Qiu & Xinyi
[2023] FedCFamC1A 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Qiu & Xinyi [2023] FedCFamC1A 62
Appeal from: Xinyi & Qiu [2022] FedCFamC2F 1715 Appeal number(s): NAA 2 of 2023 File number(s): PAC 519 of 2021 Judgment of: AUSTIN J Date of judgment: 4 May 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – No denial of procedural fairness – Unsupported allegations of collusion – Where the husband could not establish discretionary error – Where the appeal lacks merit – Appeal dismissed – Self-represented parties – No question of costs.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband applied “to extend time for abandoning the Appeal” – Where the husband confirmed he was not abandoning the appeal – Where the application could be construed as an application for an adjournment of the appeal hearing – Where the application lacks merit – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 102NA and 75(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.01, 4.04, 4.05
Cases cited: Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 71 Date of hearing: 4 May 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 2 of 2023
PAC 519 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR QIU
Appellant
AND: MS XINYI
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
4 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 March 2023 is dismissed.
2.The Response to an Application in an Appeal filed on 24 March 2023 is dismissed.
3.The appeal is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Qui & Xinyi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By a Notice of Appeal filed on 3 January 2023, the husband appeals from property settlement orders made under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 13 December 2022.
For the reasons which follow, the appeal is dismissed.
Background
The parties separated in July 2019 and in February 2021 the wife commenced proceedings seeking property settlement relief under Pt VIII of the Act. The proceedings were heard in November 2022.
The primary judge rejected the wife’s proposal to conduct the hearing on an “undefended” basis due to the husband’s default in compliance with some earlier procedural orders (at [5]).
The husband was cross-examined, but he was prohibited from personally cross-examining the wife by an order made under s 102NA of the Act in August 2022. However, such an order was unnecessary because the embargo on cross-examination was automatic due to the wife making allegations of family violence against the husband and there being a final family violence order in force, made by a State court against the husband for the wife’s protection. Despite the father’s consequent entitlement to legal aid funding for his legal representation at the trial, he elected not to avail of it (at [2]).
Judgment was pronounced in December 2022, about a month after the trial concluded.
The primary judge found neither party had any asset of significant value when they commenced cohabitation (at [24]). Contributions were found to be equal (at [31]), though an adjustment of five per cent was assessed in the wife’s favour, meaning she would receive 55 per cent of the parties’ net assets and superannuation (at [46]-[47]). To achieve the desired outcome, orders were made for four parcels of real property to be sold and the net proceeds of sale used to retire debt secured over a fifth parcel of real property (“the Suburb G property”). The wife acquired sole proprietorship of the Suburb G property. The husband was also ordered to transfer a car to the wife. Otherwise, both parties retained the assets in their respective possession and bore responsibility for their own debts.
Application in an Appeal
On 16 March 2023, the husband filed an Application in an Appeal, which he described as an application “to extend time for abandoning the [a]ppeal”, which description is apt to mislead because he certainly did not contemplate either the discontinuance or abandonment of the appeal. He confirmed he was not abandoning the appeal.
He expressly sought orders in these terms:
1.That time for filing requested documents be extended until the AVO conditions 2 and 8 against me expire or removed
2.That time for filing requested documents be extended until damages done to my mental health by the Wife’s unlawful and unethical separation conducts, being influenced and manipulated by her Lawyer, recovered
(As per the original)
In support of those orders, the husband relied upon his affidavit filed on 16 March 2023, in which he deposed:
45.I believe that adjourning the matter until the parties can engage direct dialogue is critical and beneficial to the proceeding. …
(As per the original)
The application was entertained by the appeal registrar on 29 March 2023, at which time the parties were granted an extension of time within which to file their Summaries of Argument in readiness for the appeal hearing on 4 May 2023, but otherwise the application was adjourned for hearing in conjunction with the appeal. The application is dismissed because the orders it seeks are meaningless.
To the extent that the application could be construed as an application for an adjournment of the appeal hearing, it should be dismissed. The husband’s desire to now mediate with the wife to try and compromise over the division of their property is not a proper basis for an adjournment of the appeal. The appealed orders already settle that very controversy. Nor is any adjournment justified by the husband’s belief that the parties’ child is anxious and stressed by the ongoing litigation or that an adjournment would enhance the “integrity” of the parties’ lives and those or their family members.
The appeal
Although the grounds are numbered up to Ground 11, there is no Ground 9, so there are only 10 grounds to consider.
Without intending disrespect, Grounds 1 and 10 are incomprehensible and were not illuminated by the husband’s Summary of Argument. Those grounds are pleaded in this way:
1.The Division 2 court went against law principle of Accessible and Impartial Justice, ignoring my request to uphold the Austalian Family Laws, allowing the other side to proceed its court action breaching principle family law court rules
…
10.The Division 2 court Judge [name] went against law principle of Accesible and Impartial Justice that justice is primarily about just and fair and lawful procedure, by ignoring my request for a lawful procedure.
(As per the original)
No attempt is made to unravel their meaning.
Two grounds (Grounds 5 and 6) appear to comprise complaints about the procedural fairness of the hearing, in which event they will be addressed first, as the law requires (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
Ground 6
Ground 6 is a complaint of the judge “colluding” with the wife’s lawyer.
It may be presumed the husband was thereby alleging the primary judge’s actual bias, though the only written submission made in support of such a serious allegation of judicial misconduct was this:
6.The Division 2 court judge [name] went against law principle of Impartial Justice by colluding with the Wife’s lawyer [name] to conduct his court proceedings. At the Final Hearing scheduled but later vacated on or about 4 August 2022, [the judge] played dumb game in court with the Wife’s Lawyer about Legal Aid. He attempted to trick me into having a Legal Aid so to exert influence over me so that I would accept and follow the unlawful court actions started and carried on with by the Wife’s lawyer, [name]. Refer to Hearing Transcript on 4 August 2022.
(As per the original)
Self-evidently, the complaint arises from events in court on 4 August 2022, but the transcript of the proceedings before the primary judge that day is not available, as this appeal lies from orders flowing from the hearing conducted in November 2022. Consequently, there is no reliable record of what transpired on 4 August 2022, but the procedural orders made that day only vacated the trial (Order 1), invoked s 102NA of the Act (Order 2), exhorted the husband to comply with prior procedural orders (Order 3), and re-listed the trial for two days beginning in November 2022 (Order 4). The husband takes no issue with those orders.
In oral submissions, the husband explained how he imputed the primary judge’s collusion with the respondent’s lawyer in August 2022 from the primary judge having accepted the lawyer’s submission that he was entitled to legal aid representation due to the operation of s 102NA of the Act. The husband believed the primary judge initially feigned ignorance of the legal aid scheme so as to induce him to believe his interests could be robustly and independently represented by a legal aid lawyer, which fact he is retrospectively convinced is untrue. Suffice to say, the submission of collusion on that basis is rejected. Even if the husband truly believes it, his belief is not proof of the fact.
If the husband felt as though the primary judge’s impartiality was compromised by the events in court in August 2022, he made no application for his Honour’s disqualification – either in August 2022, at the trial in November 2022, or at any time in between. He must therefore be regarded as having waived any disqualification application (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577-579 and 586-588).
In any event, the husband’s current complaint of bias by the judge’s collusion with the wife’s lawyer is impossible to reconcile with the gratitude he expressed during the trial in November 2022. The husband said this to the primary judge:
[THE HUSBAND]: Sorry, your Honour, I think – not – with all respect I really appreciate giving this opportunity for me to present my case. I think I feel a lot better after, you know, you gave me this opportunity. …
…
[THE HUSBAND]: …I think I clearly expressed my thoughts and it’s sort of almost come repetitive, and a bit annoying to the court, and you know, I just try not be rude.
(Transcript 11 November 2022, p.70 lines 28–30, 39–40)
Ground 5
Ground 5 is a complaint of the trial being completed on the first day and not extending into the second day for which it was originally listed.
The hearing concluded within one day because the husband was unable to cross-examine the wife, his cross-examination by the wife’s lawyer was reasonably short, and the parties’ final submissions were economical.
It should be noted the husband did not even want to cross-examine the wife. He had this exchange with the primary judge when the effect of s 102NA of the Act was being explained to him:
HIS HONOUR: … Because you don’t have your own lawyer today and because the wife has made family violence allegations against you, you are not permitted, by operation of law, to cross-examine or ask any questions of the wife in these final property proceedings.
[THE HUSBAND]: I don’t have this intention either.
(Transcript 11 November 2022, p.21 lines 7–12)
The hearing concluded with these remarks by the primary judge:
HIS HONOUR: Okay. So the husband has left the court. …
…
HIS HONOUR: …The court reserves its decision.
[COUNSEL FOR THE WIFE]: May it please the court.
HIS HONOUR: Vacate the final hearing fixture for – what date was it?
[COUNSEL FOR THE WIFE]: I think it’s 9 December.
HIS HONOUR: Nine December 2022. …
(Transcript 11 November 2022, p.73 line 41, and p.74 lines 39–47)
The transcript reveals the hearing commenced at 10.07 am and concluded at 3.17 pm.
In support of this ground, the husband submitted:
5.The Division 2 court judge [name] made a discretion outside its wide range by cutting the two day trial into one day. [The judge] should have continued with the second day trial that was set on 9 December 2022 because [i]n [...] November 2022 charges against me for domestic violence were found to be false accusations and were dismissed by His Honour in the District Court.
The submission is rejected. Whatever may have happened between the parties in a State court in November 2022, a few days after the trial concluded, was unknown to the primary judge. No application was made by the husband to re-open the proceedings before his Honour, which is not to suggest the hearing would or should have been re-opened if sought.
Although the husband deposed (in an affidavit he filed in support of his rejected interlocutory application in the appeal) to his appearance before a State court in November 2022, he affirmed the family violence order made against him for the wife’s protection remained in place. Apparently, only his conviction for having assaulted the wife was overturned on appeal. No aspect of the primary judge’s property settlement orders turned on the misplaced assumption of the validity of the husband’s conviction for assaulting the wife, in which case his subsequent exoneration on the criminal charge is immaterial.
Grounds 2 and 3
Grounds 2 and 3 jointly comprise a complaint that the trial proceeded without pre-action procedures having been followed and, in particular, the dispute was not first mediated.
In oral submissions, the husband explained how much the same complaint was the gist of Grounds 1 and 10, in which event those grounds are covered by the following discussion of Grounds 2 and 3.
The husband began by telling the primary judge the trial could not proceed because the wife had not complied with pre-action procedures. His submission was rejected and the trial proceeded. He now makes the same misconceived complaint in the appeal.
Rule 4.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires that the pre-action procedures prescribed under Sch 1 to the Rules must be complied with “before starting a proceeding”, but that obligation is subject to certain exceptions. One exception is when the Court is satisfied the property proceeding involves allegations of family violence or the risk of family violence (rr 4.01(2)(e) and 4.01(3)(b)). The primary judge correctly told the husband that exception applied and so his implied application to stay the proceeding was rejected (rr 4.04(1) and 4.05).
There is no doubt these proceedings entailed allegations of family violence made by the wife against the husband, regardless of his denial of the allegations. Nor is there any substance to his complaint about the timing of the application made against him for the State family violence order for the wife’s protection, as the husband concedes she first approached the police making allegations of family violence against him in February 2021, contemporaneously with the commencement of these proceedings. The wife also filed an affidavit simultaneously with her Initiating Application in February 2021, within which she made allegations of the husband’s family violence (at paragraphs [25]-[33]). It may be the husband is unfamiliar with the broad definition of “family violence” within the Act (s 4AB). The exemption from compliance with pre-action procedures applied, as the primary judge correctly found, so the wife could freely commence and prosecute the property settlement proceedings.
Even if the proceedings had been started before the wife reported her allegations of family violence to police and made such allegations within the context of these proceedings, the primary judge was empowered to dispense with the need to comply with pre-action procedures (s 192(2)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). By the time of the trial in November 2022, the litigation had been underway for nearly two years and it would have been imprudent to render redundant the progress made in the litigation to that point by vacating the trial and requiring the parties’ belated engagement in pre-action procedures in the hope of averting the resumption of the adversarial litigation.
Ground 4
Ground 4 complains of the primary judge finding that the husband “abandoned” his affidavit filed in July 2021, the discussion of which complaint requires some context.
The trial was originally fixed for August 2022, but due to the husband’s failure to comply with procedural directions made in February 2022 and May 2022, the trial in August 2022 was vacated. The trial was re-listed to start in November 2022.
On 10 November 2022 – the day before the trial started – the husband filed his trial affidavit, but it was apparently not served on the wife’s lawyer until the day of trial, which is why she initially made an application for the trial to be conducted on an undefended basis.
Before the trial actually commenced, the primary judge told the husband he would be permitted to rely upon the affidavit and financial statement he had filed long before on 21 July 2021, together with the affidavit he filed the day before. His Honour said this:
HIS HONOUR: … So, [husband], the court will have regard to your affidavits filed 6 July last year, your affidavit filed – or at least dated 8 November 2022 and it will have regard to your financial statement filed 6 July last year. …
(Transcript 11 November 2022, p.20 lines 25–28)
However, the situation changed. Just before the husband was cross-examined an issue arose as to whether he would be cross-examined on his affidavit filed in July 2021 and this exchange occurred with the primary judge:
HIS HONOUR: Okay. Well, I – just to give you another – one more opportunity to answer, do you or do you not want to rely on your affidavit filed 6 July 2021 prepared on your behalf by [former lawyers]; “Yes” or “No”, please?
[THE HUSBAND]: I reckon I shouldn’t really have the decision to say “Yes” or “No” to – as – to your question, your Honour.
HIS HONOUR: Well, unfortunately you’ve got some choices and decisions to make at this final hearing, sir. You have a choice. You can rely on that affidavit or you don’t have to rely on that affidavit. It’s your choice. So
[THE HUSBAND]: If I have the choice, can I just choose the option that please obey the Australian law.
HIS HONOUR: Okay.
[THE HUSBAND]: Please ask them to ask – to obey the Australian law.
HIS HONOUR: Well, I will obey Australian law, sir. I promise you that. [The wife’s counsel], I think in the circumstances from what the husband has just been saying over the last few minutes that he doesn’t – I think I should infer that he doesn’t want to rely upon that affidavit. In particular I note it’s – it was prepared on his behalf by [former lawyers] and he has been critical of [the former lawyers] this morning including reference to criticisms of [the former lawyers] in his recent affidavit so the court’s minded not to present – is minded now to not take that affidavit of the husband into account. Do you want to say anything about that course?
[COUNSEL FOR WIFE]: No, your Honour. That was that was where my cross-examination was going to go.
HIS HONOUR: Okay. Sir, the only affidavit then – [the husband], your only affidavit then that you can potentially rely upon is your affidavit made three days ago and part of which you’ve read out to the court. Do you want to rely on that affidavit?
[THE HUSBAND]: Yes.
HIS HONOUR: Very well. Court notes the husband’s statement just made through the interpreter that he wants to rely upon his affidavit made three days ago and it’s dated 8 November 2022. …
(Transcript 11 November 2022, p.22 line 45 to p.23 line 35)
Once the husband’s cross-examination commenced, this further exchange occurred between the husband and the primary judge:
HIS HONOUR: Is it the case that you do not rely upon your affidavit affirmed 5 July last year and filed 6 July last year?
[THE HUSBAND]: I have already answered this question just now then.
HIS HONOUR: Well, you told the court outside the witness box that you don’t seek to rely on that affidavit. Is that right?
[THE HUSBAND]: My answer was, “I shouldn’t have answered that question.”
HIS HONOUR: Very well. Again, the court will assume you don’t rely upon that affidavit. You told the court a few minutes ago that you do rely upon your affidavit dated 8 November 2022. Is that right?
[THE HUSBAND]: Yes.
HIS HONOUR: You – your former solicitors, [name], helped you make a financial statement filed 6 July 2021. Do or do you not rely upon that financial statement?
[THE HUSBAND]: I’m not here to fight for the properties today.
HIS HONOUR: Very well, I will assume that you don’t seek to rely upon that financial statement prepared on your behalf by [the former lawyers].
(Transcript 11 November 2022, p.26 line 33 to p.27 line 8)
Consequently, the primary judge determined the proceedings on the basis that the husband only relied upon the evidence contained within his affidavit filed on 10 November 2022 (at [9]).
In support of this ground, the husband submitted:
4.… [the judge] incorrectly found that I abandoned my Affidavit made and submitted in about July 2021 …
The submission is rejected. The husband’s equivocation about the material upon which he relied, when asked direct questions about it by the primary judge, entitled his Honour to find the husband did not rely upon the historical material he filed in July 2021. The affidavit he filed on 10 November 2022 was the affidavit he prepared for trial pursuant to trial directions.
In any event, the husband did not contend any evidence contained within his July 2021 affidavit was materially different to that within his November 2022 affidavit. Nor did he suggest that the admission of the earlier affidavit could have led to a different result. This ground of appeal is consequently entirely academic (Stead v State Government Insurance Office (1986) 161 CLR 141 at 147; DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 463; Balenzuela v De Gail (1959) 101 CLR 226 at 232, 239 and 244).
Ground 7
Ground 7 is pleaded as follows:
The Division 2 court judge [name] made a discretion outside its wide range by ordering to force-sell my current primary residence without ever consulting with me in this regard ingnoring a fundamental fact that ungrounding an alive human from its home against its will usually causes severe trauma.
This may be construed as a complaint that the primary judge made a manifestly unreasonable order by requiring the sale of the real property which the husband occupied.
At the time of trial, the husband was living in one of the four parcels of real property which the primary judge ordered be sold (“the Suburb M property”). The property was found to be worth $1.55 million, but was encumbered by a mortgage securing debt of $793,364 (at [20]). The overall net value of the parties’ assets and liabilities was found to be nearly $3.6 million (at [20]), so the wife’s share of 55 per cent amounted to nearly $1.98 million (at [51]). Other real properties had to be sold to discharge the mortgage registered over the Suburb G property, which the wife would retain, and to pay her the cash sum to top-up the balance of her entitlement.
During the trial, the husband showed no interest in retaining the Suburb M property. He said on multiple occasions that the wife could have all of their assets, as these excerpts of the transcript show:
[THE HUSBAND]: … I have intention to give all my assets to the party. …
…
[THE HUSBAND]: Now my family is gone, take my properties. …
…
[THE HUSBAND]: … I actually had never intended to fight my wife for assets …
…
[THE HUSBAND]: … I’m not here to – to fight for the properties at all.
…
[THE HUSBAND]: Having said many times, your Honour, I’m here today not to fight for the properties.
…
[THE HUSBAND]: I’m not here to fight for the properties today.
…
[THE HUSBAND]: … she can take all the properties but we have to obey the Australian law.
…
[THE HUSBAND]: I’ve said, your Honour, I said many, many times previously, just not in court, I’m willing to give the other side 100 per cent assets. I work fully for family. I don’t have any personal, luxury, hobby, whatever. Whatever she alleged there
HIS HONOUR: Well, she doesn’t want 100 per cent. She wants 60 per cent. So that’s what I want you to address now.
[THE HUSBAND]: … So, your Honour, can we say today’s court was because the husband was intended to be generous, and that the court tried to stop the husband from being generous, or what’s the going on here today? Husband offered to give the others 100 per cent, they say, hang on, don’t give them much, I want to go to court to have less. …
(Transcript 11 November 2022, p.4 lines 24–25; p.8 line 35; p.18 line 29; p.20 lines 40–41; p.22 lines 28–29; p.27 line 5; p.27 lines 27–28; p.59 lines 1–12).
More specifically, the husband refuted the Suburb M property was his home, saying this during cross-examination:
HIS HONOUR: … What’s your address, please?
[THE HUSBAND]: I don’t have home now.
…
[COUNSEL FOR THE WIFE]: Okay. You’ve sworn an affidavit just two days ago though, deposing that you reside at [the Suburb M property].
[THE HUSBAND]: Yes.
[COUNSEL FOR THE WIFE]: That’s where you’re residing, aren’t you?
[THE HUSBAND]: I don’t call this home.
[COUNSEL FOR THE WIFE]: Okay. But, sir, you knew when his Honour asked you where you were living that you were living at [the Suburb M property]?
[THE HUSBAND]: I – I live in there. It’s not my home.
(Transcript 11 November 2022, p.26 lines 20–22, and p.38 lines 9–21)
Despite the husband’s asserted disinterest in the outcome of the proceedings, correctly, the primary judge said this during the hearing:
HIS HONOUR: … The court will infer that the husband opposes the making of the wife’s proposed property orders. The court observes, consistent with its obligations under the Family Law Act, that it will, in its ultimate determination of these property proceedings, make property orders that are just and equitable between the parties. …
(Transcript 11 November 2022, p.20 lines 16–21)
The wife expressly sought orders at trial which required the sale of the Suburb M property, so the husband was on notice of her proposal. He did not take issue with the suite of orders she proposed. During final submissions, the husband failed to address the orders which needed to be made to determine the cause of action, despite the primary judge’s encouragement to do so in the following terms:
HIS HONOUR: I would respectfully ask that you address the evidence in these property proceedings, and address the orders, the property orders the court should make. …
…
HIS HONOUR: Again, the wife is seeking an order that effectively would give her 60 per cent of the value of the net matrimonial assets. She seeks specific orders in that regard. Is there anything you want to say about her proposed orders or anything you want to say otherwise about the evidence in these property proceedings …
[THE HUSBAND]: Okay.
HIS HONOUR: Okay, because for the last 15 minutes I have been waiting for you to say – make some relevant submission relating to the – to what property orders I should make that will be just and equitable between the parties. Now, if you don’t want to address that issue specifically, that’s fine, but I can’t just sit here and listen to you make further statements that are of no direct relevance to these property proceedings, okay.
(Transcript 11 November 2022, p.63 lines 17–19 and lines 28–41)
During submissions in reply, the wife’s counsel said this to the primary judge about the orders she proposed:
[COUNSEL FOR THE WIFE]: … the effect of the orders looks like but what my client, in essence, seeks is to retain [the Suburb G property], for the balance of the properties to be sold …
(Transcript 11 November 2022, p70 lines 2–4)
The husband was able to respond, but he simply thanked the primary judge for the chance to present his case and then departed the Court.
The primary judge subsequently made orders largely in accordance with those proposed by the wife, save that the husband was ordered to pay the wife a top-up cash sum which resulted in her receipt of 55 per cent of the assets, instead of the 60 per cent she sought.
The primary judge observed in the reasons for judgment (at [50]), that the husband would probably be able to purchase other accommodation with the cash and net assets of nearly $1.62 million he would receive from the property settlement.
Having regard to the state of the evidence and the manner in which the husband conducted the trial, no discretionary error is evident in the orders made by the primary judge.
Ground 8
Ground 8 is pleaded as follows:
The Division 2 court judge [name] incorrectly found that I had no mental health issues. [The judge] should have found that I was under tremendous stress and was experiencing extreme anxieties facing multiple court matters while having no affordable and trustworthy help available instead having to handle them all by myself. [The judge] should have known that I was prone to depression relapse being ungrounded from home and segreated from my most dearly affiliated son and maltreated by unfair court proceedings at the same time.
In oral submissions, the husband elaborated this ground to mean that the primary judge erred by mistaking the evidence about the state of his mental health, but the contention is rejected.
The husband annexed to his affidavit a letter from a psychologist he consulted well over a year before the trial in November 2022. The letter was dated 4 September 2021 and was addressed “To whom it may concern”. It revealed the husband had sought out counselling in June 2021. The counsellor who authored the letter said:
[The husband] reported a history of emotional abuse from his wife…
…
[The husband] has engaged well in psychological therapy and reports improved ability to manage his psychological symptoms…
…
…[the husband] has elected to engage in ongoing long-term therapy to further address and manage trauma and affect dysregulation, which will likely prevent psychological symptoms relapse in the future.
The primary judge accepted that unchallenged evidence (at [36]). His Honour also recited relevant evidence given by the husband about his health (at [37]), but noted there was no current medical evidence, as the husband said he had “stopped seeing doctors”. His Honour also found that the husband presented as being lucid in court (at [36]). When asked, the husband could not identify any error made by the primary judge in those findings and observations. He was impelled to agree they were accurate. The primary judge then proceeded to find that the husband had not “experienced any significant loss of work capacity” (at [39]). He did not identify that finding to be mistaken either.
Contrary to the assertion within this ground, the primary judge did not find the husband “had no mental health issues” – only that there was very little evidence to prove he did and, such as it was, it did not prove any material diminution of his income-earning capacity. The contention that the primary judge should have found he did suffer from “tremendous” or “extreme” anxiety or was “prone to depression” is rejected. There was a dearth of expert evidence and no such findings were available. In any event, findings to that effect were pointless. The husband did not contest the finding about his ongoing income-earning capacity or the quantum of the adjustment in the wife’s favour pursuant to s 75(2) factors.
Ground 11
Ground 11 is pleaded as follows:
11.The Division 2 judge [name] incorrectly found that I was seeking the property adjsutment orders "which were just and equitable between the parties pursuant to section 79(2) of the Act". [The judge] should have found that all I was asking at the moment was to bring the matter to lawful track and failing that I would otherwise proceed with the matter based on the argument that the relationship between the Husband and the Wife was already finished in 2006.
The ground asserts an incorrect “finding” by the primary judge.
When asked to identify the mistaken finding, the husband nominated this single sentence in the reasons for judgment (at [7]):
The Court proceeded on the basis that the Husband opposed the making of the Wife’s proposed orders and that he sought property adjustment orders which were just and equitable between the parties pursuant to section 79(2) of the Act.
The husband said the finding was wrong for two reasons: first, he did not “oppose” the orders sought by the wife, and secondly, he did not seek property settlement orders that were “just and equitable”.
As to the first complaint, the husband conceded the primary judge asked him whether he agreed or disagreed with the orders sought by the wife, but also conceded he did not answer the question directly. Instead, he told the primary judge it was not the correct question to ask him. Consequently, the husband was impelled to admit in the appeal that, although he did not “oppose” the orders sought by the wife, nor did he “agree” with them, in which event it was perfectly logical for the primary judge to proceed on the basis that the husband opposed them. Had the husband not opposed the orders sought by the wife, the primary judge could have made consent orders to quell the dispute. There is no suggestion the husband consented to the orders for which the wife applied. If he did, this appeal would be futile.
As to the second complaint, the primary judge assumed the husband wanted “just and equitable” property settlement orders made, which hardly seems controversial. The husband’s point was that he did not want any property settlement orders made, because he instead wanted the parties to negotiate a settlement of the dispute through pre-action procedures. However, the primary judge rejected the husband’s application for an adjournment of the hearing on that basis and so, given the hearing was proceeding, the husband must have wanted the primary judge to make property settlement orders that were just and equitable. It is absurd to suggest the primary judge should have instead made orders that were unjust and inequitable.
Disposition
The appeal is dismissed.
The parties were both self-represented in the appeal so no question of costs arises.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 May 2023
0
8
0