PAPPIN & PAPPIN
[2019] FamCAFC 240
•11 December 2019
FAMILY COURT OF AUSTRALIA
| PAPPIN & PAPPIN | [2019] FamCAFC 240 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband sought leave to adduce further evidence – Where the husband seeks to read an affidavit annexing 4 documents that he says demonstrates error on behalf of the primary judge – Where the documents do not demonstrate error – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband filed an Application in an Appeal for costs in the event that he succeeded in the appeal – Where the appeal is not successful – Application dismissed. FAMILY LAW – APPEAL – PROPERTY – Appeal against orders dividing the parties’ property in favour of the wife receiving 65 per cent – Where the husband asserts that the primary judge erred in principle, took into account irrelevant matters, made factual errors, was bias, did not afford procedural fairness to the husband, gave reasons that were inadequate and that the decision was plainly wrong – Where it was open on the evidence for the primary judge to make the relevant findings – Where the appeal raised many alleged errors which had no merit or materiality – Appeal dismissed – Order that the husband pay the wife’s costs. |
| Family Law Act 1975 (Cth) s 75 and s 93A |
| AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Bennett and Bennett (1991) FLC 92-191 Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 76 DJM & JLM (1998) FLC 92-816; [2005] FamCA 195 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162 Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Sun Alliance Insurance Ltd v Massoud (1990) 94 ALR 11; (1989) VR 8 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Pappin |
| RESPONDENT: | Ms Pappin |
| FILE NUMBER: | BRC | 11607 | of | 2017 |
| APPEAL NUMBER: | NOA | 64 | of | 2019 |
| DATE DELIVERED: | 11 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 14 November 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 June 2019 |
| LOWER COURT MNC: | [2019] FCCA 1579 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Drysdale |
| SOLICITOR FOR THE RESPONDENT: | McInnes Wilson Lawyers |
Orders
The Appellant’s Application in an Appeal filed 31 October 2019 be dismissed.
The Appellant’s Application in an Appeal filed 5 November 2019 be dismissed,
The Appellant’s Amended Notice of Appeal filed 21 October 2019 be dismissed.
The Appellant pay the Respondent’s costs in the sum of $12,643.48 within twenty-eight (28) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pappin & Pappin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 64 of 2019
File Number: BRC 11607 of 2017
| Mr Pappin |
Appellant
And
| Ms Pappin |
Respondent
REASONS FOR JUDGMENT
Introduction
On 14 June 2019, for reasons then published (“Reasons”), the primary judge pronounced orders which effected a division of the parties’ property, such that 65 per cent would go to Ms Pappin (“the wife”) and 35 per cent to Mr Pappin (“the husband”). From those orders, the husband appeals. The wife opposes the appeal.
Background
The husband was born in Country B in 1964. It appears he obtained qualifications in engineering in that country. He was 35 years of age when he and the wife commenced a relationship there in June 1999. At the time he was working as an engineer at Company D.
The wife was born in Country B in 1966. She obtained a bachelor’s degree and master’s degree in science, and an advanced diploma in science. She was 32 years of age, and working as a consultant, when the parties commenced their relationship.
The parties commenced living together in June 2000 and married later that year.
In 2001 the parties’ only child, Ms Z, was born. She is therefore presently 18 years old.
The parties purchased a unit in Country B in July 2001 and moved into it. As at the time of the trial before the primary judge, they continued to own that unit.
Subsequently, the husband obtained employment in Country C, and then later in several places throughout Country B, and for those periods of time, the parties did not cohabit, although their relationship continued.
In February 2009 the husband moved to Australia to commence work as an educator at the E University. The wife and child followed in May 2009. In March 2010 the wife commenced a PhD at the university. Her thesis related to science, although she has not completed it.
In January 2012 the husband moved to Town L, as he had obtained employment as an educator at F University. The wife and child followed some months later. The parties purchased the former matrimonial home, at Suburb G, in December 2013.
Thereafter the parties’ relationship fell into difficulty. They separated in 2015, but reconciled in about June 2016.
On 10 March 2017 the husband obtained employment as an educator at H University. Although he moved to live in that city, the wife and child remained living in Town L. That was the situation when the parties finally separated in late May 2017.
As at the time of trial, the husband remained employed as an educator in Town J, and the mother was essentially unemployed, albeit earning a very small amount of money working in Town K. Sadly, post separation it appears as though the child has had little, if anything, to do with her father, and remains in the sole care of the wife.
The primary judge’s reasons
The primary judge commenced by identifying that, whilst the wife’s proposal of a 65 per cent/35 per cent split in her favour was clearly articulated, there was some difficulty in identifying the proposal of the husband.
His Honour then determined that it would just and equitable to make orders adjusting the parties’ property interests, because although separated, they still had joint property, and therefore needed to sever their financial relationship (at [12]). His Honour then set about the task of determining the items within the parties’ property pool, and their values. In doing so, he determined nine disputes between the parties in relation to the pool. Ultimately his Honour found that the pool of assets and liabilities, including superannuation, had a net value of $684,383.38.
His Honour then set about assessing the parties’ respective contributions to the pool. He recognised that in doing so he was undertaking a holistic, rather than mathematical exercise. He identified and considered the parties’ financial and non-financial contributions. Ultimately he determined that, by reference to their respective contributions, the parties’ entitlements were equal.
His Honour then considered whether any adjustment should be made for factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), and ultimately determined that, in view of the wife’s care of the parties’ child, and her limited prospects of obtaining employment, an adjustment of a further 15 per cent in her favour was justified.
Inferentially, his Honour was satisfied that the final adjustment, of 65 per cent in favour of the wife, achieved a just and equitable outcome.
The appeal generally
As he did before the primary judge, the husband self-represented in the appeal. The grounds of appeal articulated in his Amended Notice of Appeal filed 21 October 2019 are only seven in number, but ran to a little less than two and a half pages of closely typed, small font, print. Many of the grounds contain particulars, although some of them are not in fact particulars of the ground that they are raised in support of. Further, the husband’s Summary of Argument did not greatly assist in structuring his arguments in a way that rendered them easily understandable.
Accordingly, I re-structured the husband’s grounds of appeal, in a way which reflected their content, but also assisted in distilling what I perceived to be the gravamen of his many complaints. I circulated that document shortly prior to the hearing commencing, and the husband accepted that it accurately reflected his case, albeit the need for some further refinement was identified during the course of argument. Therefore in these reasons I will use that document (as modified) as if it were the Notice of Appeal.
Also before me was the husband’s Application in an Appeal filed 31 October 2019, by which he sought leave to adduce further evidence in the appeal in the form of an affidavit of his sworn 28 October 2019. That leave was opposed by the wife. I reserved my decision in relation to that application.
The husband’s application in an appeal
Section 93A(2) of the Act gives this court a discretion to admit further evidence. The principles relevant to that discretion were discussed in the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172, where at [114]-[116] McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The husband’s affidavit which he seeks to read in the appeal attaches four documents. All pre-date the trial. The first is the settlement statement for the sale of the former matrimonial home. It is said to demonstrate error, in that the net amount received was $117,384.17, not $94,095.67 as found by the primary judge. However the latter figure is the balance left (with other adjustments) after an interim property settlement to the wife of $20,000 was paid out of the proceeds. The settlement statement therefore does not show error.
Next, the husband sought to tender a letter from the wife’s solicitors dated 9 April 2019, under cover of which disclosure of the wife’s documents occurred, apparently well overdue. The significance of that was that it was the day before the trial. However the husband complained of that to the primary judge who, as shall be seen, substantially rejected the tender of further material of the wife. The letter of 9 April 2019 is therefore of no assistance.
Next, the husband seeks to put into evidence a series of letters from his former solicitor to him which, he says, shows that it was the wife who had been a significant impediment to the parties’ jointly valuing the Country B unit. As shall be seen, given that the unit was ordered to be sold, the question of whether it was the husband, the wife, or both, who did not cooperate in relation to the valuation, is of little moment. In any event, the letters only contain the solicitors’ assertions as to his interpretation of events.
Finally, the husband seeks to have admitted an order of Judge Turner made 7 November 2018, listing the matter for trial, albeit not specifying a date. I infer the matter was listed for trial before her Honour on that day, although she was unable to then deal with it. This is relevant to the husband’s argument that the wife caused the delay in the trial being reached, and hence his superannuation should be valued at 7 November 2018, rather than 10 April 2019, when the trial finally proceeded. The order of Judge Turner could not possibly support that argument, or otherwise illuminate error.
I decline to admit any of the further material. The husband’s Application in an Appeal will be dismissed.
Ground 1
As recast, this ground is:
That the primary judge erred in principle by:
(a)Failing to follow the appropriate legislative pathway; and
(b)Failed to consider each parties’ proposal on their merits
in that he:
(i)Wrongfully refused the husband’s application for an adjournment of the trial;
(ii)Allowed the wife to rely upon updated financial material, without allowing the husband to respond (which the husband ultimately did by way of affidavit filed after the trial had concluded);
(iii)Relied upon the wife’s material without adequately testing or analysing it for error;
(iv)Added back into the pool of assets the husband’s legal fees paid by him post separation, without considering the parties’ post separation contributions, and particularly that the husband had paid for those fees from his post separation income.
I will deal with those particularised assertions, and then consider whether error in principle is established.
The husband contends that he sought to have the trial adjourned when it was called on. The transcript does not support that. When I pointed that out to him, he said that he was, in effect, precluded from making an application to adjourn the trial, by the conduct of the primary judge. The transcript does not support this contention either. There is no merit to this challenge.
As to the alleged error in permitting the wife to rely upon updated material without affording the husband the opportunity to respond to it, the transcript discloses that, when the trial commenced, the wife sought to rely upon material, including an affidavit and financial statement both sworn on the preceding day, 9 April 2019. The primary judge rejected counsel for the wife’s attempt to rely upon the updating affidavit, albeit ultimately its tender was not pressed by him. The only new material beyond the parties’ trial affidavits which the primary judge allowed to then be admitted into evidence, was a letter detailing the husband’s superannuation fund balance as at 4 April 2019, a schedule of assets and liabilities, which later became the balance sheet, and an updated statement in relation to the wife’s Country B bank account, as at 1 April 2019.
Subsequently, the husband made submissions to the primary judge that the letter from his superannuation fund gave an inaccurate picture of the value of the fund at that time, but his argument in that respect was, and remains, difficult to understand. In part, that may be because the husband contended that the trial ought to have proceeded when it had been listed, but not heard, the previous year, and hence the value of his superannuation should be taken as at that date. Plainly such an argument had no merit.
There is no substance to this matter of complaint.
The third matter complained of by the husband, is that the primary judge did not adequately test or analyse the wife’s material for error. The husband now says that there were inconsistencies and errors within that material, but at trial he did not cross-examine the wife by reference to those. Further, he did not otherwise conduct his case in that way. A party is bound by the way they conduct their case at trial, even if they are self-represented (Metwally v University of Wollongong (1985) 60 ALR 68).
The fourth matter of complaint is that the primary judge added back into the pool the husband’s legal fees, which he had paid post separation. The husband’s complaint in this respect seems to stem from the fact that he was first advised of the intention on the part of counsel for the wife to seek to add these figures back in to the pool, on the day of the trial. Next, the wife then seized upon the husband’s statement to the primary judge that his costs were in a particular sum, which was much greater than he had previously disclosed.
The basis for the wife’s argument that the husband’s legal fees should be added back, seems to primarily lie in the fact that her solicitors were acting for her on a deferred fee basis, whereas the husband’s previous solicitors had not. Therefore she would meet her fees post property settlement from her entitlement, whereas the husband had depleted the pool of assets otherwise available by paying his legal fees prior to trial.
In those circumstances there was a discretion on the part of the primary judge to add back legal fees (DJM & JLM (1998) FLC 92-816; AJO & GRO (2005) FLC 93-218).
To the extent that it is said that the primary judge did not take into account that the husband’s costs were met from his post separation earnings, there was no evidence from the husband to that effect. In any event, the primary judge did take into account post separation contributions, as he was cognisant of the fact that the husband had continued in employment, and was aware that he was paying child support. He was further aware that the wife had remained the primary carer of the child, and indeed her sole carer. The wife’s material was replete with the difficulties which the limited assistance that she was obtaining from the husband, and the considerable expenditure required to raise the child, created for her.
It follows therefore that I am not persuaded that there was, in fact, an application for an adjournment made by the husband, or that the primary judge’s permitting the wife to rely upon three additional pieces of material, failing to independently analyse or test the wife’s affidavit material, or adding back the husband’s legal fees into the pool, comprises either a failure to follow the legislative pathway, or to properly consider each parties’ proposal on their merits. I am not satisfied that the three impugned actions of the primary judge otherwise demonstrate an error of principle.
Ground 1 fails.
Ground 2
As re-cast, this ground asserts as follows:
That the primary judge took into account irrelevant matters, and further, either failed to take into account relevant matters, or gave some relevant matters excessive weight, in that:
(a)He wrongly had regard to the husband’s [Country B] life insurance;
(b)He failed to take into account that the husband solely paid back the loan from the wife’s brother;
(c)He failed to give proper weight to the fact that the wife made very limited financial contributions during the course of the relationship;
(d)He failed to take into account that the wife made only limited homemaker contributions.
(a) Country B life insurance
In his trial affidavit filed 10 October 2018, the husband swore that he had held his Country B life insurance policy for 16 years. In his oral evidence, he contended that was a mistake, and in fact it had been in existence since 1989. At all events, the policy had been maintained during the course of the relationship.
The primary judge rejected the husband’s contention that the policy had been in existence since 1989, and there is no direct appeal against that finding. That being the case, it comprises no failure on the part of the primary judge to have acted upon that finding, which in any event was reasonably open to him on the evidence (Fox v Percy (2003) 214 CLR 118; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
(b) Husband solely paid back loan from wife’s brother
It was apparently not in contention that, in order to purchase the Country B unit in 1991, monies were loaned to the parties from the wife’s brother.
At reasons [89], the primary judge said:
89. Given that the wife did not do a great deal of paid work, I accept the husband’s earnings were mainly used to pay back the wife’s brother…
It appears as though by this particular to the ground of appeal, the husband contends that the word “mainly” is an error, and the word “solely” ought to have been deployed instead.
It was open to the primary judge to find that, whether directly or indirectly, the wife made some contribution to the repayment of her brother’s loan. This aspect of the appeal ground therefore fails.
(c) Wife made very limited financial contributions during the course of the relationship
This was a major contention of the husband at trial, in that his case was that he had been overwhelmingly the greater bread winner during the course of the relationship, whereas the wife was the homemaker, and even then, not particularly good at it. Moreover, he cross-examined her by reference to the fact that, for many years, the child was mostly at school during the day, and hence, in substance, she was doing little, if anything, whilst at home. However the wife explained that she spent her days attending to various chores about the house, and that in any event, by that time, she was suffering from the effects of a motor vehicle accident.
I am not satisfied that the primary judge gave inadequate weight to the husband’s superior financial contributions during the course of the relationship. Rather, I am satisfied that, as the primary judge found, “[t]he husband has undervalued what the wife has done, and that is to raise their daughter all of the time, when he could only assist part of the time” (at [85]).
(d) Wife made limited homemaker contributions
The husband’s case was that the wife was essentially a poor homemaker. The primary judge recognised this at [82] when he said “[h]e also seemed to be stating that she was not much of a housewife.” His Honour rejected this contention (at [86]). However at [87] he then continued:
87. In fact when the parties separated and left the [Suburb G] home, the wife claimed the husband had left it in a mess because he occupied it for some time by himself.
This is plainly an error. The uncontradicted evidence was that the husband had left the Suburb G home at separation, although he left many of his possessions in it. When the wife vacated the property after its sale, she took her items with her, but left the husband’s. Apparently that left the house in something of a mess. However I am not satisfied that the mistake in relation to paragraph [87] led the primary judge into error in making an excessive assessment of the weight to be given to the wife’s homemaker parent contributions.
Conclusion
None of the particulars to this ground are made out. It therefore fails.
Ground 3
This ground asserts that the primary judge erred in fact, as follows:
The primary judge made 20 factual errors, in:
(a)Finding that the husband had impeded the joint valuation of the [Country B] property;
(b)Finding that the wife was vocationally unqualified;
(c)Finding that the husband had left the former matrimonial home in a dirty condition;
(d)Finding that there had been an agreement between the parties to value the [4WD];
(e)Finding that the net value of the husband’s [Town J] property was $22,031.00;
(f)Finding that the proceeds of sale of the [Suburb G] property were $94,095.67;
(g)Misdescribing the names of the husband’s superannuation funds;
(h)Adding back into the pool the husband’s legal fees;
(i)Finding that the husband had not produced the accounts for his legal fees;
(j)[There was no (j) advanced by the husband];
(k)Finding that the husband had failed to make disclosure;
(l)Finding that the wife’s [Country B] bank account only had a value of $2,740.20;
(m)Finding that the husband’s earnings were mainly used to pay back a loan from the wife’s brother;
(n)Finding that the wife suffered depression and anxiety;
(o)Finding that the wife had been assessed as having a 6 percent spinal impairment;
(p)Finding that the wife had received a compensation payout of $17,000.00;
(q)Finding that the husband had both worked and studied during the relationship;
(r)Finding that the husband’s case was that the wife’s contribution based entitlement was 60 per cent;
(s)Finding that the wife qualified for a disability pension;
(t)Attributing a value of $684,383.38 as the net pool of assets;
(u)Finding that the wife was then unemployed.
(a) That the husband had impeded the joint valuation of the Country B property
This was directly asserted by the wife in her affidavit, and she was not cross-examined upon it. Although the husband sought in submissions to introduce some oral evidence about the process leading to valuation, it was properly rejected by the primary judge. There was therefore material upon which the primary judge could conclude that it was the husband who had impeded the joint valuation of the Country B property. In any event, as I shall later discuss, nothing turns on this finding, in that the property was to be sold, and its net proceeds used to calculate the financial pool, rather that the wife’s entitlements being calculated by reference to her value of the unit.
(b) That the wife was vocationally unqualified
At [119] the primary judge found that “the wife has limited prospects of obtaining unskilled work, if she is offered employment.”
In this respect the wife’s evidence was that, although she had both a bachelor’s and master’s degree in science, and some post graduate training, she had not worked for many years, and her Country B qualifications were not easily transposed into the Australian setting. To the extent that she had worked in Australia, it was mainly some years ago, principally as a research assistant and marking examination papers, albeit recently she had been able to obtain very limited employment on a casual basis in Town K. As at the time of swearing of her trial affidavit, the amount of time that she was being offered per week in that position was between zero and two hours, and yet she still had to travel long distances in order to attend work, which could be split over two days per week in any event.
There was also evidence that the wife had commenced her PhD whilst in Australia, but had abandoned it.
There was simply no evidence from which the court could have concluded that the wife had any realistic opportunity to obtain skilled work, and further, the evidence, which was not challenged, was that she had been assessed by Social Security as only being required to look for the same amount of work as would a disabled person, namely, of no more than 15 hours per week.
The evidence therefore well permitted the primary judge to conclude, as he did at paragraph [119], in relation to the wife’s limited prospects of obtaining unskilled work, if she were to be offered employment at all. No error is established in this respect.
(c) That the husband had left the former matrimonial home in a dirty condition
I have already discussed this issue when discussing ground 2. Whilst the primary judge did make an error of fact in this respect, it was not material to his findings as to contribution.
(d) That there had been an agreement between the parties to value the 4WD
At [49] the primary judge found that the parties had originally agreed to value the 4WD at $8,000, albeit at trial the husband contended for a figure of $4,000. However, ultimately the issue was resolved in the husband’s favour at [52], namely that “[i]n any case, the wife eventually agreed to a value of $4,000.” The question of whether or not the parties had originally agreed a different figure therefore fell away.
(e) That the net value of the husband’s Town J property was $22,031
This finding was made in the form of a table annexed to the orders. The husband asserts that there was an additional liability which ought to have taken into account, being $8,500 attributable to a loan from his parents towards the purchase of the unit. However although raised in the husband’s trial affidavit, this was not an issue which assumed any prominence during the trial. Moreover, the likelihood of repayment of this familial loan being required was not clear. In any event, in the context of a net pool of nearly $685,000, the sum of $8,500 is approaching de minimis.
(f) That the proceeds of sale of the Suburb G property were $94,095.67
The husband asserts that an interim property settlement which had been paid to the wife from the proceeds of sale of the former matrimonial home was ignored by his Honour. It was not. His Honour dealt with this issue at [79], and refused to add it back into the pool, saying “[t]he wife needed the money at the time to live on, money was available to the husband from the pool to pay such and it should be considered as a spousal maintenance, so I will not add it back to the pool.”
This was consistent with the submissions which were advanced at trial by counsel for the wife. It was open to the primary judge to so treat the $20,000 (Gabel & Yardley (2008) FLC 93-386; Bevan & Bevan (2013) FLC 93-545), and in failing to add it to the proceeds of sale of the Suburb G property, no error is demonstrated.
(g) Misdescribing the names of the husband’s superannuation funds
This mis-description, even if there was an error, could not possibly be a material one.
(h) By adding back to the pool the husband’s legal fees
I have sufficiently addressed this contention in discussing ground 2.
That the husband had not produced the accounts for his legal fees
That finding was made by the primary judge at [54] where he said “[the wife] assessed the legal fees paid by the husband at $19,809.20, but he told the court he had in fact spent $39,676, although he did not produce the accounts.”
I frankly do not understand why it is that statement by the husband – which presumably was true, and which the court accepted and acted upon – could possibly justify a conclusion that its adoption comprised some sort of error.
(j) [There was no (j) advanced by the husband]
(k) That the husband had failed to make disclosure
In the course of assessing contributions under s 75(2) of the Act, at [121], the primary judge said:
I cannot say the husband has been the most reliable witness in relation to values, and part of that is that it is a disclosure consideration because he did not obtain up to date information about his superannuation, and under assessed the value of his insurance which he redeemed and made an inexplicable assessment of the value of the unit in [Country B].
Those statements are correct. The husband was determined to have his superannuation assessed at a date other than trial, and had, in an earlier affidavit, undervalued the redemption value of his insurance. Further, like the primary judge, I am at a loss to understand how the husband’s asserted valuation of the Country B unit was made.
In any event, the primary judge’s conclusion about the husband’s reliability was in the context of considering whether or not the husband’s assertion that he had only limited employment prospects when his five year contract expired in 2021, was accurate. Ultimately, because the primary judge “was not satisfied with the frankness required by the husband in all matters (at [123])” he concluded “that his prospects are better than he makes out (at [123]).” That was entirely open to the primary judge on the evidence. The husband produced nothing other than his word that there was no prospect of him obtaining similarly remunerated employment to that which he presently held, after his present contract expired. He has a most impressive background and resume.
No error is established in this respect.
(l) Finding that the wife’s Country B bank account only had a value of $2,740.20
The gravamen of this complaint appears to be that there should have been added back a further €300 into the bank account, because the wife admitted taking it for accommodation and car hire when she was visiting her elderly parents in Country B on a recent trip. She further said that she had to repay €500 to tenants who had overpaid their rent. The primary judge accepted the wife’s version in relation to the latter, and rejected the suggestion that the €300 should be added back in, as “I do not intend making a finding that the small amount used … alters the pool (at [77]).” That finding was reasonably open to the primary judge, and no error is established in that respect.
(m) That the husband’s earnings were mainly used to pay back a loan from the wife’s brother
I have sufficiently dealt with this at paragraphs 43-46 of these reasons.
(n) That the wife suffered depression and anxiety
The wife’s trial affidavit annexed a report from a general medical practitioner, diagnosing her as suffering from “depression and anxiety” (Mother’s Affidavit filed 17 October 2018, page 131). At trial, the husband asserted that a general medical practitioner is not qualified to make such a diagnosis, but rather, that only a specialist can. During the course of argument, the primary judge rejected that contention. He was correct to do so. The finding was therefore reasonably open to the primary judge.
(o) That the wife had been assessed as having a 6 per cent spinal impairment
At [92] of the Reasons the primary judge said:
92. One of the car accidents resulted in an assessment of a 6 percent spinal impairment, a position not accepted by the husband as a hindrance to her ability to work and contribute financially.
This conclusion misstates the evidence. The evidence was to the effect that the wife had been assessed as a 6 per cent whole of person impairment. It therefore follows, to the extent that there was an error made by the primary judge, it was in the husband’s favour. In any event, the finding of a 6 per cent impairment was open on the evidence led by the wife. It was not challenged by the husband in any meaningful way at trial.
(p) That the wife had received a compensation payout of $17,000.00
At [93] the primary judge said “[f]or one of the car accidents she received a personal injuries payout, she thought about $17,000, which she contributed to the use of the family.” It appears as though the husband, during the course of cross-examination of the wife, asserted that it was only $10,000, however the wife did not accept that. The primary judge was entitled to act upon the wife’s evidence in this respect.
(q) That the husband had both worked and studied during the relationship
At [98] in the course of assessing the parties’ contributions, the primary judge said:
98. The husband’s contributions have been to provide the main financial wherewithal for the family. He has worked and has been able to study so that he has professional qualifications.
The husband is correct to say that there was no evidence that it was he who had studied during the course of the relationship, but rather it had been the wife. That error, however, is not material. It is not in dispute that the husband has been the main financial provider during the course of the relationship to the parties’ household.
(r) That the wife’s contribution based entitlement was 60 per cent
The husband mistakenly seems to think that this was a finding of fact. It was not. Even if the primary judge did at some stage think that the husband conceded that there was a 60 per cent contribution based entitlement by the wife, he did not act upon it, but found the parties’ contribution based entitlements to be equal.
(s) That the wife qualified for a disability pension
At [120] the primary judge said “[the wife] is on a disability pension, so it is unlikely that she will obtain work.”
This does not accurately reflect the evidence. Indeed there was an exchange between the wife and the primary judge as follows:
HIS HONOUR: What do you mean sick leave? Disability - - -?---I’m on a medical– I’m with a disability employment services.
Disability benefits?---And I’m on medical certificate since January.
Sorry. You’re on disability benefits though. It’s not sick leave because you’re not working?--- No. I’m on Newstart allowance.
Newstart. Yes?---But my employment services are the disability employment services, and I’m considered under the disability employment service – what would you say – regulation. So therefore I have – I need only to apply for 15 hours a week for part time jobs, and I don’t have to apply for 40 jobs a month, but for 15 jobs a 40 month due to my health.
(Transcript 10 April 2019, p. 55, lines 28-40)
Therefore, whilst not on a disability pension, the wife’s situation was that she was assessed by Centrelink as only being required to seek work as if she were disabled, that is, restricted to 15 hours work per week. Moreover, she gave evidence that she had unsuccessfully applied for some hundred or so jobs, and that the part time, casual work which she had (between zero and two hours per week) at the time of trial, was uneconomic, and had been obtained by way of a favour from a friend. The finding that she was unlikely to be able to obtain work was therefore open on the evidence, notwithstanding the primary judge’s mistake in relation to the disability pension issue.
There is no error made out in this respect.
(t) In attributing a value of $684,383.38 as the net pool of assets
Any attack upon this calculation can only rise or fall in relation to the individual components. I have determined that no such error is made out. It follows therefore that the calculation of the net pool in that sum was correct.
(u) That the wife was then unemployed
Whilst there is no direct finding that the wife was unemployed, I accept that is the impression one gets from the primary judge’s findings. In fact the wife was in receipt of Centrelink benefits, and particularly a New Start allowance, and therefore she was, technically unemployed, notwithstanding the fact that she had casual part time employment of between zero and two hours per week. I am not satisfied that any error that the primary judge implicitly made is of any materiality.
Conclusion
It therefore follows that all aspects of this ground of appeal have not been made out. This ground therefore fails.
Ground 4
This ground asserts that:
The primary judge’s decision was plainly wrong, in that he:
(a)Ignored the parties’ post separation contributions;
(b)Added back into the pool the husband’s legal fees;
(c)Adopted the value of the husband’s superannuation as at 4 April 2019, and not 31 December 2018;
(d)Found that the husband had not produced accounts for his legal fees;
(e)Excluded a trailer from the pool;
(f)Failed to take into account a $20,000.00 interim property division to the wife;
(g) Found that the husband had an employment contract;
(h)Found that the wife’s partner did not contribute financially towards the wife’s cost of living;
(i)Found that the wife’s career was curtailed because she instead looked after the parties’ child and undertook housekeeping;
(j)Found that the wife has only limited prospects of obtaining unskilled work;
(k)Found that the husband was an unreliable witness (etc);
(l)Divided the property such that the wife received the balance proceeds of sale of the Suburb G property.
I will consider each of those as if they are further challenges of error of fact, and then consider whether they demonstrate that the decision in question was “plainly wrong.”
(a) Ignored the parties’ post separation contributions
I have already sufficiently dealt with this when dealing with ground 1.
(b) Added back into the pool the husband’s legal fees
I have already sufficiently dealt with this earlier in these reasons.
(c) Adopted the value of the husband’s superannuation as at 4 April 2019, and not 31 December 2018
I have previously adverted to the fact that, at trial, the husband asserted that the wife had delayed the proceedings so as his superannuation value would increase, and therefore he argued that the valuation of his superannuation should be taken as at the time that the matter had first been listed for trial, although apparently not reached. Such an argument is not tenable, and indeed had the primary judge not adopted the current value of the husband’s superannuation, he would have erred.
(d) Found that the husband had not produced the accounts for his legal fees
I have already sufficiently dealt with this earlier in these reasons.
(e) Excluded a trailer from the pool
At separation, a trailer remained at the former matrimonial home. It had been purchased some time earlier for $1,700. The wife said that, when she and the child were required to move out of the former matrimonial home, she had no funds to pay for a removalist, and therefore bartered with a friend to transfer to him the, by then unregistered trailer, in exchange for him assisting her with moving.
The primary judge dealt with this at [78] of the Reasons in the following terms:
78. The eighth issue is whether a trailer ought be included in the pool. There was conflicting evidence, with the husband stating it was worth $2,000 and the wife stating he left it at the house, unregistered, and she had to give it away. The husband took no steps to secure the trailer when he knew the wife was cleaning and preparing the former matrimonial home at [Suburb G] for sale, so I will not include it in the pool. People are expected to look after their interests.
The simple fact is that at the time of trial, the asset was no longer under the control of either party. It had been used by the wife to pay for her necessary expenses post separation. In those circumstances it was open to the primary judge not to include the trailer in the pool.
(f) Failed to take into account a $20,000 interim property division to the wife
I have already partly addressed this issue. At [79] the primary judge said this:
79. The ninth dispute is whether $20,000 used by the wife should be added-back to the pool. The money was received at the time of property settlement. The wife needed the money at the time to live on, money was available to the husband from the pool to pay such and it should be considered as a spousal maintenance, so I will not add it back to the pool.
This finding was open to the primary judge, and no error is shown by him making it.
(g) Found that the husband had an employment contract
The husband has a contract of employment for five years, which expires in 2021. At [106] the primary judge noted that the husband “produced no evidence of an oral claim that it cannot be renewed.” He continued at [107] “[n]or did he give credible evidence to support that claim.” Finally at [108] the primary judge said “[g]iven that he has always found university employment I have doubt as to the claim that the contract cannot be renewed or that he would not find work in the future, as his history is one of finding suitable employment.”
Those findings were well open to the primary judge on the evidence.
(h) Found that the wife’s partner did not contribute financially towards the wife’s cost of living
This was the wife’s evidence. There was no evidence to the contrary. It was therefore open to the primary judge to so find.
Found that the wife’s career was curtailed because she instead looked after the parties’ child and undertook housekeeping
I have already partly dealt with this ground in addressing other matters. At [117] the primary judge said as follows:
117. Her situation is that she married, had a child, looked after the child and had her career prospects curtailed because she chose to look after the child and attend to housekeeping. Child care is a most important contribution to family life.
It is incontestably correct that the wife married, had a child, and looked after her. It is almost inconceivable that her looking after the child, and attending to housework, did not adversely impact upon her career. She attempted to augment her prospects by commencing PhD at the E University, although was unable to complete her thesis. I am well satisfied that the finding that her career prospects were curtailed because of her homemaker/parent role, was reasonably open to the primary judge.
(j) Found that the wife has only limited prospects of obtaining unskilled work
I have already addressed this sufficiently earlier in these reasons.
(k) Found that the husband was an unreliable witness (etc)
At [121] and [122] (recited earlier in these reasons) the primary judge made findings adverse to the credibility of the husband. Those findings were reasonably open, for the reasons identified by his Honour.
(l) Divided the property such that the wife received the balance proceeds of sale of the Suburb G property
It is true that the primary judge awarded to the wife the balance proceeds of sale of Suburb G. However he did so, at the behest of the wife, in knowledge that the husband had, earlier in 2019, cashed in his Country B insurance policy, and received the sum of $83,055. No part of that was paid to the wife.
It was a matter of discretion for the primary judge as to how the ultimate outcome was effected. There was no error, particularly given the payment of $83,055 to the husband, in permitting the wife to take the balance proceeds of the Suburb G property in the sum of $94,095.67.
Conclusion
It therefore follows that no aspect of this ground is established, and it fails.
Ground 5
As re-cast, this ground asserts that:
There was a reasonable basis to apprehend that the primary judge was biased against the husband, by virtue of:
(a)The way he dealt with sale of the property in [Country B];
(b)Him ignoring the wife’s earlier claim for a 75/25 division of property;
(c)Him focussing upon a mistake in the husband’s affidavit in relation to insurance contracts;
(d)Him incorrectly determining that the husband obstructed a joint valuation of the parties’ [Country B] property being obtained;
(e)Him generally discrediting the husband in the primary judge’s reasons;
(f)Him criticising the husband for not providing updated superannuation balances;
(g)By him finding that the wife’s jewellery had little worth;
(h)His, in particular instances, preferring the wife’s evidence to the husband’s;
(i)Him finding that it was the husband rather than the wife, who left the [Suburb G] property in an untidy state;
(j)Him referring to the wife’s claim to have been left “marked” by three traffic accidents;
(k)Him making a medical expert assessment in respect of the wife;
(l)Him finding that the husband lacked credibility.
The High Court in Johnson & Johnson (2000) 201 CLR 488 (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), stated at 488 that the test for judicial bias is:
[W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
At 492-493 their Honours continued:
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
(Footnotes omitted)
Turning then to address the specific matters raised by the husband, they are as follows.
(a) The way the primary judge dealt with sale of the property in Country B
The primary judge ordered that the Country B property be sold, and that the proceeds of sale be split, so that the wife achieved an overall outcome of 65 per cent in her favour. That was a perfectly reasonable approach to adopt, given that it did not fix the amount which the wife needed to be paid from its sale, which could have worked an injustice to the husband. Likewise it enabled the wife to share in any sale price achieved that was in excess of the valuation, which ensured she would not suffer an injustice. Dealing with it in that way could not possibly give rise to an apprehension of bias.
(b) By ignoring the wife’s earlier claim for a 75/25 division of property
It is true that the wife had earlier articulated a claim for a 75 per cent interest in the parties’ net pool of property. By not adverting to it, the primary judge could not possibly be reasonably apprehended as demonstrating bias against the husband.
(c) In focussing upon a mistake in the husband’s affidavit in relation to insurance contracts
I have already addressed this in earlier aspects of these reasons. It could not possibly excite in a reasonably informed, lay observer, any apprehension of bias.
(d) By incorrectly determining that the husband obstructed a joint valuation of the parties’ Country B property being obtained
I have already addressed this earlier in the reasons. On the evidence, the finding was reasonably open to the primary judge. It does not demonstrate bias.
(e) By generally discrediting the husband in the primary judge’s reasons
One of the tasks which trial judges are frequently confronted with is to determine the credibility of witnesses. Determining credibility adversely to one party, without more, affords no basis to found an argument the judge is thereby demonstrating bias, actual or apprehended.
(f) By criticising the husband for not providing updated superannuation balances
I have sufficiently dealt with this earlier. The husband wanted to have his superannuation valued at an earlier date. The primary judge determined that question against him. He was correct to do so.
(g) By finding that the wife’s jewellery had little worth
The primary judge excluded from the balance sheet jewellery held by the wife. There was no evidence as to the items it comprised, or expert evidence of their value. The wife was barely cross-examined by reference to her jewellery, during which she estimated it to be worth $3,000. The husband asserted in his material that the wife had attributed a value of $32,481 to it. The wife did not accept that value. Absent there being any valuation, agreed or otherwise, of the jewellery, or indeed any identification of what it comprised, it was open to the primary judge to conclude at [71] “[t]here was nothing to suggest that the jewellery is worth a great deal of money as the husband claims.” That finding, being reasonably open to him as it was, meant that it was within his discretion not to include it in the balance sheet. It does not give rise to a reasonable apprehension of bias.
(h) By, in particular instances, preferring the wife’s evidence to the husband’s
I have already sufficiently addressed this when discussing sub-paragraph (e) of this ground.
By finding that it was the husband rather than the wife, who left the Suburb G property in an untidy state
I have already identified that the primary judge made a mistake of fact in this respect. It does not demonstrate actual bias, or give rise to a reasonable apprehension of it.
(j) By referring to the wife’s claim to have been left “marked” by three traffic accidents
The wife referred to these accidents in her affidavit. They were significant, in that the wife asserted that they had led to her being impaired. It was therefore perfectly proper for the primary judge to refer to those accidents, and the fact that there was a claimed impairment. Doing so affords no basis for a reasonable apprehension of bias.
(k) By making a medical expert assessment in respect of the wife
This assertion is founded upon a misapprehension, namely that the primary judge undertook some form of expert assessment of the wife. He did not. As I have previously discussed, he accepted that the wife had been diagnosed as suffering anxiety and depression, based upon a report of a general medical practitioner. In accepting that evidence, there was no reasonable basis to apprehend that the primary judge was not being impartial in determining the issues before him.
(l) By finding that the husband lacked credibility
I have sufficiently addressed this in discussing sub-paragraph (e) of this ground.
Conclusion
Again, no aspect of this ground of appeal has been made out. It therefore fails.
Ground 6
This ground asserts that:
The primary judge failed to afford the husband procedural fairness in three respects, namely:
(a)Providing inadequate opportunity for the husband to be heard, and particularly, an insufficient time for the husband to prepare his cross-examination of the wife;
(b)Making orders without seeking submissions from the husband;
(c)Not giving the husband the opportunity to rely upon an affidavit he filed after the hearing (on 23 April 2019).
(a) He provided inadequate opportunity for the husband “to be heard”
A fair reading of the transcript does not demonstrate that the husband was in any way curtailed in relation to the opportunity to lead relevant evidence, cross-examine in any respect, or to make submissions. He was only curtailed during the course of submissions when he was referring to matters which were not in evidence. That was appropriate. There is no basis for concluding that the husband had an inadequate opportunity to be heard.
As to the complaint that the wife’s late disclosure precluded a reasonable opportunity for the husband to prepare his cross-examination of the wife, not only was this not suggested by the husband to the primary judge, but on the material before me, it is difficult to in fact see how the husband could have been materially prejudiced in that cross-examination.
(b) Made orders without seeking submissions from the husband
The husband was on notice in relation to the orders which the wife sought, and which, in large part, were made by the primary judge. No failure to afford procedural fairness is made out.
(c) Did not give the husband the opportunity to rely upon an affidavit he filed after the hearing (on 23 April 2019)
It might be that what the husband seeks to argue in relation to this particular ground is that, if he had the opportunity, he could have led additional evidence in relation to certain matters. They include his Country B insurance, the interim property division, the wife’s medical claims, his legal fees, and his superannuation.
However no application to re-open the trial was made by the husband, notwithstanding the fact that, at the time he filed the affidavit on 23 April 2019, the decision was reserved. In any event, the husband was on notice of the matters raised in the wife’s trial affidavit, including those which he sought to include responses to in his affidavit filed 23 April 2019. There was no failure in the primary judge to afford the husband procedural fairness in these respects.
Conclusion
This ground is therefore not made out and fails in its entirety.
Ground 7
This ground alleges that:
The primary judge’s reasons were inadequate, in relation to:
(a)Adding back the husband’s legal fees into the pool;
(b)Allowing the wife to rely upon updated financial materials;
(c)Excluding some assets from the pool, for example the wife’s jewellery;
(d)Adopting the value of the husband’s superannuation at 5 April 2019, and not 7 November 2018.
The obligation to provide reasons is well established. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8:
...
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
(a) Adding back the husband’s legal fees into the pool
I have sufficiently addressed this, earlier, in setting out the basis for adding back the fees. The primary judge’s reasoning is able to be sufficiently discerned in this respect.
(b) Allowing the wife to rely upon updated financial materials
I have already addressed this, in part, earlier in these reasons. Only three documents were admitted into evidence that were in any way new. Unfortunately, the primary judge’s reasons for admitting those were not within the transcript extracts that were obtained by the husband. I therefore cannot determine whether or not the reasons then advanced for their admission were adequate, or otherwise. It is for the husband to establish error, and otherwise the decision under review is presumed to be correct. This aspect is not made out.
(c) Excluding some assets from the pool, for example, the wife’s jewellery
I have sufficiently discussed the jewellery issue earlier in these reasons. The primary judge’s reasons for excluding it are clear and unequivocal. Otherwise I am not satisfied that there is any merit to this ground.
(d) Adopting the value of the husband’s superannuation at 5 April 2019, and not 7 November 2018
I have already partly addressed this issue earlier in these reasons. The primary judge dealt with this in the Reasons at [61]-[67]. His Honour was obliged to determine the value of the property pool as at the date of the exercise of the discretion. The husband was incorrect to try and fix the value of his superannuation at some earlier time. The primary judge has adequately exposed his reasoning as to why he did so.
Conclusion
Again it follows that no particular as asserted by the husband has been made out. Otherwise I am satisfied that the primary judge’s reasons were adequate, in that the path by which he arrived at the ultimate division of the property is clearly articulated.
Although not relied upon by the husband, I should again observe that the primary judge did not explicitly make a finding that the overall outcome was just and equitable. Nonetheless I am satisfied that, implicitly, his Honour was so satisfied.
Outcome
No ground of the appeal succeeds. The appeal therefore fails in its entirety. It will be dismissed.
Costs
In the event that the appeal was unsuccessful, counsel for the wife sought costs. She particularised those costs as totalling $12,643.48. I am satisfied that those costs are reasonable.
The appeal has wholly failed. It was largely misconceived, and raised many alleged errors which had no merit or materiality. Whilst the wife may presently be in a better position, capital wise, than the husband, her earning capacity is limited.
I am satisfied that, weighing those matters in the balance, an order for costs is justified in this case.
To cover the eventuality that the appeal succeeded, the husband filed an Application in an Appeal on 5 November 2019 seeking the payment to him of indemnity costs, and costs in the primary proceedings. Given that the appeal has wholly failed, it is appropriate that the husband’s application be dismissed.
There will therefore be an order that the husband pay the wife’s costs in the sum of $12,643.48 within 28 days.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 December 2019.
Associate:
Date: 11 December 2019
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