of compliance with an order is both normal and appropriate. 

Ground 48

1. This ground appears to have again ascribed error to his Honour on the basis that he failed to identify, in detail, the property to which the order referred.  No confusion could be caused by the form of the order. The process of ordering a Registrar to sign in default of one party signing or cooperating in doing the things that were necessary to effect an order is a common practice.  There is nothing in his Honour’s order which causes me to be concerned or to accept that any error is demonstrated. 

Ground 49

1. I might be forgiven for believing that the wife has exercised almost every right of appeal that she might reasonably have in relation to the matters before his Honour.  The fact that I am at ground 49 in my considerations would support that contention.  The proposition, contended for by the appellant, that rights of appeal might have some limitations constituting an error on the part of the trial judge, is plainly a misconception or a misconstruction of the law.  It has no bearing on the substance of the judgments appealed from.  This ground has no merit. 

Fresh evidence

1. While the matter was reserved by us, the appellant made an application for the admission of further evidence which she said was constituted by the respondent’s admission (during submissions before us) of the fact that the appeal processes in Mexico had been concluded against him. 

2. The matter was relisted on 7 October 2014 for consideration and written submissions were received by us from the wife who did not wish to amplify them further orally.  The respondent also provided written submissions. 

3. It is in the Court’s discretion whether to admit additional evidence, if there were any evidence.  The statement made by the respondent does not constitute evidence upon which any reasonable weight could be afforded by the Court.  If it were to be admitted, the effect would be (presumably) that the appellant’s financial situation would be improved by the fact that the proceedings had been concluded in her favour.  At the same time the husband’s situation would have deteriorated.  If these factors had been available to the trial judge and taken into account the only possible way in which the trial judge’s orders might have changed would be in favour of the husband because of the increase in his liabilities and the increase in the assets of the wife. 

4. The thrust of the submissions made by the appellant for the admission of further evidence related to her arguments that there should be an adjustment of property in Australia.  These involved what amounted to the giving of evidence in the form of submissions.  The submissions also reiterated a number of the arguments that have been dealt with above. 

5. There is nothing in the further submissions which would cause the Court to accept the additional evidence, if indeed what was sought to be adduced were evidence.

6. Furthermore, the determinations I have made above, and my examination of the reasons for judgment of his Honour the trial judge, would not be affected favourably to the appellant if the “evidence” were to be admitted. 

7. The rest of the submissions reiterated matters previously dealt with either directly in the submissions made by the appellant or set out more substantively in these reasons for my decision.

8. The application for admission of the additional evidence is refused. 

9. In my view the appeal should be dismissed.

Costs

1. As each of the parties is representing himself or herself in these proceedings I see no basis to make any order as to costs. 

2. I add only that while the appellant’s appeal in this matter was unsuccessful, the history of the litigation bears little credit on either of the parties and it might reasonably be said that his Honour, the trial judge, laboured under extreme difficulties in trying to resolve an ever-changing list of confusing evidence, cross-applications and confusion.

3. Costs ordinarily relate to the costs incurred by a party in relation to his or her legal representatives or other expenses necessarily incurred.  While the appellant in this matter may have incurred costs in producing the appeal books, it is difficult to see what additional costs might have been incurred on behalf of the respondent. 

4. In fairness however to each, I propose to allow the husband to make such application for costs as he considers to be appropriate by making written submissions on or before 4pm on 10 March 2015.  The wife will have seven days in which to reply. 

5. I reiterate however that my default position is that there should be no order for costs. 

Ainslie-Wallace & Bennett JJ

1. We have had the advantage of reading the judgment and reasons of the Deputy Chief Justice in this matter and broadly agree with the summary of the history of the matter and of the trial judge’s reasons contained in it.

2. We agree that the application to adduce further evidence on the appeal should be dismissed and agree that the appeal itself should be dismissed. 

3. However, we wish to add some reasons of our own concerning the grounds of appeal.

4. In the Third Amended Notice of Appeal filed on 7 June 2013 the wife raised

   
   

   29 grounds of challenge to the trial judge’s orders.  The appeal grounds were refined in her summary of argument filed on 8 August 2013.  In that document she said:

   Note 1: In this document I am further amending my grounds of appeal and orders sought. I am also trying to “confine” my grounds as Justice Strickland required me to do at the hearing of 9 May 2013 (I I (sic) thought ‘confine’ meant something different, only recently I learned that it can also mean “to keep or close within bounds, limit, lessen”). In this purpose I expound my grounds under a different scheme wherein compliance with the requirement of highlighting new/striking-through old text would be impracticable. The grounds that are not in this document are still set forth, but with no further argument.

5. The grounds articulated in the summary of argument are different in form but substantially similar in terms of the challenges to his Honour’s decision save that in the Summary of Argument, the wife included a further ground of appeal, ground 2A.

6. Many of the asserted grounds advanced in both the Third Amended Notice of Appeal and the subsequent revised grounds in the summary of argument are not proper grounds of appeal in that they are not directed at specific orders or findings of the trial judge.

7. However it seems that the wife’s contentions on appeal can broadly be divided into general considerations.

Mexican property and the child support proceedings

1. As the trial judge made clear, the evidence as to the basis for the order and its continuation and the evidence as to the state of the husband’s challenge to the order in the Mexican courts was unsatisfactory.  In the result, the trial judge was unable to make findings about these proceedings and their possible impact on the husband’s financial circumstance or indeed whether they impacted on any proposed sale of the Mexican property. 

2. In his reasons for decision of 10 November 2011 in which he made property settlement orders in relation to the property in Melbourne and made declarations as to the parties’ entitlements in percentage terms in relation to the Mexican property, the trial judge observed at [51]:

   51. In my view the position in Mexico is so complicated, and the nature of the Court proceedings in that country so alien to the understanding of a common law lawyer, that it is impossible to decipher exactly what is going on. It is even more difficult to establish what the likely outcome of the Mexican proceedings will be and when it will occur.

3. He continued to observe that if the husband succeeds in his challenge the debt said to be presently owed under the orders will be either substantially removed or reduced.  However he was not able to conclude whether this would mean that the encumbrance then on the property would be removed.

4. His Honour then determined that a just and equitable division of the parties’ non superannuation assets would be as to 65 per cent to the husband and

   
   

   35 per cent to the wife.

5. He continued:

   54. This finding, as indeed was the case in my earlier Judgment, necessarily puts aside the child support debt in Mexico. It is
   self-evidently utterly unsatisfactory that such a significant liability should not be included in the pool of assets and liabilities of the parties, but in circumstances where it is vividly contested and the outcome of that contest remains wholly unclear, there is simply no other alternative than to delay the final outcome of these proceedings on an indefinite basis until the Mexican proceedings are determined.

6. His Honour’s orders were thus made on the basis of being a “part-property settlement only” [56(d)]. His Honour said:

   … Thus, when the famous day comes and the Mexican proceedings are finally resolved, in the event that the child support obligation is sustained it will doubtless take up the whole of the value of the Mexican property. In the event that it does not the parties will be in a position to sell it. If the wife simply sells it and keeps all the money to herself, then it will be open to the husband to seek an adjustment in his favour in Australia. By the same token, if the husband sells and the wife acts, as she ought to, in a sensible and lawful way, the husband will at that time, as will the wife, receive the due proceeds of the sale in Mexico.

7. His Honour then prepared draft orders and declarations which he provided to the parties for comment prior to making them on a final basis. 

8. It was in the interregnum between the delivery of reasons and the making of final orders that the wife and indeed the husband filed applications seeking further orders.  His Honour delivered further reasons on 31 August 2012 both in relation to the parties’ applications and the property matter in general.

9. In particular, his Honour noted that the wife contended that the child support proceedings had finalised in her favour (reasons for judgment 31 August 2012 at [11]) and that the husband contended that the proceedings were still on foot and might take some years to conclude.

10. His Honour further observed at [18] and [19] that the husband sought an order that the “case in Mexico” be set aside claiming that the child support debt was not enforceable. His Honour said that the wife’s affidavit in answer to that of the husband in this respect claimed that the child support proceedings had concluded. His Honour found “[i]t is clear to me that it is not” at [20]. After reiterating his findings in the reasons of 10 November 2011 at [54], his Honour concluded that it was not appropriate to delay completion of the matter until the child support proceedings were finalised. Thus his Honour revoked the declaration previously made that the orders made on 10 November 2011 were “part-property” settlement orders and the orders became final [39].

11. A significant number of the grounds concerned his Honour’s treatment of the child support debt and the disposition of the Mexican property.  The wife’s application to adduce further evidence on the appeal also concerned this issue.

12. The wife’s grounds erroneously assert that the trial judge “set aside” the child support liability of the husband.  His Honour did not set it aside in the sense that it ceased to exist as his reasons clearly demonstrate.  However, the wife further contends that the trial judge erred in not ordering the husband to pay the amount of the child support debt to the wife, as she sought in her application of 7 August 2012.  Further, she asserted that since the trial judge found that the debt had been established, he ought to have ordered the husband to pay it. 

13. It is to be observed that at the time of his Honour’s final orders, he was not persuaded that the proceedings in Mexico in relation to child support had been finalised. Clearly then and obviously from his reasons, he declined to make any adjustment in relation to it.

14. His Honour did however take into account that the action may be resolved against the husband’s interest and contemplated that, in that event, the recovery of the debt would encompass the entire value of the Mexican property [56(d)].

15. His Honour’s approach, which he himself regarded as being far from satisfactory, was appropriate given the state of the evidence on this issue before him. 

16. The wife further asserted that the trial judge erred in dismissing her application of 7 August 2012 in which she sought, inter alia, to bring further evidence about the child support debt.  It is relevant that in the affidavit in support of that part of the application, the wife did not indicate what the effect of the evidence would be if leave was given.  In those circumstances and considering that this application was brought after his Honour had concluded the matter and had made final orders, his Honour was entirely correct to refuse that application.

1. The wife also claimed that the trial judge erred in “dividing real property in a foreign country without having jurisdiction to do so”.  His Honour did not “divide” the property in Mexico but, given the paucity of evidence and the apparent difficulties in causing its sale, declared the parties’ interest in it and ordered that on its sale the net proceeds be divided in accordance with the declared interests. 

2. Nothing to which the wife pointed, either in her oral or written submissions or to which the grounds assert, establishes any error in his Honour’s approach to this issue.

Challenges to the trial judge’s findings as to the parties’ contributions

1. The wife asserted that the trial judge erred in determining that the husband’s contributions made pursuant to s 79(4) should result in a division of the non-superannuation assets as to 70 per cent to the husband and 30 per cent to the wife (reasons for judgment 21 June 2011 [98]).  In coming to that view,

   
   

   his Honour took into account the husband’s initial financial contribution and his contributions during the marriage and after separation.

2. The grounds which challenge this conclusion seek to establish error by asserting that his Honour relied on the values of the various property and financial contributions asserted by the husband without there being proper proof of those values.  The husband ascribed values to the property and resources owned by him prior to the marriage in his affidavit sworn 30 August 2010.  However, the wife did not put these values in issue before his Honour.  In that case, his Honour was entitled to accept the husband’s asserted values and the wife cannot now challenge those values.

3. The wife further contended that the husband relied on an incorrect exchange rate between Australian dollars and Mexican pesos in attributing a value to the Mexican property and, as a result overvalued the husband’s contribution to the purchase of that property.  It seems that the husband ascribed an exchange rate in the same affidavit of 30 August 2010.  The wife took no issue with the asserted exchange rate at the time and later, in May 2011, sought to file an affidavit which dealt with, among other issues, her assertion that the husband had ascribed an incorrect exchange rate.  That affidavit was not accepted and thus not before his Honour.  Her challenge to so much of his Honour’s findings as relate to the value of the Mexican property cannot be sustained.

4. As to the husband’s superannuation entitlement, his Honour accepted the values attributed by the husband to that fund from time to time and divided so much of the fund as had accrued during the relationship in the same proportions, that is as to 35 per cent to the wife and 65 per cent to the husband and, further, made orders requiring the payment of $32,000 into a superannuation account nominated by the wife.  The wife challenges his Honour’s findings, contending that he did not have proper evidence of the amounts of the superannuation funds from time to time on which to base his conclusion.  Again, in this regard, the husband ascribed values to the fund at various times and the wife did not put those values in issue or call evidence in relation to them.

5. Much of the detail of the challenge to his Honour’s assessment of the husband’s contributions concern the trial judge’s findings of fact, for example that the proceeds of the sale of the husband’s property in Sydney owned at the start of cohabitation was used in the purchase of the Mexican property. 

6. Fact finding on the evidence is the preserve of the trial judge and will not be disturbed by an appeal court unless the appeal court is convinced that the finding is wrong.  If the finding is reasonably open on the evidence, it will not result in appellate intervention (see Edwards v Noble (1971) 125 CLR 296).

7. Further, the wife challenged the weight or importance placed by the trial judge on parts of the evidence, claiming that he failed to give sufficient weight to her assertions, for example, about the husband’s use of the rental income from the Melbourne property.  The attribution of weight to evidence and the role that that evidence plays in the decision making process is quintessentially a matter for a trial judge.  There has been no error shown by the wife in these challenges to his Honour’s findings that would amount to appealable error.

8. Other aspects of the challenge relate to his Honour’s finding that the husband’s financial contributions should sound in a division of the non-superannuation assets as to 70 per cent in his favour.  In essence, the wife says that his Honour was wrong because that figure is too high, undervaluing her contributions and overvaluing those of the husband.

9. The wife further challenges his Honour’s assessment of the parties’

   
   

   non-financial contributions.

10. His Honour found that the parties’ contributions to the care of their children were equal.  His Honour’s findings of fact as to how the children were cared for by the parties were well open to him on the evidence as was his conclusion as to the parties’ contribution to that care. Accordingly his findings have not been demonstrated to be wrong in the appellate sense.

11. The assessment of contributions is an exercise of discretion.  There is a presumption of the correctness of the trial judge’s determination which will not be overturned on appeal unless the appellate court finds it is “plainly wrong”.  Nothing the wife has raised has demonstrated that his Honour’s assessment was wrong (Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).

The Melbourne property

1. It is useful to recall that on 10 November 2011, the trial judge ordered:

   1. The husband pay to the wife 35 per cent of the net value of the [Melbourne] property of $1,100,000 (being $385,000) within 90 days failing which that property must be sold and the proceeds of the sale be applied:

   a.First to pay all costs, commissions and expenses of the sale;

   b.secondly to discharge the mortgage and any other          encumbrance affecting the real property; and

   c.the remaining sum to be divided 65 percent to the husband         and 35 percent to the wife.

   2. The sum referred to in Order 1 shall be reduced by the $20,000 the husband already paid to the wife pursuant to earlier orders.

2. The wife asserts a number of challenges to his Honour’s orders in relation to the Melbourne property.  Principally she challenges the order that provides for the sale of that property and argues that this is an “alternate order”.  She argues that his Honour erred in making this order because it would act to defeat the “existent order”, namely the order for the payment to her of a specified sum, $385,000, diminish the pool of assets in an impermissible way. 

3. Clearly, the “alternate order” is a mechanical order to provide the means by which the wife’s assessed entitlement may be made.  This challenge is misconceived and must fail.

4. The wife made further challenges to this order, asserting that he failed to give reasons for the order (that is, for sale in the alternate to a payment to the wife of the specified sum) and that it was not clear to whom the order for sale was directed. 

5. Both of these challenges must fail. First, the reason for the order for sale is clearly apparent from the order itself – if the husband is unable to obtain the funds necessary to pay the sum specified to the wife, the property must be sold.  Secondly, order three provides a mechanism for sale where each party must do all acts necessary and sign documents to market and complete the sale.

6. To the extent that his Honour’s intention was not otherwise clear from the face of the orders, in his reasons for judgment of 31 August 2012 at [7] he said:

   
   

   “I ordered that the wife receive 35 per cent of the value of the [Melbourne] property which would either have to be paid to her in cash or the property sold and the 35 per cent paid to her”. The reasons for his Honour’s order are therefore quite clear.

7. Further, the wife contends that his Honour erred in requiring the payment of $20,000 to the wife be deducted from the money to be paid to her from the sale of the Melbourne property.  The wife argues that as this money was paid to her to enable her to pay outstanding rates on the property and to effect the sale, it is a sum that ought to be divided between the parties rather it being deducted from the money to be paid to her.

8. It is to be recalled that on 21 June 2011 the trial judge ordered the husband to pay the sum of $20,000 to the wife “in part property settlement within 90 days of these orders”.  While no reasons were given in the judgment delivered on

   
   

   21 June 2011 for that payment, in his reasons for judgment of 10 November 2011, the trial judge said that his orders of June 2011 were intended to enable the parties to sell the Mexico property and thus identify and finalise the property of the parties available for distribution (reasons for judgment

   
   

   10 November 2011 [2].) He continued:

   12. It should be noted, at this stage, that both sides are plainly in breach of the orders I made in June 2011. Despite receiving $20,000 from the husband to assist her in discharging municipal rates and selling the property, the wife has purported to either seek that the husband pay half of the relevant costs on an ongoing basis and/or seek to suggest that it be him rather than her who sells the property. …

9. It is apparent that the wife did not use the money in discharging the rates and selling the property.  She thus had the benefit of it and his Honour was correct in characterising it as a part property settlement order and in requiring its deduction from the money otherwise to be paid to her.

Procedural fairness

1. As it is apparent, the wife brought a number of applications after the close of the evidence before the trial judge, including an application ostensibly pursuant to s 79A. His Honour refused to allow the wife leave to, in effect, re-agitate issues argued at trial and determined by the trial judge. In addition, in the applications, the wife asserted fraud, coercion and duress against the husband and asserted that the trial judge erred in not “dealing with” the husband for this conduct. She also contended that the trial judge failed to give adequate reasons for his refusal to permit her applications to be heard.

2. After making findings and orders on 21 June 2011 in which the proceedings were adjourned to allow for the sale of the Mexico property, the parties each filed further affidavits. 

3. In his Reasons for Judgment of 10 November 2011, his Honour refers to the wife’s contentions raised in her affidavit filed 21 September 2011 and said:

   34. [The wife] sought to reopen her case on the basis that the Mexico property was overvalued and the earlier affidavits were, to use her phraseology, void. She also sought to reopen the issue of the husband’s evidence at the trial and in particular to assert, based in large part upon the materials from [S] Real Estate and from AMP and in part from the statement referred to in paragraph 9, that the husband’s evidence had been in large part untruthful.

4. His Honour concluded that he would not permit the wife to reopen her case to cross-examine the husband further and gave reasons for that decision at [38] to [40].  He said:

   41. In the circumstances it is therefore in my view inappropriate to reopen the case.  There has to be an end to litigation. This applies also in my view to the husband’s attempt to resile from the agreed value of the [Melbourne] property and the wife’s endeavour to include her HECS debt. …

5. His Honour further considered the material on which the wife relied to found the application and concluded that it did not support her application.

6. On 7 August 2012 the wife filed a further application seeking an additional

   
   

   30 orders.  The application was supported by an affidavit sworn on the same date.  The husband filed documents in response and in which he joined issue with the wife’s assertions.

7. The matter returned to his Honour on 31 August 2012 and he dismissed all extant applications.  He gave reasons for his decision.

8. His Honour observed that the wife’s affidavit was “densely packed and hard to follow” [11]. His Honour summarised the effect of the parties’ contentions as contained in the affidavits. One issue in contention between the parties was whether the child support proceedings had been completed. The wife also challenged the sale price for the Melbourne property.

9. His Honour said:

   24. In oral submissions, the wife asserted that she was making an application under s 79A of the Family Law Act 1975 (“the Act”). The grounds of this were said to be that the husband had lied about everything. There were wide-ranging allegations of conspiracy. There were issues raised as to the rent on the [Melbourne] property from time-to-time, the repetition of the assertion that the proceedings in Mexico were finished and that the wife sought compensation for interim maintenance and sought to reopen the case about the children notwithstanding that they are now both over 18.

10. His Honour turned to each of the wife’s applications in turn. It is unnecessary to set out his Honour’s considerations of them other than to observe that he gave reasons for his determination. As to the purported s 79A application,

    
    

    his Honour concluded that the wife’s assertions related to conduct prior to his earlier judgment and in relation to which he was unpersuaded that the interests of justice required the reopening of the matter.  He rejected the wife’s assertion of fraud on the husband’s part at [26] to [28].

11. He concluded:

    29. These are short Reasons, but, in my view, the position is clear. The wife’s material essentially seeks to relitigate the issues she has lost, and it is not proper to permit her to do so.

12. A number of the grounds of appeal challenge his Honour’s findings on the wife’s applications, for example she challenges his rejection of her allegation of fraud by the husband.  Her submissions in support of that challenge devolve to little more than a repetition of her assertions as to the husband’s conduct. 

    
    

    His Honour’s rejection of the wife’s assertions has to be seen in the context of his long association with the matter and most potently his findings about the wife, her conduct and her motivations.  His finding was well open to him and the wife has not established any error.

13. Other challenges relate to his Honour’s asserted failure to permit the wife to join the husband’s mother as a party in circumstances when orders had been made and his Honour’s refusal to permit the wife to rely on affidavits ostensibly written by the parties’ children.

14. Each of these matters to which the wife’s grounds relate concern procedural decisions and in relation to which his Honour gave reasons and in relation to which no error has been shown.

15. The wife further asserted that his Honour erred in purporting to finalise the proceedings without determining the whole of the property dispute.

16. It is abundantly clear from his Honour’s reasons that he strove to bring about a circumstance that, at least, saw the sale of the Mexico property, without success.  He was left with conflicting and opaque evidence about the proceedings in Mexico concerning the husband’s child support obligations. 

17. In relation to her assertion that his Honour failed to determine the whole of the property dispute, the wife claimed that his Honour failed to have sufficient regard to s 81 of the Family Law Act 1975 (Cth). Section 81 of the Family Law Act1975 (Cth) exhorts the court to “as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”.

18. However, in this case, that clearly was not possible and was recognised by

    
    

    his Honour.

19. In Boulos and Boulos [2003] FamCA 1185 the Full Court (Ellis ACJ, Holden and Brown JJ) said, referring to s 81:

    35.… The references to s 81 or the "clean break" principle in each case is, in our view, nothing more than a recognition by the Court of the tension that exists between the two discernible policies of the Family Law Act 1975 relevant to an application such as the one with which we are dealing.

    36.The first is to ensure that when a marriage ends the assets of the parties are divided between them on a basis that is just and equitable.  The second is an aspiration to bring to an end, once and for all, the financial relationship between the parties.

20. The case presented to the trial judge is one of the exceptional cases in which orders which brought the parties’ financial relationship to an end were not possible.

21. No error in his Honour’s approach to the finalisation of the proceedings has been demonstrated.

22. Thus, we agree with the conclusion to which the Deputy Chief Justice has come that the appeal should be dismissed.

The application to adduce further evidence

1. The thrust of the evidence which the wife would adduce on the appeal, if leave be given, is the husband’s concession made during the appeal hearing, that the child support proceedings had concluded in Mexico and the husband’s challenges to the order and the arrears had been unsuccessful. The husband’s written submissions conceded that that is the case.

2. The wife argues that this evidence demonstrates that the trial judge’s orders are erroneous and the appeal should succeed and his Honour’s orders be set aside.

3. The reception of further evidence on appeal is constrained.  In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this court to admit further evidence. At page 201 their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous.”

4. Further, it was said:

   111. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

   ….

   114. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

5. Thus in relation to the further evidence that the wife would adduce, namely that the husband’s challenge to the child support debt has concluded, the evidence has to demonstrate that the trial judge’s orders were erroneous or would, if accepted, satisfy the court that had the trial judge received that evidence it would have produced a different result.

6. In the reasons for judgment of 21 June 2011 his Honour said:

   85. I have given earnest thought to what is the proper way to proceed with this aspect of the dispute.  I am bound to assume, and do, that the proceedings in Mexico have been regularly conducted.  I appreciate that the husband asserts fraud on the wife’s part, but that is a matter for the Mexican curial authorities. 

   86. In the ultimate, if the husband has a liability under Mexican law as a result of failure by him to do what he is lawfully required to do, then that is his difficulty.  By the same token, if in the ultimate he is not required to pay any moneys pursuant to the Mexican Court orders, then so be it.  While clearly the outcome of the Mexican proceedings will alter, and radically at that, the parties’ financial positions, the reality is that a child support debt is either owing or it is not.  It should not, in my view, properly be taken into account in the pool.  I am troubled by the fact that the husband appears to be under an ongoing obligation to pay child support of approximately either $1,600 or up to $1,900 per fortnight pursuant to the Mexican orders (depending upon which exchange rate is applied).  This seems wholly counterintuitive given that the children have been living fulltime with the husband since early 2009.  Nonetheless, it will not be possible for me to make any orders that countervail or off-set the orders made in Mexico, and while it is proper to take the father’s contributions as primary carer since 2009 into account (and I will do so) notwithstanding the extraordinary situation that obtains, namely that the husband is under curial order in Mexico to pay child support for the children who are living with him and not with the wife, this is ultimately a matter for the Mexican authorities and not for me.  I have no power to do anything about it.

1. In his reasons for judgment of 10 November 2011 his Honour made the following comments in relation to the child support proceedings:

   48. … (a) Notwithstanding the translated documents now provide to          the Court it is all but impossible to work out exactly what is           going on in Mexico in relation to both the Court proceedings         and to the various encumbrances on the Mexico property           owned by the parties.

   (b) Notwithstanding (a) it does seem reasonably clear that:

   i) The husband is the subject of a very substantial liability to the wife of some $365,000 for what, for these purposes, can be called Mexican child support proceedings.

   ii) The result in that case was no doubt regularly arrived at by the curial authorities in Mexico but that sits very uneasily with the fact that the children have lived with the father since 2009 and with him in Australia since 2010 and not with the wife.

   iii) It appears more probable than other wise that the child support debt is in some fashion an encumbrance upon the sale of the Mexico property.

   …

2. Finally in his reasons for judgment of 31 August 2012, his Honour said:

   36.This brings us to the question of the Mexican child support proceedings.  It is a huge debt, and if ultimately established and enforced, the husband will get little out of the overall settlement.  In many ways, of course, that would not be an appropriate outcome, but the appeals seem to me likely to go on indefinitely and the outcome of them remains wholly uncertain. 

3. That the husband might be unsuccessful in his challenge to the child support debt was clearly in his Honour’s contemplation.  Furthermore, his Honour’s orders in relation to the Mexico property account for the prospect that it would be used to satisfy the debt as the above passage makes clear.

4. His Honour’s orders that in the event of the sale of the Mexico property the parties receive a percentage sum from the net proceeds indeed provide for such a contingency.

5. We are of the view that had his Honour been aware that the husband’s challenge to the child support debt had been finalised, it would not have resulted in a different result.

6. In that event, we are of the view that leave to adduce the further evidence should be refused.

Costs

1. As both parties were self-represented it is not immediately apparent what costs could be awarded in the respondent’s favour. However we would join with the Deputy Chief Justice in the orders as to the submissions on costs.

I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Ainslie-Wallace & Bennett JJ) delivered on 25 February 2015

Associate: 

Date:  25 February 2015