Garden & Gavin (No 2)
[2010] FamCAFC 125
•2 July 2010
FAMILY COURT OF AUSTRALIA
| GARDEN & GAVIN (NO. 2) | [2010] FamCAFC 125 |
| FAMILY LAW - APPEAL – PROPERTY – Appeal from the Family Court of Australia – Trial judge set aside consent orders – Exceptional circumstances – Change of children’s living arrangements from the wife’s care to the husband – Whether hardship established – Consent orders set aside and no final property orders made in lieu – Consideration of Simpson and Hamlin (1984) FLC 91-576 – Appeal allowed FAMILY LAW - APPEAL – NATURAL JUSTICE – Whether trial judge was biased – Where previous orders limited the material for trial – Whether the wife waived her right to appeal on the basis of bias – Wife self-represented – No denial of natural justice evident – Trial judge acceded to wife’s requests FAMILY LAW - APPEAL – PROPERTY – Appeal from the Federal Magistrates Court – Final property hearing nearly two years after consent orders set aside – Wife did not participate in hearing – Reliance on “kerbside” evaluation – Incorrect consideration of husband’s superannuation – Section 75(2) adjustment outside reasonable range – Failure to take into account payment by wife to husband pursuant to consent orders – Appeal allowed FAMILY LAW - COSTS – Cost certificates – Outcome of judgment not due to conduct of parties |
| Family Law Act 1975 (Cth) s 75(2), s 79, s 79A(1) Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8 |
| Bloomberg & Rod [2010] FamCAFC 112 C & C [1999] FamCA 1268 Parker and Parker (1983) FLC 91-364 Sandrk and Sandrk (1991) FLC 92-260 Simpson and Hamlin (1984) FLC 91-576 Y & Y [1995] FamCA 102 |
| APPELLANT: | Ms Garden |
| RESPONDENT: | Mr Gavin |
| FILE NUMBER: | BRF | 3025 | of | 2003 |
| BRF | 14346 | of | 2007 |
| APPEAL NUMBER: | NA | 20 | of | 2010 |
| NA | 75 | of | 2009 |
| DATE DELIVERED: | 2 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Faulks DCJ, May and Benjamin JJ |
| HEARING DATE: | 2 June 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 October 2007 18 September 2009 |
| LOWER COURT MNC: | [2007] FamCA 1271 [2009] FMCAfam 1116 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Fajardo |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The appeals NA 20 of 2010 and NA 75 of 2009 be allowed.
Leave be granted to the wife to appeal orders 3 and 4 of the orders made by Bell J on 18 October 2007.
By consent, orders 3 and 4 of the orders made by Bell J on 18 October 2007 be set aside.
Order 1 of the order made by Bell J on 18 October 2007 be set aside.
The orders made by Howard FM on 18 September 2009 be set aside.
The applications of the husband filed 10 May 2006 (as amended on 18 May 2007) that the property orders made by O’Reilly J on 5 May 2004 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) be listed for re-hearing.
Until the hearing and determination of the husband’s s 79A application the wife is restrained from further transferring, encumbering, mortgaging or otherwise dealing with the former matrimonial home situated at A in the State of Queensland.
The Court grants to the appellant wife a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs she has incurred in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs he has incurred in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred by them in relation to the rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Garden & Gavin (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 20 of 2010
NA 75 of 2010
File Number: BRF 3025 of 2003
BRF 14346 of 2007
| Ms Garden |
Appellant
And
| Mr Gavin |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns two appeals by the wife against orders made in both the Family Court and the Federal Magistrates Court.
The appeal (NA 20 of 2010) filed by leave on 13 April 2010 relates to orders made by Bell J on 18 October 2007. His Honour set aside in part pursuant to s 79A(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) orders made by consent before O’Reilly J on 5 May 2004. Bell J ordered that the matter be listed in the registrar’s direction hearings list intending that there be a
re-hearing of the property proceedings.
His Honour also ordered:
(3)Until further order the Applicant and the Respondent must not without leave of a court having jurisdiction under the Family Law Act institute proceedings under the Act for property settlement.
(4)Any application for leave in this Court is in the first instance to be listed before a Judge in chambers without appearances and unless otherwise ordered is not to be served upon any other party.
The parties agree that orders 3 and 4 should be set aside. They being interlocutory in nature it is necessary for us to grant leave to appeal. The husband did not oppose leave being granted.
For reasons which are not entirely apparent, a period of approximately two years passed between the setting aside of the consent property orders by Bell J and the making of final property orders.
Final property orders were made by Federal Magistrate Howard on 18 September 2009. The wife, the respondent in those proceedings, did not participate in the final hearing before the Federal Magistrate. The wife’s appeal (NA 75 of 2009) is against the Federal Magistrate’s orders made on an occasion when she failed to appear.
It is clear that these proceedings have an unusual history. For that reason, we set out below in considerable detail the procedural background common to the two appeals. We will then consider each of the appeals, beginning with the appeal from the orders of Bell J, those orders being first in time.
At the outset of the hearing before us, Faulks DCJ informed the husband and the wife that he was aware that a member of his Chambers staff, the Judicial Complaints Advisor, had responded to a complaint from the wife about her concerns with Bell J’s conduct towards her in relation to the proceedings on 17 October 2007. By consent, the wife allowed a copy of her original complaint to the Court, as well as the response from the Judicial Complaints Advisor to the wife’s complaint, to be viewed by the husband. Both parties then consented to the Full Court reading the correspondence. No objection was taken by either party to Faulks DCJ continuing to hear the appeal. In a letter dated 24 October 2007, the Judicial Complaints Advisor acknowledged the complaint as follows in this extract:
Dear [Ms Garden],
I refer to your letter of 19 October 2007 address to the Chief Justice in which you draw attention to a number of your concerns relating to the hearing of your family law matter before the Honourable Justice Bell in Brisbane on 17 and 18 October 2007. You also raise some concerns regarding earlier hearings before the Honourable Justice Jordan in 2005 and before the Honourable Justice Carmody on 17 September 2007.
Your letter has been referred to the Deputy Chief Justice who is responsible for such matters within the Family Court of Australia.
The Family Court is appreciative of your bringing these concerns to notice. These concerns will be investigated and a considered response will be forwarded to you as soon as possible. However you will appreciate that a response must await the finalisation of your matter through all of the court and appeal processes. The Deputy Chief Justice will write to you as soon as he is in a position to do so.
You may be assured that any investigations will be made in a manner consistent with the protection of your personal privacy and with due regard to the confidential nature of the subject matter.
In your letter you have stated your belief that the trial before his Honour Justice Bell ‘…should be called a miss-trial and another trial should be conducted, with a different judge.’. I must advise that the only way in which your belief might be brought to reality, is through the appeal processes of the Family Court. It is not possible for such to be done administratively. Should you be considering an appeal, I would urge you to seek immediate legal advice as strict time limits apply for lodging of appeals. You can also seek procedural advice from the Brisbane Registry of the Family Court where your proceedings have been instigated and heard.
Yours sincerely
Judicial Complaints Advisor for Deputy Chief Justice (original emphasis)
Background
The parties were married in December 1992 and lived together until August 2003. There are two children of the marriage: V, born in 1993 and J born in 1996.
Proceedings commenced between the parties in 2003. After a defended hearing, consent orders were made on 5 May 2004 in relation to both property and parenting issues by the trial judge, O’Reilly J.
In essence, the consent orders provided for the wife to pay the husband the sum of $15,000 and release the mortgage liability over the former matrimonial home. In return, the husband would transfer his interest in the house to her. The parties each retained other property, including their respective superannuation interests. With respect to parenting, the consent orders provided the two children live with the mother and set out a regime for the father to have contact, as it was then described.
The wife subsequently paid the money to the husband and made the arrangements with the bank to be solely responsible for the mortgage. Since then, the wife has solely met all the outgoings on the home.
Approximately nine months after the making of the consent orders, the children commenced living with the father. It was apparently a decision made by the children.
Final parenting orders in relation to the children were made by Jordan J on 28 June 2007. Those orders remain in operation, subject to one variation made by Howard FM on 30 April 2009. The children continue to live with their father and the younger child spends time with her mother on alternate weekends.
On 10 May 2006 the husband filed an application to set aside the consent orders in relation to the property distributed and to restrain the wife from dealing with the property pending that hearing. Carmody J made procedural orders in relation to that application on 17 September 2007, after hearing both the husband and the wife in person. The orders made listed the matter for hearing and specified what material the parties were entitled to rely on. The husband was permitted to file one further affidavit. A settled list of agreed facts was attached to the orders as “Annexure 1”.
Under “Notations”, Carmody J listed the issues for trial as being:
whether –
(a)since the making of [the consent orders] circumstances of an exceptional nature relating to the care, welfare and development of the children of the marriage… have arisen;
(b)the 2004 final property orders made by consent between the parties by the Honourable Justice O’Reilly should be varied or set aside and another orders substituted pursuant to s 79A1(d);
(c)the Applicant Husband will suffer hardship unless orders setting aside the original order or another order is made;
The matter came before Bell J on 17 October 2007. His Honour delivered ex tempore reasons and made orders on 18 October 2007 setting aside the property consent orders. Final property orders were not made in lieu. Rather, his Honour directed that the matter be “listed in the Registrar’s Directions Hearing list” to take place on 13 December 2007.
It was the change in the children’s living arrangements from the wife’s care to the husband’s that was the primary reason for the order setting aside the 2004 consent orders. His Honour said that he did not make further orders by way of property settlement because of an absence of essential evidence.
The proceedings were transferred to the Federal Magistrates Court on 13 December 2007 by Registrar Coutts. As we have explained above, the property settlement proceedings were not heard until 18 September 2009 in the Federal Magistrates Court, nearly two years after the order of Bell J setting aside the original consent orders.
The wife did not participate in the proceedings before Howard FM and orders were made in her absence. The husband represented himself as he has done since 2005. In essence, the orders made by the Federal Magistrate required the wife to vacate the former matrimonial home within one month and that the house be sold. The nett proceeds of sale were to be divided 62.5 per cent to the husband and 37.5 per cent to the wife. These orders are the subject of the wife’s appeal NA 75 of 2009.
The wife subsequently applied for a stay of the orders made by the Federal Magistrate. The application was dismissed by the Federal Magistrate on 26 November 2009. In doing so, his Honour extended the time by which the wife was required to vacate the home to 8 January 2010 and ordered that the sum of $65,000 be retained by the trustee after the sale of the house as a buffer should the appeal be successful. In a notation attached to the orders, the Federal Magistrate stated:
B.That in the event that the Wife has failed to vacate the property by 8 January 2010, the matter will come back to Court for mention before FM Howard on 1 February 2010 at which time the Court will consider making the following orders:
(1)The appointment of [Mr S], Solicitor as Trustee to take possession of the property in order to effect the sale of the property (such trustee to be appointed pursuant to section 80(1)(e) and/or section 80(1)(k) of the Family Law Act 1975);
(2)The issuing of an injunction requiring the Wife to vacate the property and a further injunction restraining her from re-entering and/or resuming occupation of the property; and
(3)The issuing of a warrant for the arrest of the Wife in the event that she fails to comply with these orders and continues to remain in occupation of the premises.
The wife did not appeal from those orders. She refused to vacate the premises and filed a second stay application on 21 December 2009. That application came before the Federal Magistrate on 1 February 2010. The Federal Magistrate dismissed the wife’s second stay application, finding that he was functus officio in respect of that issue or, in the alternative, that there was nothing which would persuade him to grant a stay.
The wife subsequently appealed from the dismissal of her second stay application. That appeal was dismissed by May J on 8 April 2010. During the same hearing, May J gave the wife leave to file the appeal against the orders of Bell J out of time and ordered a stay of the Federal Magistrate’s orders to avoid the sale of the matrimonial home until the determination of the two appeals which are before us.
Orders were made at the conclusion of the hearing of the appeal before us in the following terms:
(1)The order made by Judicial Registrar Smith on 23 July 2006 is discharged.
(2)Until the determination of the appeals, the wife is restrained from further transferring, encumbering, mortgaging or otherwise dealing with the former matrimonial home situated at [A] in the State of Queensland.
Appeal NA 20 of 2010 (Orders of Bell J of 18 October 2007)
Grounds of appeal
In the notice of appeal filed 13 April 2010, there are six grounds of appeal. In summary, the grounds assert that his Honour erred:
· in finding that the movement of the children from the care of the mother to the care of the father was an “exceptional” circumstance that warranted the application of s 79A(1)(d) of the Act (ground 1);
· in finding that the children were moving from a “comfortable home” to “comparatively restricted” circumstances with the father and that this was sufficient hardship to warrant the application of s 79A(1)(d) of the Act (ground 2);
· exercising his discretion to set aside the consent orders after three years without having considered “other factors established by the authorities”(ground 3);
· ignoring “the duty of the Court” to have regard to s 81 of the Act in setting aside the 2004 consent orders (ground 4); and
· denying the wife natural justice, treating the wife “with contempt clearly demonstrating his bias against [the wife]” (ground 5); and
A general complaint was made by the wife about the effect of the trial judge’s orders (ground 6) in the following terms:
The setting aside of the 2004 final property Orders resulted in injustice and inequity for the wife because she has already restructured her financial affairs and have been paying the mortgage, interest, insurance, rates and other costs incidental to keeping and maintaining the property. The wife, by the way the property settlement was structured, in effect took on the position of a purchaser of the former matrimonial home.
The wife seeks that the orders of Bell J of 18 October 2007 be set aside and the consent orders made by O’Reilly J in 2004 with respect to property be reinstated. The wife also apparently seeks an order declaring that the consent orders are “final” and that no further proceedings between the parties with respect to property settlement should be heard without leave of the Court.
Reasons for judgment
Given the complaints of the wife with respect to natural justice and bias, we will include some extracts from the transcripts of the proceedings before Bell J in our consideration of the reasons for judgment.
Bell J observed that consideration of the father’s application to set aside the 2004 property consent orders was “shortened” by the orders of Carmody J made on 17 September 2007. He then set out some of the agreed facts which were annexed to those orders. His Honour summarised the consent orders in the following way:
2.…That on 5 May 2004 a consent order was made before O'Reilly J in which the property, totalling $313,579, was divided between the parties, 66.7 per cent, or $209,305 to the wife with the balance of $104,274 or 33 per cent to the husband by consent order.
3.O’Reilly J made certain statements during the trial indicating her view that 70 per cent of the net property value should go to the resident parent. The wife received an amount of $214,766 being the market value of the [A] property of $405,000 less $190,000 mortgage in exchange for a cash payment of $15,000 to the husband.
4.The husband retained assets in his ownership or possession as follows; a motor vehicle value of $4000; three superannuation policies $53,000; cash of bank of more than $13,500. The property orders were fully effected in 2004.
Bell J then set out the history of the parenting orders in the following terms:
5.Parenting orders were made on 5 May 2004 providing for the children to reside with the mother, have contact with the father Thursday to Saturday in one week and Thursday to Sunday in the other week and one half of all school holidays with parents to share parental responsibility.
6.Interim orders were made by myself in February 2005 ordering that the child, [J], be with the mother for six days and the father eight, and the child, [V], be with the father for 10 and the mother for four days each fortnight. However, both children were spending six days with the mother and eight days with the father each fortnight under this order.
7.Since 2005 the children have resided with the father and had no contact with the mother from approximately 22 August 2005 to 8 May 2007 for reasons which are not agreed.
8.Under varied parenting orders made by Jordan J on 28 June 2007 the mother has had alternate weekend contact from Friday after school to before school on Monday and one half of the school holidays with the father having sole parental responsibility for the children.
The orders of Carmody J clearly specified what material each of the parties were permitted to rely on. The husband was permitted to rely on his amended application to set aside property orders and affidavits filed on 10 September 2007 and 18 June 2007. The husband was also permitted to file one further affidavit, but “only as to matters in reply to” the paragraphs not struck out of the wife’s affidavit in chief. The wife was permitted to rely on her response to the application, her financial statement and her affidavit filed 17 August 2007.
Subsequent to the proceedings before Carmody J, the wife prepared and filed a further affidavit on 3 October 2007 upon which she wished to rely. The wife maintained that she had misunderstood the nature of the orders and that Carmody J had told her she could file one further affidavit. Bell J observed that the wife could order the transcript of the hearing before Carmody J at her own expense. The following exchange took place between Bell J and the wife:
HIS HONOUR: What is your attitude - - -
[MS GARDEN]: - - - I am not prepared to go – go further because - - -
HIS HONOUR: Well you’re going to have to do it in a week because I will be available in a week’s time.
[MS GARDEN]: I would rather somebody else be there.
HIS HONOUR: Who?
[MS GARDEN]: Whoever.
HIS HONOUR: What do you mean, “someone else be there”?
[MS GARDEN]: It doesn’t have to be you.
HIS HONOUR: Why do you – are you objecting to me?
[MS GARDEN]: I am not objecting to you.
HIS HONOUR: Well I am quite happy to hear it.
This exchange is of considerable relevance in the appeal, particularly given the wife’s complaints in relation to natural justice (ground 5).
After further discussion and two brief adjournments during which the judge consulted with Carmody J in chambers, the husband sensibly indicated that he had no objection and the wife was permitted to rely on the affidavit filed 3 October 2007. She remained dissatisfied, however, and when asked to begin her cross-examination of the husband stated:
[MS GARDEN]: Your Honour, this is – this is not right. I have four other affidavits that I need to explain to you that you need to have before we have this trial. We can’t have a trial on two measly affidavits. These are four very important affidavits for me and I was of the understanding that Carmody J was not allowing me to have any more new affidavits, just for one last affidavit. He did not say that I could not use these other affidavits. I am not ready for this trial if you are going to allow me evidence as two measly affidavits here. I can’t do anything here.
After clarifying which affidavits the wife was referring to, the trial judge allowed the wife to rely on four affidavits which were filed in 2006 and 2007. The parties then cross-examined each other.
Despite the orders, Bell J allowed the wife to rely on further material. The judge clearly was aware of the wife’s dissatisfaction with the proceedings before him.
In his reasons Bell J summarised the history of the proceedings, noting that the consent orders made after three days of a defended hearing “prima facie, on the face of it, it appeared to be a proper and reasonable result”. He then noted that “comparatively shortly thereafter” the children came to live with the husband and remained there since. (Reasons [12])
His Honour was critical of the wife’s behaviour and relationship with the children and said:
13.For a considerable period the mother did not spend any time with the children or the children spend time with her. She, in a most ineffectual form of cross-examination in this Court, endeavoured to put all the blame upon the father for the children not having contact with her. I am more than satisfied that she is the author of her own misfortune and that she herself for some peculiar reason or other decided not to see the children and I refer to and incorporate the family report prepared by [Ms J] which is exhibited to the affidavit of the applicant husband.
14.Her conduct towards the children has, as far as I am concerned, been dreadful. As it appears from that report she has written letters to the children indicating that their father’s insides, or words to that effect, will putrefy, that his karma will come and get him. She has acted, as far as I am concerned, in a most detrimental manner to encouraging the children to have that natural love and affection towards a parent which one expects. They have remained away from her.
15.Jordan J saw fit to allow them to spend time with their mother for extensive periods, in my opinion, notwithstanding that [Ms J] in an alternative to her original alternative was that there should be no spending time with the mother whatsoever. After seeing the mother and hearing her I accept that. As I have said before, she is the author of her own misfortune and where the evidence between the father and the mother disagree I clearly accept the evidence of the father.
Bell J then observed that the husband was “comparatively restricted” in a two bedroom unit whilst the wife resided in the former matrimonial home. (Reasons [16])
In determining whether the movement of the children from the mother’s house to the fathers was an “exceptional circumstance”, Bell J referred to the cases of Y & Y [1995] FamCA 102, an unreported decision of Fogarty, Kay and Cohen JJ on 22 September 1995, and the decision of O’Ryan J in C & C [1999] FamCA 1268. Of those decisions, his Honour said:
17.…There are two things for me to determine, is the mere, if I might use that word advisedly, moving of the children from the father to the mother a matter of an exceptional nature.
18.It has been held in [Y & Y] that in fact it was. It has been held in that case written by O’Ryan J in 1999 that it is and in this case there can be no suggestion that it was unexpected. The parties had, notwithstanding their extreme disagreements with each other, agreed for the children to remain with the mother and the father was to have contact with them. The children did not stay and that order has been vitiated by their, in effect, voting with their feet, and I once again refer to [Ms J’s] report. That is, as far as I am concerned, and I think there is general support for that proposition in the cases to which I have referred – [Y & Y] is unreported, appeal number NA4 of 1995 was delivered on 22 September 1995 and that matter of O’Ryan J’s was [C & C] delivered on 7 September 1999. Both of those cases support what I consider to be an exceptional circumstance and that is that the children have moved.
As to the question of hardship, Bell J said:
19.Is there hardship? Of course there is hardship. The children were living in a very comfortable home in the [A] area. They are now living in circumstances which are comparatively restricted and that in itself is sufficient hardship and I am satisfied that it is hardship. Consequently I am clearly of the opinion that the order should be set aside.
His Honour then proceeded to consider the “next question”, that is, whether he should decide the parties’ applications for property settlement, and said:
20.The next question for me to determine, and this is an exceptionally difficult question, is whether I should proceed with the application for property settlement today or no. I hesitate because of the following reasons which are self evident. The value of the property was agreed to by the parties as far back as 2004, I think the earlier part of 2004, at $405,000. I can take judicial notice of the fact that the value of real estate has increased enormously since that time and I can, with particularity, refer to [A] as being one of the suburbs which has increased enormously as well. I do not have any valuation as to that property and consequently I am loathe to embark upon a determination in so far as property is concerned without some valuation of that and up to date evidence of the applicant father’s superannuation. I do have some evidence from the mother.
RECORDED: NOT TRANSCRIBED
21.Regrettably I will have to adjourn the application to the trial list in order for the parties to prepare documents to place before the Court in relation to a property settlement. I dislike that but I cannot at this stage accept that $405,000 is the valuation of a property which was valued at least three and a half years ago in the [A] area. It could be doubled. I don't know. I order accordingly. The application for a property settlement will be transferred to the list of the Registrar.
The trial judge then dealt with the oral application of the husband that the wife be declared vexatious and concluded that both parties were vexatious litigants and said:
22.There are other matters which are set out in the original application but I feel somewhat bound by the order of Carmody J. However, there is the question of so-called vexatious litigants. I have not set out in full the number of times that these parties, both of them, have come before this Court. I think it would weigh more heavily against the mother than the father. I will emphasise the matters which are contained in [Ms J’s] report, and in fact she suggests that an order should be made against both of them to stop them coming back to the Court, to let the children settle down. Since there is an application before me for declaring the mother a vexatious litigant, I think the jurisdiction of this Court has been excited and I will declare both of them vexatious litigants, and that means they cannot institute any action other than the ones which are in existence at this stage without leave of a Judge. Yes, transfer the application to the Registrar.
For reasons which are not immediately apparent the order made by the judge referred to property proceedings not proceedings connected with the children. This is now of no consequence since the parties agree those orders should be set aside.
Grounds 1, 2, 3 and 4
Grounds 1, 2, 3 and 4 can be grouped together as challenges to his Honour’s exercise of discretion in setting aside the property consent orders and his consideration of s 79A(1)(d).
Section 79A(1) provides as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
It is clear that three elements must be satisfied before an order can be made setting aside property orders pursuant to s 79A(1)(d). First, there must be circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child. Secondly, it must be demonstrated that the applicant (not the child) will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution of the order. Thirdly, what might be described as a further discretionary element, that is, the court may vary the order if it considers appropriate and make another order under s 79 in substitution for the order so set aside.
These considerations were discussed in an earlier decision of this court in Simpson and Hamlin (1984) FLC 91-576. In that case property orders were made by consent on 27 April 1983 when the husband had the care of the children. On 6 May 1983 the husband asked the wife to look after the children temporarily but they remained with the wife. The wife applied to set aside the consent orders. The trial judge found that the delivery of the children to the wife by the husband so soon after consent orders had been made amounted to circumstances of an exceptional nature. The appeal was allowed for a number of reasons, much as we intend to allow the appeal in this case.
In relation to the question of exceptional circumstances, their Honours in Simpson and Hamlin referred with approval to the statement of the trial judge as follows (p.79,657):
The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children's welfare that such a change occurs.
As their Honours then said (p.79,657):
The question therefore was whether the change which occurred in this case was such as to ‘take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur’.
The trial judge regarded it as one of those cases because “the change occurred unexpectedly and so quickly after the making of a property order”. The Full Court then observed that (p.79,658):
What amounts to ‘exceptional circumstances’ is very much a question of fact and degree. With findings on such matters an appellate tribunal is reluctant to interfere. Whilst we might have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements was so exceptional as to take it out of the normal vicissitudes of life, it was in our view a finding which his Honour was entitled to make on the evidence and which we cannot disturb.
Then in dealing with the hardship question their Honours referred to the trial judge’s finding (p.79,658):
… that the wife would suffer hardship if the order was not changed was based on his assumption that the property order was made ‘upon terms that clearly reflected the respondent's responsibility for the children’s care both in the past and so far as could be foreseen by the parties in the future’.
As in this case there was an argument about the original division contained in the consent order and the extent to which it reflected the arrangements for the children.
In Simpson and Hamlin, their Honours said (p.79,658):
We cannot see any basis for his Honour’s assumption that the consent order clearly reflects the husband’s responsibility for the children. In the first place, it was a consent order and there is no recital or other indication of what motivated the parties in their agreement. Nor is there any basis for the assertion of the wife implicitly accepted by his Honour that there was a one-third division of the equity in her favour.
We find ourselves in the same position in this case. Also important to the decision in this case, the Full Court in Simpson and Hamlin identified what was described as a further error of the trial judge “when he said that once the conditions of para. (d) were established, the order should be set aside unless other factors appeared”. (p.79,658)
We are mindful that one of the grounds of appeal in this case relies on the provision of s 81 of the Act. In Simpson and Hamlin there was reference to the decision of Mason J in Taylor v Taylor (1979) FLC 90-674 at p.78,595 emphasising as we would also do in this case what was said by his Honour although in relation to a different section of s 79A(1). (The reliance in Taylor v Taylor was based on s 79A(1)(a), which relates to the giving of false evidence.) In Taylor v Taylor Mason J said as follows:
… The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, for example, that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its discretion in favour of setting aside the judgment. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties.
As their Honours in Simpson and Hamlin said this conclusion is fortified by the operation of s 81 of the Act. At p.79,659 their Honours said:
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J. remain applicable to para. (d) mutatis mutandis . To paraphrase his Honour's remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court. We leave aside the question of whether special considerations apply to consent orders.
We would observe in passing that a further difficulty in this case is that the hardship to which his Honour referred related to the children rather than the applicant father. Section 79A(1)(d) requires an assessment as to whether “…the applicant will suffer hardship if the court does not vary the order or set aside the order or set the order aside and make another order in substitution for the order…”.
In addition, like Simpson and Hamlin we are of the opinion that his Honour was mistaken in setting aside the order prior to considering what other orders would be just and equitable. As was said by the Full Court in that case (p.79,659):
In the circumstances of this case, his Honour was mistaken in assessing the degree of imbalance of the consent order in favour of the husband, he was also in error in not considering whether such imbalance, if any, could not be corrected by other means, such as the making of maintenance orders. In those circumstances, the exercise of his discretion miscarried and cannot be allowed to stand.
The difficulty in this case is even greater as his Honour did not undertake an exercise at all as to whether if he were to set aside the order, what order might be substituted. His Honour simply set aside the order. As emphasised in Simpson and Hamlin his Honour was obliged in considering whether to set the consent order aside and proceeding to make a fresh order under s 79 to consider all factors which must be considered under s 79(4) and so far as they are relevant, under s 75(2).
As did their Honours in Simpson and Hamlin, we would also make reference to the decision of Nygh J in Parker and Parker (1983) FLC 91-364 at p.78,444 to 78,446 and repeat what the Full Court said of that decision (p.79,659):
… the choice between setting aside and variation depends on the degree of intervention to be made. Where, as here, that intervention consists of a perceived realignment of the distribution of the property of the parties from one-third and two-thirds respectively to an approximately equal division, it is in our view a matter which goes beyond mere variation and would require the formal setting aside of the order and the making of a new order with all the consequences of that under sec. 79. Only thus can the Court ensure that the new order will be just and equitable between the parties.
Before leaving the topic of exceptional circumstances we would refer to the submissions on behalf of the wife that when regard is had to the conduct of the father prior to the consent orders it could have been expected that the children would have moved to live with him. Reference was made to difficulties between the parents including children not being delivered on time and various contravention proceedings, all prior to the contested hearing and the consent orders made by O’Reilly J. It was submitted that Bell J should not have set aside the order on the ground of exceptional circumstances because it was predictable that the children would move to the father. We do not accept this submission.
Although, in our view it is hardly necessary to say more than was said by the Full Court in Simpson and Hamlin, it is helpful to make some reference to what was said in Sandrk and Sandrk (1991) FLC 92-260. In Sandrk, a single judge decision, Gee J considered an application by the husband to set aside property orders. The original order had been made after a contested hearing and his Honour assessed the value of the contributions in percentage terms as 70 per cent to the husband and 30 per cent to the wife. Having regard to the s 75(2) factors his Honour adjusted the percentages, 65 per cent to the husband and 35 per cent to the wife. Orders had previously been made allowing the children to live with the mother, by consent. After the property orders were made the children decided to live with their father and the order in relation to where they lived was varied. Some five months after the children moved the father brought the application pursuant to s 79A. In setting aside the orders and finding that there had been extraordinary circumstances his Honour was particularly concerned that the events leading up to the children moving to the father were ones “…that neither party was prepared for”. (p.78,748) His Honour found in that case the circumstances of the children first not seeing their father, then after the order which allowed for the children to visit their father for weekends and, some months later, the children then living with their father and having no contact with their mother could not have been within the contemplation of the parties and were of an extraordinary nature. His Honour also found that such events were not contributed to by either of the parties.
Should it be thought that the findings of fact in Sandrk in some way define the limits of the conclusion of exceptional circumstances we would emphasise the importance of remembering that it is “very much a question of fact and degree”.
It is undoubtedly correct as said by the Full Court in Y and Y [1995] FamCA102:
We do not think the Full Court intended to limit the test of exceptional circumstances to circumstances which cannot reasonably be expected to arise. This was made clear when the Court said:
“What amounts to exceptional circumstances is very much a question of fact and degree.”
With respect, we agree. The Court should not limit itself to matters relevant only to expectations. It should consider all relevant facts and matters when deciding whether there have been circumstances of exceptional nature.
Conclusion – Grounds 1, 2, 3 and 4
We are of the opinion that the appeal must be allowed by reason of grounds 1, 2, 3 and 4. Ground 6 is more in the nature of a submission and in the absence of further evidence it is impossible for us to assess.
In particular, we would allow the appeal by reason of the approach taken by his Honour to the question of exceptional circumstances, the error in relation to the consideration of hardship and in particular the error in setting aside the orders without consideration of what orders should be made by reason of s 79. This would include the enquiry whether such orders are just and equitable and whether alternate orders could be made.
The husband opposed the appeal being allowed. We do not intend to refer to his comprehensive submissions at any length as it is obvious that the appeal must be allowed. We would mention that the husband’s concern about the numerous hearings and appeals in this matter is understandable as his expressed “moral dimension” to the appeals as they impact on the children.
Ground 5
The written submissions in relation to ground 5 were as follows:
32. Ground 5: Was the wife disadvantaged by the way the trial was conducted by His Honour in effect denying the appellant wife natural justice?
a.The transcript demonstrated bias of Bell J against the appellant wife in the manner by which His Honour spoke to the appellant wife.
b.Bell J was more considerate and obliging and accommodating to the husband.
c.In his reasons for judgment Bell J expressed his favour towards the evidence of the husband merely because of the demeanor [sic] of the wife which did not reflect on the integrity or credibility of the evidence.
d.His Honour Bell J merely adopted the submissions of the respondent father including the erroneous calculation of what each party actually received from the 2004 property orders.
(footnotes omitted)
Considerable reference was made to the transcript. We have already referred to part of the transcript and would add the following in relation to the trial judge allowing the wife to place further affidavits before the Court:
HIS HONOUR: Yes. Well the applicant has complied, why haven’t you?
…
HIS HONOUR: Look, I am sorry, [Ms Garden], I must make it quite clear. I know you are here on your own and you are without the benefit of legal advisers which I think is a great mistake, but probably you can’t afford it. I can’t go behind the order, what he meant to say or he didn’t mean to say. There is the order there and unless you can give me good reasons why I should give you leave to file affidavits, I won’t.
[MS GARDEN]: The affidavits had been filed before. These are affidavits as events happened.
HIS HONOUR: Are you listening to me?
As we have already observed despite the orders of Carmody J, Bell J allowed the affidavits to be placed before him by the wife. We would also note that the cross-examination by the wife of the husband was extremely aggressive accusing him frequently of lying and of “stealing the children”.
In Bloomberg & Rod [2010] FamCAFC 112, the Full Court dealt with an allegation of bias first raised on appeal. In that judgment it was said:
100.…We accept that the authorities are clear that an issue not raised before a trial judge cannot generally be agitated on appeal (see Suttor v Gundowda Pty. Ltd. (1950) 81 CLR 418). However, it is important to look at the reasons for that, and they relate to the notion that unless an allegation of bias and prejudgment is raised at the time it is said to have occurred, the right to object may be subsequently waived.
101.The leading authority with respect to waiver of the right to object is the High Court decision of Vakauta v Kelly (1989) 167 CLR 568.The majority (Brennan, Deane and Gaudron JJ) said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. (Emphasis added)
102. Dawson J said on the issue at 577:
There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards, was clearly of the view that a party may waive the objection.
…
There is abundant authority which establishes, at all events in civil cases, that a party may waive his right to object on the ground of bias.
…
In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it. (Emphasis added, footnotes omitted)
103.The High Court most recently affirmed the decision of Vakauta v Kelly (supra) in Smits and Another v Roach and Others (2006) 227 CLR 423, where the majority (Gleeson CJ, Heydon and Crennan JJ) said at 439:
It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. The general principle is not in contest in this appeal.
104. Kirby J in a separate judgment said at 466:
However, it is now settled law in this Court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity…
It is clear that any objection to a judge’s participation in a trial on the ground of disqualification for association must be made promptly, once the affected party becomes aware of the suggested cause of the disqualification. (Footnotes omitted)
As in Bloomberg & Rod, the wife here represented herself. Prima facie at least, it would seem that the wife has waived her right to object on the ground of bias. It may be the question is whether the wife was “aware of her right to object”. Earlier in these reasons (paragraph 31) we referred to the transcript of proceedings before the trial judge. There is some evidence that the wife was complaining about his Honour’s approach. The wife was informed of her “right to object”, albeit tenuously. In addition the wife, having been asked if she wanted to object to his Honour, said she was not objecting to him. His Honour then went on to confirm that he was “happy to hear it”. If the wife had said she was objecting or had at least prevaricated in her answer, then it would have been open for us to find that this unrepresented party had made the objection and it may not have been waived.
We find ourselves in the same position as Bloomberg & Rod where their Honours said:
105.…Thus we propose to give the father the benefit of the doubt and consider his complaint. In any event, there is of course no issue of waiver in relation to the allegation that the father was not afforded procedural fairness.
…
114.The law with respect to the disqualification of a judicial officer on the grounds of apprehended bias is well settled. …
115.… we do not consider that the actions or comments of the trial judge displayed any bias or prejudgment that satisfied the test of reasonable apprehension of bias and should have resulted in his Honour disqualifying himself from further hearing the matter.
…
118.The guidelines to be applied in cases where a party is unrepresented were outlined by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (at paragraph 253). The Full Court also observed that the guidelines were, however, “not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias”.
119.We are satisfied his Honour accorded the father procedural fairness.
Conclusion – Ground 5
In relation to ground 5, it is our view that there is no substance in this ground. First the wife did not claim at the time of the hearing that the judge was biased and ask that he disqualify himself. Secondly, our reading of the transcript does not reveal that there was a denial of natural justice or that the judge exhibited any bias to her. Peremptory or gruff he may have been. His Honour was critical of the wife. In the end, however, he listened to and, in substance, acceded to the wife’s requests and complaints, notwithstanding his obvious reluctance to do so.
Appeal NA 75 of 2009 (Orders of Howard FM of 18 September 2009)
Introduction
We have already decided that the appeal against the orders made by Bell J must be allowed, the consequence being that the husband’s application pursuant to s 79A must be re-heard. The application of the husband at the re-hearing will require a judge to consider the evidence yet to be filed in relation to the relevant matters as required by s 79A and s 79, including s 75(2).
Our judgment in relation to the appeal from the orders of Howard FM will be limited. We have also determined that the appeal from the orders of Howard FM should be allowed.
The Federal Magistrate was in a difficult position. The wife failed to appear, sending only a letter dated 10 September 2009. The Federal Magistrate said at paragraph 33:
Whilst it is somewhat unconventional the wife did send a letter to the Court dated 10 September 2009 making it clear that she did not intend to take part in the proceedings. I am not going to admit that letter into evidence. It has not been sworn. It has not been properly proved. But I am going to take into account one aspect of it where the wife makes it clear that her current contract expires at the end of this month saying that she will most likely be unemployed from October 2009. The wife has not come to Court to explain that or give any particular evidence about it.
The only sworn evidence before the Federal Magistrate from the wife was her financial statement dated 18 May 2007. Thus it was a limited hearing involving the husband giving some evidence in addition to relying on the amended application for final orders and his various affidavits.
Grounds of appeal
There are three grounds of appeal, the third being as follows:
3) Appellant was deprived of procedural fairness or natural justice by default because of the appellant’s absence from the trial. Appellant felt she was not treated fairly at the previous trials and complained to the Court through letters hence she did not feel comfortable and felt intimidated to attend the trial with Fm [sic] Howard.
This appears curious at first, however it emerged during the hearing that in correspondence to the Court Ms Garden had complained about the treatment of her by Bell J. Although correspondence was sent to her in reply she may possibly have thought that she was awaiting some decision in that respect.
As we have already noted, at the outset of the hearing the Deputy Chief Justice informed the husband and the wife that he was aware the Court had responded to the wife’s letters. Apart from this consideration, it must be said that this ground appears unattractive in the sense that there is no doubt that Ms Garden voluntarily did not attend the proceedings.
As to the other two grounds it is submitted that the Federal Magistrate made an error in making the orders for property settlement by reason of incorrectly considering the financial contributions of the husband and not that of the wife. Further, it was also submitted that the Federal Magistrate did not consider the contributions made by the wife after the orders were made by O’Reilly J, in particular the mortgage payments made by her. As will be seen later, we accept one ground of appeal; that is that the Federal Magistrate failed to take into account the fact that the wife had paid the husband the sum of $15,000 and failed to properly consider the parties’ superannuation interests. It is unnecessary for us to refer to the judgment at length however there are some features of it that require our attention.
After referring to what is traditionally described as the four step process in determining proceedings pursuant to s 79 the Federal Magistrate considered the assets and liabilities. Of course, the main evidence before him was that provided by the husband. One of the difficulties we perceive in the judgment of the Federal Magistrate is that the valuations before him were not proper valuations. For example, in relation to the former matrimonial home the Federal Magistrate was provided only with what he described as follows:
12.There is a kerbside valuation from a real estate agent, which is the best available evidence in terms of the value of that property. The value stated is between $525,000.00 and $550,000.00. I think it is appropriate to take a mid-point of $537,500.00.
Without intending any criticism at all of the Federal Magistrate we appreciate as he said:
14.… it is rather difficult to obtain a full picture of the property of the parties, for instance, there is no up to date information in respect of the wife’s superannuation.
In dealing with this dilemma the Federal Magistrate said:
17.… Because the Court does not have a full picture on the wife’s current financial situation in the circumstances of this case I consider it to be just and fair for the husband to retain whatever superannuation he has and for the wife to retain whatever superannuation she has. I note that the majority of the husband’s current superannuation was contributed by him post separation.
The superannuation was then quarantined from the value of the assets divided by percentage leading to the orders as to how the proceeds of the sale of the house should be distributed.
Described as the first pool by the Federal Magistrate was the house at A to which he attributed a value of $537,500 less the mortgage of $145,000. The superannuation was treated as a “second pool”. The information provided to the Federal Magistrate was that the husband’s superannuation was valued at $71,318 and by reference to the wife’s financial statement in 2007 he attributed to it a value of $7,833.
In his reasons it was concluded that the contribution of the parties up to the time of trial could be assessed on the basis of 55 per cent in the favour of the husband and 45 per cent in the favour of the wife. A description of how his Honour came to this conclusion is contained in paragraph 30 as follows:
30.The weighting in favour of the husband comes about because of the additional contributions he made from the sale of his property [overseas]. The contributions would have been assessed higher on behalf of the husband but for the fact that the wife has made all the mortgage repayments for the past six years since the husband left the former matrimonial home. I have taken into account the fact that the husband has had to rent elsewhere. I do note that the wife provides some child support of approximately $70.00 a fortnight.
In relation to s 75(2) factors, his Honour accepted information provided by the husband that the wife was working. Her financial statement revealed that her last known weekly income was approximately $839, some two years ago. It is difficult to appreciate how his Honour came to this conclusion especially in view of the wife’s letter, but ultimately he decided:
34.…It seems to me likely that the wife will be able to obtain further employment.
The Federal Magistrate made an adjustment in favour of the husband on the basis of his age and that he would therefore have less time to work than the wife, in addition that he had the primary care of the children and that “He has made some mention of health issues” (Reasons [36]). The effect of his Honour’s decision was that the husband would receive 62.5 per cent of the net proceeds of the sale of the former matrimonial home and that otherwise the parties would retain all those assets including superannuation in their possession.
The particular reasons for allowing the appeal from the Federal Magistrate are as follows:
1. The value of the real estate
The “kerbside” valuation dated 10 September 2009 is attached to the husband’s affidavit filed 16 September 2009. The valuation is signed by a Mr C from a real estate agency. It is impossible to tell whether Mr C has any qualifications.
In the letter to the husband, Mr C indicated that his valuation was “arrived at by comparison with recent sales in the area of similar property”. He stated he had “driven by” the property. It is clear that Mr C had no knowledge of the property itself, such as the number of bedrooms or bathrooms. The comparable sales identified by Mr C were of high set brick properties with “4 bed + ensuite 2 bath, 2 car”.
It is apparent Mr C had no knowledge of the house as he had only “driven by” the property. It was impossible for him to value it based on those comparative properties. In our view this was not evidence of value upon which the Federal Magistrate could have made a determination.
2. The husband’s superannuation
The evidence of the husband’s superannuation was contained in two parts. First, the financial statement filed 10 September 2007 some two years before the hearing before the Federal Magistrate. In that document the husband had three superannuation funds with a total value of $70,900. This document in itself is defective in that there were no superannuation information forms attached to it. The husband did not file an updated financial statement for the hearing.
The second document before his Honour was attached to the affidavit of the husband filed 16 September 2009. The husband provided a table where it was asserted that the value of his superannuation was $71,318 again in three funds being barely a greater value than had been said two years prior. Again there was no evidence provided by way of superannuation information forms.
Whilst appreciating the difficult position the Federal Magistrate found himself in by reason of the failure of the wife to appear and the failure of the husband to provide proper valuations he might have simply accepted the assertion of a value of superannuation in the order of $70,000 but he was not entitled on the evidence before him to consider that the sum of about $50,000 was contributed by the husband subsequent to the separation arising from his sole contributions. Obviously enough some increase in the value of the superannuation fund must have been represented by capital growth.
We would note in passing that it must have been possible for the husband to obtain a statement of the wife’s superannuation especially as she had provided the name of her superannuation fund in the financial statement to which we have referred.
3. Section 75(2) factors
In our view his Honour was not entitled on the evidence before him to make a significant adjustment in respect of the s 75(2) factors dependent on an assumption that the wife was still working and had an income in the order of $1,000 per week. In terms of income the only evidence before the Court was that the husband was employed and was paid $119,935 in the financial year ending 30 June 2009.
As to the wife’s position, the Federal Magistrate did have the letter from her dated 10 September 2009 which as we have noted he said he would not admit into evidence. Having said that his Honour went on to say:
33.… But I am going to take into account one aspect of it where the wife makes it clear that her current contract expires at the end of this month saying that she will most likely be unemployed from October 2009.
It is thus difficult to appreciate how it was that his Honour was able to draw the inference that the wife will be able to obtain further employment. Even if it is correct that the wife will continue to earn the same income when compared with the husband’s, it was at best $1,000 per week whereas the husband’s income was in the vicinity of $2,300 per week.
Apart from the other difficulties to which we have referred the adjustment by reason of the s 75(2) factors as identified by the Federal Magistrate appear to be outside a reasonable range of adjustment properly available to him.
Finally, in relation to the pool of assets and mathematical calculations there was no adjustment by the Federal Magistrate for the fact that the wife paid to the husband the sum of $15,000 at the time of the consent orders. This sum could have been adjusted mathematically or at least taken into account in some way in relation to the parties’ contributions post separation.
Conclusion
As we intend to allow the appeal against the orders made by Bell J there must be a re-hearing of the husband’s s 79A application. If he is successful that may lead to a variation of property orders. As we regard the issue at large, we would make no further comment in relation to the husband’s s 79A application, especially as it is necessary for both parties to file further material.
Costs
At the conclusion of the appeal we heard submissions from both parties in relation to costs.
The wife asked for a certificate pursuant to Federal Proceedings (Costs) Act1981 (Cth) should she succeed in each appeal. As she has done so and considering our reasons certificates should be granted.
The husband was not legally represented although he claims he may have some expenses for which he may receive funds from the Commonwealth Government. Although the husband opposed each appeal it can be seen that the outcome of each judgment and the orders made were not due to any conduct on his part, but rather to errors to which we have referred in these reasons. The husband should also have certificates and we will so order.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 2 July 2010
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