Lestari & Hidayat
[2023] FedCFamC1A 213
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lestari & Hidayat [2023] FedCFamC1A 213
Appeal from: Lestari & Hidayat (No 4) [2023] FedCFamC1F 850 Appeal number: NAA 296 of 2023 File number: SYC 585 of 2016 Judgment of: AUSTIN J Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – APPEAL – Property – Practice and Procedure – Where the husband appeals from final property settlement orders – Where the primary judge ordered the net sale proceeds of the former matrimonial home to be divided in shares of 60 per cent to the wife and 40 per cent to the husband – Where the appeal comprises 14 un-numbered grounds – Where the husband was invited to show cause why the appeal should not be summarily dismissed – Where the husband alleges judicial bias – Where the grounds do not distinguish between actual and apprehended bias and are rejected – Where the husband’s complaints of denial of natural justice have nothing to do with the manner in which the trial was conducted – Where several grounds complain of incorrect findings – Where the primary judge’s findings are not incorrect simply because they conflict with the husband’s versions of events – Where the primary judge findings were adequately explained – Where the appeal does not enjoy any reasonable prospects of success – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII and Pt VIIIA, s 71A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 46
Cases cited: Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Tame v NSW (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 44
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Number of paragraphs: 54 Date of hearing: 30 November 2023 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Litigant in person Counsel for the First Respondent: Ms Reid Solicitor for the First Respondents: Savage Solicitors The Second Respondent: Deceased ORDERS
NAA 296 of 2023
SYC 585 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LESTARI
Appellant
AND: MS HIDAYAT
First Respondent
MS LIPARI
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 31 October 2023 is dismissed.
2.The Application in an Appeal filed on 22 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lestari & Hidayat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 9 October 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to determine the parties’ applications for financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
By a Notice of Appeal filed on 31 October 2023, the husband appealed from the entire judgment, though the appeal comprises 14 un-numbered grounds covering 26 type-written pages of narrative, including images to supposedly exemplify the commentary.
The appeal was listed to afford the husband the chance to explain why the appeal should not be summarily dismissed or at least the incompetent grounds struck out. His oral submissions, made over some 30 minutes, failed to discharge his burden.
BACKGROUND
The financial cause was commenced in February 2016, tried in July 2023, and determined by property settlement orders made in October 2023.
Both spouses were legally represented at the trial. The wife’s mother, who had earlier been joined as the second respondent to the cause, died in September 2022 and the representative of her deceased estate did not participate in the trial.
The wife relied upon affidavit material filed no later than September 2021, save for an affidavit filed in June 2022 by a psychiatrist who deposed the wife suffered from a serious psychiatric disorder which precluded her from instructing her lawyers and from attending the hearing, meaning her evidence was stale and untested (at [31]–[38]). A litigation guardian had earlier been appointed for the wife in June 2022 (at [8]).
The husband also relied upon affidavit material which he filed no later than September 2021. He did not seek to rely upon updated evidence and did not explain why (at [39]–[40]). He was cross-examined and the primary judge found his evidence to be unreliable (at [41]–[47]).
The primary judge found the parties’ assets had a net value of $1,042,500, with the encumbered former matrimonial home being the most significant asset (at [110]).
The parties agreed they would retain their personal property and the former matrimonial home should be sold to retire debt (at [111]), so the only dispute was over the proportional division of the net proceeds realised on the sale of the former matrimonial home.
His Honour found (at [116]–[122]), and so ordered, that the sale proceeds should be divided in shares of 60 per cent to the wife and 40 per cent to the husband.
THE APPEAL
Despite being legally represented at trial, the husband is self-represented in the appeal. He understandably lacks the expertise and experience to draft grounds of appeal competently, but that disadvantage does not relieve him of the obligation to comply with the same legal principles and procedural burdens which apply to all other litigants and lawyers.
As the High Court has observed, multiple grounds of appeal can conceal an essential point (Thorne v Kennedy (2017) 263 CLR 85 at [49]). That is especially so when the grounds cover 26 type-written pages, which gives reasonable cause to be circumspect about the merit of the totality (Tame v NSW (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
Even when given the chance to make submissions identifying an essential point worthy of the Full Court’s attention, the husband was unable to do so. There is consequently no point served by giving the husband time to file an Amended Notice of Appeal.
Bias
Two grounds allege judicial bias.
The grounds do not distinguish between actual and apprehended bias, which is significant because the tests are quite different.
Nonetheless, the complaint of bias is easily rejected because it is elaborated by a narrative which asserts such bias is evident from the primary judge’s:
(a)inclusion of the wife’s credit card debt of $55,000 amongst the parties’ liabilities;
(b)acceptance of the expert opinion evidence given by the wife’s psychiatrist; and
(c)rejection of the expert opinion evidence given by a single expert about the value of the former matrimonial home.
The wife’s credit card debt was treated just like the husband’s even larger credit card debt of $93,000, both of which liabilities are to be paid in full from the proceeds realised on the sale of the former matrimonial home. That was the joint position adopted by the parties at trial.
The expert evidence given by the wife’s psychiatrist was uncontroversial. The husband’s lawyers took no objection to the admissibility of the evidence and the validity of the evidence was not challenged in cross-examination.
No expert valuation evidence pertaining to the former matrimonial home was relevant, as the primary judge correctly recognised (at [50]). Irrespective of the husband’s contention about its sale value potentially being $200,000 more if it is sub-divided, both parties wanted orders compelling its sale and the market will establish its true value. The orders require the parties’ proportional share of the net sale proceeds, regardless of its sale price.
Denial of natural justice
Two grounds allege the husband’s denial of natural justice, the particulars of which assert (so far as can reasonably be discerned) the primary judge:
(a)incorrectly constituted the parties’ credit card debts in the list of their liabilities;
(b)wrongly tabulated the gross value of the parties’ assets;
(c)wrongly failed to take the wife’s overseas assets into account; and
(d)wrongly omitted to consider the probate of the second respondent’s Will and the bequest the wife may receive upon distribution of the deceased estate.
None of those complaints can capably be construed as a form of denial of natural justice or procedural fairness because they have nothing to do with the manner in which the trial was conducted. In any event, they are comprehensively answered by observing that the constituent assets and liabilities in the balance sheet established by the primary judge were not controversial at trial, other than in respect of the wife’s alleged overseas assets.
In May 2023, following the parties indicating their readiness for trial, the proceedings were fixed for trial on 10 July 2023 (at [12]). Probate of the second respondent’s Will was granted by the NSW Supreme Court on the same day as the trial occurred (at [11]). Though aware of the second respondent’s death, the husband did not lead any evidence about the wife’s expected bequest from the deceased estate, as he chose not to file any evidence after September 2021 (at [39]–[40]). No submission was made to the primary judge about the wife’s expected bequest or how it should be brought to account. The death of the second respondent simply caused her equitable claim upon the former matrimonial home to fall away as an issue (at [52]).
The husband claimed the wife enjoyed interest in overseas property or, if she no longer did, such assets should be notionally added back to the asset pool. The primary judge analysed the evidence and found ownership of the overseas apartment reverted to the third party owner, as the parties’ dispute precluded their completion of the purchase contract. Monies paid were forfeited. The apartment was therefore disregarded as both an actual or notional asset (at [82]–[100]). Another overseas block of land bought by the wife in 2012 was sold in 2014 and hence not included amongst the parties’ assets (at [101]–[106]).
Legal error – pre-nuptial agreement
One ground asserts the primary judge was “in error and failed to make an order about the dispute” concerning a pre-nuptial agreement.
In relation to that agreement, the primary judge said this in the reasons for judgment:
112.The parties entered into a pre-nuptial agreement [in 2011] in [Country C]. Neither party relied on it in any way and it may therefore be ignored.
The particulars to this ground of appeal allege both parties disputed the pre-nuptial agreement and so it should have been set aside, otherwise the orders made by the primary judge are unenforceable due to inconsistency with the pre-nuptial agreement.
Self-evidently, if neither party feels bound by the pre-nuptial agreement, the primary judge was not in error to ignore it. Whatever may be the status of the agreement in the overseas jurisdiction in which it was made, it had no status as a binding financial agreement under Pt VIIIA of the Act and so did not oust the jurisdiction to make property settlement orders between the parties (s 71A), which each of them expressly wanted made.
Legal error – single pool of property
One ground (in part) alleges the primary judge erred by “adopting a single pool approach” to the division of the parties’ assets.
The claim is misconceived. Save for the overseas assets, neither party submitted for anything other than the composition of a single pool of assets and liabilities. The “second pool” of assets to which the ground refers comprises the overseas apartment and block of land which, as already explained, the wife was found to no longer own (at [82]–[106]).
Evidentiary error
One ground alleges the primary judge erred by admitting into evidence a “fake document”.
The ground is particularised by this novel statement of principle:
17.Where there is inconsistency of the witness statement and the document itself, Then the document should not be admitted as evidence.
18.When a party wants to tender A document, A document must have a witness. In a circumstance, where there is no witness to this document. And the statement of the witness or another witness is different from the content of the document. The document is inadmissible.
…
42.Certainly, the document (Exhibit 1, p. 389) is inadmissible due to inconsistent statement of the witnesses and there is no witness to confirm the content of the document itself.
(As per the original)
No objection was taken to the evidence adduced by the wife, including the allegedly “fake document”. The husband, having abstained from taking any objection to the admissibility of the wife’s evidence through his lawyers at trial, cannot now do so in the appeal (Smits v Roach (2006) 227 CLR 423 at [46]; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [118]).
Erroneous findings
Several grounds complain of incorrect findings.
The first complaint relates to the findings made by the primary judge about the source of the deposit paid in 2012 to acquire the land upon which the former matrimonial home was built. The home was built with extra funds borrowed in 2013 and 2014. The parties gave contradictory accounts of how the deposit for the land purchase was raised. The husband said it came from his parents (at [44] and [55]), whereas the wife said it came from the second respondent (at [64]). The primary judge examined the evidence closely and found the husband’s evidence should not be accepted (at [56]–[63]), but was also dissatisfied with the wife’s evidence (at [65]–[67]). His Honour ultimately found this:
68.The state of the evidence does not permit a finding that either party provided the funds for the deposit. Each party, most likely, had access to funds provided by their parents.
69.The payment of the deposit is therefore not a basis for adjusting the weight to be given to financial contributions.
Those findings are not incorrect simply because they conflict with the husband’s version of events. Factual error cannot be demonstrated.
The second complaint alleges the primary judge erred in finding the husband paid little or nothing towards the mortgage repayments in respect of the former matrimonial home during the marriage.
The parties separated in November 2015 (at [23]), after which the husband vacated the former matrimonial home (at [71]), leaving the wife in exclusive occupation of it. The primary judge quoted the husband’s evidence about his contribution to mortgage repayments prior to separation, saying:
74.The husband said that he paid the wife $1,000 per month, a total of $20,000, to enable her to meet the mortgage payments (Husband’s affidavit filed on 24 September 202, paragraph 51). He also said that he had to close his business in 2015 and as a result, lost its income. He also said that most of the mortgage payments had been made from the rent paid by the tenants (Husband’s affidavit filed on 24 September 202, paragraph 83) and that the rental payments exceeded the monthly liability under the mortgage.
75.These last statements conflict with those earlier outlined and are generally inconsistent with the evidence of the wife and the second respondent. …
(As per the original)
The primary judge’s finding in relation to the issue was expressed thus:
79.It was through the efforts of the wife and possibly the second respondent that the mortgages and in particular, the [L Bank] mortgage, have been paid with little or no contribution from the husband.
Again, that finding is not incorrect simply because it conflicts with the husband’s version of events. Factual error cannot be demonstrated.
The third complaint alleges the primary judge erred by finding the husband pursued the sub-division of the land upon which the former matrimonial home stood without the wife’s concurrence and it ultimately made no difference to the value of the land.
His Honour relevantly found this:
25.On 13 October 2017, the husband entered into a contract with [Q Company], a surveying firm, for the subdivision of the land at [Suburb G]. By early 2018, [Q Company] put the husband on notice that he was in breach of their contract as a result of non-payment of their fees. By 28 May 2018, [Q Company] had filed a claim against the husband in the Local Court for breach of contract.
…
77.It is not in doubt that the husband procured a development approval to subdivide the property, most likely without consulting the wife, and engaged a business to carry out the necessary work for approximately $70,000. He failed to pay most of the 10 per cent deposit required and was subsequently successfully sued in the Local Court for the balance of it.
78.It may be accepted that the husband expended effort in pursuing the development but there is no evidence that suggests a successful subdivision would have resulted in a net profit, or a profit of any significant value.
The sub-division did not eventuate, so the husband’s efforts to improve the value of the property were ineffectual. The money he spent on the failed project was not notionally added back to the pool of assets against him. The husband contended the property would be worth $200,000 more if it is sub-divided (at [50]), but it is not sub-divided. Any increased value of the property by reason of its untapped potential for sub-division should be reflected in the sale price the parties achieve when they sell it, which outcome they both sought at the trial.
The fourth complaint is allied to the former complaint, alleging the primary judge erred by not finding that the husband increased the value of the former matrimonial home by around $200,000 by attaining development approval for the property’s sub-division. The complaint is misconceived. The primary judge acknowledged the husband attained the development approval in 2014 (at [21]) but failed to consummate the project in 2018 (at [25] and [77]). There was no expert evidence before the Court to vindicate the husband’s claim that the mere acquisition of development approval for the sub-division of the land in 2014 increased the value of the land by $200,000 in 2023 (at [78]). The primary judge was conscious of that claim by the husband (at [113]), but rejected it (at [78] and [115]).
The fifth complaint alleges the primary judge erred in finding the parties separated in November 2015 due to an “apprehended domestic violence” incident, but his Honour made no such finding. Rather, his Honour said:
23.The parties separated on a final basis after an incident in November 2015. The wife says that apprehended domestic violence orders were issued for the protection of both parties from each other.
(Emphasis added)
His Honour recited the wife’s evidence about mutual apprehended domestic violence orders being issued, but did not find as a fact they had.
The complaint is fatuous because the husband admits an incident occurred between the parties at the time of their separation, necessitating police involvement to remove him, as he recited this in the particulars to this ground of appeal:
156. There was no AVO by police or by a court order in November 2015
157.The Husband was removed by a police around November or late December 2015 WITHOUT Apprehended Domestic Violence by the police or Court. …
(As per the original)
Discretionary error
Another ground contends the primary judge failed to properly consider all of the evidence in relation to the factual issue about the source of funds used to pay the deposit on the purchase of the land upon which the former matrimonial home was built. The ground is incompetent because it amounts to no more than a complaint that the primary judge failed to accept the husband’s account.
Failure to notice
One ground alleges the primary judge “failed to notice a suspicious and unreliable letter” sent by the wife concerning her removal of a caveat registered by her over the former matrimonial home. Apparently, the wife asserted by letter written in October 2020 that she had removed the caveat, which representation the husband believes was false. Even if he is correct, the point is futile. The orders compel the parties to sell the property. If the wife maintains a caveat over the property, she must remove it to comply with the orders. The mere fact the wife may have misrepresented facts in a letter makes no difference to the decision made by the primary judge.
Inadequate reasons
Three grounds allege inadequate reasons were given by the primary judge, but only in respect of certain issues, being: the inclusion of the wife’s credit card debt amongst the parties’ liabilities; the failure to include the wife’s alleged overseas assets as a separate pool of property; and the assessment of the wife’s financial contributions being greater than those of the husband.
The first and second of those complaints fail for the reasons already discussed. The primary judge adequately explained the findings in respect of both those issues.
The third complaint is spurious because the primary judge did explain the finding in relation to the parties’ respective contributions in this way:
116.That leaves me to return to the earlier finding that the wife directly or with the assistance of her mother, made the greater financial contribution to the acquisition of the [Suburb G] property, including its maintenance.
117.The parties’ marriage was short and they had no children. I proceed on the basis that their non-financial contributions during that time were equal.
118.I infer that since separation the wife has made greater non-financial contributions to the upkeep and maintenance of the [Subrub G] property, simply because she was in occupation. She has the benefit too of residing there and there were tenants. In the absence of much evidence on this consideration, I afford it little weight.
119.Overall, I consider that the parties’ respective contributions favour the wife as to 55 per cent and the husband 45 per cent.
The reasons are not inadequate simply because the husband disagrees with them.
CONCLUSION
The appeal is summarily dismissed because it does not enjoy any reasonable prospects of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), which order a single judge exercising appellate jurisdiction is empowered to make (s 32(3)(b) and s 32(5) of the FCFCA Act).
The Application in an Appeal filed on 22 November 2023 must also be dismissed, as it sought to adduce further evidence in the appeal and there will be no appeal.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 December 2023
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