JANOS & KAREL
[2015] FamCAFC 85
•14 May 2015
FAMILY COURT OF AUSTRALIA
| JANOS & KAREL | [2015] FamCAFC 85 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant was self-represented in the appeal – All grounds of appeal lack merit – Appeal dismissed – Order for the appellant to pay fixed costs, but not on an indemnity basis. |
| Family Law Act 1975 (Cth) – s 75(2), s 79A |
| Stanford v Stanford (2012) 247 CLR 108 |
| APPELLANT: | Mr Janos |
| RESPONDENT: | Ms Karel |
| FILE NUMBER: | PTW | 1521 | of | 2013 |
| APPEAL NUMBER: | WA | 21 | of | 2014 |
| DATE DELIVERED: | 14 May 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 10 February 2015 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2014 |
| LOWER COURT MNC: | [2014] FCWAM 158 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Beckerling |
| SOLICITOR FOR THE RESPONDENT: | Leach Legal |
Orders
The appellant’s Application in an Appeal filed 1 December 2014 be dismissed.
The respondent’s Application in an Appeal filed 29 January 2015 be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs, fixed in the sum of $10,000, within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janos & Karel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 21 of 2014
File Number: PTW 1521 of 2013
| Mr Janos |
Appellant
And
| Ms Karel |
Respondent
REASONS FOR JUDGMENT
The husband has appealed against orders made by Acting Magistrate Kaeser (as his Honour then was) on 31 July 2014. The appeal is opposed by the wife.
The orders provided for an equal division of assets following a short marriage. In determining that this outcome was just and equitable, the Magistrate found that contributions were equal and that there was no basis for an adjustment for the factors in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
Wife’s application for summary dismissal of the appeal
On 29 January 2015, the wife applied for the appeal to be summarily dismissed and for the husband to pay her costs on an indemnity basis. This application was listed for hearing at the same time as the appeal.
The application arose out of the husband’s failure to comply with procedural orders relating to the appeal and his failure to comply with the order for costs relating to the proceedings before the Magistrate.
The husband was self-represented throughout the appeal proceedings. The difficulties associated with this were exacerbated by the fact that English is not his first language. While I accept the husband made a concerted effort to comply with the procedural orders, ultimately there was an abject failure to prepare the appeal properly. This included a belated purported amendment of the Notice of Appeal and a failure to provide a proper summary of argument. Notwithstanding the many irregularities, counsel for the wife was able to apprehend the basis upon which the husband wished to mount his appeal and provided a summary of argument dealing with most of the grounds.
In these circumstances, I considered the interests of justice would be served by allowing the husband to present his argument, provided there was no prejudice to the wife, before determining the application for summary dismissal. Having heard the husband’s oral argument, counsel for the wife was able to rely almost entirely upon his written summary of argument. As there was accordingly no prejudice to the wife, I decided it would not be appropriate to summarily dismiss the appeal on account of the irregularities in its presentation.
It is unnecessary to engage with the argument concerning the Court’s capacity to dismiss the husband’s appeal because of his failure to meet the costs order. Counsel conceded that the power was discretionary. In the exercise of my discretion, I decline to dismiss the appeal on this basis, especially as the costs order itself would be open to challenge if the appeal succeeded.
For these reasons, the application for summary dismissal will be dismissed.
Husband’s application to introduce further evidence
On 1 December 2014, the husband filed an Application in an Appeal, which was supported by affidavits sworn by him and his cousin. The husband’s affidavit extended to 146 pages, including numerous attachments that were apparently not before the Magistrate. The purpose of this additional documentation was not entirely clear, but it seems to have been proffered with a view to introducing further evidence in the appeal, and by way of a submission in support of the appeal.
Having explained to the husband the limits on the discretion to receive further evidence, I asked him to make submissions as to why I should receive any of the additional material. No cogent argument was presented to support the application. Much of the material was contentious and/or repetitive of arguments advanced before the Magistrate, and seemed primarily designed to show that the wife gave false evidence or suppressed evidence. As I explained to the husband, such arguments should be mounted in proceedings under s 79A of the Act, where there is opportunity for the allegations to be challenged. They cannot properly be assessed in appeal proceedings.
For these reasons, the husband’s Application in an Appeal will be dismissed.
Amendment of Grounds of Appeal
Shortly prior to the hearing, the husband attempted to file an amended Notice of Appeal, containing many more grounds than the four unintelligible complaints in the original Notice. I had explained to the husband at a directions hearing in October 2014 that he needed to seek advice in relation to the formulation of his grounds, but it appears he did not obtain such advice.
The husband’s first attempt to file an amended Notice of Appeal was rejected by the Appeal Registrar, and the second was also rejected because the time to amend had passed. Nevertheless, at the appeal hearing, I granted the husband leave to amend his grounds in the form set out in the amended Notice lodged by him on 6 February 2015.
The grounds of appeal
There were 23 grounds of appeal in the amended Notice, although two were numbered “7”. In the course of argument, the husband abandoned the second Ground 7 as well as Grounds 12, 14, 15, 19 and 21.
For the reasons that follow, I consider all the remaining grounds lack merit.
The grounds of appeal set out in the course of these reasons are taken verbatim from the amended Notice and all errors are in the original.
Ground 1 – Commonwealth Bank statement
By this ground the husband complains that the wife:
failed to disclose to the court her financial statement from her Commonwealth Bank account number … 840 for the amount of $71,174.38 AUD deposited on the 24th July 2008…
Like all the others, this complaint seemed to be directed toward what was said to be the giving of false evidence or the suppression of evidence by the wife or her advisers. Such complaints demonstrate a misapprehension of the process of appeal, which is designed primarily to identify error by the presiding judicial officer, not malefaction on the part of the respondent. In any event, there was no substance in this complaint, since the wife did disclose the financial statement referred to in Ground 1 (see Annexure “H” to her trial affidavit).
In his oral argument, the husband asserted that the wife falsely claimed that she could not obtain any later statements for this particular account. However, no issue was taken at trial concerning the wife’s assertion that the husband removed the statements, and it is now not open to the husband to complain.
The husband also claimed that he instructed to his lawyer to issue a subpoena to obtain the later statements, but that his instructions were not followed. That is a matter between the husband and his former lawyer.
Finally, the husband sought to argue under this ground that the Magistrate should not have assumed that the monies in the account were used for the renovation of the matrimonial home. However, this assertion was so far removed from the ground as drafted that it would not be appropriate for the husband to be permitted to agitate it.
Ground 2 – German superannuation fund
By this ground the husband alleges that the wife:
failed to disclose her German Ergo Supper Funds registered in [the wife’s] name valued at EUR 45,353.07 dated 01/09/2011.
Apart from the fact the complaint is directed toward the conduct of the wife rather than error on the part of the Magistrate, I note the undisputed assertion of counsel that the superannuation fund was disclosed by the wife in the index annexed to her Undertaking as to Disclosure. Further, notwithstanding the wife’s evidence that she no longer had any superannuation in Germany, the Magistrate included it as one of her existing assets for the purposes of the division. As counsel for the wife pointed out, if the Magistrate erred in relation to the superannuation, his Honour did so in a way that favoured the husband.
Ground 3 – Disability pension
By this ground it was asserted that the wife:
fabricated evidence that [the husband] was on disability pension from 2006 to 2010.
The husband did not dispute the assertion of counsel for the wife that the wife did not claim at trial that the husband was in receipt of a disability support pension. Furthermore, there is no finding in his Honour’s reasons that the husband was in receipt of such a pension from 2006 to 2010. The only reference to a disability support pension was in the part of the reasons where the Magistrate was discussing the s 75(2) factors, in which his Honour recorded at [68] that the husband was in receipt of a pension at the time of trial.
It is common ground that the husband was not, in fact, in receipt of a pension at the time of trial. Indeed, the Magistrate found at [49] that the husband “has been unemployed for some time and has been living off [his] savings”. The husband now claims that he was working at the time. Whether that be true or not, there is no indication that the erroneous finding at [68] influenced the decision in any way that was unfavourable to the husband.
Ground 4 – Forgery of documents
By this ground it was asserted that the wife:
submitted forged documents to the court for the sale of property in Croatia for EUR 10,000.
The husband was not able to take me to any part of the transcript to demonstrate that it was put to the wife that she forged the documents relating to the sale of the property in Croatia. The only issue at trial was whether the wife sold the property at less than its value.
Ground 5 – The duplex in Germany
By this ground it was asserted that the wife:
gave false evidence to ownership of her duplex property [in Germany] and share of settlement of EUR 140,000.00 in 2007. PTW1521/2013 P33 [the wife] stated that she did not own the said property.
Again, this complaint fails to identify error on the part of the Magistrate. Furthermore, it proceeds on the basis of a false premise, since the wife did not deny owning the “duplex property in Germany” (although she acknowledged she sold her half interest to her former husband in 2007). Indeed, the husband’s own evidence accepted that she did own it – see [8] of the reasons.
Ground 6 & 7 – Work done to the Suburb K property
By these grounds it was asserted:
6.[he wife] gave false evidence in her involvement in renovating and expenses of [the Suburb K property].
7.[the wife] gave false evidence of the condition of the house situated [in Suburb K].
The husband’s argument in support of these grounds boiled down to a complaint that the Magistrate had not accepted his evidence concerning the timing and extent of renovations made to the Suburb K property, which he owned at the commencement of the relationship.
The Magistrate found at [61] that the truth concerning the renovations lay somewhere between the versions provided by the parties. Nothing put by the husband demonstrated that the finding was not open to the Magistrate.
Ground 8 – Wife’s back injury
By this ground it was asserted that the wife:
gave false evidence and fabricated evidence about her back injury.
The Magistrate only made two references to the back injury. At [45] his Honour said, “the wife no longer operates her business and it has no value given her back condition”. At [67], when dealing with the s 75(2) factors, his Honour found:
The wife has suffered from some back pain since 2009. This pain still affects her and she is not able to work in the same manner she did during the marriage. …
In his submissions on appeal, the husband claimed that the wife sustained her back injury in 2004, and that the injury was so severe that it would have prevented her from carrying out the extensive renovation work she claimed to have undertaken around the husband’s home.
The husband claimed to have a copy of a medical certificate disclosed by the wife, which allegedly revealed that her injury occurred in 2004. Although some medical certificates were produced by the wife in evidence at trial, it appears this one was not. No explanation was proffered as to why it was not produced, or why the wife was not cross-examined on the alleged inconsistency between her evidence and the information in the certificate. In any event, the Magistrate was not prepared to accept the wife’s evidence concerning the extent of her work on the husband’s property and found that most of the work was cosmetic in nature, as appears from the following extract:
61.I do, however, accept that the extent of the renovations and improvements done by the wife were not as great as she claimed. They were, however, also not as minor as the husband claimed. In my view, the majority of the work done by the wife, or paid for by the wife, were [sic] cosmetic in nature; such as repainting, replacing either broken items or changing rooms to suit her taste rather than the husband’s taste. There was little major renovation work done by the wife such as creating additional rooms or completely gutting and renovating rooms (save for the bathroom). In addition, there is no evidence as to whether any of the work done on the property has increased the value of the property.
Grounds 9 & 10 - Wife’s entry to Australia
By these grounds it was asserted that:
9.[the wife] statement given under duress false statement about [the husband] 2007 sponsorship to Australia.
10.[the wife] failed to disclose relevant information regarding visa entry into Australia, 2007.
Quite apart from the fact that the husband was unable to take us to any material to demonstrate that the wife gave false evidence about these matters, there was no reference to them in the Magistrate’s reasons. Accordingly, there is no indication that they had any bearing on the outcome.
Ground 11 – Evidence regarding cohabitation
By this ground it was asserted that the wife:
failed to disclose relevant information regarding cohabit during 2007 to 2010.
Apart from the fact that ground does not allege error on the part of the Magistrate, the husband was unable to explain what the “relevant information” was.
Ground 13 – Finances in 2007 and 2010
By this ground it was asserted that the wife:
gave false evidence regarding [the husband’s] financial status during 2007 and 2010.
It appeared from the oral submissions that the complaint under this ground was that the Magistrate preferred the wife’s evidence concerning the parties’ financial circumstances during cohabitation. Nothing advanced by the husband persuaded me that it was not open to the Magistrate to make the findings his Honour did about the parties’ financial circumstances.
Ground 16 – Passport information
By this ground it was asserted that the wife:
failed to disclose relevant passport information regarding traveling during 2007 and 2010.
Even the husband was not persuaded there was any error in relation to this ground.
Ground 17 – Failure to disclose relevant information
By this ground it was asserted:
[the wife’s solicitors] failed to disclose relevant information and suppression of evidence regarding visa, divorce, bank statements, and medical condition and traveling documents of client [the wife] during 2007 and 1010.
Once again, the submissions made under this ground concerned matters that would be more appropriately directed to an application under s 79A.
Ground 18 – Issue regarding cohabitation
By this ground it was asserted:
[the wife’s solicitors] fabricated allegation regarding co-habitation from August 2008 and 2010.
This ground does not require discussion, since it is scandalous and fails to identify error on the part of the Magistrate.
Grounds 20 and 22 – Misleading the Court
By these grounds it was asserted:
20.[the wife’s solicitors] deliberately mislead the court in preparing [the wife] Asset/Liability evidence.
22.[the wife] and [the wife’s solicitor] delibertly mislead court of assect of $220,000.
The husband’s complaints under these grounds appeared to be that the Magistrate included in the list of assets a property the wife owns in Germany worth $220,000. (There was a large liability relating to this property, which the Magistrate did not take into account for reasons his Honour explained.)
The husband’s submissions indicate a misunderstanding of the purpose of the Magistrate compiling a list of assets and liabilities. The Magistrate said at [50] that he was obliged by the decision in Stanford v Stanford (2012) 247 CLR 108 to make findings as to the existing assets and liabilities of the parties, which his Honour went on to do. It is not in dispute that the wife owns the property in Germany, and therefore his Honour’s finding was the only one available.
Later in his reasons, the Magistrate considered the contributions of the parties to all the assets. In doing so, his Honour noted that the husband owned the Suburb K property at the commencement of the relationship; that the wife acquired the property in Germany after the conclusion of the relationship; and that the husband had made no contribution to the latter property. His Honour then found that the parties made equal contributions to the overall assets, including the Suburb K property and the German property.
It will thus be seen that having included the German property in the assets to be taken into account, his Honour then considered that property when assessing the contributions. There is no error in that approach.
Outcome and costs
There being no merit in any of the grounds, the appeal will be dismissed.
If the appeal was dismissed, counsel for the wife sought that the husband pay the wife’s costs on an indemnity basis in the sum of $20,540 (being solicitors’ fees of $12,290 and counsel’s fees of $8,250). In support of his application, counsel drew attention to the fact that I told the husband at the directions hearing that he needed legal advice. It was submitted that had the husband taken advice, he would have known his appeal had no merit. If I was not prepared to make an order for indemnity costs, counsel sought costs on the usual basis, which he asked to be fixed to avoid the necessity for an assessment.
I am satisfied that the husband should pay the wife’s costs. Firstly, the husband has been entirely unsuccessful in his appeal. Secondly, the wife’s costs were increased as a result of the erratic way in which the husband conducted the appeal. Thirdly, the wife was put to the expense of making an entirely appropriate application for the husband’s appeal to be summarily dismissed, and she had to deal with his unmeritorious Application in Appeal. Finally, it is relevant to observe that the financial positions of the parties are similar.
In these circumstances, I propose to make an order for the husband to pay the wife’s costs in relation to the appeal; the wife’s application for summary dismissal; and the husband’s Application in an Appeal.
While there is a strong argument that the husband, if properly advised, would have been told his appeal had no merit, I also consider that, properly advised, he may have recast his appeal so as to make it at least reasonably arguable. In these circumstances, and in the exercise of the discretion conferred on me, I do not propose to award costs on an indemnity basis.
I consider that the request to fix the amount of costs has merit, because it will obviate the need for a lengthy (and itself expensive) assessment process. By this means, the matter will (hopefully) be brought to an end – noting that the parties have now been separated for more than four years. In fixing the costs, I have the benefit of an affidavit of the wife’s solicitor concerning the costs incurred, as well as my own experience in dealing with appeals and the costs associated with them.
Taking a broad-brush approach, and erring on the side of caution in the husband’s favour, I propose to fix costs in the amount of $10,000, which the husband should pay within 28 days.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 14 May 2015.
Associate:
Date: 14 May 2015
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