Maloich and Maloich
[2014] FamCAFC 153
FAMILY COURT OF AUSTRALIA
| MALOICH & MALOICH | [2014] FamCAFC 153 |
| FAMILY LAW – APPEAL – FURTHER AMENDED NOTICE OF APPEAL – where the wife puts no proper grounds of appeal before the court – where the husband opposes the appeal – where there is no basis identified by the wife that would lead to appellate interference with the trial judge’s orders – appeal dismissed. |
| |||
| APPELLANT: | Ms Maloich | ||
| RESPONDENT: | Mr Maloich |
| FILE NUMBER: | MLC | 9560 | of | 2012 |
| APPEAL NUMBER: | SOA | 57 | of | 2013 |
| DATE DELIVERED: | 28 August 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 19 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1068 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The Further Amended Notice of Appeal filed on 5 February 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maloich & Maloich has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 57 of 2013
File Number: MLC 9560 of 2012
| Ms Maloich |
Appellant
And
| Ms Maloich |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 May 2014 I made an order dismissing the Further Amended Notice of Appeal filed by Ms Maloich (“the wife”) on 5 February 2014 appealing against orders for property settlement made by Judge Burchardt on 19 August 2013. I was unable to deliver my reasons for judgment at that time, and I indicated that I would do so at a later date. These are those reasons.
Mr Maloich (“the husband”) opposes the appeal and seeks its dismissal.
In summary, the orders provided for the husband to transfer his Land Rover to the wife, for a superannuation splitting order whereby the wife was allocated out of the interest of the husband in his superannuation fund (valued at approximately $30,000), the base amount of $3,160, and otherwise for the parties to each retain any other assets in their respective possession.
Relevant procedural background
On 13 September 2013 the wife filed a Notice of Appeal against the orders of Judge Burchardt.
On 31 October 2013 the wife filed an Amended Notice of Appeal, and at or about the same time she filed a draft appeal index as she is required to do under the Family Law Rules 2004 (Cth) (“the Rules”).
On 15 January 2014 I conducted a directions hearing in this appeal where I pointed out to the wife that her Amended Notice of Appeal was deficient in that it failed to incorporate any recognisable grounds of appeal alleging appealable errors of fact or law made by the trial judge. Indeed, in my view, given the absence of proper grounds of appeal the Amended Notice of Appeal required to be dismissed. However, the wife sought an adjournment, which I granted over the opposition of the husband, to enable her to file a Further Amended Notice of Appeal.
On 5 February 2014 the wife filed a Further Amended Notice of Appeal and an amended draft appeal index.
On 27 February 2014, being the adjourned date of the directions hearing, again I was obliged to indicate to the wife that her Further Amended Notice of Appeal still did not contain any proper grounds of appeal. To emphasise this point I set out below the section from that Further Amended Notice of Appeal headed “GROUNDS FOR APPEAL”:
24I am asking that the orders be set aside altering property interests on the following grounds
1. Sect 79A(1)(a) where there has been a miscarriage of justice by reason of fraud, suppression of evidence (including failure to disclose relevant information) the giving of false evidence or any other circumstance
2. Sect 79A(1)(c) a person defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen of that default, it is just and equitable to set the order aside
3. FAMILY LAW RULES 2004-REG 13.06 Amendment of Financial statement
If a party’s Financial circumstances have changed significantly from the information laid out in the Financial statement or the affidavit filed under rule 13.05 the party must, within 21 days after the change of circumstances, file
(a) A new Financial Statement; or
(b)If the new amendments can be set out in 300 words or less-an affidavit containing details about the parties [sic] changed financial circumstance
(c)
4. FAMILY LAW RULES 2004-REG 13.14 Consequence of nondisclosure
If a party does not disclose a document as required under these Rules:
(a)(iii) may be ordered to pay costs and
(b) the court may stay or dismiss all or part of the party’s case.
5. FAMILY LAW ACT 1975-SECT 72 Right of a spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if that other party is unable to support herself or himself adequately whether by reason of age or physical or mental incapacity for gainful employment; or
(2)(c) for any other adequate reason
Having regard to any relevant matter referred to in subsection 75(2), 2(a), 2(b), 2(j), 2(k)
6. Section 100(1) and (2) require that equality must be given in regard to evidence
7. Section 117c
8. Section 43(1)(a)
9. Section 72(1) Section 72(1)(b)
10. Section 78(2)
11. Section 79(2) and 4 d
12. Section 93A(2) subject to section 96
13. Section 79A(1)(a)
14. Amendment of Financial Statement Family Law Rules 2004 REG 13.06
15. Family LAW RULES 2004-REG 15.39
16. SECTION 79 A(1)(c)
17. Family LAW RULES 2004-REG 16.02
18. Family Law RULES 2004-reg 22.11
19. Family LAW RULES 2004-reg 1.15
In addition to those “grounds of appeal”, in the Further Amended Notice of Appeal the wife included 23 pages of narrative described as “Grounds of Appeal Argument”. A fair reading of that lengthy narrative also failed to reveal any proper grounds of appeal, but rather comprised a combination of assertions and evidence.
In the circumstances, at that further directions hearing I indicated to the wife that given that there were still no proper grounds of appeal before the court, her Further Amended Notice of Appeal should be dismissed. However, and again despite the opposition of the husband, the wife persuaded me to grant her a further adjournment, but this time for the purposes of her preparing the appeal for hearing by obtaining the transcript of the hearing before the trial judge, and by filing a summary of argument with a view to convincing this court that there was a basis to allow her appeal to proceed. Accordingly, I adjourned further consideration of the Further Amended Notice of Appeal and made the usual orders for the preparation of the appeal for hearing.
Discussion
The wife filed a summary of argument on 31 March 2014, and that became the focus of the hearing on 9 May 2014.
Doing the best I can in trying to discern from that summary the complaints that the wife makes, it seems that they are as follows:
a)Non-disclosure by the husband.
b)Bias on the part of the trial judge.
c)The trial judge failed to “identify” properly the “existing” asset pool which has resulted in an inequitable “settlement”.
d)The lack of a business valuation.
e)The husband was evasive, non-compliant and misleading.
f)The judge believed the husband and not the wife.
g)The “settlement” was not just and equitable in all the circumstances.
Addressing each of these complaints in turn:
a) Non-disclosure by the husband
The allegation is that the husband over the life of the proceedings had failed to produce documents, including taxation records, despite orders for production and subpoenas issued by the wife.
That of course does not speak of error by the trial judge, and thus the only issue can be whether his Honour erred in addressing this.
The wife says that there was no consequence of the non-disclosure provided by the trial judge, but significantly she says this in her written summary:
D. … In view of his Honours [sic] instructions in regard to Chang and Su wherein there was evasion and non disclosure I allowed the trial to proceed in the understanding that the Judge had realised the approach to the process the respondent was taking. That it implied that a “robust” determination was likely despite the lack of documents. …
What the wife was referring to there in relation to “Chang and Su” is the circumstance that where there is non-disclosure then the court is entitled to take a “robust” position in respect of the findings regarding a party’s financial circumstances. However, the important point is that the wife “allowed” the hearing to proceed regardless of her allegations of non-disclosure. This position is also apparent from her exchanges with the trial judge during the hearing. For example, when asked whether she was seeking an adjournment to enable compulsion in relation to a subpoena she had issued, the wife said this:
I am seeking, your – your Honour, to conclude this matter because I believe it is unnecessary to continue for the court.
(Transcript 13.6.13, page 5, lines 41-42)
And this, in relation to the alleged lack of documentation:
… and I really have to place myself in your hands to do the best that you can with what I see as an extraordinarily complicated mess that needn’t need to be that way.
(Transcript 13.6.13, page 6, lines 12-14)
His Honour clearly recognised in his reasons for judgment that the question of disclosure was an issue for the wife. However, he did not accept her claims in this regard. For example, he said this in his reasons for judgment:
Conclusions about the evidence
51.It is sufficient to say that the wife impressed me as being deeply embittered by the husband’s conduct, although for reasons I have not felt it necessary to traverse, this springs at least in part from a perception of infidelity on the part of the husband.
52.The wife was not slow to make significant allegations of misconduct on the husband’s part. Her position, put shortly, is that the husband has dishonestly concealed the [T] sale, the [E] debt and his affairs generally.
53.While one should approach matters of demeanour with caution, the husband’s demeanour was one of weary resignation. His various explanations, from time to time, as to the provision of documentation (asserted by the wife to constitute non-provision) in the main struck me as being true. It is readily apparent that his financial affairs have gone badly. His evidence was direct and responsive and on every occasion when he was challenged by the wife under cross-examination, his explanations to me seemed to be cogent.
54.I fully accept, as I have already indicated, that he has not sold the [T] trademark. I further accept that the debt with [E] is unrecoverable.
55.While it is clear from the exhibited material that the husband has had sales in relatively recent times, I accept also that this is the tag end of the business, which still has a substantial overdraft. The husband has been more active in business and achieved greater degrees of sales then he has been prepared to admit, as is apparent for the exhibited documents, but I also accept that after 38 years of relatively (in the circumstances) unproductive behaviour, the husband is worn out.
56.Put shortly, I do not think that the husband is sitting on large amounts of assets that he is concealing. I think that his business is, as his expert suggests, valueless.
57.The husband has annexed a purported valuation from a chartered accountant who is the expert referred to in the preceding paragraph. It would be subject to numerous obvious objections. Nonetheless, and to the extent that it says anything, what is says is consistent with common sense. The fact is that this business has not been successful or productive and is of no purchasable value. The husband, indeed, is still presently liable for the remainder of his two year lease unless, as he indicates, he is evicted to the landlord’s benefit.
The wife has failed to demonstrate that the trial judge has erred in his treatment of this issue, and there is no merit in this complaint.
b) Bias by the trial judge
There is simply nothing that the wife points to that could justify a finding that the trial judge was biased. It appears to be nothing more than a complaint that the wife did not like his Honour’s decision.
There is no merit in this complaint.
c) The judge failed to identify properly the existing asset pool
This compliant also has no basis and is simply a claim that his Honour did not accept the wife’s case.
His Honour’s findings as to the assets of the parties were plainly open to him and no error has been established.
d) The lack of a business valuation
There was in fact a valuation of the business and his Honour dealt with this issue in paragraph 57 of his reasons for judgment referred to in paragraph 18 above.
In these circumstances there is no basis for any criticism of his Honour on this issue. His Honour did the best that he could with the evidence that was presented. Thus, again there is no merit in this complaint.
e) The husband was evasive, non-compliant and misleading
These are allegations made by the wife which were not in fact accepted by the trial judge. Having seen and heard the parties give evidence it was clearly open to his Honour to make the findings that he did in this regard, and those findings are not susceptible to appellate interference.
f) The judge believed the husband and not the wife
Again, it was open to his Honour who saw and heard the parties give evidence to accept the evidence of the husband and reject the evidence of the wife. Thus there is no error by the trial judge here.
g) The “settlement” was not just and equitable in all the circumstances
This of course is yet another bald assertion. When challenged, the wife suggested that the “settlement” was “punitive”, and “biased”. Again though, this is still in the realm of assertion, and nothing more. The wife also suggested that the “settlement” was not just because it was based on “assumptions and inferences”. However, these allegations did not advance the argument, and do not establish error on the part of the trial judge.
There can be no merit in this complaint.
Conclusion
In the end result, not only were there no proper grounds of appeal, but there was no basis identified in the wife’s summary of argument that would lead this court to interfere with his Honour’s orders. It is for these reasons that the Further Amended Notice of Appeal was dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
28 August 2014.
Associate:
Date: 28 August 2014
0
0
0