Hagen & Hagen
[2024] FedCFamC1A 71
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hagen & Hagen [2024] FedCFamC1A 71
Appeal from: Hagen & Hagen (No 5) [2024] FedCFamC2F 38
Hagen & Hagen (No 6) [2024] FedCFamC2F 129
Appeal numbers: NAA 21 of 2024
NAA 43 of 2024File number: MLC 5784 of 2019 Judgment of: AUSTIN J Date of judgment: 2 May 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where in January 2024 the primary judge made consequential orders to facilitate the implementation of property settlement orders made between the parties in 2021 (“the final orders”) – Where the appellant appeals from the January 2024 orders (“the substantive appeal”) – Where the appellant’s application to stay the January 2024 orders was partially granted by the primary judge in February 2024 – Where the appellant seeks leave to appeal those orders (“the stay appeal”) – Where the substantive appeal is really a complaint about the final orders – Where the appellant’s grievance with the final orders cannot be ventilated in this appeal – Where the substantive appeal is dismissed – Where the appellant fails to plead any recognisable form of appealable error in the stay appeal – Where leave to appeal is refused – Where the appellant was wholly unsuccessful – Where impecuniosity is not a shield against a costs order – Appellant to pay the costs of the respondent in the fixed sum of $5,000. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, s 90SN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 12.17
Cases cited: Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66 Number of paragraphs: 35 Date of hearing: 2 May 2024 Place: Melbourne The Appellant: Litigant in person Counsel for the Respondent: Mr Goussis Solicitor for the Respondent: Mirabellas Solicitors ORDERS
NAA 21 of 2024
NAA 43 of 2024
MLC 5784 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HAGEN
Appellant
AND: MS HAGEN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 21/2024 is dismissed.
2.Leave to appeal is refused in Appeal NAA 43/2024.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the above appellate proceedings fixed in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hagen & Hagen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Several years ago, on 25 October 2021, property settlement orders were made between the parties pursuant to Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2). Relevantly, the orders required the parties’ principal asset – a parcel of real property (“the property”) – to be sold and the net proceeds of sale distributed so as to effect a 55/45 per cent division of the asset pool between the parties, favouring the respondent. The appellant did not appear at the trial, but did not appeal from the judgment.
The contract for sale of the property was not completed until May 2023, but a dispute then erupted between the parties as to the precise quantum of the net proceeds of sale available for distribution (the difference of opinion relating to $1,377.32, plus another sum approximating $3,000) and the manner in which the net proceeds should be distributed under the orders.
The respondent brought proceedings seeking variation of the original orders pursuant to s 90SN of the Act, but the primary judge instead made consequential orders simply to facilitate the implementation of the original orders, applying uncontroversial legal principles (at [41]–[49] and [54]–[59]). Just as the respondent’s variation application was rejected, the appellant’s countervailing application to “revisit in a wholesale way” the original orders made in October 2021 was also rejected by the primary judge (at [60]–[62]).
The consequential orders, made by the primary judge on 23 January 2024, expressly provide for the manner in which the net proceeds of sale, found to be the sum of $301,489 as the respondent contended, were to be disbursed. The original orders specified the priority in which the sale proceeds were to be disbursed (at [29]–[30]), which priorities were endorsed and quantified in the consequential order made by the primary judge (at [52]–[53] and [63]–[72]), factoring in the costs orders made during the course of the proceedings against the appellant which remained unsatisfied (at [31]–[37] and [77]).
Since the appellant had “prematurely arrogated to himself” a considerable amount of capital before the trial in October 2021, so as to implement the 55/45 division of the asset pool, it was necessary for the respondent to receive nearly all of the net proceeds realised on the sale of the property (at [25]). The appellant is to receive a residual sum of $12,917 (at [68], [71] and [77]). Otherwise, the parties retain certain items of personal property (at [26]–[27]).
To conclude the proceeding in January 2024, the primary judge made this order:
1.The following order be made in substitution for Order 11 of the Orders of 25 October 2021:
The proceeds of the auction or private sale be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the auction or the sale;
(b)secondly, to discharge any mortgage, liability for any utilities or other encumbrances affecting the property;
(c)thirdly, to pay the [the respondent] the following sums and to discharge liabilities of:
(i) $2,850 to Mr B; and
(ii) $10,000 to Ms C;
(d)fourthly, the sum of $249,723, being 55% of the remaining asset pool to [the respondent] less $11,000, being the total value of [the respondent’s motor vehicle] and her diamond ring, by payment made to [the respondent’s solicitors’] trust account, noting the asset pool totalling $474,043 is made up of the following:
(i)the sum of $301,489 being the balance of the proceeds of the sale;
(ii)monies, in the sum of $62,613, withdrawn by [the applicant] from his [bank account];
(iii)monies, in the sum of $70,941.91, redrawn by [the applicant] from [the mortgage account];
(iv)the [motor vehicle] owned by [the applicant], valued at $28,000;
(v)the [motor vehicle] owned by [the respondent], valued at $2,000;
(vi)[the respondent’s] diamond ring, valued at $9,000;
(e)fifthly, the sum of $26,000 to [the respondent], by payment to [the respondent’s solicitors’] trust account, pursuant to costs orders made on 25 October 2021, 15 December 2021 and 24 May 2022; and
(f)sixthly, the balance then remaining, in the sum of $12,917, to [the appellant].
(Emphasis in original)
The primary judge also ordered the parties to implement the first order (Order 2), empowered a registrar to sign documents to implement the first order if either party breached the second order (Order 3), confirmed that all other orders made in October 2021 remained valid and operable (Order 4), and granted the parties liberty to apply if more consequential orders were needed (Order 5).
The appellant appealed from all five orders on 25 January 2024.
Several days later, on 30 January 2024, the appellant applied to stay the appealed orders made on 23 January 2024. The stay application was entertained and partially granted by the primary judge on 6 February 2024. By the time the stay application was heard, the appealed orders had already been partially implemented and the stay now operates to restrain the disbursement of the residual balance of the net proceeds of sale pending determination of the substantive appeal.
By another application filed on 23 February 2024, later amended on 15 April 2024, the appellant seeks leave to appeal from the stay order made on 6 February 2024 apparently because, even though the stay order favoured him, he does not believe it was favourable enough.
The substantive appeal
The appellant is self-represented and due allowance is made for such disadvantage, but the substantive appeal is devoid of merit as the grounds of appeal disclose no appealable error.
The grounds of appeal are pleaded as follows in the Amended Notice of Appeal filed on 15 April 2024:
1.I request urgent leave to appeal as there has been serious miscarriage of justice as per the Family Law Act sections 90SM, 90SM. The order made 23-1-24 gives me 4% of my own house sale while 96% goes to [the respondent], this is not a order made in any type of fairness on 23-1-2024. I am in extreme financial hardship and I have to represent myself as no lawyer will take on case this is totally unacceptable that I receive $12,000 from the amount of $303,000 from the sale of my own house, especially as [the respondent] was arrested for assaulting me [...] which was the start of the Family Court proceedings.
2.I seek urgency as once [the respondent] receives money the money will disappear and be unrecoverable.
3.I have lodged contempt application and defamation applications against [the respondent] orders were made in favor of, these are supporting case of grounds of appeal/leave for appeal.
(As per the original) (Emphasis altered)
Ground 1 purports to be a complaint about the orders made by the primary judge on 23 January 2024 but, since the primary judge did not make any substantive changes to the orders originally made in October 2021, it is really a complaint about those original orders. As the appellant brought no appeal from those orders, he cannot contest that former judgment in an appeal from another judgment which does no more than facilitate the implementation of the first. The primary judge expressly acknowledged the appellant’s dissatisfaction about receiving only $12,917 from the net proceeds realised on the sale of the property, but that result was integral to effecting a 55/45 per cent division of the parties’ assets.
Ground 2 is not a ground of appeal, but rather a request for the appeal to be heard urgently. It is heard promptly.
Ground 3 is not a ground of appeal either. It only alleges more proceedings have been instigated by the appellant.
The appellant’s Summary of Argument does not address his three grounds of appeal. Rather it appears to chiefly address the remedial orders he seeks, supposing the appeal is successful.
Underlying this appeal is the appellant’s grievance with the fairness of the orders originally made in his absence in October 2021, in relation to which he submitted in his Summary of Argument:
The orders made by [the primary judge] on 23-1-2024, which are Machinery Orders of previous Orders, are NOT in touch with reality and are lazy…
…
I have beyond all reasonable doubt proved that I was unaware of any Orders until September 2022…how am I supposed to Appeal Orders that I do not even know exist?
The grievance with the original orders cannot be ventilated in this appeal. That would take an application within original jurisdiction to vary the original orders under r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), due to the appellant’s failure to participate in the original hearing in October 2021, or the grant of permission to bring an appeal from those orders out of time, which should not be taken to suggest that either remedy is likely to yield any success.
The substantive appeal is dismissed.
The stay appeal
Since the substantive appeal has no merit, the stay appeal becomes pointless. Nonetheless, it can be disposed of swiftly.
By the time the appellant’s stay application was heard on 6 February 2024, the sum of $83,974 had been disbursed from the net proceeds of sale being held in trust for the parties by the respondent’s solicitors, leaving a balance of $177,234. Another $40,821 was held in trust for the parties by the appellant’s conveyancers, leaving an overall balance of $218,055.
The primary judge stayed the appealed orders conditionally, allowing a further $66,206 to be disbursed from the respondent’s solicitors’ trust funds for two purposes: first, the payment of liabilities amounting to $12,850; and secondly, the payment of $53,356 to the respondent in partial satisfaction of her entitlement under the property settlement orders.
The effect of the stay orders was to retain $151,849 in the two trust accounts pending the outcome of the substantive appeal (at [45]).
Although the appellant applied to supposedly stay the operation of the appealed orders, he actually sought contradictory orders requiring that $40,000 be released to both parties due to financial hardship (at [17] and [26]).
Correctly, the primary judge recognised that if the appealed orders were not stayed, all but $12,917 of the trust funds would be disbursed to creditors and the respondent and the substantive appeal would be rendered nugatory (at [27]). His Honour determined not to release $40,000 to the appellant, as that would absurdly contradict the orders made in October 2021, which were subsequently endorsed by the appealed orders (at [28]). His Honour also recognised how delaying the release of funds to the respondent would unreasonably deny her the fruits of the judgment to which she was presently entitled (at [34]). In the exercise of discretion, orders were made allowing the release of some further funds to the respondent, but the retention of sufficient funds to cover any entitlement the appellant could reasonably expect to demonstrate should his substantive appeal be successful (at [35]–[46]).
As with the substantive appeal, the appellant failed to plead any recognisable form of appealable error vitiating the stay order. The grounds of appeal in the Amended Notice of Appeal filed on 15 April 2024 state:
1.[The primary judge] allowed [the respondent] $66,000 be released to her as she lives in a “[shared accommodation]” which is false, [the respondent] has [multiple relatives] that she is able to live with in Melbourne. Also reason given was for [the respondent] to pay legal fees for the SAME trial I am attending which is deciding the future of our Children [names and age], in The Childrens Court of Victoria Melbourne. Once again [the primary judge] has taken directions almost word for word from [the respondent’s solicitors’]. There is no fairness here. [The respondent] is able to also buy her own house right now if she wanted as her Aunt [name] [works in the financial sector]. I have already provided enough evidence to the court that I was the 90% contributor to the 2 house mortgages. Despite this [the primary judge] continues to hand on to the 25-10-2021 Order THAT I WAS NOT PRESENT FOR or advised about in any way for, in which [a named judge] states that I am a Polygamist, and a Pimp, in a marriage-like relationship with a Sex Worker, and Did Not work at all. This is the very definition of defamatory, even if one person hears this, including me, as a true statement. Somehow my family has become aware of this and have disowned me as if it is coming from a court surely it is true. Has a normal person have any idea how furious I am about these FALSE officially recognised statements which is a normal HUMAN REACTION ? I wonder how a family court Judge would feel if I described them as being married to multiple people at the same time, and one of them is a sex worker giving all the money to them (“a Pimp”). Do I need again to provide my own 20+ architectural drawings of my house that I had custom built for our Children, that [the respondent] does not care about as her only concern was about having it sold for money? I had already been a single Father to my [children] in our house for 1 year. [The respondent] has not had contact with them from 2018 due to her assaulting me with a weapon while in psychosis on [...], being in denial that it ever occurred, not apologising to me in any way. There is no sense of the justice, as described in The Family Law Act 1975 states in Sections 90SN and 90SM.
2.Amount stated in Order Part C. being $301,489. is incorrect, as CORRECT figure is $302,866.30 for the sale of MY HOUSE at [address] as per original proceedings in 2023. [The respondent’s solicitors’] have cited a different reduced figure of $301,489.00 to the court from late December 2023 to now, they are resonsible for the discrepancy therefore will be deducted from amounts entitled to them, being $1,377.30.
3.[The primary judge] (misnomer) Ordered that I receive nothing intermediately despite the proceeds being the sale of my OWN house and MY money, and in reality I am surviving on 20 point voucher cards for free food that is technically “OFF” over-the-used-by-date given to myself sparingly monthly by N.D.I.S. workers that are paid $200 per hour. The FCFCOA are treading a very fine line. Who is responsible for punishment of the court when the court in UNJUST. When the court takes directions from Corrupt Lying Money-Centric Lawyer (which is party of my Contempt application ongoing) such as [the respondent’s solicitor] who associates with convicted murderers from criminal organisations, in [Subrub D Prison] (Fact); And when the court directs me to get advice from F.A.S.S., who said to me quote: “what is the Southern Appeals Court? I have never heard of it?”; When you are fighting the court system for YOUR OWN MONEY THAT YOURSELF EARNT. When is it time to take the law into your own hands? Note that I will define “COSTS” very differently to lawyers and barristers, and at my own discretion. I DO however want to still have hope in Australian Justice System.
(As per the original)
Grounds 1 and 3 are narratives of discontent about the conditions upon which the stay was granted, but the expression of such discontent does not establish any error.
Ground 2 refers to a notation to the orders, with which the appellant disagrees, but appeals do not lie from notations (Oberlin & Infeld (2021) FLC 94-017 at [44]).
In his Summary of Argument, the appellant asserts:
The Orders of 6-2-2024 which are in part just a repeat of the previous unfair and unlawful Orders which 100% were made in FAVOUR of [the respondent] with only [the respondent] and her lawyers [name of lawyers] appearing, and should be disregarded completely, as were made in the complete absence of myself.
The stay orders may have been made in the appellant’s absence on 6 February 2024. However, the hearing was held some days before on 2 February 2024, at which hearing the appellant appeared. The primary judge received his submissions and, after hearing from the respondent, granted him the right of reply. He was heard. Judgment was then reserved and pronounced by the primary judge several days later.
The complaints in the stay appeal are without merit and the application for leave to bring it would be dismissed regardless of the dismissal of the substantive appeal.
Disposition
The substantive appeal is dismissed and leave to appeal from the stay order is refused.
Following the pronouncement of those orders, the respondent sought an order for the appellant to pay her party/party costs of and incidental to the appellate proceedings. She did not wish to be heard in opposition to an assessment of her party/party costs in the sum of $5,000.
The appellant vacillated about whether he opposed the application for costs, but I proceed on the assumption he did so due to his poor financial circumstances. That material consideration is taken into account, but is outweighed by the appeal and the application for leave to appeal both being unwholly unsuccessful and so lacking in merit they ought not have been brought. Impecuniosity is not a shield against costs orders.
An order for costs in the sum of $5,000 is made in favour of the respondent, such sum being fixed pursuant to the power reposing in r 12.17(1)(a) of the Rules.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 2 May 2024
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