LAREMORE & SPEIDELL - [2019] FamCAFC 215

FAMILY COURT OF AUSTRALIA

LAREMORE & SPEIDELL

[2019] FamCAFC 215

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant contends that the primary judge did not adequately explain the law to him, as a self‑represented litigant in the court below – Consideration of Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Whether the primary judge erred in failing to explain to the appellant the consequences of evidence being accepted if it was not cross‑examined on – Where the appellant was legally represented up until the day before trial – Where the failure of the primary judge to explain the consequences of not challenging expert evidence in cross‑examination did not deprive the appellant of a fair trial – Challenges not made out – Appeal dismissed – Appellant to pay respondent’s costs.

Family Law Act 1975 (Cth) ss 72, 75, 90SE and 90SF
Federal Circuit Court Rules 2001 (Cth) r 15.10

De Winter v De Winter (1979) 23 ALR 211
Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283; [2014] VSCA 193
House v The King (1936) 55 CLR 499; [1936] HCA 40
LC v TC (1998) FLC 92-803; [1998] FamCA 47
Phe & Leng (2019) FLC 93-887; [2019] FamCAFC 17
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Storiev Storie (1945) 80 CLR 597; [1945] HCA 56
SZBYR v Ministerfor Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Yein & Zihao (2019) FLC 93-889; [2019] FamCAFC 20

APPELLANT:

Mr Laremore

RESPONDENT:

Ms Speidell

FILE NUMBER:

BRC

11750

2016

APPEAL NUMBER:

NOA

120

2018

DATE DELIVERED:

19 November 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE:

29 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2018

LOWER COURT MNC:

[2018] FCCA 3380

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Selfridge with Mr Hartnett

SOLICITOR FOR THE APPELLANT:

George Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Mitchell Lawyers

Orders

The Notice of Appeal filed on 19 December 2018 be dismissed.
The Appellant pay the Respondent’s costs of and incidental to the appeal fixed in the sum of $16,426.00, such sum to be paid within twenty-eight (28) days of the date of this order.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 120 of 2018
File Number: BRC 11750 of 2016

Mr Laremore

Appellant

And

Ms Speidell

Respondent

REASONS FOR JUDGMENT

Introduction

On 21 November 2018, the primary judge pronounced orders dividing the parties’ property, such that Ms Speidell (“the respondent”) would receive 75 per cent of the net pool, and Mr Laremore (“the appellant”) would receive 25 per cent. The orders also required the appellant to pay the respondent $200.00 per week by way of spouse maintenance.
The appellant, who was self-represented at the trial, seeks to overturn all of these orders on the grounds that he was not afforded a fair trial, essentially because the primary judge did not adequately explain the law to him, as detailed in his Notice of Appeal filed on 19 December 2018. The respondent opposes the appeal.

Background

The appellant is presently 58 years of age; the respondent is 55. Their de facto relationship commenced in September 2012, and concluded in November 2015.
On 9 November 2015, shortly prior to separation, the respondent’s right wrist was deeply slashed by a sharp knife, severing all five tendons. It was not in dispute at trial that, in consequence of that injury, the respondent has lost the function of her dominant hand.
The primary judge found that, at the time of trial, the net pool of the parties’ property was worth $1,542,505.44, principally comprised in two real properties, cash at bank, and a boat. The appellant also had a little more than $200,000.00 in superannuation.

The Appeal

The principles applicable in respect of challenges to discretionary decisions are well known, and derive initially from House v The King (1936) 55 CLR 499 at 504-505, in which Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The appellant advances only two grounds of appeal, outlined in his Notice of Appeal filed 19 December 2018 as follows:
1. The learned trial judge conducted the proceeding in a way that was procedurally unfair to the appellant who was self‑represented at the trial.
Particulars
(a)The learned trial judge did not explain that failure to cross‑examine the respondent on point in her evidence meant that her evidence on the point would likely be accepted.
(b)The appellant's failure to cross‑examine the respondent as to her future needs resulted in the appellant’s being unable to make submissions to the learned trial judge about how (or whether) his Honour should make orders (1) adjusting the property pool; or (2) that the appellant pay to the respondent an amount of spousal maintenance.
(c)The learned trial judge did not explain that failure to cross‑examine the expert witness meant that the expert witness's evidence of the respondent's future need (in terms of future earning capacity) would be accepted by the learned trial judge.
2. The learned trial judge erred in not assisting the appellant, as a self‑represented litigant, to understand the test that the court would apply in deciding whether to make an order for spousal maintenance.
Particulars
(a)The learned trial judge explained that the task of the court was to make orders that were just and equitable – which was relevant to orders about the property pool.
(b)The learned trial judge did not explain the court's task in relation to the respondent’s application for spousal maintenance involved being satisfied of the threshold in section 72(1) of the Family Law Act 1975.
(c)The learned trial judge did not explain that the court would assess whether to make an order for spousal maintenance by reference to the test contained in section 75(2) of the Family Law Act 1975.
(d)In all the circumstances, the appellant as a self‑represented litigant could not have understood the task of the court in relation to spousal maintenance and could not have adequately presented his case to address the court on these points.
(As per original)
Grounds 2(b) and 2(c) assert that the primary judge did not explain spousal maintenance by reference to s 72 (1) and s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). However, s 72 and s 75 of the Act apply to a claim for spousal maintenance where the parties are married. Here, since the parties were in a de facto relationship, the correct provisions for determining an application for spousal maintenance are s 90SE and s 90SF of the Act.

Ground 1

In essence, this ground asserts that the primary judge’s failure to explain that, if not challenged by cross‑examination, a witness’ testimony might be more readily accepted than if it had been challenged, deprived the appellant of a fair trial.
The Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93‑072 (“Re F”) set out nine guidelines aimed at according procedural fairness to unrepresented parties for proceedings in this jurisdiction.[1] Neither party in this appeal contended for any revisitation of those guidelines. At [253] the Full Court in Re F said:
[1] See also Phe & Leng (2019) FLC 93-887 at [52]; Yein & Zihao (2019) FLC 93-889 at [10].
253. Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
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;
2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3. A judge should explain to the litigant in person any procedures relevant to the litigation;
4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
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);
9. Where the interests of justice and the circumstances of the case require it, a judge may:
·draw attention to the law applied by the Court in determining issues before it;
·question witnesses;
·identify applications or submissions which ought to be put to the Court;
·suggest procedural steps that may be taken by a party;
·clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
A failure to comply with the Re F guidelines does not automatically establish error. That is because the guidelines are only informative of the overarching obligation upon a primary judge to conduct the hearing in a way which affords each party a fair trial, and particularly, to provide a self‑represented litigant with the opportunity to fairly present their case. The provision of that opportunity may require such a litigant to be appraised of information in order for them to make informed choices,[2] including whether to call evidence, cross‑examine upon evidence, or make submissions, as to one or more issues. Error will only be established if the failure to provide such information, either at all, or at the appropriate juncture, meant that, in the particular circumstances of the case, a fair trial did not ensue. However a new trial will not be ordered if it can be shown that the primary judge’s decision was inevitable despite the procedural irregularity, in that it could have had no bearing on the outcome.[3]
[2] Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283 at [105]; Yein & Zihao [2019] (2019) FLC 93-889.
[3] Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; SZBYR v Ministerfor Immigration and Citizenship (2007) 235 ALR 609.
In this case, the lack of a fair trial is said to arise in two particular respects. Firstly, it is claimed that the appellant did not cross‑examine the respondent by reference to her future financial needs and secondly, that he did not require any cross‑examination of Ms B, a single expert occupational therapist, whose report dealt with the residual earning capacity of the respondent. It is said that those failures impacted upon both the property division and spouse maintenance aspects of the trial.
It is not incumbent upon parties in trials conducted by way of affidavit to cross‑examine on all contentious matters.[4] Rather, some judgement can be exercised to narrow the focus of contest to material issues. Further, unless some seemingly significant contentious issue is left untouched by a self‑represented litigant’s cross‑examination, a primary judge is not generally required to identify topics which might have been explored.
[4] See LC v TC (1998) FLC 92-803.
Often, the parties’ material will identify what is contentious. In this case, the appellant’s several affidavits were sensibly and orthodoxly drawn, utilising headings, including “Physical Capacity,”[5] “Mental Capacity,”[6] “Earning Capacities and Effect of Defacto Relationship on Earning Capacity”[7] and other matters plainly derived from the list of considerations under s 90SF of the Act. Although that material was drafted by the appellant’s former lawyers, given that he affirmed the affidavits, there is no reason to think that he had not read them, and hence good reason to think he understood the topics canvassed in them. It is not apparent from that material that the appellant’s case at trial impugned the respondent’s claimed living expenses, or that Ms B’s opinion regarding the respondent’s earning capacity was challenged.
[5] Appellant’s affidavit affirmed 22 March 2018, p.14.
[6] Appellant’s affidavit affirmed 22 March 2018, p.15.
[7] Appellant’s affidavit filed 22 March 2018, p.13.
Further, the transcript of the proceedings reveals that the appellant was able to identify for himself issues he believed were relevant, upon which to cross‑examine the respondent. These included the truthfulness and reasonableness of various claimed expenses, including her weekly food, repair, gardening and cleaning costs. It is not apparent to us, as seemingly it was also not apparent to the primary judge that some significant issue of dispute had been left untouched at the conclusion of the appellant’s cross‑examination of the respondent. The only example of this identified by the appellant is by reference to paragraph 25 of the respondent’s affidavit filed 14 March 2018, which deals with initial contributions. It is not altogether clear what the appellant says is inaccurate, since his own affidavit material identified what he contended were the parties’ contributions.
As to the failure of the appellant to cross‑examine the occupational therapist, it is salient to note that she was a single expert witness, to whom no supplementary questions had been posed. Further, no competing expert evidence was sought to be led by the appellant, and no arrangement for Ms B’s attendance had been made by him (as required by the Federal Circuit Court Rules 2001 (Cth) r 15.10(4)), notwithstanding that, until the very eve of trial, he was legally represented. The primary judge properly asked the appellant whether he had any questions for Ms B, to which the appellant answered in the negative.[8] Later, during the course of address, the trial judge asked the appellant if he should “just disregard [Ms B’s] opinion”,[9] which proposition the appellant rejected.
[8] Transcript 4 April 2018, p.7 line 47 to p.8 line 1.
[9] Transcript 4 April 2018, p.80 lines 16-18.
Consistent with the Re F guidelines, ordinarily a primary judge should explain to a self‑represented litigant the potential significance of expert evidence, and the means by which it might be challenged, including any contentious factual assumptions upon which it is based. The primary judge did not do so here.
However, as has been seen, such a failure will only justify appellate intervention if it deprived the self‑represented litigant of a fair trial. As to that, the appellant suggests in his Summary of Argument that the evidence of Ms B that the respondent is “not totally unemployable”[10] was a topic deserving of exploration in cross‑examination. Such an opinion was, however, favourable to the appellant. Rather, the aspect of Ms B’s evidence which was adverse to the appellant was that the respondent would be under a “distinct disadvantage”[11] against more able bodied candidates seeking employment. Before us, it was not contended at trial that the appellant was in a position to suggest employment for which the respondent was suitably qualified in circumstances where she would not be disadvantaged by the loss of function of her dominant hand. This is scarcely surprising given her significant background in retail sales.
[10] Appellant’s Summary of Argument filed 30 May 2019, paragraph 27 quoting Occupational Therapy Report dated 27 February 2018, p.17.
[11] Occupational Therapy Report dated 27 February 2018, p.17.
We cannot see how Ms B’s evidence could have been materially undermined, even if the appropriate explanation about cross‑examination of an expert’s evidence had been given. In particular it is unclear how the “distinct disadvantage”,[12] which Ms B opined the respondent would be under, given her loss of function in her dominant hand, in seeking such positions as she might be otherwise suitable for, could have been sensibly attacked.
[12] Occupational Therapy Report dated 27 February 2018, p.17.
We are not satisfied that the failure of the primary judge to explain the potential consequences of not challenging a witness’ testimony in cross‑examination, deprived the appellant of a fair trial. This ground of appeal fails.

Ground 2

This ground is restricted to the spouse maintenance orders. It is contended by the appellant that the primary judge did not properly explain to him, at an appropriate time, the statutory regime established by s 90SE and s 90SF of the Act. It is plain that, as the appellant contends, no such explanation was given by the primary judge prior to submissions, and when later explained, was rather truncated. Therefore, it was said by the appellant’s counsel that the appellant was unable to appreciate the need to challenge the respondent about her contended expenditure, and Ms B about the respondent’s potential earning capacity.

As we have said, the appellant was legally represented until the very eve of trial. It is virtually inconceivable that his solicitors had not explained the law relating to spouse maintenance to him at some time prior to the termination of their retainer, and the appellant’s counsel did not contend otherwise. The primary judge was therefore not dealing with a totally uninformed litigant.
However, even if the failure of the primary judge to explain the relevant law prior to submissions was a breach of the Re F guidelines, the question of materiality again arises. As to Ms B, we have already remarked upon the unlikelihood that cross‑examination of her would have established any realistic earning capacity of the respondent. There must be something more than mere conjecture to support an assertion of unfairness.
As to the respondent, she claimed her necessary expenses exceeded her income to the extent of $1,484.00 per week. Given that the spouse maintenance order was in the sum of $200.00 per week, in order to logically impact upon the outcome, the appellant would have needed to dislodge some $1,284.00 worth of expenditure of the respondent. A cursory examination of the respondent’s Financial Statement filed 14 March 2018 demonstrates the unlikelihood of that, given that her total expenditure under Part G at items 19-31 alone was $379.00, already a deficit of $286.00 per week over her income of $93.00. This was even before items such as food, motor vehicle running costs and maintenance, marina fees and the like – totalling $1,198.00 per week – were taken into account. How it was that cross‑examination by the appellant had any realistic prospect of reducing the respondent’s expenditure to the required extent, was not demonstrated.
Further, it should not be overlooked that in fact the appellant did, albeit unsuccessfully, challenge some items of the respondent’s expenditure in cross‑examination, including her costs for food, house repairs, gardening and cleaning. Plainly he was alert to the need, and opportunity which cross‑examination afforded him, to challenge the respondent’s expenditure.
We are not satisfied that, in the particular circumstances of this case, the primary judge’s failure to explain the law relating to spouse maintenance comprised a breach of the Re F guidelines, or if it did, that the appellant was thereby deprived of a fair trial. This ground of appeal also fails.

Outcome

It therefore follows that the appeal fails. The appellant conceded that, in the event the appeal failed, he could not resist an order for costs. The respondent’s schedule claims costs which, together with counsel’s fees, are in the sum of $16,426.00, which we are satisfied are reasonable. There will therefore be an order that the appellant pay the respondent’s costs fixed in that sum within 28 days.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 19 November 2019.

Associate:

Date: 19 November 2019