Leong & Wu
[2023] FedCFamC1A 190
•6 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Leong & Wu [2023] FedCFamC1A 190
Appeal from: Wu & Leong [2023] FedCFamC2F 480 Appeal number: NAA 145 of 2023 File number: CAC 1783 of 2013 Judgment of: CAMPTON J Date of judgment: 6 November 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband appeals from final property orders – Where the husband seeks to adduce 244 pages of further evidence – Where the grounds of appeal are prolix by way of sub grounds asserting bias, a failure to afford procedural fairness, errors of fact and errors of weight – Where errors of fact are established but are not material to the final determination – Where the husband is, in reality, seeking to re-run his case – Where no ground of appeal succeeds – Applications for leave to adduce further evidence dismissed – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Evidence Act 1995 (Cth) s 191
Family Law Act 1975 (Cth) ss 75, 79, 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39, Sch 3
Cases cited: Aldrin & Celona [2021] FedCFamC1A 16
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Mallett v Mallett (1984) 156 CLR 60; [1984] HCA 21
Metwally vUniversity of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Neil v Nott and Another (1994) 121 ALR 148; [1994] HCA 23
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22
Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 29
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 148 Date of hearing: 26 October 2023 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Dr Leslie Solicitor for the Respondent: SCB Legal ORDERS
CAC 1783 of 2013
NAA 145 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LEONG
Applicant
AND: MS WU
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 13 October 2023 is dismissed.
2.The Application in an Appeal filed 23 October 2023 is dismissed.
3.The Amended Notice of Appeal filed 23 August 2023 is dismissed.
4.The appellant within 28 days from the date of this order pay the respondent’s costs fixed at $15,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Leong & Wu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
The appellant (“the husband”) appeals from property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 April 2023. The respondent (“the wife”) opposes the appeal.
The orders provide for the wife to transfer to the husband her interest in a real property at Suburb B and to pay him $133,193, for the husband to transfer to the wife his interests in real properties at Suburb F and Suburb D, and for a 50 per cent splitable payment in favour of the wife from the husband’s interest in the payment phase of his Super Fund H. Each party otherwise retains their own property, including other accumulation superannuation interests.
The husband filed a Notice of Appeal on 26 May 2023, and an Amended Notice of Appeal on 23 August 2023. He seeks for all the property orders to be set aside and for the matter to be remitted for trial before a judge other than the primary judge.
On 27 June 2023 the husband filed an Application in a Proceeding for a stay of the superannuation splitting order. That application was dismissed by the primary judge on
19 July 2023 in circumstances where the order had been implemented.
On 13 October 2023 the husband filed an Application in an Appeal to adduce further evidence in the appeal. On 23 October 2023 the husband filed another Application in an Appeal to adduce further evidence in the appeal. Each was supported by a contemporaneously filed affidavit.
For the reasons that follow, both Applications in an Appeal will be dismissed. The appeal will also be dismissed. An order will be made that the husband pay the wife’s costs of the appeal.
BACKGROUND
The husband and wife are 59 years of age. They have one adult child.
The husband commenced residing in Australia in 1989. The parties met in Country K in 1998 and married in that country in 1999. The wife moved to Australia in 1999. They separated on a final basis on 29 November 2012.
In 1999 the parties jointly purchased a property in Suburb M funded by a mortgage loan, joint savings, and a small loan from a friend of the husband. In 2001 they jointly purchased a property in Suburb L funded by another mortgage loan, joint savings, and equity in the Suburb M property.
In April 2003 the husband obtained employment in City N. The wife remained residing in the Suburb M property in preparation for the birth of their child, who was born in 2003.
In October 2003 the husband obtained full-time employment as a public servant and commenced membership of Super Fund H. At that time the wife and their child moved to
City N to join the husband. The parties jointly purchased the Suburb D property.
The parties separated in 2004. The wife moved into rental accommodation in Sydney with the child. The parties reconciled in 2008. The wife and the child returned to live in the Suburb D property.
During the period of separation, the husband unilaterally and without notice to the wife:
(a)In 2005 borrowed $100,000 secured against the Suburb M and Suburb D properties;
(b)In 2006 transferred $60,000 out of a joint account of the parties; and
(c)In 2007 sold the Suburb L property and received the net proceeds of $119,977.
The primary judge found at [45] that the husband conceded that in 2008 he lost not less than $150,000 derived from the property of the parties, that the wife was not involved in or aware of these transactions until after that period of separation, and that the husband viewed the period of separation from 2004 until 2008 as justification for his failure to advise the wife of his use and loss of funds (at [40] and [41]).
In 2009 the Suburb M property was sold, and the proceeds were applied to the mortgage of the Suburb D property.
In 2010 the husband opened a new line of credit. The Suburb F property was acquired in his sole name.
In 2011 the parties purchased the Suburb B property as tenants in common as to the husband 90 per cent and the wife 10 per cent by obtaining a mortgage and using the equity in the Suburb D property. The parties and the child moved from the Suburb D property to the Suburb B property.
The primary judge at [73] found that the wife’s parents had sent a total of $106,212 by way of gifts to the wife across six transactions in the period of 1999 until 2012.
In 2012 the husband was charged with criminal offences as to an assault upon the child and the wife obtained a family violence order. On 29 November 2012 the parties separated on a final basis. The husband vacated the Suburb B property. In 2013 the husband entered a plea of guilty to the criminal charge and was convicted.
In 2013 the wife and the child moved out of the Suburb B property into rental accommodation.
In November 2013 the wife commenced proceedings for final orders as to parenting and property adjustment.
In 2013 Westpac took possession of the Suburb B property. The husband negotiated with the mortgagee to retain it. In 2014 he moved out of the Suburb D property and commenced living in the Suburb B property.
The child was approaching nine and a half years old at separation and is now an adult. The primary judge found at [76] that the wife had full-time care and sole responsibility of the child since separation. It was agreed between the parties that the first time the husband paid child support was in 2013, and the primary judge found at [76] that the husband objected to making child support payments and only did so by way of deduction from his pay.
The primary judge found at [77] that the wife’s parents had sent to the wife or the child a total of $361,932 by way of further gifts post-separation between 2016 and 2022 which the wife has applied to support herself and the child or to pay legal fees.
On 18 November 2019 final parenting and property orders were made in the absence of the husband.
On 14 January 2020 the husband applied to re-open the property proceeding. On
17 January 2020 a judge other than the primary judge dismissed the husband’s application to re-open the property proceeding.
On 17 February 2020 the husband filed a Notice of Appeal from the orders made on
17 January 2020. The husband failed to comply with procedural orders made in the appeal. On
18 June 2020 his appeal was deemed abandoned.
The wife ceased working in 2020 due to ill health.
On 24 June 2021 orders were made by a judge alone sitting as the Full Court reinstating the husband’s appeal filed 17 February 2020 from his unsuccessful 14 January 2020 application. The reinstated appeal was discontinued by the husband by way of Notices filed on
20 August 2021 and 23 August 2021.
The child turned 18 years old in 2021.
On 26 August 2021 the undefended property orders made on 18 November 2019 were discharged.
On 27 October 2021 the husband’s application for invalidity retirement was approved. He commenced to receive an annual Super Fund H pension of $65,653.90 (at [55]).
The husband commenced appearing on his own behalf from June 2022 and the wife on her own behalf from August 2022. In August 2022 an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the husband from personally cross-examining the wife.
On 2 September 2022 directions were made by a judge, not being the primary judge, as to a timetable or the filing of trial material and listing of the matter for trial over three days commencing on 31 October 2022.
On 16 September 2022 the husband filed an Application in a Proceeding seeking an adjournment of the allocated 31 October 2022 trial. This application was heard by the primary judge and refused on 27 September 2022.
The final trial was conducted over three days from 31 October to 2 November 2022. Both parties had the benefit of s 102NA family violence scheme representation. Each party varied the terms of the final orders they sought over the course of the trial. The balance sheet identifying and valuing the superannuation and non-superannuation property of the parties was agreed save for three categories of “add backs” as sought by the wife (see [35], [37], [62] – [63]).
The primary judge outlined the issues in dispute at [10] as follows:
(a)Whether or not to include the addbacks contended for by the wife in the otherwise agreed final balance sheet;
(b)Assessment of contributions including consideration of family violence;
(c)Assessment of section 75(2) factors;
(d)How to account for potential capital gains tax implications consequential to final orders;
(e)The treatment of the husband’s interests in Super Fund H which is in the payment phase;
(f)Crafting of orders to retain a just and equitable result whilst finally determining the financial relationship between the parties.
Judgment was delivered on 28 April 2023 after almost 10 years of litigation. The primary judge inferentially adopted a two-pool approach to the adjustment of the property of the parties, being one pool comprised of the husband’s Super Fund H entitlement in the payment phase, and the other being the balance of the non-superannuation property and accumulation superannuation property of the parties. The express and implicit reasoning for that approach was grounded from the complexion of the current nature and character of the husband’s Super Fund H entitlement (at [54] – [58]) when compared to the other property of the parties in circumstances where each currently was either unlikely to return to work or had retired.
The primary judge at [84] assessed contributions as equal “except for the contributions attributable to the wife by way of the gifts from her parents” such that “the property of the parties ought to be equalised except for the contributions attributable to the wife by way of the gifts from her parents which warrants a modest adjustment in her favour”. As to any adjustment to the contribution finding, the primary judge found at [93] that there ought to be “no adjustment made on account of s 75(2) factors except for the husband’s interest in the payment phase of Super Fund H such that the income stream derived from it be equalised”.
The effect of the orders was to equally adjust the husband’s Super Fund H interest between the parties and for the balance of the other superannuation and non-superannuation property to be adjusted 51 per cent to the wife and 49 per cent to the husband. The value of that 1 per cent adjustment was $18,666, a differential of $37,333.
THE APPEAL
The appellant has chosen to be unrepresented in this appeal notwithstanding that he has available to him not insignificant property subsequent to the orders made by the primary judge. He remains bound by the same legal principles as any other litigant. The observations of the High Court in Neil v Nott and Another (1994) 121 ALR 148 are applicable to this appeal, where it was observed at 150:
… A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. …
That said, as identified by the Full Court of the Federal Court in Bahonko v Sterjov (2008) 166 FCR 415:
3.… it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle.
(Emphasis added)
Difficulty is encountered in distilling the particulars of many of the asserted errors due to the narrative style adopted in the husband’s Amended Notice of Appeal and compounded in his Summary of Argument. Each were more in the nature of broad summaries of contended applicable principles and critiques of selected aspects of pre-trial processes. The oral submissions of the husband at the hearing of the appeal provided little clarity to his appellate challenges. Although at times he touched upon the appeal grounds, he primarily directed his submissions to the result of the orders under challenge, describing the determination to be “legally and morally incongruent” and “unfair”. He repeatedly said that the wife had “lied to the court” and committed “perjury”.
Notwithstanding, it is appropriate to identify the errors in the terms as asserted in the grounds. They were:
(1)Procedural unfairness and biased conduct;
(2)Failure to consider insufficient time for preparation of evidence;
(3)Material errors, misrepresentations, and overlooked evidence, evidentiary oversights and procedural shortfalls undermining fair judgment;
(4)Disregard wife’s misconduct and husband’s efforts on marital property;
(5)Inadequate Super Fund H split amidst prolonged separation and disproportionate financial contributions;
(6)Inequitable assessment of significant financial outgoings; and
(7)Disproportionate allocation of Suburb F property.
The relevant principles which govern appeals from discretionary judgments are well known. Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. There, the majority of the High Court said at 504–505:
… 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 …
In Hedlund & Hedlund (2021) FLC 94-065, the Full Court recently observed apposite to this appeal:
36.These grounds … also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
53.… The first and second [grounds of appeal] were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention [“one or more specific errors of principle or of fact” (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. … The third [ground of appeal] was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category [“in the totality of the circumstances was unreasonable or plainly unjust” (at [51])].
37.To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. …
(Emphasis added)
That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at [519] (“Gronow”)).
APPLICATIONS FOR LEAVE TO ADDUCE FURTHER EVIDENCE
By Application in an Appeal and affidavit filed 13 October 2023 and a further Application in an Appeal and affidavit filed 23 October 2023, the husband seeks to adduce further evidence by way of 244 pages of documents on the appeal.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) gives an unfettered discretion to admit further evidence on appeal.
During the hearing of the Applications in an Appeal the husband encountered challenges identifying and then focusing on the specific grounds to which each of the differing categories of documents to which the application related (see r 13.39(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). The ten categories of evidence sought to be adduced on appeal as constructed by the husband are:
·Category A –these comprise a haphazard and non-sequential bundle of the wife’s bank and credit card statements in 2021 and 2022. The husband said he “found” these documents after the trial. He could not identify their relevance to any ground of appeal.
·Category B – were three emails said to establish that the husband could only inspect the documents produced on subpoena after the final hearing (Ground 1). Two emails were from 2019 and 2022. He could not identify their relevance to the ground. He conceded that the third email dated October 2022, consisting of his disclosure, was “the wrong email”.
·Category C – are a large number of the husband’s own source financial documents over a ten-year period from 2012 – 2022 that he said “further supported” a schedule in his affidavit as to him paying $602,195 preserving property since separation (Ground 6). The schedule was a document created by the husband. The husband said that he ought to now be able to adduce this evidence on appeal as he had had “no time” prior to the trial to “attach” this evidence to his affidavit “to support my spreadsheet”. The hundreds of pages of documents were uncategorised and nonsequential. The husband could not engage with an inquiry at the hearing of the appeal as to his capacity to tender those documents in support of his schedule at trial.
·Category D – are documents the husband says were produced pursuant to calls made during his cross-examination (Ground 3). The transcript records the fact of the production of some documents on the last day of the trial pursuant to the calls. As recorded later in these reasons, the identity and particulars of the documents produced were not specified. Some of the documents now sought to be adduced in this category have been self-evidently authored and annotated by the husband. The husband had the ability to tender them at the trial.
·Category E – comprise photographs, tables, and a mortgage default notice from 2013 relating to the Suburb B property (Ground 4). The husband submitted that these demonstrate that the wife damaged the Suburb B property and then “ran away”. The photographs do not illustrate that as asserted by the husband, nor do the documents establish the expenditure he asserts by way of rectification. This topic was the subject of cross-examination at trial. The documents were available to him at the time of trial. The husband had the ability to put these documents to the wife in her cross-examination, or to tender them. The husband submitted they were now relevant because they were “more detailed” than his trial affidavit.
·Category F – are emails in Language Z from 2020, one from the wife to the husband and one from the child to the husband. The husband submitted that the emails contained admissions on the part of the wife to causing significant harm to the husband. This topic was also the subject of cross-examination at trial. The husband stated that the reason they were not tendered at trial was due to insufficient time to prepare his trial affidavit. The documents were available to him at the time of trial but were not tendered. They are not relevant to any ground of appeal.
·Category G – are documents as to the contributions by his employer and the husband’s salary sacrifice over the period of 2003 – 2021 to his Super Fund H interest (Ground 5). They were available at the time of the trial and not put into evidence. His explanation was that this was because of the enormous pressure where he had one week to prepare his affidavit.
·Category H – is a recent title search establishing that the property funded by the wife’s parents is in the name of the child. There was cross-examination as to this topic at trial. Its subject matter was not a disputed fact at trial. It is not relevant to any ground of appeal.
·Category I – are the husband’s hospital discharge notes from 2019 and 2021, and a 2021 psychiatric report (Ground 3). These documents were produced at the trial by the husband pursuant to a call. Their relevant content was reduced to an agreed fact (Exhibit C2). The husband submitted that the primary judge had said that the discharge notes and the report themselves were admitted into evidence. The transcript (pages 111, 113, 120) establish that they were not. The husband said they were now relevant because they gave “more detail”.
·Category J – are documents relevant to the acquisition of the Suburb F property including a real property transfer, a house insurance policy, and loan and mortgage documents (Ground 7). The husband confirmed he had them in his possession at the time of the trial but did not have enough time to put them into evidence.
In opposing each of the Application in an Appeal to adduce further evidence, the wife identified that:
(a)All of that which the husband seeks to adduce in the Applications in an Appeal (except one email and an uncontroversial real property title search) was evidence that was available to him at the time of the trial, being in his possession or control or otherwise available for him to access or obtain over the years of the litigation. Those documents, or the contentions the husband seeks to assert from them, were available to him to put to the wife by way of cross-examination at the trial or for him to tender at trial. He did not do so; and
(b)The factual matters contended to be supplemented by the documents he now seeks to adduce on appeal are, for the most part, disputed. She highlights that this Court is unable to progress disputed findings of fact; and
(c)The documents sought to be adduced were not relevant to the grounds as prosecuted by the husband.
The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) laid down clear guidelines that are to apply to the reception of further evidence on appeal, observing (as to s 93A(2) of the Act, the predecessor of s 35 of the FCFCOA Act):
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.…. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
(Emphasis added) (Footnotes omitted)
Consideration
The proposed further evidence has no relevance by way of any re-exercise of discretion should the appeal be successful. Each party agrees that in the event the appeal is successful the matter ought to be remitted for trial.
The evidence sought to be adduced was available to the husband at the time of the trial. The complaints as to errors relevant to this appeal from the refusal to vacate the trial on
27 September 2022, being more than a month before the trial, are misconceived. The orders of 23 April 2023 are those from which this appeal actually arises.
The “further evidence” does not fall into the category of that identified by the High Court in CDJ v VAJ. I am not satisfied that this further evidence has any impact on the appeal and thus does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellant principles” (CDJ v VAJ at [109]).
The Applications in an Appeal to adduce further evidence will be dismissed.
THE SUBSTANTIVE APPEAL
Grounds 1 and 2 raise concerns of procedural fairness and bias. Consistent with principle it is appropriate to deal with those grounds first, as they go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611).
Ground 1 – Procedural unfairness and bias conduct
The ground groups numerous purported errors. The particulars giving rise to this ground are:
·The delay by Legal Aid in appointing counsel for the husband until 10 days before the trial, with additional uncertainty until six days before the trial;
·The wife’s last-minute filing of her trial affidavit and other documents until immediately before the trial;
·The discrepancy in financial disclosures between the husband and the wife;
·The ability of the wife to inspect all subpoena documents prior to the trial, in contrast to the inability of the husband to do so; and
·The Court’s acceptance and endorsement of the wife’s breach of court procedures by late filing of documents, which he posits “hints at potential bias”.
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582).
The husband contends that the primary judge, by a means that is unclear, failed to afford him procedural fairness arising from the combined impact of Legal Aid neglecting to “appoint counsel” to appear on his behalf subsequent to the s 102NA order until either on 21 or
25 October 2022 and “the wife’s last-minute filing of her trial affidavit and other documents” which he described as being of an “overwhelming volume” (at paragraph 15 of his Summary of Argument). He states that this not only “hampered” his capacity to prepare his case, “but also represented a further, substantial breach of procedural fairness, undermining the principles of natural justice and fair play in these proceedings”.
While it is difficult to find a nexus between a complaint made by the husband of Legal Aid and an error of the primary judge, to understand this part of the ground, some background is required.
After more than nine years of litigation, orders were made by a judge other than the primary judge on 2 September 2022 for the filing of trial material, including that the husband file his trial material by 19 September 2022.
On 19 September 2022 the husband applied to set aside the trial directions with consequential effect to vacate the trial listed to commence on 31 October 2022. By that date the husband was in default of the trial directions. That application was heard and determined by the primary judge on 27 September 2022. The primary judge dismissed the husband’s application and confirmed the trial dates. The timetable as to the filing of trial material was amended such that the husband was to file the trial material he relied upon by 3 October 2022, the wife was to file the trial material she relied upon by 17 October 2022 and for the husband to file any material in reply by 24 October 2022. The sole ground, recorded by notation to the orders as prosecuted by the husband to vacate the trial at the hearing on 27 September 2022, was an alleged incapacity to obtain expert valuation evidence. The husband puts this into issue. He contends that another ground to vacate the trial was his inability as a litigant without representation to prepare his trial affidavit material. The husband’s Application in a Proceeding filed
19 September 2022, the affidavit in support of that application, and a transcript of the hearing on 27 September 2022, was not before me for the purposes of the appeal.
At trial the wife relied upon her Financial Statement filed 17 October 2022 and her affidavit filed 29 October 2022. The husband relied on his affidavits filed 3 and 24 October 2022. He also initially identified, but ultimately did not rely on, an affidavit of another witness, his cousin, translated from Language Z to English, filed 27 October 2022. He did not file or rely on a financial statement (at [35]). Each party filed comprehensive Case Outline documents on 30 October 2022. Two sets of agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth) constructed during the trial, dated 1 and 2 November 2022 were tendered into evidence and marked as Exhibits C1 and C2. Each became exhibits. Each party provided “closing submission notes”. The husband also relied on an addendum to his Case Outline.
The husband submitted that during the hearing of the appeal that in allowing the wife to rely on her late filed affidavit the primary judge “violated” his own order made 27 September 2022.
No application was made by counsel appearing on behalf of the husband to preclude the wife from relying on her trial material, albeit that her affidavit was filed outside the timetable directed on 27 September 2022. The transcript (at page 19) reveals that counsel for the husband made successful evidentiary objections to paragraphs of the wife’s late filed affidavit.
No application, let alone one arising from contended prejudice, was made by counsel appearing on behalf of the husband for an adjournment of the trial at any time over its three-day duration.
Over objection, the primary judge permitted an unorthodox course whereby oral submissions after the closure of the evidence were made firstly by the husband’s counsel and then supplemented by the husband himself. During his course of final oral submissions, the husband broadly complained about the wife’s affidavit, saying it ought to be excluded, without identifying any particularised prejudice occasioned. No application was made at that time notwithstanding the husband’s counsel remained present in court. The primary judge said, absent demur by the husband or his counsel, “we are well past the process of objecting to evidence that is received at hearing” (see transcript at page 161).
A party is bound by the conduct of their case at trial. The husband is not able to raise a new argument which he did not put during the trial when he had an opportunity to do so (Metwally vUniversity of Wollongong (1985) 60 ALR 68 (“Metwally”)). He cannot now appeal on the basis that he did not raise an argument that he should have previously. This aspect of this ground is not established.
Inconsistent handling of subpoenas, privileging the wife over the husband
The husband submitted in his Summary of Argument that “[his] ability to access all subpoenas, contrasted with the wife’s inability to access any, indicates a breach of procedural fairness”. The husband did not particularise the identity of the subpoena subject to this complaint in his Summary of Argument or oral submissions.
The husband’s complaint must be considered in the context of the trial. The transcript records that on the first day of trial the Court was in session for two periods of time for a total of 20 minutes. The husband had a significant number of hours on that day for both he and his lawyer to inspect the documents produced on subpoena. Further, on the second day of trial the matter was adjourned at 2.06pm, providing the husband and his lawyer with additional hours to review the subpoena documents.
The husband did not raise any issue at trial as to subpoena, objections to subpoena or any impediment of capacity to inspect documents produced on subpoena. No complaint was made by the husband of this nature or of this content during the trial (see Metwally). The husband could not explain how a failure by the primary judge to afford procedural fairness can occur absent knowledge of the relevant action or inaction subject to complaint. This aspect of the ground is not established.
In so far as this particular of the ground broadly asserts a failure to afford procedural fairness sourced from the husband’s complaints in his Summary of Argument as to the primary judge not acting upon the wife’s contended disclosure failures, at no time during cross-examination of the wife did counsel for the husband put to the wife that she had not fulfilled her disclosure obligations. The husband’s counsel did not make any submissions as to disclosure failures by the wife. At its highest, the husband’s own submissions simply made a broad complaint in not dissimilar terms to the particular as to this ground, similarly with insufficient detail.
Whether the wife’s persistent non-disclosure and late filing infringed upon procedural fairness and the husband’s right to prepare a defence
This ground submits that the late filing of documents by the wife infringed upon procedural fairness and the husband’s “right to prepare a defence”. In so far as the husband asserts that the late filing alone resulted in a denial of natural justice, this ground is unfounded. In so far as the husband asserts the wife’s late filing of her trial material resulted in denial of natural justice, the complaint is absent merit for the reasons set out above. No errors by the primary judge in the orders made 28 April 2023 arise from the matters complained of under this particular.
The court’s acceptance and endorsement of the wife’s evident breach of court procedures, which hints at bias
The husband’s Amended Notice of Appeal makes complaint that the “court’s acceptance … of the wife’s evident breach of court procedures … hints at potential bias” (emphasis added). It did not identify the complaint as to bias being actual or apprehended. Each such serious contention is established from different principles and factual environments.
By way of submission in his Summary of Argument the husband contended:
The acceptance by the court of the [wife’s] blatant contravention of court orders further underscores the procedural imbalance. As a party to litigation, one is obliged to follow court procedures and timelines to ensure fairness. This apparent oversight not only challenges the integrity of the legal process but also signals an apparent bias.
(Emphasis added)
In oral submissions, the husband identified the bias as “taking the wife’s side” and “favouring the wife’s evidence”. He also stated that he “was always on the wrong side”.
When inquiry was made as to whether he contended actual or apprehended bias, the husband said that it was “a bit of both” but that it was “leaning towards” actual bias. He later strongly asserted in his oral submissions a complaint as to actual bias.
To establish the complaint it must be shown the primary judge’s conduct was quite inconsistent with the fair performance of judicial duty (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116). Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required. Here, the husband did not identify any evidence to support the complaint.
The complaint as to bias was first made by way of the appeal. No complaint was raised at the trial as to the primary judge’s conduct of the proceedings (see Vakauta v Kelly (1989) 167 CLR 568). While failure to raise a claim of bias at trial will not inevitably preclude its agitation on appeal, here the husband could not identify how the complaint was clarified by the reasons as opposed to being apparent at the time.
The husband’s oral submissions reinforced that the complaint of bias as made is a product of, and to camouflage, his dissatisfaction with the ultimate result. This aspect of the ground had no merit and was never available.
Procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome, as was the repeated focus of the husband when making oral submissions as to this ground (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). It cannot be said that the husband was denied an opportunity to put on material for the trial, to inspect documents produced on subpoena, to object to the wife relying on her affidavit or was prejudiced by its late filing material, to again seek an adjournment at the commencement of or during the trial, or to have an adequate opportunity to be heard and to present his case.
For the reasons outlined above, Ground 1 is wholly rejected.
Ground 2 – Failure to consider insufficient time for preparation of evidence
This ground alleges that the primary judge failed to consider what the husband asserts was insufficient time for preparation of evidence. His Summary of Argument and oral submissions repeated the gravamen of his complaints asserted in Ground 1, supplemented by criticisms of the failure of the primary judge to adjourn the trial by way of his determination on
27 September 2022, being a month before the commencement of the trial.
The 27 September 2022 determination dismissing the application for an adjournment was not the subject of an appeal. That said, in and of itself absent more, an order refusing to vacate a trial cannot be the subject of a competent appeal (ss 26(2)(b)(ii) and 26(2)(b)(iii) of the FCFCOA Act). As recorded earlier in these reasons, no further application for an adjournment was made at any time during the trial nor complaint made as to a failure to afford procedural fairness to the husband.
Ground 2 fails.
Ground 3 – Material errors, misrepresentations, and overlooks evidence, evidentiary oversights and procedural shortfalls undermining fair judgment
Ground 3 asserts:
a)A failure to accurately acknowledge the husband’s timely production of documents as recognised in open court (Transcript[page 111, line 20]);
b)The wife’s counsel’s strategic decision to not utilize or address produced evidence, casting doubt on the relevance and validity of the documents called;
c)A clear discrepancy in the representation of the sale of proceeds from the Suburb L property;
d)Unjustifiable addbacks relating to genuine investment decisions without due consideration of the inherent risks and broader marital context; and
e)A misapplication of Section 75(2)(o) of the Family Law Act, failing to holistically assess the husband’s contributions and intentions during the marriage.
(As per the original)
The wife’s counsel’s strategic decision to not utilise or address produced evidence, casting doubt on the relevance and validity of the documents called
To the extent that the ground asserts that there was a strategic non-utilisation of evidence by the wife, the husband in his Summary of Argument and oral submissions did not identify how this assertion equated to an error of the primary judge. The husband had every opportunity at the trial to test the evidence of the wife in cross-examination and to tender documents into evidence as he considered relevant. This particular of the ground is rejected.
A failure to accurately acknowledge the husband’s timely production of documents as recognised in open court
The gravamen of the first particular is that the primary judge erred in finding that the husband failed to produce documents pursuant to calls made during his cross-examination.
To give context to this particular, the reasons record:
39The wife seeks to include an amount of $119,977 ($56,000 plus $63,977) being proceeds of sale of the Suburb L investment property in mid-2007. The settlement statement as to these amounts being net proceeds was in evidence. Under cross-examination, the husband said to the best of his recollection it was transferred to the Suburb D loan (in his sole name) but he would like to check the statement. The closest in time statement that was disclosed by him was from mid- 2007. The relevant statement was called for by counsel for the wife. It was not able to be produced by the husband.
40The wife seeks to include an amount of $60,000 (3 x $20,000) being withdrawals from a joint bank account to a different bank’s account in the husband’s sole name on 10, 11 and 12 January 2006. The husband conceded that he performed the transfers and invested that amount through a broker called P Financial Services in trading US stocks and US options. He said that it was done during the period of separation between 2004 and 2008 as justification for not informing the wife. He reckoned that whatever profits or losses were made as a result of his investments were to be shared. He was asked if he had any documentation to corroborate the loss of the $60,000. He said that he had it and he had disclosed it. Counsel for the wife said that she didn’t have anything. Counsel for the husband could not produce anything. Counsel for the wife called for said documents. They were not able to be produced by the husband.
41The wife seeks to include an amount of $100,000 being the amount obtained by the husband from a NAB credit facility in mid-2005. The husband conceded that he invested that amount through “O Bank.” Again, he said that it was done during the period of separation between 2004 and 2008 as justification for not informing the wife. Again, he reckoned that whatever profits or losses were made as a result of his investments were to be shared. There is no corroborating documents in evidence.
(Emphasis added)
The additional category of documents called for during the husband’s cross-examination were as to the husband’s current health as recorded in recent clinical notes and assessment reports.
The husband produced a quantity of unspecified documents on the third day of the trial, after his cross-examination was concluded and prior to final submissions in answer to the calls. No particulars were given as to the documents produced. The transcript at page 110 records the following exchange commencing with counsel for the husband:
[COUNSEL FOR THE HUSBAND]: There are some documents to tender that were – was foreshowed yesterday. Your Honour, there had been a call for certain documents and I also foreshadowed there would be additional medical material to tender.
HIS HONOUR: All right. So you want to reopen to admit the medical material. Is that right?
[COUNSEL FOR THE HUSBAND]: And the documents that were called for, they’re not part of the tender bundle or attached to an affidavit.
HIS HONOUR: No.
[COUNSEL FOR THE HUSBAND]: So they need to be tendered through my client.
HIS HONOUR: All right. Well, they were called for out of cross-examination of him. Have you seen the material that you called for, [Counsel for the wife]?
[COUNSEL FOR THE WIFE]: It was given to us at the bar table, your Honour. So we have had absolutely no real time to have a look at them. And, your Honour, what I can indicate at this time is that it’s not complete. They’re selective documents. There are missing documents. And there are notations made within other documents. You’re not relying on ..... documents, are you? It’s only – is it only the medical you’re getting on or - - -
[COUNSEL FOR THE HUSBAND]: I was going to tender everything because - - -
[COUNSEL FOR THE WIFE]: All right. So - - -
[COUNSEL FOR THE HUSBAND]: - - - his Honour was interested in seeing it.
[COUNSEL FOR THE WIFE]: If the husband is tendering both medical reports and bank statements, they’re incomplete again, your Honour, and we will need some time to go through what, in fact, they’ve produced. But I can indicate it’s not complete. And the documents also have some comments actually incorporating into it that do not form part of the document that have obviously been edited between the time of getting it from the bank into the court. So we want to go through those and examine them. But our first point is they’re not – we oppose the application. It’s just far too late to put the wife on the spot where the documents don’t clearly speak for themselves and she’s not able to actually do her own forensic testings of documents that should have been part of the case.
[COUNSEL FOR THE HUSBAND]: Then we won’t tender them, your Honour.
(Emphasis added)
The transcript then at page 112 records the wife’s counsel:
… I’ve had a quick look at the documents. The first indication is that they’re not complete and that may involve a situation of needing more documents.
The primary judge then invited counsel to take time to review whatever documents were produced. The parties then tendered a document as to agreed facts for trial (see Exhibit C2). It is uncontroversial that this engaged with the medical documents subject to a call. The following exchange then took place:
HIS HONOUR: All right. That’s the medical thing. Is there anything left to be done in relation to the other documents?
[COUNSEL FOR THE WIFE]: No, your Honour.
[COUNSEL FOR THE HUSBAND]: No. Nothing to tender.
No additional documents as to the use and application of the funds sought to be notionally added back came into evidence.
The wife properly conceded at the appeal that the primary judge was in error in finding that documents called for in the identified categories were not produced. The husband submits that the error in characterising these documents as not produced “compromises the integrity of the court’s findings and undermines the principles of legal ethics and professional conduct”.
The husband had every opportunity to identify the document produced with precision, to require the wife to acknowledge their specific receipt by way of response, or to tender them into evidence. He failed to employ any such course. He cannot now make complaint on appeal on the basis that he did not adopt a course at trial that he should have previously (see Metwally).
Additionally, not every factual error will justify appellate intervention. The question to be answered is whether the error is material to the ultimate decision and have occasioned a miscarriage of justice (Lane & Nichols (2016) FLC 93-750 at [72]). As will be explained in the following particulars, this error is not material to the ultimate determination of the primary judge.
A clear discrepancy in the representation of the sale proceeds from the Suburb L property; unjustifiable addbacks relating to genuine investment decisions without due consideration of the inherent risks and broader marital context
The particulars of the ground have a common thread and therefore will be considered together.
The findings of the primary judge underscoring this ground are as follows:
45In relation to the addbacks contended for by the wife and opposed by the husband, I find as follows:
(a) The husband admits to unilaterally dealing with matrimonial assets of $199,977, $60,000 and $100,000 in 2007, 2006 and 2005 respectively.
(b) The wife has been unable to establish what in fact happened to those funds, by subpoena or otherwise, despite being aware of them for at least several years.
(c) The husband admits to ‘losing’ about $150,000 of invested money in or about 2008.
(d) I have had regard to the circumstances that transactions of this nature and age would ordinarily have great difficulty being recognised as notional assets that ought to be added back to the balance sheet. However, the nature and antiquity of these transactions relative to both the date of trial and also the date of separation is offset by the evidence in this case that at times the parties operated independently of each other and the wife was not involved in or aware of these transactions until after final separation.
(e) I have had regard to the circumstances that losses attributable to investment of matrimonial property during the relationship would ordinarily have great difficulty being recognised as notional assets that ought to be added back to the balance sheet. However, after being satisfied that the husband caused those specific amounts to be removed from the pool, the husband has failed to satisfy me on the balance of probabilities as to what happened to those amounts.
(f) I find it incredulous that the husband was unable to produce any documentation corroborating his evidence in circumstances where the husband has demonstrated in other areas of his evidence an understanding and ability to obtain and disclose relevant evidence despite its antiquity, and, the nature of the transactions he describes would have yielded abundant documentation.
(g) I am satisfied that the husband’s non-disclosure is deliberate and I should not be unduly cautious about making findings in favour of the wife on this issue.
There is no issue that the primary judge correctly identified the relevant legal principles and authorities (at [43] – [44]) as to the notional add back of property that no longer exists.
In his Summary of Argument the husband identifies, and the wife concedes, that there is a clear discrepancy in the representation of the value of the sale of proceeds of the Suburb L property in that at [39] where the primary judge correctly states that proceeds amount to “$119,977”, and then there is what the husband describes as “an inadvertent inflation” and what the wife describes as a “transcription error” of this amount to “$199,977” at [46]. This leads to an inaccurate total sum of $359,977 (the value sought to be notionally added back by the wife is $179,977). As correctly identified by the husband and conceded by the wife, this error is perpetuated thereafter throughout the balance of the judgment on the subject matter of add backs.
This particular is supplemented by what the husband says are “unjustified addbacks and misinterpretation of investment risks”. Much as he contended at trial, he repeats his case on appeal submitting that investments inherently carry risks, and that it is unjust to add back losses from genuine investment decisions while not equally considering positive outcomes.
Notwithstanding the “inadvertent inflation” as to the Suburb L proceeds, the primary judge clearly sets out his reasoning property (at [45] for notionally adding back $150,000 being “real money that was taken by the husband” (at [47]) in addition to it being the sum that the husband admitted to losing, such that its justly accounts for the reduction of the matrimonial assets in the circumstances of the case (at [46]). The husband does not make complaint as to an absence of or insufficient reasoning of the primary judge in adding back $150,000. Putting simply, the husband complains on this topic because the primary judge did not accept his case. The course as to notional add back was open to the primary judge and consistent with authority.
The non-disclosure finding at [45(g)] of the primary judge’s reasons was not used to the husband’s disadvantage in either the assessment of the contributions or the evaluation of statutory considerations under ss 79(4)(d), 79(4)(e), 79(4)(f) and 79(4)(g) of the Act, as it was not inferred he possessed other undeclared assets. The finding is not further considered or mentioned by the primary judge in the reasons.
The husband properly concedes in his Summary of Argument that the error is “not gravely severe”. During oral submissions, the husband did not identify how this error had any bearing on or nexus to the determination made by the primary judge. He could not explain how this immaterial matter could have affected the result.
While these aspects of the ground are made out, the subject error has not resulted in, or provided the foundation for a conclusion that, a substantial miscarriage of justice had occurred. Having regard to the orders made by the primary judge and an analysis of his reasons for those orders, the fact of this error of the primary judge did not lead to a miscarriage of justice such that it is appropriate to set those orders aside and direct a new trial.
A misapplication of s 75(2)(o) of the Act, failing to holistically assess the husband’s contributions and intentions during the marriage
The totality of the husband’s Summary of Argument on this particular records:
39. The court’s interpretation overlooked the broader purview of this section.
40. The section mandates taking into account any fact or circumstance which, in the opinion of the court, the justice of the case requires.
41. The transactions should have been evaluated in the broader context of the marital contributions and not narrowly focused on select unfavorable transactions.
42. Legal authority: Mallet v Mallet (1984) 156 CLR 605 establishes that contributions should be assessed holistically, considering both financial and non-financial contributions and efforts.
43. In light of the aforementioned discrepancies, misrepresentations, and errors, which are significant and necessitates appellate scrutiny.
In so far as the particular asserts a failure of the primary judge to assess the contributions of the parties holistically, that is what the primary judge did, as follows:
80Akin to their arguments with respect to contributions during the marriage, both parties seek assessments in their favour because they say that their respective forms of post separation contributions were more than the others. The wife by way of her sole care of [the child], her lessor earnings, higher living expenses including rent and receiving no benefit from the investment properties. The husband by way of his willingness and offers to share the care of [the child], his higher earnings and his [sic] sole maintenance and preservation of the properties.
90The evidence does not support either contention. I am not satisfied that either party has demonstrated holistically that their contributions during the relationship were sufficiently disparate as to warrant an assessment in their favour, except for the contributions attributable to the wife by way of the gifts from her parents.
This particular of the ground is misconceived and has no merit.
Ground 3 fails.
Ground 4 – Disregard wife’s misconduct and husband’s efforts on marital property
The husband’s assertion at trial was that the wife had deliberately damaged the Suburb B property between 2012 and 2013 to the value of $8,000 – $10,000. The wife denied the fact of damage and the quantum the husband contended he had paid to rectify that damage. Each party was cross-examined on this subject matter.
In his Amended Notice of Appeal, the husband particularises that the primary judge “contravened” the principles of ss 79(2) and 79(4) of the Act by overlooking and inadequately addressing the wife’s “proven misconduct leading to the [Suburb B] property’s degradation”. In his Summary of Argument, the husband contended that this failure of the primary judge constituted “an abuse of judicial power”.
The complaint evolved during the hearing of the appeal to be that the primary judge failed to consider a relevant matter. The husband’s said that the primary judge “turns a blind eye to the wife’s misconduct”. The reasons do not record the husband’s allegation. No finding on this topic is made as sought by the husband.
The primary judge expressly stated in his reasons:
16I have read all of the evidence in this matter within which there is a great deal of white noise. It is not necessary to refer to every matter raised by the parties in these proceedings in making determinations. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it. Likewise, where I have referred to a particular fact or matter, it does not follow that I have had regard to that fact or matter only in reasoning a finding.
It is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132).
The reasons only needed to reasonably explain the final result (DL v The Queen (2018) 266 CLR 1 at [32] – [33] and [130] – [131]), as they duly did.
Ground 4 fails.
Ground 5 – Inequitable Super Fund H split amidst prolonged separation and disproportionate financial contributions
The focus of the husband’s case at trial was as to his direct contributions to one item of property, being the husband’s Super Fund H interest in the payment stage, post the separation of the parties in 2012, by way of both his employer contributions and his salary sacrifice. It was his case at trial and on appeal that this ought to have resulted in a significant contribution finding in his favour as to this specific item.
The ground as particularised contends an error as to identification and application of relevant principle and an error as to weight. The reasons record:
46The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. Dickons & Dickons [2012] FamCAFC 154. See also Dovgan & Dovgan [2021] FamCA 306 at [347], which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
It is apparent from the husband’s contentions at trial and as repeated in the appeal that the primary judge erred in failing to draw a nexus between the wife’s contributions and the current value and character of the Super Fund H property. No such nexus is required. The primary judge took a holistic approach to the assessment of the myriad of contributions over the period of cohabitation and after separation up until trial, as prescribed by s 79(4) of the Act (see Mallett v Mallett (1984) 156 CLR 605; Shaw and Shaw (1989) FLC 92-030; Jabour & Jabour (2019) FLC 93-898 citing with approval Dickons v Dickons (2012) 50 Fam LR 244). Contributions need not have any link to any particular interest in property owned by either of the parties. The Full Court has expressly rejected the notion that there must be a relationship between the contributions and what they produced. There is no different approach to be adopted to contributions made in the period following separation (see Fields & Smith (2015) FLC 93-638). The husband’s case complaints as to this particular of the ground were always misconceived. He fails to consider, as was weighed by the primary judge, the wife’s contributions post-separation, including the all but sole parenting of the child, and the husband retaining the benefit of the property of the parties to her exclusion.
Challenges as to weight face a high bar and require the husband to effectively demonstrate that the outcome is plainly wrong or unreasonable to achieve appellate intervention (Gronow). This particular, insofar as it is directed to the weight given by the primary judge to the various contentions made by the parties during the trial as to post-separation contributions, was said to be unreasonably or plainly wrong because the husband’s contentions were not given decisive weight. This complaint is no more than a submission that the primary judge erred by not accepting the husband’s case, and the ground is an invitation to substitute my view for that of the primary judge. That does not amount to error. Different judges can quite properly achieve different outcomes on the same evidence (CDJ v VAJ at 218–219).
It is the task of the primary judge to evaluate, weigh and determine the parties’ various contentions. It is not an error to favour one party’s case over another, unless an error of the kind identified in House is established. It has not been.
In so far as this ground asserted that the issue was in the weight assigned by the primary judge to the considerations of the nature, prolonged length, and character of the separation in determining the entitlements of the parties, it is rejected.
Ground 5 fails.
Ground 6 – Inequitable assessment of significant financial outgoings
This ground also evolved during the hearing of the appeal to an asserted error as to weight, in that the primary judge erred “by disregarding substantial evidentiary contributions showcased in the husband’s self-authored tables, amounting to over $600,000 in outgoings towards the properties”.
The primary judge addressed the utility of self-authored tables:
19In his affidavit and case outline, the husband has prepared an extensive series of tables that painstakingly itemise and detail a voluminous number of events in the parties’ lives. He then attributes a percentage contribution, positive or negative as the case may be, to each item upon which he then makes sub-total and grand total calculations of contributions. Firstly, such an approach is inconsistent with the holistic approach to contributions that I am required by law to take. Secondly, many of the items that the husband seeks to rely upon are merely his own opinions and commentary and do not fall for consideration pursuant to section 79 of the Act as interpreted by the authorities. Instead, they go to the husband’s narrative that:
(a) He has done all that could be expected and more of a husband and a father and is without fault;
(b) The wife has unreasonably shunned him, taken advantage of him, made false allegations against him and subsequently alienated him from [the child];
(c)The wife ought to be penalised and he ought to be rewarded for behaviour, attitudes and conduct during the relationship, post separation and during the course of these proceedings.
Later, in assessing contributions, the primary judge stated:
78… The husband claims that he has solely contributed just over $600,000 in expenses to the preservation of the properties. He adduced only his self-authored tables as evidence. That figure includes rental income but not the benefit he received from occupying a property. The wife deposed that she received no rental income from any of the properties but is silent as to any contributions to maintenance and preservation expenses……
The husband submits that these tables were a necessary and reasonable method to estimate his contributions. His argument that the primary judge relied on unsupported claims and had “disregard for evident financial sacrifices” is misconstrued. The primary judge expressly determined that the financial sacrifices alleged by the husband were not evident. This ground was, in reality, the husband’s attempt at justifying his lack of evidentiary material to substantiate his contributions claims.
In the husband’s Summary of Argument, he identifies House stating that it sets out that discretionary decisions can be appealed when “it fails to take into account material considerations or gives undue weight to irrelevant considerations”. He particularises the failure to consider as:
a)Financial burdens and emotional strains linked to maintaining and rescuing properties, especially in the wake of the wife’s negligence.
b)The typical living expenses one would bear if he sought alternative accommodations.
c)The significant personal financial sacrifice and non-financial burdens.
The husband’s implicit approach that the assessment of contributions should be undertaken as an accounting exercise is contrary to longstanding authority (see Norbis v Norbis (1986)
161 CLR 513; Aldrin & Celona [2021] FedCFamC1A 16 at [12].)The primary judge did consider the evidence and case of the husband relevant to this ground. He did not accept it. The husband has not properly demonstrated that the findings of the primary judge and his exercise of discretion miscarried on the evidence.
This ground fails.
Ground 7 – Disproportionate allocation of Suburb F property
Ground 7 asserts that the adjustment of the Suburb F property in specie to the wife is “manifestly unjust and inequitable” and warrants reassessment. The foundation for the husband’s complaint as articulated in his Summary of Argument was a failure of the primary judge to give sufficient weight to his reproduction of the “extensive compilation of evidence” purportedly corroborating his assertions that his direct contributions in sourcing, acquiring, and financing the Suburb F property and thereafter while the characterising the wife’s direct contributions as “minimalistic”.
In his Summary of Argument, the husband submitted:
… Despite its significance, this evidence was unfortunately not given the attention it merited during the final hearing. The husband is resolute in his intention to introduce this pertinent evidence during the appeal process, seeking permission through the appropriate application.
During the hearing of the appeal the husband firmly repeated this complaint submitting that he “did all the work, the wife only signed documents”.
The matters identified in these reasons in determining Grounds 5 and 6 are also apposite to this ground. No mildly persuasive, let alone compelling, submission was made to support this ground. The matters relied on by the husband do not demonstrate that the primary judge’s exercise of discretion miscarried on the evidence.
This ground of appeal is not made out.
CONCLUSION
For the reasons set out above, the appeal is dismissed.
COSTS OF THE APPEAL
The wife pursued the costs of the appeal in the event it was dismissed.
In aid of this application, the wife filed a costs schedule setting out both an amount asserted to represent a party and party assessment, based on the scale contained at Sch 3 of the Rules, and an indemnity amount. Appropriately, she did not pursue an indemnity award.
The party and party sum pursued by the wife was for lawyer’s costs of $9,086 and counsel’s costs of $9,259. It may be observed that such costs fall well short of the sum actually incurred by the wife of $24,180. During the hearing of the appeal the wife reduced the sum of costs sought fixed in the sum of $15,000, being 62 per cent of her actual costs incurred.
The starting position, as set out at s 117 of the Act is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A).
In this case, the considerations that emerged are the pleas of impecuniosity of the husband and that the husband, by the dismissal of this appeal, has been wholly unsuccessful.
The husband’s claim that he has no capacity to meet a costs award is not established. He achieved not insignificant property by way of the orders subject to appeal. Against that, the wife has been put to the expense of meeting an appeal that was without merit and wholly unsuccessful.
The circumstances justify the making of an order for costs in favour of the wife.
The parties have been in litigation for 10 years. It is inevitable that the process of assessment of costs will in itself involve considerable further costs and delay. I am satisfied that the costs sought in the amended fixed sum by the wife are reflective of what would be in the range of assessment in accordance with the Sch 3.
An order will be made for the husband to pay the wife’s costs of the appeal within 28 days.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 November 2023
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