Madden & Segel
[2023] FedCFamC1A 68
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Madden & Segel [2023] FedCFamC1A 68
Appeal from: Madden & Segel [2022] FedCFamC2F 1767 Appeal number(s): NAA 277 of 2022 File number(s): BRC 8515 of 2020 Judgment of: SCHONELL J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought leave to adduce further evidence – Where the further evidence comprises of two letters that are not signed and are hearsay – Where the Court is not satisfied that the further evidence sought to be adduced has any bearing on the appeal.
FAMILY LAW – APPEAL – Apprehension or actual bias – Where the transcript does not show that the primary judge displayed any form of bias, pre-judgment or acted partially – Where actual bias or apprehended bias is not established – Where the other grounds broadly contend error by the primary judge on the basis of procedural fairness – Where there is no merit to those grounds – No error established – Appeal dismissed – Costs application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Conway v the Queen (2002) 209 CLR 203; [2002] HCA 2
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Crabman & Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Kingston & Field (No 2) (2020) FLC 93-986; [2020] FamCAFC 235
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 98 Date of hearing: 5 May 2023 Place: Sydney (via Microsoft Teams) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 277 of 2022
BRC 8515 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MADDEN
Appellant
AND: MR SEGEL
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
11 May 2023
THE COURT ORDERS THAT:
1.The appellant’s oral application to adduce further evidence is dismissed.
2.The Amended Notice of Appeal filed 17 March 2023 is dismissed.
3.The respondent’s application for costs 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).
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 pseudonym Madden & Segel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 17 November 2022, the primary judge heard and determined an application for financial adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) brought by the appellant following the breakdown of her relationship with the respondent. The primary judge delivered ex tempore reasons dismissing all outstanding applications.
On 15 December 2022, the appellant filed a Notice of Appeal. On 6 February 2023, the appellant was directed to file an amended Notice of Appeal as the initial grounds were largely unintelligible.
The Amended Notice of Appeal filed 17 March 2023 under the heading “[g]rounds of appeal” contains 16 paragraphs. With a few exceptions they are not immediately recognisable as a ground of appeal but rather are in the main a series of submissions and complaints. The task of identifying error is not made any easier by the appellant’s Summary of Argument filed the same day.
In circumstances where the appellant is unrepresented, any request to refine the Amended Notice of Appeal with greater precision would inevitably be fraught and potentially a pointless task. In those circumstances, to do justice to the appeal, I propose to treat each of the paragraphs as if they constitute grounds and where there is repetition address them collectively.
The respondent took no part in the appeal other than to be heard as to costs, filing only a Submitting Notice on 15 February 2023.
Attached to the appellant’s Summary of Argument are two letters dated 21 March 2020 addressed to “the Presiding Magistrate … Magistrates Court” (at page 5). When asked, the appellant indicated that she sought to rely upon them for the purposes of the appeal. Notwithstanding the absence of a formal application, I granted leave to the appellant to make an oral application to adduce further evidence. The respondent, it should be noted, opposed leave. The two letters assumed a disproportionate level of importance in the appeal.
As will be apparent from these reasons, I have found no merit to any of the matters the subject of the Amended Notice of Appeal and accordingly, the appeal will be dismissed.
BACKGROUND
To provide some context to the matters raised in the Amended Notice of Appeal and Summary of Argument some background is necessary.
The appellant’s Initiating Application was filed on 3 July 2020. There were a number of mentions and directions hearings including a listing for a final hearing on 22 March 2022 which was adjourned. The matter was eventually listed for hearing on 17 November 2022.
The appellant’s affidavit was prepared by a solicitor. The appellant’s solicitor filed an Amended Case Outline on 10 November 2022, which identified the documents sought to be relied upon, a summary of the argument and a Minute of the orders sought. The appellant was represented at the hearing by solicitor and counsel. The appellant’s counsel opened the case for the appellant, called the appellant, led some evidence from her and re-examined the appellant. She also cross-examined the respondent and tendered documents.
When it came time for submissions, the appellant’s counsel informed the Court that her instructions had been withdrawn and sought leave to withdraw. There is no explanation given for why the appellant withdrew her instructions. The appellant thereafter sought to tender the documents the subject of the application to adduce further evidence. That application was refused. The appellant subsequently sought an adjournment which was refused and she then made her final submissions.
Following submissions, ex tempore reasons were delivered by the primary judge.
The primary judge recorded in his reasons that the parties were at issue as to when they commenced cohabitation. The appellant contended that cohabitation commenced in October 2016 whilst the respondent contended October 2017. The primary judge found that cohabitation commenced in October 2017 (at [3]). The parties agreed that they separated on a final basis on 15 February 2020. The parties’ relationship was thus some two years and four months. There is no ground directed towards the finding by the primary judge as to the date of commencement of cohabitation.
There are no children of the relationship albeit each had children of former relationships.
At the commencement of cohabitation, the appellant says that she was the owner of a property subject to a mortgage as well as a number of motor vehicles, some savings, household contents and superannuation. At the commencement of cohabitation, the respondent says that he did not have any real property but owned a number of motor vehicles, had some saving, household contends and superannuation.
Each of the parties put in issue the extent to which the other was engaged in employment during the relationship. The appellant suggested in her affidavit that she was variously employed with a number of different employers at the same time. The respondent disputed this. The appellant also suggested that the respondent was not in employment for long periods of time and was otherwise supported by the appellant. The respondent’s evidence was that he was unemployed for approximately a one month period and was otherwise employed or received income through his superannuation fund. The primary judge found:
13. … It is the [appellant’s] case that she worked up to five jobs to support the parties, and in doing so, the respondent was able to pay off all of his debts. There is no evidence of the income earned of the [appellant’s]. She has failed to lodge her tax assessments for the past four years. There is no evidence by way of documents or business records to support the contributions alleged. There is no evidence of the alleged employment.
There is no ground challenging this finding by the primary judge.
The appellant suggested in her affidavit that she was left at the end of the relationship with a significant amount of debt as a consequence of the actions of the respondent. This was denied by the respondent. The primary judge found as follows:
9.There is evidence as to the liabilities in the form of exhibits. There is also evidence that the vast majority of the debts in the [appellant’s] name have increased since separation; see the exhibits. The entire debts will form part of the pool. …
There is no ground challenging this finding by the primary judge. A reading of the transcript supports this finding.
Post the separation the respondent purchased a property at Suburb B in the sum of $300,000. The purchase was funded by way of a mortgage in the sum of about $285,000, the proceeds of sale of a motor vehicle, a payout from a company and savings. He says that he received a First Home Owner Grant of approximately $15,000.
The primary judge recorded the appellant’s contention that she should receive 75 per cent of the parties’ net assets. The respondent’s position was that there should be no financial adjustment.
The primary judge found the net pool of assets to be $172,260. The parties’ net property excluding superannuation entitlements was $11,965. This latter fact seemed to have been obscured from consideration by the appellant at trial.
The primary judge recorded in his reasons:
5. As this matter relates to property adjustment relating to a de facto relationship, Part VIIIAB of the Family Law Act applies. In Stanford & Stanford [2012] HCA 52, the High Court directed its attention to section 79(2) of the Family Law Act. Section 90SM(3), the relevant de facto section, is in identical terms. The High Court emphasised the importance and necessity of judges when exercising their jurisdiction to make a determination in all the circumstances it is just and equitable to do so.
…
7.In paragraph 37 of Stanford, the Court said:
First, it is necessary to begin consideration whether it is just and equitable to make a property settlement order by identifying according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.
The primary judge determined, given the length of the relationship and the limited contributions made by the parties, that it was not just and equitable to make an order. He consequentially dismissed all applications.
APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE
The appellant seeks leave to adduce further evidence on the appeal, being two letters dated 21 March 2020 addressed to the presiding magistrate of the Magistrates Court. The letters address issues arising out of what would appear to have been a protection order made in the Magistrates Court after the parties’ relationship had ended.
Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that this Court may in its discretion receive further evidence. 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. In particular, the plurality said:
108.When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
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.… Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. 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).
(Emphasis added) (Footnote omitted)
Rule 13.39(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires a party seeking to adduce further evidence to identify the grounds to which the application relates. Ground 3 is to the following effect:
3. Court made an error not to consider the letters from two lawyers
•Senior [Lawyer C]
•[Lawyer D]
•Filed on 13.12.2021 at 9.30am annex (20 – 23)
(As per the original)
It is necessary to understand the nature and content of the evidence sought to be adduced to determine whether the application should be granted. The evidence at best constitutes what might be regarded as character references for the appellant. In each case, the authors of the letters speak to what they say is the good character of the appellant, that the protection order was unwarranted, and that the appellant was not the sort of person who would have conducted themselves in a way that warranted the making of a protection order.
Both letters are written after the date of separation of the appellant and the respondent. They are not signed. There is no sworn evidence adopting the contents of the letters. One of the letters refers to the appellant supporting the respondent financially for a period of time while he looked for work and that the appellant bought all the food for the house. The foundation for these opinions is not set out in the letter.
I am not satisfied that this further evidence has any bearing on the appeal and, therefore, 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 appellate procedures” (CDJ v VAG at [109]).
The oral application for receipt of the further evidence will be dismissed.
THE APPEAL
This is an appeal from the exercise of discretion. For the appellant to succeed, she must bring her appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499.
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. …
A number of the grounds of appeal made assertions as to either an apprehension of bias or actual bias (it is not entirely clear which) on the part of the primary judge and other grounds addressed what might be described as matters of procedural fairness.
Consistent with authority, where an appeal contends allegations of apprehended bias or procedural fairness then such grounds must be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
As their Honours observed in Crabman & Crabman (No 2) (2020) 61 Fam LR 191:
16.An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first. This is because apprehended bias strikes at the validity of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]).
GROUNDS 7, 8 AND 15
Grounds 7, 8 and 15 contend either an apprehension of bias or actual bias on the part of the primary judge. Ground 7 asserts “[j]udicial bias, one sided with counsel, which influenced his decisions, favouritism, recusal, conflict of interest”. Ground 7 further contends that the appellant was advised by her lawyers that she should “stand them down”, which is presumably some reference to an adjournment. Ground 8 contends that she was advised that the primary judge “really didn’t want it to proceed or hear it”. Ground 15 contends that the appellant had “heard through others … the presiding judge … was going to shut [her] case down by [the respondent’s] [b]arrister and he did exactly that”.
The apprehended bias test requires the establishment of two limbs. First, an identification of what it is said might lead the judge to decide the particular case other than on its merits and, second, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner v Official Trustee in Bankruptcy”).
As their Honours observed in Ebner v Official Trustee in Bankruptcy, to succeed on a ground of apprehension of bias, the appellant must establish that:
6.… 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.
(Footnote omitted)
The test for the establishment of actual bias was reiterated by the High Court in Minister for Immigration v Jia Legeng (2001) 205 CLR 507. Their Honours Glesson CJ and Gummow J recorded that “the state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (at [72]). There is no foundation for such a conclusion.
The appellant has not established, by any admissible evidence, any basis for a contention of actual bias or an apprehension of bias on the part of the primary judge, or the various propositions that she advances in the Amended Notice of Appeal or the Summary of Argument.
In Kingston & Field (No 2) (2020) FLC 93-986 the Full Court observed in relation to the allegations said to give rise to an apprehension of bias:
20.The assertion of apprehended bias remains a bare and unfounded allegation until the connection between the primary judge’s conduct and the possibility of departure from the judicial duty of impartiality is clearly articulated.
Those observations are apposite to this appeal.
A reading of the transcript does not demonstrate that the primary judge displayed any form of bias, pre-judgment, acted partially or departed in any way from his obligations of ensuring that a fair hearing was provided to all parties. Nor does a reading of the judgment in part or as a whole.
According to the appellant’s Amended Notice of Appeal and Summary of Argument, she allegedly knew before the hearing of the very things which she now complains about but made no application for recusal. Instead, she specifically instructed her counsel to proceed with the hearing.
Silence or inaction on the part of a party clearly aware of the issues may give rise to a waiver because the failure to act can be deemed to be a deliberate decision not to pursue the issue. As their Honours observed in Vakuata v Kelly (1989) 167 CLR 568, “a party who has legal representation is not entitled to stand by” (at 572). That is exactly what the appellant did in this case.
There is no merit to Grounds 7, 8 and 15.
GROUNDS 4 AND 12
Ground 4 contends that the primary judge should have adjourned the proceedings rather than “dismissed the case in the interests of justice … [e]xactly like [the primary judge] did for the respondent 22nd March 2022, [d]efended [h]earing”. A similar contention forms part of Ground 9, so for convenience it will be dealt with here.
It is to be observed that the appellant bears the onus to establish not only error but that a different result might have followed had the said to be erroneous event not occurred: Stead v State Government Insurance Commission (1986) 161 CLR 141.
The appellant has chosen not to include the transcript of what occurred on 22 March 2022, so it is impossible to assess what happened on that day. Likewise, in the absence of the transcript, this Court is unable to compare what happened on 22 March 2022 with the refusal of the appellant’s adjournment application made 17 November 2022 that would lead to some inference that the appellant was treated differently to the respondent.
As to the assertion that there was some absence of procedural fairness occasioned to the appellant or a miscarriage of justice by the refusal to grant an adjournment, the transcript clearly reveals this to be erroneous.
The application for adjournment was made after the appellant had withdrawn instructions from her counsel and sought then to tender the letters referred to earlier in these reasons. It is unexplained why, if they were so important or relevant, they did not form part of her affidavit evidence, why the writers of the letters did not give evidence by affidavits in the proceedings, or why an attempt was not made earlier than the close of submissions to tender the documents (assuming an evidential basis to do so existed). When the primary judge refused the tender of the evidence, the appellant asked for an adjournment which was heard and refused. There was no denial of procedural fairness or any miscarriage of justice.
Both letters are in the form of character references written after the date of separation of the appellant and the respondent. They constitute in the main irrelevant hearsay assertions for which there is no foundation. They are neither signed nor sworn. They are of no probative value.
Ground 12 contends that the appellant was only given “fa[ir] assistance on the three occasions” and thereafter mentions various dates. It then goes on to contend that the primary judge “never listened to [her] or [her] legal representation and never looked at anything put before [his] Honour”.
Such a proposition is plainly incorrect from a reading of the primary judge’s reasons and the transcript. The reasons reveal that the primary judge was conscious of the issues between the parties; referenced the case outlines and the exhibits; recorded the dispute between the parties about the date of commencement of cohabitation; identified the home owned by the appellant at the commencement of cohabitation and the orders that she sought in her Case Outline document; identified the assets and liabilities of the parties; recorded accurately that the relationship was a short one; recorded the appellant’s evidence that she had worked up to five jobs to support the parties; and referred to the valuation evidence filed in the appellant’s case.
The transcript reveals that the primary judge listened at length while each party was cross-examined including making various rulings and directions, in particular, directing the appellant to answer the question. In that respect, the reasons record:
14.Furthermore, the [appellant] has very clearly caused an increase in the debts in her name. She was a witness who was very argumentative, almost angry at times. She made many accusations against the respondent without any evidence to support those allegations. I found her to be a quite unsatisfactory witness, who wished to blame the respondent for the many financial difficulties in her life. I can find no evidence to support her position.
The transcript reveals that the primary judge listened at length to the appellant’s submissions including asking various questions.
There is no merit to either Ground 4 or 12.
GROUNDS 1 AND 3
Grounds 1 and 3 contend error on the part of the primary judge in failing to consider the letters the subject of an application to adduce fresh evidence during the trial.
It was not articulated in the written submissions as to why it constituted error on the part of the primary judge not to consider the letters.
The letters, as referred to above, were relevant to the application for a protection order. They did not relate to any issue that the primary judge had to decide. I have addressed at length above the relevance of the letters. Either way, no prejudice is occasioned to the appellant by the failure to consider the evidence as it caused no miscarriage of justice. As the High Court observed in Conway v the Queen (2002) 209 CLR 203:
29. … it seems clear enough that at common law a new trial would not be ordered in a civil cause if the error whatever it was could not reasonably be supposed to have affected the result of the trial.
(Footnotes omitted)
Ground 1 also contended that the primary judge refused to consider the appellant’s future needs and her financial hardship.
A reading of the judgment demonstrates the erroneous nature of this contention. The primary judge was aware of the extent of the appellant’s financial hardship and referred to the various liabilities at [10] and [11] of the reasons, specifically identifying the extent of the appellant’s parlous financial position. The primary judge also recorded at [14] that the appellant was the cause of an increase in the debts in her name.
The primary judge also concluded that given the length of the relationship the s 90SF(3) factors were less important in his assessment. The appellant had clearly decided to adduce no expert evidence as to her mental health. There was no affidavit from a doctor or health professional attesting to the appellant’s health issues.
The primary judge in both the opening remarks to counsel and in discussions with the appellant in submissions directly addressed the fact that there was no medical evidence supportive of the appellant’s health issues. In the course of submissions, the primary judge specifically asked the appellant the following:
HIS HONOUR: In relation to 90SF(3):
The age and state of health of any of the parties. The income property and financial resources of any of the parties, whether either of the parties has the care or control of a child of the relationship –
and you don’t –
Commitment of each of the parties that are necessary to enable the party to support him or herself. The responsibilities of either party to support any other person –
there’s no evidence of that –
The eligibility of a party for a pension, allowance or benefit under any Commonwealth or State or Territory. The standard of living that, in all the circumstances, is reasonable. The effect of any proposed order on a creditor. The duration of the relationship and the extent to which has affected the earning capacity of a party.
They appear to be the relevant matters that I should take into account. Is there anything you wish to submit in relation to that?
[THE APPELLANT]: Nothing I say is true, you know. ..... do what he says. It’s two years, whatever – whatever – whatever he says, hey, in his – his big-time barrister that you got respect for. Many years of, you know, legal – nothing I say is true. Say or whatever.
HIS HONOUR: Is there anything further you wish to - - -
[THE APPELLANT]: That’s it. That’s it.
HIS HONOUR: - - - say?
[THE APPELLANT]: That’s it.
(Transcript 17 November 2022, p.69 line 35 to p.70 line 21)
There is no merit to Grounds 1 and 3
GROUND 2
Ground 2 contends that the primary judge did not give sufficient weight to the respondent’s failure to disclose.
Each party made assertions in their affidavit that the other had not complied with their obligation of disclosure. In the case of the appellant the contentions were of the most general and sweeping kind without reference to a particular request by date for disclosure of a particular document or documents.
In the appellant’s Amended Case Outline filed 10 November 2022, the issue of non-disclosure was confined to what happened to the respondent’s interest in a particular property and how he funded a post separation purchase of real estate. He was asked questions about these two specific issues. There was no cross-examination of the respondent on issues of non-disclosure nor was it put to him that he had failed to disclose.
In those circumstances, the appellant failed to establish beyond the mere allegation that there had been non-disclosure by the respondent. Nor did the appellant establish any causal link between the alleged failure to disclose and some issue in the balance sheet or going to the matters generally that the primary judge was required to decide. A judge can only give weight to something that is established by the evidence. If it is not, then it cannot be erroneous to not consider it or to give it no weight.
There is no merit to Ground 2.
GROUND 5
Ground 5 contends that because of the appellant’s mental health issues the Court should not have decided the case in her absence.
I have addressed the absence of expert evidence about health issues by reference to Grounds 1 and 3. It is therefore unnecessary to repeat it in relation to this ground. As to the contention that the case was decided in the appellant’s absence, this is erroneous.
The appellant was present in Court throughout the hearing, including making submissions herself and interrupting the respondent’s counsel during submissions. The primary judge then delivered reasons and, after delivery of reasons, the transcript reveals the appellant was still in Court and the transcript records her saying further things to the primary judge. There is no basis to the assertion that the “case was decided in [the appellant’s] absence”.
There is no merit to Ground 5.
GROUNDS 6 AND 10
Ground 6 contends that the primary judge failed to look at an Initiating Application filed 3 July 2020, while Ground 10 contends that the primary judge did not look at and ignored an Application in a Proceeding filed 13 December 2021.
To the extent to which it is contended this constitutes an error, the proposition is absent foundation. The appellant’s Amended Case Outline filed 10 November 2022 prepared by her solicitor identified the documents that she relied upon for the purposes of the hearing. Neither the Initiating Application filed 3 July 2020 nor the Application in a Proceeding filed 13 December 2021 were relied upon.
A perusal of the transcript does not reveal that the primary judge was at any time asked to look at or consider either document. The documents were not referred to by the appellant in her submissions to the primary judge. The appellant is bound by the way her case was run at hearing. She cannot now raise on appeal a new issue (Metwally v University of Wollongong (1985) 60 ALR 68; Coulton v Holcombe (1986) 162 CLR 1 at [7]).
The balance of Ground 6 contends that the primary judge at an interim hearing on 12 November 2020 indicated that he was busy. Whether or not that is the fact, the contention does not amount to appealable error.
There is no merit to Grounds 6 and 10.
GROUND 9
Ground 9 does not identify any error. Rather, it constitutes commentary on assistance the appellant received at various interlocutory appearances.
Ground 9 is without merit.
GROUND 11
Ground 11 contends that there are still joint bank accounts in the parties’ names for which there are no orders addressing the particular joint bank accounts and that the appellant has not been provided the passwords to various security cameras located on her property.
It would appear from the reasons that the parties are the owners of a joint Bank E account which had a balance at the time of trial of $151. No other joint account is identified in either the reasons or the appellant’s Case Outline filed 10 November 2022. The appellant at no time sought a specific order in relation to joint accounts.
The failure by the Court to deal with this particular asset does not occasion any miscarriage of justice nor does it constitute an error of law. In relation to the passwords for the security cameras on the appellant’s property, no error of law is occasioned by the failure to make any order in relation to this, particularly in circumstances where the appellant sought no such order.
Further, the appellant’s affidavit filed 15 October 2022 records:
149. It was a condition on a Temporary Protection Order made at the [...] Magistrates Court [i]n [...] April 2020, [the respondent] was to provide me with the password to these systems. [The respondent] did not provide the password. Annexed and marked with the letters KP-9 is a copy of Temporary Protection Order and correspondence from the electrician.
The appellant’s remedy in this respect therefore lies elsewhere.
There is no merit to Ground 11.
GROUNDS 13, 14 AND 16
Each of these asserted grounds amount to no more than a series of submissions, commentary or repetition of earlier grievances.
There is no merit to any of these grounds.
CONCLUSION
In light of the above, the appeal will be dismissed.
In circumstances where the appeal failed, the respondent sought an order for costs.
The appeal registrar made orders for the conduct of the appeal on 6 February 2023. Those orders included a notation to the following effect:
1.Failure to comply with paragraph Rule 13.53 will prevent an application for costs being made to the Court without the leave of the Court. In the event of leave being sought it may result in the hearing of the application for costs being adjourned, the appeal thereby not being concluded, and/or leave being granted on terms, including as to the payment of costs by a defaulting party or that party’s legal representative.
Orders are made by the appeal registrar for the orderly administration of appeals, to afford procedural fairness to all parties, and to ensure the efficient disposal of matters before the Court.
The respondent failed to comply with the orders of the appeal registrar.
Parties who elect not to comply with orders do so at their peril.
The respondent’s oral application for leave to make an application for costs will be dismissed.
I propose to make orders accordingly.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 May 2023
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