HABER & RUFINO
[2020] FamCAFC 158
•3 July 2020
FAMILY COURT OF AUSTRALIA
| HABER & RUFINO | [2020] FamCAFC 158 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the evidentiary picture at trial was incomplete – Where the parties were offered an adjournment to put further evidence before the Court – Where both parties opted to proceed with the trial and without cross-examination of the other – Where the trial judge made orders dividing a modest property pool equally between the parties – Where the wife subsequently filed an appeal within time but failed to file the Draft Appeal Index – Where the appeal was deemed abandoned – Where the wife now seeks a reinstatement of her appeal – Consideration of the principles of reinstatement as analysed in Bemert & Swallow (2010) FLC 93-441 – Where the wife’s grounds of appeal are without merit – Where there is no injustice to the wife if her application is dismissed – Where her delay is inadequately explained – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39 Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] 1 VR 150 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 Sedrak v Carney [1999] 3 VR 95; [1998] VSCA 114 |
| APPLICANT: | Ms Haber |
| RESPONDENT: | Mr Rufino |
| FILE NUMBER: | BRC | 678 | of | 2018 |
| APPEAL NUMBER: | NOA | 105 | of | 2019 |
| DATE DELIVERED: | 3 July 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 2738 |
REPRESENTATION
| THE APPLICANT: | In person by telephone |
| THE RESPONDENT: | In person by telephone |
Orders
The wife’s Application in an Appeal filed on 2 March 2020 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 Haber & Rufino 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 105 of 2019
File Number: BRC 678 of 2018
| Ms Haber |
Applicant
And
| Mr Rufino |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 2 March 2020, Ms Haber (“the wife”) seeks to reinstate her appeal from final property settlement orders made by a judge of the Federal Circuit Court of Australia on 31 October 2019 in property settlement proceedings between the wife and Mr Rufino (“the husband”).
The wife filed her appeal within time on 28 November 2019. However, she failed to file her Draft Appeal Index within 28 days after that date (on or before 27 December 2019) as is required by r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) with the consequence that by operation of r 22.13(3) the appeal is taken to be abandoned. However, r 22.44 permits of an application to have such an appeal reinstated as the wife seeks. However, the wife did not file her application for reinstatement until 2 March 2020.
The husband opposes the application.
Relevant principles
In Bemert & Swallow (2010) FLC 93-441, the Full Court undertook an extensive consideration of authority including those of the High Court in Gallo v Dawson (1990) 93 ALR 479 per McHugh J at 480; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Jackamarra v Krakouer (1998) 195 CLR 516; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, as well as a number of Victorian authorities which have considered a similar, but differently worded, rule of practice and procedure as r 22.44 (including Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] 1 VR 150; Sedrak v Carney [1999] 3 VR 95 and Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39).
The Full Court concluded (at 84,900) that:
… the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
However, the discussion by the Full Court of relevant statements of principle in the authorities referred to, quoted with apparent approval, provides helpful guidance to the determination of an application for reinstatement of an appeal.
The attainment of justice is the paramount consideration on such an application. Courts ought to protect the integrity of their processes recognising that rules of practice, and principles of case management, are designed as aids to the attainment of justice. However, in some instances too rigorous an application of a procedural rule may work an injustice. That is reflected in the remedial purpose of r 22.44 permitting this application.
The applicant bears the onus of demonstrating that justice is served by granting the application. An important consideration is that when a bona fide appeal has been commenced within time an applicant is usually entitled to have the appeal determined in the usual way. If an appeal is not vexatious and identifies proper grounds of appeal then, unless relevant discretionary considerations such as the extent of delay and its consequences for the respondent are overwhelming, the applicant will usually be able to demonstrate justice being served by the grant of the application.
However, the circumstances of a given case may reveal that the grant of an application will be productive of injustice. If it is apparent on an application for reinstatement that the grounds of appeal have no real merit it would be futile to grant the application as that outcome cannot be productive of injustice.
If it cannot be positively demonstrated that the appeal is devoid of merit (and in some instances the unavailability of relevant material such as the trial transcript – if that be relevant to any of the grounds raised – may not permit of such a definitive conclusion) then discretionary considerations relevant to the case will determine whether the applicant’s usual entitlement is overwhelmed.
The discretionary considerations falling for consideration on an application for reinstatement are not prescribed but generally the following will usually be relevant:
a)The prospects of the applicant succeeding in the appeal;
b)The extent of delay, whether there is an adequate explanation for it, and any relevant consequences of delay;
c)The nature of the litigation and the consequences for the parties of the grant, or refusal, of the application; and
d)Whether the applicant demonstrates that to refuse the application would constitute an injustice.
Facts and approach of the trial judge
The wife was born in 1964 and is now 56 years of age. The husband was born in 1960 and is 59 years old. The parties commenced their de facto relationship in 2013 in Melbourne and separated in 2017 with the husband relocating to Queensland to live with his brother after the husband suffered a medical episode. The parties’ de facto relationship was thus very short and did not produce any children.
The husband commenced property settlement proceedings in January 2018 seeking orders for him to receive a B motor vehicle, a motorcycle and some tools and otherwise for both parties to retain the property in their respective possession at the time. In March 2018, the wife filed a Response seeking to retain the B motor vehicle and to receive a payment of $40,000 from the husband. The quantum of that payment was subsequently increased by the wife’s Amended Response filed in August 2018 to an amount of $105,000. The matter progressed to trial in May 2019.
The trial judge recorded the following as to the state of the proceedings as at the trial:
5.On the day the matter was listed for final hearing, it was clear from the material filed and tendered that there were gaping holes in the evidence.
6. The parties were given the following options:
a)The parties could work through what they want to try and resolve the issue.
b)The trial be adjourned to another date to enable further evidence to be before the court.
c) The court could attempt to determine the issue that day.
d)The trial proceed and if the parties did not want to cross- examine then a determination be made based on what was before the court.
7.The parties selected the fourth option as the parties did not want to engage in cross-examination and agreed for the determination of the matter to take place based on the material before the court.
I interpolate here that despite the feature that neither in her Notice of Appeal to be further discussed, nor in any evidence filed by the wife on this application, is any challenge directed to the accuracy of what is recorded by the trial judge at [5]–[7] quoted above as to what occurred at trial. The wife submitted during the hearing of this application to the effect that she thought the trial judge was intending to require the husband to produce more evidence, in particular bank statements. However, the wife produces no extract from the transcript or any evidence to support that contention and there is thus no reason to doubt the accuracy of that which the trial judge carefully recorded.
The trial judge found the property pool to be worth $144,600 which included three motor vehicles (including a B motor vehicle valued at $65,000), tools, household contents, the remaining amount from a compensation payout received by the wife and her superannuation (valued at $40,000) (see [20]).
The wife suffered a workplace injury in 2010 and received a payout in July 2016 of $125,000. Only $6,100 of that amount remained as at trial in May 2019.
In terms of contributions, the wife had her superannuation then totalling $50,000 at the commencement of the relationship. The husband deposed to having $145,000 in savings from the sale proceeds of a house and a $10,000 car. The trial judge found that the husband produced no evidence to support that position (see [23]–[28]). The trial judge considered that a “small adjustment” in the wife’s favour concerning initial contributions was warranted.
During the relationship, the wife received a payment of $16,000 in workers’ compensation in 2014 and withdrew $10,000 from her superannuation. The wife was not in employment throughout the duration of the relationship but, as noted, received some workers’ compensation benefits.
Shortly after cohabitation, the husband received $145,000 from the sale proceeds of a house; the wife did not challenge that (see [30]). In 2014/2015, the husband received an inheritance of $240,000 which was used to pay for living expenses as well as buying the wife’s child from another relationship a laptop and television (at [32]). In 2016, the wife received the aforementioned $125,000 compensation payment.
The trial judge found that much of the money received by the parties was used to live a lavish lifestyle and fund their gambling. There was no challenge to the husband’s evidence to this effect at trial. The B motor vehicle was won by the wife at a car show in 2016.
In October 2017, the husband suffered a medical episode and his health is poor (at [44]). The trial judge found the wife also has health issues but that both parties are capable of low-paying employment (at [47]).
In assessing the justice and equity of a 50/50 division, the trial judge said this:
50.[The wife] believes that [the husband] has hidden assets and money from the relationship and for this reason she should retain whatever she has in her possession and receive a payment of money in excess of $100,000.
51.During the final hearing I also conveyed some concerns as [the husband’s] behaviour in his actions in dealing with property and monies seemed suspicious.
52.However upon reviewing all of the evidence before the court there is nothing to support that [the husband] has secreted or wasted assets.
53.[The husband] explained “We just went crazy, spending money. We lived a good life… she lived a good life with me”.
54.The evidence available supports the parties lived an expensive existence in the short time they were together and without the assistance of full disclosure, paper-trails and a forensic assessment of the finances I am only able to make one finding; namely that both parties participated in the dwindling away of the asset pool.
55.Therefore I find that a 50/50 division is a just and equitable division of the property pool.
(Emphasis added)
To achieve that 50/50 division, the B motor vehicle was required to be sold with the husband receiving $54,800 from the sale proceeds and the wife to receive $10,800, assuming sale yielded the value of $65,000.
On appeal, the wife seeks the following orders:
1.All I am seeking is that I keep the mustang he can have his tools, and motorbike.
2.As he has gone threw [sic] all the money, how is that my fault, it is a lot of money he had $500,000 as well as my money of $100,000. That is not fair, and he get’s [sic] $54,800, and me of $10,800,
(As per the original)
Grounds of appeal
The wife’s Notice of Appeal filed on 28 November 2019 contains four stated grounds of appeal as follows:
1.Not enough papper work from [Mr Rufino], No bank statements, he has not given me nothing, and the court.
2.My superannuation also, which was not in our 4 years we where together. I was on work cover. He has said in his statements that he was not after my super and the furniture.
3.I don’t understand that he get $54,200, and me $10,200, as he had all the money.
4.And my compensation money that he had as well please do not forget he had all the money in his account. It is not my fault that he has spent the money. And he now wan’ts my [B motor vehicle]. I don’t understand why.
(As per the original)
Clearly none of those grounds of appeal can be identified as proper grounds of appeal. However, acknowledging that the wife is self-represented it appears that her complaints crystallise to her belief that the husband had either hidden away money (by reference to his failure to provide bank statements), wasted money (by reference to him having spent “all the money”) and her complaint that the trial judge erred in including her superannuation in the property pool.
As for the contentions that the husband had money hidden or had wasted money, the trial judge directly dealt with those contentions in her reasons for judgment, as earlier quoted. The parties were offered the opportunity to adjourn the trial to obtain further evidence which the wife seemingly refused as the trial proceeded on the basis of the limited material before the trial judge. The wife cannot now legitimately argue that the evidentiary picture was incomplete when she did not take the opportunity offered to her at trial to put further evidence before the Court, nor did she cross-examine the husband at trial. Similarly with her contentions of wastage, there was insufficient evidence before the Court (as the trial judge noted) to determine that claim, instead the trial judge found that both parties had been responsible for diminishing the property pool by reason of their lifestyles.
This same contention regarding the husband’s failure to properly disclose his financial position is reflected in the wife’s Written Submissions including complaints regarding the true ownership of a number of boats in the name of the husband’s brother. As can be seen from the reasons for judgment, these contentions were addressed by the trial judge. They were not issues raised which were not dealt with by the trial judge.
In terms of the wife’s superannuation, it was clearly known to her Honour that the wife brought $50,000 of superannuation into the relationship as this was taken into account by the trial judge in the finding that the wife made an initial contribution superior to that of the husband.
In the absence of a trial transcript, it cannot be ascertained whether the wife mounted any argument at trial to the effect that her superannuation ought be excluded from the assets considered, or that a two-pool approach was more suitable, but the point of emphasis is that the trial judge clearly took account of the wife having brought superannuation into the relationship in the finding that the wife’s contribution of initial capital was superior to that of the husband and thus in the ultimate conclusion as to the 50/50 division of that which remained. The trial judge also took into account that in the post-separation period the wife withdrew $8,000 from her superannuation to fund her own living expenses.
In my judgment, none of the stated grounds of appeal advanced by the wife, or the discernible challenges within them, have any merit. That is so with due allowance for the feature that the wife is self-represented and has no relevant legal training or experience. Her postulated complaints on appeal amount to no more than a restatement of the same arguments she mounted at trial which, as the reasons of the trial judge reflect, were dealt with by her Honour.
It follows that the wife as applicant on this application does not demonstrate that refusal of her application would be productive of injustice because her complaints on appeal have no real merit and it would be futile to grant this application.
Delay
The explanation offered by the wife during the hearing of this application for her delay is that she is self-represented.
However, that does not constitute an adequate explanation for either the delay in attending to the filing of her Draft Appeal Index due by the end of December 2019, nor does it constitute any adequate explanation for the further delay by the wife until 2 March 2020 in the filing of this application.
In terms of prejudice, the husband simply contends to the effect that the subject proceedings were on foot for a considerable period and that the issues now advanced by the wife are those which were determined at trial and there is no useful purpose to be served in revisiting them.
Nature of litigation
The trial judge found that the combined property interests of the parties were exceedingly modest and were as follows:
20.I find that the de facto property pool available for distribution totals $144,600 consisting of the following:-
Non Superannuation Assets $ Value B motor vehicle 65,000 C motor vehicle 11,500 D motor vehicle 7,000 Motorcycle 3,000 Tools 2,000 Household contents 10,000 Remainder of compensation payout 6,100 TOTAL NON SUPERANNUATION ASSETS $104,600 Superannuation assets $ Value Superannuation 40,000 TOTAL SUPERANNUATION ASSETS $40,000 TOTAL DE FACTO PROPERTY POOL $144,600
The trial judge made orders for the sale of the B motor vehicle and on the assumption that it sells for $65,000 then the sale proceeds were to be divided as to $54,200 to the husband and $10,800 to the wife so that, taking into account the other items of property each was to retain, an overall division of 50 per cent/50 per cent would be achieved.
On the wife’s postulated orders sought on appeal she seeks an order that in lieu of sale of the B motor vehicle and the division of proceeds, she receive the B motor vehicle. In other words, the monetary value in dispute on appeal would be in the order of about $50,000.
In my judgment, the subject matter of the appeal provides little foundation for the wife’s claim that justice would be served by reinstating her appeal.
Conclusion
In my judgment the wife does not discharge the onus she bears on this application of demonstrating that justice would be served by granting her application. In my opinion, she does not identify proper grounds of appeal and such challenges as can be identified within her stated grounds do not have merit. Further, the wife’s delay in bringing this application is not adequately explained and there would not appear to be any features of this case that otherwise demonstrate that refusal of this application would be productive of injustice.
For these reasons, the application will be dismissed. As the husband, like the wife, was self-represented, there will be no order as to costs of this application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 July 2020.
Associate:
Date: 3 July 2020
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