Masri & Dooley
[2023] FedCFamC1A 63
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Masri & Dooley [2023] FedCFamC1A 63
Appeal from: Masri & Dooley (No 3) [2022] FedCFamC2F 1711 Appeal number(s): NAA 290 of 2022 File number(s): BRC 2410 of 2018 Judgment of: AUSTIN J Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant complained the limitation period for property settlement orders had expired – Where an order was made granting the parties leave to proceed out of time – Where the appellant could not establish his denial of procedural fairness – Where the appellant did not challenge the expert valuation evidence at final hearing – Where the appeal lacks merit – Application in an Appeal – Further evidence – Where the appellant sought to adduce further evidence addressing the value of property – Where the evidence does not reveal error by the primary judge – Application dismissed – Appeal dismissed – Self-represented parties – No question of costs. Legislation: Evidence Act 1995 (Cth
Family Law Act 1975 (Cth) Pt VIIAB and VII, s 44)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Eden & Eden [2022] FedCFamC1A 178
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs: 43 Date of hearing: 8 May 2023 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 290 of 2022
BRC 2410 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MASRI
Appellant
AND: MS DOOLEY
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
8 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 20 March 2023 is dismissed.
2.The appeal 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 a pseudonym Masri & Dooley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By an Amended Notice of Appeal filed on 20 March 2023, the appellant appeals from property settlement orders made between the parties under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 13 December 2022.
The appeal should be dismissed for the reasons which follow.
Background
Proceedings were first commenced by the appellant in March 2018. At that time, he sought only parenting orders under Pt VII of the Act.
The respondent filed her Response in April 2018, broadening the ambit of the dispute by also seeking property settlement relief under Pt VIIIAB of the Act.
The appellant filed a Reply in June 2018, joining issue in the financial dispute.
The parties applied for property settlement orders to be made with their consent in August 2018, but the primary judge found the application was not granted because it was not shown the trustee of a superannuation fund had been afforded procedural fairness and the issue of the application being brought out of time had not been addressed (at [5]–[7]). The latter issue was significant because the parties were found to have only been in a de facto relationship between 2006 and 2015 (at [7] and [17]), though leave was subsequently granted to bring the competing applications of property settlement out of time (at [8]).
The parenting dispute was resolved by orders made in June 2020 (at [3]), but the financial dispute required judicial determination. The trial was initially listed for hearing in July 2022, but was vacated on that date and the proceedings were adjourned to September 2022 for further directions. The trial was then re-listed in November 2022, at which time neither party was legally represented, each elected not to cross-examine the other or any other witness, and both invited the primary judge to determine the proceedings on the papers in chambers (at [15]).
The primary judge found the parties’ contributions were equal (at [46]), but that a 10 per cent adjustment in the respondent’s favour was warranted on account of her principal responsibility for the supervision, care and financial support of the parties’ child, resulting in an overall 60/40 division of assets in the respondent’s favour (at [47]–[52]).
The parties’ net assets and superannuation were found to be valued at $495,079 (at [41] and [43]), subject to which finding it was calculated that the appellant must pay the respondent $76,199 in order that she retain assets and superannuation worth 60 per cent of the net value of the property (at [56] and [59]).
Integral to those calculations was a finding by the primary judge that the encumbered parcel of real property owned by the wife (“the A property”) was valued at $280,000 (at [41]), which finding was based on the unchallenged evidence of a registered real estate valuer (at [42a]). The evidence and the finding on that particular issue are central to this appeal.
The appellant was also ordered to pay the respondent an extra $11,004.32, which is the amount by which he short-paid money to her, due under interim orders made in October 2020 (at [23]–[27] and [60]–[61]).
The appealed orders gave the appellant 60 days within which to raise finance to make the total payment of $87,203.32 to the respondent, in default of which his encumbered parcel of real property (“the B property”) would have to be sold and the net sale proceeds used to satisfy the orders (at [62]–[64]).
The appealed orders were stayed on 27 March 2023, pending the outcome of the appeal.
The Appeal
The appeal comprises five separate grounds.
Regrettably, neither party was legally represented, so some allowance must be made for their honest but inexperienced efforts to prosecute and defend the appeal. The grounds of appeal are haplessly drawn and the parties’ Summaries of Argument are largely irrelevant. To complicate matters, the appellant re-numbered the grounds of appeal in his Summary of Argument. For the purpose of these reasons, the appeal grounds are numbered to correlate with the grounds as they appear in the Amended Notice of Appeal filed on 20 March 2023.
It is difficult to discern the meaning of Ground 5, but it appears to be an admixture of complaint about the lack of jurisdiction and the denial of procedural unfairness. It will be addressed first.
Grounds 1, 3 and 4 all deal with the dispute over the value ascribed by the primary judge to the A property and will be addressed collectively. The appellant’s application to adduce further evidence in the appeal, supposedly in support of these grounds, will be considered in conjunction with the grounds.
Ground 2 appears to be a complaint about the manifest unreasonableness of the judgment.
Ground 5
Ground 5 is pleaded as follows:
Unfair continual of excruciating court cases outside of 2 year period of relationship ending despite no property settlement application was made by either of the parties.
(As per the original)
The written submissions made by the appellant in support of this ground were as follows:
The initial application and the amended application evidences had only been for parental orders. The application for property settlement has never been filed or initiated. The evidence was not such as to demonstrate anything to do with property settlement. It is only for parenting order. The judge should have, therefore, excluded the property settlement for all orders. Property settlement did not start until after 2 years of relationship ending and there was no sought the leave of the court to proceed out of time pursuant to section 44(6) of the Family Law Act 1975 applied by either parties. …
(As per the original)
It appears to be a complaint that the proceeding under Pt VIIIAB of the Act between the parties was not initiated until after the limitation period had expired and so the property settlement orders are null. The proposition is rejected. The primary judge found the parties were in a de facto relationship until 2015 and, because the property settlement cause was instituted more than two years afterwards in 2018, an order was made granting leave for the cause to be brought out of time (at [7]–[8]).
The order made under s 44(6) of the Act was made in these terms on 6 August 2021:
2.That leave is granted for the parties to proceed out of time with the property application for a de facto property division pursuant to section 44(6) Family Law Act 1975.
Consequently, jurisdiction existed to entertain the property settlement dispute (Eden & Eden [2022] FedCFamC1A 178 at [8]–[10] and [14]–[29]). No submission was made to explain how the appellant was denied procedural fairness by the “excruciating” duration of the litigation in such circumstances and so this ground fails.
Grounds 1, 3 and 4
Grounds 1, 3 and 4 collectively complain about the state of the expert valuation evidence concerning the A property.
It is asserted the expert evidence was improperly admitted (Ground 3) and was unfair (Ground 4), meaning the state of the evidence as to the value of the A property was incomplete (Ground 1). However, the submissions made in support of these grounds amount to no more than the appellant’s disagreement with the value of $280,000 ascribed to the A property by the primary judge. He considers the property is more valuable.
By an Application in an Appeal filed on 20 March 2023, the appellant sought permission to adduce his affidavit filed on 20 March 2023 as further evidence in the appeal. In essence, the appellant wants to adduce further evidence addressing the value of the A property, such evidence comprising:
(a)a “curbside market appraisal” of the A property, provided to him by a real estate agent by email at 12.42 pm on 13 February 2023;
(b)an “online appraisal” of the A property, provided to him by another real estate agent by email at 10.06 am on 14 March 2023; and
(c)an internet search result from realestate.com as at 28 November 2022 in relation to the A property.
The valuation of the A property was clearly in issue at the time of trial, as is evident from this observation by the primary judge in the reasons for judgment:
12.Likewise [the appellant] has unrealistic expectations of what the real property occupied by [the respondent] is currently worth when the court has a valuation which shows that the market value is considerably less than the husband’s estimate.
In evidence before the primary judge was expert opinion evidence, contained within a report furnished by a registered valuer, of the A property being worth $280,000. The expert opinion evidence was supported by comparable recent sales evidence. There is no apparent basis at all upon which it can be correctly asserted that the evidence was inadmissible pursuant to the provisions of the Evidence Act 1995 (Cth), so Ground 3 cannot be maintained.
The valuer was the respondent’s adversarial expert witness, as permitted by procedural orders made by the primary judge on 20 July 2022 and 5 September 2022. Similarly, the appellant was directed to obtain his own adversarial expert evidence of the value of the B property. Regrettably, no orders were made for the appointment of a single expert witness in either instance.
At the hearing in November 2022, the appellant alerted the primary judge to his disagreement with the respondent’s expert valuation evidence, as this excerpt of the transcript reveals:
[THE HUSBAND]: … I don’t think this value is right.
HER HONOUR: Well, did you get – did you obtain another valuation?
[THE HUSBAND]: No, I just got the paper now.
HER HONOUR: Yes. Well – so you’re not a valuer, are you?
[THE HUSBAND]: No, I’m not a valuer, but, your Honour
HER HONOUR: No. So you say to me, “I don’t think this valuation is right.” Well, what gives you the right to say that?
[THE HUSBAND]: So first of all, there’s a sign that and then the price is not right.
HER HONOUR: What do you mean the price isn’t right?
[THE HUSBAND]: Like, the value says $280,000.
HER HONOUR: Yes.
[THE HUSBAND]: I don’t think it’s that much.
HER HONOUR: Well, of course it is that much. This is a valuer who has put a valuation on the property.
[THE WIFE]: I just got it at 9 o’clock.
HER HONOUR: Of course it’s right, because the reality is I don’t have another valuation. So this is the document, which I will mark as exhibit G. And that is the valuation I will be using for the purposes of this matter.
[THE HUSBAND]: Okay.
HER HONOUR: You’re not a valuer, so you can’t just say to me, “I don’t think it’s right.” And me go, “Okay. What do you think it’s worth? Sure. I will take whatever value you tell me.”
[THE HUSBAND]: Yes, I think it should be, like, at least 450/500. That’s what I think. …
(Transcript 1 November 2022, p.42 line 15 to p.43 line 11)
Evidently, the expert evidence was only served by the respondent upon the appellant shortly before the hearing began, though he had the evidence long enough to realise he disputed it. Nevertheless, he decided not to challenge the valuer in cross-examination about the reliability of his expert evidence, nor did he seek permission to bring expert evidence of his own from an alternate adversarial valuer.
In the appeal, the appellant neither gave evidence nor made submissions about why he chose to run his case by abstaining from any challenge to the respondent’s expert evidence and by not seeking permission to bring any of his own. He might have been deterred from doing so by the strident views expressed by the primary judge about how the respondent’s uncontested expert evidence would determine the disputed value of the A property, which were perhaps too forcefully imparted to two unrepresented litigants. He might also have been deterred by knowing that any challenge by him to the respondent’s expert valuation evidence would certainly have entailed another adjournment of the trial and hence more delay. Regardless, he decided how his case would be run. He chose not to seek any adjournment of the trial. He elected, even if reluctantly, to submit to the cause being decided by acceptance of the existing expert evidence about the value of the A property. The choices the appellant then made now hamper his conduct of the appeal.
Had the appellant been legally represented, he would have been bound by the way in which the trial was conducted by his lawyer, so he cannot now derive any advantage from having been without one. The lack of legal representation is a misfortune, not a privilege (Gallo v Dawson (1990) 93 ALR 479 at 481). He is not relieved of responsibility for his forensic decisions.
The appellant’s complaints in the appeal of the valuation evidence at trial being unfair and incomplete (Grounds 1 and 4) are simply statements of his belief that the available expert valuation evidence ought not have been accepted by the primary judge as being probative. But the appellant’s failure to adduce alternate evidence at the trial, which could easily have then been obtained, stands in the way of his application to adduce further evidence on the issue in the appeal (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]). That is especially so when the proposed further evidence is controversial and the informal “appraisals” he has obtained are of doubtful admissibility and would, in any event, lack the probative value enjoyed by the uncontested expert opinion evidence (CDJ v VAJ at [114] and [136]-[137]).
Contrary to the appellant’s belief, admission of the further evidence in the appeal would not, of itself, settle this belated contest over the value attributed to the A property. Unless the appellant revises his former forensic decision and now seeks to challenge the valuer over the reliability of his opinion evidence in cross-examination in the appeal, his countervailing further evidence would not carry such superior probative value as to outweigh the unchallenged existing expert evidence. Furthermore, to ensure procedural fairness to the respondent, the appellant would have to make available for cross-examination the two real estate agents upon whose appraisals he now relies. Yet there is no evidence either real estate agent is aware his appraisal was being procured for forensic purposes and no indication at all that either would willing submit to cross-examination.
The appeal is not an opportunity for the appellant to make a case he chose not to make at the trial (Hsiao v Fazarri (2020) 270 CLR 588 at [53]). The application to adduce further evidence is refused and Grounds 1 and 4 also fail.
Ground 2
Ground 2 is pleaded in this way:
Unfair final order made by Judge [name].
The ground appears to be a complaint that the overall result of the property settlement proceeding was manifestly unfair, but that is not the tenor of the submissions made in support of it, which again relate to the value of the A property. In support of this ground the appellant submitted:
During her summing up, Judge [name] disregarded the appellants attempt to point out that the valuation of the A property was incorrect. She missed the vital portion of the evidence for this property settlement and miscalculated the final settlement amount of relationship property.
Contrary to the submission, there was no other “vital portion of the evidence” for the primary judge to “miss”. The only expert valuation evidence in respect of the A property was that obtained by the respondent, which was not challenged by the appellant. The expression of his dissatisfaction with such evidence during exchanges with the primary judge is not an effective impeachment of the evidence.
One is left to wonder whether the appellant really is genuinely disaffected by the value attributed by the primary judge to the A property. Based upon acceptance of the expert valuation evidence, the primary judge ordered the appellant to pay the respondent cash of $87,203.32 in order that he could retain the B property. In his Amended Notice of Appeal, the appellant indicates that he seeks the re-exercise of discretion if the appeal succeeds, but only by his provision of more time within which to pay that sum to the respondent. He does not seek an order that varies the sum payable by him to the respondent on account of the valuation of the A property allegedly being too low.
The appellant explained in oral submissions that the re-exercise of discretion in that way was only his fall-back position, but no ground and no submission revealed any error made by the primary judge in fixing the time for the appellant’s payment of the respondent. The appellant must have realised that his appeal might fail and, by reason of the appealed orders having been stayed, he has now already had nearly five months within which to marshal his financial affairs so as to comply with the appealed orders.
Disposition
The appeal is dismissed.
The parties were not legally represented so no question of costs arises.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 May 2023
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