King & King

[2023] FedCFamC1A 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

King & King [2023] FedCFamC1A 36

Appeal from:

King & King(No 2) [2023] FedCFamC1F 45

Appeal number:

NAA 45 of 2023

File number:

MLC 9554 of 2011

Judgment of:

AUSTIN J

Date of judgment:

28 March 2023

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure –Where the appeal was listed for the appellant to show cause why it should not be summarily dismissed for lack of any apparent prospects of success – Where the respondent filed a Response to an Application in an Appeal – Where the response is dismissed as incompetent because the appellant has not filed an Application in an Appeal – Where one of the six grounds of appeal has reasonable prospects of success – Where the appeal registrar shall fix the appeal for a procedural hearing.

Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Transfer of Land Act 1958 (Vic)

Cases cited:

Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] UKPCHCA 1

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

House v The King (1936) 55 CLR 499; [1936] HCA 40

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76

Tudor & Tudor (1991) FLC 92-273; [1991] FamCA 89

Number of paragraphs:

40

Date of hearing:

24 March 2023

Place:

Heard in Newcastle (via video link), delivered in Sydney

The Appellant:

Litigant in person

Solicitor for the Respondent:

Ian Robertson Legal

ORDERS

NAA 45 of 2023
MLC 9554 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR M KING

Appellant

AND:

MS KING

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	28 March 2023

THE COURT ORDERS THAT:

1.The Response to an Application in an Appeal filed on 23 March 2023 is dismissed.

2.The appeal registrar shall fix the appeal for procedural hearing pursuant to r 13.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. On 8 February 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to determine the financial cause between the parties pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. It could hardly be doubted these proceedings have had an unfortunately protracted history. The proceedings were commenced in 2011 and, as the primary judge recounted (at [11]), there were six historical trial listings – all apparently vacated for one reason or another – and a multitude of interlocutory events. The trial was finally heard in January 2023.

3. The husband appealed from the judgment by way of a Notice of Appeal filed on 8 March 2023. The appeal was listed on 24 March 2023 for the husband to show cause why it should not be summarily dismissed for lack of any apparent prospect of success, consonantly with the power prescribed by s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).

4. On 23 March 2023 – the day before the hearing – two fresh documents were filed.

5. The husband filed an Amended Notice of Appeal, which made no tangible difference to the grounds of appeal, and the wife filed a Response to an Application in an Appeal, which was incompetent as the husband had not made any application in the appeal.

6. Having heard the husband’s submissions, the appeal cannot be summarily dismissed because a solitary ground of appeal is reasonably arguable.

   The appeal

7. The primary judge made 13 orders to conclude the financial cause between the parties.

8. While the Notice of Appeal purports to challenge only a selection of the orders, such challenged “orders” are numbered up to 51. The numbering erroneously correlates to paragraphs within the reasons for judgment rather than to the orders made by the primary judge, but it is only the orders which reflect the “judgment” of the Court (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625).

9. The Amended Notice of Appeal pleads six grounds of appeal in these terms:

   1.My submission is that [the primary judge] was brought down to deal with this case and he did not allow all the evidence to be heard. He declared that he was brought down to finish this case as it was in the court docket for so long, and stated that it was an honour for him to do so. He gave his findings in less than a week. He even stated he did not read the whole file. This case has been ongoing for more than 12 years and deserves more than three days to come to a conclusion. With reference to the numbered “Reasons for judgement” paragraphs by [the primary judge]:

   2.There are caveats on the property and therefore, the orders cannot be complied with.

   3.The assessment of the wife’s share in the marital pool of assets is legally unjust as:

   (a)the property in question, [description omitted] was bought with funds borrowed solely by the husband after separation.

   (b)the wife’s properties in Country GG were not offset from the pool of assets during assessment

   4.Spousal maintenance fees were ordered by the judge despite it being previously struck out in 2012 by the Honourable Justice Cronin J.

   5.Evidence regarding the marital financial history of the settlement from the previous divorce was not given the opportunity to be heard and therefore the costs payable to the wife by the husband is formulated from an unreasonable calculation.

   11.His Honour did not hear C’s defence to supporting her caveat on the “Suburb H property” which is an important aspect this case in terms of her interest in the property, which will resolve to what equity is left in the property. C was represented by her lawyer and barrister in court on the day of the final hearing, wherein they had their evidence to provide to the court supporting her interest. I seek that C have permission to show her interest to the court in this case so that the equity in this house be reevaluated.

10. As the husband confirmed, there are no Grounds 6, 7, 8, 9 or 10.

    Ground 1

11. Ground 1 is not a proper ground of appeal. It seemingly comprises two separate complaints.

12. First, it is asserted the primary judge “did not allow all the evidence to be heard”. When asked to elaborate that particular complaint, the husband contended he was not allowed to call evidence from two witnesses: C (the parties’ adult daughter) and Ms DD King (the husband’s sister). The husband’s grievance is without any apparent objective foundation.

13. Ms DD King was formerly joined as a party to the proceedings, but her application for removal from the proceedings was granted in August 2021 (at [19]). She did not thereafter seek leave to intervene in the proceedings (at [19]). The husband was allowed to rely upon her as a witness and her affidavit was read as part of the evidence adduced by the husband (at [10]). The fact the wife elected not to challenge her evidence in cross-examination is beside the point.

14. C was not relied upon as a witness by the husband. The reasons for judgment reveal how the primary judge allowed the husband to rely upon whatever evidence his counsel nominated (at [7]–[10]). Furthermore, the primary judge disallowed evidence adduced by the wife to which the husband took objection (at [5]–[6]). The husband conceded C was at court when the trial commenced. Earlier procedural orders made by another judge on 24 October 2022 precluded the parties from filing and serving “further affidavit material” without the leave of the Court, but no application was apparently made by the husband to rely upon evidence given by C (at [9]).

15. The second aspect of this ground asserts the primary judge “gave his findings in less than a week”. The hearing spanned three days: 30 January, 31 January, and 1 February 2023. Judgment was reserved, but was pronounced and reasons delivered on 8 February 2023. One would ordinarily expect that litigants would be both pleased and grateful to receive judgment promptly after a trial, but apparently not the husband. His dissatisfaction with such commendable efficiency of the primary judge is not a legitimate premise for an appeal.

    Ground 2

16. Ground 2 asserts the orders are incapable of compliance due to the registration of caveats over “the property”, which is a parcel of real property in Victoria.

17. Several caveats are registered over the property.

18. One caveat is registered by a law firm formerly retained by the wife, presumably to secure legal fees owed by her to them, but it does not stultify the operation of the orders, as the reasons for judgment make clear (at [52]). The primary judge ordered the default sale of the property (Order 3) if the husband fails to pay the wife $436,000 within 90 days (Order 2). The orders provide for the caveat to be discharged upon sale of the property, but only from the share of the sale proceeds which are payable to the wife (Order 3(c)). If the property needs to be sold, she is to have sole conduct of the sale (Order 5(c)) and the husband must vacate the property in advance of the sale (Order 5(d)).

19. Two other caveats are registered over the property by C and Ms DD King supposedly to secure very substantial debts said to be owed to them (at [22]). The husband conceded he had adduced no evidence to verify the loan allegedly owed to C (at [26b]), in which case the liability was not taken into account (at [30]). The loan allegedly owed to Ms DD King was also excluded from consideration (at [30] and [32]), as the primary judge found the husband adduced no evidence to substantiate it (at [31e]). The primary judge said this in relation to these two caveats:

    52.… The husband, as the continuing owner of the property, will need to take steps to have the caveats lodged by C and Ms DD King to be removed where, based on my findings, no caveatable interest by those parties exist.

20. The husband told the primary judge he would pay out the wife so he can retain sole ownership of the Victorian property (at [46]). If he does as he says, the caveats registered by C and Ms DD King over the property are immaterial because it will not need to be sold. However, if the husband refuses or fails to pay the sum of $436,000 to the wife, the default sale of the Victorian property will ensue. The two caveats will surely impede, but not preclude, its orderly sale. The wife will then have to proceed under the Transfer of Land Act 1958 (Vic) to remove the caveats from title, which may entail separate proceedings between her and the caveators. However, any such additional action does not prevent compliance with the appealed orders.

    Ground 3

21. Ground 3 asserts the result achieved by the orders is “legally unjust”, which may be taken to be an assertion that the result is “unreasonable”, “plainly unjust” or “plainly wrong” (House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539–540). However, that cannot be so because the particular complaints made by the husband about the Victorian and Country GG properties are demonstrably false for these reasons.

22. Neither party gave the primary judge “any substantial evidence” about their contributions and financial arrangements over the entirety of their long relationship (at [18]); the primary judge relied upon factual findings made by another judge in earlier interlocutory proceedings which were unchallenged (at [19]–[20]); the primary judge did not accept the husband’s evidence about his borrowings from other persons to acquire the Victorian property (at [26b] and [31e]), but did accept that he improved the property (at [36b] and [36d]); the primary judge disbelieved the husband’s evidence about the Country GG properties (at [26a]); the Victorian and Country GG properties were taken into account in the property adjustment process (at [30]); there was ultimately no dispute about the values ascribed to those properties (at [31a]–[31b]); and the primary judge rejected the wife’s submission that the Country GG properties should be excluded from the parties’ pool of property (at [31b]).

23. Against that background, the parties’ contributions were found to be equal (at [37]), but an adjustment was made in the wife’s favour principally on account of the husband’s superior income-earning capacity (at [44] and [48]). The husband was also fixed with liability for spousal maintenance arrears and costs (at [49]–[51]). There is nothing to suggest the result was manifestly unreasonable, given the findings made.

    Ground 4

24. The husband explained Ground 4 is meant to be a complaint that the whole of the proceedings before the primary judge were null because they were dismissed in 2012. It is unlikely the husband can sustain such a broad complaint, but an allied grievance about the validity of an interim spousal maintenance order is certainly arguable.

25. Litigation was commenced between the parties in 2011 (at [1]) and the husband was ordered to pay spousal maintenance by Cronin J in November 2011 (at [36d]).

26. On 28 March 2013, Cronin J made an order in these terms:

    5.That all financial applications are otherwise struck out and the wife shall have a right to reinstate those applications upon certifying to the Registrar that they are ready to proceed but such right of reinstatement shall be exercised by no later than 4.00pm on 27 March 2014 and if not so exercised, the applications stand dismissed.

    (Emphasis added)

27. The financial cause was not dismissed by that order, as the husband wrongly contended. An order striking out an application is not the dismissal of that application – merely the removal of the cause from the list of cases awaiting trial before the Court (Tudor and Tudor (1991) FLC 92-273 at 79,026).

28. However, the wife failed to exercise her right to re-instate the proceedings by 27 March 2014 and so, according to the self-executing terms of the orders, the financial cause was then formally dismissed. Upon dismissal of the proceedings, the interim spousal maintenance order was ipso facto discharged because interlocutory orders cannot subsist beyond the currency of the cause (Sadasivam & Seshan (2019) FLC 93-899 at [26]).

29. The wife belatedly applied for re-instatement of the proceedings on 10 July 2014 and, the following day (11 July 2014), orders were made by a registrar in these terms:

    1.All financial applications that were struck out pursuant to paragraph 5 of the orders made by the honourable Justice Cronin on the 28 March 2013 are reinstated and are otherwise adjourned for a hearing before a Judge on a date to be advised.

    2.The Applicant Wife file and serve an Amended Initiating Application setting out with precision the final orders sought no later than the 5 September 2014.

    (Emphasis in the original)

30. The wife duly filed an Amended Initiating Application on 26 August 2014.

31. Upon re-instatement, the proceedings continued up until the finalisation of the cause by the primary judge in February 2023. No fresh interim spousal maintenance order was made, but the primary judge assumed the interim spousal maintenance order made in November 2011 continued in operation until the trial in January 2023, at which time his Honour purported to discharge it (Order 10).

32. Putting to one side the procedurally irregular way in which the financial cause was recommenced in 2014, the husband still has a reasonably arguable case that the judgment in the financial cause is vitiated by the primary judge’s allowance of $74,100 in the wife’s favour for outstanding arrears of spousal maintenance payments supposedly accrued under the interim order (at [36d], [50a] and [51]).

    Ground 5

33. Ground 5 contained two complaints.

34. The first is the alleged deprivation of reasonable opportunity to adduce evidence, which is false for reasons already explained under Ground 1.

35. The second relates to “costs payable to the wife”, which the husband clarified was not an intended reference to legal costs.

36. Accordingly, no complaint is raised about the costs of $26,397 the husband must pay to the wife pursuant to past unsatisfied costs orders (at [50b] and [51]).

37. The husband clarified how the second complaint concerns the determination of the wife’s entitlement to 60 per cent of the parties’ net assets, which he considers is excessive. That bare complaint is without merit for the reasons explained under Ground 3.

    Ground 11

38. The husband confirmed this ground adds nothing to Grounds 1 and 2, such that if those grounds have no merit, neither does Ground 11.

    Disposition

39. As Ground 4 has reasonable prospects of success, the appeal cannot be summarily dismissed.

40. The husband is not legally represented so no question of costs arises.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 March 2023