Massalski & Riley

Case [2021] FamCAFC 116

FAMILY COURT OF AUSTRALIA

Massalski & Riley [2021] FamCAFC 116

Appeal from: Massalski & Riley [2019] FamCA 1013
Appeal number(s): EAA of 14 of 2020
File number(s): SYC 496 of 2015
Judgment of: RYAN, ALDRIDGE & WATTS JJ
Date of judgment: 13 July 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appellant seeks re-transfer of part of proceedings to another court – De facto financial cause – Appeal against property settlement order under s 90SM of the Family Law Act 1975 (Cth) – Appeal against order to dismiss proceedings transferred to Family Court from the Supreme Court of Victoria – Contributions – Finding that appellant did not have equitable interest in respondent’s property upheld – Credibility – Applications to adduce further evidence allowed in part – Appeal dismissed – Orders made for written submissions on costs in appeal.
Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4(1), 31(1), 39A(5), 90RC, 90RD, 90SF, 90SL, 90SM, 90ST, 93A(2)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ss 5(1), 13

Family Law Rules 2004 (Cth) r 4.06
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6
Division: Appeal Division
Number of paragraphs: 117
Date of hearing: 20 October 2020 & 6 May 2021
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Coleman SC
Solicitor for the Respondent: Russell C Byrnes Solicitor

ORDERS

EAA of 14 of 2020
SYC 496 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS MASSALSKI

Appellant
AND:

MR RILEY

Respondent

ORDER MADE BY:

RYAN, ALDRIDGE & WATTS JJ

DATE OF ORDER:

13 JULY 2021

THE COURT ORDERS THAT:

1.The Applications in an Appeal to adduce further evidence filed on 16 July 2020 and 26 April 2021 be allowed in part.

2.Other than provided for in Order 1 (above), the Applications in an Appeal filed on 16 July 2020, 12 October 2020 and 26 April 2021 be dismissed.

3.The appeal be dismissed.

4.In the event that a party objects to the question of the costs of the appeal being determined without a further oral hearing, written notice to this effect…

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AGLC
Massalski & Riley [2021] FamCAFC 116
Case
[2021] FamCAFC 116
Decision Date

CaseChat Overview and Summary

In Massalski & Riley, the appellant challenged a property settlement order made by the Family Court of Australia. The appeal centred on the division of property between the parties, specifically regarding the valuation of certain assets and the contributions made by each party to the acquisition and maintenance of those assets. The appellant argued that the primary judge erred in not finding that she had an equitable interest in certain properties, and she sought to introduce further evidence to support her claims. The court was required to decide whether the appeal should be allowed, whether the additional evidence should be admitted, and if the orders made by the primary judge should be upheld.

The Family Court of Australia, in dismissing the appeal, found that the primary judge's assessment of the evidence and the resulting property settlement order were correct. The court emphasised the importance of reliable and verifiable evidence in determining property settlements and noted that the appellant's evidence was often non-responsive, inconsistent, and lacked independent documentation. The court held that the primary judge was justified in finding the appellant and another party's evidence to be unreliable and in preferring the husband's evidence where conflicts arose. The court also found that the proposed additional evidence did not meet the threshold for admission under section 93A(2) of the Family Law Act 1975 (Cth), as it did not demonstrate that the order under appeal was erroneous.

The court dismissed the appeal and denied the applications to adduce further evidence, except as specified in Order 1. The court ordered that written submissions on the costs of the appeal be provided if a party objected to the costs being determined without a further oral hearing. The form of the order was subject to entry in the court's records.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Applications in an Appeal to adduce further evidence filed on 16 July 2020 and 26 April 2021 be allowed in part.

2. Other than provided for in Order 1 (above), the Applications in an Appeal filed on 16 July 2020, 12 October 2020 and 26 April 2021 be dismissed.

3. The appeal be dismissed.

4. In the event that a party objects to the question of the costs of the appeal being determined without a further oral hearing, written notice to this effect is to be given to the Appeal Registrar at …@familycourt.gov.au and the other party within seven (7) days.

5. A party who seeks costs in the appeal in addition to those already sought shall:

(a) file and serve written submissions in support of that application of no more than ten (10) pages (plus details of the amount sought), within fourteen (14) days; and

(b) if the order for costs is opposed, the party opposing shall file and serve written submissions of no more than ten (10) pages within fourteen (14) days of service of the submissions referred to in the order above; and

(c) the party seeking costs shall file and serve any submissions in reply of no more than five (5) pages within seven (7) days of service.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For clarity, the balance of the documents the wife sought to have admitted as further evidence in the appeal have not been admitted. The power to admit further evidence is constrained and as governed by s 93A(2) of the Act. In CDJ v VAJ (1998) 197 CLR 172 at 201, the plurality explained that the principle purpose of this provision is to admit further evidence which, if accepted, would demonstrate that the order under appeal is erroneous. This is the purpose of the wife’s application for its admission. The proposed evidence does not do so and its admission would impermissibly blur the distinction between the exercise of this Court’s original and appellate jurisdiction. Thus, other than as already provided, the application to adduce further evidence in the appeal will be dismissed.The reasons for judgment Given the issues raised in the appeal, including the challenge to the adequacy of the trial reasons, it is appropriate to set out their key components. The primary judge made damning findings about the integrity of the wife’s and Mr K’s evidence. Having regard to the trial transcript, it is easy to understand why these go unchallenged in the appeal. The primary judge was satisfied that the wife deliberately failed to fulfil her obligation of disclosure [89] which meant that it was not possible to determine her assets and liabilities [90]. Furthermore, the wife had paid a substantial amount to Mr K and she failed to disclose investments held jointly with him [90]. As the findings at [91]–[98] and [104]–[109] record, her non-disclosure was material and not an isolated occurrence. For example, the wife failed to produce evidence of her income earned as an employee of the New South Wales Government and had not completed any tax returns since 2002 [105]. She failed to disclose income received from renting out a unit at Suburb G and had not declared, for taxation purposes, income she received from a business [106]. Documents provided by the wife were misleading [109] and her evidence was variously non responsive and caused the primary judge to conclude she was “an unimpressive witness” [103]. The primary judge noticed obvious inconsistencies in the evidence given by Mr K and his failure to produce documents in relation to significant transactions [113]. The husband on the other hand, was a credible witness and the submission by the wife that the primary judge would find the husband had acted dishonestly and attempted to mislead the Court was rejected [130]. Thus, wherever there was a conflict in the evidence of the wife and the husband or Mr K and the husband, absent evidence supported by independent documentation, the primary judge accepted the evidence given by the husband. Unsurprisingly, various tables and schedules of payments that the wife provided, including in her trial affidavits, were not regarded as independent. Another consequence of the lack of reliable evidence given by the wife and Mr K (which is unaffected by the challenge to the finding as to the husband’s credibility), is that the primary judge determined:99.…that it would be unsafe to consider making an adjustment of any property of the parties other than where there is a reasonable degree of certainty regarding the value of that property and the contributions of the parties to that property. The property that I identify as being in that category, are the following;a) [the F Street property];b) [the Suburb A property];c) the property of the late Mr P Riley at the Suburb J property;d) the property that [the husband] currently resides in with his present wife at D Street Suburb E (“the Suburb E property”).100.In that respect, I have not included in the assessment, the proceeds of the sale that [the wife] received from selling her Unit in the W Street Complex at Suburb G. This is because I am not satisfied that [the wife] has acted appropriately in deducting monies that she has from the proceeds of sale including in transferring substantial sums of money to Mr K. The fact that I have not included that property has been a factor relevant to the exercise of my discretion in determining that it would not be appropriate to make an adjustment in respect to the proceeds of sale received by [the husband] in respect to the Suburb J property. As a related matter, I have not made an adjustment in respect to the Suburb E property which [the husband] purchased with his current wife from the proceeds of the sale of the Suburb J property.

Ratio Decidendi

Legal Principle Established

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