Kemper & Kemper
[2023] FedCFamC1A 96
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kemper & Kemper [2023] FedCFamC1A 96
Appeal from: Kemper & Kemper [2023] FedCFamC2F 29 Appeal number(s): NAA 28 of 2023 File number(s): MLC 13301 of 2020 Judgment of: TREE J Date of judgment: 21 June 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Leave refused to advance an argument not foreshadowed in the husband’s Summary of Argument – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file material – Where the final hearing proceeded on an undefended basis – Where the husband declined the primary judge’s invitation to make submissions – Where procedural unfairness is not established – Adequacy of reasons – Where justice is able to be seen to have been done – No ground of appeal made out – Appeal dismissed – Costs ordered in favour of wife. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Number of paragraphs: 56 Date of hearing: 8 June 2023 Place: Cairns (via video link) Counsel for the Appellant: Ms Judge Solicitor for the Appellant: Long Saad Woodbridge Lawyers Counsel for the Respondent: Mr Moore Solicitor for the Respondent: Mills Hebbard Moore ORDERS
NAA 28 of 2023
MLC 13301 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KEMPER
Appellant
AND: MS KEMPER
Respondent
order made by:
TREE J
DATE OF ORDER:
21 june 2023
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 5 June 2023 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $12,909.22 within 28 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kemper & Kemper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By his Amended Notice of Appeal filed 5 June 2023, Mr Kemper (“the husband”) appeals from final property settlement orders made by the primary judge on 20 January 2023. Those orders effected a division of the parties’ net property in the proportions of 55/45 per cent in favour of Ms Kemper (“the wife”).
The wife opposes the appeal. For the reasons which follow, the appeal will be dismissed.
BACKGROUND
At the time of trial, the wife was 77 and the husband was 66. They commenced cohabitation in 1976, married in 1986 and finally separated in January 2019, thereby concluding a relationship of approximately 43 years. There is one adult child to the marriage.
The principal asset of the relationship, a property at D Street, Town B (“the Town B property”) was purchased in 1981 for around $50,000 funded by the husband’s father. The Town B property has water access licenses. Both the Town B property and the water access licenses are held in the name of the company C Pty Ltd (“the company”) of which the husband and his father were equal shareholders. In 2000, the husband’s father died, but his shares still remain in his name.
Following separation, the husband and wife continued to live in the Town B property until August 2020 when the husband moved out with his current partner to rental accommodation. The wife remains living in the Town B property with the parties’ son.
In December 2020, the wife initiated these proceedings. On 15 March 2021, a registrar made interim consent orders providing, inter alia, for the wife to have sole occupancy of the Town B property (Order 2), that the husband be restrained by injunction from entering the Town B property (Order 3) and each party be restrained by injunction from encumbering or disposing of any property or funds belonging to the family trust or company without written consent of the other party (Order 4). The matter was also then set down for a two day final hearing commencing on 9 February 2022.
In December 2021 or January 2022, in clear breach of the 15 March 2021 orders, and without notice to the wife, the husband caused 90 per cent of the water access licenses attached to the Town B property to be sold for the sum of $175,000.
On 9 February 2022, instead of the trial proceeding, orders were made adjourning the matter and requiring the husband to pay the sum of $152,162 (being the balance of the sale proceeds of the water access licenses) into the trust account of his solicitor. That order has never been complied with. In April 2022, the husband became self-represented and has remained so thereafter.
On 13 September 2022, the matter was again set down for final hearing to commence on 14 December 2022 and detailed trial directions were then made, including for the filing of material and prohibiting reliance on prior material. The husband failed to comply with those trial directions, which resulted in the chambers of the primary judge sending multiple requests and reminders to him of the due date for trial material and the potential consequences of non-compliance. Still no trial material was filed by the husband.
On 8 December 2022, the husband filed an affidavit in which he indicated that he sought an adjournment of the final hearing.
On 14 December 2022, the final hearing came on before the primary judge. After hearing from each party as to how the matter should proceed, her Honour ruled that the hearing would proceed on an undefended basis, with the husband only being permitted to make submissions concerning the orders he would ask the Court to make. However when given that opportunity, he declined it.
THE 8 JUNE 2023 RULING
During the course of the hearing of the appeal, counsel for the husband sought leave to advance an argument which had not been previously foreshadowed, whether in the husband’s Summary of Argument or elsewhere. I refused leave for reasons to be delivered later, which now follow.
Counsel was unable to explain why the new argument had not been included in the husband’s Summary of Argument, nor why it had not previously been otherwise foreshadowed in any way. Counsel for the wife said he was unable to deal with it without adequate notice, and although counsel for the husband disputed that, I am well satisfied that the wife could not fairly deal with it on 8 June 2023. If the new argument was permitted to be advanced, that would have therefore either seen the appeal adjourned, or a further sequence of written material exchanged and filed.
Moreover the argument did not appear to fall within the ambit of either ground of appeal, but rather pointed to an alleged defect in the primary judge’s orders, in that it was said the requirement that the husband transfer to the wife all the shares in the company was impossible for him to comply with, as half of them were not in his name.
I therefore refused leave for the husband to introduce the new argument.
Ground 1
The first ground contends:
1.The [primary judge] failed to afford the Appellant procedural fairness or a fair trial of the proceedings.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [94]).
In broad terms, the husband asserted that the procedural unfairness was of two kinds, comprising firstly, a failure to afford him a fair trial, and secondly, other procedural unfairness.
The failure to afford a fair trial was said to be failing to permit the husband to put forward relevant material and to make submissions in support of his case. However the simple answer to that complaint is that the 13 September 2022 orders, which permitted the husband to file material, were not complied with, and as I have already noted, the invitation to make submissions was expressly declined by the husband on 14 December 2022. Therefore it seems clear that any lack of material or submissions is directly the fault of the husband, and not the product of any failure by the primary judge.
However, ignoring that inconvenient truth, and calling in aid the authority of Re F: Litigants in Person Guidelines (2001) FLC 93-072, the husband contended that some further duty was cast on the primary judge to, in effect, make him aware of ways in which his deliberate failure to file material might be ameliorated. To understand that argument, a little further detail is needed.
On 14 December 2022, the primary judge initially asked counsel for the wife how he contended the hearing should proceed, and then had the following exchange with the husband:
HER HONOUR: [The husband], you’ve heard from [counsel for the wife]. His instructions are that we proceed today on what is referred to as an undefended basis. What that means, and there are some different ways in which the court can interpret undefended, but the way in which [counsel for the wife] is asking the court to proceed is that the evidence that his client, the [wife], has filed would be relied on. The court would take that evidence into account. You would not be permitted to cross-examine that evidence and, of course, the court needs to still be satisfied as to the matters which are in that material and it needs to be satisfied more generally about the case that the [wife] makes before it would make orders that the [wife] asks the court to make on this property application.
But your role would be limited, and it would be limited because of the failure to comply with the court orders. In particular, orders that required you to file and serve a trial affidavit, a case outline, to cooperate with the [wife] in the preparation of a court book, to provide a joint chronology and to identify the asset pool. So there were a number of procedural orders that were made back in September and I note from the orders that you were in attendance on that date. It was a hearing that was conducted by Microsoft Teams and Bender J was quite specific and quite clear on that occasion as to what was required from you and the dates by which that was required.
But also, the consequences that might attend the failure to comply with those orders, including but not limited to the proceeding being directed to proceed undefended. So certainly my preliminary view is I am minded to accede to the submission made by the [wife] that the matter proceed undefended, save and except that I would permit you to make submissions as to why it is that you oppose the orders that the [wife] seeks and why I should make the orders that you seek in relation to this proposed property settlement. So I will hear from you. You’ve heard and have the benefit of my preliminary views but I am happy to hear from you, sir, as to what you say I should do this morning.
[THE HUSBAND]: Good morning. I am a living, breathing man and am present here today as the executor of [Kemper estate], [C Pty Ltd]. I am here under duress, and I come in peace to help settle this matter peacefully. Do you accept that? Do you accept that? Do you accept that?
HER HONOUR: Well, are you suggesting that you would be open to discussions with [counsel for the wife] in terms of settling the matter?
[THE HUSBAND]: Do you accept what I’ve just said?
HER HONOUR: Well, I’m not quite sure what you’re asking me to accept. So I’m not going to go through and break down exactly what it is that you’ve said this morning. I’m really just interested in what you’re asking me to do. Now, you mentioned the word settled. So I’m not sure whether that’s an invitation for me to stand the matter down so you can have some sensible discussions with [counsel for the wife], or whether you had something else in mind, but I need to understand fairly quickly. The court’s time is precious. You’ve been given two days and we’re eating into that fairly rapidly. I need to get to the chase, please.
[THE HUSBAND]: Yes. I am the executor of the estate, the name [C Pty Ltd]. Is there anyone here who has a claim against the estate? Is there anyone here who has a claim against the estate? Is there anyone here who has a claim against the estate?
HER HONOUR: All right. I’m going to interrupt
[THE HUSBAND]: For the record - for and on the record
HER HONOUR: I’m going to ask you to sit down, sir.
[THE HUSBAND]: Let the record show – excuse me?
HER HONOUR: I’m going to ask you to sit down, please.
[THE HUSBAND]: No. I’m not complying. For and on the record, let the record show that there is no one here who has a claim against [C Pty Ltd]. Is there anyone here who has an interest in the [C Pty Ltd] estate? Is there anyone here that has an interest in the [C Pty Ltd] estate? Is there anyone here who has an interest in the [C Pty Ltd] estate?
HER HONOUR: All right. I’m going to give you a final opportunity
[THE HUSBAND]: ..... for
HER HONOUR: [The husband], to take a seat and to be quiet. We’re going to continue and if you continue with
[THE HUSBAND]: I will not.
HER HONOUR: All right. Well, then
[THE HUSBAND]: I am for and on the record
HER HONOUR: there are serious consequences potentially for you, sir.
[THE HUSBAND]: Let the record show that there is no one here who has an interest in [C Pty Ltd] estate and, also, on the record
HER HONOUR: All right, sir. I’ve given you an opportunity. You’re now going to be muted, thank you. Thank you, Madam Associate.
[THE HUSBAND]: there is no one here has claim against the estate. Therefore
HER HONOUR: [The husband], in those circumstances I am going to rule that the matter is continue on an undefended basis. We will see how we manage that. I’ve not been able to get anything. My view sensibly addressed the question of how we should be progressing this morning for [the husband]. Despite having opportunities, the preliminary view that I have expressed is fortified from what I’ve heard just now and in those circumstances, [counsel for the wife], I would invite you to make your opening submission, please.
(Transcript 14 December 2022, p.3 line 6 to p.5 line 13)
(Emphasis added)
It is now said on behalf of the husband that the primary judge should have done more than ask the husband “what you say I should do this morning” and particularly should have explained to the husband:
(a)that an undefended hearing would preclude him cross-examining the wife but would nonetheless enable him to make submissions;
(b)that he could seek an adjournment, either because of the recently recast relief which the wife was seeking or otherwise;
(c)that he could seek to rely upon his earlier affidavits.
Firstly, as to the asserted inadequate explanation of what the contemplated undefended hearing would entail, that is precisely what the primary judge did in the first paragraph of the transcript recited above.
Secondly, as to the claimed failure to explain that an adjournment could be sought, the husband had himself, by affidavits filed 20 June 2022 and 8 December 2022, sought an adjournment of the hearing, and hence he must be taken to be well aware that he could seek it on 14 December 2022. To suggest that it was procedurally unfair for the primary judge not to remind the husband of what he had himself foreshadowed less than a week earlier is, particularly given his belligerent approach, incorrect.
Moreover, the material filed on 8 December 2022 could not have rationally supported any adjournment, which was advanced on the grounds of a need to prepare a trial affidavit, of which a skeleton was annexed, however it was woefully misdirected and wholly inadmissible. Significantly, the husband indicated no time frame in which his affidavit could be prepared, but seemingly wanted an open-ended adjournment. In those circumstances, to invite the husband to press his application would simply have been an exercise in futility. Insofar as it was suggested that the recasting of the orders which the wife sought could have legitimately founded an adjournment, that is again incorrect, as the orders were not in any way unusual nor contained any surprising claim.
Thirdly, as to the complaint that the primary judge ought to have explained ways in which the husband’s failure to file material under the 13 September 2022 orders could be ameliorated by seeking leave to rely upon previous material, this overlooks that in both the 20 June 2022 and 8 December 2022 affidavits, the husband had said that his earlier material was false.
Thus in the 20 June 2022 affidavit he said:
7.Two days ago, I was reading over an affidavit that my lawyer had sent in for me on 3 February 2022 I got the shock and sense of betrayal and fury of my life. My words had been altered by my lawyer to such and effect without me knowing before I signed it that it rendered the whole affidavit false. It blamed and badmouthed my partner, stated she was unemployed although she runs her own business, it stated all kinds of things that were not the truth. My lawyer had taken the affidavit words he had written that I agreed to and had stated in my emails and twisted it, altering the words against me and my partner into the x’s favour, then pressured me to sign it, by quickly printed out and sign right before court. I had signed completely trusting it was the same document and words I had agreed upon. I feel furious that here I am paying this man, and the whole time he is working against me. I therefore want to pull every affidavit my lawyer filed on my behalf and go through each one and re-write it to the truth and I will re-submit them showing the altered sentences.
8.Due to the above reasons and the fact that I now represent myself, I would like an adjournment, get legal advice, read how to represent myself, time to repair my false affidavits and really I just need a re-set of this whole case. It’s a total disaster.
(Emphasis added)
To like effect in the 8 December 2022 affidavit he said:
4.… So I am trying to get this to you whilst we are driving home from [interstate] to [Town B], NSW an over 600km drive, as I have been filing complaints everywhere since June 2022 (and previously in 2021) and getting nowhere to slow this case down with an Adjournment and this case struck off and filed in NSW so we can have the sufficient time to clean up the mess my past solicitor made for me (lodging affidavits on my behalf that are false, manipulated to help the opposition, not my words and not my story, but signed by me under pressure of quick sign this before a mention and I did not know what an affidavit was! I thought I was just signing for court to proceed and I did not pre-read any of the affidavits which are twisted against me and my partner and not the truth. These are the affidavits that this court is RELYING ON for this final hearing and they are not even the truth or my statements!! They have my signature but I REFUTE ALL AFFIDAVITS sent in on my behalf by [my previous solicitor]. I need to have the time to go through sentence by sentence and repair this disaster…
(Capitalisation as per original) (bold emphasis added)
Thus any suggestion that the husband might seek to rely on his past affidavits would have been either to invite him to mislead the Court, or futile. Natural justice did not require any such invitation or explanation to be made.
It is then said that there was further unfairness in the way the primary judge thereafter proceeded, and particularly:
(a)that despite not being formally read into evidence, her Honour referred to the husband’s earlier material in her reasons;
(b)that her Honour made orders in a different form to that sought by either party without prior notice to them.
As to the first matter, it is not entirely correct to say that the husband’s material was not before the primary judge, as some of the values of assets were arrived at by counsel for the wife conceding that the values attributed to them by the husband in his material should be adopted, and they were. No complaint is made by the husband in relation to this.
Rather, he complains that in three places in her reasons, the primary judge referred to his material as follows:
PROCEDURAL HISTORY
…
37.The husband filed an affidavit on 20 June 2022. This affidavit was not responsive to any previous filing directions made.
…
EVALUATION OF SECTION 75(2) FACTORS
…
77.The wife has not worked since the birth of [their adult child] in 1987 and is presently in receipt of the aged pension. This is her sole source of income. The husband, on the other hand, earns a modest income as [a contractor]. He identifies his income in his financial statement made on 23 April 2021 as approximately $1,500 per week.
…
80.The Court has therefore not had the benefit of the husband’s submissions as to the orders that he seeks under s 79 of the Act. I note that in its most recent iteration, being the husband’s response filed on his behalf on 23 April 2021, the husband sought orders including that the wife vacate the [Town B] property and that its value, inclusive of the water access licences, be apportioned as to two-thirds and one third in favour of the husband. The reason for this proposed apportionment is not explained in any of the limited material filed by the husband. I note however, that in his affidavit filed on 23 April 2021, the husband does identify himself as being in “reasonable health for [his] age” and, subject to his age, “hav[ing] the physical and mental capacity for gainful employment”.
(Footnote omitted)
As to [37], plainly the reference to the 20 June 2022 affidavit was only in the course of setting out a chronology of the proceedings and the slender mention of it went nowhere, and could not possibly be unfair to the husband.
As to [77], as a matter of fact, that is what the husband contended in his financial statement of 23 April 2021, but what he now says is that he should have been given the opportunity to update it. It is trite to observe that under the 13 September 2022 orders he was given that very opportunity, but did not avail himself of it. In any event, there is no reason to think the primary judge was doing anything than noting the historical income of the husband some 18 months previously, as the matter recited did not appear to thereafter assume any importance. Particularly in concluding her consideration of s 75(2) factors at [81] the primary judge said:
81.In assessing future needs I consider that an adjustment of 5% in favour of the wife is justified for factors identified under s 75(2) which, in this case relate largely to the diminished capacity of the wife to earn income as a product of both of her age and time out of the workforce. I agree however that this factor should not be overstated and that the husband’s ability to generate income will necessarily be limited due to his age.
(Emphasis added)
As to [80], again the recital by the primary judge of what was in the husband’s response and affidavit is factually correct. However, the husband says it should not have been even referenced without giving him the opportunity to update it. Again, it simply cannot be overlooked that he had that opportunity under the 13 September 2022 orders, but ignored it.
I am not satisfied that the references by the primary judge to the husband’s material was, in the circumstances of this particular case, procedurally unfair.
Some more general complaint was also raised by the husband that, given those three references to the husband’s material which was not strictly in evidence before the primary judge, the Court should infer other such material was relied on by the primary judge, (or perhaps it was that the Court could not exclude it as a possibility). I would not be prepared to draw the contended inference, and even if I could not exclude the possibility that the primary judge did in some unspecified way have regard to other material, it does not speak of any unfairness to the husband unless and until the impact it may have had on the outcome can be in any way reasonably conjectured.
Finally the husband claims that it was procedurally unfair for the primary judge to make Order 14 without advising him of her intention to do so beforehand, and giving him the opportunity to be heard in relation to it.
To understand this argument it is necessary to have regard to Orders 13 and 14 as follows:
13.On settlement of the sale of the property the proceeds of sale be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agent’s commission and auction expenses;
(b)to reimburse the [wife] for any moneys paid to valuers for valuation fees relating to the property (or if any fees remain unpaid then to pay those fees directly to [the property valuer]);
(c)to reimburse the [wife] for any moneys paid to [the jewellery valuer] for valuation fees relating to jewellery (or if any fees remain unpaid then to pay those fees directly to [the jewellery valuer]);
(d) the amounts required to pay all rates and water charges;
(e)in payment to the [wife] of an amount representing 55% of the total net asset pool available for division between the parties as valued in the reasons for judgment (“the [wife’s] property settlement sum”);
(f) any balance remaining to the [husband].
14.In the event that the proceeds of the sale of the property are insufficient to satisfy in full the [wife’s] property settlement sum, the [husband], within thirty (30) days of the date of settlement, pay to the [wife] the amount representing the difference between the [wife’s] property settlement sum and the amount paid to the [wife] pursuant to order 13(e).
The husband says they were not in the form contended for by the wife, who had on 14 December 2022 instead sought orders relevantly as follows:
12.On settlement of the sale of the property the proceeds of sale be paid in the following manner and priority,
(a)all costs and expenses of sale including legal costs and disbursements, agent’s commission and auction expenses
(b)to reimburse the Wife for any moneys paid to valuers for valuation fees relating to the property (or if any fees remain unpaid then to pay those fees directly to [the property valuer])
(c)to reimburse the Wife for any moneys paid to [the jewellery valuer] for valuation fees relating to jewellery (or if any fees remain unpaid then to pay those fees directly to [the jewellery valuer])
(d)the amounts required to pay all rates and water charges
(e)as to the balance then remaining:
(i)55% be paid to the Wife
(ii)A further $88,392 be paid to the Wife
(iii)the balance then remaining to be paid to the Husband.
(Emphasis in original)
The difference between the orders contended for by the wife and those pronounced was explained by the primary judge at [82]–[84]:
82.As noted at the outset of these reasons, the wife seeks to give effect to a division of assets in the proportion of 55/45 through the disbursement of the proceeds of the sale of the [Town B] property in these proportions and through the payment to her by the husband of an additional sum of $88,392. The difficulty with forming orders in these terms is two-fold. The first is that the basis upon which the lump sum amount was calculated is not explicable from the material filed or submissions made by the wife. In order to precisely quantify the lump sum payment amount, it would be necessary to know the net amount available from the proceeds of the sale of the [Town B] property after making deductions on account of the costs and expenses of the sale, and the reimbursement to the wife of amounts paid on account of obtaining valuation fees and the amounts required to pay all rates and water charges. Apart from valuation costs, the other amounts are presently unknown.
83.The second challenging aspect of the proposed orders relates to the justice and equity of committing the husband to the payment of a lump sum amount of almost $90,000 in circumstances where although the asset pool reflects the sale of a water access licence for valuable consideration by the husband, there is no evidence as to where the funds obtained from this sale have been directed. In other words, it is not certain that the husband would be able to effect a payment of this quantum and within the time-frame contemplated.
84.In order to overcome these difficulties, I will make orders instead that will operate so that the wife’s proportion of the asset pool is to be realised first and to the greatest extent possible from the sale of the [Town B] property. In the event that the proceeds of sale do not yield sufficient funds to compensate the wife in the proportion of 55% then the husband will be required to make up the short-fall. I note in this respect that the husband was required, pursuant to three separate orders of the Court, to pay into trust the amount of $152,164 on account of the proceeds of sale of the water access licence. His failure on each occasion to do so should not immunise him now from the requirement to make funds available to the wife, in the likely event that this becomes necessary.
(Emphasis added)
It is clear from those paragraphs that the primary judge misconstrued the relief sought by the wife, in that the wife’s proposed orders recited above, and indeed in her preceding version, she had sought the totality of the amount ordered to be paid to her by the husband be met from the proceeds of sale of the Town B property. Thus the only difference between the wife’s proposed orders and the primary judge’s orders is that, if the total amount owed to the wife cannot be met from those sale proceeds, the husband still must pay her the balance. That would have inevitably been the position in any event, absent any order.
It was therefore not procedurally unfair to include Order 14 without first giving the husband an opportunity to make submissions in relation to it.
All of the challenges made under Ground 1 are forlorn and it fails.
Ground 2
The second ground contends:
2.The [primary judge] failed to give any reasons for making orders 13(b), (c), or 17, and failed to give adequate reasons for making order 14.
The husband’s Summary of Argument simply said this in support of the ground:
64. No reasons are given for making orders 13(b), (c) or 17.
65.Inadequate reasons are given for making order 14, since the trial Judge had no evidence formally before her as to whether the [husband] in fact had any funds left to meet the order, and may well have been making a property adjustment order against property which no longer existed. These matters required careful consideration in light of the Full Court’s guidance on the need for caution in dealing with notional property in the context of section 79. From Bevan
“We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”
(Footnote omitted)
Orders 13(b) and (c) require reimbursement to the wife of any monies she had paid to either of the two relevant valuers. In oral submissions before me, the husband said that it was his obligation under earlier orders to fund the valuations. It therefore follows that, if he did fund them, then Orders 13(b) and (c) have no work to do; if he did not fund them, then given the previous orders, no explanation for ensuring his compliance with them was required.
Order 17 was as follows:
17.Except as is necessary to comply with these orders, orders 3 and 4 of the consent orders made on 15 March 2021 shall remain in full force and effect until the completion of the sale of the property.
The relevant 15 March 2021 consent orders restrained the husband from interfering with the wife’s occupation of the Town B property or encumbering or disposing of any property of the family trust or company.
Given the husband’s flagrant breach of the injunction restraining sale of the company’s assets, and the fact that under the primary judge’s orders, the wife would be responsible for the sale of the Town B property, the basis for continuing those orders is self-evident.
I have already set out Order 14 and [82]–[84] of the primary judge’s reasons when considering Ground 1. Those paragraphs clearly explain why the primary judge made the order in the terms she did, and justice is able to be seen to have been done (Bennett and Bennett (1991) FLC 92-191 at 78,266).
Ground 2 fails.
CONCLUSION
No ground is made out and hence the appeal must be dismissed.
COSTS
The appeal was without merit. The effect of the orders of the primary judge may well be to see the wife better off than the husband in terms of assets, but will not reduce the disparity in the parties’ earning capacities.
For the appeal, the husband engaged private legal representation at a cost of at least $27,000 according to his costs schedule filed 1 June 2023.
Weighing these matters, despite the default position as to costs established by s 117 of the Family Law Act 1975 (Cth), I am satisfied that the husband should pay the wife’s costs of the appeal. The claimed sum of $12,909.22 is reasonable and should be paid within 28 days.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 21 June 2023
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