Panshin and Farmer - [2012] FamCAFC 197

FAMILY COURT OF AUSTRALIA

PANSHIN & FARMER

[2012] FamCAFC 197

FAMILY LAW ─ APPEAL ─ PROPERTY ─ Application for leave to appeal interlocutory orders made by Federal Magistrate in proceedings for property settlement ─ Whether it was reasonably open to the Federal Magistrate to conclude that the appellant did not demonstrate that she had the capacity to avoid a sale of the property and that, in those circumstances, declining to make an order for its sale would only be likely to diminish the parties’ equity in the property, or that, even if a sale was not inevitable, that only by selling the property would the parties’ dwindling equity in it be preserved ─ Where the Court was not persuaded that the Federal Magistrate erred in the exercise of his discretion by approaching the application for the sale of the parties’ property in reliance upon the Court’s powers to make orders for settlement of property rather than the Court’s injunctive powers ─ Nothing to which this Court was referred established that the Federal Magistrate misunderstood or in any way erred in fact in concluding that the evidence did not establish that anything which the appellant had done, or was doing, or could do, would, on the balance of probabilities, impede the ability of the bank to exercise its rights under its security over the property of the parties ─ Where the orders made by the Federal Magistrate were clearly open to his Honour, and represented the best, if not only, avenue for preserving and realising the parties’ modest equity in the property of the parties ─ Not established that the inferences drawn by the Federal Magistrate were other than reasonably open to his Honour and that the facts upon which those inferences were based were other than reasonably open to him ─ No appealable error demonstrated ─ Appellate intervention not enlivened ─ Application for leave to appeal dismissed.

FAMILY LAW ─ APPEAL ─ EVIDENCE ─ Applications to adduce fresh evidence ─ Where the further evidence which was contained in two affidavits did not advance the challenges of the appellant that the Federal Magistrate erred in concluding that there appeared no reasonable alternative to a sale of the property of the parties if the ongoing diminution of the parties’ equity in it was to be avoided ─ Where the further evidence failed to demonstrate that the decisions under challenge were erroneous.

Family Law Act 1975 (Cth) Part VIIIAB, ss 90SM, 93A, 94, 114(3)
Real Property Act 1900 (NSW) s 57(2)(b)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Edwards v Noble (1971) 125 CLR 296
Gabel and Yardley (2008) FLC 93-386
House v The King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Rutherford and Rutherford (1991) FLC 92-255
Strahan and Strahan (Interim Property Orders) (2011) FLC 93-466
Waugh and Waugh (2000) FLC 93-952

APPELLANT:

Ms Panshin

RESPONDENT:

Ms Farmer

FILE NUMBER:

SYC

2252

2011

APPEAL NUMBER:

101

2012

DATE DELIVERED:

30 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

14 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2012

8 October 2012

LOWER COURT MNC:

[2012] FMCAfam 691
[2012] FMCAfam 1107

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Winfield

SOLICITOR FOR THE APPELLANT:

Jacqui Griffin Solicitor & Attorney

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Stidwell Solicitors

Orders

That the Application for leave to appeal against the orders made by Federal Magistrate Altobelli on 10 July 2012 and 8 October 2012 be dismissed.
That the two (2) Applications in an Appeal to adduce further evidence filed by the appellant on 7 November 2012 and 14 November 2012 be dismissed.
That the costs of all parties of and incidental to the application for leave to appeal are reserved.
That any application for costs and submissions in support of any application for costs be filed and served with 21 days.
That within 21 days thereafter submissions in response to any application for costs be filed and served.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Panshin & Farmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 101 of 2012

File Number: SYC 2252 of 2011

Ms Panshin

Appellant

And

Ms Farmer

Respondent

REASONS FOR JUDGMENT

introduction

By Further Amended Notice of Appeal filed on 7 November 2012 Ms Panshin (“the appellant”) challenged interlocutory orders made by Altobelli FM on 10 July 2012 and 8 October 2012 in proceedings for settlement of property pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), between the appellant and Ms Farmer (“the respondent”).
Whilst it is not in doubt that the appellant requires leave to appeal against the orders of 10 July 2012 and 8 October 2012, such leave has never formally been sought. Sensibly, Counsel for the respondent raised no issue in this regard. Although a grant of leave to appeal is necessary, if the appellant establishes any of her proposed grounds of appeal (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and Rutherford and Rutherford (1991) FLC 92-255), as the principles governing the application and the proposed appeal are not materially different, the failure to formally seek leave creates no practical difficulties, either for the parties or the Court.
Whilst, the Further Amended Notice of Appeal filed in the appeal against the orders of the learned Federal Magistrate of 10 July 2012 also raises complaints about his Honour’s orders of 8 October 2012, no formal application for an extension of time within which to make an application for leave to appeal against those orders has ever been filed by the appellant. Again, sensibly, Counsel for the respondent has raised no issue in that regard, preferring to focus on the issues of substance which require determination. Although, for the reasons suggested above, the “appellant” is not, and may never be an appellant, for clarity the Court will throughout these Reasons refer to her as “the appellant”.
The orders made by the learned Federal Magistrate on 10 July 2012 which the appellant sought leave to challenge provided:
1.The Applicant in these proceedings, namely [MS FARMER], be declared to have the sole and exclusive use and occupation of the premises known as and situated at [address omitted] in the State of New South Wales (“the property”).
2.The Applicant and Respondent (“the parties”) do all acts and things necessary and sign all such documents and papers as may reasonably be required to sell the property for the best price reasonably obtainable in the following manner:
2.1The parties will, within seven (7) days of the making of these Orders, list the property for sale by public auction with [Mr H] of [omitted] Real Estate Agents or such other agent as the Applicant decides;
2.2The reserve price at which the property shall be listed shall be such sum as may be mutually agreed by the parties in writing within seven (7) days of the appointment of the agent and in the absence of agreement shall be $925,000;
2.3The firm of [omitted] Property Conveyancing, Licensed Conveyancers, will have carriage of the conveyance of the sale of the property;
2.4Firstly to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of any real property.
(i)making the key available to the agent at all times;
(ii)allowing inspection of the property at all reasonable times when requested to do so by the agent;
(iii)ensuring that the property, including the grounds, are in a neat and clean condition at the time of the inspection by the agent and prospective purchasers;
(iv)signing all documents requested by the agent in relation to listing the property, except a contract or agreement for sale which has not been authorised by the parties’ solicitor or conveyancer; and
3.Upon completion of the sale of the property, the proceeds of the sale will be applied as follows:
3.1Firstly to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of any real property;
3.2Secondly, to discharge the mortgage secured against the property and any other encumbrances affecting the property;
3.3Thirdly, the balance then remaining shall be paid into a controlled monies trust account established by the solicitor for the Applicant in trust for both parties.
4.Pursuant to S.106A of the Family Law Act 1975, should either party fail to do anything, sign any documents or give any authority necessary to give effect to these Orders within seven (7) days of a written request to do so, then the Applicant, [MS FARMER], is appointed as trustee for the Respondent in the marketing, executing sales agreements and executing any contract necessary to implement these Orders.
5.The Respondent, [MS PANSHIN], is to vacate the property no later than 4.00pm on Tuesday 17 July 2012.
...
The effect of the orders of the learned Federal Magistrate was that the property of the parties situated in a suburb of Sydney in the State of New South Wales (“the C property”) was to be sold, that the respondent have sole and exclusive use and occupation of the C property, and that the appellant vacate the property pending completion of the sale of the property. The appellant has vacated the property.
On 8 October 2012, the learned Federal Magistrate restrained the appellant from “attending at or [being] within five hundred metres” of the C property, and stayed the operation of the order for sale of the property until 4pm on 17 October 2012 (order 3).
In lieu of the orders of the learned Federal Magistrate, the appellant essentially sought that title to the C property be vested in her, and that she be permitted to return to the property.
The respondent resisted the appellant’s application for leave to appeal, and sought to maintain the orders of the learned Federal Magistrate.
On 7 November 2012 the appellant filed an application for leave to adduce further evidence in the appeal pursuant to s 93A of the Act. The further evidence was contained in an affidavit sworn by the appellant on 17 October 2012.
At the commencement of the hearing of the appeal, apparently with no prior notice to the respondent, the appellant sought to adduce further evidence in the appeal in the terms of an affidavit sworn by her on 14 November 2012. Given that an application in an appeal pursuant to s 93A can only be made when there is, or once there is an appeal within s 94 of the Act, the “further evidence” sought to be relied upon by the appellant is in reality evidence in the application for leave to appeal.
Logic suggests that the significance or otherwise of such evidence should, albeit in the context of an application for leave to appeal, be determined in the way that the evidence would be if it were filed in an appeal.
Consistent with his earlier pragmatic approach, Counsel for the respondent raised none of the foregoing issues, but maintained in relation to the further evidence, either that the substance of it had already been considered by the learned Federal Magistrate and thus did not advance matters or that, to the extent that the evidence had not been before the learned Federal Magistrate, it would not, if accepted, demonstrate that the order under appeal was erroneous (see CDJ v VAJ (1998) 197 CLR 172 at par 109). It was also submitted, with considerable justification, that most of the evidence of the appellant in the two affidavits sought to be relied upon by her was so clearly inadmissible that it could not be “accepted”.

background

Although, as will be seen, the focus of the proceedings in this Court is the reasons for judgment of the learned Federal Magistrate. Very few factual matters appear to be uncontroversial, even for present purposes. However, some background facts emerge with reasonable clarity.
The appellant is 42 years of age and the respondent is 34 years of age.
In late 2005 the parties commenced living in a property in S (“the S property”) which was owned by the appellant. The S property was sold in about June 2006. The parties travelled to London in 2006 and, upon returning to Australia, resumed cohabitation in rented premises at B in April 2007.
The parties separated for a period in late 2007.
In April 2008, a property at B was purchased in the respondent’s name. That property was sold approximately 12 months later.
On 18 May 2009 the parties purchased a property as tenants in common in equal shares at C (“the C property”) for approximately $690,000, a mortgage of approximately $620,000 being obtained from the Commonwealth Bank of Australia (“the CBA”) to complete the purchase.
In late December 2010 the parties separated, and have not since cohabited.
The substantive proceedings for settlement of property pursuant to Part VIIIAB of the Act commenced to be heard by the learned Federal Magistrate in July 2012, and will resume part heard before the learned Federal Magistrate on 15 February 2013.
Late on the second day of the trial in July 2012, by which time it was apparent that the hearing of the proceedings would not then conclude, the present respondent sought interlocutory orders relating to the occupancy and sale of the C property the subject of the property settlement proceedings before the learned Federal Magistrate. The relief prayed for by the respondent was opposed by the present appellant.
By way of final order, the appellant sought that the C property be vested in her pursuant to the provision of Part VIIIAB of the Act. The respondent sought the sale of the C property and a division of the net proceeds of its sale by way of final order. Those claims will be finally determined by the learned Federal Magistrate in 2013.
During the hearing of the appeal to this Court, Counsel for the respondent sought and obtained instructions from the respondent, who was then present in Court, to undertake not to seek to enforce the learned Federal Magistrate’s order for sale of the C property pending this Court’s determination of the appellant’s application for leave to appeal. Such undertaking was appropriate.

the reasons for judgment of the federal magistrate

Having referred to the relevant authorities, correctly there is no doubt, under the heading “The evidence” the learned Federal Magistrate summarised the evidence which his Honour regarded as relevant to the issues he was asked to determine. Those issues were “the interim application for exclusive occupancy and sale” of the C property (par 16).
After referring to delays which he considered to be referrable to the appellant, his Honour referred to the valuation evidence of the C property which was before the Court. Such evidence suggested a current market value of the property of $925,000.
In paragraphs 17 and 18 of his reasons for judgment, which attracted considerable attention before this Court, the learned Federal Magistrate recorded:
The evidence before the court does not support the respondent’s contention that the complaint, in effect, operates as a stay of enforcement on the mortgagee. Indeed, exhibit R9 is evidence that the Financial Ombudsman process is exhausted. This must be the case. For one thing, there is no evidence at all that the respondent can comply with the terms of the resolution agreement, that is to say, repay the home loan on or before 5 October. It is abundantly clear that the respondent will never voluntarily surrender the property to the bank before 5 October. The stay on enforcement was only offered until 5 October.
The Financial Ombudsman Service dispute resolution scheme does not work on the basis that a credit provider’s rights are stayed until such time as the complaint is resolved to the satisfaction of the complainant. What it provides for is a reasonable opportunity for discussion, offer and compromise. That is what exhibit R9 evidences. The court does not accept that if the respondent simply keeps ignoring or rejecting offers of compromise made by the bank that she can indefinitely postpone enforcement.
The concerns articulated by the learned Federal Magistrate in his reasons for judgment of 10 July 2012 were reiterated in paragraph 19 of his reasons for judgment on 8 October 2012. His Honour there recorded:
There is no evidence before the court to satisfy it that by virtue of some provision under the Financial Ombudsman Scheme initiated by the respondent that there is any less risk of the mortgagee exercising its power of sale or enforcement in a situation where there are substantial arrears and where only the interest is being serviced. In this regard, the matters of risk identified by the court in its reasons of 10 July remain unchanged. The respondent now has had two opportunities to demonstrate that somehow the complaint to the Financial Ombudsman scheme removes the risk. She has failed twice.
The learned Federal Magistrate recorded that the appellant’s financial position appeared “parlous”, with approximately $660,000 being owed by the appellant and the respondent, to the CBA (the mortgagee of the C property), $22,600 being owed on a MasterCard, $11,663 on a personal loan, and “negligible funds in credit” (par 20).
The learned Federal Magistrate recorded, undoubtedly correctly, that, for the reasons to which he alluded, the parties were “not able to work together in relation to the sale of the property” (par 21).
By reference to source documentation, the learned Federal Magistrate recorded that the CBA mortgage was, as at 18 January 2012, in arrears in the sum of $18,534.72, and that the mortgagee had issued a notice pursuant to s 57(2)(b) of the Real Property Act1900 (NSW) on that date, “threatening enforcement proceedings, including repossession and sale of the home” (par 22).
The learned Federal Magistrate referred to financial transactions on the appellant’s CBA account revealed by source documentation, the thrust of which was that, during periods when the appellant received significant funds, the mortgage over the C property remained “unpaid” (par 23).
After referring to a number of matters of lesser significance for present purposes, the learned Federal Magistrate recorded, in a passage which assumed considerable prominence in the proceedings before this Court:
28.… Exhibit R9 is a letter dated 5 July 2012 from the Commonwealth Bank to the respondent, referring to an agreement to stay recovery action for three months to enable the respondent to refinance the home loan, but also clearly stating that if it is not repaid by 5 October, the respondent will voluntarily surrender the property to the bank. The evidence from the applicant is that she was not a party to this purported agreement, nor does she agree.
Also relevantly for present purposes, having regard to the appellant’s further evidence application, the learned Federal Magistrate recorded:
29.Finally, the Exhibit R8, which was admitted solely for the purpose of interim issues, is a report from psychologist, Mr [B] dated 5 July 2012. He believes that the respondent suffers from chronic adjustment disorder with mixed anxiety and depressed mood, with post traumatic stress features.
The learned Federal Magistrate referred to the evidence of the present respondent (par 30). Nothing there recorded assumes significance for present purposes. Although the Court does not apprehend that they assume particular significance in the appeal, it is relevant to record the unchallenged findings of the learned Federal Magistrate that:
31.The respondent gave evidence that she too would be ready, willing and able to prepare and list the property for sale, but she is clearly concerned about structural issues and implied it would be an impediment. This evidence stands in somewhat stark inconsistency with her proposal to the Court that she actually retain the property.

The learned Federal Magistrate recorded with respect to the current earnings of the appellant:
32.The respondent gave evidence in chief that she was not currently working, other than in charity roles, but was, in fact, confident of being able to obtain work in a role that would pay a salary of $150,000 per annum. Further in chief, she gave an indication that she was working on a $280,000 consultancy of sorts with ASIC.
Counsel for the appellant informed this Court that the last mentioned consultancy had recently terminated or was about to terminate.
As the learned Federal Magistrate also recorded:
33.In cross-examination the respondent, in fact, asserted that she was owed $280,000, and had been for about six months. This does not appear on the balance sheet that was prepared for the purposes of this case.
The learned Federal Magistrate further recorded:
38.The respondent agreed that she could live with her mother who apparently lives in Sydney.
Having referred to the submissions on behalf of the parties, the learned Federal Magistrate recorded the submission on behalf of the appellant that:
44.… if given the opportunity, the respondent would re-finance the debt in three months, that she could find work quickly, that there is no risk of loss of the property, and that indeed the respondent’s mother may be able to give her money to pay the mortgage.
Under the heading “Discussion” the learned Federal Magistrate revealed the reasoning which led to his decision. The learned Federal Magistrate was satisfied:
45.… that there is a real risk that the mortgagee, the Commonwealth Bank of Australia, will exercise its powers, the powers it clearly has, to sell the property given the arrears that have accumulated, much of which, though not all, coincides with the respondent’s occupation of the home and non-payment of the mortgage - all at a time when she clearly was in receipt of money that could have been used for this purpose.
His Honour recorded, accurately:
46.The respondent’s position remains that she wishes to retain the property and re-finance the debt. She cannot do that without agreement from the applicant or Order of the Court. Her position in this litigation is that the applicant should retain what she has - that is, that the respondent would pay her nothing. The respondent therefore has no motivation to sell this property. Given the urgency that I perceive, I could not safely entrust to her the responsibility for sale.
Ultimately his Honour concluded:
47.There appears to be no reasonable alternative to sale, given the section 57(2)(b) notice and the lack of confidence I have in the respondent. Her proposal is not one the applicant will accept.
For reasons which he detailed, the learned Federal Magistrate concluded that:
48.… leaving her [the appellant] in the property is not realistic, will not address the concerns that I have expressed above, and this means that ordering the sale of the property really is the only alternative.
Having thus found, the learned Federal Magistrate made the orders which have earlier been referred to.

the proposed grounds of appeal

Ground 1

Ground 1 of the Further Amended Notice of Appeal provided:
1.The Federal Magistrate’s application of the law relating to section 114(2A) of the Family Law Act 1975 was in error in ordering as an interim property order the sale of the property at [C] (“the property”). (Errors as in original)
In support of this complaint, learned Counsel for the appellant advanced a series of propositions, supported in the main by reference to authority. With respect to the ingenuity and industry of Counsel for the appellant’s submissions, the distinction there articulated, and basis for it, is, in the circumstances of this case, a distinction without a difference.
As is not in doubt, the learned Federal Magistrate’s order with respect to the sale of the C property was informed by his Honour’s findings that, to delay the sale of the property would, for the reasons his Honour articulated, be likely to result in the property of the parties being diminished, given that the present respondent sought the sale of the property, and that the appellant, who opposed its sale could not, on the evidence before his Honour, reasonably hope to avert a mortgagee sale of the property, in circumstances where the parties’ equity in the property was being, and would continue to be, eroded.
For reasons which will be articulated, the Court concludes that the decision of the learned Federal Magistrate could only be disturbed if it were demonstrated that the exercise of his Honour’s discretion miscarried in any of the ways which the authorities recognise (see House v The King (1936) 55 CLR 499). In the circumstances of this case, unless material findings of fact by the learned Federal Magistrate are successfully challenged, the orders for sale made by his Honour would constitute permissible exercises of discretion, whatever the source of power to make them.
Paragraphs 13 and 14 of his Honour’s reasons for judgment suggest that his Honour regarded the application of the respondent as a claim for interim orders for settlement of property pursuant to s 90SM of the Act (see Gabel and Yardley (2008) FLC 93-386). As Counsel for the respondent reminded the Court, the learned Federal Magistrate’s orders did not settle, on an interim or any other basis, any property upon either party. Nor did they alter the parties’ interests in that property as between themselves.
With respect to the learned Federal Magistrate, the more appropriate source of power for the orders made by him was probably the injunctive power provided by s 114(3) of the Act, given that his Honour’s orders were in reality mandatory injunctive orders for preservation of the property of the parties, and did not involve “settling” property upon either party or altering the interests of the parties, as between themselves, in the property. However, the Court is not persuaded that his Honour was wrong in regarding the application in the way he did, or that his Honour could not have made the orders he did by way of interim property settlement, albeit s 80 did not provide the power to do so.
The Court accordingly finds that this challenge lacks merit. That does not mean however that the orders of the learned Federal Magistrate cannot be disturbed. The Court does not accept that, if the issue of the sale of the C property was properly considered as an application for interim property settlement, the learned Federal Magistrate erred in principle in his determination of it. If the application was not an application for interim property settlement, his Honour had jurisdiction to determine it pursuant to s 114(3) of the Act, and did not err in principle in determining the application by reference to the factors to which he had regard.
In the circumstances of this case, the principles relevant to the exercise of his Honour’s discretion were essentially the same, whether the issue was determined as an interim property settlement or an injunctive application. The terms of s 114(3) and authorities in relation to it (see Waugh and Waugh (2000) FLC 93-952) suggest that his Honour could more readily have concluded as he did, had he proceeded in reliance upon s 114(3) of the Act.
The submissions in support of this challenge identify what is ultimately the critical issue in the appeal. That was whether it was reasonably open to the learned Federal Magistrate to conclude that the appellant did not demonstrate that she had the capacity to avoid a sale of the property and that, in those circumstances, declining to make an order for its sale would only be likely to diminish the parties’ equity in the property, or that, even if a sale was not inevitable, that only by selling the C property would the parties’ dwindling equity in it be preserved. This issue will be considered in more detail in the discussion, collectively, of grounds 4, 5, 11 12, and 14.

Grounds 2 and 16

Grounds 2 and 16 of the Further Amended Notice of Appeal provided:
2.The Federal Magistrate’s application of the law relating to section 90SM of the Family Law Act 1975 was in error in ordering as an interim property order the sale of the property at [C] (“the property”).
16.The orders made 10 July 2012 were not otherwise just and equitable. (Errors as in original)
It was submitted by Counsel for the appellant that the learned Federal Magistrate failed to identify the source of power in relation to the orders for interim settlement of property. It was also submitted that:
14.The learned Federal Magistrate however clearly identified ss.90S and 90SM of the Act as the source of the power on which he relied to order a sale of the [C] property (J15).
It was submitted by reference to the decision of this Court in Strahan and Strahan (Interim Property Orders) (2011) FLC 93-466 that the learned Federal Magistrate “was required to take a ‘two-step approach’”, the first of which was submitted to be determining “whether the jurisdiction to pronounce an interim property order will be entertained” and secondly to “give careful consideration and evaluation of the factors which are relevant to the exercise of such power, which must be just and equitable”.
On behalf of the appellant the learned Federal Magistrate was asserted to have “erred at the first stage” in the following respects:
16....
(a)... His Honour determined that there was jurisdiction to pronounce an interim property order based on his finding that there was an imminent threat of mortgagee sale (J45). As is shown in Grounds 4, 5, 11 and 12 below, that finding was in error.
(b)The Court did not consider the orders that could be made to preserve the property until the hearing could be concluded. Orders could have been made:
(i)for payment of the mortgage. Ms [Farmer] was in employment. Ms [Panshin] had a history of employment and on the balance of probabilities had the capacity to obtain employment.
(ii)The parties could have been ordered to let the property and apply the rent to the mortgage.
(iii)The Court could have considered the relevant factors and given consideration to an order that Ms [Farmer] make maintenance payments (to pay mortgage interest) under s.90SF
(iv)The failure to consider these alternatives in turn led the Court into the error of concluding that it should depart from the usual order, namely, a once and for all order made after final hearing. The appellant respectfully relies on the review of relevant authorities in the recent case, Aitken v Murphy [2012] Fam CA 239.
It was further submitted (particularly in relation to ground 16) that the learned Federal Magistrate also fell into error at the second stage in that:
17....
(a)The relevant factors were not considered and there was not a preliminary assessment of justice and equity.
(b)There are no preliminary findings about the asset pool or about contributions.
(c)There was evidence that the opponent in these proceedings had substantial superannuation which was not taken into account. The balance sheet tendered by her counsel [...] referred to two funds in which she held superannuation, one of $9,788 the other of $167,610. In a second column and in submissions the appellant had signaled she would contend the superannuation value was higher.
(d)There were findings about the value of the house. (Errors as in original)
To the extent that, as was submitted on behalf of the appellant, the Court accepted in its judgment of 8 October 2012 that the C property was worth approximately $100,000 less than had been accepted in the Court’s judgment of 10 July 2012, although the appellant would not acknowledge it, that reality, albeit retrospectively, provided support for the learned Federal Magistrate’s conclusion that the sale of the C property to preserve the parties’ equity in it was necessary, if not inevitable.
Accepting that the learned Federal Magistrate approached the application for the sale of the C property, in reliance upon the Court’s powers to make orders for settlement of property rather than the Court’s injunctive powers, the Court is not persuaded that the learned Federal Magistrate erred in the exercise of his discretion by failing in any of the respects articulated in support of this complaint. His Honour clearly directed his attention to all of the matters which the authorities suggest were relevant and appropriate to consider in the light of the facts as found by him.
As noted earlier, and as suggested to Counsel for the appellant during the hearing in this Court, the fate of the “appeal” ultimately turns upon whether a number of critical findings of fact relied upon by the learned Federal Magistrate can be shown to have not been reasonably open to him. As is not in doubt, those critical findings of fact included the ability of the appellant to avoid a sale of the C property by the CBA in the exercise of the powers conferred upon it by the mortgage it held over the C property, it not being in doubt that the mortgage was in continuing default, and whether, apart from the bank’s entitlement, ordering the sale of the C property was necessary to protect the parties’ dwindling equity in it. If his Honour’s critical findings of fact remain undisturbed, the proceedings could not have had any other outcome, even if the “principles” governing applications for interim property settlement were not fully observed.
As suggested to Counsel for the appellant, establishing that the court below could have made other orders in the terms asserted by her does not advance the appellant’s case. It is insufficient for an appellant to demonstrate that the learned Federal Magistrate could have made other orders in the exercise of his discretion. It must be demonstrated that, in ways which the law has long recognised, the learned Federal Magistrate could not reasonably have concluded as his Honour did in this case (see Edwards v Noble (1971) 125 CLR 296).
With respect to the submissions of Counsel for the appellant, as a balanced reading of the learned Federal Magistrate’s reasons for judgment confirms, his Honour carefully considered, but, for reasons which he clearly stated, rejected each of the alternatives to which Counsel for the appellant referred. With respect to the submissions of Counsel for the appellant, the learned Federal Magistrate did, without saying, or needing to say, that he was doing so in the particular ways asserted on behalf of the appellant, have regard to all of the matters complained of.
The Court is not persuaded that any error of principle vitiated the learned Federal Magistrate’s determination of the application for the sale of the C property, or that the orders made were not just and equitable. Again, so concluding is not necessarily fatal to the appellant’s appeal.

Ground 3

Ground 3 of the Further Amended Notice of Appeal provided:
3.The Court erred in making the preliminary assessment of the application under s.90SM in failing to give weight to the applicant’s superannuation.
The submission on behalf of the appellant provided:
28.While reference was made to the existence of superannuation in the transcript [...] the Federal magistrate’s findings at paragraphs 19, 20, 46 and 51 fail to take into account Ms [Farmer’s] superannuation.
The submissions on behalf of the respondent in relation to this ground provided:
29.This submission is patently incorrect and ignores the reality of the appellant’s proposed orders at trial.
30.His Honour specifically deals with this issue at paragraph 48 of the Judgment. He correctly summarises the reality of the appellant’s proposal at trial as being that all the respondent should receive is the increase in her superannuation and nothing from the sale of the property. [...] The respondent’s counsel was unable to explain to the court how such a result could be, in the context of the facts of the case, just and equitable.
31.In terms of the interim application the appellant’s position was similarly unreasonable in comparison to the proposal of the respondent. His Honour was entirely correct when he points out [...]
“At the moment, on the right side of the bar table, I have, in effect this proposal: that if I allow her in - that is, the applicant in - $500 per week will be paid towards the Commonwealth Bank, and the property will be put on the market for sale. Right. So that’s on the right hand side of the bar table.
On the left hand side of the bar table I have nothing.
I have no reassurance at all that the mortgage will be paid. I have a track record of nonpayment of the mortgage, and I have evidence of rental being received from the property that isn’t applied towards the mortgage.”
32.In both respects the appellant’s position was obviously unreasonable on any objective basis. (Original emphasis and errors as in original)
These challenges overlap to some extent with those articulated in grounds 2 and 16. Whilst there is force in the submissions of Counsel for the respondent, the more compelling reason for rejecting this challenge is that the Court has not been referred to any evidence establishing that the respondent’s superannuation interests were able to be applied to preserve the parties’ dwindling equity in the C property. More will be said in this regard in the context of the appellant’s further evidence.

Grounds 4, 5, 11, 12 and 14

Grounds 4, 5, 11, 12 and 14 of the Further Amended Notice of Appeal provided:
4.That the Court erred in finding at paragraph 45 that there was sufficient evidence that there was a real risk that the mortgagee the Commonwealth Bank of Australia would exercise its powers to sell the property known as and situate at [C] in the State of NSW.
5.That the Court failed to give sufficient weight to the evidence of the Respondent that the Commonwealth Bank of Australia would not exercise its powers for the sale of the property notwithstanding the existence of arrears.
11.The Court found that there was a real risk a mortgagee would exercise powers of sale when the respondent had complained to the Financial Ombudsman Service and the mortgagee was required to suspend action until the complaint should be determined which had not occurred at the date of the application for interim orders.
12.The Court misinterpreted (paragraph 28) the purpose and effect of an offer made without prejudice by the mortgagee in connection with the Financial Ombudsman Service complaint and thereby fell into error (paragraph 46).
14.The Court erred in ordering on 21 September 2012 that the property be sold at a price not less than $825,000 and making the applicant the trustee for sale when:
(a)The mortgagee was subject to the conditions of the Terms of Reference of the Financial Ombudsman Service which required that it take no action until the case should be determined by the Financial Ombudsman.
(b)The Court erred in law in finding that if an offer by the Commonwealth Bank was not accepted the complaint in the Financial Ombudsman Service must no longer be proceeding when that finding was contrary to the effect of the National Consumer Credit Act 2009, the National Credit Code, and the terms of reference of the Financial Ombudsman Service and the conditions of the Commonwealth Bank’s licence as a credit provider. (Errors as in original)
The submissions made in support of grounds 4, 5, 11 and 14 were identical with those made in support of ground 12. As indicated earlier in these Reasons for Judgment, the major error of fact by the learned Federal Magistrate asserted on behalf of the appellant related to the status of the appellant’s complaint to the Financial Ombudsman Service.
Rather than paraphrase the submissions on behalf of the appellant in relation to these grounds, and thereby risk distorting them, the Court reproduces those submissions. The submissions on behalf of the appellant provided:
20.The evidence before the Court was that there was a complaint to the Financial Ombudsman Service concerning the mortgage (Exhibit R9). That being the case, Commonwealth legislative provisions applied:
(a)the National Consumer Protection Credit Act 2009;
(b)Australian Securities and Investment Commission Act 2001;
(c)the Corporations Act 2001, and
(d)the licensing requirements of the financial services provider which bound it to participate in an external dispute resolution scheme and as such to adhere to Terms of Reference of the Financial Ombudsman Service.
Clause 13.1 of the Terms of Reference generally enjoined the mortgagee from instigating legal proceedings against the appellant. The limited exceptions to the administrative stay pursuant to Clause 13.1 (b) did not apply.
So long as there was a complaint and it had not been resolved by the processes of the Financial Ombudsman’s Service the mortgagee was prohibited by the Terms of Reference from taking enforcement action.
The Terms of Reference include a detailed process of dispute decision (Part 8) concluding with a Resolution or Determination.
21.Manifestly, Exhibit R9 was neither a Resolution or Determination. On its face it was no more than an offer by the mortgagee made to both the parties and therefore the Court erred when it concluded that service of a notice pursuant to s.57(2)(b) Real Property Act 1900 on 18 January 2012 (Exhibit A6), some six months before the application for interim orders was pressed was an imminent threat.
22.There was no evidence that the Commonwealth Bank had acted on the notice by commencing action in a Court for orders for possession or by attempting to sell the property. It should have been inferred by the Court and by Ms [Farmer] that the risk was not imminent.
23.It is incumbent on the appellant to draw the appeal Court’s attention to the “without prejudice” nature of the Financial Ombudsman’s Service. Any offer made by the Financial Service Provider was privileged unless it consented to disclosure. The “without prejudice” nature of the dispute resolution process however permitted the appellant to disclose to a court the existence of the dispute. Indeed the Financial Ombudsman Service provides a form letter on its website for production to Courts to explain the impact of a dispute on the financial service provider’s ability to maintain proceedings or to enforce.
24.In cross examination where the appellant was questioned about the s.57(2)(b) notice it is evident she was attempting to explain the status of the Financial Ombudsman Service process but was cut off by the cross examiner [...].
25.The result was that the cross examiner put a question which was, on the facts and law now known, to be based on an incorrect premise [...]. Ms [Panshin], to her detriment, gave an answer which was misleading in context and led to the Federal Magistrate’s conclusion that there was an imminent sale. She was led into agreeing to the proposition that if the other party did not execute the document of offer that it (sic) will not prevent the bank from executing its right to take possession and sell the property. However no weight should have been given to that admission because in fact the Financial Ombudsman Service process was not then exhausted. It was not squarely and simply put to her that if there was no agreement there would be an immediate sale by the Bank.
26.In re-examination there was further misconception by those in Court and in consequence the appellant was denied the opportunity to explain to the Court the nature of Financial Services Ombudsman process [...]. (Errors as in original)

In response to these challenges, Counsel for the respondent submitted:
23.The appellant’s submissions in this respect either ignore or misinterpret the evidence before the court.
24.Tendered to the Federal Magistrate was a letter from the Financial Ombudsman Service dated 12 October 2012 (exhibit A3). [...]
25.The meaning of that letter could not be in doubt and is in plain terms, namely, that the Financial Ombudsman Service had declined to consider the dispute in circumstances where it took the view that:
a.Under its terms of reference it is unable to consider disputes about assessments of credit risk and is unable to review decisions concerning credit risk;
b.That there was a more appropriate place to deal with the dispute, namely, the Federal Magistrate’s Court and in that circumstance it was declining to deal with the matter.
26.Further that letter makes clear that the Commonwealth Bank was not prevented from taking enforcement action against the property after 30 days. [...]
27.Accordingly the Federal Magistrate was entirely correct when he says at paragraph 47 of the Judgment: [...]
“There appears to be no reasonable alternative to sale, given the section 57(2)(b) Notice and the lack of confidence I have in the respondent. Her proposal is not one the applicant will accept.”
28.Given the above the court would not accept the appellant’s submission at paragraph 22 of her submissions that there was no imminent risk to the property. (Original emphasis)
The submissions of both Counsel, referred to the learned Federal Magistrate’s reasons for judgment of 10 July 2012 dealing with the document (Exhibit R9) which is pivotal to this group of challenges. His Honour recorded in this regard:
28.…. Exhibit R9 is a letter dated 5 July 2012 from the Commonwealth Bank to the respondent, referring to an agreement to stay recovery action for three months to enable the respondent to refinance the home loan, but also clearly stating that if it is not repaid by 5 October, the respondent will voluntarily surrender the property to the bank. The evidence from the applicant is that she was not a party to this purported agreement, nor does she agree.
In the learned Federal Magistrate’s subsequent judgment of 8 October 2012, his Honour reiterated that:
17.… exhibit R9 is evidence that the Financial Ombudsman process is exhausted. This must be the case. For one thing, there is no evidence at all that the respondent can comply with the terms of the resolution agreement, that is to say, repay the home loan on or before 5 October. It is abundantly clear that the respondent will never voluntarily surrender the property to the bank before 5 October. The stay on enforcement was only offered until 5 October.
On 8 October 2012, the learned Federal Magistrate further recorded that:
18.The Financial Ombudsman Service dispute resolution scheme does not work on the basis that a credit provider’s rights are stayed until such time as the complaint is resolved to the satisfaction of the complainant. What it provides for is a reasonable opportunity for discussion, offer and compromise. That is what exhibit R9 evidences. The court does not accept that if the respondent simply keeps ignoring or rejecting offers of compromise made by the bank that she can indefinitely postpone enforcement.
19.There is no evidence before the court to satisfy it that by virtue of some provision under the Financial Ombudsman Scheme initiated by the respondent that there is any less risk of the mortgagee exercising its power of sale or enforcement in a situation where there are substantial arrears and where only the interest is being serviced. In this regard, the matters of risk identified by the court in its reasons of 10 July remain unchanged. The respondent now has had two opportunities to demonstrate that somehow the complaint to the Financial Ombudsman scheme removes the risk. She has failed twice.
In oral submissions, Counsel for the appellant reiterated that, having regard to the terms of Exhibit R9, the learned Federal Magistrate erred in failing to find that, whatever they were, until 11 November 2012 the appellant’s rights in relation to the Financial Ombudsman Service had not been exhausted.
The Appeal Book Index refers to Exhibit R9 before the learned Federal Magistrate as a “Letter from Commonwealth Bank to Respondent dated 5.6.2012”, however the document contained in Appeal Book volume 4 at pages 818-189 is a Commonwealth Bank “Resolution Agreement” which is undated.
The Court was referred to a letter dated 12 October 2012 from the Financial Ombudsman Service to the appellant which became Exhibit A3 before the learned Federal Magistrate on 24 October 2012. Rather than divert to consider how that exhibit could be relied upon before this Court in support of challenges against orders made on 10 July 2012 and 8 October 2012, the Court proceeds to analyse what the document conveys. The document records that:
... On 19 January 2012 you lodged a dispute about your home loan with CBA. In your dispute form you said that you were experiencing financial difficulty and you applied for financial hardship assistance. You wish to keep the property at [C] (the property). You also want CBA to consolidate your personal loan, credit card and home loan. You say that, once the credit facilities have been consolidated, you are willing to pay $3,500 per month towards the debt.
The letter proceeded to record, erroneously in its description of the orders:
We have been provided with the consent order made by the Federal Magistrates’ Court proceedings number (P)SYC2252/2011 dated 10 July 2012.
The letter continued:
… On the available information it appears that the outcome you are seeking to keep the property and refinance of your facilities conflicts with the orders made by the Federal Magistrates’ Court. Further, we are unable to compel CBA to consolidate or refinance your credit facilities. CBA’s decision whether to consolidate or refinance your credit facilities requires credit risk assessment and FOS does not have the power to review such decisions.
Under the heading “If you disagree with our assessment” the letter advised:
If you have any information which establishes that my understanding of the dispute is not correct, please write to me again within 30 days and provide details.
If you would like more information about our jurisdiction, our Terms of Reference and our Operational Guidelines are available at I do not receive your written response by 11 November 2012 I will close our file and we will not consider the matter further. (Original emphasis)
The “Resolution Agreement” which has never been executed, provided for “stay recovery action until 5 October 2012” in the event of it being executed (located at page 818 of Appeal Book volume 4). As is not in doubt, that date has passed and the agreement has not been executed. Subject to matters which will be referred to later in these Reasons, there is no other material before the Court in relation to either the Financial Ombudsman offers of forbearance or other correspondence from the Financial Ombudsman Service or the CBA.
With respect to Counsel for the appellant, beyond her saying so, it has not been established that the legislative provisions referred to in the submissions in support of this group of complaints demonstrate that the learned Federal Magistrate erred in finding as he did. It is to be remembered that the critical finding in this regard was in terms of “real risk”. The submission that:
20. ... so long as there was a complaint and it had not been resolved by the processes of the Financial Ombudsman’s Service the mortgagee was prohibited by the Terms of Reference from taking enforcement action (errors as in original)
has not been substantiated. Even if it had, that would not change anything in this Court’s view, for reasons which will become apparent.
The learned Federal Magistrate’s conclusions in relation to the Financial Ombudsman Service have not been shown to have been other than reasonably open to him. Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in finding as a fact that “the evidence from the applicant [present respondent] is that she was not a party to this purported agreement, nor does she agree” with it (par 28 of reasons for judgment dated 10 July 2012).
Largely for the reasons submitted by Counsel for the respondent, the Court does not accept that the learned Federal Magistrate erred in making the findings of fact which he made, in relation to the entitlement of the CBA to exercise its rights under the security over the C property provided by the applicant and the respondent. Even if his Honour did, for reasons which will be articulated, that would not change anything.
The learned Federal Magistrate recorded, accurately there is no doubt, the terms of Exhibit R9, which was the letter from the CBA dated 5 July 2012. The terms of that document are quite clear. The learned Federal Magistrate was entitled to find, in reliance upon the appellant’s own evidence, that the appellant did not intend to avail herself of the indulgence provided by the “Resolution Agreement” proposed by the CBA until 5 October 2012. Moreover, as the terms of the resolution agreement clearly provided, unless the parties’ indebtedness to the CBA, which at that time approximated $600,000, was repaid by 5 October 2012, the parties were to “voluntarily surrender” the C property on 8 October 2012.
Quite apart from the absence of evidence of the appellant that she would agree to the Resolution Agreement, there was no evidence before the learned Federal Magistrate that the parties had any capacity, by refinancing or otherwise, to discharge their indebtedness to the CBA by 5 October 2012, other than by the sale of the C property.
Although the date of the document does not suggest that it could not have been before the learned Federal Magistrate in the proceedings which he determined on 8 October 2012, Exhibit A3, dated 24 October 2012, to which Counsel for the appellant referred, clearly, notwithstanding some factual errors in it, does not support the contentions of Counsel for the appellant in relation to the status of the appellant’s complaint to the Financial Ombudsman Service office, or the impact of such complaint if, contrary to the learned Federal Magistrate’s conclusion, the complaint process had not been “exhausted”.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate misunderstood or in any way erred in fact in concluding that the evidence did not establish that anything which the appellant had done, or was doing, or was reasonably likely to be able to do, would, on the balance of probabilities, impede the ability of the CBA to exercise its rights under its security over the C property.
These complaints, and the submissions in support of them, conveniently overlook another reality, of which Counsel for the respondent reminded the Court. Even if, contrary to the Court’s conclusion, the submissions of Counsel for the appellant in relation to the impact of the complaint to the Financial Ombudsman Service were accepted, that would change nothing. The unchallenged evidence before the learned Federal Magistrate was that the mortgage over the C property was in default, that such default was continuing, and that there were no realistic proposals, from either of the parties, to change that, or none which his Honour was obliged to accept. In reality, even if the CBA was precluded from seeking to exercise its rights, which has not been established, provided that other findings of fact made by him are not successfully challenged, the learned Federal Magistrate could reasonably have exercised his discretion to order the sale of the C property in order to preserve the parties’ rapidly diminishing equity in it without relying upon the rights he found CBA to have.
With respect to Counsel for the appellant, the fact that the CBA had not sought to exercise its rights, whatever they were, under its mortgage and/or the Real Property Act, is not the point. The reality, as suggested earlier in these reasons, is that the undisputed evidence established an ongoing diminution of the parties’ equity in the only tangible asset of substance of their former relationship. Unless his Honour erred in finding that the appellant had no capacity to preserve the equity in the C property there could be no basis for impugning the orders for its sale.
These complaints lack merit.

Ground 6

Ground 6 of the Further Amended Notice of Appeal provided:
6. That the Court failed to give sufficient weight to the evidence of the Appellant that she had the financial capacity at that time or shortly after that time to make mortgage payments and to the extent the Court was capable of making that assessment at the time of the interim hearing to purchase the interest of the Respondent to the appeal at the final hearing.
In support of this challenge it was submitted on behalf of the appellant that:
31. In this respect, the Court appeared to make findings of credit, although the hearing was part heard, the cross-examination of Ms [Farmer] was not complete and limited cross-examination (in which Ms [Panshin’s] answers were at critical stages cut off) was allowed when the final hearing discontinued and an interim hearing was embarked on. Further, as became apparent on 21 September 2012, the value of the house (on which such assessment as was made was based) was overstated. In addition if the further evidence to be found in the annexures to Ms [Panshin’s] affidavit of 17.10.12 is admitted on the appeal there is corroboration in annexure I of enquiries about refinance, in annexure J of the property’s rental value, and in K and L of her earnings.
In response it was submitted on behalf of the respondent that:
34. The evidence of the appellant did not establish an ability to meet the mortgage payments.
35. The appellant did not produce to the court any evidence that she had or could obtain the funds necessary to repay the mortgage let alone make any payment to the respondent which might be ordered by the court. These are not matters of credit, as asserted by the appellant in her submissions, they are matters of fact.
Significantly, the Court has not been referred to any passages of the transcript in support of the appellant’s complaints. Nor has the Court been referred to any evidence establishing that the findings of fact made by the learned Federal Magistrate upon which his discretion in relation to the sale of the C property was based on evidence other than that of the appellant herself, as his Honour’s reasons for judgment suggest.
With respect to Counsel for the appellant, the Court has not been referred to anything in the learned Federal Magistrate’s reasons for judgment which expressly or impliedly turned upon findings with respect to credit. Corroboration of “inquiries about refinance” cannot advance this, or any other challenge. As Counsel for the respondent submitted in relation to this and other issues, to the extent that the appellant had made, or was continuing to make inquiries, there was no evidence which established, on the balance of probabilities, that the appellant had the capacity to refinance the parties’ indebtedness to the CBA and/or to make payments which would preserve the parties’ equity in the C property.
This challenge fails.

Ground 7

Ground 7 of the Further Amended Notice of Appeal provided:
7. The Court placed excessive weight on the failure of the Appellant to properly complete a balance sheet in circumstances where the Appellant did not have the benefit of a Solicitor and so prepared the balance sheet herself and when the hearing was adjourned part-heard. (Original emphasis)
In support of this challenge it was submitted:
32. The Court made findings at paragraph 35, that no shares were disclosed on the balance sheet. The document was handed up on the first day as being a balance sheet which took the applicant’s balance sheet and had some figures entered on it under “Respondent’s value”. [...]. The appellant gave evidence directed to the interlocutory (or interim) applications. The substantive case was incomplete. The comments made when the appellant became distressed and left the Court [...] justified restraint in the assessment of the deficiencies in her material.
In his reasons for judgment, delivered on 10 July 2012, the learned Federal Magistrate said:
35. In cross-examination the respondent gave evidence that she sold some shares that in the course of the last few days had caused her bank balance to increase. Indeed, a close examination of the respondent’s bank statements with the Commonwealth Bank does raise some issues about share dealings. No shares are disclosed on the balance sheet prepared for the purposes of this hearing.
Those findings support the inferences drawn by the learned Federal Magistrate that the appellant had not applied her funds, whatever their source, towards the CBA debt. In what respect his Honour erred in finding the facts referred to above has not been suggested. The complaint unfairly ignores the reality that the learned Federal Magistrate was acutely conscious of both the appellant’s presentation throughout the proceedings, and the significance sought to be attached to it. His Honour recorded in that regard:
43. The respondent’s health and her behaviour in the proceedings raises concerns about her ability to either pay the mortgage or, in fact, sell the property.
44. Mr Ang submitted on behalf of the respondent that, firstly, the respondent’s behaviour in Court should not reflect on her credit, but simply demonstrates how much she is struggling to cope with this litigation. He submitted that if given the opportunity, the respondent would re-finance the debt in three months, that she could find work quickly, that there is no risk of loss of the property, and that indeed the respondent’s mother may be able to give her money to pay the mortgage.
It has not been established that the finding recorded in paragraph 43 was not reasonably open to the learned Federal Magistrate. Nor has it been established that his Honour impermissibly relied upon that finding in his determination of the issues before him.
No finding of fact recorded by the learned Federal Magistrate and complained of has been shown to have been erroneous. Nor has the Court been referred to evidence establishing that his Honour should have accepted any of the propositions advanced in the submissions on behalf of the appellant recorded in paragraph 44 of his reasons for judgment.
This complaint also overlooks the basis of the learned Federal Magistrate’s decision. The Court has not been referred to anything recorded by his Honour with respect to completing, or failing to complete “a balance sheet”, or that any such factor impacted adversely upon the appellant’s case before the learned Federal Magistrate. The issue was far simpler, as the learned Federal Magistrate’s reasons for judgment clearly and logically revealed.
This complaint has no merit.

Ground 8

Ground 8 of the Further Amended Notice of Appeal provided:
8. That the Court erred in not giving sufficient weight to the hardship to the Appellant which would be occasioned by her exclusion from the property known as and situate at [C] in the State of NSW from the property.
In support of this ground it was submitted:
33. The Court was on notice that the appellant was living in the property, she had been unemployed for some time and was clearly satisfied that she was unable to house herself. It considered that the hardship to her was ameliorated by her belief that if necessary her mother would house her. There was no evidence before the Court from her mother. In the circumstances an order that she vacate her home on 7 days notice was harsh and oppressive to her. The Court was also appraised of mental vulnerability and distress but was persuaded that she should be summarily ejected from her home without regard to the possible impact.

This complaint can be swiftly disposed of. The learned Federal Magistrate recorded that the appellant “agreed that she could live with her mother who apparently lives in Sydney” (par 38 of reasons for judgment dated 10 July 2012). There has been no challenge to that finding of fact. Nor, in the context of any other complaints, has that finding of fact been disputed. As is clear from his reasons, the learned Federal Magistrate did not however base his decision upon that, or any other, balance of convenience factors.
The learned Federal Magistrate revisited the issue later in his reasons for judgment and recorded:
49. The evidence of the respondent is that she could live with her mother. She thus has alternative accommodation and will suffer no hardship. She is also clearly confident about her prospects of getting work and of recovering a substantial sum from ASIC.
50. I acknowledge that leaving the property will be an emotional wrench for the respondent, but this is not the kind of hardship that I am prepared to give weight to in the context of this application. The applicant would avoid hardship if I make the orders proposed.
The finding was one of a number of undisturbed findings relevant to the broader issue of the sale of the C property. If the order for the sale of the C property was not erroneous, only by excluding the appellant from occupation of the property was a sale reasonably likely to occur, unless it be by way of mortgagee sale, in which event the appellant would be excluded from the property. It would be fanciful to suggest that the appellant’s continued occupancy of the property would not have rendered its sale more difficult. Only the respondent was, on the evidence before the learned Federal Magistrate, reasonably able to make any contribution towards the CBA mortgage pending the sale of the C property. The orders made by the learned Federal Magistrate were clearly open to his Honour, and represented the best, if not only, avenue for preserving and realising the parties’ modest equity in the C property.
Nothing raised in support of this complaint demonstrates merit.

Ground 9

Ground 9 of the Further Amended Notice of Appeal provided:
9. The Court erred in failing to grant an adjournment upon application by the Appellant’s Counsel and failed to give sufficient weight to the report of psychologist, [Mr B] (Exhibit R8), the complaints of the respondent of disability in the proceedings and whether her conduct in the case indicated that she was in such a mental state that the Court should consider her ability to participate in the proceedings, thereby resulting in a lack of procedural fairness at hearing on 6^th July 2012.(Original emphasis)
In support of this challenge it was submitted:
34.      On the second day of hearing the appellant became distressed [...]. The distress continued for an extended time and an adjournment application was made, a psychologist’s letter was tendered (Exhibit R8), the Court observed that on its face it supported the conclusion that she should not be present at court [...].
35.      It must be inferred that the adjournment application was not pressed in error [...].
36.      The interim orders were pressed on the party’s absence from the court and the hearing of the application commenced in her absence [...]. She was criticised during her absence and documents were tendered in support of the interim application.
37.      The events of the 6^th July resulted in a failure to conduct a fair trial because the applicant appeared to be under a disability within the meaning of FMCR 6 and 11.8. This was recognised by the Court and it fell into error in not immediately considering and deciding the application for an adjournment.
38.      It is settled law that in the case of an unrepresented litigant the court has a duty to ensure proceedings are fair and just (Barghouthi v Transfield Pty Ltd[2002] FCA 666: 122 FCR 19. This is an instance of the general duty of the court to ensure a fair trial. Another is the duty to the accused who is mentally incapable (Eastman v R [2000] HCA 29; 203 CLR 1; 172 ALR 39; 74 ALJR 915 (25 May 2000).
39.      That the Federal Magistrates Court has a duty to ensure that a litigant who is incapable of not capable of adequately conducting, or giving adequate instruction for the conduct of her case is enshrined in FMCR 6. The appellant’s distress and the supporting psychological report required the Court to consider whether it was fair to continue the hearing when it was doubtful that she could either adequately conduct her case or give adequate instructions on the day. (Errors as in original)
Having regard to the entirety of the transcript of the proceedings in relation to this issue, the basis of the assertions of Counsel for the appellant is either absent or, in numerous respects, not as Counsel submitted.
Largely for the reasons submitted on behalf of the respondent, the Court rejects this complaint. Counsel’s submissions recorded:
41.      The appellant’s submissions misstate the true situation.
42.      His Honour granted the appellant a short adjournment between 11.31 a.m. and 12.19 p.m. [...]
43.At 12.22 p.m. the appellant’s counsel tenders a report from Dr [B] dated 5 July 2012.
44.      The farcical situation the appellant had thus placed herself in becomes obvious upon his Honour’s reading of the contents of the report, including the appellant’s decision to appear the day before and clearly instruct her counsel to proceed with the trial. [...]
45.Further, the appellant’s submissions completely ignore the following facts:
a.At 2.05 p.m. the appellant returns and apologises to the court. [...]
b.The appellant’s counsel then withdraws the application for the adjournment and proceeds with the hearing. [...]
c.At no time thereafter was an adjournment sought;
d.There was never an application made for a case guardian.
46.The reference by the appellant’s counsel in her submissions to cases concerning unrepresented litigants ignores the fact that the appellant was represented by counsel throughout.
What was likely to have been different, had an adjournment (which was not sought in any event) been granted, has not been suggested. The further evidence sought to be adduced in the appeal to this Court suggests that nothing would have been different had the proceedings been adjourned, and the parties’ equity in the C property further eroded. Nor has it been demonstrated that the appellant, through her Counsel, was under any relevant disadvantage during the proceedings before the learned Federal Magistrate.
This challenge fails.

Ground 13

Ground 13 of the Further Amended Notice of Appeal provided:
13. That the Court erred in criticising communication between the Appellant and the real Estate [agent], [Mr M] (paragraph 19) and further erred in finding the Appellant had acted unreasonably (paragraph 46). (Errors as in original)
None of the pivotal findings of fact in paragraph 46 has been successfully challenged in this appeal. This complaint is demonstrably without merit. The ground misstates the findings of the learned Federal Magistrate, as the paragraphs of his Honour’s reasons for judgment relied upon confirm.
No significance was ultimately placed upon the apparent “falling out” between the appellant and the real estate agent to which his Honour referred in paragraph 19. Nor has the finding there recorded been shown to have been other than reasonably open to his Honour. The finding, having assumed significance in his Honour’s determination of the issue.
This challenge fails.

Ground 15

Ground 15 of the Further Amended Notice of Appeal provided:
15. The Court erred in appointing the applicant in the proceedings trustee for sale when her interests were in conflict with the interests of the respondent.
This challenge has been dealt with in the context of ground 12 and other grounds argued in conjunction with it.

Ground 17

Ground 17 of the Further Amended Notice of Appeal provided:
17. The Federal Magistrate on the evidence available erred in failing to consider alternatives other than interim sale of the property at [C] and on the evidence available in finding in judgment of 10 July 2012:
(a)at paragraph 20 of judgment sale of the property at [C] was the only option open to the Court;
(b)at paragraph 28 of judgment that Exhibit R9 from the Commonwealth Bank to the Appellant referred to an agreement for a stay of recovery action which if not repaid by 5 October would result in voluntary sale of the property;
(c)at paragraph 39 of judgment that “there is an imminent threat of mortgagee sale”;
(d)at paragraph 42 of judgment “In the circumstances the only way to preserve this asset is, to sell it after putting the applicant in possession and ordering its sale”;
(e)at paragraph 42 of judgment “In the circumstances the only way to preserve this asset is, to sell it after putting the applicant in possession and ordering its sale” as an interim property order. (Errors as in original)
The substance of the various components of this complaint has been addressed earlier in these reasons. The learned Federal Magistrate did not at paragraph 20, or elsewhere make the finding asserted to have there been made.
Having carefully and accurately, made findings of fact, none of which has been disturbed, his Honour concluded that:
47. There appears to be no reasonable alternative to sale, given the section 57(2)(b) notice and the lack of confidence I have in the respondent. Her proposal is not one the applicant will accept.
The undisturbed basis of his Honour’s “lack of confidence” in the appellant to re-finance or otherwise be able to maintain the parties’ diminishing equity in the C property was cogently explained in preceding paragraphs of the learned Federal Magistrate’s reasons for judgment. Even if, which has not been established, his Honour erred in relation to the ability of the CBA to force a sale of the property, the additional matter upon which he relied justified his Honour’s decision.
None of the inferences drawn by his Honour has been shown to have been other than reasonably open to him. None of the facts upon which those inferences were based has been shown to have been other than reasonably open to the learned Federal Magistrate.
With respect to the submissions of Counsel for the appellant, nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in concluding as he did. There clearly did not “appear” to be any “reasonable alternative” to the sale of the C property. The only issue was whether such sale would be by the parties, in circumstances over which they had some control, or by the CBA, in circumstances over which the parties had little or no control.
As recorded earlier in these Reasons, even if the learned Federal Magistrate erred in the various ways submitted on behalf of the appellant in relation to the ability of the CBA to exercise its rights under its security instrument that would change nothing.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in concluding, as clearly he did, that, notwithstanding her genuine desires in that regard, the appellant would not be able to do anything to preserve the parties’ diminishing equity in the C property.
Accordingly this challenge fails.

Grounds 18-21

It is unnecessary to consider the challenges to the stay orders made by the learned Federal Magistrate on 8 October 2012 given that the Court has now heard the application for leave to appeal against the orders in relation to which those stay orders operated.

the further evidence

Given that no proposed ground of appeal has been made out, it is necessary to consider the further evidence sought to be adduced by the appellant in order to determine whether, if accepted, such evidence would demonstrate appealable error.
As a reading of the affidavit of the appellant sworn 17 October 2012 makes clear, the great bulk of what is there alleged by the appellant could not be “accepted” as evidence of fact, even in the context of s 93A of the Act if it applied, being a combination of unqualified opinion evidence and submissions.
To the extent that the appellant reiterates the assertion that the respondent has superannuation worth $178,808, which might be applied towards the mortgage over the C property, there is no evidence that it could be so applied or that the respondent could compel it to be. Not surprisingly given the respondent’s age, and the law in relation to accessing superannuation interests, the document relied upon by the appellant suggests that the whole of the respondent’s superannuation interest is “preserved”, and that on “resignation” the respondent would not be able to access any of her entitlement. If anything, this evidence “buttresses” the decision of the learned Federal Magistrate.
Nothing this Court, or the Federal Magistrates Court, orders precludes either party from seeking to apply funds owned or controlled by that party towards the indebtedness of the parties to the CBA. Nor does it preclude either party from buying the C property.
The annexures to the appellant’s affidavit would not, individually or cumulatively, if accepted, demonstrate that the orders under challenge were erroneous.
The appellant’s letter dated 15 October 2012 to the Financial Ombudsman Service changes nothing, either in relation to the learned Federal Magistrate’s findings of fact, or the status of the appellant’s complaint to that office.
The letter from A Group dated 16 October 2012 is significant, albeit more for the reasons asserted by Counsel for the respondent than by Counsel for the appellant. The letter records: “We have not put in the loan applications, so as not to affect the credit reporting of Ms [Panshin]”. Whatever that might mean, the reality is that no loan application has been made. In the light of the learned Federal Magistrate’s undisturbed findings of fact, it is improbable that a number of the other conditions referred to in the A Group letter could be met by the appellant in any event. There is no evidentiary foundation for concluding that the appellant could make any payment, or take any step which would be likely to preserve the parties’ equity in the C property.
The letter from a real estate agency of 4 July 2012, which predated the decisions of the learned Federal Magistrate complained of, and relates to market rental of the C property, is presumably intended to demonstrate that, if she were permitted to do so, the appellant could rent the C property and apply the rental there indicated. Even if that was so, there is no evidence that that would change anything in terms of arrears of mortgage to the CBA or the CBA’s rights under its security instrument.
None of the other documentation attached to the affidavit of further evidence of the appellant could advance her complaints.
It is then necessary to refer to the second affidavit of further evidence of 14 November 2012 sought to be relied upon by the appellant. That affidavit had annexed to it, without explanation, a document titled “settlement agreement” between the CBA and the parties. That document has not been executed.
The draft agreement records that, unless the parties repay their indebtedness to the CBA with respect to the C property, which is now well in excess of $600,000, by 28 February 2013, the parties are to “voluntarily surrender” property to the CBA. Whilst the CBA may be willing to offer such a resolution, the evidence does not establish anything different to the circumstances which were found by the learned Federal Magistrate.
Indeed, as Counsel for the respondent submitted, the further evidence is significant for what it fails to reveal. That is particularly so when it is remembered that the appellant’s current employment contract has expired. Accepting that the CBA is willing to enter into the settlement agreement attached to the appellant’s affidavit of 14 November 2012 changes nothing.
The further evidence of Mr B, a clinical psychologist, dated 10 November 2012, would not, if accepted, demonstrate that the decision of the learned Federal Magistrate was erroneous.
An earlier report from Mr B dated 5 July 2012 was received into evidence before the learned Federal Magistrate in the proceedings determined by him on 10 July 2012. His Honour recorded that Mr B:
29. ... believes that the respondent suffers from chronic adjustment disorder with mixed anxiety and oppressed mood, with post traumatic stress features.
The learned Federal Magistrate further recorded that in cross-examination the appellant “agreed that she is still seeing Mr [B] and is taking medication that relaxes her” (par 37).
The further evidence of Mr B reiterated that the appellant was:
... suffering a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with post traumatic features.
Mr B proceeded to assert the basis of how that condition resulted, by assuming matters of fact which clearly were not within his personal knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).
Mr B reiterated his opinion that:
... court matters are having the effect of retraumatising Ms [Panshin], leading to an exacerbation of her symptoms of anxiety and depressed mood and post traumatic stress features, consistent with a diagnosis of chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
As is apparent, Mr B recorded that:
There is no suggestion of serious psychiatric disorder, e.g. psychosis. Thoughts both for content and process are deemed to be normal. There is no evidence of perceptual disturbance, e.g. delusions, hallucinations, ideas of reference or feelings of passivity.
Ms [Panshin] presents as cognitively in tact.
With respect to Mr B, through no apparent fault of his, the questionable factual underpinning of some of his expert opinion evidence, about which this Court need say no more, means that accepting his evidence would not demonstrate that the decision of the learned Federal Magistrate was erroneous.
As these Reasons have explained, the critical issue in these proceedings was, and is, whether the learned Federal Magistrate erred in concluding that there appeared no reasonable alternative to a sale of the C property if the ongoing diminution of the parties’ equity in it was to be avoided. As recorded in these Reasons, none of the challenges to his Honour’s conclusion in that regard has been established. The further evidence does not advance those challenges.
To the extent that Counsel for the appellant submitted that the learned Federal Magistrate had erred in concluding that the appellant’s claim probably exceeded her likely entitlement, as suggested to Counsel for the appellant, even if that challenge were established, which it has not been, that would change nothing unless the learned Federal Magistrate’s conclusion with respect to the need to or desirability of selling the C property was disturbed. That decision having not been disturbed, nothing would change, even if, contrary to this Court’s conclusion, the learned Federal Magistrate erred in concluding that the appellant could not make out her case for an order that she receive the parties’ equity in the C property.
Even if, contrary to the Court’s conclusions in relation to the proposed appeal and the further evidence adduced by the appellant, the learned Federal Magistrate erred in making the orders he did in July and October 2012, this Court could, and would, re-exercise his Honour’s discretion, and make the same orders, albeit doing so pursuant to s 114 of the Act. The Court could properly re-exercise the discretion of the learned Federal Magistrate given that the appellant has filed extensive, and recent, evidence in addition to that which was before the court below. There would accordingly be no impediment to this Court re-exercising his Honour’s discretion in an interlocutory application (see Allesch v Maunz (2000) 203 CLR 172).

conclusion

No proposed ground of appeal having been made out, and the further evidence failing to demonstrate that the decisions under challenge have been erroneous, there can be no granting of leave to appeal, much less any allowing of the appellant’s proposed appeals.

costs

At the conclusion of the hearing of the proceedings, costs were reserved.
The Court will order that any application for costs, submissions in support of any applications for costs, which could, in the circumstances, only be potentially sought by the respondent, be filed and served within 21 days and that any submissions in response thereto be filed and served within 21 days thereafter.
Costs will otherwise be reserved.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 30 November 2012.

Associate:

Date: 30.11.2012