Macarthur & Macarthur (No 3)
[2024] FedCFamC1A 35
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Macarthur & Macarthur (No 3) [2024] FedCFamC1A 35
Appeal from: Macarthur & Macarthur (No 5) [2023] FedCFamC1F 964 Appeal number: NAA 339 of 2023 File number: BRC 6154 of 2020 Judgment of: ALDRIDGE, TREE & HARPER JJ Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – APPEAL – Property – Superannuation – Where the wife appeals from final property orders under which she received almost all available assets apart from superannuation – Where no superannuation splitting order could be made in the absence of necessary evidence of taxation consequences and any complying superfund into which a split proportion could be paid in favour of the wife – Where the wife refers to errors of fact, inadequate reasoning, failure to take into account or misunderstanding evidence, bias, procedural unfairness, inadequate assessment of health, manifest injustice – Where the wife did not provide a transcript of the trial to support claims of bias or denial of procedural fairness – Where the wife sought to rely on voluminous documents many of which were not before the primary judge – Where the grounds of appeal are difficult to understand – Where no discernible error in the primary judge’s reasons – Appeal dismissed. Legislation: Child Support (Assessment) Act 1989 (Cth) ss 117, 123, 124
Family Law Act 1975 (Cth) ss 72, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bartram & Marsden [2023] FedCFamC1A 207
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
HDM & MM [2006] FamCA 47
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Macarthur & Macarthur (No 2) [2024] FedCFamC1A 8
Milankov and Milankov (2002) FLC 93-095; [2002] FamCA 195
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Saltern & Mink [2020] FamCAFC 320
Sand & Sand (2012) FLC 93-519; [2012] FamCAFC 179
Shan & Prasad [2018] FamCAFC 12
Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Number of paragraphs: 40 Date of hearing: 29 February 2024 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 339 of 2023
BRC 6154 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MACARTHUR
Appellant
AND: MR MACARTHUR
Respondent
ORDER MADE BY:
ALDRIDGE, TREE & HARPER JJ
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.Appeal NAA 339 of 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 Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & HARPER JJ:
This is an appeal from orders made by the primary judge on 13 November 2023 in property proceedings under the Family Law Act1975 (Cth) (“the Act”), between the appellant wife (“wife”) and the respondent husband (“husband”).
Both parties were self-represented both before the primary judge and at the hearing of the appeal.
The wife was born in the United States of America (“USA”). The husband is Australian. The parties married in 2014. They have a daughter, X, born in 2017 who lives with the wife. They separated in about August 2019.
The wife moved from the USA to Australia at the start of the relationship in 2013. She has not held employment since then. The husband has held regular employment in an industry requiring frequent travel, including overseas roles during the relationship and local employment since the relationship ended.
In the final hearing before the primary judge both parties sought a division of their property, and the wife sought spousal maintenance and child support departure orders.
The property pool excluding superannuation as found by the primary judge was modest, as follows (at [134]):
Funds held in trust from the sale of the former matrimonial home in Suburb C
$141,031
Wife’s GG Financial Services funds
$4,495
Wife’s M Finance Investments funds (excluding IRA)
$125,550
Wife’s car (net value)
$4,670
Wife’s NAB shares
$882
TOTAL
$276,628
At cohabitation, the husband held a superannuation interest with Superannuation Fund 2. This was valued at $139,745 as at 30 June 2014. On 7 June 2016, a self-managed superannuation fund was established with a corporate trustee of which the parties were directors (“SMSF”). The wife had to resign as a director in October 2016 by reason of her immigration status. The husband has been the sole director since then. The husband’s interest in Superannuation Fund 2 was transferred into the SMSF. The fund purchased a property in Suburb R in about 2016 using the husband’s contributions and mortgage finance of $347,600. This property is the significant asset of the SMSF. There was no dispute that the wife made no financial contribution to the SMSF. At trial the value of the SMSF was included by the primary judge in a balance sheet at $344,466, which was the value provided by the husband. There was no dispute that the wife had no interest in the SMSF but she sought an order for it to be split, with 75 per cent of its value to be received by her. This would require the sale of the Suburb R property.
Including superannuation, the total value of the property pool was $621,094. The primary judge divided the property of the parties by ordering $129,340 from the $141,031 held in trust to be paid to the wife. Otherwise, the parties retained all other property in their possession and the primary judge dismissed the wife’s claims for spousal maintenance and child support departure orders.
It can be seen that the wife received all the available assets less $11,691, apart from superannuation, including cash of $129,340. No order was made disturbing the husband’s interest in the SMSF. Consequently, the wife received 43 per cent of the total pool and the husband received 57 per cent.
For the purposes of this appeal, it is important to emphasise that in determining that no order should be made splitting the superannuation, the primary judge recorded the fact that the wife made no direct financial contribution to the SMSF, while the husband contributed his interest in Superannuation Fund 2, which was in excess of $139,745 in 2014. The primary judge also held that there was a substantial deficit in the evidence which would have been necessary to permit the Court to determine whether an order splitting the superannuation should be made. This deficit included an absence of a complying superfund into which a superannuation split could be paid in favour of the wife, whether in Australia or, if possible, in the USA. Additionally, there was no evidence of the taxation consequences to the fund in the event of the sale of the Suburb R property or payment to the wife in the USA, bearing in mind she was no longer resident in Australia for taxation purposes. There was no evidence as to whether the wife’s immigration status or residency in the USA had any impact on the question of splitting superannuation in an Australian fund. The primary judge also took account of the fact that the superannuation would not be available to the husband for many years, bearing in mind his age of 37 years at the time of the trial, whereas the wife would have immediate access to the $129,340.
THE APPEAL
The wife challenges most of the primary judge’s orders on appeal. But she does not challenge the order for payment to her of $129,340. She received those funds at the end of December 2023 which she used to pay off credit cards: Macarthur & Macarthur (No 2) [2024] FedCFamC1A 8 at [11] (“Macarthur (No 2)”). Rather, the wife sought a re-exercise of discretion on the assumption she retained the $129,340, with wide ranging relief including the immediate sale of the Suburb R property and a superannuation split 75 per cent in her favour, resolution of her debt position, spousal maintenance, payment of expenses and establishment of an educational trust for the child, and designating the child as sole beneficiary of a life insurance policy. She also sought a spousal maintenance order and child support in the form of 50 per cent of all costs related to education, extracurricular activities, and medical expenses.
Significant problems were created by the way the wife presented her appeal. Her grounds of appeal were prolix and at times impenetrable. She appeared to rely upon both “original” and “updated” grounds. Although referring to errors of fact, inadequate reasoning, failure to take account of or misunderstanding evidence, bias, procedural unfairness, inadequate assessment of her health and manifest injustice, the manner in which the grounds were formulated rendered many of them incompetent. Her Summary of Argument did not assist. Nor did her oral submissions. They regularly descended into a jeremiad against the husband, the primary judge and her present situation. Many were not obviously connected to any ground of appeal. As the High Court observed in Neil v Nott (1994) 121 ALR 148 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 …
As the hearing of the appeal evolved, one thing that did become clear was that, in relation to the property division orders of the primary judge, the only challenge was to her failure to make any order splitting the SMSF in the wife’s favour. Otherwise the appeal was limited to a challenge to the spousal maintenance and child support departure orders of the primary judge.
In light of these limited issues and the many other obstacles to clarity in the way the appeal was presented, it is unnecessary to attempt a detailed analysis of every ground the wife appeared to raise. It is only necessary to address grounds which clearly bear on these limited questions.
In doing so, several matters of principle require emphasis. First, the orders the subject of the appeal arose from a discretionary judgment. Since the primary judge was exercising broad discretions, the appellant is required to identify an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is “unreasonable or plainly unjust”: House v the King (1936) 55 CLR 499 at 505 (“House v The King”); Bartram & Marsden [2023] FedCFamC1A 207 at [19].
Secondly, a fundamental purpose of the appellate process is the correction of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. An appellant must properly particularise the asserted error which they contend was made by the primary judge. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors and not for the appellate court to rummage around in voluminous documents on the off chance that the facts might emerge or in order to find material which may be relevant to the questions in the appeal: Bahonko v Sterjov (2008) 166 FCR 415 at [3]; Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 at [53]. The appellant also bears the onus of not only demonstrating error, but that it was material in the sense that a different result might have flowed had the error not occurred: Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320.
Thirdly, in light of the modest property pool it is also important to emphasise that the discretion in s 79(1) of the Act exercised by the primary judge was to make orders dividing existing property of the parties to the marriage. As noted by Coleman J sitting as the Full Court in Sand & Sand (2012) FLC 93-519 at [42]: “[J]urisdiction under s 79 is limited to “property” in existence at the time the jurisdiction of the Court is sought to be enlivened.” Orders cannot extend beyond the existing property unless there is evidence to support a finding that other assets, undisclosed, actually exist: Milankov and Milankov (2002) FLC 93-095 at [115]; HDM & MM [2006] FamCA 47 at [27]; Shan & Prasad [2018] FamCAFC 12 at [130]. It is open to the Court to find that indeterminate undisclosed property is held by one of the parties and to make such property orders without reference to the overall pool: see Weir and Weir (1993) FLC 92-338 at 79,593–79,594; Chang v Su (2002) FLC 93-117 at [70].
While the wife made many assertions that the husband had other property, no evidence to support such an assertion was pointed to.
It is necessary then to begin with the wife’s claims of bias and a failure by the primary judge to afford her procedural fairness. Assertions of judicial bias and denials of procedural fairness “strike at the validity and acceptability of the trial and its outcome”: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117].
The wife did not distinguish between actual and apprehended bias in her submissions. A finding of actual bias is a grave matter which should not be made lightly, is rarely made and requires cogent evidence: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]. To demonstrate actual bias the wife must show the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]. Apprehended bias requires consideration of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
Procedural fairness requires a party to be given a reasonable opportunity to present their case, whether or not that opportunity is taken up: Kioa v West (1985) 159 CLR 550, and a lack of procedural fairness must result in a re-trial regardless of possible findings on the other issues: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 per Basten JA at [9]–[13]. Procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner: Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451 at [59]. It is a question of avoiding practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (“Ex parte Lam”).
The wife did not provide a transcript of the final hearing. Her application for the Court to pay for the transcript was refused: Macarthur (No 2). Accordingly, it is not possible to assess what took place during the hearing which might support an allegation of apprehended bias or denial of procedural fairness. Indeed in her appellate submissions, the wife did not point to any aspect of the trial process which she claimed did so.
Apprehended bias can be put to one side. Rather the wife’s argument appeared to be that the outcome was so unfair that it demonstrated the primary judge was actually biased against her and denied her procedural fairness. But as the following discussion demonstrates, nothing in the reasons of the primary judge demonstrate actual bias, that her mind was not open to persuasion incapable of alteration.
The wife had sought an adjournment of the final hearing. The primary judge refused this. Her Honour was not satisfied the wife had demonstrated a proper basis for the adjournment, bearing in mind that the orders listing the proceedings for trial on 31 October 2023 had been made almost a year earlier on 1 November 2022. The primary judge recorded that the wife had failed to comply with trial directions, while the husband had done so. The orders of 1 November 2022 had specifically directed that the trial would proceed notwithstanding any non-compliance. The wife provided no evidence as to why she had failed to comply with trial directions. At [156] the primary judge observed:
156.… I note that the wife represented herself in the hearing over three days and appeared to competently prepare and handle voluminous tender bundles and otherwise to prepare and manage the documents required for the hearing.
We are not persuaded the wife has identified any aspect of the primary judgment which supports a conclusion of denial of procedural fairness. The wife has not pointed to any matter which suggests the refusal of the adjournment denied her an opportunity to present her case or had any material bearing on the outcome or resulted in practical injustice to her. The wife had ample opportunity to prepare and present her case, and she did so: Ex parte Lam at [38]. A consideration of the reasons demonstrate the primary judge gave careful consideration to the evidence and arguments of the parties. Nothing the wife has pointed to could support a conclusion that her Honour was so committed to an outcome as to be incapable of persuasion. There is no merit in the assertion of actual bias.
We turn then to asserted errors of fact. A challenge to a factual finding must demonstrate the finding was either not reasonably open on the evidence, glaringly improbable or contrary to incontrovertible facts: Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513; Fox v Percy (2003) 214 CLR 118 at [28]–[29] (“Fox v Percy”). Appellate court judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence: Fox v Percy at [77]. Furthermore, appellate intervention is only justified if the appellant shows a mistake of fact is material to the ultimate decision: De Winter and De Winter (1979) FLC 90-605 at 78,091–78,092.
We have already referred to the unfortunate way the wife chose to present her appeal. She made matters more confusing because her challenges to findings of fact did not comply with r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth), especially in failing to make clear why any of the alleged factual errors, if not made, would have made any material difference to the outcome.
Particular difficulty arose because it became apparent during the hearing of the appeal that the wife had filed at least four tender bundles prior to the trial on 26, 29 and 31 October 2023. These ran to over 2,000 pages of material. An examination of the Exhibit List showed that only selected pages were received into evidence before the primary judge. However, the wife appeared to labour under the misapprehension that all, or at least a lot more, of her documentary material was before the primary judge. This was not so, as the Exhibit List made clear.
It also became apparent that the wife contended certain documents in her tender bundles had not become exhibits even though she tendered them. However, as observed she provided no transcript to be included in the appeal books. Consequently, the wife failed to establish this contention.
We are not satisfied any error of fact has been demonstrated by the wife. The findings referred to above at [7]–[10] were clearly open on the evidence and demonstrate that any of the asserted errors of fact, if not made, could not have had a material impact on the outcome.
Indeed, the same matters, together with our conclusions concerning bias, denial of procedural fairness and errors of fact compel the conclusion that, although the wife received less than half the overall value of the property pool including superannuation, the result was not manifestly unjust, and in the circumstances was both just and equitable. They also render further discussion of the wife’s grounds of appeal concerning property division unnecessary. As already emphasised, the primary judge could only divide existing property, and was required to determine what, in the exercise of her discretion, was a just and equitable outcome in light of her findings about the existing property interests. The wife has not demonstrated any sufficient basis for appellate interference with the primary judge’s refusal to disturb the interests of the husband in the SMSF or that any other outcome was arguably just and equitable.
We turn then to the appeal against the dismissal of the wife’s application for spousal maintenance. The wife claimed maintenance in the sum of $2,037 weekly, or $105,924 annually, for a period of five years, a total of $529,620. The primary judge found that the wife had not been in paid employment since she came to Australia in 2013 to live with the husband. Nonetheless she found the wife had skills and experience, including a degree. The wife’s curriculum vitae was in evidence which set out a history of employment up to 2013. The primary judge also said at [152]–[153]:
152.The wife gave no evidence of any attempt to find paid employment. She gave no evidence of any intention to undertake a course of education or training or to establish herself in a business or otherwise to obtain an adequate income from employment.
153.The parties’ child is seven years old and goes to school. The wife gave no evidence that caring for their child interferes with her ability to work.
The wife claimed she suffered a range of physical and psychological health problems which made her unable to work. We have earlier recited [156] after which her Honour continued at [157]–[159]:
157.The wife bears the onus of proving that she is unable to support herself adequately. She cannot rely on inadmissible evidence or inferences which may (or may not) be available from business records …
158.In this case, the wife is seeking payment of $105,924 per annum for the next five years or a total of $529,620.
159.Absent expert evidence from a medical specialist, I am not able to find that the wife is unable to work to support herself and her application for spousal maintenance will be dismissed.
Consequently, the primary judge concluded the wife had failed to demonstrate she was unable to support herself adequately, as required by s 72 of the Act.
Before us the wife claimed there was medical evidence which demonstrated she was unable to work. However, despite an extended opportunity to do so, she could not to point to any such evidence in the large volume of material filed in support of the appeal, or, more to the point, any such evidence that was before the trial judge.
The primary judge also dismissed the wife’s spousal maintenance claim on the alternative basis that the husband’s outgoings exceeded his income, and the parties’ expenses were very similar, so the husband’s expenses were not unreasonable. As a result, the wife failed to establish that the husband was reasonably able to pay the claimed maintenance. The wife could not point to any basis to conclude these findings were not open on the evidence.
The wife invoked provisions of the Child Support (Assessment) Act1989 (Cth), in particular ss 117, 123 and 124, for a child support departure order covering 50 per cent of all costs related to education, extracurricular activities, and medical expenses of the child. These provisions are complex and it is not necessary to set them out here, except to note that the Court must be satisfied of a number of matters, including that the order she sought was “just and equitable” and “otherwise proper” and have regard to “the income, earning capacity, property and financial resources of the child” in reaching such satisfaction: ss 117(4)(c), 117(7), 124(1).
At [172]–[176], her Honour gave the following reasons for concluding she could not find it was just and equitable to make the order sought by the wife:
172.I will deal first with the requirement that the order sought must be “just and equitable” and “otherwise proper”.
173.I have already found that the husband’s expenses exceed his income.
174.The evidence of the wife’s father is that [X] is the beneficiary of a trust set up by her great grandmother. There is no evidence of the terms of the trust, when the trust will vest, whether funds are available from the trust for [X’s] care, how many beneficiaries there are or the amount of funds in the trust.
175.All of those matters could and should have been disclosed by the wife in circumstances where the provisions of s 117(4)(c) of the Child Support (Assessment) Act requires the Court to consider the income, earning capacity, property and financial resources of the child.
176.In those circumstances, I am unable to find that it is just and equitable or otherwise proper to make the orders sought by the wife.
The submissions of the wife on appeal did not engage with these findings. She pointed to no error in these conclusions. They clearly constitute adequate reasons and a sufficient basis upon which to dismiss the wife’s claim for child support departure orders.
The appeal will be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Harper. Associate:
Dated: 22 March 2024
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