Kiefer and Kiefer - [2008] FamCAFC 197

FAMILY COURT OF AUSTRALIA

KIEFER & KIEFER

[2008] FamCAFC 197

FAMILY LAW - APPEAL from decision of a Federal Magistrate – procedural fairness – whether the Federal Magistrate failed to hear and determine an application for an adjournment by a litigant in person during the final hearing of property settlement proceedings – whether the Federal Magistrate failed to give adequate reasons for declining adjournment – consideration of whether the denial of procedural fairness to the appellant could have made any difference to the final property settlement orders made in the proceedings – appeal allowed

Family Law Act 1975 (Cth) s 79
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9

Bennett and Bennett (1991) FLC 92-191
Johnson v Johnson (1997) FLC 92-764
Kowaliw & Kowaliw (1981) FLC 91-092
Prior v Prior (2002) FLC 93-105
Quinn and Quinn (1979) FLC 90-677
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8
Weir and Weir (1993) FLC 92-338

APPELLANT:

Mr Kiefer

RESPONDENT:

Ms Kiefer

FILE NUMBER:

MLM

6070

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

12 December 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Finn and Mushin JJ

HEARING DATE:

18 July 2008

FURTHER WRITTEN SUBMISSIONS:

Filed 8 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 March 2008

LOWER COURT MNC:

[2008] FMCAfam 138

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Smallwood

SOLICITOR FOR THE APPELLANT:

Pearsons Barristers & Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Skerlj

SOLICITOR FOR THE RESPONDENT:

Harwood Andrews Lawyers

Orders

That the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008 be allowed.
That the orders of Federal Magistrate Connolly made on 7 March 2008 be set aside.
That the wife’s application filed 12 July 2006 and the husband’s response filed 6 February 2007 be remitted for hearing by a Federal Magistrate other than Federal Magistrate Connolly.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kiefer & Kiefer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 21 of 2008
File Number: MLM 6070 of 2006

Mr Kiefer

Appellant

And

Ms Kiefer

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by the husband against orders for property settlement made by Connolly FM on 7 March 2008. The effect of those orders was to divide a pool of property with a net value of $450,000.00 as to $300,000.00 to the wife and $150,000.00 to the husband.
The orders were made in circumstances in which both parties were aged 60, their marriage had been of less than two years’ duration (September 2003 to March 2005), and the wife was found to have had assets with a net value of $579,000.00 and the husband assets with a net value of $160,000.00 at the commencement of their marriage.
The complaints contained in the husband’s grounds of appeal (seven of which were pursued before us) can be broadly summarised as being directed either to his Honour’s failure to consider the granting of an adjournment to the husband to obtain legal representation at the final hearing of the proceedings, and to the overall justice of the orders, having regard to certain matters relied on by the parties during that hearing.
In his Notice of Appeal, the appellant husband sought that the orders of 7 March 2008 be set aside and new orders be made by this Court. However, it was common ground at the hearing before us, that in the event we were to decide that his Honour erred in not considering the husband’s adjournment application, his Honour’s orders must be set aside and the matter remitted for rehearing. Accordingly, we deal first with those grounds relating to the husband’s adjournment application.

The failure to consider an adjournment to enable the husband to obtain legal representation

The husband’s grounds of appeal directed to his Honour’s alleged failure to consider granting the husband an adjournment in order to obtain legal representation at the trial are as follows:
(1)That the court erred in the exercise of its discretion by failing to give the husband any or any proper opportunity to be heard on the Husband’s Application for an adjournment to enable him to get money to enable him to obtain legal representation for the trial before refusing to exercise its discretion.
(2)That the Court erred in not providing any reasons for refusing to hear the applications of the husband for an adjournment to enable him to obtain legal representation for the trial.
(3)That the Husband was denied the opportunity to have his case presented and agued [sic] by competent legal representation, and was prejudiced thereby and denied procedural fairness.
(4)That the Court displayed bias against the Husband by refusing to hear his application for adjournment save in during the trial.
A consideration of these grounds requires some reference to events which preceded the trial and to the course of the trial itself.
The proceedings for property settlement had been commenced by the wife on 12 July 2006.
It appears that, at least from February 2007, the husband had had legal representation, and that from that time, the proceedings had been listed on a number of occasions for final hearing, but such hearings were adjourned. We are not aware of the reasons for such adjournments.
There was a hearing before his Honour on 8 June 2007 at which both parties were legally represented, and during which the husband sought the release to him of a sum of approximately $39,000.00 held in trust. In the event, his Honour only released to the husband a sum in the order of some $9,000.00.
There was some suggestion at the hearing before us that those funds may have been released to the husband for the purpose of funding his legal representation. However, the transcript of the hearing on 8 June 2007, which was obtained following the hearing before us (and in relation to which the parties were given the opportunity to make further submissions), does not indicate that the money was released to the husband for this purpose.
At the hearing before his Honour on 8 June 2008, the final hearing of the property settlement proceedings was adjourned to 17 October 2007. We also obtained, subsequent to the hearing before us, the transcript of the hearing before his Honour on 17 October 2007. (Again the parties were provided with an opportunity to make further written submissions in relation to that transcript).
The matter was called over early on 17 October 2007. The wife was represented by Mr Skerlj of counsel, who also appeared before us. The husband was not legally represented. After some discussion about the nature of the dispute, the following exchange occurred:
HIS HONOUR: Well, I'm going to stand it down till 11 and see what's happening with the children's issues.
MR SKERLJ: Certainly, sir.
HIS HONOUR: That will give Mr [Kiefer] - do you want the opportunity of seeing a duty solicitor?
[THE HUSBAND]: I've no finance left, your Honour, because all my finance has been blocked in a trust account.
HIS HONOUR: If you just listen to the question.
[THE HUSBAND]: Yes?
HIS HONOUR: Do you want to see the duty solicitor?
[THE HUSBAND]: Yes, please.
HIS HONOUR: Yes, all right. I suggest you have some discussions and you listen to whatever advice it is that the duty solicitor provides to you because there's no doubt that people come out of these matters better if they can make a compromise - many occasions - rather than have the court impose a result but that's up to you, but I'll say not before 11…. (Transcript, 17/10/07, p 3)
When the matter was called over again later, the following exchange occurred:
HIS HONOUR: Have you seen the duty solicitor?
[THE HUSBAND]: I saw the duty solicitor, he says he didn't have enough time to look at it. So I though I might - - -
HIS HONOUR: Well, he might have.
[THE HUSBAND]: - - - see a proper solicitor.
HIS HONOUR: You won't have time to see - - -
[THE HUSBAND]: A proper solicitor as well, so I'm going to leave it and do it myself.
HIS HONOUR: You would be wise if you took some advice from the duty solicitor.
[THE HUSBAND]: The duty solicitor has advised me that he still should have time to read all the affidavit.
HIS HONOUR: You can tell him about it and you can have some discussions with Mr Skerlj. It's a marriage of only one year and eight months I think I was told.
[THE HUSBAND]: Yes.
HIS HONOUR: The matter can't be that complex, but you are the one that will benefit from getting some advice.
[THE HUSBAND]: Okay.
HIS HONOUR: I can't force you to do that, but - - -
[THE HUSBAND]: No, of course not. I'd like that advice.
HIS HONOUR: Go and see the duty solicitor again. Tell him the factual situation and that you'd like to have some discussions with Mr Skerlj through the assistance of the duty solicitor.
MR SKERLJ: I'm told that the advice that Mr [Kiefer] was given was to get a solicitor - apparently.
HIS HONOUR: Well, he's not going to get a solicitor today, and you might pass on - I'll see that someone from the network organisation there might pass on that it would be a benefit to the court if he is able to be given some brief advice and some assistance with trying to resolve the matter. If that can't happen, it can't.
MR SKERLJ: Thank you, sir. (Transcript, 17/10/07, p 6-7)
The matter was then stood down, but when it was again called over, the husband confirmed that the duty solicitor would not give advice for a final property hearing. The Federal Magistrate then suggested that the husband see a private solicitor that afternoon. The husband said that a solicitor would need at least two days to study the case and then two weeks to respond to the wife’s material. The Federal Magistrate replied: “No, you've had ample time when this matter was set down”, to which the husband responded: “I know I did, although we have to carry on as it is”.
The husband then asked various procedural questions of the Federal Magistrate, and the following exchange then occurred:
HIS HONOUR: Well, you've had every opportunity of getting legal advice, and from what I'm told you've got sufficient funds to do that. If you have elected not to do that, that's your choice and that's - - -
[THE HUSBAND]: Your Honour, no. I did not elect to do that. What I did is I was forced to do it into a situation because it was costing $114, $115 a day extra. That's why I signed the - - -
HIS HONOUR: That's a very cheap solicitor if that's all they'd charge you.
[THE HUSBAND]: The fund to be put in trust, because I want - - -
HIS HONOUR: 10 o'clock tomorrow, Mr [Kiefer], you'll need to be here. The matter will not start before then and - - -
[THE HUSBAND]: If it can take two weeks I can organise finance, borrow some money from someone and - - -
HIS HONOUR: Mr Skerlj, I've got - - -
[THE HUSBAND]: If not - - -
HIS HONOUR: Just don't interrupt, please.
[THE HUSBAND]: Thank you.
…
HIS HONOUR: All right, 2.15 tomorrow.
[THE HUSBAND]: 2.15 tomorrow.
HIS HONOUR: I suggest you go and get some legal advice in the meantime.
[THE HUSBAND]: Okay. Would it be much to ask if would your Honour forced to release some kind of funds so for the (indistinct) to be able to from - - -
HIS HONOUR: The funds will be released soon enough.
[THE HUSBAND]: So I can have some funds to be able to pay a solicitor.
HIS HONOUR: Is there funds there, Mr Skerlj?
MR SKERLJ: There's funds. Some of them have already been disbursed, your Honour, and at one stage the husband had some $90,000 I think and they have now been reduced to 40 then the court allowed him to take about 10, and now there's 30, and certainly there's an injunction in relation to that and - - -
HIS HONOUR: Yes, all right. That's where it is, Mr [Kiefer], you can explain to the solicitor what the position is, what moneys are there and we'll go from there.
[THE HUSBAND]: Thank you. (Transcript, 17/10/07, p 9-11)
On 18 October 2007 the wife was again represented by Mr Skerlj and the husband appeared without legal representation:
HIS HONOUR: …You’re appearing for yourself, Mr [Kiefer]?
[THE HUSBAND]: Yes, your Honour. I could not raise enough finance to engage a solicitor.
HIS HONOUR: Yes, okay. Don’t go on about it.
[THE HUSBAND]: So I had to represent myself. I’m earning a bit of money these days. It will take me about two to three months to be able to arrange finance to engage a solicitor or a barrister.
HIS HONOUR: We’re starting the matter today. Just have a seat… (Transcript, 18/10/07, p 2-3)
Much was submitted to us about whether the above passage in particular was in fact, or should have been interpreted by the Federal Magistrate as, an application by the husband for an adjournment of the final hearing.
Before us reliance was also placed on several later portions of the transcript in which the husband referred to requiring more time to attempt to get legal advice. After the husband outlined to the Federal Magistrate the orders he sought, his Honour responded:
HIS HONOUR: You were told to get some legal advice. You haven’t done that.
[THE HUSBAND]: I did, your Honour. Your Honour, I’ve been cornered in a corner. My money was jammed. I have to agree with that to get the finance, otherwise it was going to cost me $114 a day for two and a half months.
HIS HONOUR: The wife filed her application in July of last year.
[THE HUSBAND]: In July. She had misled me, your Honour…(Transcript, 18/10/07, p 6-7)
The husband then began to describe his attempts to adjourn “the case”. However the events the husband described seem to relate to the first return date of the matter in November 2006, which the husband did not attend, and about which he complains in his affidavit material that the wife said she would seek to adjourn in his absence, although she did not. The husband did not go on to describe any previous effort to seek to adjourn the final hearing. The matter then proceeded and the wife gave oral evidence-in-chief and was then cross-examined by the husband.
The matter did not conclude on 18 October, and the husband continued cross-examining the wife the next morning. At one point the wife’s representative objected that the husband’s questions were repetitive. The Federal Magistrate agreed and said to the husband:
HIS HONOUR: Just listen. You are not going to repeat the same question time and time again, and you are not going to stand there making long statements that don’t involve a question, and I can tell you now that if this matter goes for longer than it should because you wasted time, you’ll pay the costs of that additional time.
[THE HUSBAND]: Your Honour, I have to, because I don’t know the – my learned friend maybe is a professional, they’re doing it every day, they’ve studied about it. I did not, and, your Honour, you did not allow me to earn enough cash to be able to be represented by a professional barrister or a solicitor. So I do not have. All my money is tied up in a trust account, which I’ve been forced to agree with.
HIS HONOUR: I’ve just warned you, Mr [Kiefer]. You can either take heed of that warning or not. If you continue to waste time, then I will make an order at the end of these proceedings that you pay the costs of that wasted time. Now, would you please ask relevant questions that you haven’t asked previously. (Transcript, 19/10/07, p 60-61)
Later during the husband’s cross-examination of the wife, he raised the issue of the wife’s gambling. The Federal Magistrate noted that the husband had not previously raised this allegation, whereas the wife had provided bank deposit receipts as evidence of the funds advanced by her to the husband. The husband responded:
[THE HUSBAND]: I’m going to recall all her bank statements and go that as an exhibit as well.
HIS HONOUR: No, you’re not. You’re not going through all the bank statements.
[THE HUSBAND]: I have to prove my case, your Honour, or else I can suggest release me some funds for me to be able to - - -
HIS HONOUR: I’m not releasing - - -
[THE HUSBAND]: - - - be represented.
HIS HONOUR: - - - any funds because on one view of the case, not only will you not get any funds, but you will have to pay moneys, and there might be an order for the sale of your Melbourne property.
[THE HUSBAND]: If I lose.
HIS HONOUR: If you lose.
[THE HUSBAND]: Thank you. So in the meantime, I have to defend myself, your Honour.
HIS HONOUR: I’m not going to allow this case to go on and on and on. If you can’t ask questions – and you’ve asked very few questions this morning – then I’m just going to stop you, and we’ll continue the case. You can give your own - - -
[THE HUSBAND]: Your Honour, if my way is not good enough, either you teach me how, I will - - -
HIS HONOUR: I’m not here to teach you anything, Mr [Kiefer].
[THE HUSBAND]: Listen, I’m a good student. All right. Well, someone can teach me how.
HIS HONOUR: If you listen, I’m not here to teach you anything. I’ve told you how the case is to be conducted. I’ve told you that you can ask this witness questions… (Transcript, 19/10/07, p 82-83)
Later, the husband again had difficulty organising various documents he wished to put to the wife. In response to the Federal Magistrate’s directions about this, he responded:
[THE HUSBAND]: As I said, I’m not professional, your Honour, and I need to have - - -
HIS HONOUR: I’m not going through that again, Mr [Kiefer].
[THE HUSBAND]: - - - the right to be able to represent myself.
HIS HONOUR: I’m not going through that again, Mr [Kiefer]… (Transcript, 19/10/07, p 88)
The context makes it clear that by the phrase “the right to be able to represent myself” the husband was in fact referring to an alleged right to obtain legal representation.
Shortly thereafter, while still cross-examining the wife, the husband began addressing the Federal Magistrate about various bank statements. The Federal Magistrate responded:
HIS HONOUR: I’m not listening to you.
[THE HUSBAND]: You’re not listening to me.
HIS HONOUR: No.
[THE HUSBAND]: Can I adjourn the case, please, your Honour, and - - -
HIS HONOUR: No, I’m not.
[THE HUSBAND]: - - - get a barrister.
HIS HONOUR: What I’m asking you to do is to ask questions, not to argue with me about what was there and what wasn’t there. If you want to ask the witness questions, I’ll listen to it. (Transcript, 19/10/07, p 98)

At the end of the husband’s cross-examination of the wife, his exasperation with the process is clear:
[THE HUSBAND]: I’m not being represented, your Honour. So I - - -
HIS HONOUR: You what?
[THE HUSBAND]: I’m not being allowed to be able to represent myself properly. I’m a hundred per cent sure - - -
HIS HONOUR: Mr [Kiefer], I have sat here - - -
[THE HUSBAND]: - - - that I’m not a professional - - -
HIS HONOUR: - - - and listened to you ask the same questions time and time again, getting the same answers. I’ve given you every opportunity to ask what you wanted to ask, and - - -
…
[THE HUSBAND]: I wish you allowed me to organise enough cash for me to be able to represent myself with a professional barrister, because - - -
HIS HONOUR: We’ve gone through that.
[THE HUSBAND]: - - - there’s a senior barrister in front of me.
HIS HONOUR: I’m not releasing any funds to you. You’ve had moneys released, and - - -
[THE HUSBAND]: I did not have money. My money went for legal costs.
HIS HONOUR: Mr Skerlj, when you’re ready. (Transcript, 19/10/07, p 108-109)
The wife did not call any other witness. Accordingly, her case was closed after she was re-examined by Mr Skerlj.
The husband then opened his case, gave evidence-in-chief and Mr Skerlj cross-examined him. Mr Skerlj queried why the husband had deposed to two different dates in two of his affidavits relating to when he began setting up his M factory business. The husband’s response can be read as indicating that he was still receiving some form of legal advice, despite being unrepresented:
…The date has been printed by my assistant lawyer which is – he’s only assisting me now. He’s not acting for me. I will ask him a question, and then - - -
[MR SKERLJ:] You’re still getting legal advice as we go along, aren’t we?---That’s it. That’s what I do… (Transcript, 19/10/07, p 157)
At the end of 19 October the matter was adjourned for a week until the following Friday 26 October. After the completion of Mr Skerlj’s cross-examination, the Federal Magistrate assisted the husband with his re-examination. The Federal Magistrate asked about bank statements which might substantiate the husband’s claims regarding savings he had at the time of the marriage and the husband again raised the issue of legal representation.
[HIS HONOUR:] I haven’t seen any documentation about those bank accounts?---I wish I knew that. I would have looked it up before.
Well, you indicated - - -?---You see, that’s why I’m not a legal person.
Mr [Kiefer], you indicated last Friday that you - - -?---Can I be (indistinct) here?
You indicated last Friday that you were going to produce these bank statements?---That’s why I brought in all my bank statements here.
…
Are either of those statements at the date of the marriage, Mr [Kiefer]?---Now I understand why you asked me to get legal aid, your Honour, because legal aid would – a lawyer would know.
No, I didn’t ask you to get legal aid, I said that you would be wise to be represented?---Your Honour, you didn’t give me chance to be able to organise enough cash. All my cash was seized under false pretence. (Transcript, 26/10/07, p 204-205)
The husband also did not call any other witnesses and so the evidence closed shortly before lunch on 26 October 2007. The Federal Magistrate then considered the issue of final submissions, and the husband again spoke of needing time to raise money for legal representation:
HIS HONOUR: What I’m going to do, Mr [Kiefer], is to allow you each to make written final submissions. How long would you want to do that?
[THE HUSBAND]: Can I take it to a legal person maybe I’ll seek aid of a legal person.
HIS HONOUR: Yes, you can take it whoever [sic] you want to. The person – whoever you take it to won’t have heard the evidence but I don’t mind what you do. How long do you want to - - -
[THE HUSBAND]: About 10 days, your Honour - - -
HIS HONOUR: Yes. Do you have any objection to that?
[THE HUSBAND]: - - - to organise some money.
MR SKERLJ: No. (Transcript, 26/10/07, p 209)
Written submissions were filed as ordered. The husband’s submissions do not appear to have been drafted with any assistance from a lawyer. They contain little more than a history of the parties’ relationship and their financial affairs. There is no specific reference to the matters to which a court is required to have regard under s 79 of the Family Law Act 1975 (Cth) (“the Act”) when making an order for property settlement, as might be expected if a lawyer had been involved in the preparation of the submissions.
We will later refer to the content of his Honour’s reasons for judgment which were delivered on 7 March 2008. It is only necessary to say at this point that no mention was made in those reasons to the husband’s self represented status, let alone to the reasons for, or background to, his being without legal representation at the trial.

Submissions and discussion

Before us, it was effectively conceded by counsel for the appellant husband in addressing the first ground of appeal, that the appellant did not make a formal application for an adjournment at the outset of the trial on either 17 or 18 October 2007. However, counsel submitted that “it should have been clear to the Federal Magistrate by the appellant’s reference to a period of 2 to 3 months being needed for him to engage a barrister or a solicitor that, as a litigant in person, that was the application he was endeavouring to make”. Counsel further submitted that his Honour’s statement that “we are starting today” would be “nonsensical” if he did not understand that he had an application for an adjournment before him.
It was submitted that the appellant reiterated this request for an adjournment on three further occasions throughout the proceedings before the Federal Magistrate. In this regard counsel referred us to the passages of transcript contained in paragraphs 13, 24 and 27 of these reasons.
Counsel for the appellant further submitted that his Honour had failed to implement guidelines 1 and 8 of the guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”). We would explain here that in Johnson v Johnson (1997) FLC 92-764 the Full Court considered the issue of procedural fairness with respect to litigants in person and set out guidelines which judicial officers ought follow in order to ensure procedural fairness is accorded to litigants in person. These guidelines were revised by a differently constituted Full Court in Re F and have been widely accepted and applied since that time.
Guidelines 1 and 8 contained in Re F, to which counsel for the appellant referred, are as follows:
1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150).
In the present case, counsel for the appellant also relied on Prior v Prior (2002) FLC 93-105 (“Prior”), where the Full Court held that despite the fact that a lack of legal representation usually places a person in a disadvantaged position, a lack of legal representation, without more, does not amount to a miscarriage of justice. However, counsel submitted that where a party “does not choose to be self represented, as in this instance, then a failure to hear and consider that party’s application for an adjournment in order to obtain legal representation does constitute a miscarriage of justice”.
The primary submission of counsel for the respondent wife was that the appellant did not in fact make, nor endeavour to make, an application for adjournment. The husband’s statements on the first day of trial were said to be “open to other reasonable interpretations including the appellant providing reasons to the Federal Magistrate as to why he was not being represented by counsel”. The statements on the second and third days of trial were respectively categorised by the respondent’s counsel as “argumentative or reactive and nothing more” and as “an expression of a perceived grievance and nothing more”.
In the alternative, the respondent’s counsel submitted that even if we were to find that the appellant had in fact endeavoured to apply for an adjournment, the Federal Magistrate did not err by declining to adjourn the proceedings having regard to:
·     the timing of the application;
·    the lack of notice to the respondent who had incurred preparation costs and was ready to proceed;
·    various provisions of the applicable Rules;
·    the fact that the appellant was in fact permitted to give reasons for any such application, for example his being unable to raise sufficient funds; and
·    the context of Connolly FM having presided over interim hearings in the matter, including a hearing on 8 June 2007 when the interim payment to the husband of $10,000 was ordered.
While we acknowledge that the matter is not entirely free from doubt, we consider that the better view must be that the statements made by the appellant on 17 and 18 October 2007, as set out earlier in these reasons, ought to have been treated by the Federal Magistrate as an application for an adjournment in order to seek legal representation. Whatever other interpretations of each individual statement by the appellant may be possible, the consistent theme throughout the above passages is that the husband wished to have more time to raise funds to obtain representation. The subsequent statements by the appellant on 19 and 26 October 2007 further confirm this view.
Moreover on our reading of the transcripts, the Federal Magistrate did not permit the appellant to clarify his request or to make submissions on his position. The fact that it is in real dispute before us as to whether his request was intended as an application for adjournment or not, demonstrates that further clarity was needed as to precisely what the husband sought and why. Presumably hoping to conduct the proceedings more efficiently, the Federal Magistrate actively discouraged the husband from further explaining his position. In our view, the Federal Magistrate’s approach was contrary to those guidelines expressed in Re F previously set out.
We also acknowledge that had his Honour clarified the husband’s application for an adjournment and heard argument on it, it may well have been open to his Honour to dismiss that application. Counsel for the respondent before us made compelling submissions to this end which we have earlier summarised. But regardless of the merit or otherwise of the appellant’s application for an adjournment, the appellant was entitled to be heard and to make submissions in support of his application.
As we have noted above, his Honour’s reasons for judgment contain no reference to the possibility that the appellant may have been seeking an adjournment, nor to the reasons why such an adjournment was not granted, nor even to the husband’s self represented status. It was the failure on the part of his Honour to provide any reasons in relation to these matters either in his reasons for judgment, or even on the transcript during the trial, which is the subject of the husband’s second ground of appeal.
The law on the requirement for a judicial officer to give adequate reasons is well known. In Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8, a decision of the Full Court of the Supreme Court of Victoria, Gray J, with whom Fullagar and Tadgell JJ agreed, stated at p 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal Court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to be done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
…
But the important fact is that the paucity of His Honour’s reasons is such that his reasoning process is not revealed to this Court to enable a judgment to be made as to whether His Honour fell into error.
Gray J then summarised in the following way the statements of McHugh JA (as he then was) in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 where at pp 279-280 his Honour commented upon the purpose of providing reasons:
His Honour went on to say that the giving of reasons for a judicial decision serves at least three purposes. First to enable the parties to see the extent to which their arguments had been understood and accepted as well as the basis of a judge’s decision. Second, to further judicial accountability and, third, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
In Bennett and Bennett (1991) FLC 92-191, the Full Court of this Court held at 78,267:
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
In the present case, we as the appellate court are unable to ascertain from his Honour’s published reasons for judgment, or indeed even from the transcripts of the days on which the matter was before him, his reasons for determining that the trial had to proceed at that time and that the husband could not be given more time to obtain legal representation or, if necessary, funding for such legal representation.
We can of course easily speculate why his Honour did in fact require the trial to proceed. But, in our view, the law required him to place on the transcript (if not in his eventual reasons for judgment) his reasons for the course which he adopted, so that both the husband and any future appeal court would know for certain what those reasons were. Indeed, even if his Honour was uncertain as to exactly what application the husband was making in relation to legal representation, and if he considered that he had been unable to clarify this with the husband, he should have made some reference to these matters in his reasons having regard to the nature and extent of the exchanges which had occurred between himself and the husband and which we have earlier set out.

Practical effect of the failure to determine the application for an adjournment

His Honour’s failures to clarify whether the husband was seeking an adjournment, and if he was, to deal with that application in a principled way, must amount to a denial of procedural fairness. The question then arises whether this denial ought justify allowing the appeal and ordering a re-hearing. The relevant test is whether this denial of procedural fairness could have made any difference to the ultimate outcome of the proceedings.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 (”Stead”), the High Court held at p 145:
…not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
Their Honours later said at p 147:
All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [Emphasis added]
We must therefore determine whether, as a consequence of the procedural defects identified above, his Honour might have come to a different conclusion on the substantive issues between the parties had the husband been represented. For this purpose it has to be assumed that had the husband been granted an adjournment, he would have obtained legal representation.
The essential submission of counsel for the respondent was that whatever happened with respect to the appellant’s adjournment application, the final result arrived at by his Honour was appropriate and should not be overturned. It is necessary therefore for us to examine in some detail his Honour’s reasons for his orders.

The trial judgment

His Honour began his judgment with a recitation of what the parties respectively sought, the documents on which they relied and a brief history of the marriage. His Honour then outlined the assets of the parties “at the commencement”, without precisely detailing the evidence upon which he had relied in coming to these conclusions. The net amount for the wife was $579,000.00 and for the husband $160,000.00. His Honour then described the parties’ financial dealings during and after the marriage, referring predominantly to the evidence of the wife.
After concisely setting out the process for making orders under s 79 of the Act, his Honour listed the following pool of assets as at the date of trial:
In the wife’s name, the property at … [C]  $170,000
The property at … [L Street]            $95,000
The wife’s Commonwealth savings account   $10,000
Total   $275,000.
Less liabilities:
Mastercard and Bankcard debt   $48,000
The RAMS mortgage loan   $27,000
Net Equity  $200,000
In the husband’s name:
The property at … [M] valued at $580,000 less owing on mortgage $360,000, leaving a total equity of $220 000.
Plus trust funds held by solicitor…    $30,000
Net equity       $250,000.
These figures appear to draw heavily on the final written submissions made on behalf of the wife, although again no explicit finding was made as to any competing claim in this regard, and no complaint was made on the appeal regarding these figures.
In his discussion of the merits of each party’s claim, the Federal Magistrate stated at paragraph 13:
Initially it appeared that each of the parties should share in the depreciation of the assets that have been lost or dissipated but that is no longer the case having heard the evidence in this matter. The husband’s evidence was evasive, inconsistent and untruthful on many occasions.
His Honour then set out passages from the Full Court judgment in Weir and Weir (1993) FLC 92-338 (“Weir”) regarding the consequences of a party making a “deliberate non-disclosure” and regarding “the Court’s jurisdiction to make an order going beyond the identified property”. His Honour did not explicitly add back specific amounts, but did set out various unsatisfactory aspects of the husband’s evidence. He found that the husband had likely gambled or otherwise wasted significant sums and that “he should bear the brunt of those losses”.

The contributions made by each party were then identified. His Honour largely accepted the evidence of the wife regarding her contributions, citing corroborative documentary evidence. He otherwise referred to the less reliable evidence of the husband.
The key findings underpinning the judgment are then contained in paragraph 23 which is as follows:
From the $266,000 contributed by the wife the only asset which still exists is the [L Street] property valued at $95,000 together with the … plant and equipment of unknown value. Accordingly, the wife’s premarital assets have diminished on a net basis by $171,000, ($266,000 less the $95,000 in [L Street]) and this represents a 28.5% reduction in the value of the premarital assets owned by the wife in circumstances where the funds that she provided went virtually in their entirety to the benefit or enjoyment of the husband. I further accept counsel for the wife’s submission that by way of contrast, the husband made no capital contribution during the marital relationship. The funds released by re-negotiation of the mortgage over the [M] factory were either totally applied to meeting the costs of the husband’s solicitor [Mr B] … or used by the husband. I have already indicated that I am not satisfied that the wife received any other benefit from the [M] property.
Relying on the Full Court judgment in Quinn and Quinn (1979) FLC 90-677, his Honour gave significant weight to the “overwhelmingly greater” financial contributions made by the wife in a short marriage and determined that the orders sought by the wife were “very modest” in the circumstances.
Accordingly, his Honour made orders providing for the husband to pay the wife $100,000 including the funds held in trust by the husband’s solicitor and in default of payment, for the husband’s factory in M to be sold. His Honour found that the effect of his orders was to provide the wife with an “adjustment” of 22.5%, or a total of 72.5% of the asset pool existing at trial.

Further submissions and discussion

Counsel for the appellant submitted that although the appellant could not direct the Court to the precise disadvantages which he suffered by his lack of representation (at least not without raising factual matters which were not properly before the Court as evidence), it would be reasonable for this Court to infer that the presentation of his case suffered from lack of legal representation.
It will be useful in this context to refer to the grounds of appeal which were pursued by the husband before us and which were directed to the substance of the orders. These grounds were as follows:
(5)That the Court failed to properly evaluate and give any or any sufficient weight to the evidence of the Husband pursuant to Section 79 Family Law Act regarding the financial impact on the husband of his forced move from Melbourne to [G] and other significant issues raised by him in the course of the trial.
(6)That the finding of the Court that the Husband dissipated funds during the marriage was not supported by the evidence and the Court was in error in drawing this conclusion.
(8)That the orders are unjust.
The written submissions in support of Ground 8 indicate that the orders are asserted to be unjust because of the economic disadvantage incurred by the appellant following his move from Melbourne to G at the request of the respondent. This would seem to be the same issue as the issue raised by Ground 5. His Honour certainly referred to this issue in paragraphs 19 and 20 of his reasons. But whether the husband could have made more of this issue had he been legally represented, we cannot tell.
Of greater concern to us is the matter to which Ground 6 is directed, being the husband’s alleged dissipation of funds. It is important, in our view, to set out his Honour’s findings in relation to this matter, which are certainly adverse to the husband:
13.Initially it appeared that each of the parties should share the depreciation of the assets that have been lost or dissipated but that is no longer the case having heard the evidence in the matter. The husband’s evidence was evasive, inconsistent and untruthful on many occasions. The husband had the benefit of $100,000 given to him by the wife prior to and during the marriage, the further $62,000 (being the balance of the $156,000 borrowed for the purchase of [the L Street property]) and $10,000 post separation as well as his compensation monies and the additional funds obtained under the mortgage (apart from the $30,000, none of those monies remain). However, he has not explained what he has done with any of those monies. He has not been frank or open about his financial position. The law is clearly set out in Weir 1993 FLC 92338 the full court said at page 79539:
“Once it has been established that there has … been a deliberate non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party.”
And then later:
“The Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the parties have not made a disclosure of his or her assets.”
14.In his oral evidence he spoke of a number of people who owed him money and paid him during the course of the marriage. However, he provided no specific details of the loans (such as the names of the borrowers, the terms and conditions of the loans or the details of repayment). I got the very strong impression that he was making it up as he went along. The husband gave further evidence as to many withdrawals from the automatic teller machines at the Crown Casino and a poker machine venue at [M]. In cross-examination he was asked to explain some $25,000 worth of debit entries at these two establishments and his answer was that the monies were withdrawn to pay various staff. He also said that the locations of these venues were convenient because of their opening hours. I did not accept the husband’s explanation with regard to these withdrawals particularly having regard to the fact that the husband had no staff employed at that time and was purportedly not operating but rather setting up a business. It seems far more likely that these funds were used in the husband’s gambling activities having regard to the close proximity of the teller machines to such gambling facilities. It is impossible to assess what income that he was earning leading up to, during or since the marriage given that he has not filed a tax return for many years. I did not accept what he said about the taxation commissioner exempting [him] from filing a return during this period of time because he was awaiting the outcome of his claim against the insurance company for the loss of his business. The husband merely asserted these matters and he did not produce any documentation at all to support his claim.
15.Further, following the parties’ separation the husband finally received a compensation award of some $90,000 from his insurance claim. Of that amount, the husband has already had the use of $60,000 and the balance is held on trust pursuant to a Court Order made on 8 June 2007. He has not explained in any detail what he did with those funds. The husband also claims that hundreds of thousands of dollars were spent in legal fees in recovering this amount.
…
17.As a result of the husband’s non-disclosure, I am entitled to adopt an approach that is not unduly cautious about making Orders in favour of the wife. What is clear and well-documented is the wife’s evidence of the funds provided to the husband. He clearly received $100,000 ($50,000 immediately prior to the marriage and $50,000 during the marriage), $10,000 post marriage, $156,000 borrowed on the investment property to purchase [the L Street property] for $95,000 and the balance used to acquire … machinery. In circumstances where the husband has not properly explained what he did with these benefits, I am satisfied that it is highly likely that a substantial amount was gambled, wasted and squandered and he should bear the brunt of those losses. He has clearly been responsible for the economic consequences of the significant reduction in the asset pool. It is also clear from the evidence that the wife received none of the benefits of the expenditure of these funds.
With the assistance of legal representation, the appellant may have been able to properly appreciate the importance of making full and frank disclosure and would have been assisted to do so, thereby potentially eliminating his Honour’s finding of non-disclosure against him and his Honour’s subsequent application of the principles in Weir to his detriment.
Moreover, had the appellant had legal representation, he might have sought to challenge his Honour’s application of the principles in Weir. There would seem to be two potential arguments to be made in this regard.
First, his Honour essentially made negative findings with respect to the appellant’s credit as opposed to his disclosure per se. Such findings are not those precisely contemplated in Weir.
Secondly, it is arguable that his Honour’s application of Weir was somewhat inaccurate in that his Honour stated “As a result of the husband’s non-disclosure, I am entitled to adopt an approach that is not unduly cautious about making Orders in favour of the wife”, whereas the principle in Weir is that “deliberate non-disclosure” allows the Court to be “not unduly cautious about making findings in favour of the innocent party” (emphasis added).
Hence, legal argument might have been available with respect to the distinction between findings of credit and findings of deliberate non-disclosure and about the distinction between deliberate non-disclosure and incidental or innocent non-disclosure with a view to establishing that the appellant’s conduct was insufficient to justify an application of Weir.
Further, had the appellant been legally represented, he may have been better able to challenge the wife’s evidence and adduce evidence himself on several matters which the transcript shows he raised without precision or consistency and which his Honour therefore declined to give weight to.   More specifically, in our view, possible differences to the outcome could have arisen with respect to:
·   The respondent’s alleged gambling
A significant part of the appellant’s case, it would appear from his affidavit material, was his assertion that the respondent had gambled and lost matrimonial funds. The appellant did not cross-examine the wife on this in any great detail at trial and there is no reference to the husband’s assertions in his Honour’s reasons. Had the appellant had legal representation, this issue might have been pursued in cross-examination and submissions made so as to draw the issue to his Honour’s attention and seek more clearly a determination on the issue.
·   Factual finding that the respondent received no benefit from the appellant’s M factory property
Both parties’ written and oral evidence support the conclusion that the husband made some repayments towards the wife’s mortgage from his bank account which included funds which had been borrowed against the wife’s property, as well as rental income from the husband’s M factory. The husband also deposed, without further specificity, that from August 2004 he used rental monies from his M factory to pay for household living expenses, including the wife’s mortgage repayments. A legal representative may have been able to assist the husband to marshal and adduce important evidence in relation to the application of the rental income from the M factory property and make submissions emphasising these as contributions by the appellant to the marriage and to the wife’s real property.
·   Findings of fact generally
Had the appellant been legally represented, the respondent’s evidence and assertions may have been challenged in ways which we cannot discern and which might have led to different factual findings by his Honour. This seems particularly pertinent given that there seems to have been no explanation made to the appellant by his Honour during the course of the proceedings that the appellant’s failure to successfully challenge the respondent’s version of events in cross-examination would mean that the respondent’s evidence would more likely be accepted by the Court.
In summary, therefore, this case involved complex legal issues relating to wastage and the application of the principles in Kowaliw & Kowaliw (1981) FLC 91-092, as well as his Honour’s application of the principles in Weir which permitted adverse findings to be made against the husband.
Had the appellant had legal representation, his Honour’s treatment of the evidence and findings of fact could have been significantly different. We emphasise the words cited above from the High Court in Stead and conclude, therefore, that in this case it cannot be said “that a properly conducted trial could not possibly have produced a different result”. It must therefore be accepted that his Honour’s initial denial of procedural fairness “deprived [the appellant husband] of the possibility of a successful outcome”.
Accordingly, we find that the appeal ought be allowed on grounds one and two. As we indicated at the outset of these reasons, it was accepted that if the appeal succeeded on the basis of his Honour’s failure to consider that the husband may have been seeking an adjournment of the trial and to provide reasons for refusing such an adjournment, there would have to be a new trial.
We are extremely concerned at such an outcome given the limited resources of the parties and the wife’s state of health. However we cannot see any alternative other than a new trial. It is only to be hoped that those now representing the husband may be able to assist in negotiating a settlement of the proceedings between the parties.
Having found that the appeal is to be allowed on the basis of the first two grounds and the matter remitted, it is unnecessary in the circumstances of this case to consider the balance of the grounds of appeal.

Costs

Counsel for the appellant submitted that in the event that the appeal was successful and a retrial ordered, a costs certificate would be sought on behalf of the appellant for both the appeal and the rehearing.
Counsel for the respondent submitted that in this event the respondent would likewise seek a certificate for both the appeal and the rehearing.
In our view, this is appropriate and we propose to grant the relevant certificates.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 12 December 2008