PERCIVAL & PERCIVAL - [2010] FamCAFC 42

FAMILY COURT OF AUSTRALIA

PERCIVAL & PERCIVAL

[2010] FamCAFC 42

FAMILY LAW - APPEAL – PROPERTY – No challenge to the Federal Magistrate’s exercise of discretion – Property divided 60 per cent to the wife and 40 per cent to the husband – Where the wife did not appear at the final hearing – Where the wife has not properly participated in proceedings – Whether a prior oral property agreement exists between the wife and the husband – No relevant evidence of such an agreement before the Federal Magistrate or Full Court – Where wife ordered to pay a sum of money to the husband – If not paid, the former matrimonial home is to be sold and the proceeds divided according to a formula – Challenge to the formula – No merit to challenge – Appeal dismissed

FAMILY LAW - COSTS – Both parties self-represented in the appeal – No order as to costs

Family Law Act 1975 (Cth)
Family Law Rules 2004

Percival & Percival [2008] FamCAFC 83

APPELLANT:

Ms Percival

RESPONDENT:

Mr Percival

FILE NUMBER:

MLC

9146

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

4 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman, May and Boland JJ

HEARING DATE:

4 March 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 February 2009

LOWER COURT MNC:

[2009] FMCAfam 18

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The appeal is dismissed.
There be no order for costs

IT IS NOTED that publication of this judgment under the pseudonym Percival and Percival is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 19 of 2009
File Number: MLC 9146 of 2007

Ms Percival

Appellant

And

Mr Percival

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Coleman J

I invite Justice May to give the Court’s first judgment in this matter.

May J

Application for Adjournment

At the outset of the hearing of this appeal, the wife applied for an adjournment on the basis that she was unwell. Although she was coughing at the beginning of the hearing, Ms Percival appeared to manage the oral argument quite well, as the sound recording of these proceedings will demonstrate. No medical certificate was provided in relation to this application, and I would mention that her failure to attend court on previous occasions, including 19 December 2009, remains unexplained.
I would add that it is impossible to imagine how an adjournment would have advantaged Ms Percival, nor did she explain how this could be so.
In addition, the wife referred to a desire to approach the High Court of Australia, perhaps to raise a constitutional issue, although, it seems no documents have yet been filed in the High Court.
In addition to previously filed submissions in relation to this appeal, Ms Percival provided us with further written submissions that, she conceded, she had been able to prepare in recent days. We refused her application for an adjournment.

The Appeal

A notice of appeal was filed by the wife on 6 March 2009 from orders made by McGuire FM on 9 February 2009. The wife did not appear at the hearing on 9 February 2009.
The orders provided that the wife pay to the husband the sum of $445,000 before 19 February 2009, and if that sum was not paid, then the former matrimonial home be sold. In the orders a formula was provided as to how the net proceeds of the sale proceeds of the house should be divided. Other orders were made in relation to liabilities and other property of the parties, including superannuation. The effect of the orders was to divide their net assets as to 60 per cent to the wife and 40 per cent to the husband.
The judgment of the Federal Magistrate explains that the matter had become undefended as at 19 December 2008, because when the trial was to be heard on that occasion the wife did not appear. She was not represented at any time by lawyers.
It is useful to set out precisely what the Federal Magistrate said:
4.The wife had, in fact, corresponded directly with the Court and also with the husband’s solicitors on the day prior to the hearing indicating that she would not be in attendance at the Court.
5.The wife’s correspondence, whilst confusing in its content, appeared to indicate that she was contemplating a number of either appeals or collateral Court actions against the husband.
6.[Ms Percival] also stated that she was unwell. No medical evidence or corroboration was provided. In the circumstances of the history of this matter and the above, I acceded to the application by husband’s counsel for an undefended hearing.
7. The husband is 57 years of age, being born [in 1951].
8. The wife is 49 years of age, being born [in 1959].
9.The wife is Chinese by origin. In previous appearances before the Court, [Ms Percival] has had the assistance of an interpreter but from observations appears to have some practical and workable knowledge and understanding of the English language.
10.An interpreter was made available for her for the hearing of

19 December 2008 and for which [Ms Percival] did not attend.
In the recounting of the history of the proceedings it can be seen that the matter commenced in December 2006, when the husband filed an application. The wife did not attend the case assessment conference, but did file a response on 7 February 2007. The wife later filed two affidavits on 1 December 2008, which were before the Federal Magistrate.
On 22 September 2008 the husband filed an affidavit in which he referred in detail to the financial history of the marriage, the asset pool, the children, inheritances, what he predicted might be the wife’s objections to the proceedings and costs orders. Attached to the affidavit were a number of source documents, including financial accounts of the parties’ superannuation funds.
The early history of the proceedings is set out in another judgment of the Full Court dated 20 June 2008: Percival & Percival [2008] FamCAFC 83.
Other parts of the history of the litigation can be taken from the judgment of the Federal Magistrate, beginning at paragraph 17:
17. …
·On 14 February 2007 the matter was listed and procedural orders made by Registrar Kaur.
·On 12 April 2007 the wife filed a Form 2 Application to review the decision of Registrar Kaur on 14 February 2007.
·On 23 April 2007 the matter was listed for a conciliation conference before Registrar Hunt. The wife did not attend. The conciliation conference was adjourned to 15 May 2007.
·On 4 May 2007 the husband filed a Form 2A Response.
·On 10 May 2007 the wife’s Form 2 Application to review the decision of Registrar Kaur on 14 February 2007 was heard by Justice Dessau. Her Honour dismissed the Form 2 Application and adjourned the conciliation conference to 7 June 2007 to enable exchange of information.
·From 11 May 2007 to 6 June 2007 there were communications between the husband’s solicitor and the wife. The husband requested that the conciliation conference listed for 7 June 2007 be adjourned because he would be overseas. The wife refused the request to adjourn.
·On 6 June 2007 the wife filed a notice of appeal against the decision of Justice Dessau on 10 May 2007.
·On 7 June 2007 the conciliation conference was adjourned by Registrar Marrone to 30 July 2007.
·On 6 July 2007 the wife filed a Form 2 Application to review the decision of Registrar Marrone on 7 June 2007.
·On 30 July 2007 the matter was listed for a conciliation conference before Registrar Riddiford. The wife did not attend. The matter was then transferred to the Federal Magistrates Court.
·On 21 August 2007 the husband filed a Form 2A Response in the Family Court.
·On 31 August 2007 the wife’s Form 2 Application to review the decision of Registrar Marrone on 7 June 2007 was heard by Justice Guest. His Honour dismissed the wife’s Form 2 Application.
·On 27 September 2007 the wife filed a notice of appeal against the decision of Justice Guest on 31 August 2007.
·On 25 October 2007 the wife filed a Response to Application for Final Orders in the Federal Magistrates Court.
·On 30 October 2007 the matter was listed for its first return in the Federal Magistrates Court before Federal Magistrate Riethmuller, who made procedural and other orders.
·On 12 December 2007 a directions hearing for the wife’s notice of appeal was heard by Justice Kay of the Family Court, who made procedural orders.
·On 18 April 2008 the wife filed an Application in a Case in the Family Court to adduce further evidence at the appeal hearing.
·On 7 May 2008 the Full Court heard the wife’s application for appeal. The Full Court comprised of Justices Finn, Warnick and Boland.
·On 20 June 2008 the Full Court delivered its judgment, dismissing the wife’s appeal.
18.By orders of 30 October 2007 Federal Magistrate Riethmuller adjourned the matter for final hearing with an estimated hearing time of two days to 20 October 2008. It is apparent, therefore, that the wife had almost one year of notice of the final hearing.
19.The matter came before me for hearing on 20 October 2008. Before me on that day was an application by the wife seeking an adjournment of the substantive issues until the year 2015 – a period of some seven years. That application was refused. However, it was apparent that the wife was not ready for hearing on that day. The matter was therefore listed for hearing commencing 30 October 2008 with directions that the wife file and serve any updated financial statement and affidavit material on which she intended to rely by 4:00pm on 28 October 2008.
20.The wife did not and has not filed any further affidavit material in respect of the substantive issue.
21.The matter came before me again on 30 October 2008. On that occasion, the wife brought an oral application for a stay of proceedings. She was unsuccessful. The matter was further listed for final hearing on 19 and 22 December 2008. The wife was afforded further indulgence in allowing her to file updated affidavits and financial statements not later than 4:00pm on 12 December 2008.
22.An award of costs was made against the wife in respect of the adjournments of the 20 October 2008 and 30 October 2008.
23.On 1 December 2008 the wife filed two separate further affidavits. The text of those affidavits suggests that they are in support of a further application for a stay. The Court file discloses no such application. In any event, the wife did not attend at Court on 19 December 2008 to prosecute any such application.
24.Against this background the matter proceeded by way of undefended hearing on the husband’s application on 19 December 2008.
After setting out the relevant facts taken from the husband’s material, the Federal Magistrate concluded that the parties had made an equal contribution during the relationship. The parties began living together in April 1992, were married in December 1994 and separated in October 2004. There are two children: X, born in 1993, and Y, born in 1996.
The husband and wife are professionals by occupation. The Federal Magistrate found that by reason of the parties’ ages, 57 in the case of the husband and 49 in the case of the wife, she had a longer working life. The children live with their mother.
The Federal Magistrate made a 10 per cent adjustment in favour of the wife, as he described it, “on account of s.75(2) factors”.
The overall result was that the parties’ property, including the value of the superannuation held by each of them, was to be divided as to 60 per cent to the wife and 40 per cent to the husband.
The parties are to retain their respective superannuation entitlements, valued at $303,583 for the wife and $237,352 for the husband.
The wife, in her notice of appeal, does not directly challenge the exercise of discretion by the Federal Magistrate. It is my view based on the facts as presented to the Federal Magistrate, that the order he made was entirely within the range of a proper order, pursuant to the provisions of s 79 of the Family Law Act 1975 (“the Act”).

Grounds of appeal

The grounds of appeal are as follows:
1. This Federal Magistrate made an error in the law advised us that the court has not power to order people attend a mediation.
2. This Federal Magistrate made an error in the Federal Magistrate Act 1999, refused transfer the case back to the Family Court.
3. The matter of the Family Court needs to be tested by some authority before lodge to the High Court.
4. This Federal Magistrate accepted three Reconciliation Conference with no. evidence.
5. This Federal Magistrate made an order for me to pay $445,000 to my husband even though after the debts are paid the total assets are less than $445,000.
6. My ex husband should pay back $181,000 to my children.
7. My ex husband should pay children’ school and holiday fees.
The order sought in the appeal is:
1. The Order made on the 9 Feb 2009 should be voided. The Court should follow the law to order us attend the mediation or transfer the case back to the Family Court. [The solicitor for the husband] should provided the document that I have requested. The final hearing should be after the exchange of documents and when all the final information correct it.

Discussion

We have two sets of written submissions from Ms Percival; the first were filed on 29 January 2010 and the second were provided to us this morning. I will first refer to the submissions filed in January.
The submissions filed by Ms Percival do not match, in any way, the grounds. In essence, it is claimed that there has been a failure on the part of the Court, including the Federal Magistrate, to comply with the Family Law Rules 2004 (“the Rules”). When the purpose of the Rules is understood, it can be seen that they are to serve the obtaining of a just and equitable proceeding in a timely manner before the court. Nothing to which has been referred in the submissions or in the oral argument of Ms Percival demonstrates that the failure to comply with any rule has caused her any unfairness.
In addition, it is submitted that there was an oral financial agreement between her and the husband. It is claimed that this agreement was binding for a period of four years. The wife does not include in this submission when that agreement was made. It is impossible for us to understand anything further about it. However, as mentioned, the husband in his affidavit refers to this contention.
As a matter of interest, in the response filed by the wife, she claimed that there was a contract between the parties, under seal. When questioned today, Ms Percival now says that was a mistake. I would add nor did the wife include any reference to this assertion in either of her affidavits. As mentioned, the husband referred to the possibility of this claim in paragraphs 90 and 91 of his affidavit and directly denied it.
References are also made in the submissions to an inheritance by the parties’ children from the husband’s mother’s estate. It is not clear what impact that would, or should have had, on the property settlement. Again, reference was made by the husband to the inheritance in his affidavit.
Of some significance, there is no explanation by the wife as to why she has not properly participated in these proceedings, including her failure to appear at the trial. The wife has not filed any relevant evidence, despite many opportunities to do so.
I will now refer to the second submissions which were provided to us this morning.
Other than paragraphs 16 and 17, to which I will later refer, the balance of the submissions have no substance. As mentioned, it was open to the wife in the past to present any relevant evidence.
The wife raised the question of the value of the husband’s superannuation at trial. In paragraph 35 of the husband’s affidavit he provided the current figures, and in the absence, again, of the wife providing evidence to the contrary, the Federal Magistrate was entitled to accept the evidence before him.
Finally, the wife argued that the formula contained in paragraph 4 of the orders is incorrect and not practical. I do not see that this can be correct. The Federal Magistrate wished to divide the parties’ net assets, 60 per cent in favour of the wife and 40 per cent to the husband. The formula does achieve that division.
It is clear from the transcript, to which we have been referred to by the husband, that the Federal Magistrate made this order after lengthy submissions by counsel for the husband, which explains how these figures and percentages, together with the formula, were arrived at.
In my view, this appeal is without merit and I would dismiss it.

Coleman J

I, too, would dismiss the appeal for the reasons advanced by Justice May. I have nothing to add to her Honour’s reasons.

Boland J

I agree entirely with the reasons of Justice May and I too would dismiss the appeal.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 16 March 2010