Perras & Perras
[2021] FamCAFC 109
•16 July 2021
FAMILY COURT OF AUSTRALIA
Perras & Perras [2021] FamCAFC 109
Appeal from: Perras & Perras [2020] FCCA 3109 Appeal number(s): EAA 167 of 2020 File number(s): CAC 1281 of 2016 Judgment of: ALDRIDGE J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Whether the primary judge erred in findings of fact – No submissions made by the appellant as to why the primary judge was not entitled to act on the basis of unchallenged evidence available – Findings were open on the evidence – No error identified on part of the primary judge – Where the appellant contends the primary judge erred by giving no weight to the ‘short marriage principle’ and the appellant’s initial contributions – Primary judge expressly took the parties’ short marriage into account – The respondent’s care and support of the children also a significant consideration – No error established – Appeal dismissed – Appellant to pay respondent’s costs of the appeal in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the appellant seeks to adduce evidence that was available at the time of the hearing before the primary judge – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 93A(2)
Family Law Rules 2004 (Cth) Sch 3
Cases cited: Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 61 Date of hearing: 17 June 2021 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Stagg ORDERS
EAA 167 of 2020
CAC 1281 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR PERRAS
Appellant
AND: MS PERRAS
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $14,042.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perras & Perras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Perras (“the appellant”) and Ms Perras (“the respondent”) have been engaged in parenting and property proceedings in the Federal Circuit Court of Australia for some time.
After a lengthy hearing conducted between 16 April 2018 and 14 January 2020, the primary judge made a suite of property settlement and parenting orders on 20 November 2020.
The appellant has appealed against the property orders which required the appellant to pay to the respondent $40,500 and to take the necessary steps to transfer to her all of his interest in a property at City B (“the City B property”). The respondent for her part, was required to discharge the joint mortgage over the City B property and to indemnify the appellant from any liability in respect to it. Otherwise, each of the parties was to retain their own property.
The intention of these orders was to effect a division of the parties’ property so that the respondent received 60% and the appellant 40%.
The parties began their relationship in November 2012. Four months later in March 2013, the respondent became pregnant with the parties’ first child. The parties became engaged in June of that year and married in 2013. Their first child was born in 2013 and the second was born in 2015. They separated on 10 August 2016.
The primary judge found that the property of the parties was as follows:
Asset Ownership Amount [City B] property - $240,000
less mortgage - $196,000
net valueJoint $44,000 [Town GG] Property [Appellant] $25,000 [Motorbike 1] [Appellant] $3,000 [Motor Vehicle 1] [Respondent] $6,000 Funds withdrawn post-separation [Appellant] $76,000 Funds withdrawn post-separation [Respondent] $4,750 Total non-superannuation $158,750 Superannuation [Super Fund MM] [Respondent] $133,648 Military Super [Appellant] $136,055 [Super Fund NN] [Appellant] $31,112 Total superannuation $300,815 Total combined assets and superannuation $459,565
The respondent owned the City B property at the time the relationship commenced, although it had no meaningful equity at that time. Nonetheless, the primary judge found that the respondent “had purchased and preserved it by paying the mortgage and associated expenses and it provided a home for the family for most of the relationship” (at [338]). The respondent also had some household contents of an unknown value, cash assets of $4,750 and a car which was agreed to be worth $6,000 at the time of the hearing. On the other hand, the appellant had cash assets of $76,000 and a motorbike valued at $3,000.
The primary judge found that during the relationship the respondent contributed all of her income to the needs of the family, whereas the appellant continued to accumulate savings in his personal accounts to which the respondent had no access (at [344]).
Her Honour found that the respondent was the primary parent and homemaker during the relationship and that since separation she had borne the care and financial costs of the children with little assistance from the appellant. Taking these matters into account, her Honour considered that the appropriate division of the property would be 55 per cent to the appellant and 45 per cent to the respondent.
After consideration of the factors to be taken into account under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), particularly having regard to the respondent’s continued care and financial support of the children, an adjustment of 15 per cent in favour of the respondent was justified leading to the overall division of 60 per cent to her and 40 per cent to the appellant.
APPLICATION IN AN APPEAL
The appellant filed an application on 30 March 2021 seeking to adduce as evidence on the appeal a number of bank account statements. The various accounts related to different grounds of his appeal. Each of the statements covers a period prior to the hearing and accordingly was available for use during the hearing. That immediately militates against acceptance into evidence on the appeal (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]).
On 17 August 2017, an order was made requiring the appellant to give disclosure on a number of specified matters, including his acquisition of a property at Town GG (“the Town GG property”), the provision of his bank statements and identification of his assets, including cash. That order was not complied with, although it is apparent from the submissions that one of the parties had subpoenaed some of the appellant’s bank records. During the hearing, the appellant was cross-examined about his disclosure and he accepted that he had not complied with five requests for disclosure made between 13 September 2016 and 9 March 2018.
Notwithstanding the order that had been made and the five requests for disclosure, the appellant did disclose some bank records in his Application in an Appeal on which he now wishes to rely.
Further, the issues to which these statements relate were issues that were raised at an early stage in the proceedings.
For example, the respondent asserted, in an affidavit filed on 5 June 2017, that after separation the appellant removed $7,000 from a joint bank account. The appellant did not dispute that evidence in any affidavit that was subsequently filed by him, did not cross-examine the respondent on the point and did not attempt to put into evidence the relevant bank account, which he had not disclosed pursuant to his obligations of disclosure. The appellant now wishes to introduce into evidence a bank statement which he asserts demonstrates that he did not withdraw $7,000 from that account. In other words, he effectively seeks to re-run the hearing on this issue.
The purpose of s 93A(2) of the Act is not to permit parties to have a second opportunity to run the hearing after having seen the reasons of the primary judge. This evidence demonstrates that the appellant took a deliberate course in relation to the conduct of the proceedings. In my view he should be bound by that conduct (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438).
In these circumstances, it would not be in the interests of justice for the appellant to be permitted to rely on the bank statements in the appeal.
The Application in an Appeal will be dismissed.
THE APPEAL
Did the primary judge err in finding that the cost of the Town GG property was $25,000 in 2014? (Ground 1)
The Town GG property was subject to a mining lease registered in the name of the appellant. His evidence, was that his father and another person had an interest in the mining lease together as partners, but with the lease in the name of the other person. The other person then decided to leave the venture. The evidence was that the appellant’s father could not afford to purchase the lease, so the appellant did so himself. An application for consent to transfer the lease was executed in September 2012 and the transfer itself was registered in July 2014.
It is not entirely clear what the appellant’s attitude to this property was during the hearing, because he variously asserted that he held all, or half, of the property in trust for his father. However, I do not understand that the appellant now challenges the primary judge’s finding that the property should be treated as his asset with a value of $25,000. Rather, his complaint is directed to the finding made by the primary judge that the appellant’s savings were depleted by the purchase of that property in 2014. His point is that the property was actually acquired in 2012 prior to the commencement of the relationship and that therefore its acquisition, did not diminish the savings of $76,000 he held at its commencement. Thus, he says that he made an even greater initial financial contribution than what was found by the primary judge.
In support of that proposition the appellant sought to adduce his relevant bank statements from 2014 to show that the sum of $25,000 was not withdrawn from his bank accounts. As I have said, they will not be received, but in any event, there was no issue between the parties on the appeal that a separate sum of $25,000 was withdrawn by the appellant from his bank account in 2014 which was then used to reduce the mortgage over the City B property.
The question is therefore, whether on the evidence before her Honour, it was an error to find that the appellant withdrew $25,000 from a bank account in 2014 to pay for the Town GG property.
First, contrary to the submissions of the appellant, the primary judge did not. Her Honour said:
339.[The appellant] had cash assets of $76,000 and a car worth $3,000 at the beginning of the relationship. His savings were depleted by $25,000 when he bought the Town GG property in 2014 and by a further $25,000 in the same year when he paid that amount towards the mortgage …
Thus, consistently with the finding, the first $25,000 could have been paid with retained cash and not drawn from a bank account. The bank statements would therefore not identify any error on the part of the primary judge even if they had been admitted.
Secondly, as the appellant said in the course of submissions, he could have paid the purchase price at any time from prior to the application for consent to transfer the lease in 2012 to the registration of the transfer in 2014. The difficulty however, is that the appellant did not give any evidence whatsoever as to how he acquired the Town GG property and disclosed no documents relating to it at all. The consent to transfer and the registration of the transfer that were in evidence had been tendered by the respondent after she found them amongst documents that the appellant had left behind at the time of separation.
Her Honour was thus faced with the undoubted fact that the transfer was registered in 2014 and that the property was worth, according to the expert evidence, at least $25,000. The primary judge was obliged to do the best that she could on the evidence that was before her and the obvious inference available was that the appellant paid $25,000 for the property in 2014.
In my view no error has been identified and this ground does not succeed.
Did the primary judge err by failing to consider Motor Vehicle 2 as an asset? (Ground 2)
The appellant purchased a motor vehicle (“Motor Vehicle 2”) in 2014 for $12,000. In her Financial Statement dated 5 June 2017, the respondent accorded it a value of $7,000. Her unchallenged evidence was that prior to the hearing the timing belt on the car broke and that she was advised that there was a real possibility that the car could cost more to fix than it was worth. The car was towed to the respondent’s property where it apparently remained at the time of the hearing in an undrivable state.
Given the state of the evidence, it is easy to see why her Honour did not include this car as an asset capable of being given a value. Nonetheless, the appellant submits that the primary judge should have added back “$8,000 [sic]” to the property pool, because the loss of the value of the car was “a premature distribution of matrimonial assets as per Townsend & Townsend (1995) FLC 92-569)” and that the value of the car was lost due to the respondent acting “recklessly, negligently or wantonly”, citing Kowaliw and Kowaliw (1981) FLC 91-092 as authority (Appellant’s Summary of Argument filed on 22 April 2021, p. 4–5).
In Townsend and Townsend (1995) FLC 92-569, Nicholson CJ, with whom Fogarty and Jordan JJ agreed, found that the husband in that case had engaged in a premature distribution of matrimonial assets because he distributed “to himself an asset in which the wife had a legitimate interest” and that “the husband has had the benefit of that money” (at 81,654). That is not the case here. The respondent has not retained for herself the benefit of a car worth $7,000, rather the car has become useless and of no value. Similarly, there was no evidence to suggest that the timing belt of the car broke due to any reckless, negligent or wanton conduct by the respondent.
The appellant also submitted that the primary judge failed to give any reasons as to why Motor Vehicle 2 was not included in the list of assets. That is so, but as these reasons explain, it was an inevitable conclusion on the unchallenged evidence that the car had no value at the time of the hearing. In that case, the absence of reasons on what is a relatively minor issue is unsurprising. As there is no substance whatsoever in the appellant’s contention that the value of the car should have been added back, any failure to give reasons cannot be seen as material (Conway v The Queen (2002) 209 CLR 203).
This ground does not succeed.
Did the primary judge err in finding that the appellant withdrew $76,000 from the parties’ joint bank accounts after separation? (Ground 3)
The appellant submits that finding that he withdrew $76,000 from the parties’ bank accounts is a mathematical error and, at best, the primary judge could only have found that the sum of $64,000 had been withdrawn by him. He points to the respondent’s written submissions in the primary proceedings, where the respondent identified withdrawals totalling $64,000 as having been removed from the parties’ bank accounts. It must be said that this was not the only reference to withdrawals in those submissions.
Importantly, the primary judge relied upon the evidence and not the submissions.
Her Honour recorded that the sum of $68,000 was withdrawn from the appellant’s personal accounts between 7 May 2016 and 6 April 2017 (at [323]). Her Honour found that at some time prior to 30 August 2016, the appellant had withdrawn approximately $7,000 from the parties’ joint account (at [325]). That is a total of $75,000.
In addition, her Honour also referred to $48,000 being withdrawn from the appellant’s Goal Saver account and $20,000 from his Smart Access account (at [323]).
These findings of fact are consistent with the respondent’s evidence which referred to withdrawals of $68,0000, $4,000 and $7,000 (Respondent’s affidavit filed on 20 March 2018, paragraphs 298, 304–305).
Save for the issue of the $7,000 which was the subject of a separate ground of appeal, the appellant did not make any submissions as to why the primary judge was not entitled to act on the basis of that evidence.
This ground does not succeed.
Did the primary judge fail to consider the appellant’s redeposit of $4,960 on 14 November 2017? (Ground 4)
The appellant asserts that this deposit was established by the relevant pages of his NetBank account being tendered as part of Exhibit M7. However, that exhibit appears not to be a bundle of bank records but rather documents in relation to financial disclosure, according to the List of Exhibits dated 14 January 2020. The transcript of the proceedings before the primary judge does not record these documents being tendered. The fact that the bank account may have been subpoenaed and the documents may have been available to be tendered does not mean that that in fact occurred.
There was accordingly no evidence before her Honour on this point. This ground does not succeed.
Did the primary judge err by finding that the appellant withdrew $7,000 from the parties’ joint bank account? (Ground 5)
I have already largely dealt with this issue in relation to the application to adduce further evidence. As explained there, the appellant sought to put into evidence a bank statement which he asserted demonstrated that he had not withdrawn the sum of $7,000, notwithstanding that he had not challenged the respondent’s evidence on this point or sought to rely on the bank statement at the hearing.
In her affidavit filed on 5 June 2017, the respondent asserted that the joint account which previously had at least $7,500 in it, showed on 30 August 2016 as only having $600 in it, which she then withdrew. As the only other person with access to the account was the appellant, the irresistible inference is that he had withdrawn the rest.
As the further evidence has not been admitted, this ground must fail.
However, the amount in issue under this ground is small. It was but one of a number of factors taken into account in assessing the contributions and needs of the parties. Indeed if it was an error, it is impossible to see how any rectification would have had any material effect on the outcome. This ground fails.
Did the primary judge fail to consider the “short marriage principle” and to the appellant’s initial contributions? (Grounds 6 and 7)
It was submitted that the primary judge erred by giving no weight to the “short marriage principle”. The appellant says that such a principle may be derived from the following cases:
…
Napier & Scully [2016] FCCA 1919 – 1 year
Bondar-Twersky & Twersky [2009] FMCAFam 163 – 3 years
Russo & Dorsey and Anor [2014] FamCA 467 – 3.2 years
Devoto & Devoto and Ors [2014] FamCA 1156 – 4 years
Anson & Meek [2017] FamCAFC 257 – 5-7 years
Petmski & Balewa [2013] FamCAFC 15 – 6 years
Somerset & Somerset [2009] FamCAFC 5 – 6 years
…
Pierce v Pierce (1998) FLC 92-844.
(Appellant’s Summary of Argument filed on 22 April 2021, p.10).
It is plain that where there has been a short marriage and all other things are equal, it may be said that the initial financial contributions of the parties carry great weight. However, here other things are not equal. The parties have had two children and the care and support for the children has almost been borne by the respondent solely. That is also a very significant consideration.
The primary judge found that the respondent was the primary parent and homemaker during the relationship, and that since separation she had borne the care and associated financial costs with little assistance from the appellant. Up until early 2020, the City B property was rented out and the respondent was required to pay private rental accommodation appropriate for the needs of herself and the children. This led to the following conclusion:
352.In my view, the weight of [the appellant’s] greater initial contributions is significantly offset by the weight of [the respondent’s] contributions during the parties’ short relationship and her greater post-separation contributions. On account of contributions, the property should be divided 45/55 percent in favour of [the appellant].
(Emphasis added)
It is apparent therefore that her Honour clearly took into account and gave weight to the short period of the relationship, but did so along with other considerations. That was the course that her Honour was obliged to take. Nevertheless, the short period of the relationship was expressly taken into account.
The complaint therefore devolves to a question of weight. Challenges to the weight given to particular factors face a high bar (Gronow v Gronow (1979) 144 CLR 513; Mallet and Mallet (1984) FLC 91-587).
There is no reason to think that insufficient weight was given to the period of the relationship or that the result arrived at by the primary judge at was unreasonable or plainly unjust. This ground has not been made out.
The same might be said in relation to the appellant’s submission that insufficient weight was given to what he asserted were his overwhelming initial financial contributions. They were taken into account, they were accorded weight, but just not the weight contended for by the appellant. Again, the appellant ignored the very significant contributions made by the respondent to the welfare of the children.
Did the primary judge err in giving excessive weight to the respondent’s post separation contributions? (Ground 8)
The appellant submitted that the primary judge failed to take into account the following:
(1)Each party sought Apprehended Violence Orders against the other, but the interim orders had a greater effect on the appellant’s employment than the respondents;
(2)The respondent’s “history of criminal and civilian law enforcement matters”;
(3)The respondent “took both motor vehicles from the marriage”;
(4)The respondent chose to study instead of returning to work; and
(5)There were a number of successful contravention applications raised against the respondent in the Federal Circuit Court of Australia, which occupied the time of the appellant.
(Appellant’s Summary of Argument filed on 22 April 2021, p.13–14)
The Court does not take into account “negative” contributions (Antmann and Antmann (1980) FLC 90-980 at 75,744) so points 1, 2 and 4 cannot succeed.
As to the third point, the primary judge was well aware of the retention and use of the cars by the respondent, but one of which had been hers prior to the relationship and was only returned to the respondent by the appellant pursuant to the final property orders. To say therefore that the retention of that car was not something taken into account by the primary judge cannot be made out.
The last point is simply wrong. The appellant indeed brought three contravention applications against the respondent, but none was successful.
Finally, in any event, a primary judge is not required to identify in their reasons each and every factor taken into account (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447). This ground also therefore fails.
It follows therefore that the appeal will be dismissed.
COSTS
In the event that the appeal was dismissed, the respondent sought the payment of her costs assessed in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) in the sum of $14,042.
The appellant resisted the application for costs stating that he could not pay it immediately as he only had $12,000 in cash available to him.
The appeal was wholly unsuccessful and I am satisfied that it is in the interests of justice that the order be made as sought by the respondent.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 16 July 2021
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