Nagarkar & Amano
[2024] FedCFamC1A 10
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nagarkar & Amano [2024] FedCFamC1A 10
Appeal from: Amano & Nagarkar (No 2) [2023] FedCFamC2F 1183 Appeal number: NAA 248 of 2023 File number: BRC 10608 of 2020 Judgment of: ALDRIDGE J Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property orders for sale of former matrimonial home and division of proceeds of sale – No procedural unfairness in appellant proceeding self-represented after electing to terminate retainer of his legal representatives – Appellant had the opportunity to consider and address the respondent’s proposed orders but failed to do so – Orders of the primary judge not manifestly unjust – Primary judge’s reasoning process was clearly expressed – None of the grounds have merit – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum. Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 46 Date of hearing: 31 January 2024 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Ms Shepherd Solicitor for the Appellant: JHK Legal Counsel for the Respondent: Mr Ashcroft Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers ORDERS
NAA 248 of 2023
BRC 10608 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NAGARKAR
Appellant
AND: MS AMANO
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 27 November 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $4,423.10 within 28 days.
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 Nagarkar & Amano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 15 August 2023 in proceedings between Mr Nagarkar (“the appellant”) and Ms Amano (“the respondent”).
The primary judge determined that the appropriate division of the parties’ assets was that the appellant receive 30 per cent of them and the respondent 70 per cent. To give effect to that finding his Honour ordered that a property at Suburb B, the parties’ only asset of significance, be sold and the proceeds divided in that proportion.
It was the position of the appellant at the hearing that he should retain the Suburb B property at the agreed value of $600,000 and that he make a cash payment to the respondent of her entitlement. The primary judge was not satisfied that the appellant had the means to do so and therefore made the order that the property be sold at a price to be determined by the Chief Executive Officer of the Real Estate Institute of Queensland. Those orders are challenged by Grounds 3 and 4. The other grounds challenge a refusal to adjourn the hearing, an order for sole occupancy pending the sale and a finding by the primary judge as to the veracity of the appellant.
APPLICATION FOR FURTHER EVIDENCE
On 27 November 2023, the appellant filed an Application in an Appeal seeking to adduce evidence in the appeal from his current partner, a friend of the appellant and the appellant himself. The gist of the evidence is:
·The partner will give the appellant $100,000 to assist with the purchase of the Suburb B property;
·The friend will give the appellant $150,000 to assist with the purchase of the Suburb B property;
·The appellant will be able to borrow $320,000 from a commercial lender, pursuant to a conditional loan approval which was valid for 60 days from late September 2023.
The appellant thus asserts he is, or can be, in a position to pay the respondent her appropriate share of the $600,000.
The orders made by the primary judge provided that the parties were able to purchase the property at the listed price (Order 5). It is not obvious why the appellant did not follow that course instead of appealing. It is quite possible that a price in excess of $600,000 would be set pursuant to the orders, but the appellant would only, in reality, be paying 70 per cent of that increase. It would have been much quicker, far more certain, and quite possibly less expensive than appealing.
Counsel for the appellant said that the purpose of the further evidence was to assist with any re-exercise of the discretion. As the appeal will be dismissed, the evidence will not be relevant. The application will be dismissed.
THE APPEAL
Did the primary judge deny the appellant procedural fairness by “failing to allow the appellant husband, being self-represented, an opportunity to seek appropriate legal advice on the question put to him by the Court being whether her was ‘in a position to pay costs’ thrown away, and the consequences that would accompany the answers to that question”? (Ground 1)
At the commencement of the hearing before the primary judge, the appellant was represented by a barrister and solicitors. After some preliminary discussions the matter was stood down so that the prospects of settlement could be explored. On resumption, counsel for the appellant informed the court that the appellant no longer wished to retain the services of the solicitor and barrister. They were given leave to withdraw and did so.
The appellant made an application for an adjournment. He said that the existence of an order under s 102NA of the Family Law Act 1975 (Cth), which had been made earlier, prevented him from cross-examining the respondent and that, therefore, he needed legal representation. He added that his previous lawyer had not represented him properly (Transcript 15 August 2023, p.12 line 24). The appellant said they had failed to adduce relevant evidence.
The exchange continued as follows:
HIS HONOUR: If I adjourn it are you in a position to pay costs thrown away?
[THE APPELLANT]: Their costs?
HIS HONOUR: Yes. For today, thrown away.
[THE APPELLANT]: No.
HIS HONOUR: Right. And if I made such an order you wouldn’t pay those costs thrown away, would you? Thrown away for today’s hearing?
(Transcript 15 August 2023, p.18 lines 4–13)
A discussion then took place between the primary judge and counsel for the respondent as to the likely amount of costs in question which led to the following:
HIS HONOUR: If I adjourn the matter I’m going to make a costs thrown away order. I imagine it may well be a reasonably high amount. I haven’t asked the other side. Have you got an idea of the costs thrown away?
[COUNSEL FOR THE RESPONDENT]: I can indicate at Legal Aid rate, in terms of our filed costs certificate, that it’s $840 for solicitor and $1146 for counsel for one day at trial.
HIS HONOUR: No. There’s a lot more thrown away than that though because, how much has been spent all up?
[COUNSEL FOR THE RESPONDENT]: Well, there has been also the preparation for this trial - - -
HIS HONOUR: Yes.
[COUNSEL FOR THE RESPONDENT]: - - - which is likely to be further granted by Legal Aid, and that is in the order of $3000 for solicitor and $1146 for counsel.
HIS HONOUR: Yes. It’s a one day trial, so that will all be doubled again.
[COUNSEL FOR THE RESPONDENT]: Yes.
HIS HONOUR: Yes. I asked that because I’m putting to you, are you in a position to pay costs figures in that range?
[THE APPELLANT]: No, I’m not.
(Transcript 15 August 2023, p.18 line 25 to p.19 line 1)
The asserted error is identified in the Summary of Argument filed 3 November 2023 as follows:
6.A lay person may reasonably interpret that question to mean whether those funds are in the person’s pocket. The Court did not consider or invite any submissions on whether a payment of costs could be made after a time period, as is an accepted general practice. Further, on any estimation, the appellant would have received a much greater sum than that as part of the final determination of property interests, from which costs might have been paid. The appellant at the bar table was not invited to or even given an opportunity to seek legal advice on how that question might have been answered, and the real and significant consequences that might flow.
I do not see how it can be suggested that the natural or obvious meaning of the above exchange is that the appellant was being asked if he had many thousands of dollars “in [his] pocket”. The question was whether the appellant was in a position to pay costs in that range. There was nothing in the question that suggests immediate payment was being discussed.
It was then submitted that the appellant should have been granted an adjournment so that he could get legal advice as to the meaning of the questions put to him about the payment of costs and the implications of his answers.
The question, as last noted, was quite clear and simple – as was the answer. The appellant was either in a position to pay the costs or not, regardless of any implications. The appellant was clearly not confused – he answered the questions simply and directly. There was no difficulty on the part of the appellant and he did not request any explanation of the questions he was asked.
I am quite unable to see any procedural unfairness whatsoever.
Was it manifestly unjust for the primary judge to have made an order that the respondent have sole occupation of the Suburb B property until it was sold? (Ground 2)
The Suburb B property is owned by the respondent. However, the appellant has lived there since the parties separated in early 2020.
Included in the orders made by his Honour was:
11.That either party have liberty to apply to this Honourable Court on the giving of seven (7) days’ notice in writing to the other for any further directions on the sale of the property.
(a) That pending the sale of the [Suburb B] property:
(i)Neither party will encumber the [Suburb B] property without the written consent of the other party;
(ii)The [respondent] is entitled to sole occupation of the [Suburb B] property until the sale of the [Suburb B] property.
(Emphasis added)
The appellant submitted that the order was erroneously made because the appellant was self-represented, and no submissions were made by either party on the point and none was sought by the primary judge.
That may be so, but that was the choice of the parties. The order was sought by the respondent in identical terms to that actually made in her draft orders contained in her Case Outline filed 1 August 2023.
The appellant therefore had two weeks to consider these proposed orders. He had the opportunity to address them but did not. His Honour was entitled to proceed on the basis that if there was to be a sale of the property, the appellant did not object to the order for sole occupancy.
It is irrelevant to that analysis whether the appellant was represented or not. He was in fact represented for the 14 days prior to the hearing.
There is no merit in this ground.
Was it manifestly unjust to make an order for the sale of the Suburb B property? (Ground 3)
The orders proposed by the appellant were that he retain the Suburb B property and that he pay to the respondent a sum of money based on its agreed value of $600,000.
The respondent agreed that the property should be valued in that sum, but nonetheless still sought its sale.
The primary judge did not accept that the appellant had the financial means to pay the requisite sum to the respondent (at [152]–[153]), although his Honour was sceptical of the appellant’s evidence that he was unable to work and earn more due to injuries he had suffered. There was no evidence that he could obtain funds from others and by borrowing. Counsel for the appellant very properly conceded that the finding accorded with the evidence.
It follows that the only course available was to make an order for its sale.
Again, it was suggested that no submissions were made by the parties on the point, but the answer remains that the appellant, having been on notice of the proposed order for 14 days, could have addressed the issue if he wished.
This ground does not succeed.
Did the primary judge give adequate reasons for finding that the appellant was unable to retain the Suburb B property? (Ground 4)
Given the concession already noted, this ground must fail.
The reasons were, however, adequate given that at the hearing the appellant called no evidence at all along the lines he proposed to call in this appeal.
The primary judge noted the income and expenses of the appellant as stated in his Financial Statement filed 26 July 2023 ($2,065 and $595 per week respectively) (at [139]). His Honour recorded the appellant’s evidence that he could not afford to maintain the house (at [141]) even though the house needed essential repairs (at [116]–[121]).
The appellant’s position that he was only able to work a limited amount because of a previous personal injury was noted at [142]–[144], although as mentioned his Honour was somewhat sceptical of that (at [145]–[153]).
That scepticism cannot lead to a positive finding that the appellant was in a position to finance the acquisition of the Suburb B property.
As there was no evidence of any source of funds available to the appellant to pay the respondent her share of the property division, his Honour needed to do no more than record the appellant’s own evidence as to his less than desirable income and income earning capacity. This was a matter emphasised by the appellant himself in his oral submissions (Transcript 15 August 2023, p.61 lines 20–42).
Reasons need not be lengthy to be adequate. His Honour’s reasoning process was clearly expressed and thus the reasons are sufficient (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
This ground also fails.
Did the primary judge fail to give adequate reasons for finding that the appellant lied to the police and caused the respondent’s income earning capacity to be diminished? (Ground 5)
The relevant finding was:
[127]It appears to me that it would be difficult coming to a decision other than that the [respondent] has contributed more by way of overall contributions and keeping the mortgage going when the parties were together, when compared with the [appellant’s] contributions because of his attitude to the [respondent] in calling police, and not correcting her employment position by determining that he should give evidence to the Education Department, retracting what the police had accepted, that they had acted on wrong evidence. This is in circumstances where the house has run down when he has the ability to repair the house, and his income is over and above his outgoings according to his financial statement.
The evidence that led to this finding was traversed at [86]–[111].
In summary, the appellant informed the police that the respondent had entered his house in breach of an Apprehended Domestic Violence Order and grabbed and pushed the parties’ child and locked him in a bathroom with her.
These allegations had the consequence that the Department of Education revoked the respondent’s blue card, which is necessary for her to hold if she wishes to work with children. This has adversely affected her capacity to work.
His Honour made the following findings:
[108]It is not for this court to comment on the workings of the Department of Education in relation to this matter, but I will repeat it is clear that the police reassessed the evidence which they gathered based upon consideration of a properly put submission to them in relation to breaches of a domestic violence order and were then not prepared to pursue the matter in the Magistrates’ court.
[109]Knowing that and knowing that the [respondent] would be able to increase her wages if the Blue Card was issued and knowing his involvement, the [appellant] has made no move that I can see in the evidence to retract his position before QCAT to give the Director-General of the department an opportunity of reassessing its opposition to the issuing to the [respondent] of a Blue Card, which would allow her to work for better wages.
[110]In reading the submissions put to the police, what was pointed out was that there was no banning order from the house, and the [respondent] owns the house.
[111]So it does appear that they acted upon misinformation from the [appellant] with regard to those issues as well to an existence of a parenting agreement.
The findings are clearly explained and there is no basis whatsoever for suggesting inadequacy.
I would add that, contrary to the terms of Ground 5, his Honour did not find that the appellant lied to the police or assumed that he had. The finding fell well short of that.
It follows that the appeal will be dismissed.
COSTS
The appeal has been wholly unsuccessful. The appellant will pay the respondent’s costs of the appeal fixed in the sum of $4,423.10 within 28 days.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 14 February 2024
0