PELLEY & THURSTAN
[2019] FamCAFC 207
•6 November 2019
FAMILY COURT OF AUSTRALIA
| PELLEY & THURSTAN | [2019] FamCAFC 207 |
| FAMILY LAW – APPEAL – PROPERTY – Where there is no error of fact or law by the primary judge and for this Court to arrive at a different conclusion would be due to nothing other than this Court having a different view as to the weight of the evidence – Where it is clear from the authorities that an appellate court should be slow indeed to overturn a primary judge’s discretionary decision on a weight challenge alone – Where there was no lack of procedural fairness – Where none of the grounds of appeal have merit – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant did not challenge the amount sought nor was anything put in opposition to an order being made – Costs ordered in the sum sought by the respondent. |
| Family Law Act 1975 (Cth) s 75(2) |
| CDJ v VAJ (1998) 197 CLR 172 Dickons v Dickons (2012) 50 Fam LR 244; [2012] Fam CAFC 154 Gronow v Gronow (1979) 144 CLR 513 Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168 Mallet v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 Stead v State Government Insurance Commission (1986) 161 CLR 141 Yein & Zihao (2019) FLC 93-889; [2019] FamCAFC 20 |
| APPELLANT: | Mr Pelley |
| RESPONDENT: | Ms Thurstan |
| FILE NUMBER: | SOA | 98 | of | 2018 |
| APPEAL NUMBER: | ADC | 2311 | of | 2016 |
| DATE DELIVERED: | 6 November 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 27 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3803 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | Daniel John Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITORS FOR THE RESPONDENT | Starke Lawyers |
Orders
The appeal be dismissed.
The appellant husband pay the costs of the respondent wife fixed in the sum of TEN THOUSAND DOLLARS [$10,000].
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 Pelley & Thurstan 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 MELBOURNE |
Appeal Number: SOA 98 of 2018
File Number: ADC 2311 of 2016
| Mr Pelley |
Appellant
And
| Ms Thurstan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Notice of Appeal filed on 21 December 2018 Mr Pelley (“the husband”) appeals from orders for property settlement made by Judge Young on 27 November 2018. Ms Thurstan (“the wife”) opposes the appeal.
The orders appealed from provide, in summary, for the husband to initially pay to the wife the sum of $25,000, for the wife to then vacate the house at Property A, and upon that occurring, for the husband to pay the wife the further sum of $217,000. There was also a superannuation splitting order whereby the wife was to receive a base amount of $18,474 out of the interest of the husband in his superannuation fund.
Background
The husband was born in Country A in 1975 and he migrated to Australia in 2002.
The husband was injured at work in 2006 and received a compensation payment of $30,332. He asserted at the trial that he has a permanent disability as a result of this injury, but the primary judge was critical of the “medical evidence” relied on by the husband, and was not satisfied that he had “a significantly limited capacity for work” ([12]). At the time of the trial the husband had his own business.
The wife was born in Country A in 1980, and the parties commenced a relationship there in 2009/2010. They later married in Country A in August 2012.
The wife spent some time in Australia in 2013, and she emigrated to Australia in July 2014. Although she was employed as a professional in Country A, she has not been in employment in Australia.
The wife has a daughter from a previous relationship, and she came out to Australia with the wife in 2014. She was aged six or seven years at that time.
The parties have one child of their own who was aged two and a half years at the time of the hearing, and who lived with the wife and spent no time with the husband.
In March 2012 the husband purchased Property A for $365,000, having sold his previous Property B for $228,000. The difference is said to have been met from the husband’s compensation payment, and his savings. There is no mortgage registered on the title to this property.
After the wife came to Australia, renovations were carried out on Property A. The wife claimed that she was involved in the purchase of the property, and likewise with the renovations, but his Honour found that those claims were exaggerated. The wife was in Country A at the time of the purchase, and with limited English, all she could do with regard to the renovations, was to discuss and consider the plans with the husband.
The husband claimed that he borrowed a total of $75,000 from various people to fund the renovations, and that he still owed that money. However, none of the alleged lenders, including a person who the husband says lent him $37,000 for the hire of a motor vehicle for his [business], were called as witnesses, and his Honour found that the only debt the husband had was an amount of $6,000.
Intervention orders were made against the husband in 2015, and he was charged for breaching those orders in August and September 2015, but the wife did not proceed with those complaints.
There was a dispute as to the date of separation; the husband claiming that it was in 2015, but the wife claiming that it was in 2016. His Honour found the husband’s evidence as to this date was “false” ([6]).
On 28 February 2018 the husband was convicted of two counts of aggravated assault on the wife. The first count related to an incident on 9 April 2016, and the second count related to an incident on 17 May 2016. The latter incident led to separation on the following day, when the husband left the former matrimonial home as a result of a further intervention order being put in place by the police.
The appeal
There are five grounds of appeal relied on in the husband’s Notice of Appeal. The first three grounds challenge the weight attributed by his Honour to the husband’s financial and non-financial contributions during the marriage, and post-separation. However, there is a disconnect between these grounds and the summary of argument filed by the husband on 15 April 2019, in that the summary is directed to matters that are not the subject of the grounds of appeal, and no application was made to amend those grounds. Accordingly, I propose to ignore those parts of the written summary that do not relate in any way to the actual grounds of appeal. Fortunately though, in his oral submissions, the husband’s counsel did seek to address the actual grounds of appeal, and I have taken those submissions into account.
Ground 1
The learned trial judge erred at law and in the exercise of his discretion in failing to give any or any adequate weight to the overwhelming financial contributions made by the appellant during the period of the parties’ short marriage.
It was conceded by the husband’s counsel that he could not maintain the claim that his Honour gave no weight to the husband’s financial contributions during the marriage, and thus the enquiry is to the adequacy of the weight afforded.
His Honour assessed all of the respective contributions of the parties during the marriage and post-separation at 80 per cent/20 per cent in favour of the husband. His Honour did not identify what proportion of the 80 per cent related to the husband’s financial contributions, but his Honour was not required to do so (e.g. see Dickons v Dickons (2012) 50 Fam LR 244 at [25] and [26]). Nevertheless, it is apparent that the husband’s financial contributions played a significant part in his Honour’s overall assessment. Indeed, his Honour said as much in [22], namely:
In relation to contributions, the overwhelming financial contribution has been made by the husband. …
However, it is an holistic exercise that a trial judge undertakes (Lovine & Connor and Anor (2012) FLC 93-515; Dickons), and even if the husband had made all of the financial contributions, that has to be weighed against the non-financial contributions made by the wife, which were found to be significant, and in particular her homemaker and parent contributions.
There is no challenge here to the underlying facts as found by his Honour, and which speak to the respective contributions of the parties.
Thus, the challenge in this ground can be nothing more than, taking those findings, this Court should come to a different conclusion than the primary judge. There is ample authority though, including from the High Court, that that cannot be a basis for allowing an appeal (e.g. see Gronow v Gronow (1979) 144 CLR 513 at 519-520, CDJ v VAJ (1998) 197 CLR 172 at [186] and Mallet v Mallet (1984) 156 CLR 605 at 615), there being no error of fact or law, and where it cannot be said that in the exercise of his discretion, his Honour was “plainly wrong”.
For an appellate court to find that a trial judge’s discretionary conclusion is wrong, there must be a discernible, proper foundation. Justice Stephen said this in Gronow at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. …
In these circumstances this ground of appeal fails.
Ground 2
The learned trial judge erred at law and in the exercise of his discretion in failing to give any or any adequate weight to the appellant’s post separation financial contributions.
Again, the husband’s counsel conceded that he could not maintain a claim that his Honour failed to give any weight to the husband’s post-separation financial contributions, and like Ground 1, the issue is whether his Honour gave inadequate weight to those contributions.
However, although the evidence was clear as to the husband’s financial contributions during the marriage, no evidence is pointed to by the husband in relation to his post-separation financial contributions. There was of course the fact that following separation the wife and the two children remained in occupation of Property A owned by the husband, but that is not in the category of a financial contribution, given that there was no mortgage.
There were of course outgoings to be paid, and I understand the evidence was that the husband paid the rates and taxes, but the wife contributed to the payment of utilities. Plainly the husband’s contribution in that regard can be described as a financial contribution, but it is only speculation as to whether that is what the husband is referring to in this ground of appeal, and in any event, his Honour clearly took the payment of rates and taxes into account (e.g. see [26]).
In order to complete the picture, I note that his Honour also took into account the benefit to the wife effectively provided by the husband of being able to live in Property A, rent free ([26]).
Relevantly, his Honour did not make separate assessments of the contributions of the parties during the marriage, and their contributions post-separation. Correctly, and as I have already indicated, his Honour identified all of the contributions of the parties from the commencement of the relationship up to the trial, and made an holistic assessment of the same.
This ground fails for the same reasons as Ground 1, but in addition, and to repeat, it is not made clear what the husband’s post-separation financial contributions were to which his Honour is said to have afforded inadequate weight.
Ground 3
The learned trial judge erred at law and in the exercise of his discretion in failing to give any or any adequate weight to the non financial contributions made by the appellant in the form of improvements made to the former matrimonial home.
As with Grounds 1 and 2, the husband’s counsel conceded that he could not maintain a claim that the primary judge failed to give any weight to the husband’s non-financial contributions, and this too became a question of whether his Honour afforded inadequate weight to the husband’s contributions in the form of the improvements made to Property A.
His Honour was clearly aware of the fact that renovations were undertaken, and that they were “significant” ([14]). Further, his Honour rejected the wife’s claim that she was significantly involved in the same, finding that, in effect, the most she did was to discuss and consider the plans with the husband.
Once again though, the husband is asserting that, despite there being no error of fact or law, his Honour erred in the exercise of his discretion in his assessment of the respective contributions of the parties, and in particular, by not giving sufficient weight to this non-financial contribution by him.
However, for this Court to arrive at a different conclusion than his Honour, would be due to nothing other than this Court having a different view as to the weight to be attributed to this non-financial contribution, and as is clear from the authorities already referred to, an appellate court should be slow indeed to overturn a primary judge’s discretionary decision on a weight challenge alone.
I am not persuaded that this ground has any more merit than Grounds 1 and 2, and it too should fail.
So far I have addressed Grounds 1, 2 and 3 individually, but if they are to be argued together, as the husband sought to do, it does not change the outcome. Where there is no error of fact or law, and the findings of the primary judge are not challenged, the assertion is still nothing more than the appellate court should come to a different decision than the primary judge on the basis of those findings, and that cannot be a basis for overturning the primary judge’s decision.
I also indicate that what appears to be overlooked by the husband in promoting these three grounds of appeal, is that despite him plainly making the greater financial contribution initially, and during the relationship, there was a significant homemaker and parent contribution by the wife during the relationship and post-separation, and there were the unchallenged findings of the primary judge as to the violence perpetrated by the husband on the wife, and that that rendered her contributions “more difficult and onerous” ([23]). In other words, there were serious contributions by the wife to be taken into account by his Honour, and weighed against the husband’s contributions. This is the holistic exercise that his Honour is obliged to undertake; which he did.
Ground 4
The learned trial judge erred at law and in the exercise of his discretion in his assessment of the matters referred to (sic) Section 75(2) of the Family Law Act 1975.
This is again a weight challenge, although in the written summary of argument, the husband also relies on the related challenge that the adjustment applied by his Honour, of 20 per cent in the wife’s favour, “falls beyond the bounds of a reasonable exercise of discretion and is so unreasonable that it can be inferred that his discretion has miscarried and there has been an error of principle” (paragraph 23 husband’s summary of argument filed on 15 April 2019).
Thus, the same issues are raised here as discussed in relation to Grounds 1, 2 and 3.
His Honour addressed the relevant s 75(2) factors of the Family Law Act 1975 (Cth) as follows:
27.Turning to section 75(2) factors. The husband is 43 years old and the wife is 38 years old. The husband works as a [tradesman] and has his own business. He said in his financial statement in 2016 that he earned $551 a week gross, although he said his taxable income was $18,327 in 2017. As I have mentioned, I do not accept that the husband has a significantly diminished capacity to earn income, particularly if he remains in sedentary work.
28.The wife has very limited English. Apparently she was employed as a [professional] in [Country A]. I expect once that the youngest child becomes older the wife will find employment, assuming her English improves, which I am satisfied it will. The husband pays child support in the sum of $20 a week. Apparently this is a voluntary assessment. I am satisfied it falls well short of an equitable contribution to the cost of caring for the child of the parties.
29.I consider that these factors merit a further adjustment in favour of the wife of $120,000 or 20 per cent of the property pool. This will result in a total split in favour of the husband of 60 per cent and 40 per cent to the wife. This equates to a payment of $242,000 to her. The husband said that he wishes to have the wife vacate the house as soon as possible. He said he was in a position to make a part payment of $25,000 to the wife immediately and on receipt she is to vacate the property. He is to pay the balance of $217,000 to her within 60 days of her doing so. If not the property is to be sold and 36.4% of the net proceeds after sale expenses is to be paid to her.
Although brief, it must not be forgotten that much of the factual underpinning for his Honour’s conclusions is to be found earlier in his Honour’s reasons. For example, his Honour made the following credit finding:
7.I do not accept that the husband is a truthful witness and I do not accept any of his evidence unless it is corroborated independently or it is uncontentious. I find the wife is generally a truthful witness, although prone to exaggeration in some aspects of her evidence, particularly about her contributions to the asset pool of the parties.
And at [12] his Honour found that he was “not satisfied that the husband has a significantly limited capacity for work”.
Importantly for considering the weight challenge and the submission that his Honour’s discretion miscarried, none of his Honour’s findings that led to his Honour’s assessment of the relevant s 75(2) factors, is challenged. Thus, as with Ground 1, for example, this challenge can be nothing more than, taking those findings, this Court should come to a different conclusion than the primary judge, and that cannot be a basis for allowing an appeal, there being no error of fact or law. The only possibility of success is if it can be said that in the exercise of his discretion, his Honour was “plainly wrong”. For that to be the case though there still needs to be a discernible, proper foundation, and that has not been demonstrated here.
Accordingly, this ground also fails.
Ground 5
The learned trial judge erred at law in the exercise of his discretion in failing to provide the appellant with procedural fairness.
There are three bases put by the husband in support of this ground, namely:
a)His Honour failed to draw the husband’s attention to the principles in determining issues in respect of superannuation entitlements.
b)His Honour prevented the husband from asking questions of the wife directed to the topic of his financial contributions and to transactions appearing in his bank statements, by failing to advise him of his ability to put documents to the witness and ask questions in relation to those documents.
c)His Honour erred in misdirecting the husband that his questions in cross-examination could only be in relation to the wife’s trial affidavit.
Dealing with these claims seriatim:
a)It is not for a judge to provide legal advice to a party, and thus what his Honour could have said to the husband about this topic would have been limited indeed. It certainly could not have included advice as to the principles applicable to the determination of issues relating to superannuation entitlements.
In any event, the question that needs to be asked is whether a failure to provide that detail has resulted in injustice to the party affected, such that a new trial is warranted (Yein & Zihao (2019) FLC 93-889, Stead v State Government Insurance Commission (1986) 161 CLR 141, and Norbis v Norbis (1986) 161 CLR 513).
Concerningly, nothing was put on behalf of the husband, in either the written summary of argument, or the oral submissions of counsel, which would demonstrate any injustice to the husband in this regard. It is not a case of res ipsa loquitor.
b)Unfortunately, this assertion is not an accurate representation of what occurred. The husband was not “prevented” by his Honour from putting any documents to the witness, or from asking questions about any such documents.
The husband’s case had closed, and he was cross-examining the wife. During that cross-examination (Transcript 26.11.18, page 23) he sought to tender copies of his bank statements to his Honour. He was not looking to put those documents to the witness, or ask questions about them. In response, his Honour refused to allow the husband to tender those documents, informing him that because his case had closed, his opportunity to tender those documents was over.
As it happened, those bank statements were already before the court, and were included in Exhibit “A1”, an exhibit that his Honour referred to in his reasons for judgment.
c)This assertion is also misconceived. His Honour did not direct the husband that his cross-examination could only be in relation to the wife’s trial affidavit.
When the husband sought to raise with his Honour what was in an affidavit that was not before the court, his Honour indicated to the husband that the only evidence of the wife that was before the court, was that contained in her trial affidavit (Transcript 26.11.18, pages 27-28).
His Honour then advised the husband that he needed to make his questions relevant (Transcript 26.11.18, page 28).
In these circumstances, none of these complaints have any merit.
Conclusion
Having found that no ground of appeal has any merit, the appeal must be dismissed.
Costs
At the conclusion of the hearing submissions were received as to the question of costs, depending on the result of the appeal.
In the event of the appeal being dismissed, the wife sought an order for costs fixed in the sum of $10,000. There was no challenge by the husband to that amount being appropriate, and nothing was put in opposition to an order being made. Accordingly, I will make the order sought by the wife.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 November 2019.
Associate:
Date: 6 November 2019
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