MANTLE & MANTLE
[2014] FamCAFC 95
•6 June 2014
FAMILY COURT OF AUSTRALIA
| MANTLE & MANTLE | [2014] FamCAFC 95 |
| FAMILY LAW – APPEAL – PROPERTY – where the appellant husband contends the trial Judge erred by failing to add-back certain amounts said to have been wasted by the respondent wife – where no error demonstrated in the trial Judge’s exercise of discretion – appeal dismissed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Kowaliw and Kowaliw (1981) FLC 91-092 Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 Townsend and Townsend (1995) FLC 92-569 |
| APPELLANT: | Mr Mantle |
| RESPONDENT: | Mrs Mantle |
| FILE NUMBER: | BRC | 11205 | of | 2011 |
| APPEAL NUMBER: | NA | 44 | of | 2013 |
| DATE DELIVERED: | 6 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy and Kent JJ |
| HEARING DATE: | 26 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 25 July 2013 |
| LOWER COURT MNC: | [2013] FCCA 1281 |
REPRESENTATION
| THE APPELLANT: | Self Represented |
| THE RESPONDENT: | Self Represented |
Orders
That the appellant husband be permitted to prosecute this appeal notwithstanding his failure to provide a transcript of the proceedings.
That the appellant husband’s Application in an Appeal to adduce further evidence be dismissed.
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mantle & Mantle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 44 of 2013
File Number: BRC 11205 of 2011
| Mr Mantle |
Appellant
And
| Mrs Mantle |
Respondent
SHORT REASONS FOR DECISION
In dismissing this appeal we are of the opinion that the appeal does not raise any question of general principle. We therefore give reasons for our decision in short form (s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”)).
Context of the Appeal
Federal Circuit Court Judge Purdon-Sully made parenting orders and orders for the settlement of property pursuant to s 79 of the Act on 25 July 2013. The husband appeals the latter orders.
The value of the parties’ interests in property was nominal. Leaving aside chattels of modest value, the assets comprised essentially two pieces of real property, one owned by each of the parties. Her Honour found the value of the net property remaining after the ordered sale of each and repayment of a mortgage debt of about $280,000, to be about $5,000. That figure takes no account of the costs of sale.
The principal point of contention below and on this appeal is the husband’s claim that an amount of $122,000 spent by the wife from a bank account in her name during an approximate four-week period should be added back against the wife as her notional property. That amount is the total of seven withdrawals particularised at paragraph 37 of the husband’s affidavit filed 25 June 2013 and relates to the period 15 August 2011 until 9 September 2011.
Her Honour rejected that claim that amounts totalling $122,401.43 withdrawn by the wife from her bank account, over an approximate four-week period and disbursed by her should be added back against the wife as her notional property.
Grounds of Appeal
Each of the husband and wife was legally represented before her Honour but each represented themself before us. The husband prepared the Amended Notice of Appeal and Summary of Argument himself. He also filed two Applications in an Appeal to which reference will shortly be made.
The difficulties created by that self-representation are compounded by the fact that the husband describes himself as having reached only “[y]ear 8 of schooling” and as having the “…ability of reading and writing at the poor end of the scale.”
The grounds of appeal, as they appear in the husband’s Amended Notice of Appeal are (errors in original):
1.Judge stopped the question of [the wife’s] money matters and put it down as a poor history.
2.It is not a just and equitable settlement as
a) I am 53 years of age.
b) Year 8 of school and the ability of reading and writing at the poor end of the scale.
c) No additional income, allowances, benefits or support
d) Once the mother has been caught drinking to excess, the children will be in my care and no home.
e) The mental capacity, for employment just would not be there
a.No Children
b.No house and a bill to pay for money I have not spend but [the wife] and [her alleged new partner] have [a specified bank account].
In terms, of course, the stated grounds are not grounds of appeal at all.
The husband was given an opportunity to reframe those grounds by reference to the errors which he asserts form his challenge. Before dealing with the assertions thus crystallised, it is necessary to address three preliminary matters raised in the appeal.
Application in an Appeal – Provision of Transcript
By an Application in an Appeal filed 5 March 2014, the husband seeks an order that he “…be excused from obtaining transcript of the proceedings.” The basis of that application is his lack of financial means. He is unemployed and has few assets.
The husband’s first ground of appeal raises, on the face of it, a concern if the application was to be granted. Yet, it emerged during exploration of this issue by us that the brevity of the cross-examination of the husband by the wife’s counsel is the source of the complaint; it appears he asserts that he was asked very few questions in relation to the issues of settlement of property.
Whatever else might be said about that assertion, it does not militate against the order sought. The application should be granted.
Application in an Appeal – Further Evidence
The husband filed a second Application in an Appeal on 22 April 2014 which sought “…to adduce further pages which are indicated in the index of the [husband’s] Affidavit on the 14th June 2013 and uploaded on 25th June 2013 at 1.47pm.”
The reference to the “index of the Affidavit” is a reference to four pages of bank statements pertaining to accounts in the wife’s name with the Westpac Bank. The affidavit referred to was filed electronically, but as is usual, the exhibits to it were not uploaded. The husband asserts that her Honour did not have those bank statements before her and that they are important to the central assertion in respect of the $122,000 add-back.
Contrary to the husband’s assertion, it is clear that her Honour did have those documents before her. Specific reference is made to them in the reasons at [22], where her Honour refers to the documents being before her as “an exhibit”, but it seems plain that they were never formally marked as such. We are entirely satisfied that the relevant pages of the bank statements were both before her Honour and, in addition, were considered by her as part of the evidence.
Further, and importantly, the bank statements are, in any event, irrelevant to any argument sought to be made by the husband.
As best as we could understand it, the oral argument by the husband suggests their relevance as establishing the expenditure of the $122,000 within a short timeframe; the assertion that those sums were spent at a time when the parties had separated and the wife was in a relationship with Mr C; and, that the sums were in fact spent.
The first and third of those matters were not in issue at trial and are not in issue on this appeal; the wife admits that she had spent the total sum and each of the individual sums and her Honour so found. The wife admitted that those sums were spent on and between the dates contended by the husband. The alleged relationship with Mr C at the time is not relevant to her Honour’s determination nor before us.
The application (which is, in effect, to adduce further evidence) is refused (CDJ v VAJ (1998) 197 CLR 172).
Leave to Appeal
The husband’s Amended Notice of Appeal asserts the necessity for leave to appeal as follows:
1.No starting point of separation, each person to retain ownership of their legal property.
2.No detailed or complete statement of facts were identified for there strengths and weaknesses of the case, it is critical that a full and complete rigorous history of the facts be taken so any legal opinion can be expresses on the proper facts in this case.
3.I have never had a joint bank account with [the wife] or access to any of her accounts.
4.I have never claimed a tax for [the wife].
5.I have never lived with [the wife] as husband and wife, the marriage was for name sake only (for the children) there has been no marital relationship.
6.I have never owned land with [the wife]. I owned a house on her land and we settled that by way of swap. House on her land [in Queensland], and for me to retain title for [a property in Victoria], but the bond in my name was not mentioned, so that was what I thought we were going to court for a $22,000 bond.
Whatever be the particular characteristics of the parties’ union, it is uncontentious that the parties were married as the husband’s own affidavit deposes. Orders were made pursuant to s 79 of the Act. Leave to appeal is not required.
The Substance of the Appeal
Given the terms of the husband’s grounds, his lack of education and his self-represented status, a number of opportunities were given to him to reframe his challenges so as to embrace the totality of the assertions as to error.
The husband did not refer to any matter that might be described as procedural fairness emanating from cross-examination (or otherwise) save as is outlined earlier in these reasons. No error is demonstrated.
Otherwise, the totality of the arguments made by the husband comes down, as he readily conceded, to the confluence of three broad propositions alluded to earlier in these reasons. The husband argues that the expenditure of a large sum of money ($122,000) over an approximate four-week period in the aftermath of separation and when the wife was in a new relationship leads to the only reasonable conclusion being that the wife was wanton or reckless in her expenditure or sought through her unilateral actions to diminish the property available for distribution (see, as respective examples, Kowaliw and Kowaliw (1981) FLC 91-092; Townsend and Townsend (1995) FLC 92-569). Specific findings were made by her Honour as to the manner in which the wife applied the $122,000 (which she readily admitted at [40]-[44]). Her Honour’s process of reasoning is clear and her reasons are adequate. Her Honour’s findings were open to her on the wife’s evidence. On those findings it was within the proper exercise of her Honour’s discretion to refuse the husband’s claim to notionally add back $122,000 or any part of that total.
Otherwise, the husband’s arguments assert, in effect, that her Honour attached too much weight to credit findings adverse to the husband, and specifically to his demeanour as a means of informing those findings.
We reject that contention. Clear findings of credit adverse to the husband were based on a number of cogent considerations (at [21]-[32]). Those findings can be seen, in part, to further inform her Honour’s ultimate finding that the sum contended for by the husband would not be added back.
Finally, before us, but apparently not before her Honour, the husband sought to suggest that the trial Judge had double-counted withdrawals from the Westpac account attributed to the Victorian property. It is only in exceptional circumstances that a party will be permitted to raise an issue on appeal which was not raised at trial. In this case, there are no exceptional circumstances that would permit the husband to agitate this issue before us (Metwally v University of Wollongong (No 2) (1985) 60 ALR 68).
Conclusion
No error is demonstrated by the husband. The findings made by her Honour were well open to her.
The appeal will be dismissed.
Each of the parties was self-represented. The wife made no claim for any expenses associated with the appeal and there will be no order as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 June 2014.
Associate:
Date: 6 June 2014
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