MCINTYRE & MCINTYRE - [2013] FamCAFC 119

FAMILY COURT OF AUSTRALIA

MCINTYRE & MCINTYRE

[2013] FamCAFC 119

FAMILY LAW ─ APPEAL ─ PROPERTY ─ Where the husband appealed against orders made by the Federal Magistrate in relation to the property of the wife and the husband ─ Whether the Federal Magistrate made an error when calculating the parties’ respective entitlements ─ Where the husband submitted that the Federal Magistrate was biased and unfair ─ Where the husband submitted that he suffered a substantial injustice ─ Not demonstrated that the Federal Magistrate failed to afford the husband sufficient assistance in running the case ─ Where it was not demonstrated that the Federal Magistrate acted on a wrong principle of law, had taken into account irrelevant considerations or that his decision in some was plainly wrong ─ Appeal dismissed.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172

Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

Mr McIntyre

RESPONDENT:

Ms McIntyre

FILE NUMBER:

AYC

293

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

14 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

16 July 2013 – heard in chambers

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 June 2012

LOWER COURT MNC:

[2012] FMCAfam 820

REPRESENTATION

FOR THE APPELLANT:

No appearance – appeal to be heard in chambers on written documentation

FOR THE RESPONDENT:

No appearance – appeal to be heard in chambers on written documentation

Orders

Appeal dismissed.
If the wife seeks an order for costs she is to file and serve a submission as to costs within 14 days of the date of this order.
On being served with the wife’s submissions as to costs, the husband have a further 7 days to file any submissions in response.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McIntyre & McIntyre 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 SYDNEY

Appeal Number: EA 95 of 2012
File Number: AYC 293 of 2010

Mr McIntyre

Appellant

And

Ms McIntyre

Respondent

REASONS FOR JUDGMENT

On 26 June 2012 Federal Magistrate Harman made orders in relation to the property of Ms McIntyre (“the wife”) and Mr McIntyre (“the husband”). The husband appeals against those orders. The wife seeks to maintain the Federal Magistrate’s orders.
By reason of a direction from the Chief Justice Pursuant to s94AAA of the Family Law Act, this appeal was to be heard by a single judge of the Appeals Division. When the matter was listed for hearing, both the husband and the wife’s solicitor applied to appear by telephone. That course was considered by me to entail certain difficulties and, after discussion with both the husband and the wife’s solicitor, it was agreed that I would consider the appeal in chambers on the documents already filed on the appeal. Neither party wished to make any further submissions. The appeal was thus considered in chambers.
The hearing before the Federal Magistrate commenced on 25 June 2012. When first instituted, the proceedings also included parenting issues. Those issues were resolved by consent of the parties on 25 June 2012 and the Federal Magistrate made orders accordingly.
The background to the dispute and some relevant history is gleaned from the Federal Magistrate’s reasons and will be repeated here to give context to the appeal.
The parties met in 1993 and began to live together shortly after meeting. At the time of their cohabitation, the husband had four children in his care and the wife, two children. The parties married in July 1995. In July 2003 a child of their relationship, A, was born. It was in respect of her that the parenting orders were made by consent and which provided for A to live with the wife and spend time with the husband.
The parties separated in April 2010.
In 1995 the parties purchased a 24 acre property in R in rural Victoria. That property became their marital home. In 2004 the property was subdivided to produce a 2 acre block with a home on it which was sold. It seems too that in 2006 the wife’s father died leaving a property at B to the wife and her two siblings. At the date of the hearing, the husband was living in the R property.
The Federal Magistrate ordered that the B property be sold and from the proceeds, after payments of certain specified debts, the balance remaining to be paid to the wife. As to the R property, the Federal Magistrate ordered that the husband pay $56,300 to the wife and to attend to payment of various specified debts after which the wife was ordered to transfer all her interest in the property to the husband. The orders made provision for the R property to be sold in default of the husband making the specified payment to the wife.

The Federal Magistrate’s reasons

His Honour at [10], after noting the progress of the proceedings through the Local Court, finally to hearing in the Federal Magistrates Court observed that the wife’s application was for the two parcels of land to be sold and the funds thereafter produced, after payment of specified debts, be divided equally between the parties. The husband proposed that the wife retained the B property together with the mortgage secured on it and he would retain R and the debts associated with that property.
The Federal Magistrate indicated that during the hearing, the husband produced a list of the parties’ debts and the wife was invited to indicate which of those were agreed as being joint debts. He said that her agreement represented about one half of the debts [20].
In relation to the R property the Federal Magistrate observed that while living there together, the parties had conducted several businesses including growing bulbs for resale and for a time the wife operated a business in a nearby town [27].
After referring to the subdivision of the R property in 2004 in which a separate 2 acre block was divided and sold, the Federal Magistrate said at [30]:
30. The parties were also at one as to the assistance which was provided to them, particularly in the provision of finance, which aided the purchase of the [R] property, such assistance being derived from Mr [McIntyre’s] family. Mr [McIntyre] has asserted in the case, and particularly in submissions, that the property had been purchased on trust for him. There are a number of difficulties with that assertion. That is not to suggest that what is put to the Court by Mr [McIntyre] is not capable of acceptance, but the difficulties which flow are at least two, being:
a)There is no direct evidence of a trust, and in any event, Mr [McIntyre] has suggested that the trust has since expired upon whatever terms it had originally been established; and
b)It would appear that the property has, at all time since it has been acquired been registered in the joint names of the parties.
As to the B property, the Federal Magistrate observed that on the death of the wife’s father, the property was left to her and two of her siblings. He found that although there was controversy as to the amount, it was accepted that the wife borrowed funds to buy out the interests of her siblings in that property which was thereafter registered in her name and that of the husband [31].
Turning to the business operated by the parties on the R property, the Federal Magistrate found at [35] that it ceased to operate shortly after separation leaving a number of debts associated with the business.
The Federal Magistrate said that there was a “substantial issue between the parties with respect to valuation of assets, and in particular, the two parcels of real estate” [21].
In dealing with the property of the parties and the valuation of it, the Federal Magistrate observed:
41. There is no evidence, by agreement or appropriate professional qualification, as to the value of the two parcels of real estate which comprise the majority property interests of these parties.
His Honour noted that the wife tendered market appraisals of the properties made by local agents. He further observed that the husband had written to the wife’s solicitors in which he estimated a value for each property. The Federal Magistrate then said:
44. No issue was taken as to the admissibility of that correspondence, whether by exclusion pursuant to Section 131 of the Evidence Act or otherwise. Accordingly it represents perhaps the best available evidence that the Court has and by way of admission against interests.
His Honour observed that the market appraisals suggested a value of $280,000 to $320,000 in relation to the R property and $90,000 to $110,000 in relation to B. He noted that in the letter to the wife’s solicitor, the husband asserted the value of R to be $280,000 and B at $95,000.
The Federal Magistrate, finding that he had “no evidence and no reliable basis on which a determination can be made” as to valuation, accepted the figures proposed by the husband as “admissions against interests” [46].
His Honour said:
47. An issue during Ms [McIntyre’s] cross examination, and raised by Mr [McIntyre], that due to difficulties with zoning or building permits and development applications, that the property at [R] potentially has a value dramatically less than identified by either Mr [McIntyre] or the market appraisals tendered in the wife’s case. It is asserted by Mr [McIntyre] that, if it is ultimately found that building approvals and zoning have not been appropriately addressed through council, the property at [R] may have a value as little as $40,000 to $60,000. It is to be remembered that it is a property of 22 acres, and, accordingly, that would represent a value of somewhere between $1,800 to $2,000 per acre for that property.
The Federal Magistrate observed that there was no other evidence suggesting that there were these potential difficulties, noting that documents tendered in the case relate to the subdivision of 2 acres and the sale of that block.
In any event, the Federal Magistrate said at [48] that he directed the husband to make enquiries of a valuer to resolve the issue. However, it was not able to be done. His Honour said:
49.... I must balance the absence of valuation evidence against both:
a)The approach which the Full Court has indicated is appropriate in such circumstances, being as a sale of assets to determine their value; and
b)Urgency that exists in the proceedings.
The Federal Magistrate identified at [50] the urgency as being that the mortgage on each property is in arrears and in relation to B enforcement proceedings were underway. He further referred to a letter from the lending body in relation to B to the effect that the lender was prepared to consider a “hardship” application by the wife noting that the court proceedings in the Federal Magistrates Court were listed for hearing [51].
His Honour noted at [55] that the husband wished to retain the R property and indicated that it was an opportunity he was prepared to allow the husband.
His Honour determined not to adjourn the hearing to enable the issue of any difficulties with the zoning or approvals on the property to be resolved. He observed at [57] that if the property’s value was affected as suggested by the husband, the parties would be in a net debt position and no property order could be made, thus nothing would be achieved by an adjournment.
The Federal Magistrate said:
58.To some extent, it is a leap of faith that the property has a positive value that will enable the distribution of funds between the parties at all, but it is a leap of faith which, in the circumstances, seems the only appropriate and available option as delay would do nothing but further increase the indebtedness of the parties as to legal fees, arrears of mortgage, and arrears of council and water rates, it being clear that they are substantial with respect to both properties.
The Federal Magistrate then proceeded to deal with the properties at the values asserted by the parties.
Turning to the debts of the parties and based on the wife’s acceptance of some of them, the Federal Magistrate listed the debts to be taken into account in determining the property issues of the parties.
In particular, the Federal Magistrate referred to a debt of $8,800 owed to Centrelink. He said that it appeared “to have arisen from a period which, on Ms [McIntyre’s] evidence, was prior to separation and when both parties were together and received whatever benefit was derived from those payments or overpayment” [66]. His Honour declined to apportion that debt solely to the husband.
The Federal Magistrate indicated at [69] that he would order the sale of the properties and the payment of certain debts from the proceeds.
As to the question of contributions, the Federal Magistrate noted the wife’s submission that her contribution should be assessed at 55 per cent in her favour based, according to his Honour, on “the introduction, in the latter part of the relationship, of funds and property by way of inheritance” [71].
The Federal Magistrate observed that the husband’s evidence was many years before he had found an object which was sold during the marriage with the funds being applied to the joint benefit of the parties. His Honour found that value to be $11,000. He said at [73] that this finding to some extent tempered any adjustment sought by the wife in relation to the inherited property.
As to the inherited property, the Federal Magistrate found at [74] that there was a contribution to it by both parties through the raising of funds to buy out the interests of the wife’s siblings. However, he added that the property itself brought a benefit to the parties through rental.
His Honour found at [75] that the contributions of the parties during the relationship had been equal.
Although the wife contended that the husband should bear the arrears of mortgage and other debts relevant to the R property, his Honour declined, accepting the husband’s evidence that he did his best to continue to pay the mortgage [79].
His Honour found then that the R property was encumbered by a mortgage of $162,000 and B by $67,000. This would result in $85,000 net being available for distribution between the parties.
The Federal Magistrate then said:
82.In relation to contribution, I am satisfied that I can and should accept that which is submitted by Counsel for the wife, that I should find Ms [McIntyre] contribution overall to be in the range of 55 per cent.
This adjustment was arrived at by reference to the wife’s care of the child of the parties for the two years since separation against a small amount of child support being paid by the husband of $10 per week. His Honour said, in relation to the child support:
83.... Whether that is reflective of Mr [McIntyre] capacity to provide or not, need not particularly trouble me at this time, although that would be relevant as regards a section 75(2) adjustment. However, the reality of a $10 per week contribution towards this child’s costs is that Ms [McIntyre] has, for a period in excess of two years, made a far greater contribution towards that child’s financial support. Accordingly, I propose to make a finding of contributions as urged to 55 per cent.
Turning to the assessment of s 75(2) contributions, the Federal Magistrate found at [88] that although the husband’s earning capacity was greater than that of the wife, it was not “the most significant issue”.
His Honour referred to the wife’s care of the parties’ child since separation and said at [89] “Accordingly, some weighting must be made in her favour in that regard.” He then said:
90. Clearly, the burden of financial support for [the child] is being met by Ms [McIntyre], and that, again, compounds together with the factor above as an adjustment in her favour.
Again, considering the question of child support, the Federal Magistrate said:
103. It is clear that the level of child support that is assessed (and that is not to suggest any irregularity in the assessment process or any lack of integrity in the information provided and upon which the assessment is based) is a modest and meagre sum. Accordingly, that has the consequence that some further adjustment can and should be made to compensate Ms [McIntyre] for the additional financial burden she will suffer.
His Honour then concluded:
105. I am satisfied, however, and accept the submission of Counsel for Ms [McIntyre], particularly having regard to the meagre pool available, which comprises something in the vicinity of $85,000 net, that an adjustment of 10 per cent, which represents a little over $8,000, is entirely appropriate.
His Honour concluded that the property of the parties should be adjusted as to 65 per cent in the wife’s favour.
In considering the effect of his orders, the Federal Magistrate observed that this division would provide the wife with about $55,000. As to the B property, his Honour calculated that on sale and after payment of the mortgage and other costs of sale and outstanding rates, an amount of $20,000 would be available for distribution to the parties ([110] and [111]).
From that figure, the Federal Magistrate determined at [112] that the parties would reimburse the costs of the single expert retained in the parenting proceedings, with the effect that there would be some $11,769 remaining. The Federal Magistrate proposed to order the whole of that sum be paid to the wife.
Turning then to the R property, the Federal Magistrate again calculated the net amount produced after payment of the mortgage, costs of sale and outstanding rates, to leave a net figure of $101,800. After further deduction of the debts found by the Federal Magistrate to be payable by both parties, a figure of $73,337 remained.

The appeal

The husband prepared the notice of appeal and the supporting submissions which regrettably do not squarely address the grounds of appeal but appear to raise further matters which I propose to treat as additional grounds of appeal. The respondent’s submissions address the grounds of appeal.
As I have earlier indicated both the husband and the wife were content for this matter to be considered in chambers without further oral argument and neither wished to amplify or add to the submissions already made. No point was taken by the wife’s solicitor about the form of the husband’s written submissions.

Ground 1. I am disputing order no 2. Federal Magistrate Harman in his summary also ordered Centrelink be paid the sum of $8,800 from the proceeds of the property. In his orders he removed the payment and transferred it to the [R] property.

Order 2 made by the Federal Magistrate is in the following terms:
(2)Upon completion of the sale, both parties are to do all acts and things, sign all documents and give all consents and authorities necessary to cause the net proceeds of sale to be disbursed as follows:
(a)In payment of all reasonable sale costs and agent commissions;
(b)Payment to [the mortgagee] of the balance required to discharge the secured mortgage encumbering the property;
(c)To the Legal Aid Commission in the sum of $8,180.89 being reimbursement of funds expended by them in obtaining a Part 15 report by Dr [L];
(d)Payment of all outstanding council and water rates and any related costs associated relating to their collection or prosecution;
(e)The balance then remaining to the wife.
The particular part of the order of which the husband complains relates to the payment of the debt to Centrelink from the proceeds of R.
The thrust of the argument seems to be that while the Federal Magistrate said that the parties would be jointly responsible for the re-payment of that debt to Centrelink, the orders when made required it to be repaid from the proceeds of the sale of R.

At [65] the Federal Magistrate set out the debts in relation to which he proposed to order the parties to have joint responsibility. To these debts, his Honour added both the debt to Dr L and to Centrelink. At [68] he said that; “The total of those debts, excluding Dr [L], is the sum of $28,463, and in due course and from the proceeds of sale of the property, an order will be made for the payment of all of those amounts prior to the receipt by the parties, or either of them, of funds from the sale of one or both properties.”
It seems then that the sum of $28,463 to which he referred included the repayment to Centrelink. In calculating the parties’ respective entitlements, the Federal Magistrate took into account the joint repayment of that figure but ordered it to be paid out of the proceeds of the R sale.
I do not understand the Federal Magistrate to have erred in this, it being consistent with his findings. This ground of appeal is not made out.

Ground 2. While Mrs [McIntyre] was on the stand being questioned by me F.M. Harman asked her to highlight the accounts I was questioning her about. He asked her to highlight the accounts she agreed with. He then proceeded to have this document returned to him. I was unable to further question Mrs [McIntyre] about what accounts were owed. I did not see the highlighted accounts and I was not given an opportunity to question her regarding this document. F.M. Harman based his decision on the high-lighted document, not on all the evidence/facts.

In his reasons, the Federal Magistrate indicates that he asked the wife to consider the list of debts and indicate those which she agreed were joint debts. The marked document became an exhibit in the proceedings.
At the commencement of the proceedings, the husband handed a list of debtors to the Federal Magistrate. That document was marked as Exhibit H1.
When the wife was giving evidence, her solicitor asked her about the list and whether she agreed with each of the individual debts listed there. She said “most of them but not all of them” (transcript page 26).
During cross examination of the wife, the husband asked her questions about the debts contained in that document and, at page 38 of the transcript of the hearing on 26 June 2012, the Federal Magistrate asked the wife to mark those debts on the list with which she agreed. The husband asked some further questions about the debts on the list. At page 39 line 5 the husband said to the Federal Magistrate; “Okay. I’m finished with that document, your Honour.” The Federal Magistrate responded; “Thank you. We will grab that back.”
The husband continued to ask the wife questions about other aspects of the property matter. Nowhere in the following transcript does the husband ask for that document to be returned to him to allow him to ask further questions or for any other purpose.
The husband did have an opportunity to ask the wife questions about the document, it was one prepared by him. Where he did not ask the Federal Magistrate to hand it to him or provide him with a copy, he can not complain that to fail to do so was an error by the Federal Magistrate.
I am unable to find this ground of appeal made out.

Ground 3. F.M. Harman asked me to physically drive to and obtain a valuation whilst adjourning the matter, as there was a huge difference in the valuation of the [R] property, due to overlay of three town planning permits which had all expired. ([X] Shire). F.M. Harman stated he had absolutely no town planning knowledge and an expert would be required to value the property. He stated this would not be able to be achieved on this court date and he would have to do it by a video link-up at a future date. He would stand the matter over. He asked both parties if were agreed to hear the evidence before making a decision regarding all matters. He was waiting for the e.mail from [...] (Valuers) for later that day regarding the cost of the valuation and when it would be done however F.M. Harman made a decision without considering his own recommendations.

I have again checked with [X] Shire, the permits have all expired.

The Appellant, in his summary of argument at (c) says:
Honourable Federal Magistrate Harman on page 258 pag 1 “if I need more time to ponder something or think about something then it will be later in the week but it will be this week. I am not going to do it today just for doing it today just for the sake of doing it today. He made it clear I was to get the valuation Page273 pag 25 – page278 pag 25 Federal Magistrate Harman made orders without informing me he was going to do so, ending the case one day early and not getting the valuation, misleading to the SRL.i was the one that requested valuations Addressed in a letter to [H] on 08/02/2012. (Errors as in original)
The thrust of this ground seems to be that, although the Federal Magistrate asked the husband to try and obtain a valuation or evidence to clarify the question of whether the R property was non compliant with local zoning laws, he concluded the case without informing the husband that he would, nor allowing the husband to obtain the valuation.
It is necessary to note that when the matter started, the Federal Magistrate was informed that although there was a tenant in the B property the rent was in arrears (transcript page 3), that the rates on that property were in arrears and the husband had been trying to pay the mortgages on both properties since separation. The husband told the Federal Magistrate that although the bank had issued a default notice in relation to the mortgage on R, he was speaking to the bank about the arrears on that mortgage. It was not disputed that a statement of claim had been issued in relation to arrears on the B mortgage. At page 12 of the transcript, the Federal Magistrate said to the husband; “ If [B] is sold that will alleviate the financial distress or some portion of it that you’re feeling servicing two mortgages with tenants who you’re having some difficulty getting out and who aren’t paying.” The Husband replied “Yes”. At this point, the husband handed the list of outstanding debts to the Federal Magistrate.
During the husband’s cross examination of the wife he handed to the Federal Magistrate a document that related to the zoning of the property. On raising a potential difficulty about the compliance of the property with relevant laws, the Federal Magistrate said “if this is going to be a live issue, it’s going to have to be valued” (transcript page 32). The husband said that he thought it would affect the value of the property. The Federal Magistrate enquired who would pay for the valuation and indicated that where there was no evidence of value, the certain course was to order a sale of the property.
The husband said that he would arrange a valuation and the Federal Magistrate said that it would have to be produced that week. Some time was given to the husband to make some enquiries. The husband told the Federal Magistrate (transcript page 34) that he had spoken to a valuer but it may be “a struggle to get it done this week”.
The Federal Magistrate discussed the options of adjourning the matter and completing it by video link. The wife’s solicitor opposed the adjournment, arguing that the appropriate course would be to continue the hearing and order the sale of the properties. He noted that the mortgages on both properties were in arrears and accumulating and referred to the proceedings commenced in relation to arrears.
The Federal Magistrate did not make a decision at that time and indicated that the evidence should continue (transcript page 36).
At the conclusion of the evidence, the Federal Magistrate invited submissions. The solicitor for the wife submitted that both properties should be sold. Referring to the husband’s contention that the R property value may be significantly diminished because of non compliance, said “If on the other hand Mr [McIntyre] is right that it’s only worth forty or fifty thousand it has to be sold in any event because if the parties don’t sell it the bank will” (Transcript page 54).
When he commenced his submissions, the husband indicated to the Federal Magistrate:
We really need this assessment on the [R] property to work out where we’re going with this. The only reason that this was raised late was the threat on Thursday that the place would be auctioned at [R].
At the conclusion of the submissions, the Federal Magistrate proceeded to give oral reasons for his decision and made orders. It is obvious from those reasons that he considered the question of adjourning the matter to obtain the additional valuation but decided against it.
In his reasons, the Federal Magistrate considered the information sought, that it was raised only in the course of Ms McIntyre giving evidence and had not before been mentioned. He further took into account the time that the matter had taken between filing and being brought to court and decided that the matter should proceed without that information.
Whether to adjourn a matter to enable further evidence to be brought is a matter for the exercise of the Court’s discretion. His Honour’s decision not to adjourn the hearing was one that was open to him to make and he thus made no error.
While the husband asserts in the ground of appeal that the zoning permits had expired, there was no evidence of this before the Federal Magistrate and it is not a matter which I can take into account in considering this ground of appeal.

Ground 4. In his summary F.M. Harman stated I did not prove the property was held in trust by me. I had a copy of the title documents in the court house. [J] purchased on my behalf the [R] property in 1993, yet Mrs [McIntyre] claimed we both bought it. She became a joint owner in 1997.

In his affidavit filed in the proceedings, the husband asserted; “Family bought property for [the husband] in [R], which was held in trust for him.”
The wife, in answer to questions from the husband said that she knew nothing of the trust. She did say however (transcript page 21):
As I understood it, they put up the finance to originally buy the property, then, we bought a house in town which I think they financed that – we sold that house so that debt was paid and then we re-financed so that we could buy the property off them, so all debts were paid.
She further agreed that the husband’s family had provided financial assistance to buy a house that was moved to the R property.
In his submissions (transcript page 56) to the Federal Magistrate, the husband said:
The [R] land originally was held for me in trust and that’s not an ongoing trust. It ended many, many years ago so there’s no toing or froing with that.
The Federal Magistrate found that there was no proof of the existence of a trust. Certainly, the husband did not provide the Federal Magistrate with any document that proved the existence of a trust at an earlier time. However, his Honour found that the property, however it came into the husband’s name was brought into the relationship by him. Whether it came by way of trust or not is not particularly relevant considering the wife’s concessions about the financial assistance given by the husband’s family.
The summary of argument raises further challenges to his Honour’s decision and I propose to treat them as further grounds of appeal.

1 Judicial unfairness

(A) Honourable justice Harman Failed in the order of calling witnesses to explain to [Mr McIntyre] a self-represented litigant (SRL) now addressed as I. I was only able to question one witness. Therefore I was not able to pose any questions to the case as justice Harman made orders without informing me of the order in which to call witnesses to the case (Errors as in original)

The submission lists witnesses to which the ground relates. Ms C, Ms F McIntyre, Dr L, Ms L McIntyre and Ms S McIntyre. In all but the last, the witnesses’ evidence related to the parenting proceedings which were the subject of agreement. Dr L was the single expert appointed in the case. In relation to the wife, Ms S McIntyre, the submission notes; “(Was not asked her name or address)”.
Given that the parenting issue was resolved by consent, there was no relevance to the evidence of the witnesses. The transcript shows that at no time did the husband ask that these witnesses be called. However, during his cross examination he referred to his daughter L who could give evidence about the extent to which she assisted in caring for the parties’ child A (transcript page 45 line 5). The Federal Magistrate indicated that the issue of homemaker and parent was not “weighing as largely on my mind as the other things at the moment”. The matter was not raised again.
The husband’s submission asserts that the Federal Magistrate failed to give him, as a self represented litigant, sufficient assistance.
At the point in the proceedings when the wife was to be called as a witness, the Federal Magistrate explained to the husband that he would give him “procedural advice” as the matter proceeded and that he would have an opportunity to cross examine the wife and explained the nature of the questions to be asked. He further indicated to the husband how the matter would proceed, that after the evidence was given he would receive submissions from each of them. He invited the husband, if at any time in the proceedings things were not “making sense” he should say something. Finally, before submissions commenced, the Federal Magistrate indicated the determinative process, the need to identify the property of the parties and to assess their various contributions.
Nothing to which the husband has pointed in his submissions or grounds of appeal demonstrate that the Federal Magistrate failed to afford him sufficient assistance in running the case. This challenge is not made out.

(B) Accounts I was questioning Mrs [McIntyre] about the Accounts of the marriage And Business There are many Missing Details. For these accounts Federal Magistrate Harman gave the document to Mrs [McIntyre] to highlight, the document was returned to Mr Harman, I was not given me a chance to see what was highlighted, and an opportunity to requestion Mrs [McIntyre] on the document again on the alterations. Mrs [McIntyre] knowingly deceived Federal Magistrate Harman. (Errors as in original)

Following this paragraph in the submissions are references to the transcript in what appears to be a submission that the wife’s evidence was inconsistent or which challenged her assertions about debts not properly considered joint.
I have already considered much of this ground in dealing with ground 2 of the notice of appeal. However, while it might be a matter of terminology, there is no indication in the transcript that the wife made “alterations” to that document other than marking the debts that she agreed were proper to be jointly taken into account. There is nothing to support the submission that she “knowingly deceived” the Federal Magistrate. It is important to note that the husband did not suggest to the wife that she was being deceitful nor any submission made to that effect. It is not a matter that can properly be raised on appeal.
This further ground is not made out.

(D) Federal Magistrate Harman Inadequately read the material before him only looking at sections of the affidavits Stated he had read about “Mrs [B]” there was no reference to her in my affidavits of Mrs [B] page 272 pag 5 and misleading to SRL (Errors as in original)

In cross examining the wife about her contribution to the raising of the children of both parties, the husband asked the wife about Mrs B who had apparently been employed by him as a housekeeper. The husband said to the Federal Magistrate:
Your Honour, I would like to say that Mrs [B] was employed for six months to help out with the family.
His Honour: Okay. I know you said that in your material.
Mr [McIntyre]: Yes…..
If the thrust of this ground amounts to a complaint that the Federal Magistrate mistakenly believed that the husband had mentioned Mrs B in his affidavit and he had not, I observe that the husband made no attempt to correct the Federal Magistrate in that mistake. This mistake, if such it be, was not said to be productive of error in the reasoning process or the decision and does not amount to an error of law.

(e) Federal Magistrate Harman asked if anyone wanted the [B] property page 244 pag 25 I replied I would if forced out of [R] page 244 pag 30, I had made offers before this date and have made offers since but have not been given a chance, I refer my letter to [H] dated 27/07/12 application in an appeal (Errors as in original)

It is true that at the commencement of the hearing, the Federal Magistrate asked whether either of the parties wished to keep the B property. The husband said ( transcript page 3):
Well, we’re going into a little bit of a funny area because we’re going to talk about town planning Acts and that. So I think we need to solve that but if it’s approved and that I be removed that I just ask that I might have the option to buy [B] but I’m not ---
It is clear that the “funny area” to which the husband referred was the potential problems with the zoning of R.
Shortly afterwards, the Federal Magistrate confirmed with the husband that his proposal was that the wife took over B together with its debts and he retain R (transcript page 3).
His Honour’s orders provided for the husband to keep R providing he was able to secure finance sufficient to allow him to pay the wife the amount ordered by the Federal Magistrate. In this way, the Federal Magistrate was providing the husband with his first choice, which was to keep R. Further, the husband’s submissions at the conclusion of the case were concerned with him keeping R and he reiterated that he had offered B to the wife.
The orders made by the Federal Magistrate gave effect to the husband’s desire to keep R if possible. On the basis of the evidence before him and the submissions of the husband, that he did not make an order for the husband to keep B is not an error of law.
The submissions at (F) refer to settlement negotiations between the husband and the wife’s solicitor before the hearing. They are not matters proper to be raised on appeal and I will not consider them further.
Paragraph 2 of the husband’s submissions on appeal claim that the wife lied in her evidence and the submissions contain references to parts of her evidence to support that assertion.
The husband did not suggest to the wife during the cross examination that she was not telling the truth in her evidence, nor did he make that submission to the Federal Magistrate. He does not assert in the submission that, as a result of any asserted lie or in reliance on it, the Federal Magistrate made an error. In that case he cannot raise it as a ground of appeal.
Finally, in his notice of appeal, the husband sets out his grounds of appeal as being:
Alteration of summary to order
Error of Law
Substantial injustice
Biased and unfair
These grounds have been covered in the earlier discussion but for “substantial injustice”.
In response to this ground, the respondent’s submissions, prepared and filed by her solicitor argue:
5.Where the Orders are unjust or not the net effect of the Orders 62-38 split in favour of the Respondent, this is not unreasonable given the Respondent is the primary carer of the child, the small pool and the lack of child support payments being made on behalf of the child by the Appellant.
6.That the Appellant has not shown that the Trial judge:
i. made any mistake infact on the evidence;
ii. was in anyway guided or affected by extranious irrelevant matters;
iii. failed to take into account or consider any material which would have been relevant to the decision;
iv. acted on the wrong principle, including failure to give adequate reasons.
(Errors as in original)
The wife’s solicitor in his submissions refers to the well known legal principles that govern an appeal from a decision of a judge where the decision rests on the exercise of the judge’s discretion.

What those principles say is that when an appeal court comes to consider such an appeal, it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge they would have come to a different conclusion. Before an appeal court can overturn the decision of a trial judge on appeal, it must be demonstrated that the trial judge acted on a wrong principle of law, had taken into account irrelevant considerations or that his decision in some was plainly wrong (see Gronow v Gronow (1979) 144 CLR 513 and CDJ v VAJ (1998) 197 CLR 172).
Although it is clear that the husband feels strongly that the decision of the Federal Magistrate was unfair, he has not been able to show one of the matters on which this court can only act and so the appeal must fail.

Costs

This is a matter where the pool of assets of the parties was very small and the orders provide the wife with the benefit of 65 per cent of that pool. In those circumstances I express the tentative view that there should be no order as to costs in the appeal.
As this matter proceeded without the need for oral argument, it is difficult to see that the wife has incurred any costs of significance.
However, I will reserve the question of costs and order that if any costs are sought on behalf of the wife, submissions be filed and served within 14 days of the delivery of judgment. The husband may file and serve any submission in reply within another 7 days.

I certify that the preceding one hundred-seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 14 August 2013.

Associate:

Date: 14 August 2013