MILEN & MILEN
[2019] FamCAFC 80
•13 May 2019
FAMILY COURT OF AUSTRALIA
| MILEN & MILEN | [2019] FamCAFC 80 |
| FAMILY LAW – APPEAL – PROPERTY – Where the grounds of appeal are misconceived and the summary of argument does not assist – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs on an indemnity basis – Orders made for the filing of submissions. |
| Family Law Act 1975 (Cth) Family Court of Australia, Practice Direction No. 1 of 2017 – Conduct of Appeals, 22 December 2016 |
| APPELLANT: | Mr Milen |
| RESPONDENT: | Ms Milen |
| FILE NUMBER: | ADC | 1876 | of | 2016 |
| APPEAL NUMBER: | SOA | 7 | of | 2019 |
| DATE DELIVERED: | 13 May 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 3848 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Cocks |
| SOLICITOR FOR THE RESPONDENT: | White Berman |
Orders
The appellant husband have leave to rely on his summary of argument dated 15 April 2019 and received by the Southern Regional Appeal Registry on 16 April 2019.
The appeal be dismissed.
Within fourteen [14] days of the date hereof the respondent wife file and serve written submissions in relation to costs.
Within fourteen [14] days of receipt of the said submissions the appellant husband file and serve written submissions in response.
Within seven [7] days of receipt of the said submissions filed by the appellant husband the respondent wife file and serve any written submissions in reply.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Milen & Milen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 7 of 2019
File Number: ADC 1876 of 2016
| Mr Milen |
Appellant
And
| Ms Milen |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Notice of Appeal filed on 18 January 2019, Mr Milen (“the husband”) appeals against a number of orders made by Judge Heffernan on 21 December 2018. Ms Milen (“the wife”) opposes the appeal.
Orders 1 and 2 made by his Honour on 21 December 2018 comprise orders in relation to an Application in a Case filed by the husband on 26 September 2017, and in which orders were sought, in effect, to reopen the hearing and for consequential orders to the effect that the wife and her mother provide disclosure with respect to any and all trusts, and any other trusts of any nature, in which the wife may have any immediate future or discretionary interest. The other orders made by his Honour on that day were final orders in relation to children’s issues and property settlement.
Apart from orders 1 and 2, the husband appeals from a number of the final orders for property settlement. Plainly though, the focus of the appeal is orders 1 and 2; by order 1 the application filed on 26 September 2017 was dismissed, and order 2 provides for the husband to pay costs. I say that they are the focus of this appeal because it is only if the appeal from those two orders is successful, that there is any basis for appealing from the orders made by way of property settlement.
However, that is not necessarily a concept which the husband has grasped in his preparation for this appeal, and particularly in what he has put in the documents that he has filed in relation thereto. I should say though, that his grounds of appeal do primarily address orders 1 and 2. I say primarily because in Ground 1, and I will come back to this, he complains that, had the primary judge had before him the disclosure that the husband was then seeking, as he puts it, that may have had a significant impact on the orders that his Honour ultimately did make.
That, of course, and I will elaborate on this, is pure speculation.
The husband has filed, as he was required to, a written summary of argument. I note that he filed that summary one day late but, as I understand it, there were difficulties with the Commonwealth portal, and the husband was not able to file it on 15 April 2019, which was the last day for him to do that. Today he seeks leave to rely on that summary of argument, and I am content to grant that leave.
However, the outline of argument, as I have explained to the husband, is inappropriate and fails to accord with the requirements of the Family Law Rules 2004 (Cth) (“the Rules”), or Practice Direction No. 1 of 2017 issued by the then Chief Justice in relation to the conduct of appeals.
The issues are these:
a)First, there is a failure to specifically address the grounds of appeal in any recognisable way.
b)Secondly, the summary comprises a narrative encompassing the history of the proceedings, however, not in an objective way, and my reading of the document is the husband has impermissibly put his own gloss or interpretation on the facts, and fails to accurately summarise what is recorded in various of the transcripts of the hearing that he has put before this Court for the purposes of the appeal.
c)Thirdly, much of the history is irrelevant to the appeal and specifically to the grounds of the appeal. For example, I refer to that part of the summary of argument under the headings “Respondent’s application 22 February 2017”, “28 February 2017 hearing”, “7 March 2017 hearing”, “Further Trusts”, “Ongoing failure by the respondent to make disclosure”, and, to a certain extent, those paragraphs under the heading “10 August 2019”, which I suspect should read “2017”, and many of the paragraphs under the heading “Reasons for not subpoenaing”.
d)Fourthly, the summary of argument suggests errors by the primary judge which are not the subject of any ground of appeal. For example, paragraphs 38, 39, 48, 68, 69, 99, 111 and 117.
Thus, as can be seen, there are significant issues with that summary of argument and, as I indicated to the husband, it is not open for me to take much, if any, of its contents into account. However, recognising that the husband is appearing today without legal representation, and assuming that he has prepared this summary of argument without the assistance of legal representation, I have taken the time in preparing for today to carefully read the summary of argument, and attempt to identify those parts of it, albeit there are few, which relate to his specific grounds of appeal.
The three grounds of appeal pursued by the husband are as follows:
1.The learned Judge erred as a matter of law and fact to require the repondent to proivde further relevant financial disclosure when it became apparent that the respondent had received monies relating to trust/s, the extent to which had not been previously disclosed. Had the learned Judge had this disclusure it may have had a significant impact on the reasons for the distribution of the marital asset pool and superannuation split, and if the further financial disclsure had been made then in considering this there was a real possibility that an opposite result would have been reached. As per the reasons set out in paragraphs 108, 109, and 116 to 123, inclusive of the reasons.
2.The learned Judge erred as a matter of law and fact to adjourn the trail when it became apparent under the examination of the respondent that she had received benefits from family trust/s, the quantum of which had not been properly disclosed. Despite a prior request by the learned Judge for an affidavit to be provided, which the respondent’s barrister agreed to.
3.The learned Judge erred as a matter of law and fact in consideration of the Applcant’s application filed on 26 September 2017 (‘the Application’), stating that it was the Applicant seeking a “further ‘bite of the cherry’”, as set out in paragraph 5 of the reasons. The Application was for the respondent to comply with a specific earlier request of the learned Judge through the respondent’s counsel for the respondent and / or her mother to provide an affidavit disclosing details of the financial benefits to the respondent from family trust/s, which the full benefit of was withheld throughout the course of the proceedings. On the final day of the trial whilst under examination there was an admission by the Respondent that she had received benefits from the family trust/s beyond that which had been disclosed up to that point.
(As per original)
Ground 1.
As I have mentioned earlier in these reasons, the ground is pure speculation given it suggests that, if there had been disclosure, it may have had a significant impact on his Honour’s orders. Referring to the first sentence in Ground 1, the difficulty with respect, which the husband does not appreciate is that if there is an error, it can only be in relation to the primary judge’s order made on 21 December 2018 dismissing the application to reopen. There is no basis for including in this appeal any alleged error in the running of the proceedings prior to that order. The issue of disclosure in relation to the alleged entitlement of the wife in trusts, for want of a better phrase, controlled by her parents, was raised along the way but no application was made by the husband about that, and no subpoena was issued to obtain documents that he might suggest are relevant to that claim.
The husband did make an oral application on 10 August 2017, in the following terms, “[c]an I request from the court that the trust disclose what’s in the trust?” (Transcript 10.8.2017, page 23, lines 16-17) That oral application was then the subject of argument and determination, as is apparent from the transcript of the hearing on 10 August 2017 at pages 23 to 25. And what appears in that portion of the transcript, was the raising of the issue that the appropriate course for the husband to take was to issue subpoenas against, for example, the parents and/or the corporate trustees of the relevant trusts. For example, his Honour said quite correctly on page 24 at lines 21 to 32:
Yes. [Mr Milen], I’m not satisfied that I can make an order for production of the trust documents because, as Ms Cox (sic) rightly points out, they’re not the witness’ documents. They’re not the respondent’s documents. The trust is independent of her. … - it’s not established that she’s an officeholder. Furthermore, the fact that the existence of the trust was known and if, in preparing for the trial, you had wanted documents relating to the trust, it was open to you to subpoena them. That hasn’t been done and in terms of that limiting the scope of your cross-examination, in a sense you’re stuck with that … because we’re mid-trial.
It is apparent from what the husband raises in this regard that he suggests the wife had been deficient in the disclosure provided in relation to the trusts, but a close reading of the court record, and the transcripts of the hearings that have been placed before this Court, demonstrates that that is not accurate. For example, it is uncontentious that, prior to trial, the wife had made disclosure of letters from her parent’s accountant, disclosed a beneficiary loan statement for one of the trusts, and documents regarding the purchase of a motor vehicle by her parent’s companies, a motor vehicle that she either had or was using. It is also readily apparent that the wife addressed these matters in her trial affidavit filed on 13 April 2017.
Further, although the husband cross-examined the wife on 10 August 2017 on these topics, no evidence was elicited that the wife had either received monies relating to trusts, beyond that which had already been disclosed, or held, or had control of documents regarding her receipt of monies relating to trusts, which had not already been disclosed. If I have not mentioned it already, and if I have, I repeat, that no subpoena was issued by the husband in relation to these matters in the lead-up to the trial.
I will mention this later in these reasons, but it is also readily apparent from the disclosure that was made by the wife, that her case was she had no entitlements in any of the two trusts identified. That being the extent of the disclosure, it then fell on the husband, if he suggested otherwise, to, at the very least, issue subpoenas in an attempt to establish his case.
In any event, to repeat, those issues just discussed are not relevant to the appeal that is before the court. The appeal is against the order made on 21 December 2018 dismissing the application filed on 26 September 2017, and the appeal is not against any previous orders made by the primary judge. In relation to what is relevant to this appeal, I refer to what his Honour said in dismissing the application at [2] through [5] inclusive of his reasons for judgment, and I do this primarily in the context of Ground 1 but, as will be seen, it also extends to the other two grounds:
2.After the trial concluded, the applicant filed an Application in a Case that sought inter alia the following orders:
“(i)That the action be brought back on for further argument.
(ii)That the respondent and/or the respondents mother to provide (sic) disclosure with respect to any and all trusts and any other trusts of any other nature to which the respondent may have any immediate, future or discretionary interest in.”
3.The effect of the application was that, having closed his case and having completed his lengthy cross-examination of the respondent and knowing that judgment had been reserved, the applicant was seeking further materials with a view presumably to re-opening his case.
4.The applicant filed an affidavit in support of that application, referring to his earlier affidavits and referring to advice he had received from his lawyer, to the effect that disclosure is an ongoing requirement of the parties. At all times during the trial, the applicant was self-represented. No Notice of Acting from the solicitors to whom the applicant refers was filed and the applicant represented himself on this application. He then referred in the affidavit to a series of matters that he said established that there had been a failure by the respondent to adequately disclose materials of the type sought. The affidavit refers to matters raised by the applicant in cross-examination and provides a commentary on matters dealt with in cross-examination including comments purportedly made by me and questions asked by me.
5.The applicant agreed when this application was heard that he did not raise this matter as a preliminary issue at the start of the trial. He was given considerable time and latitude to explore issues in cross-examination, including if he chose to do so matters pertaining to trust funds and disclosure. As Ms Cocks, for the respondent, submitted in her submissions on this application, the applicant was in part seeking orders after trial directed to a person who has never been a party to the litigation, namely, the respondent’s mother. The respondent denies not having made full disclosure. As Ms Cocks submitted, there was no contention at trial that the respondent was an office holder in any trusts held by her mother. The applicant was on notice of who the accountants were for the mother’s trust. It was open to him to issue a subpoena to that accountant in a timely fashion if he was in any doubt about the extent of disclosure from the wife or anything she told him about her mother’s trust or trusts. The applicant has provided no adequate explanation for not raising this issue at the start of the trial. The applicant was on notice from at least 12 April 2017 (applicant’s affidavit, dated 26 September 2017, ‘Annexure 6’) that the respondent did not intend to call either of her parents to give evidence on this issue. Further, the applicant did not challenge the evidence of the respondent at trial as to that part of her affidavit where she dealt with the question of the motor vehicle she drove being provided by her mother’s trust fund. This application has no merit. It bears all the hallmarks of the applicant having chosen to run the trial himself, reconsidering how things went, and trying to reignite an issue, which if relevant at all, he was obliged in his own interests to agitate before and during trial. He is simply trying to have a further ‘bite at the cherry’, after having closed his case. I dismiss the application. Ms Cocks has sought costs on an indemnity basis in the event that this application was dismissed. I am satisfied that it is appropriate to award costs, but not on an indemnity basis. I have made an order for costs at the beginning of these reasons.
There is no appealable error revealed in those reasons.
Ground 2
This ground raises the complaint that an affidavit which had been discussed previously had not, in fact, been filed. Now, this ground is, again, misconceived. Similarly to Ground 1 it seeks to address matters prior to the hearing and determination of the application which was dismissed, and the order specifically the subject of this appeal.
In any event, there is no basis for finding any error by the primary judge in relation to any question of adjournment, or in relation to any question of an affidavit being filed. In relation to the former, no application to adjourn the trial was sought by the husband, and it was not a matter for the primary judge to take it upon himself to adjourn the hearing. To repeat, it is not the case that the cross-examination of the wife revealed a failure to disclose “benefits from family trusts”, and thus I do not accept that there would have been any basis for the primary judge to have adjourned the hearing at the point of that cross-examination.
What in fact happened, was that the husband, during his cross-examination of the wife, requested to speak with his legal advisor. The primary judge indicated that he could speak with his legal advisor during the luncheon adjournment. No other application was made to adjourn the hearing, and no further application was made, for example, to again speak with his legal advisor. Thus, to repeat, that ground of appeal is entirely misconceived.
I need though to say something about the question of an affidavit.
It is apparent from the transcript that there was discussion as to the filing of an affidavit or affidavits by the wife’s parents. However, in a letter from the wife’s solicitor to the solicitor for the husband attached to an email of April 2017, the advice was given that the wife had no entitlement in the two trusts named, and put the husband on notice that it was then up to him to provide any evidence to support his assertion that the wife had some entitlement. The wife’s solicitors also advised that there was no intention to call the wife’s parents to give evidence, that no affidavit would be filed by them and, further, that any matters relating to the trusts would be set out in the wife’s trial affidavit, and that was done.
Now, of course, as is the case when orders have been made to prepare a matter for trial, consideration is given to what witnesses each party will call, and this case was no different. As early as 7 March 2017, the primary judge addressed the issue of the witnesses each party would call at trial, and there is no indication that the wife’s parents would be witnesses, and no indication by the husband that he proposed to call them as witnesses.
Ground 3.
This is another ground of appeal which is misconceived, and is really nothing more than a repeat of the earlier complaints in Grounds 1 and 2, and it suffers from the same defects I have identified in relation to those two grounds. In particular I highlight the complaint in Ground 3 that the full benefit of the financial benefits of the wife in the family trusts had been withheld throughout the course of the proceedings. However, that is simply inaccurate. Similarly, the suggestion made in Ground 3 that there was an admission by the respondent that she had received benefits from the family trust beyond that which had been disclosed up to that point is, again, inaccurate.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
On that basis I now have an application on behalf of the wife for her costs to be calculated on an indemnity basis. I will make provision for submissions in that regard in the orders I propose to make.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Strickland J delivered on 13 May 2019.
Associate:
Date: 21 May 2019
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