Forster & Forster
[2016] FamCAFC 143
•9 August 2016
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER | [2016] FamCAFC 143 |
| FAMILY LAW – APPEAL – PROPERTY – Where many of the appellant’s grounds of appeal comprised general assertions lacking specificity – Where the appellant complained about his legal representation – Where a trial judge is essentially not responsible for the competence, expertise, or diligence of a legal practitioner – Where a party’s decision to proceed without legal representation does not reveal a lack of procedural fairness by the trial judge or result in a miscarriage of justice for which the trial judge is responsible – Where there has not been a miscarriage of justice as a result of any alleged incompetence on the part of the appellant’s solicitors – Where there was no procedural unfairness or error in the trial judge proceeding to trial where not all the procedural orders have been complied with – Where there was no error in the trial judge’s finding that the respondent made full and frank disclosure, but the appellant’s disclosure was inadequate – Where it is not open to the appellant to complain of bias and partiality when this was not raised at trial – Where there was a lack of specificity in relation to this complaint – Where there is also no bias or prejudice demonstrated in the trial judge’s reasons for judgment – Where the trial judge was aware of the principles in Stanford v Stanford (2012) 247 CLR 108 and applied them – Where no error is demonstrated by the trial judge in his consideration of the relevant section 75(2) factors – Where there was no basis to find that the respondent’s new partner was a financial resource to her – Where there was ample evidence to support the trial judge’s contribution findings – Where it was not demonstrated that the trial judge’s decision as to add-backs was plainly wrong –Where a failure to follow or apply the guidelines for litigants in person does not necessarily lead to appellate interference – Where it has not been demonstrated how the trial judge failed to adhere to the guidelines – Appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROCEDURAL ORDERS – Where the husband sought to revisit matters already considered – Where there was no evidentiary basis to make the orders sought by the appellant – Where there was no error in how the trial judge dealt with the appellant’s application – Where the trial judge’s reasons were adequate – Leave to appeal refused. FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought to adduce further evidence – Where the application did not comply with the Family Law Rules 2004 (Cth) – Where the appellant had every opportunity to file the application at an earlier date – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent did not incur any legal costs or disbursements – No order for costs. |
| Family Law Act 1975 (Cth) – ss 79(2), 79(4) and 79(4)(e) Family Law Rules 2004 (Cth) – r 22.39 |
| Johnson v Johnson (1997) FLC 92-764 OP v TP & Anor (Conduct of Counsel) (2003) 30 Fam LR 281 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Stanford v Stanford (2012) 247 CLR 108 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBERS: | SOA SOA | 16 66 | of of | 2015 2015 |
| DATE DELIVERED: | 9 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Aldridge JJ |
| HEARING DATE: | 12 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 February 2015 12 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 57 [2015] FamCA 790 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
SOA 16 of 2015
The appeal be dismissed.
There be no order as to costs.
SOA 66 of 2015
The application for leave to appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 16 of 2015; SOA 66 of 2015
File Number: ADC 3359 of 2007
| Mr Forster |
Appellant
And
| Ms Forster |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 12 August 2015 (SOA 16/2015), Mr Forster (“the husband”) appeals against property orders made by Justice Benjamin on 10 February 2015.
In summary, the orders appealed provided that the husband pay to Ms Forster (“the wife”), within 60 days, the sum of $151,379.50; declared that various properties, bank accounts, superannuation and personal effects were the property of the wife; declared, inter alia, that a government agency pension and other entitlements, and any amount payable to the husband and the wife pursuant to civil actions in the United States were the property of the husband; included a consequential order that the husband indemnify the wife against all costs and liabilities arising out of those civil actions; provided that the husband forward to the wife’s solicitor or permanently delete the original and copies of all and any medical records and powers of attorney that he had in his possession or control relating to the wife’s psychiatric or psychological condition; that the wife surrender any United States Government Agency Identification Card/s she had in her possession to the United States Consulate; that all extant applications, except those as to costs, be dismissed; that the subpoenaed documents be returned to the persons or institutions from which they emanated; and the exhibits be returned to the person or persons who tendered them.
The appeal is opposed by the wife.
By separate Notice of Appeal filed 7 September 2015 (SOA 66/2015), the husband appeals against a procedural order made by Benjamin J on 12 August 2015 dismissing the husband’s application in a case filed on 21 July 2015.
Leave to appeal is required in this instance, but the husband has not formally sought such leave. We proceed though on the basis that there is an application for leave, and the grounds of appeal comprise the basis on which that leave is sought.
The application for leave to appeal is opposed by the wife as is the appeal if leave is granted.
On 3 October 2015 the husband sought to file an application in an appeal, and supporting affidavit, seeking to adduce further evidence. These documents were not accepted for filing and the husband was advised that he must make an oral application for leave to rely on these documents at the appeal hearing. The husband did so, and our reasons for dismissing the husband’s application for leave will be dealt with later in these reasons.
Background and Brief Procedural History
The husband was born in 1951 and is a citizen of the United States of America (“United States”). He currently resides in Australia. The husband was employed in a government agency for approximately 29 years from 1970, when he was aged 19 years, until between December 1999 and February 2000 when he resigned. The husband asserted that his sole source of income is a pension of US$3,733, before tax, per month, which he receives from the government agency.
The husband was married prior to the commencement of the relationship with the wife, and there are five children of that marriage.
The wife was born in 1968 in Australia. The wife is presently employed as a part time carer in a nursing home and has a taxable income of $30,000 per annum. The wife has been diagnosed with an obsessive compulsive disorder and anxiety.
The parties met in Hawaii in 1988 and married in Florida in 1989 when the wife was 19 and the husband was 37. The trial judge accepted that the wife was “dominated and controlled by the husband, at least in terms of decision-making”. Though there were a number of assertions by the husband about the fidelity of the wife during the relationship, the trial judge limited evidence on this issue as “it had little or no bearing on the adjustment of property”.
There are two children of the marriage, M, aged approximately 26 years, and K, aged approximately 21 years.
Initially the parties lived together in the United States but in mid-1990 the husband was posted for employment in Central America. At this time, the wife returned to Australia with M and lived with her parents from May 1990 until November 1991. The trial judge noted that during this time the wife was “in effect a sole parent being supported by her parents”. The wife worked part time in a supermarket during this time.
The parties resumed living together in about January 1992 when the husband was posted for employment in Washington State, and the wife worked in a store.
In January 1993 or thereabouts the husband was posted interstate to attend a training course. He attended and completed that course. At this time, the wife and M returned to live with the wife’s parents in Australia; this was from January 1993 until January 1994. The trial judge was satisfied that that decision was a mutual one.
The parties re-commenced living together when the husband was posted for employment in Kansas, from January/February 1994. They remained at that location until November 1994.
In November 1994 the parties moved to the husband’s next posting in Hawaii.
The parties’ second son, K, was born in Hawaii in 1995. The trial judge accepted that at this time the parties discussed the husband retiring from the government agency.
In October 1999 the wife and the two children moved from Hawaii to Adelaide. Apart from three months in Hawaii in about 2003, the wife has lived permanently in Australia since that time. She undertook paid domestic work from then until 2009.
The husband asserted that separation occurred in October 1999. This assertion was not accepted by the trial judge due to the husband’s evidence in his affidavit filed 23 July 2007, which his Honour found was indicative of the marriage continuing well after that time.
From 2000 until 2007, the husband travelled between the United States and Australia. Most of the time though he spent in the United States, where he pursued litigation of various forms.
In 2000 and 2001 the husband arranged to ship the possessions of the parties from the United States to Australia.
In June 2000 the parties purchased a home at P Street in Adelaide (“P Street”). The purchase price was $198,000 and the stamp duty was about $7,000. That whole amount was financed by the parties. The trial judge found that most of the money for that purchase came from funds controlled by the husband and accumulated during the marriage, though his Honour accepted that a small part came from the earnings and entitlements of the wife.
The home was registered as to 65 per cent in the name of the husband and 35 per cent in the name of the wife.
The wife asserted that her family contributed $13,000 towards painting P Street and that her father, a qualified painter, painted the property. This was accepted by the trial judge.
In late 2003 or 2004 the wife travelled to the United States at the husband’s request to give a deposition in legal proceedings in that country. The wife was away for about three months and the parties’ children were cared for by the wife’s parents.
The wife claimed that in May 2007 she was asked by the husband if she was having an affair. She admitted that was the case and said the husband threatened her. The wife said that she regarded the marriage as being over at that time. Though the husband denied that he had made threats to the wife, the trial judge accepted the evidence of the wife, and found that the parties separated on 17 May 2007.
The trial judge made orders and delivered his reasons for judgment on 10 February 2015 (“the substantive reasons”).
The appellant filed a Notice of Appeal in relation to the substantive reasons on 10 March 2015. The Notice of Appeal was subsequently amended on 12 August 2015.
On 1 April 2015 the husband filed an application in a case and supporting affidavit seeking, amongst other orders, a stay of the substantive orders made by the trial judge. This application was heard by his Honour on 1 May 2015 when his Honour, by consent, stayed orders 2, 5 and 9 of the substantive orders and amended the time limit for the filing of an application for costs pursuant to order 8 of the substantive orders. Order 2 was the order requiring the husband to pay the wife $151,379.50. Order 5 dealt with the wife’s medical records. Order 9 concerned the return of subpoenaed documents and exhibits.
On 21 July 2015 the husband filed another application in a case and supporting affidavit seeking various orders arising from the substantive orders and in anticipation of the appeal. This application was dismissed by the trial judge on 12 August 2015.
On 7 September 2015 the husband filed a Notice of Appeal against the order made on 12 August 2015 dismissing his application.
Summary of Reasons for Judgment
SOA 16/2015 – Property settlement
His Honour commenced his reasons by noting that the parties had been engaged in family law proceedings since June 2007, and that final property orders had been set aside on two occasions by the Full Court prior to the trial before his Honour.
His Honour then discussed the issues in the proceedings and noted that there was “no issue between the parties that the Court should exercise its powers to make some form of property orders between these parties”. His Honour accepted that orders should be made.
The trial judge then canvassed four specific issues in this matter; first, the duration of the relationship between the parties; secondly, whether each of the parties had made full and frank disclosure; thirdly, the extent of the property owned or controlled by the parties; and, finally, the contributions of the parties.
At [12] – [13] his Honour set out the proposals of the wife.
The trial judge then explained the various difficulties he faced when attempting to decipher the proposals of the husband. Particularly, his Honour referred to the husband’s failure to comply with the direction to file a case outline prior to the trial, the husband’s dismissal of his solicitor half way through the first day of the trial, and the husband’s inability or unwillingness to articulate the orders he sought until day four of the trial. His Honour then discussed the gravamen of the orders sought.
One of orders sought by the husband was a costs order “in relation to the reserved costs order made by Registrar Paxton in August 2014 and general costs orders”. In regards to this order, his Honour explained (at [25]):
The husband sought costs orders in relation to the reserved costs orders made by Registrar Paxton in August 2014 and general costs orders. In terms of the various costs applications it is clear that costs orders were made in favour of the wife pursuant to the then declared void property orders out of the then Federal Magistrates Court. Given that there may be an argument as to the extent of the Courts’ [sic] power to make costs orders, in respect of the now void application for the appointment of a case guardian, I intend to make a general order enabling the parties to make costs applications in accordance with the rules following the publication of these reasons and the making of property orders. I will not be reviewing costs orders which have been properly made.
The husband then “produced a written case outline the week after evidence concluded and on the day or the day before final submissions commenced”, and relied on this during final submissions (at [26] – [27]). His Honour set out his interpretation of the orders sought at [27].
His Honour then canvassed the factual and procedural background of the matter (at [28] – [125]).
Next, the trial judge set out the evidence relied on by the parties, but noted that this was “not intended to be a comprehensive list of the evidence as much was contained in the oral evidence of the parties” (at [126] – [132]).
Having identified the positions and the evidence of the parties, his Honour turned to the legal principles applicable in this matter. His Honour noted that the legal principles regarding property settlement were “clarified following the High Court decision in Stanford v Stanford” (footnote omitted), which his Honour opined had changed the focus from the four step process to an approach where the court “must firstly be satisfied that before making any order it is ‘just and equitable’ to do so”. His Honour then noted that the orders to be made are governed by the considerations in s 79(4) of the Act.
His Honour set out his approach to the matter as follows (at [138]):
a)Identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;
b)Consider whether in the circumstances of the parties it is appropriate and just and equitable for any order to be made having regard to s 79 of the Act; and
c)To consider and take into account any contributions and other matters, as are relevant, having regard to the provisions of s 79(4) of the Act and make such order as is appropriate. It is the function of the court to consider those relevant factors in the context of what is appropriate in all of the circumstances, provided always that it is just and equitable to do so.
His Honour then turned to consider the witnesses in the matter.
In relation to the evidence of the wife, his Honour found as follows:
163.The husband made a number of attacks on the credit of the wife during the course of his cross-examination including that she was coached, and that when she was unable to remember things from some years ago that it was a false assertion. My assessment of the wife was that she endeavoured to answer the questions frankly and directly. There was no indication that she was coached and her limitations of her memory of the detail of events, sometimes decades previously was more likely memory deficit over years rather than the fabrication or reconstruction as asserted by the husband.
164.An example of the wife’s frankness was demonstrated during cross-examination where the husband asserted that she had listed all of his financial details in about 2004 or 2005. The wife initially disputed this but when pressed later about recording credit card numbers in case they were lost, acknowledged a memory in that respect. The wife does not have the eye for detail as does the husband. However, I am satisfied that she endeavours to tell the truth from her own subjective view of it. She listened carefully to questions and her demeanour was open and frank.
165.The wife was questioned as to detail from events ten, twenty or thirty years ago and appropriately acknowledged that she could not remember all of these events but when shown documents which established such events, such as her bank accounts, she was open to acknowledging the source of those funds.
166.The husband says the wife’s credit is impeached and that her conduct was questionable. The husband was endeavouring at times to cross-examine the wife about what he believed were her affairs over the marriage. I reject that contention, having seen and heard the wife give evidence.
167.I have treated the evidence of the wife as generally reliable.
His Honour then turned to the evidence of the wife’s solicitor, Mrs Hicks. The main issue regarding the evidence of Mrs Hicks was in relation to the husband’s assertion that she had not provided “full and proper discovery to the husband” (at [168]). Mrs Hicks gave evidence that the wife had made “full discovery by serving four volumes of documents on the husband prior to May 2013”, including two affidavits filed on 20 May 2013, which she argued had attached to them “the wife’s discovered documents”. Mrs Hicks claimed that these documents were identical to Exhibit W11. The husband denied ever receiving these documents.
Mrs Hicks also gave evidence that she received “a bundle of the husband’s documents which were disorganised”. It was her evidence that she put the documents “in logical order and then bound” them. These documents, Mrs Hicks contended, were attached to an affidavit which she filed and were bundled into three volumes, which became Exhibit W10. Mrs Hicks argued that these documents were served on the husband. The husband disputed ever receiving these documents.
Further, Mrs Hicks noted that the husband clearly had the documents in his possession as he was seen using them throughout the trial. She also asserted that she provided another copy of the bundled documents to the husband on the second day of trial.
The husband cross-examined Mrs Hicks, but his Honour noted that she was “not in any way shaken in cross-examination” (at [175]).
Therefore, at [177] his Honour found that he was satisfied “that the husband has had available to him since May 2013 the wife’s discovered documents contained in Exhibit W11 and the re-organised bundle of his documents contained in Exhibit W10”.
His Honour also found that “Mrs Hicks was frank and accurate in her evidence” and that he accepted “the veracity of her evidence” (at [179]).
His Honour then considered the evidence of Mr Z, an adversarial expert called by the wife in relation to the husband’s United States government agency pension. His Honour set out Mr Z’s expertise at [180], but noted the concession of Mr Z that he was “not an expert in the area of USA government agency pensions, nor the USA taxation system”. His Honour noted Mr Z’s evidence that he had “expertise in Family Law superannuation valuation calculations” (at [181]).
His Honour found that, given the evidence of Mr Z, the pension would be treated “as a financial resource of the husband accumulated over about 28 years during which period he was married to the wife for about ten years, viz about 36 per cent of the period of service” (at [187]). Further, his Honour explained that, as Mr Z was “not an expert in terms of US [government agency] pension law”, his Honour did “not accept his valuation” (at [188]) of the annual value of that pension.
Next, his Honour turned to the evidence of the husband. First, his Honour detailed the assertions of the husband in relation to his financial contributions to the marriage and in relation to the behaviour of the wife and her solicitor (at [189]). In this regard, his Honour emphasised that he “did not observe, read or hear evidence of any unethical or improper behaviour on the part of the wife’s solicitor” (at [190]).
Having observed the husband throughout trial, his Honour found that the husband was “not constrained by notions of frankness or truthfulness in giving evidence” and that he “seemed to say what was needed to be said in an effort to achieve the end to which he sincerely believed” (at [194]).
His Honour then noted a series of inconsistencies and omissions in relation to the husband’s evidence, particularly regarding his allegations against the wife and her solicitor as to disclosure and as to his financial circumstances and financial statements. His Honour found that the husband’s evidence about aspects of his financial circumstances was “unsatisfactory and he prevaricated in his answers” (at [195] – [205]).
Ultimately his Honour found (at [221]):
The husband is not a reliable witness. He at times fabricates evidence, such as his denial about having the wife’s discovered documents in front of him at the bar table, and prevaricated in many areas of evidence. I have treated his evidence with great caution.
In relation to the affidavit of K, relied upon by the husband, his Honour found that significant parts of the affidavit “were not read or struck out” and that the remainder had “little relevance to the issues in dispute” (at [222]). His Honour noted that, sensibly, the wife did not cross-examine K.
His Honour then turned to the issue of discovery, particularly the husband’s repeated assertions that “there had been inadequate discovery by the wife” (at [224]). His Honour made the following findings in relation to this issue:
a)His Honour accepted the wife’s contention that “since separation the husband [had] avoided disclosure of his finances and was secretive”. Further, his Honour accepted that the husband was “secretive of his finances during the course of the marriage” (at [225]).
b)The trial judge also accepted that the “husband prevaricated and obfuscated and did not make full and frank disclosure” (at [226]).
c)Regarding Exhibits W10 and W11, his Honour found that the husband had complained about not receiving these documents and “subsequently produced the missing bundle from his material”. His Honour also accepted the evidence of Mrs Hicks that the bundles were tabulated when they were given to him (at [227]). Thus, his Honour concluded that the husband was “both manipulative and mendacious” in this regard (at [228]).
d)In light of the evidence of Mrs Hicks, his Honour found that the wife had “made full discovery” (at [230]).
e)Finally, in relation to the husband’s argument that the wife hid resources and assets, and had bonds in her name, his Honour recorded that there was “no cogent evidence produced to the Court to support that contention” (at [231]).
Having assessed the evidence of the parties, his Honour turned to his consideration of the property of the parties. His Honour identified the property and found that the total value of the property was $522,669, with $334,199 of that represented by the husband’s United States Treasury Bonds.
His Honour then noted that the “liabilities claimed by the parties were not accepted” by him (at [235]). First, his Honour recorded that the wife had liabilities “arising from her purchase of the property with Mr [E] [the wife’s new partner]”. However, the trial judge explained that these liabilities would not be included in the pool as the wife had previously “cleared her debts” from “the proceeds of sale of [P] Street” (at [236]).
As to the liabilities claimed by the husband, he asserted that he was indebted to two of his daughters from his previous marriage in the sum of US$15,000, to his son K in the sum of $5,000 and to his landlord Ms J. These liabilities were not accepted by his Honour. Similarly, the husband claimed that the interest component on his United States Treasury Bonds had an “embedded liability for tax/cgt … at a top marginal rate in Australia of 50% and 33% in the United States”. The trial judge did not accept this assertion.
His Honour then considered the property of the parties in detail. First, his Honour discussed the chattels owned by the parties, and noted that there “was some agreement as to chattels and their value”. This was particularly in relation to the husband’s camper trailer, the husband’s Toyota motor vehicle, the husband’s Grand Am motor vehicle, and his furniture and tools (at [239] – [240]). The trial judge recorded that the wife “did not seek the transfer of any of those chattels” but made it clear that “in the event of any enforcement proceedings by [her], she would regard such chattels as being as [sic] available in that circumstance” (at [241]).
His Honour then discussed the property of the wife, and noted that, in the absence of challenge or expert evidence, he accepted the valuations given by her. Due to the modest value of the wife’s superannuation, his Honour “treated it as part of a single pool of property” having “regard to its creation in terms of contribution and its lack of availability in terms of the other factors” (at [245]).
Regarding the property at Suburb A, which the wife purchased with Mr E, his Honour explained that this was a recent acquisition and that the wife contributed $70,000 and Mr E $50,000 to its purchase. His Honour then considered the wife’s evidence regarding the mortgages on the property and the wife’s assertion that she had equity in the property of $36,000. However, his Honour noted that since there was “no evidence of the value of the property or any increase in [the] current value of that property” he would “treat the $70,000 as the wife’s share or equity in that property” (at [249]).
The trial judge then considered the husband’s United States Treasury Bonds, recording at the outset that the “husband had not properly discovered details of his treasury bonds and had not been frank in his disclosure of them” (at [250]). His Honour referred to the four financial statements filed by the husband, and the cross-examination of the husband on these statements (at [251] – [252]). Particularly, his Honour rejected the husband’s assertion that due to his “late instructing of his solicitor” his latest financial statement was “rushed” (at [253]). His Honour then detailed the evidence provided by the husband regarding the value and existence of the bonds in each of his affidavits; in his first affidavit, the husband asserted that the bonds were worth $29,600, in his second affidavit he made no disclosure of the bonds, in his third affidavit he asserted they were worth $50,000 – $55,000 and in his fourth affidavit he attached a “downloaded list of his bonds”. Apart from this information, his Honour noted that the husband disclosed very little about his bonds except that contained in two Exhibits tendered to the court (W18 and W19).
Further, his Honour explained that the husband had not provided any expert evidence to support his assertion that the “amount paid for the bond was less than its face value”. Despite this, his Honour found that this assertion was somewhat supported by the documents provided by the husband, and his financial statements, and accepted that “the face value of the US bonds may not be entirely reflective of their present value” as the bonds “seem to mature at about 20 or 30 years after their issue” (at [256] – [257]).
In the absence of expert evidence his Honour found that the face value of the bonds was US$313,600 with an acquisition cost of US$156,800 and accumulated interest of US$152,644.44. Therefore, his Honour accepted the husband’s valuation of the purchase value of the bonds and interest at US$309,444.44, subject to tax or as calculated by the husband against the Australian dollar, a value of AUD$334,199 (at [258] – [260]).
The trial judge noted that the earliest “issue date of the bonds was November 1991” and the “latest issue date of a bond was 2011”. Though the husband argued that the bonds were rolled over at times, his Honour found that there was no evidence to support this assertion (at [261]).
In relation to the money the husband held in bank accounts, the trial judge explained that the husband conceded in his 2014 financial statement that he had funds in a bank in the United States, and then in final submissions conceded that he had omitted three accounts from his financial statement. Of these bank accounts, his Honour was particularly concerned about the NAB bank account, which the husband acknowledged in cross-examination to have “a credit balance of $17,499” but which he asserted in final submissions to have a balance of $500. The husband argued that these funds were used for the payment of legal costs. Whilst his Honour was “troubled by the veracity of that evidence”, he did not add this sum back to the pool in light of the approach he had adopted in respect of the husband’s requests for add-backs (at [262] – [265]).
His Honour then considered the husband’s alleged liabilities to his two daughters and to K. His Honour referred to the husband’s inconsistencies in relation to the extent and existence of the liabilities and considered the agreement between the husband and wife which was tendered by the husband (at [266] – [277]). His Honour then stated (at [268]):
This was an agreement which the wife acknowledged she signed although has no recollection about it. I am not satisfied that this is evidence of a liability to the husband’s daughters. Those children did not provide any evidence in these proceedings and I accept the submissions of counsel for the wife that the husband transferred monies back and forward from his children, including the youngest child. I do not accept that that is an acknowledgement by the wife. I infer from the evidence that the wife signed documents that the husband put before her as he is a strong and forceful person and the wife acceded to his wishes.
His Honour explained that it was clear from his statement of financial circumstances that the husband paid money to his daughters. However, his Honour found that when “cross-examined as to how the alleged debts to his daughters were incurred, his evidence could only be described as obtuse”. The husband asserted that these liabilities were incurred for the purposes of paying his legal fees, and that he had reduced those liabilities from the original amount of $75,000 to the asserted amount of $35,000. Despite this, his Honour found that in the absence of evidence from the daughters, or documents relating to the alleged loans, his Honour did not accept the loans existed and refused to take them into account.
His Honour then considered the money which the husband asserted he owed to K. His Honour discussed a series of transactions in relation to K’s bank account and noted the husband’s inconsistencies in his evidence regarding these transactions and his lack of a satisfactory explanation. In light of this evidence, his Honour was not satisfied that the husband owed $5,000 to K.
Next, the trial judge considered the husband’s contention he owed $10,000 to his landlord, Ms J, such money having been borrowed to pay legal costs. However, his Honour indicated that this assertion had to be looked at in the context of the husband saying that he did not expend significant money on costs and his evidence that Ms J was financially struggling (at [278]). Thus, his Honour rejected this assertion due to the husband’s ability to access his own funds, the absence of evidence from Ms J, and the concerns about the “reliability of [the husband’s] evidence generally” (at [278] – [279]).
Finally, the trial judge turned again to the husband’s claim that the “interest component on his US Treasury Bonds of [US$152,644] has an ‘embedded liability for tax/cgt … at a top marginal rate in Australia of 50% and 33% in the United States’” (at [280]). This tax liability was put by the husband in his 2014 financial statement at $126,372. In relation to this assertion, his Honour recorded that the husband had not provided expert evidence, and nor had he established himself as a tax expert. His Honour considered that the husband’s evidence was problematic due to the ample opportunity he had had to provide evidence of a tax liability prior to 2014. Thus, in the absence of any objective or other evidence, his Honour did not accept the husband’s evidence “as to the quantum of that tax liability”, or that such a tax liability existed. His Honour’s finding in this regard was also based on the husband’s wish that he keep the bonds and the husband’s late disclosure of them (at [281] – [287]).
Having dealt with the property of the parties, his Honour turned to the series of add-backs which the husband sought, namely (at [289]):
a)The whole of the sale price of [P] Street totalling $415,000;
b)The $80,000 paid into the wife’s solicitor’s trust account (of which $70,000 was ordered to be paid to the wife);
c)Lost rent on [P] Street;
d)Legal fees of $41,000 to the US Attorney, Mr [G];
e)Valuation fees of $1,300 paid by the wife;
f)An amount of $60,000 withdrawn from the husband’s bank account.
g)An unquantified amount in relation to a compensation claim of the wife;
h)The husband’s legal fees of $70,000; and
i)The wife’s paid legal fees of $30,000.
First, his Honour explained that in relation to the legal fees he would not make any determination of the costs associated with the first instance proceedings due to his concern that he could not review those costs orders. However, as referred to above, his Honour clarified what each party could do in relation to these costs orders.
Regarding the $1,300 valuation fee, his Honour noted that this related to the claim in the wife’s affidavit of $1,325 for house valuation fees. His Honour rejected the argument that this should be added back, explaining that if this amount was a “presumed liability” it could be dealt with in a costs application, and in any case, it was likely to fall “into the ‘de minimus’ category” (at [293] – [295]).
In relation to the legal fees of $41,000 paid to Mr G, his Honour explained the husband’s pursuit of litigation against a bank in the United States, involving the wife. His Honour then found:
299.I prefer the evidence of the wife that the proceedings, although including her, were promoted and pursued by the husband. I accept that the husband required the wife to execute the cost agreement and the power of attorney at about the same time.
300.Given that those costs were dissipated in the litigation in the United States about which the wife was reluctant to be involved, I intend to make no order in respect of the alleged add back, nor will I regard it as a contribution by the husband for the benefit of the wife.
301.I will have regard to the payment of those US legal costs in terms of money expended on legal costs by the husband in assessment of the parties’ respective contributions. There was little or no benefit to the wife, and was a considerable expenditure by the husband for his benefit in his pursuit of civil legal proceedings in the United States.
His Honour was unsure what the husband was asserting in relation to the legal fees of $70,000 for the husband and $30,000 for wife. However, his Honour stated that if the submission related to the “$30,000 or thereabouts by the wife for legal costs in the first year of the parties family law litigation”, his Honour would not add that amount back but would consider it in terms of contribution. His Honour noted that $20,000 of this amount was advanced by way of personal loan which was repaid out of the sale proceeds of P Street. The sum of $70,000 released to the wife by way of interim order from the husband’s savings and used by the wife to pay legal fees was to be treated as “a substantial contribution to the wife from funds accumulated during the parties’ relationship”. Thus, his Honour concluded that neither of these sums would be notionally added back, but that both would be considered as contributions.
The trial judge then discussed the proceeds from the sale of the P Street property. His Honour explained the circumstances of the sale and noted that the net proceeds of sale of $404,822 were placed into an interest earning trust account. His Honour then detailed the wife’s disbursements from that account in accordance with an order of Cronin J on 2 July 2013 (at [307] – [308]). Of those disbursements $22,139 was used by the wife for general living expenses, but his Honour noted that this amount would be considered “in terms of assessment of the parties’ respective contributions” and would not be notionally added back to the pool (at [309]).
His Honour then noted that the wife had spent about $402,000 on legal costs and disbursements, of which $319,118.37 came from the proceeds of sale of P Street. Overall, taking into account the costs orders made in favour of the wife, his Honour estimated the wife’s legal expenses to be approximately $388,000.
Having considered the wife’s legal costs, his Honour turned to the money which the husband had spent on legal fees. His Honour detailed the costs of the husband’s litigation in the United States, the withdrawals made by the husband which he asserted were for legal costs, the liabilities the husband contended that he had incurred for the payment of legal costs and the husband’s own assertions about how much he had spent on legal costs (at [312] – [321]) .
His Honour then estimated that in relation to the husband’s costs for the litigation in the United States, the husband had “spent at least between [US$75,000] and [US$100,000] on legal fees” (at [322]).
At [323] – [324], his Honour discussed the money that was withdrawn from the husband’s account around the time of separation in the sum of approximately $125,000. His Honour found that $81,000 of this sum was the money which was secured by the then Federal Magistrates Court and out of which payments were directed to be made during the course of the proceedings in that court. However, his Honour indicated that the application of the balance of $44,000 was unclear, and his Honour noted that the husband’s evidence on this issue was troubling.
Having regard to all the evidence, his Honour found:
325.The husband has spent considerable funds on legal proceedings both in Australia and in the United States over many years. He has not been candid in his evidence as to his spending on legal costs.
326.The amounts he spent on costs in the Australian litigation may be as low as $70,000 to $100,000 or, more likely, much higher.
327.Similarly, the husband’s lack of candour in terms of the litigation in the United States makes it impossible for me to determine with any certainty the extent of those costs.
328.It was open and available to the husband to make full disclosure of costs. He has not done so.
329.As such, I will not add-back the amount sought in relation to that part of the proceeds of sale of [P] Street or for that matter the amount claimed for loss of rent. Given the husband’s prevarication in terms of his evidence regarding legal costs, and his lack of candour about his legal expenses, I will regard the legal costs of both parties and [sic] roughly equivalent in terms of my approach to contribution.
His Honour then turned to the “other property” asserted by the parties. First, his Honour treated as an asset, as part of the husband’s United States money, the husband’s privilege assets/AIM which were disclosed in his case outline (at [330]). However, the husband’s assertions that the wife owned a flat and was likely to receive an inheritance from her mother were rejected as “ambit claims” which were not supported by any objective evidence. Particularly, his Honour stated that the “only reliable evidence was that of the wife which was that the property was not hers but her parent’s and now her mother’s” (at [331] – [334]).
His Honour then concluded that “[g]iven all of the evidence … it is appropriate, just and equitable for there to be an adjustment of property pursuant to s 79 of the Act” (at [335]).
Next, his Honour turned to the contributions of the parties. His Honour noted at the outset that at “the time of commencement of their relationship the husband had more property than did the wife”, and had “a significant financial resource” (at [336]).
The first contribution his Honour discussed was the husband’s financial contributions arising out of his ownership of the bonds. His Honour discussed the evidence in some detail, though his Honour was cognizant that the husband had not made “proper, full and frank disclosure of his financial circumstances and [had] failed to make full discovery of documents” (at [338]). In relation to the bonds acquired prior to marriage, the trial judge made the following relevant findings:
a)On the basis of the husband’s 2014 financial statement, the earliest issue date of the bonds was 1991 and the latest was 2011. Each of the bonds had a discount on the issue face value price (at [342]).
b)The Pearl Harbour Federal Credit Union documents annexed to the husband’s 2008 affidavit, demonstrated an increase in the balance of the account of approximately US$10,000 – US$11,000 in around June 2000 due to the sale of bonds acquired from the 1970’s – 1980’s. His Honour found that “the husband likely had those bonds at the time that the parties married” (at [344] – [348]).
c)In 2005 and 2006 the husband sold one five thousand dollar bond, acquired in 1986, and eight two hundred dollar bonds, acquired in 1989 for approximately US$9,558 in total. How these funds were applied was not clear (at [349] – [350]).
Thus, having regard to the face value of the bonds, his Honour concluded that “the husband had bonds to the value of up to [US$13,000] dollars at the time of his marriage, which bonds he disposed of in 2000 and 2006” (at [351]). His Honour treated these bonds as “property of the husband prior to the parties commencing their cohabitation” (at [352]). Though the husband asserted that he had bonds to the extent of US$150,000 at the commencement of the relationship, his Honour rejected this uncorroborated assertion but accepted that the husband was “likely to have had other assets”. As such, his Honour found that the husband’s contribution in this regard was “greater than [US$13,000] and less than [US$150,000]” (at [357]).
His Honour then considered bank accounts and monies which the husband asserted he had. First, the trial judge noted that in his May 2013 financial statement the husband claimed he had cash or cheques of $35,000, but that he had spent this money on solicitors and private enquiry agents. His Honour rejected this evidence and found that the husband’s explanation of his spending in this regard was “unconvincing” and he had “obfuscated”. His Honour indicated that that would be taken into account “in terms of the consideration of contributions” (at [359]).
The trial judge then detailed the evidence in relation to the husband’s bank accounts in Australia and the United States.
His Honour found that the husband failed to disclose many of his Australian funds. His Honour was satisfied that the “husband was not accurate in his financial statement in 2007”. Particularly, his Honour found that the husband had withdrawn an amount of $114,703 from his bank accounts in June 2007. This was significant due to the date of the parties’ separation in May 2007 and the commencement of the proceedings by the wife in June 2007. Thus, although the husband asserted in his 2007 financial statement that he had funds of $40,000 in Australian bank accounts, his Honour found that it was “clear that at least in the ANZ Bank, as at the date of separation, he had about $115,000”. The husband’s assertion that this withdrawal was “coincidental” was not accepted by his Honour (at [360] – [363]).
Further, having considered the transactions evident in the bank statements, and the husband’s inadequate explanations in this regard, his Honour found that “the husband’s bank accounts as at May/June 2007 were at least $125,000” with at least an additional “$1,588 in the Bank of South Australia” (at [367]).
In relation to the husband’s bank accounts in the United States, the husband conceded the following accounts as at May/ June 2007 (at [368]):
Bank of America $ 1,002
Bank of America $ 5,026
Bank of America $44,526
Central Pacific Bank $ 1,019
Central Pacific Bank $11,004
Citibank merged with Central Pacific Bank $ 2,280
Pearl Harbour regular savings $ 1,673
AIM Investments $ 1,598
Total $68,128
Additionally, his Honour found that the husband had a sum of $10,500 in Fort Jackson Credit Union and a sum of $5,232 in Honolulu Central Bank (at [369] – [371]). In relation to the husband’s funds in the United States, his Honour was satisfied that he “regularly understated the investments he had” (at [372]).
His Honour also noted that it was clear that the husband pays money to his daughters from his previous marriage (at [374]).
Thus, his Honour found that the husband’s assets as at May/June 2007 were as follows:
a)Bank accounts in Australia valued at $127,734 in total;
b)Bank accounts in the United States valued at $91,790 in total, including the sum of $10,500 in Fort Jackson Credit Union and the sum of $5,232 in Honolulu Central Bank;
c)US Bonds measured in the sum of hundreds of thousands of dollars.
In this regard, his Honour was “satisfied that the husband was endeavouring to mislead the Court as to his assets in the United States at that time” (at [380]).
His Honour then turned to the non-financial contributions of the parties. In this regard, the trial judge explained that the wife was the sole carer of the children throughout numerous periods of their life while the husband was working or studying, and that the wife did “the lion’s share of the upbringing and care of the children”. However, his Honour accepted that the husband assisted “with housework and undertook cooking for the family from time to time” (at [385]).
His Honour accepted the wife’s evidence that between 1999 and separation in 2007 “the husband was significantly involved in the litigation in the United States” (at [386]). His Honour further accepted that the wife “travelled to the United States for three months” during this period, and the children were “cared for by the wife’s parents” (at [387]).
A further contribution of the wife was in relation to her encouragement of the husband’s involvement with the government agency, and the training he completed to advance in this agency. His Honour preferred the evidence of the wife “that this was a joint decision and enabled the husband to focus on his studies and his work to that end whilst she cared for the eldest child of the marriage at that time” (at [388] – [389]).
One of the husband’s assertions was that there was a “conspiracy” to “deny him adequate legal representation and procedural fairness”. The trial judge found that the husband was not frank in disclosing that he spent $200,000 on legal fees on this issue.
His Honour then considered the evidence in relation to the wife’s savings of $24,000 which she asserted she contributed to the purchase of P Street. In this regard, his Honour found:
391.I accept the wife had money in the bank of about $24,000 in 2000. I accept this primarily came from the husband’s earnings during the course of the marriage and parts of it may have come from bonds, although the providence [sic] of those bonds is not clear. There was a very small amount of money from the wife’s earnings, and money in relation to gifts, etc.
392.I am satisfied that the majority of these funds accrued during the course of the marriage and was used by the wife in terms of care of the family. Part of those sums are likely to have been used, to some extent, on the acquisition of the home, although not to a large extent given the amount of monies paid in by the husband and the gift from the wife’s father of $13,000.
393.[P] Street was registered as 65 per cent to the husband and 35 per cent by the wife. I accept that was the legal interest in the property.
His Honour also accepted the evidence of the wife that her father “painted the home and provided the paint” (at [394]).
At [395], his Honour again acknowledged that for much of the time “the children were living with the wife in the absence of the husband” and that the wife “cared for the children in cooking their meals and providing for their needs”.
On the other hand, his Honour accepted the husband’s assertion that he “ironed his own [clothes]”. Though his Honour did not reject the husband’s submissions that he kept the house clean and cleaned before work, his Honour found that the wife “was almost entirely responsible for homemaker duties” (at [397]).
At [398], his Honour noted that “living apart during the marriage added to the burden and the contributions in terms of the wife’s care of the children”. In this regard, his Honour considered the wife’s Australian Government benefits as “joint contributions” but emphasised that they were “modest compared to the significant and overwhelming contributions of the husband (at [399]). His Honour also accepted the evidence that the wife’s father had been generous by contributing to the purchase of her car and providing “money to her to support her and to support the husband” (at [400]). Additionally, his Honour accepted that the wife’s parents had contributed by “providing accommodation to the wife in the early 1990’s” and for a period in 1999, as well as in relation to the painting of the P Street property (at [401] – [402]).
His Honour then explained the following:
403.Exhibit H1 shows that the wife had investments of about $7,000 in term deposits in 1994. I am satisfied that these came primarily from funds provided by the husband but at some significantly lesser degree were funds to which the parties were entitled under the Australian Social Security system. This fund grew to about $8,500 and was subsequently deposited in the wife’s Commonwealth Bank account bringing the total of that account up to about $22,000.
404.Exhibit H2 shows a series of transactions from the United States to Australia. (sic) which involved payments from funds of the husband, although, I am not satisfied that those funds were accumulated before the parties married. The sums totalled [US$8,500], to about [AUS$11,500], another [US$6,600] to about [AUS$9,684] and another [US$9,000] to about [AUS$12,211]. In 1998 the husband put [US$6,600] into an Australian term deposit of about [AUS$9,684].
405.The wife earned limited funds in the United States.
406.Contributions by the wife in terms of paid employment were overwhelmed by that of the husband. The converse is the case in terms of parenting.
407.The wife covered the children for medical insurance from 1999 onwards. The husband gave little credit to her for that as he said the children were covered by the husband’s US [government agency] health insurance.
408.After separation the wife was injured in a car accident and received a settlement of about $15,000 which she applied to the day to day living expenses. I have had regard to that settlement.
His Honour then referred again to the significant assets of the husband at the time of marriage.
In relation to the husband’s children of his previous marriage, his Honour was “satisfied that the wife made contributions in terms of caring for those children when they were at the parties’ home” and that the husband provided financial support for these children (at [410] and [412]).
The husband’s contribution to the purchase of the wife’s motor vehicle whilst she was in Australia was found to be “part of the normal interaction in a married relationship” (at [411]).
His Honour then discussed the work that was undertaken on the P Street property and noted that a significant amount of the furniture from this property was sold pursuant to an order of the Federal Circuit Court.
The husband also made assertions to the effect that the “wife’s contribution was diminished by reason of her mental illness” and that the wife was accepting a Centrelink benefit when she was not entitled to. Though his Honour accepted that the wife had a mental illness, as his Honour had found that the wife was the primary carer of the child, he did not consider her contribution diminished. Likewise, his Honour found no basis for the husband’s claim regarding the Centrelink benefit.
Another assertion of the husband was that the wife “prejudiced his education”. His Honour found that there was “no reliable evidence to that effect” (at [420]).
Thus, in concluding his consideration of the parties’ contributions, his Honour found:
421.The wife does not dispute that the husband contributed money to her whilst she was caring for the children up to 2007. The husband also had other liabilities during the course of his marriage. He had some five or six children from previous relationships whom he asserted he supported.
422.At times some of these children stayed with the parties when they were living in the United States. I accept that the involvement of the wife in the care of these children from time to time was a contribution, albeit relatively small.
423.The husband’s contributions were slightly greater than those of the wife, given the husband’s greater initial contributions.
424.Given all of the above and that discussed throughout these reason, I have considered and taken into account all of the relevant contributions and I determine that the property that I have identified ought to be treated as arising from equal contributions.
His Honour’s final consideration was of the “other factors” relating to the parties. His Honour made the following findings in this regard:
a)His Honour accepted the wife’s evidence that she “takes regular medication for a disorder and suffers from anxiety”. His Honour accepted that this had “little impact upon her ability to continue working” (at [425]).
b)His Honour rejected the assertion that the wife was “under the thrall of her solicitor” (at [426]).
c)Despite the husband’s assertions to the contrary, his Honour was satisfied that given the age of the wife and the nature of her employment she was “working to her potential” (at [427]).
d)
Though his Honour did not accept that the husband was “too old for any form of work”, his Honour did accept that the husband was
“much older than the wife and that this [impacted] upon his ability to find paid employment”. The husband’s claim that he suffered “health difficulties in terms of his wrist” was not set out in his affidavit material (at [428]).
e)The husband had a significant financial resource “in the form of his US [government agency] Pension which provides him with a regular monthly income in United States dollars” (at [430]).
f)The husband’s pension “accrued over the approximately 28 years of his service in the [government agency], of which about 10 years were when he and the wife were married and had a relationship”. His Honour opined that he had “given weight to this pension as a financial resource accumulated, at least as to slightly less than one third, by the parties in their joint endeavours from 1989 to late 1999” and was used by the parties from 1999 to 2007 (at [431]).
g)Though the husband asserted that the wife had a significant financial resource in her ability to claim a share of his pension, his Honour found that he did not have “jurisdiction to make orders in respect of that pension” (at [432]).
h)The husband’s evidence regarding US government agency pensions was considered with great caution as the husband had not “established any cogent evidence of his expertise in this area” (at [433]).
i)The wife’s expert, Mr Z “appropriately conceded that he was not an expert in US [government agency] pensions” (at [434]).
j)Though his Honour accepted the wife’s evidence that she did not intend to “claim any part of her entitlement that may exist in respect of that pension”, his Honour noted that such a possible entitlement is a financial resource and should be given “some but not great weight” (at [435]).
k)There are no children under 18 years to consider.
l)The wife had re-partnered and has a half interest in the home she bought with her partner but he is not financially dependent on her. The husband has not re-partnered.
m)In relation to the wife’s modest superannuation of $34,900 which his Honour placed in the property pool, his Honour found that “in terms of contributions, [he] had regard to the creation and accumulation of that fund subsequent to the wife’s return to Australia in 1999” (at [438]). In relation to this fund, his Honour noted the wife’s age and the fact that the “sum is not available to her until she retires, many years into the future” (at [439]).
Thus, in light of all the evidence his Honour set out his “determination” as to the factual basis of the matter at [441] – [452] and his Honour concluded as follows:
449.Given all of the findings, relative to the parties’ respective contributions and their future heeds and the like, I consider that such property as is left should be divided equally.
450.The pool of property amounts to $522,669 of which $109,955 is property of the wife and $412,714 is property of the husband.
451.I am satisfied that it is just and equitable to adjust property pursuant to the provisions of the Act, given the facts and findings discussed earlier. I am satisfied that in all of the circumstances that it is just and equitable to divide the property equally, which means $261,334.50 for each of the husband and the wife.
452.Given that determination I will order that the husband pays to the wife the sum of $151,379.50. As the husband has much of his property in the United States, I will allow him sixty days to pay this amount, and I will so order.
Finally, his Honour addressed the other orders he would make based on the proposals of the parties.
SOA 66/2015 – Application in a case filed 21 July 2015
There were two applications in a case heard and determined by his Honour on 12 August 2015; one filed in May 2015 and the other filed on 21 July 2015. It is unnecessary to refer to his Honour’s reasons for judgment and the orders that he made in relation to the first application because, as referred to above, this appeal is only against the order his Honour made dismissing the second application.
In the application in a case filed on 21 July 2015, the husband sought ten orders, though his Honour noted that only 9 of the 10 were substantive and that the tenth order was a catch-all order which need not be addressed.
Before considering the orders sought, his Honour repeated the procedural history of the matter by quoting his substantive reasons at [28] – [125] and explaining the orders made in those proceedings.
His Honour then referred to the application in a case filed by the husband on 1 April 2015 which sought a stay of part of the orders of 10 February 2015. His Honour noted that this application came before him on 1 May 2015 and that consent orders were made on this date granting a stay of orders 2, 5 and 9 of the orders made on 10 February 2015.
His Honour then turned to consider the orders sought, beginning with orders 1 and 8, which his Honour said seemed “to be an application in some form or another to restrain the wife and her solicitor from destroying or otherwise damaging or making unavailable her documents in relation to these proceedings” (at [11]).
In relation to these orders, his Honour discussed the assertion of the husband that the wife and her solicitor did not make full and frank disclosure and that the wife had been untruthful during the trial, as well as the husband’s complaints about the solicitor who acted for him at the commencement of the trial. His Honour noted that he had made findings in relation to the credit of the wife’s solicitor and of the husband in his substantive reasons.
Having considered the various assertions of the husband, the trial judge recorded that there was “no evidence of documents being destroyed”, and explained that the assertion that the wife and her solicitor had not made full and frank disclosure was “dealt with in terms of the substantive reasons”. Thus, his Honour dismissed this part of the application.
Regarding orders 2, 3 and 4, his Honour noted that the orders appeared “to be together as a holistic order” and reflected the husband’s argument in the stay application that “the moneys that had been paid to [the wife’s solicitor] during the course of the earlier proceedings and that the proceeds of the sale of the former matrimonial home be put into a trust fund pending the outcome of the appeal”. His Honour explained that he had made “findings in relation to those funds in [his] substantive reasons” and had declined to make the orders sought in the stay application. As no change in circumstances had arisen since the stay application, his Honour declined to make these orders.
In order 5 the husband sought an injunction prohibiting the wife from “selling, transferring or disposing of any property in her name or her partner’s name or [joint names]”. The husband argued that this was “an application against the wife’s partner”. His Honour noted that “there [was] no evidence in the affidavits, either the May affidavit or the July affidavit, upon which such an injunction could be based pending the outcome of the appeal” and given his findings “in relation to the disposal of the funds”. In light of this, his Honour refused to make this order.
The husband also sought an order that the wife “be restricted from redeeming any United States savings bonds purchased by [the husband]”. However, his Honour declined to make this order “given the lack of evidence in respect of this application”. Though the husband asserted that he had a letter “from the American authorities in relation to the bonds, which [the husband] said he thought was dated July or August 2015”, as this letter was not attached to any affidavit or made available to the wife, his Honour found that the “application must fail” (at [16]).
Order 7 sought costs. The trial judge noted that any costs order “must await the determination by the Full Court” or “any special leave application to the High Court”. In any case, his Honour opined that the question of costs had been “dealt with in [his] order of 1 May and [his] order of 10 February” (at [17]).
Regarding the order sought by the husband that the wife and/or her solicitor “pay a bond of $700,000 pending the finalisation of the appeal to the Full Court and, if required, the appeal to the High Court”, his Honour found that there was “no evidentiary basis upon which that bond could be made against the wife, nor, if she were joined to the proceedings, could it have been made against the wife’s solicitor given the findings of fact made by [his Honour] in the substantive proceedings” (at [18]).
Grounds of Appeal
SOA 16/2015
In his Amended Notice of Appeal filed on 12 August 2015, the appellant husband’s grounds of appeal were as follows:
1.His Honour erred in “order to trim its function” allowed the husband’s legal personal representative to compromised, provide inadequate, and prejudicially influenced representation absent the required standard of competence and diligence one should expect from a legal practitioner which resulted into procedural unfairness and a miscarriage of justice.
2.His Honour erred, to the detriment of the husband to allow the trial to proceed, in absence of trial books and an adequate case outline(s) provided on the date of trial in complete disregard with his Honour 24 June 2014 case management order.
3.In absent of advance trial books, case outline and full and frank discovery the appellant was denied procedural fairness.
4.His Honour erred in principle by proceeding to trial absent appellant being provided advance knowledge of the wife’s case. And without full an frank disclosure and compliance with Stanford, the s79 orders were not orders that were just and equitable.
5.His honour discretionary decision miscarried in relation to assessment of factors relevant pursuant to s.75(2)Family Law Act.
6.His Honour erred through miscalculations and by giving considerable weight to contributions of the respondent’s despite the lack of and/or limited evidence before his Honour.
7.His Honour erred by failing to add back monies the respondent’s solicitor seized from the appellant Commonwealth Bank /account in excess of $80,000.00, and other post-separation assets distributed pursuant to orders that appointed the litigation guardian.
8.His Honour failed to adhere to Guidelines of the Full Court of the Family Court as described and determined in Johnson v Johnson (1997) FLC 92-764; (1997) 22 Fam LR 141
9.His Honur biases and prejudices were demonstrated so vividly that his Honour could not possibly arrive at a conclusion that they were jusu and equitable.
10.That the orders embodied in his Honour’s Reason for Judgment were contrary to the evidence before him and even in absence of respondent full and frank disclosure his Honour’s conclusion and assessment of contributions and adjustments arising pursuant to s79(4)(e) was plainly wrong and manifestly unjust.
11.The appellant dispute facts as alleged by his Honour’s Reason for Judgment
12.His Honour erred in His Honour’s consideration, determination, and conclusion that s79 of contribution based upon the wife’s incomplete evidence, factors of support rendered throughout the years, to include child support and findings of fact not based upon evidence miscarried.
(errors and omissions as per original)
SOA 66/2015
In his Notice of Appeal filed on 7 September 2015, the husband’s grounds of appeal were as follows:
1.His Honour erred through failure to properly give consideration to join the ex-wife’s solicitor Catherine Hicks in the proceedings for purposes of adding backs and/or accounting for in excess on $550,000.00 which resulted from permission of the alleged litigation guardian for the solicitor to remove in excess of $81,000.00 from the appellant’s Australian Bank Accounts, over $35,000.00 deposited into the ex-wife’s bank accounts and the illegal sale of the appellant’s house in January 2013h.
2.His Honour erred by failing to give proper consideration and to ensure that the ex-wife be prohibited from selling, transferring, or deposing of any property or properties in her name, her partner’s name are in their joint names from the date of the Court order pending final disposition of the case in the family court and/or by way of Special Application for Leave to Appeal to the High Court.
3.His Honour erred through failure to give proper consideration and issue an order that prevented the ex-wife from redeeming any United States Saving Bond purchased by the appellant in either her name or the appellant’s name pending final disposition of the case.
4.His Honour erred by refusing to give proper consideration to and to issue an order to ensure that the ex-wife and her solicitor should be ordered to maintain all relevant records from 2005, pursuant to past discovery prior to appointment of the litigation guardian.
5.His Honour erred by failing to give proper consideration to the application and to order the ex-wife and her solicitor to post a bond of $700,000.00 pending finalization of the Notice of Appeal to the Full court of the Family Court and/or Special Application for Leave to Appeal to the High court.
6.His Honour erred, both prejudicially and discriminatory by allowing the ex-wife to make submission in absence of filing a response to the application.
7.His Honour erred, both prejudicially and discriminatorily, by his Honour’s failure to provide a timely reasons for judgment for dismissal of the application on 12 August 2015.
(errors and omissions as per original)
As discussed earlier, the husband requires leave to appeal here. However, we confirm that in the absence of any facts pleaded by him in support of such an application, we propose to proceed on the basis that the grounds of appeal provide the basis for leave to be granted. In other words, we will consider the merits of the grounds of appeal in addressing the issue of whether leave should be granted.
Discussion
SOA 16 of 2015 – Property settlement
Ground 1
This ground is unintelligible, and the husband’s summary of argument does not necessarily assist. However, doing the best that we can, it seems that the husband is complaining that the trial judge allowed the husband to be represented by an incompetent legal practitioner, and that resulted in procedural unfairness and a miscarriage of justice.
From the record generally, it seems that in the immediate lead-up to the trial, and at the commencement of the trial, the husband was represented by one Gregory James Finlayson. We note though that at the directions hearing before his Honour on 24 June 2015 when orders were made to complete the preparation of the matter for trial, a Mr Wabnitz appeared for the husband, but he ceased to act on 26 August 2014 and the husband then instructed Mr Finlayson.
In any event, the trial commenced before his Honour on 15 September 2014 with Mr Finlayson appearing for the husband. However, immediately after the luncheon adjournment Mr Finlayson announced that the husband had indicated he wished “to proceed unrepresented”, and Mr Finlayson sought leave to withdraw (Transcript 15.9.14, page 37, lines 9 – 10).
His Honour gave Mr Finlayson leave to withdraw, and the husband thereafter appeared without legal representation.
Importantly, there was no application by the husband at that time, for example, to adjourn the matter to enable him to obtain alternate legal representation. It is readily apparent that the husband was content to proceed with the hearing albeit without that representation.
In these circumstances it has not been demonstrated that his Honour has erred either in the appellate sense or indeed at all. Legal representation is essentially a matter between the party and his or her lawyer, and a trial judge is not responsible for the competence, expertise or diligence of a legal practitioner. Further, if a party dispenses with the services of his or her legal practitioner, and proceeds with the matter without legal representation, that does not reveal a lack of procedural fairness by the trial judge, or result in a miscarriage of justice that can be laid at the feet of the trial judge, such that there is appealable error.
It is the case that in some circumstances an appellate court will allow an appeal on account of the incompetence of a legal practitioner resulting in a miscarriage of justice.
There are two such circumstances recognised in the authorities, and they are best described by the Full Court in OP v TP & Anor(Conduct of Counsel) (2003) 30 FamLR 281 as follows:
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
Plainly, the first circumstance does not apply here; although not necessarily limited to criminal and child protection cases, there is simply no evidence to demonstrate that the trial ceased to be a fair trial as a result of any incompetence of the husband’s solicitors.
It is also relevant to note that what the Full Court said in that case was in the context of the court recognising that there was a distinction between property matters and cases involving children. In that regard the Full Court said this (at [121]):
…We think that a clear distinction must be drawn between the two. We would class property cases as classic adversary cases where the results of a miscarriage of justice are not as serious from a community point of view as criminal cases or those involving children…
In short, in property cases a client is normally bound by the actions of his or her counsel. We consider that this is the case here, but if we are wrong about that we need to address the second circumstance identified by the Full Court.
As can be seen, first the appellant must establish that the actions, conduct or decisions of the legal practitioner were wrong or incompetent. In that regard, in his Amended Notice of Appeal the husband provides a chronology of the interaction between himself and his solicitors, including what he asserts they omitted to do, and what they did incompetently. This of course is not evidence as such, but in any event, we are not persuaded that these assertions establish that the solicitors acted incompetently. There is simply insufficient there to allow us to make that finding. However, assuming for the moment that the actions were incompetent there is no basis on which we can be satisfied that but for that incompetence, the result of the proceedings would have been different.
In his written summary of argument the husband appears to allege that the “pre-trial omissions” of his lawyers were so “perverse and deficient” that there had to be some sort of conspiracy between those lawyers and the opposing solicitor. However, there is no evidence that this was the case, and it is mere supposition which provides no basis for appellate interference.
There is also a suggestion that his Honour overlooked the husband’s solicitor’s failure to comply with the orders made on 24 June 2014 to complete the preparation of the matter for hearing, and that that “resulted in an unfair trial and miscarriage of justice”. There were omissions in the compliance of the parties with that order, and for example, the husband’s solicitor had not completed his case outline by the time of the commencement of the hearing. Despite this, his Honour proceeded with the trial but required a case outline to be presented during the course of the hearing. As recorded in his Honour’s reasons for judgment (at [14] – [19]) the husband obfuscated and prevaricated about providing this, but ultimately the husband made his Honour aware of the orders that he was seeking, and the week after the evidence concluded and just before final submissions commenced, the husband produced a written case outline. However, this cannot be said to have resulted in an unfair trial, or a miscarriage of justice. Indeed, it was open to the wife to complain about this and plainly not the husband.
We find that this ground of appeal has no merit.
Ground 2
This ground raises similar issues to the first ground, and must suffer the same fate, namely a finding of a lack of any merit.
The husband complains that his Honour allowed the trial to proceed “in absent of trial books”. Presumably, the husband is referring to the order made on 24 June 2014 that “[e]ach party prepare a tender book of all the documentary material they seek to tender.” It is not apparent from the record that that order was complied with by the husband, but it was complied with by the wife, although she omitted to paginate the book. Thus, far from the husband having any issue to complain about, again it was the wife who had cause to complain.
The husband also complains about a lack of discovery by the other side. This is the subject of Ground 3, and we will leave a fuller discussion about that topic for when we address that ground in these reasons, but for now, we observe that this was a live issue before his Honour, and his Honour found that the wife had made full and frank disclosure. Further, it has not been demonstrated that his Honour erred in making that finding.
In any event, to return to the specifics of the ground of appeal, it is readily apparent that the lack of a tender book by the husband (if that was the case), did not result in either a lack of procedural fairness, or a miscarriage of justice, and his Honour was not in error in allowing the trial to proceed in those circumstances. His Honour still had available to him all of the documents relied on by the husband.
Again, we observe that in his Amended Notice of Appeal the husband has inserted a number of paragraphs under the ground of appeal. In this instance, the contents of many of those paragraphs has no relevance whatsoever to the ground of appeal, and indeed range far and wide beyond that ground. Further, others of those paragraphs are unintelligible and yet others fail to reveal any error by the trial judge. In these circumstances we have had no regard to any of these paragraphs.
Ground 3
As can be seen this ground raises similar issues to Grounds 1 and 2, but here the principal complaint is that the respondent failed to provide “full and frank discovery”.
First, we observe that the written summary of the husband in support of this ground is exceedingly difficult to follow and frankly it does not assist this court in properly understanding the husband’s complaint. Likewise, and similar to what the husband had presented in relation to Grounds 1 and 2, the further information included in the Amended Notice of Appeal was irrelevant, contained many incorrect assertions and assumptions, and failed to demonstrate any appealable error by the trial judge.
In any event, as to the issue of discovery, that was a matter squarely raised by the husband before his Honour. As his Honour said:
108.The husband made numerous complaints that the wife and her solicitor had failed to discover relevant documents. This complaint was persistently made by him throughout the hearing.
109.In terms of his assertion that he did not have the discovered documents this was unmeritorious and for the reasons set out, I find that the husband’s behaviour in relation to such complaints about discovery was untrue, calculated and mischievous.
It is also useful to set out in full his Honour’s assessment of the evidence of the wife’s solicitor Mrs Hicks, because that evidence addressed this topic. His Honour said this:
168.Mrs Hicks is the wife’s solicitor and has acted for the wife since mid-2007. Evidence was given by Mrs Hicks given the complaints by the husband and, earlier, his solicitor that the wife had not provided full and proper discovery to the husband.
169.The Mrs Hicks said that the wife had made full discovery by serving four volumes of documents (this subsequently became Exhibit W11) on the husband prior to May 2013. The husband said he had not received any such documents and denied the existence of those documents.
170.Mrs Hicks gave evidence that she filed two affidavits on 20 May 2013 where she had bundled the wife’s discovered documents into four folders (volumes 1 to 4) and attached it to an affidavit. She said that these documents were identical with Exhibit W11.
171.Mrs Hicks said that she had received a bundle of the husband’s documents which were disorganised. It was asserted that the bundle was put in logical order and then bound. The husband disputed that he had those documents and said that they were not provided to him. Mrs Hicks said she filed an affidavit with the husband’s documents, which she had reorganised. These were bundled into three volumes and are Exhibit W10.
172.The evidence of Mrs Hicks was that she served all of the documents contained in Exhibits W10 and W11 on the husband prior to the filing of her affidavits. She then bundled the documents into the bundles referred to in Exhibits W10 and W11 and they were served on the husband by courier on or after 20 May 2013.
173.Mrs Hicks gave evidence that the four folders, being a copy of Exhibit W11, were in the husband’s possession and he brought them out from time to time during the course of the trial.
174.Mrs Hicks said that the husband asserted that he had never been served with W10 and so she arranged for a further bundle of those documents to be made available to the husband on day two of the trial.
175.The husband was given the opportunity of cross-examining Mrs Hicks in relation to those assertions. Mrs Hicks was not in any way shaken in cross-examination.
176.Mrs Hicks said that there was a long history of the husband asserting he had not received documents.
177.I am satisfied that the husband has had available to him since May 2013 the wife’s discovered documents contained in Exhibit W11 and the re-organised bundle of his documents contained in Exhibit W10.
178.Mrs Hicks gave evidence that further documents were discovered by the wife and were contained in the material given to the husband and/or his legal representatives in or about August 2014.
179.I find that Mrs Hicks was frank and accurate in her evidence. I accept the veracity of her evidence.
Then, when discussing the evidence of the husband his Honour relevantly said this:
196.As I said earlier, the husband complained throughout the trial that the wife had not made full and frank disclosure. Apart from denial he could not explain the evidence of Mrs Hicks or the wife as to discovery. I observed him, from time to time referring to and looking at the very bundles which he at other times denied having in his possession.
Far from there being any issue about the wife’s disclosure, as his Honour emphasised in his reasons, it was the husband’s disclosure which was inadequate. His Honour said this about the issue of discovery:
224.As I have said, the husband asserted over and over again that there had been inadequate discovery by the wife.
225.I accept counsel for the wife’s submission that since separation the husband has avoided disclosure of his finances and was secretive. He was secretive of his finances during the course of the marriage and I accept the evidence of the wife to that extent.
226.I also accept counsel’s submission that in his evidence the husband prevaricated and obfuscated and did not make full and frank disclosure. I have provided examples of this elsewhere in these reasons.
227.On at least one occasion during the hearing, the husband complained that he did not have Exhibit W11 and then he then subsequently produced the missing bundle from his material. On another occasion he asserted that the documents he had were not tabulated. I accept the evidence of Mrs Hicks that they were tabulated when given to him.
228.The behaviour of the husband in denying that he had not received or seen the discovered documents at times bordered on the bizarre. Given the evidence and my observation of the husband, I conclude that he was both manipulative and mendacious.
229.He often denied he had these documents and yet during his examination of the wife, he obviously made use of them. From time to time I reminded him that parts of that material was in plain sight in front of him.
230.Given the evidence of the wife, Mrs Hicks, and the material contained in the application in a case and affidavit both filed on 6 August 2012, I accept that the wife has made full discovery.
231.The husband asserted the wife hid resources and assets. He asserted that she had bonds in her name. There was no cogent evidence produced to the Court to support that contention.
232.These parties have been seven years in litigation. The husband endeavoured to complain that this was material that he provided to the case guardian, others and solicitors and endeavoured to deflect the blame to them.
233.The false assertions made by the husband as to non-provision of documents has put the wife and the Court to trouble and expense.
It has not been demonstrated that his Honour erred in these findings, and plainly there is no merit in this ground of appeal.
Ground 4
This ground provides yet another example of the husband making a groundless allegation.
It was the wife who complied with the order for the filing of a case outline before the commencement of the trial, setting out, inter alia, the orders that she was seeking. Thus it is disingenuous to say the least, for the husband to suggest that his Honour erred by proceeding with the trial without the husband knowing the wife’s case. Indeed, it was the husband who failed to inform the court or the wife of the orders that he sought until some way into the hearing, and who obfuscated and prevaricated before finally, after the evidence had concluded, presented a case outline.
We do not understand the complaint the husband makes in the second sentence of this ground, but suffice to say his Honour found that he was the one who failed to provide full and frank disclosure.
As much as we can understand the husband's written summary of argument in support of this ground, he complains of "bias and partiality". However, it is not open to the husband to raise that as a complaint on appeal, when it was not raised at the time with the trial judge (Vakauta v Kelly (1989) 167 CLR 568, at page 572). Of course, there are no details provided by the husband as to this complaint, and all that emerges from the transcript of the hearing before his Honour is that, at various stages the husband alleged that he was being "prejudiced", or that what the trial judge said was "prejudicial", but no direct allegation of bias was made, and certainly there was no application for the trial judge to disqualify himself.
The husband also seems to suggest that his Honour disregarded the need to apply s 79(2) of the Act, and failed to take into account the matters in s 79(4) of the Act, but again that is simply a distortion of what his Honour in fact did, as can be seen from the summary of his Honour’s reasons for judgment set out above, and we reject these claims.
As with the previous grounds of appeal, the further detail presented by the husband in the Amended Notice of Appeal does not assist in demonstrating error by the trial judge as alleged in this ground, or indeed at all. Initially the husband seems to suggest that his Honour failed to consider whether it was just and equitable for orders to be made. However, his Honour was well aware of the principles emanating from the High Court decision in Stanford v Stanford (2012) 247 CLR 108, and applied them. In any event, it does not behove the husband to suggest it was not just and equitable to make orders for property settlement when he was also seeking property settlement orders from the court.
Beyond that the husband presents a rambling diatribe making outrageous allegations against the trial judge, and again ranging far and wide with assertions that are entirely irrelevant to the ground of appeal.
There is no merit in this ground.
Ground 5
Although the topic of this challenge is his Honour’s assessment of the relevant factors pursuant to s 75(2) of the Act, in the further paragraphs inserted by the husband in the Amended Notice of Appeal, he confuses contribution issues with s 75(2) factors.
Then there is the husband’s written summary of argument, and there the husband changes the topic of the ground to s 79(2) of the Act, rather than s 75(2) of the Act. Apart from that confusion, the summary this time traverses largely irrelevant issues such as the date of separation, and again, issues as to contribution, and even issues as to the competence of his solicitor. Issues as to liabilities (e.g., the tax on his United States bonds) and costs also get a mention in this rambling and entirely unhelpful submission.
As to what is relevant to this ground, it is readily apparent that his Honour took into account all relevant factors pursuant to s 75(2) of the Act, (e.g., see [425] – [439]) including the ages and the health of both of the parties, their respective capacities for gainful employment, and their property and financial resources. No error has been demonstrated by the trial judge in his consideration of these and other relevant factors.
Ground 6
This ground suffers from the defect that it comprises general assertions without any specificity. Again, neither the husband’s summary of argument nor the further detail included in the Amended Notice of Appeal overcomes this deficiency. The summary of argument ranges from a suggestion that the trial judge was biased, and curiously, lacked “preparation and evidence”, to a claim that the trial judge failed to take into account “the respondent’s partner as a financial resource for her” and “failed to consider the respondent’s superannuation as a financial resource to include in total of assets”.
First, as we have noted in these reasons previously, it is not open to the husband to now raise a claim that the trial judge was biased when he failed to raise that at the relevant time during the trial (Vakauta v Kelly); secondly, putting aside that in the way it is framed it is not a claim that can be made in any event, there is no basis on the evidence to find that the wife’s partner was a “financial resource” to her; and thirdly, his Honour included the wife’s superannuation in the property pool.
We also point out that the summary of argument fails to identify the “miscalculations” allegedly made by the trial judge. In the Amended Notice of Appeal it seems to be related to the trial judge’s assessment of monies available through the United States bonds, but it is still not explained what the “miscalculations” are.
The ground itself also claims that the trial judge erred “by giving considerable weight to contributions of the respondent’s despite the lack of and/or limited evidence before his Honour.” However, nothing could be further from the truth; his Honour had ample evidence before him to make the findings on contributions that he did, and he dealt extensively with that evidence in his reasons for judgment ([336] – [424]).
There is no merit in this ground of appeal.
Ground 7
Here the husband challenges the trial judge’s decision to refuse to notionally add-back certain monies to the pool of assets. However, the husband’s summary of argument simply raises again his concerns about the alleged incompetence of his solicitors and makes further outlandish comments about the court alleging he has been “racially excluded from principles of law and the Universal Declaration Rights.” Looking though at the further detail presented in the Amended Notice of Appeal, his reasons for this challenge are no more than that he disagrees with the decision. That of course does not provide a proper basis to demonstrate appellate error, and thus, even with these reasons, the husband cannot succeed in relation to this challenge.
For the sake of completeness, we observe that his Honour dealt with the issue of add-backs comprehensively, commencing at [288] of his reasons for judgment, and it has not been demonstrated that his Honour was plainly wrong in the decision that he arrived at in the exercise of his discretion.
This ground of appeal has no merit.
Ground 8
There are two major difficulties with this ground. First, the so-called “guidelines” set out in Johnson v Johnson (1997) FLC 92-764 were subsequently refined, modified and discussed at length in the Full Court decision that is usually referred to in this context, namely Re F: Litigants in Person Guidelines (2001) FLC 93-072. However, it has long been recognised that they are just guidelines and they are not, for example, principles which if not followed or applied can necessarily lead to appellate interference. Indeed, the Full Court said this in Re F : Litigants in Person Guidelines at [230]:
We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
Secondly, and in any event, the husband has not identified in what way his Honour “failed to adhere” to the guidelines.
The presence of these two difficulties results in there being no merit in this ground of appeal.
Ground 9
The first point to make here is one that we have made earlier in these reasons for judgment, namely that where a litigant fails to raise allegations of bias with the trial judge at the time when a basis for that claim arises, it is not possible to complain about that for the first time on appeal (Vakauta v Kelly).
We observe that what emerges from the husband’s summary of argument is an allegation that his Honour’s “demeanour” demonstrated his “prejudices”, and in particular his support of the wife’s position during the trial. Further, it is said that his Honour “yell[ed] in a loud tone of voice”. Immediately, it can be seen how unless these matters are raised at the time before the trial judge, it is impossible for an Appeal Court to meaningfully address such claims after the event.
Secondly, it is open to a litigant to complain that a trial judge has demonstrated bias in the reasons for judgment. However, to succeed in such a claim far more has to be shown for example than that the trial judge accepted the evidence of one party and rejected the evidence of the other party, or that the trial judge made a finding that the party complaining does not like, or does not accept. Plainly that is the tenor of the husband’s complaints here, and they cannot succeed.
Curiously the husband appears to suggest here that the reasons for judgment were in fact drafted by the wife’s solicitor/counsel, and presumably that provided the basis for many of his complaints about his Honour’s findings. However, there is no basis for making this bizarre suggestion, and we reject it out of hand.
We also observe that in the detail presented in the Amended Notice of Appeal the husband again ranges far and wide in his assertions, all of which are simply not correct. For example, he repeats his disingenuous claim of a lack of full and frank disclosure by the wife, and his view that the trial judge encouraged the “substandard performance” of his solicitors and failed to hold them “accountable”.
Finally, without any foundation, the husband gratuitously threw into the discussion the claim that “[t]here is a co-ordinated effort within the Family Court and other entities to deny procedural fairness and natural justice”. We do not propose to say anything about this absurd notion beyond our rejection of it.
There is no merit in this ground of appeal.
Ground 10
This ground is comprised of entirely general assertions without any specificity, and the further detail presented in the Amended Notice of Appeal does not overcome that deficiency. For example, there the husband again complains of “his Honour’s attitude and biases … by yelling in a loud tone of voice coupled with an ongoing conspiracy to undermine and deny the [husband] procedural fairness.” The alleged lack of discovery is raised again, and the claim that the wife’s solicitor and/or counsel drafted the reasons for judgment. A new claim though is that “[t]he transcript of the proceedings is questionable”, but how that demonstrates error by the trial judge is impossible to understand. Thus, as can be seen, there is nothing that goes to the ground of appeal.
As for the husband’s summary of argument, that is unintelligible and plainly does not allow any, or any proper, consideration of the ground.
In any event, having carefully read his Honour’s reasons for judgment, and taking into account what appears from the record generally, we are neither persuaded that the orders made by his Honour “were contrary to the evidence”, nor that “his Honour’s conclusion and assessment of contributions and adjustments arising pursuant to s 79(4)(e) was plainly wrong and manifestly unjust”.
There is no merit in this ground of appeal
Ground 11
As can be seen, in this ground the husband disputes facts as found by his Honour, and in the further detail presented in his Amended Notice of Appeal the husband provides a list spread over seven pages of the factual findings by his Honour that he disputes.
As far as the summary of argument is concerned, importantly nothing is put in that summary in support of this ground beyond a three line assertion that is entirely unclear.
As expressed earlier in these reasons it is not a proper basis for a challenge to merely comprise an indication of what findings by the trial judge are disputed. I There is no suggestion of error by the trial judge beyond the implication that the trial judge was wrong in accepting the evidence of the wife and rejecting the evidence of the husband. For example, there is no analysis of the evidence to demonstrate why his Honour was wrong in making the findings that he did.
Again, there is no merit in this ground of appeal.
Ground 12
This ground is unintelligible, and there is nothing in the husband’s summary of argument to overcome this deficiency.
With the further detail presented in the Amended Notice of Appeal, that ranges from assertions that the trial judge “failed to consider and divide known assets according to assets acquired prior to marriage, during marriage, and dated of separation”, and “failed to separate the husband’s [government agency] pension” to his Honour’s failure to “add-back monies” from the sale of the house and “to add-back loss income from rent”.
As to the latter issues, they have been dealt with already, and with the former, his Honour was careful to identify when property and financial resources were acquired and take that into account.
There is no merit in this ground of appeal.
SOA 66 of 2015 – Application in a Case filed 21 July 2015
It is readily apparent that many of the orders sought by the husband in this application had not only been addressed by his Honour in his substantive reasons for judgment, but also by his Honour when dealing with an application filed by the husband seeking a stay of the orders his Honour made on 10 February 2015. Thus, in relation to those matters, it was not open to the husband to seek to revisit them, and his Honour dealt with them accordingly. That circumstance also renders incompetent any application for leave to appeal against the order his Honour made. Nevertheless, we propose to address each of the grounds of appeal seriatim, including those in relation to orders in the category just referred to.
Ground 1
This ground is directed to the second order sought by the husband in his application.
As his Honour explained in his reasons for judgment (for example at [14]), the issue of add-backs had been comprehensively dealt with by his Honour in his substantive reasons for judgment, and plainly there was no basis on which that issue could be re-visited (outside of an appeal) by joining the wife’s solicitor to the proceedings. Indeed, the application to that effect by the husband was misconceived and was always bound to fail.
Moreover, as his Honour said in [14], that was an issue that had been raised with him previously in the context of an application for a stay, and his Honour had “declined to make the order”, and nothing new had arisen since then to justify the further application.
We also observe that in the husband’s summary of argument the submissions in apparent support of this ground of appeal took up to six pages. However, none of what the husband there put assists him in any way in establishing merit in this ground of appeal.
Ground 2
This ground is directed to the fifth order sought by the husband in his application.
His Honour found that there was no evidence in any of the affidavits before him to justify making the injunction sought by the husband pending the outcome of the husband’s appeal. For example, there was no evidence to suggest that the wife was intending to dispose of property in her name, her partner’s name, or in joint names. Moreover, even if the wife had such an intention, his Honour found, correctly in our view, that the husband had not made out a case to prevent the wife from doing that.
There is then nothing put by the husband in his summary of argument that explains how his Honour has erred in his refusal to grant the injunction. Indeed, his summary of argument fails to address the ground of appeal, and raises entirely irrelevant matters.
There is no merit in this ground of appeal.
Ground 3
This ground is directed to the sixth order sought by the husband in his application.
Again, his Honour found that there was no evidence before him which would justify the making of such an injunction, and having perused the husband’s affidavits, we agree with that finding by his Honour. There was simply no basis on which the injunction could be granted, and there was nothing put by the husband in his summary or argument in support of this ground which persuades us that his Honour has erred.
There is no merit in this ground of appeal.
Ground 4
This ground is directed to the eighth order sought by the husband in his application.
In support of this ground the husband in his summary of argument again raises the complaint that the wife failed to provide “full and frank disclosure”. However, the short answer to this claim is that his Honour dealt with this issue comprehensively in his substantive reasons for judgment, and in the appeal against the orders there made by his Honour, where this is a ground of appeal, we have found no error by his Honour.
In addressing the orders sought by the husband in his application, his Honour appropriately referred to his extensive findings as to the issue of discovery in his substantive reasons, but his primary reason for refusing to make the order was again a lack of evidence presented by the husband. In other words, there was no evidence of any documents being destroyed.
Again, we can find no error by his Honour in refusing to make the order sought, and there is no merit in this ground of appeal.
Ground 5
This ground is directed to the ninth order sought by the husband in his application.
First, we fail to see on what basis the husband could seek a bond from the wife’s solicitor; it could only happen if the solicitor was joined as a party, but his Honour refused to do that.
Secondly, given there is no application for special leave to appeal to the High Court of Australia, it would not be open to the trial judge to make the order pending finalisation of such an application.
In any event, his Honour again refused to make the order on the basis of a lack of evidence by the husband. There was simply no justification for such an order to be made, and we can find no error by the trial judge in how he dealt with it.
In his summary of argument the husband cited the principles that arise when considering costs orders and orders for security for costs, but of course, without an evidentiary basis for such an order, those principles cannot be applied.
There is no merit in this ground of appeal.
Ground 6
This is a specious ground of appeal. There was no doubt that the wife opposed the order, and it was unnecessary for her to file a formal response prior to being permitted to make a submission to the court.
There is no merit in this ground of appeal
Ground 7
We fail to understand this ground of appeal. His Honour delivered ex tempore reasons for judgment on the day that the application was heard. Thus there has been no failure by his Honour “to provide timely reasons for judgment”.
In the brief summary of argument in support of this ground it seems that the husband complains not of a timely delivery of reasons, but of a lack of adequate reasons. That of course is not a ground of appeal, but for completeness, we are satisfied that his Honour has provided adequate reasons for his decision to dismiss the husband’s application.
Application in an Appeal
On 3 October 2015 the husband sought to file an application in an appeal and supporting affidavit in SOA 16/2015 seeking to adduce further evidence “based upon the lack of or inadequate legal counsel or legal advice, the timely submissions of trial book and a prepared case outline identifying the parties assets to be decided pursuant to s79 of the family law act”.
This application was not secured or fastened and only one copy was provided to the Appeal Registry. Further, as the application was not received by the Appeal Registry within the time limit provided in r 22.39 of the Family Law Rules 2004 (Cth) the Appeal Registrar informed the husband that the application had not been accepted for filing and that he would have to seek leave from the court at the appeal hearing if he wished to rely upon it.
At the hearing of the appeal the husband sought leave to rely upon that application. However, we indicated to the husband that we were not prepared to permit this application to proceed as he had had every opportunity to file the application at an earlier date. Thus, we refused to receive it.
Conclusion
Having found no merit in any of the grounds of appeal in appeal SOA 16/2015, that appeal must be dismissed.
Then, having found no merit in any of the grounds of appeal in SOA 66/2015, leave to appeal must be refused.
Costs
At the conclusion of the hearing we sought submissions from the parties as to the question of costs, depending on the result of the appeal, and the application for leave to appeal. In the event that both were dismissed the wife indicated that she had not incurred any legal costs or disbursements, and thus she did not seek an order for costs. Accordingly, we do not propose to make any order for costs.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Aldridge JJ) delivered on 9 August 2016.
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