McFee & McFee

[2025] FedCFamC1A 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

McFee & McFee [2025] FedCFamC1A 23

Appeal from:

McFee & McFee [2024] FedCFamC2F 1483

Appeal number:

NAA 258 of 2024

File number:

BRC 10075 of 2022

Judgment of:

AUSTIN J

Date of judgment:

20 February 2025

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property orders – Where his complaints of judicial bias are rejected – Alleged insufficient judicial intervention – Where the husband could not articulate what more the primary judge could or should have done to ensure he was accorded procedural fairness – Legal error – Where the primary judge did not fail to account for the financial and non-financial contributions of the husband – Appeal dismissed – Costs ordered in a fixed sum in the wife’s favour.

Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 75, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 11.1, rr 12.13, 13.23

Cases cited:

(Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Number of paragraphs:

46

Date of hearing:

20 February 2025

Place:

Brisbane

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Dodd

Solicitor for the Respondent:

Hunter Family Law

ORDERS

NAA 258 of 2024
BRC 10075 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MCFEE

Appellant

AND:

MS MCFEE

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	20 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant shall pay the respondent’s party/party costs of the appeal, fixed in the sum of $12,502.81.

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 the pseudonym McFee & McFee has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of the husband’s appeal from property settlement orders made between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 12 September 2024.

   Background

2. The parties commenced cohabitation in about 2000, married in 2001, and separated at some point between December 2020 and March 2021 (at [30]). The parties have one adolescent child who moves freely between them (at [30] and [59]).

3. The wife commenced proceedings for financial relief under Pt VIII of the Act in June 2023.

4. By the time of trial in September 2024, there was a long history of the husband’s failure to comply with procedural orders made to ensure his readiness for trial (at [3]–[8]), but he was permitted to rely upon two affidavits he filed otherwise than in accordance with anterior procedural orders (at [17]) and an historical financial statement which he failed to update as ordered (at [59]). The wife also failed to comply with some procedural directions (at [12]).

5. Several months before the trial, an order was made under s 102NA of the Act precluding the parties from cross-examining one another in person and, despite advisory warnings to the husband to procure legal representation with an available grant of legal aid, he elected to appear at the trial self-represented (at [7]–[10] and [16]). That meant he could not cross-examine the wife, even though he maintained allegations of her failure to give proper financial disclosure.

6. The parties’ principal asset was the former matrimonial home, which each party acknowledged had to be sold (at [13] and [32]). Save in respect of the controversy over the wife’s interest in some Country B land, the identity and value of other chattels, superannuation and debts were not the subject of any real dispute (at [33]–[36], [38]–[39] and [42]–[47]). 

7. The wife alleged her interest in the Country B land to be worth only $461.14, but the husband alleged its value to be around $1,100,000 (at [37]). Despite such incongruent views, no expert valuation evidence was adduced at trial. The husband did nothing at all about procuring expert valuation evidence. The wife gave evidence of having tried unsuccessfully to obtain expert evidence and explaining how, in the absence of such expert evidence, she arrived at the valuation of her interest by relying upon Country B government valuation certificates. The wife gave this unchallenged evidence in an affidavit she filed many months in advance of the trial:

   21.As indicated in the balance sheet, I have interest in 8 parcels of land in [Country B] (collectively referred to as “the [Country B] land”).

   22.My interest in the [Country B] land is a part interest only. The other interest holders are other members of my family. The [Country B] land was originally acquired by my late father as a ¼ interest holder together with his three brothers who each held ¼ interests in the land. I have ultimately inherited ¼ of my father’s original ¼ interest in the land (i.e. a 1/16^th interest), with the exception that in relation to one of the parcels of land, my interest is slightly more than 1/16^th, being 4/53rds, for reasons I do not know. I discuss the inheritance in more detail at paragraphs 67 to 71 of this affidavit in the context of contributions I made to my relationship with [the husband].

   23.The [Country B] land is currently comprised of undeveloped vacant lots. The [Country B] land is located in [City C] within [Region D].

   24.I have explored options for ascertaining the value of my part interest in the [Country B] land. I travelled to [Country B] in [mid-]2022 and I made inquiries with real estate agents about this. It came to my attention as a result of my inquiries that it was possible for me to obtain certificates as to the market value of my interest in the land from an Assessor of the Financial Services Department of the Mayorship of [City C], the government authority ([Country B] Authority).

   25.I applied to the [Country B] Authority and I subsequently obtained from them a bundle of certificates pertaining to my interest in each of the 8 parcels of the [Country B] land ([Country B] value certificates). The certificates refer to the value of my interest only (as distinct from the interest of the other interest holders). The certificates are written in the [Country B] language. The values in the certificates are expressed in [Country B currency].

   26.I have caused the [Country B] value certificates to be translated by an English-[Country B] translator who I have asked to make affidavit in this proceeding annexing the certificates together with translations of the certificates. A copy of those annexures is also included in the tender bundle and marked “TB-10”. At the time swearing this affidavit, the translator has not returned the sworn affidavit to me but I am making every effort to obtain it and I will file and serve it as soon as I am able to.

   27.The [Country B] value certificates are the best information I have been able to obtain in relation to the value of my interest in the [Country B] land.

   28.I have caused the following summary to be prepared that takes the market value expressed in each of the [Country B] value certificates and converts the [Country B currency] values to Australia dollar values as at 17 November 2023:

   [table removed]

   29.As discussed at paragraph 69 of this affidavit, I had originally inherited a larger portion of land in [Country B] when my father passed away in 2013, but I sold this when I was residing in [Country B] with [the husband] between 2015 and 2016 as discussed at paragraph 69 of this affidavit. There was a further sale of an inherited [Country B] property in December 2020 prior to separation, as discussed at paragraph 71 of this affidavit.

   (Wife’s Affidavit filed on 1 December 2023) (Emphasis altered)

8. The primary judge accepted the wife’s evidence and rejected the husband’s (at [37]).

9. Accordingly, by including the wife’s interest in the Country B land at the value of $461.14, the primary judge found the net value of the assets was $831,258.96, the combined value of their superannuation interests was $441,990.02, and the total overall net value of the property pool was $1,273,248.98 (at [48]).

10. The parties’ overall contributions to the property were found to be equal (at [56]–[57]) and the primary judge determined a small adjustment of 2.5 per cent in the wife’s favour was warranted by factors considered under s 75(2) of the Act (at [59]).

11. The appealed orders essentially provided for the sale of the former matrimonial home and the division of its net sale proceeds to ensure an overall division of property and superannuation between the parties in shares of 52.5 per cent to the wife and 47.5 per cent to the husband, allowing for the value of the other property and debts retained by the parties.

12. The overall result fell within the very broad range created by the parties’ divergent proposals. The wife sought 57.5 per cent of the property pool, whereas the husband contended the wife should only receive 15 per cent of the property pool.

13. The husband appealed from the property adjustment orders on 8 October 2024.

    The appeal

14. The grounds of appeal are pleaded within the Amended Notice of Appeal filed on 10 January 2025. Regrettably, in breach of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the content of the husband’s Amended Summary of Argument did not correspond with the pleaded grounds of appeal and was instead a generic narrative of his discontent.

15. Rather than addressing the grounds, it is more useful to address the assorted complaints raised by the husband in the Amended Notice of Appeal and his Amended Summary of Argument.

16. Before doing so, it is desirable to address a complaint repeatedly made by the husband during the appeal, which grievance seems to underpin his sense of injustice. He alleged the wife failed to give proper financial disclosure in advance of the trial, but to answer the complaint it is enough to notice these things: he chose not to retain a lawyer to cross-examine the wife and put to her the allegation of financial non-disclosure for her response, as fairness required; no finding of the wife’s non-disclosure was made by the primary judge; and no ground of appeal reasonably encapsulates any complaint about the wife’s alleged non-disclosure. It remains an unproven assertion, despite the sincerity of his belief.

    Judicial bias

17. The allegation of judicial bias arises under both Grounds 2 and 5, but neither the grounds nor the Amended Summary of Argument attempts to differentiate between actual and apprehended bias, which concepts are separate and distinct, not interchangeable (Newett & Newett (No 2) (2021) FLC 94-051 at [54] and [75]).

18. The husband alleged the primary judge’s bias was evident from her Honour:

    (a)failing to give adequate consideration to the husband’s evidence and arguments;

    (b)favouring the wife’s submissions;

    (c)ignoring the husband’s financial contributions;

    (d)giving the husband a disproportionately smaller share of the property than his contributions deserved;

    (e)considering ordering the husband to pay the wife’s legal costs; and

    (f)deferring the question of costs until the outcome of the appeal is known.

19. As can be seen, the first four complaints all concern dissatisfaction with the result of the litigation, not the actual or perceived biased conduct of the litigation by the primary judge. The husband’s mere dissatisfaction with the result, no matter how voluble and genuine, is never evidence of judicial bias (Newett & Newett (No.2) at [59]–[80]).

20. The last two complaints are fundamentally inconsistent because the primary judge made no costs order at all on 12 September 2024. Rule 12.13(3)(b) of the Rules required any application for costs to be filed within 28 days of the substantive judgment and the primary judge made this order:

    24.Upon the filing of any application for costs, the parties are at liberty to email the Chambers of [the primary judge] to advise that an application has been made.

21. The Court record reveals the wife filed a costs application on 11 October 2024, which has not yet been determined by the primary judge. Although the husband rejects the proposition, the delayed determination of the costs application is apt to actually benefit him and should not be grounds for his suspicion of partiality because, if a costs order was made against him upon the assumption the financial cause was correctly decided and this appeal subsequently succeeded due to appealable error, he would have to file another appeal to vitiate the costs order.

22. The complaints of bias are rejected.

    Denial of procedural fairness

23. Ground 1 is pleaded in these terms:

    Error in the Application of Legal Principles

    Her Honour failed to properly apply the principles of procedural fairness, resulting in substantial prejudice to the [husband’s] ability to present their case.

24. The complaint is articulated this way in the Amended Summary of Argument:

    1.        …

    c.Procedural Unfairness: The [husband], a self-represented litigant, faced significant procedural disadvantages that were exacerbated by Her Honour’s failure to adequately accommodate their unrepresented status. Judicial intervention to ensure a fair trial was insufficient, further entrenching inequities.

    (Emphasis altered)

25. Rather than this being a complaint of excessive judicial intervention, it is instead a complaint of insufficient judicial intervention during the hearing, but the husband failed to articulate what more the primary judge could or should have done to ensure fairness to him.

26. The husband elected to appear at the hearing without legal representation. The primary judge said this in the reasons:

    9.The husband came before me for trial yesterday unrepresented. Legal Aid have advised the Court the husband has not completed the forms sent to obtain legal representation through the cross-examinations scheme. The husband did not suggest otherwise.

27. Despite the husband’s breach of many past procedural orders (at [4]–[8]), he was permitted to rely upon two affidavits, one of them being filed just before trial (at [17]). The trial process was fully explained to him, he was able to tender exhibits, and he made final submissions (at [17]). The primary judge appears to have broadly complied with the guidelines established for the assistance given to self-represented litigants (Re F: Litigants in Person Guidelines (2001) FLC 93-072). There was no obvious denial of procedural fairness and the complaint of it is rejected.

    Legal error

28. Ground 3 is pleaded in this way:

    Error in Property Division

    Her Honour failed in the application of the principles governing the division of matrimonial property, failing to account for the [husband’s] substantial financial and non-financial contributions.

    (As per the original)

29. The only written submissions apparently made in support of this complaint of legal error within the Amended Summary of Argument was in these terms:

    1.        …

    a.        …

    i.        …

    ii.Ignoring the [husband’s] demonstrated financial contributions, including providing the entire deposit and for the family home, total income contribution and bearing significant financial burdens such as relocation, marriage, and vehicle costs.

    …

    2.        …       

    a.Ignores the [husband’s] greater financial contribution, including 100% of the home deposit, substantial income contributions, and the establishment of a business for the [wife’s] benefit.

30. The reasons for judgment reveal there was no failure to account for the husband’s financial and non-financial contributions. Her Honour addressed the parties’ initial financial contributions (at [49]), their financial and non-financial contributions during the relationship (at [50]), the wife’s inheritance (at [52]–[53]), and their post-separation contributions (at [54]–[55]). Taking all those considerations into account and giving them comparative weight, the parties’ contributions were assessed as being equal (at [56]–[57]).

31. The husband specifically alleged in his Amended Summary of Argument that the primary judge “ignored” his contribution of the deposit to buy the family home, his substantial income, and his establishment of a business for the wife’s benefit, but those allegations are false.

32. The primary judge referred to the money put towards “the mortgage of the parties’ first property” by the husband (at [49]), the paid employment of the husband during the relationship (at [50]), and the superiority of the husband’s income over the wife’s (at [50], [57] and [59]).

33. While no mention was made within the reasons of the circumstances in which a business was acquired, the husband deposed he purchased the business for the wife from income he earned. Having already been credited for his superior income in the assessment of contributions, the primary judge would have incorrectly double-counted his contributions by giving him additional credit for the purchase of the business with the income he earned. The husband deposed this in his affidavit sworn or affirmed on 5 September 2024:

    12.All financial statements even from the [wife] points out the [husband] provided 140% more income which allowed purchasing a business for the [wife] as she had zero means of providing income and was never a stay-at-home mother. The [husband] purchased a business solely tailed to the [wife’s] passions a [description of business] – around $300K. The [husband’s] income was the only income and this venture for the [wife] to have an income effectively blocked further savings from the [husband]. The business was sold 7 years later. The [wife] was never a stay-at-home mother or wife. The [wife] always wanted to be a career person she just was not successful for 85% of the relationship of contributing income.

34. This ground fails.

    Wife’s default

35. Ground 4 is pleaded in these terms:

    Failure to Address Breach of Orders

    Her Honour failed to appropriately address the [wife’s] breaches of court orders, which significantly delayed the resolution of the matter.

36. The husband failed to identify, either in the ground, in his Amended Summary of Argument, or in oral submissions two things: first, the orders which were allegedly breached by the wife; and secondly, how the primary judge “failed to appropriately address” the wife’s default.

37. It was not for her Honour to voluntarily or arbitrarily impose some form of sanction upon the wife for a default the husband could not articulate. Orders to remedy one party’s breaches of subsisting substantive or procedural orders are made in response to an application for such remedial relief by another party and the remedial response must be proportionate to the infraction.

38. If this complaint relates to the wife’s default complying with procedural orders made before the trial, the primary judge expressly referred to such default in the reasons (at [12]). Evidently, the husband’s procedural default was far more egregious by comparison (at [4]–[8]). The primary judge determined the trial could proceed without prejudice to the husband (at [14]). The husband did not make any application for the trial to be adjourned.

1. However, the husband’s complaint conceivably relates to the wife’s alleged default complying with the appealed orders, as he submitted this in his Amended Summary of Argument:

   2.        …

   b.The [wife] has breached the current court orders relating to the sale of property, which has caused unnecessary delays and financial strain on the [husband].

2. If the wife has defaulted in complying with the appealed orders and the husband wants to enforce the orders, then he is free to do so by taking remedial action under Pt 11.1 of the Rules, but it is unlikely he wants to do so when he is challenging the validity of the appealed orders by this appeal. In any event, one party’s default complying with final orders does not demonstrate the orders are beset by appealable error of the primary judge.

3. When confronted with these impediments, the husband abandoned this ground.

   First instance legal costs

4. In part, Ground 5 complains of the primary judge’s “consideration” of ordering the husband to pay the wife’s legal costs. As earlier indicated, no costs order was made. The wife has a costs application pending, but it is yet to be heard and determined, so no “consideration” has so far been given to it. Absent a costs order, there can be no complaint about costs.

   Disposition

5. The appeal is dismissed.

6. The wife sought her party/party costs of the appeal, which she should have in the fixed sum of $12,502.81, as claimed. The appeal was wholly unsuccessful (s 117(2A)(e)) and the husband’s financial circumstances do not preclude the costs order (s 117(2A)(a)).

7. Even if the husband is now unemployed, as he alleged, he has a demonstrated income-earning capacity, which the primary judge addressed in the reasons for judgment (at [59]). He will also have his share of the parties’ assets from which to meet the order.

8. Besides opposing any costs order, the husband also challenged the quantum of it but, when invited to identify the line items in the wife’s itemised costs schedule which were unreasonable, he was unable to do so. His bare refrain was that any legal costs she incurred were unreasonable because, unlike her, he had chosen not to retain any lawyers. His submission is rejected.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       20 February 2025