GA & VA

[2005] FamCA 557

[2005] FamCA 557

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal No. SA53 of 2003
  File No. MLF6160 of 2001

IN THE MATTER OF:

GA

Appellant

- and -

VA

Respondent

REASONS FOR JUDGMENT

BEFORE:                  Holden, Warnick & O’Ryan JJ
HEARD:  24th day of June 2004
JUDGMENT:           21^st day of April 2005

APPEALS – Property settlement
COSTS – Indemnity costs.

1. This is an appeal by the husband acting in person against orders made by Guest J on 1 October 2003 with respect to settlement of property.  The orders were reasonably extensive and may be summarised as follows:

   (a)the husband to pay the wife the sum of $155,000 on or before 1 December 2003;

   (b)that contemporaneously the wife transfer to the husband all of her right, title and interest in the real property located and known as PR property;

   (c)that in the event that the husband did not make payment by the due date, the home be sold;  and

   (d)that in accordance with s 90MT(1a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interests of the husband and the whole employees' superannuation fund, the wife be entitled to be paid an amount calculated in accordance with part 6 of the Family Law Superannuation Regulations 2001 using a base amount of $100,000 and there is a corresponding reduction in the entitlement the husband would have received but for the orders.

Background

1. The parties were married in June 1976 in Vienna.  The husband was born in February 1944 and the wife in October 1945.  They commenced cohabitation upon their marriage and separated in August 2001.  There was one child of the marriage, a son, C, who was born in March 1977. 

2. The matter had come before Dessau J in December 2002 and an order was made giving the Office of Public Advocate time to make an application for the appointment of a next friend pursuant to O.15 r 14.  The matter was then referred to the Victorian Civil and Administrative Appeals Tribunal ("VCAT") and in August 2003 the Tribunal ordered that State Trustees Ltd be appointed administrator of the estate of the appellant for the primary purpose of conducting these proceedings in the Family Court.  The appellant appealed the decision of the VCAT and was unsuccessful in that appeal, the appointment being affirmed by Judge Bowman, Vice-President of the VCAT on September 2004. 

3. We were advised by counsel for the wife that the VCAT revoked the order in March 2004.  It is therefore unnecessary for us to consider the status of the appellant husband to commence the appeal proceedings and to continue them as foreshadowed in the reasons for judgment of the Full Court, dated February 2004.

4. State Trustees Ltd was represented at trial by counsel.  Counsel appeared on behalf of the respondent wife.  The orders made by his Honour in October 2003 were made by consent.

5. His Honour noted that notwithstanding the orders were being made by consent the proposed orders were subject to his being satisfied that they were in the circumstances just and equitable.

6. In making the orders that he did, his Honour had regard to the affidavit of evidence of the wife and the affidavit of her daughter.  He read the wife's Statement of Financial Circumstances and an affidavit of MH dealing with superannuation issues.  MH had valued the husband's superannuation interests.  He also had the advantage of reading an affidavit sworn by JW, a senior financial consultant with State Trustee Ltd and who set out his investigation and views concerning the assets of the parties both at the time of separation and as at the date of trial.

7. Having set out all of the material upon which he relied, his Honour went on to say:

   “6.The rationale for the overall adjustment has been explained by [counsel for the wife] and I may, in summary refer to it as follows.  The agreed valuation to the former matrimonial home is $260,000.  It is a fact that the husband has had the advantage of joint funds, in the sum of approximately $96,000, since the time of separation.  That is asserted by the wife and accepted in the affidavit of [JW].  I am further satisfied as to the husband’s superannuation interests, which are detailed in the affidavit of [MH].  He has interests with General Motors-Holden and the Australia Preservation Fund which total $138,000.  Accordingly, taking into account the matrimonial home and the various funds, one arrives at a figure of $494,000.

   7.There are also two motor vehicles which have been disposed of by the husband.  He has retained the proceeds.  In so far as the value of those cars is concerned, resort has been had to the Glass Second-Hand Dealers’ Guide.  A fair adjustment has been made in averaging those sale proceeds at some $16,000.  Accordingly, the total assets before the court are, in round figures, $510,000.

   8.The orders provide that the husband pay to the wife the sum of $155,000 on or before 1 December 2003. That is the capital sum. It further provides for a flagging of $100,000 pursuant to the provisions of s 90MT(1A) of the Act, to be paid to the wife in accordance with Part VI of the Family Law Superannuation Regulations 2001. As I understand the submissions of [counsel for the wife], by reason of the wife’s circumstances she has ready access to that sum upon demand. Accordingly, the total entitlements to the wife on the facts and circumstances of this particular case have been agreed at $255,000. That is, one half of the assets of the parties for the purpose of consideration by the court.”

   …

   11.As I said, theirs has been a long union and they came to this country from a distant land.  They built up their property by their joint efforts, or put another way, by a community of efforts by each of them undertaking variously the traditional dichotomy of roles.  The wife’s contribution has been as a homemaker and parent, and there is no evidence contradicting in any manner whatsoever the contents of her Order 30 affidavit.  I have no doubt, by reason of what she asserts before me that her home duties were onerous and that she was principally involved in the maintenance of the home in addition to her efforts in the labour force and committing her wages to the community purse.  So too did their daughter [T] for a decade or thereabouts before she left the home in the circumstances described by her in her affidavit to which I have referred.  I have no doubt that the husband also worked extremely hard in this country, which was a land of opportunity for both of them.  The relationship soured with time by reason of circumstances that I do not wish to go into, but are clearly set out in the affidavit of the wife.

   12.I am quite satisfied that the orders sought to be made are just and equitable and sit comfortably within the range of those orders that should be made by this court.  I also add the following, however, and it is not in any way to be seen as critical of the wife, but more commendatory of her.  In my view, she has, as [counsel for the wife] pointed out in the course of his helpful explanation, accepted an amount that could be said to be less than that to which she is entitled.  That is her position and I can do no more than say that the orders proposed to be accepted by her are indicative of her conciliatory disposition and have come about through the helpful cooperation of counsel involved, both of whom have years of experience in this court.”

The Grounds of Appeal

1. It is not possible to set out the husband's grounds of appeal as the reality is that none exists.  The husband's Notice of Appeal to the Full Court was filed on October 2003.

2. As Justice Kay noted when making directions with respect to the appeal on October 2003, the Notice of Appeal was "unintelligible".  He granted the husband leave to amend the proposed Grounds of Appeal by filing and serving on or before April 2004 an amended Notice of Appeal.

3. Kay J said that he was not confident that the appellant would file an amended Notice of Appeal or that it would be any more intelligible than the original Notice of Appeal.  Regrettably for us, his forecast turned out to be correct.  The husband did file an amended Notice of Appeal which is no more intelligible than the first Notice of Appeal.  We are unable to glean any legitimate grounds of appeal from the amended Notice.

4. Our difficulty in identifying exactly what the husband is complaining of is compounded by the fact that the husband did not file a written summary of his argument.  Instead, he sought to rely upon a bundle of documents that he handed up at the commencement of the appeal and which included:

   (a)a deed where by the parties on behalf of C renounced the name A, in favour of CA, dated February 1982;

   (b)a document said to be an affidavit from his brother IA swearing that CA was not the biological son of the appellant;

   (c)a document addressed "to whom it may concern" dated March 2004, setting out a summary of his requests which stated as follows:

   "I wish that you would caveat any property belonging to [T] and [CA] as recompense for free food, lodgings and education provided by me from 18 years of age to 25 for [T] and 24 for [C].  Also as recompense for all the contents of the Mack truck paid by me but enjoyed by [C] and his cronies.

   I also wish that you would investigate options to counterclaim against the rather generous enrichment of my ex-wife, [V], at my considerable expense."

   he then went on to make various complaints under the heading "Background in Detail";

   (d)a letter to TW, apparently from the State Trustee Ltd. Office, dated September 2003 complaining about the way they handled his affairs.

5. None of the above documents assist us in identifying any proper grounds of appeal. 

6. Upon the hearing of the appeal, we adjourned to read the documentation that the appellant had given us and upon resumption, invited him to make any further submissions that he wished.  All he added was as follows:

   "I sent in an appeal because how I see, this case is very dishonest scam case and I want this case for any kind of settlement because they fight for property settlement, I fight for paternity settlement according to the law because I couldn't achieve nothing.  I want everything, all court order or decree to be discharged or to be dismissed."

7. Doing the best we can we summarise the appellant's complaint as follows:

   (a)the failure of Guest J to resolve the paternity issue with respect to C;

   (b)that the orders made by Guest J were unfair; and

   (c)that he was dissatisfied with the manner in which the Public Trustee handled his affairs.

8. The first issue can quickly be resolved.  The husband had made an application to have blood tests conducted with a view to determining issues of paternity of C.  In July 2003, Ramsden JR dismissed that application.  In July 2003, the husband filed an application seeking to review that order.  The application came before Guest J in October 2003 and was unsuccessful. 

9. The husband made an application for leave to appeal from that order of Guest J, which application was dismissed.  The dismissal of that application exhausted the husband's avenues of appeal under the Family Law Act 1975 and, as far as we are concerned, that is the end of the matter.

10. We now turn to the second of the matters identified above.  We repeat at the outset that the appellant has not identified any proper grounds of appeal and, in particular, does not identify where his Honour erred either in fact or law.  The appellant was properly and competently represented by counsel appointed by State Trustees Ltd.  A thorough and comprehensive review of the appellant's financial circumstances was carried out by State Trustees Ltd and in this regard we refer to the affidavit of JW, a financial consultant of State Trustees Ltd.  His Honour had before him proper valuations of the former matrimonial home and the husband's superannuation entitlements.

11. In the document addressed "To Whom it May Concern" in March 2004, the husband makes various complaints.  One is that he is "losing almost 70% of my cash and assets".  As has been pointed out by counsel for the respondent in his written submissions, in fact the consent orders between the parties provide for the assets to be divided equally between them.

12. On page 5 of that document, he asserts that "My wife [V] has not contributed anything remotely close to even 20% of the load in running my household".  Guest J made findings with respect to contributions as set out earlier in these reasons for judgment on the basis of the evidence before him.  He noted that the husband had refused to provide any evidence in chief by affidavit.

13. His final complaint relates to the State Trustees handling of the matter on his behalf.  He states that they "at worst deliberately obstructed me from looking after my own interests at all".  We agree with counsel for the respondent that this statement misconceived the role of the State Trustee.  In any event, from the evidence which Guest J had before him, it appears beyond doubt that the husband's interests were competently handled by the State Trustee and his counsel at trial.  If the husband is dissatisfied with the State Trustee that is a matter between him and the State Trustee and, in our view, is not a matter that has any bearing upon an appeal from the orders of Guest J.  We are of the view that the appeal is entirely without merit and accordingly we propose to dismiss it.

Costs

1. In the event that the appeal is dismissed the respondent sought that the appellant pay her costs of and incidental to defending the appeal on a solicitor/client basis.

2. We accept that indemnity costs are an exception in this and other jurisdictions; Kohan and Kohan (1993) FLC 92-340 and Colgate Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 22.

3. In Colgate Palmolive and Anor v Cussons ( supra) Sheppard J identified some of the circumstances which have been thought to warrant the exercise of discretion to award costs on an indemnity basis.  He said:

   “Some examples which may be of relevance to the present case are as follows:

   (a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.”

4. In our view, this appeal was commenced where the husband, if properly advised, should have known he had no chance of success.  Added to this is the fact that he was virtually warned of the prospect of success upon the directions hearing before Kay J on 14 April 2004.  In his reasons, given prior to making directions, his Honour said:

   "I have endeavoured as best I can, firstly, by cajoling, and ultimately by having to raise my voice - and that does not appear to have much success either – to explain to him that the issues involved require demonstrating where Guest J went wrong in respect of the property orders and that the other issues which would involve a complete re-examination of the entire history of the matter and a re-evaluation of all of the evidence given by everybody at all times are issues that are unlikely to excite the Court of Appeal.  I may as well have been speaking in an entirely foreign language, I suspect.”

5. In these circumstances we are of the view, that it is appropriate that the appellant pay the respondent’s costs on a solicitor and client basis.

6. Finally, for the sake of completeness, we observe that in the written argument the respondent seeks an order that we forthwith give effect to paragraph 4 of the consent orders made October 2003, by making an order that:

   (i)the former matrimonial home the PR property be forthwith transferred to the respondent to enable her to conduct the sale of the former matrimonial home in accordance with paragraph 4 of the said orders; and

   (ii)that the husband forthwith vacate the former matrimonial home in accordance with paragraph 4.

7. In our view, it would be inappropriate for us to make an order in those terms.  If the wife has to enforce the order of Guest J, she can do so at first instance.

Orders of the Court

1. That the appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal on a solicitor and client basis.

I certify that the preceding 28 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate