LEONG & MING
[2018] FamCAFC 7
•19 January 2018
FAMILY COURT OF AUSTRALIA
| LEONG & MING | [2018] FamCAFC 7 |
| FAMILY LAW – APPLICATION IN AN APPEAL – where the appellant sought leave to dispense with the trial transcript for the purpose of the appeal – where the respondent did not object – application allowed FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the respondent orally sought leave to adduce further evidence – where the appellant did not object – application allowed and evidence admitted FAMILY LAW – APPEAL – where the appellant contended that the trial judge failed to take account of additional liabilities of the parties existing at the time of trial – where the respondent acknowledged that there was evidence before the trial judge as to the existence of the subject liabilities – where the trial judge made no reference to the existence of those liabilities in the reasons for judgment – where the trial judge made no reference to whom, as between the two parties, should bear responsibility for such liabilities – where the trial judge erred by failing to have regard to material considerations – appeal allowed – proceedings remitted to Federal Circuit Court for re-hearing – no order as to costs |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 De Winter v De Winter (1979) 23 ALR 211 House v The King (1936) 55 CLR 499; [1936] HCA 40 |
| APPELLANT: | Mr Leong |
| RESPONDENT: | Ms Ming |
| FILE NUMBER: | CSC | 81 | of | 2014 |
| APPEAL NUMBER: | NA | 23 | of | 2017 |
| DATE DELIVERED: | 19 January 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 10 January 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 January 2017 |
| LOWER COURT MNC: | [2017] FCCA 65 |
REPRESENTATION
| THE APPELLANT: | In person via video-link |
| THE RESPONDENT: | In person via video-link with the assistance of an interpreter |
Orders
IT IS ORDERED THAT:
The appellant husband’s Application in an Appeal filed on 2 November 2017 to dispense with the requirement that he obtain and file the trial transcript for the purpose of the hearing of this appeal is allowed.
The oral application of the respondent wife to adduce further evidence on appeal, being a letter from the local authority concerning outstanding rates on the E property is allowed and that letter be admitted and marked Exhibit 1 in the appeal.
The appeal from the orders made by Judge Coker on 19 January 2017 is allowed.
The orders made by Judge Coker on 19 January 2017 be set aside.
The proceedings be remitted for re-hearing in the Federal Circuit Court by a Judge other than Judge Coker.
There be no order as to costs of the appeal proceedings.
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 Leong & Ming 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 23 of 2017
File Number: CSC 81 of 2014
| Mr Leong |
Appellant
And
| Ms Ming |
Respondent
REASONS FOR JUDGMENT
On 19 January 2017 Judge Coker made orders in the Federal Circuit Court by way of property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between Ms Ming (“the wife”) and Mr Leong (“the husband”).
Pursuant to an order made by Murphy J on 9 August 2017 granting the husband’s application filed on 20 June 2017 for an extension of time to appeal, the husband appeals those orders. The wife opposes the appeal.
Both parties are of Chinese origin for whom English is not their first language. On the appeal hearing the wife required the assistance of an interpreter in the Mandarin language. Neither party has any relevant legal training or experience. Both parties were self-represented before Judge Coker as was the case on the hearing of the appeal. Due allowance for this feature must be made in order to fully appreciate the husband’s challenges on appeal and likewise in appreciating the wife’s arguments in opposition.
Founding each of the husband’s challenges on appeal, as identified in his Notice of Appeal and as clarified in the course of argument of the appeal, is the contention that the trial judge failed to take account of relevant considerations, namely, the existence of liabilities of the parties, or either of them, in evidence before the trial judge, totalling about $100,000 more than the amount of liabilities the trial judge considered.
On that contention the trial judge’s determination of appropriate and just and equitable property settlement orders was based upon an incorrect foundation, namely, that the total amount of liabilities to be considered was $79,500 when in fact the correct total is about $179,000. The relativity of that difference is informed by reference to the trial judge’s determination that the net value of the property interests was $560,000. That is, the additional amount of liabilities equates in value to about 18 per cent of the value of the net assets as determined by the trial judge.
The wife opposes the appeal and seeks to maintain the orders that were made by the trial judge. However, the wife acknowledged in the course of argument of the appeal that there was evidence before the trial judge as to the existence of the subject liabilities and, moreover, issues raised by her as to whom, as between the parties, should bear responsibility for them. The wife’s arguments in opposition to the appeal are properly interpreted as, first, to the effect that the trial judge must have been aware of the subject liabilities as they were in evidence before him or, alternatively, that any disregard of those liabilities by the trial judge was not material to the outcome.
Pursuant to s 94AAA(3) the jurisdiction of the Family Court in relation to this appeal is to be exercised by a single Judge.
Application in an Appeal
On 2 November 2017 the husband filed an Application in an Appeal seeking to have the requirement that he provide a copy of the trial transcript for the appeal dispensed with.
The husband contends that the transcript is not necessary for him to be able to demonstrate error in circumstances where there is sufficient documentary evidence to establish that the existence of the asserted liabilities was in evidence before the trial judge.
The wife does not oppose the husband’s application.
It was explained to the husband that if his application was granted he would not be permitted to advance any arguments which were directed towards anything asserted to have transpired at the trial, whether by way of submission or oral evidence, as this Court would not have a transcript so as to properly consider the argument. Likewise, it was explained to the wife that if her arguments in opposition to the appeal relied at all upon anything which transpired before the trial judge, as would be recorded in the trial transcript, there would be obvious difficulties encountered.
In the event, neither party contended that any reliance would be placed upon anything beyond the record for the appeal, which does not include the trial transcript, and in the result neither party advanced any submission in argument referring to any submission or oral evidence at the trial.
The appeal hearing proceeded on the basis that no transcript was required and a formal order will be made dispensing with the transcript.
Approach of the trial judge
The husband and wife married in 1996, finally separated in September 2012 and divorced in 2014. Their marriage produced one now adult son who was born in 1998.
It is clear from the reasons for judgment of the trial judge that his Honour concluded that the appropriate and just and equitable orders to be made were orders achieving equal distribution between the parties, in terms of net value, of the property interests available for distribution.
At [49] to [51] the trial judge set out his findings in respect of the property interests of the parties as follows:
49.The first step in the four-step process then with regard to any determination of what is an appropriate settlement is to assess, as best one can, the assets of the parties. There are enormous difficulties in that regard, but as best I can calculate, there are the interests in the properties at:
o[The E property] with a value of $250,000;
o[The R property], $155,000;
o[The C property], $65,000.
There are also, as best I can assess, liabilities attaching to [the R property] in Tasmania of approximately $34,500 and liabilities attaching to [the C property] of approximately $45,000.
50.Accordingly, the best available evidence would suggest that the totality of property has a net value of $390,500. There is little, if any, evidence which can be relied upon in relation to superannuation entitlements of the parties, however, it is clear that the husband has, at the very least, a financial resource available to him, which he suggests is in the vicinity of $170,000, though whether that was, an asset acquired post separation or in some way it came in to the control of the husband at separation but reflects property acquired during the relationship is unclear.
51.But, it does need to be considered, in relation to any assessment to be made and in the circumstances, as best I can assess on the limited information available, the assets of the parties, less liabilities that are able to be identified, therefore totals $560,000. There are no doubt chattels and personal items but no clear evidence is available and in the circumstances IU [sic] choose to disregard it in any calculation and will simply note that each party is to retain such property in their possession.
The trial judge assessed the parties’ contributions as being equal (at [55]) and that there should be no adjustment for any s 75(2) factor (at [58]).
Thus his Honour made orders designed to effect an equal division of the net property interests as found by his Honour. To effect the wife receiving or retaining property worth in net terms $280,000 (being 50 per cent of the $560,000 net value as determined by his Honour at [49] to [51]), his Honour ordered that the wife receive a transfer of the husband’s interest in the unencumbered E property (worth $250,000) and in addition receive a cash payment from the husband of $30,000.
As noted above with reference to what the trial judge said at [49], the trial judge took account of “liabilities attaching to [the R property] in Tasmania of approximately $34,500 and liabilities attaching to [the C property] of approximately $45,000”. It is beyond question that these liabilities as identified were references to the respective mortgage debts only on each of those properties. Whilst it is not apparent from the reasons for judgment as to precisely from where in the evidence the trial judge identified those respective mortgage debt amounts, there is no contention that these were not an accurate statement of the mortgage debt amounts with respect to each property respectively.
The husband contends that there was evidence before the trial judge with respect to each of the following liabilities, additional to those referred to by the trial judge:
a)By reference to the R property, a liability in respect of the wife’s interest in that property to former solicitors of hers secured by caveat against the title of that property, which liability “could [have] accrued to A$20,000 since it was issued” (Ground 2(a));
b)By reference to the C property, various liabilities including “A$30,000 legal fees owned [sic] to [Queensland] Council caused by [the C property] balconey [sic] structure issue … A$9,485 Council fee and liability of A$10,153 Body Corperate [sic] levy fee…” (Ground 2(b)); and
c)In respect of the E property, a liability of $12,236 “Council fee[s]” (Ground 2(c)).
The determinative issue raised by the husband on this appeal is whether there was evidence before the trial judge of additional liabilities as he contends. If so, the question is whether the trial judge was bound to consider these liabilities as a material consideration and whether the reasons of the trial judge reflect such consideration, or a failure to so do. If there was any failure, then only if it can be concluded that it is immaterial to the exercise of the subject discretion could the orders be affirmed on appeal (see House v The King (1936) 55 CLR 499; De Winter v De Winter (1979) 23 ALR 211).
Evidence before the trial judge
It is clear that there were significant difficulties with the manner in which both parties presented evidence for the trial. In the case of the husband, apparently because he had thought the matter had been resolved, he did not in fact file any updated material for the trial. His most recent affidavit prior to the trial on 11 November 2016 was his affidavit filed on 8 January 2016.
That aside, the affidavit evidence of the parties which was before the trial judge, both in terms of the actual content of the parties’ respective affidavits and the voluminous annexures attached to the wife’s affidavits, was amorphous. Much of it has no apparent relevance to any issue to be determined in property settlement proceedings.
These difficulties were compounded when regard is had to the fact that the trial judge had concerns with respect to each party having failed to make full and frank disclosure of documents and information and as to the reliability of their evidence (at [31] and [32]).
The trial judge referred to the state of the evidence before him and the consequent difficulties encountered in determining the issues falling for determination. The trial judge’s reasons contain many references to such difficulties either as to the content or quality of the parties’ evidence generally (for example at [15], [16], [20], [21], [26], [34] and [35]); the fact that neither the husband nor the wife were “impressive” as witnesses (at [23]); and fundamental reservations the trial judge had concerning in particular the husband’s failure to make full and frank disclosure (at [31]).
In argument of the appeal the husband relied principally upon the wife’s affidavit filed on 27 October 2016 (shortly before the trial on 11 November 2016) and, in particular, upon the wife’s deposition that the schedule annexed to that affidavit accurately listed relevant particulars of existing current liabilities, the existence of which the husband did not put in issue at trial. On the husband’s contention, there being no issue at trial as between the parties as to the existence of the liabilities specified in the schedule, this constituted uncontroverted evidence before the trial judge of their existence.
That affidavit of the wife specifically refers to the list of documents relied upon by the wife at trial including an annexed “list of assets and libilities [sic]” attached in schedule form to the affidavit. Relevantly, part of that schedule was addressed to the topic of “[l]ibilities” [sic] and the following appears in that schedule by reference to each of the real properties:
Libilities
Bank Loa
Council Rate
Body copy
legal fee
Water
Total
[the C property]
$45,832
$8,084
$9,120
$40,000
$100,036
[the R property]
$34,676
$10,600
$20,000
$65,276
[the E property]
$10,386
$195
$10,581
Total
$80,508
$29,070
$9,120
$60,000
$195
$178,698
(Errors and omissions as per original)
It will be immediately apparent that the wife, by that evidence, was identifying the existence of liabilities additional to the mortgage debts secured on two of the three real properties. It is only the amounts of the two mortgage debts that are referred to by the trial judge at [49] of the reasons quoted above.
There can be no doubt that the subject affidavit was before the trial judge as his Honour made reference to it in the reasons at [16]. However, that reference was confined to the following:
… on 27 October 2016, the wife filed a further affidavit and annexures, again, of 147 pages in length, most of which was of little, if any, assistance, in relation to the determination of this matter.
There is no other reference by the trial judge in the reasons for judgment to the content of that affidavit. Importantly, there was no reference to the schedule annexed and thus, if for some reason the trial judge determined not to accept the liabilities listed in the schedule, neither that determination, or any explanation for it, appears in the reasons.
Further, reference to other annexures attached to that and other affidavits of the wife that were in evidence before the trial judge provide documentary corroboration of the existence of at least some or most of these additional liabilities.
It is convenient to deal with each property in turn, by reference also to the above extract from the wife’s schedule.
The R Property
In her affidavit filed on 15 June 2015 the wife deposes at paragraph 7 to an earlier separation of the parties when legal proceedings occurred. At paragraph 15 of that same affidavit the wife deposes as follows:
15.I have an outstanding debt with the solicitors I engaged in Tasmania, [Smith Lawyers], in relation to the previous court proceedings. On 27 June 2007 [Smith Lawyers] filed a Claim in the […] Magistrates Court to recover the sum of $7,478.23 from me. This amount plus interest is still outstanding and the claim is currently the subject of a caveat registered over [the R property].
(Emphasis added)
The expert valuation report in respect of the R property, which was in evidence before the trial judge, specifically records that a caveat remains lodged on the title of the property as at the date of that valuation report.
Further, a title search for the subject property which is annexed to the wife’s affidavit filed on 21 June 2016, confirms the registration of the lawyers’ caveat against the wife’s interest in the property on 8 February 2008, and the re-entry of that caveat on 21 September 2012.
The amount for this item in the wife’s schedule is the amount of the original claim for costs by the lawyers, together with estimated interest on that sum given that the principal sum has remained unpaid.
There was thus evidence adduced before the trial judge as to the existence of this liability. Indeed, there was no issue as between the parties that the liability actually existed. There was an issue between them only as to who should bear responsibility for this liability with the wife contending, in summary, that she had historically provided the husband with sufficient funds to enable him to discharge the liability. However, there was no evidence to suggest that the liability had in fact been paid or no longer existed, and indeed the wife’s evidence and other evidence as referred to, was to the contrary.
Notwithstanding the evidence as to a caveat remaining registered on the title, the order the trial judge made with respect to this property is as follows:
1. That by way of property settlement:
…
b.That the Wife within fourteen (14) days of the receipt of transfer documents prepared by the Husband transfer to the Husband all her right, title and interest in and to the property situate at [the R property], more particularly described as Real Property […] and that the Husband indemnify and keep indemnified the Wife in relation to any liability attaching to that property.
It is unclear from the terms of that order itself whether it is to be assumed, or intended, by this order that the wife is to pay whatever liability exists in order to secure the removal of the caveat as part of her ordered obligation to transfer her interest in the property; or whether by its terms the order requiring the husband to indemnify the wife “in relation to any liability attaching to that property” is to be construed as meaning that the husband should bear responsibility for the liability founding the caveat registered on the title.
That difficulty of interpretation is not resolved by reference to anything contained in the reasons for judgment of the trial judge. There is within the reasons no mention at all of the subject liability or as to which of the parties should bear responsibility for securing the removal of the caveat. Moreover, it can be seen from the paragraphs of the trial judgment earlier quoted in full at [49] to [51] that the trial judge only had regard to the amount of mortgage debt and not to any other liability “attaching” to the property. It is reasonable to interpret the meaning of “liability attaching to that property” as embracing the liability founding a caveat registered upon the title.
Self-evidently, if either party solely bears responsibility to pay the subject liability (which together with estimated interest brings the total to $20,000) necessary to secure withdrawal of the caveat, then the intended 50 per cent/50 per cent or equal division outcome determined by the trial judge is distorted.
Further, aside from the trial judge’s reasons making no mention of the existence of this liability, the reasons for judgment do not engage with the issue raised by the wife or her case as to the husband being held solely responsible for the necessary payment to secure withdrawal of the caveat.
Aside from the amount secured by the subject caveat, there was evidence in the form of correspondence from the relevant local authority, which is annexed to the wife’s affidavit material, to corroborate her evidence (as per her schedule) of there being a substantial amount of local authority rates outstanding on the property. Again, there is no reference to this liability by the trial judge nor as to whom, as between the two parties, should bear responsibility for this liability.
Obviously enough, the inclusion of these liabilities distorts what the trial judge said were the net assets of the parties or either of them.
The C Property
It seems that it was uncontroversial on the evidence before the trial judge that this property was acquired jointly by the parties in 2011, with the parties separating on a final basis in 2012, and the husband thereafter moving to live in the C property where he remained living at trial.
The combined effect of various annexures to the wife’s affidavit filed on 21 June 2016, in the form of correspondence with the relevant local authority and with the Planning and Environment Court, is that the local authority took issue with a structure having been added to the balcony of this property without Council approval. From those same annexures it can be seen that the wife made assertions both to the local authority, and to the Planning and Environment Court, that she had no knowledge of the unlawful improvement prior to August 2015 and that such improvement was done without her knowledge or consent.
Indeed, the annexures reflect that the wife wished to accept an offer by the local authority for the parties as owners (being jointly liable) to remove the offending structure without further penalty. When that was not a position taken by the husband, the wife went to the extent of signing a transfer of her interest in the property to the husband (executed in May 2016) and it can be gleaned from the accompanying annexures that in doing so the wife was attempting to shield herself from any potential liability for costs or penalties consequent upon further proceedings taken in the Planning and Environment Court by the local authority.
Whilst it is certainly unclear from the subject documents annexed to this affidavit as to precisely the amount of the liability which resulted, it can be seen from the schedule in the wife’s affidavit earlier referred to that a substantial sum is quantified and identified to be owing in respect of this liability. Moreover, it is clear enough that the wife’s case at trial raised an issue to the effect that because she had no knowledge at the time of the illegal structure being added by the husband (in circumstances where he was the sole occupier post-separation of this property); and the wife had sought to resolve the issue without further penalty; the husband should bear responsibility solely for the accrued liability.
However, reference to the reasons for judgment of the trial judge discloses that there was no discussion of this topic, or resolution by the trial judge of these issues, that is, the existence of the liability relating to the property and, as between the parties, who should bear responsibility for it.
Those same annexures referred to disclose that substantial claims were made by the local authority with respect to outstanding rates owing on the property. The actual amounts of such liabilities are particularised in the wife’s schedule as referred to.
The E Property
The same annexures just referred to also show that there were substantial outstanding amounts owing jointly by the parties as joint owners to the local authority from time to time with respect to this property.
Again, the amount of those liabilities was identified in the extracted schedule attached to the wife’s affidavit for trial.
Indeed, on the hearing of the appeal the wife sought and was granted leave (there being no opposition by the husband) to adduce by way of further evidence on appeal the most recent demand by the local authority with respect to outstanding rates on this property. The local authority has foreshadowed to the parties action being taken to sell the property to recover outstanding rates owing.
As at the trial, taken from the wife’s schedule, there was a total amount of $10,581 accrued by way of Council rates with respect to the property. The orders make no reference to either party assuming responsibility for this joint liability. That is, whilst an order was made for the husband to transfer his interest in the property to the wife, the parties are jointly liable with respect to this liability, but the orders are silent as to this liability. Aside from the orders, there is no reference in the reasons for judgment to either the existence of the liability, or whether there is an intended equal sharing or the discharge of the liability, or otherwise.
The wife’s arguments on appeal
The wife’s arguments on appeal in support of the trial judge’s orders being maintained are largely addressed in the foregoing discussion.
As earlier referred to, the wife’s primary contention on appeal is to the effect that the trial judge must have been aware of the additional liabilities referred to, given that her schedule and affidavit filed on 27 October 2016 was in evidence at trial and there was no contention between the parties at trial about the existence of the liabilities referred to.
However, as alluded to by the trial judge at [49] of the reasons, it was necessary to the s 79 determination to be made for the entirety of the property interests of the parties, or either of them, to be identified and valued. That necessarily entailed the identification of existing liabilities. There is nothing revealed by the reasons for judgment as to why, on the one hand, the trial judge accepted the existence of the claimed mortgage debts on the two real properties which were said to be subject to mortgage, in the amounts his Honour stated, but then on the other hand distinguishing between those and the other liabilities by not incorporating the other or additional liabilities in the assessment.
Moreover, it is not reasonably open to construe the trial judge’s approach as being one of determining the allocation of these additional liabilities by the orders made. Apart from there being no mention of this intended approach within the reasons for judgment, as but one example as earlier outlined, the effect of Order 1(b), or its proper or intended interpretation, is open to conjecture.
If the trial judge determined to reject the evidence referred to as to the existence of the additional liabilities under discussion (which is not what either party argues actually occurred) then the reasons for judgment would, or properly should, express that determination and the reasons for it. In my judgment the references by the trial judge in [49] to [51] earlier quoted as to the “enormous difficulties” about the evidence; and to “the best available evidence” and to making assessments “as best I can assess on the limited information available”; cannot sensibly be construed as reflecting that the trial judge considered, but rejected, the wife’s specific evidence in the schedule (and annexures) as to the existence of the subject liabilities. Particularly when it seems that there was no issue joined between the parties at trial as to the existence of these liabilities, there would obviously need to be cogent reasons for disregarding them in the assessment process, and no such reasons appear in the reasons for judgment provided by the trial judge.
The wife’s primary contention cannot be accepted. As to the wife’s alternate submission, to the effect that any error by the trial judge was immaterial, that has already been addressed in the foregoing and for these reasons cannot be accepted. It was plainly a material consideration in a case involving a relatively modest (in value) overall pool of property interests that there existed an additional substantial amount of liabilities to be taken into account, as well as the assignation of responsibility for such liabilities, so as to achieve just and equitable orders.
Conclusion
Whilst the trial judge was appropriately critical of the quality of the evidence in general, put before him by both parties at trial, it would seem readily apparent that the trial judge did have evidence in the form of the wife’s schedule, corroborated by annexures to the wife’s affidavit material, as to substantial liabilities, as referred to, to which the trial judge made no reference in any material respect in his reasons for judgment.
In short, it can be seen that the trial judge fell into discretionary error by failing to have regard to material considerations, namely, the existence of the liabilities referred to as contained in the evidence of the wife’s schedule.
It follows that the appeal must be allowed.
Re-exercise or remitter?
The husband sought that in the event the appeal was to be allowed that this Court re-exercise the discretion to make property settlement orders. However, the wife sought to have the opportunity to place further evidence before the Court for that purpose and, of course, she is entitled to that opportunity (Allesch v Maunz (2000) 203 CLR 172). Obviously, it will be necessary for a court re-exercising the discretion to have particulars of current figures for all liabilities including the additional liabilities referred to.
Moreover, it will be seen from the foregoing discussion that whilst the existence of the additional liabilities was apparently never in issue as between the parties, the wife certainly sought to take issue, and does take issue, with her having to bear any responsibility for the additional liabilities attaching to the C property. On the wife’s case, as can be gleaned from her affidavits and annexures, all of the additional liabilities attaching to this property ought be the husband’s sole responsibility.
In this respect, part of the wife’s case at trial (again not a matter canvassed to any extent in the reasons for judgment) is that the husband had substantial rental income available to him in the post-separation period from the property in Tasmania. Moreover, as earlier noted, the wife raises an issue as to whether the husband should be solely responsible for the costs of having the caveat on that property removed on her case that she provided sufficient funds to the husband, historically, for that to occur.
Obviously enough, the factual issues in respect of the wife’s claims in these respects, disputed by the husband, require resolution for the purpose of any legitimate re-exercise of discretion. Unfortunately, there are no sufficient factual findings recorded in the reasons for judgment of the trial judge from which it can be concluded that the trial judge resolved those issues or, conversely, that there are sufficient factual findings in relation to these issues, unchallenged on appeal, as would allow this Court to re-exercise the discretion to make property settlement orders based upon such findings.
Whilst it is indeed unfortunate that this is so, given the overall modest total net value of the property interests of the parties, this Court is not in a position to
re-exercise the discretion and the proceedings will have to be remitted to the Federal Circuit Court for that purpose.
Neither party sought any order for costs, irrespective of the outcome of the appeal, in circumstances where each of them were self-represented.
For these reasons the following orders are made:
1.The appellant husband’s Application in an Appeal filed on 2 November 2017 to dispense with the requirement that he obtain and file the trial transcript for the purpose of the hearing of this appeal is allowed.
2.The oral application of the respondent wife to adduce further evidence on appeal, being a letter from the local authority concerning outstanding rates on the E property is allowed and that letter be admitted and marked Exhibit 1 in the appeal.
3.The appeal from the orders made by Judge Coker on 19 January 2017 is allowed.
4.The orders made by Judge Coker on 19 January 2017 be set aside.
5.The proceedings be remitted for re-hearing in the Federal Circuit Court by a Judge other than Judge Coker.
6.There be no order as to costs of the appeal proceedings.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 January 2018.
Associate:
Date: 19 January 2018
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