Raoul & Allison - [2008] FamCAFC 28

FAMILY COURT OF AUSTRALLISONA

RAOUL & ALLISON

[2008] FamCAFC 28

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – SECTION 79A APPLICATION – NATURAL JUSTICE – Assertion that husband was denied natural justice at trial not established. Husband did not attend at trial and has not shown his attendance would have led to a different result. Allesch v Maunz (2000) 203 CLR 172 and Stead v State Government Insurance Commission (1986) 161 CLR 141 cited.

FAMILY LAW - JURISDICTION – Not established that Federal Magistrate lacked jurisdiction to entertain the wife’s claim. Sections 4, 81 and 87 Family Law Act 1975 (Cth) cited.

FAMILY LAW - PROPERTY SETTLEMENT – Not established that Federal Magistrate erred in ordering husband to make mortgage repayments in respect of former matrimonial home. Consent orders of 2005 did not alter the husband’s legal liability to do so. Not established that Federal Magistrate erred in failing to find that wife frustrated sale of property. Husband failed to agitate such claim at trial and no evidence supported such claim.

FAMILY LAW – PROPERTY SETTLEMENT - CONTRIBUTIONS – Assertions that Federal Magistrate failed to take into account the greater contributions of husband not established. Husband failed to agitate such claim at trial and Federal Magistrate’s orders not made in reliance upon contributions.

FAMILY LAW - COSTS – Not established that Federal Magistrate erred in ordering husband to pay wife’s costs of s 79A application.

FAMILY LAW – EVIDENCE - FURTHER EVIDENCE – Not established that further evidence satisfied test in CDJ v VAJ (1998) 197 CLR 172. Leave to adduce further evidence not granted.

CDJ v VAJ (1998) 197 CLR 172; FLC 92-828
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
Allesch v Maunz (2000) 203 CLR 172
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

MR RAOUL

RESPONDENT:

MS ALLISON

FILE NUMBER:

PAM

5475

2004

APPEAL NUMBER:

EAA

129

2007

DATE DELIVERED:

17 March 2008

PLACE DELIVERED:

CANBERRA

PLACE HEARD:

PARRAMATTA

JUDGMENT OF:

COLEMAN J

HEARING DATE:

27 FEBRUARY 2008

LOWER COURT JURISDICTION:

FEDERAL MAGISTRATES COURT

LOWER COURT JUDGMENT DATE:

13 NOVEMBER 2007

LOWER COURT MNC:

[2007] FMCA PAM5475/2004

REPRESENTATION

COUNSEL FOR THE APPELLANT:

SELF REPRESENTED

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

MS SNELLING

SOLICITOR FOR THE RESPONDENT:

Orders

That the appeal be dismissed.
That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALLISONA AT PARRAMATTA

Appeal Number: PAM 5475 of 2004
File Number: EA129/2007

MR RAOUL

Appellant

And

MS ALLISON

Respondent

REASONS FOR JUDGMENT

By amended Notice of Appeal filed on 31 January 2008 pursuant to leave to appeal granted on 30 November 2007, Mr Raoul (“the husband”) appealed against orders made by Federal Magistrate Donald on 16 May 2006 in proceedings between the husband and Ms Allison (“the wife”) pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”).
To appreciate the effect of the orders of 16 May 2006 it is necessary to first refer to orders made by consent in the Family Court on 12 January 2005. The earlier orders provided for the parties, who were joint registered proprietors of property at D (“D”) to cause D to be sold and, after discharge of the mortgage over the property and payment of selling and other ancillary expenses, cause the balance of proceeds of sale to be divided equally between the parties. The orders further provided that until the completion of the sale of the property the wife “be liable for and indemnify the husband against all payments in respect of insurance premiums, outgoings and one half of the mortgage payments in respect of the aforesaid property”. The orders provided that each party otherwise retain any property real or personal which either party had and retain any superannuation interests which each of them had.
The orders of 16 May 2006, which were expressed to be made pursuant to s 79A(1)(a) of the Act, provided that the orders previously made for the sale of D, the division of proceeds of sale and payment of outgoings with respect to the property be set aside and that, in lieu of those orders, the husband sign all documents necessary to transfer his interest in D to the wife who was to be liable for all future liabilities with respect to the property. The husband was ordered to pay costs of the proceedings as agreed or taxed. The Court also made a declaration that pursuant to the s 79A relief which the Court granted, the husband’s interest in D was “nil”.
The husband sought in his amended Notice of Appeal:-
(1)That the new orders made on 16 May, 2006 be dismissed/changed.
(2)That the respondent pay the costs of and incidental to this application.
(3)That I am not responsible to pay for [the Wife’s] solicitors costs or any of her costs.
(4)That I at least be re-imbursed by [the Wife] for at least half the deposit towards the house and my mortgage repayments while living there (and moving away).
(5)That after this, number 4 of the Final Orders made on 12 Jan, 2005 be enforced or varied to ensure no further court proceedings in the future. (Amended Notice of Appeal, filed 31 January 2008, page 3, pars 1 – 5).
The wife resisted the husband’s appeal and sought to maintain the learned Federal Magistrate’s orders.

The proceedings in this Court.

The husband represented himself on the hearing of his appeal to this Court. With respect to him, and despite his industry, the material advanced by the husband in this Court revealed a lack of understanding of the principles governing an appeal to this Court from a decision of a Federal Magistrate, and a failure to appreciate that the focus of enquiry in this Court was whether the husband could demonstrate that the learned Federal Magistrate had erred in a way which enlivened appellate intervention in making the orders he did on 16 May 2006, varying the consent orders of January 2005.
The husband filed a considerable amount of material, including affidavits, in the absence of any application for leave to adduce further evidence in the appeal. Notwithstanding the absence of any application to adduce further evidence, the Court has considered the further evidence advanced by the husband in the manner envisaged by the High Court in CDJ v VAJ (1998) 197 CLR 172; FLC 92-828 when an application is made for leave to adduce further evidence pursuant to s 93A of the Act.
Much of the further evidence relied upon by the husband, though potentially relevant to the making of orders under s 79 in January 2005, could not have any bearing on the outcome of the appeal against the learned Federal Magistrate’s Orders of May 2006.
As the transcript would confirm, the Court attempted on numerous occasions, without success, to explain to the husband the nature of the appeal to this Court, and the bases upon which this Court could potentially disturb the Federal Magistrate’s decision. Notwithstanding the inability of the husband to agitate what could be complaints with substance in a manner resembling the presentation of conventional grounds of appeal, the Court has considered all of the material upon which he has relied in the appeal.

Relevant Law

The law which governs this appeal is not in doubt, although the husband’s presentation of his case suggests that he is quite unfamiliar with it. In the hope that the husband might better understand how this Court has determined his appeal, the following brief references to the relevant law are provided.
The order of 16 May 2006 which gave rise to the husband’s appeal was expressed to have been made pursuant to s 79A(1)(a) of the Act. The section provides:-
Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance
As will be seen, the focus of interest for present purposes is the part of the section which refers to “any other circumstance”, notwithstanding the insistence of the husband that the case before the learned Federal Magistrate was essentially about fraud, albeit he asserted that the fraudulent conduct revealed by the evidence was that of the wife.
There is a presumption that the decision of the learned Federal Magistrate is correct. Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 said (at 627):-
I shall not repeat the references I made in Lovell v. Lovell [(1950) 81 CLR 513, at pp 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The husband bears the onus of demonstrating that his Honour’s decision was clearly wrong.
The grounds for appellate intervention are summarised in the time honoured statement of principle of the High Court in House v The King (1936) 55 CLR 499 in which Dixon, Evatt and McTiernan JJ said (at 504-505):-
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The orders of the learned Federal Magistrate were made in the exercise of a discretionary power, as the terms of s 79A of the Act make clear. The circumstances in which an appeal court will interfere with the exercise of discretion were discussed by Stephen J in Gronow v Gronow (1979) 144 CLR 513. His Honour there said (at 519-20):-
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.
To the extent that the husband complains, as some of his material suggests that he might, that the proceedings on 16 May 2006 were tainted by a denial of natural justice, the Judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 is instructive. His Honour there said (at 184 – 186):-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
…
[38] The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ (the joint reasons). Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
[39] Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
[40] Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation. (footnotes omitted)
If the Court concludes that the husband was denied natural justice on 16 May 2006, the consequences of that denial may require consideration. In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said (at 145):-
That general principle [entitlement to a fair trial] is, however, subject to an important quAllisonfication which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That quAllisonfication is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

The Grounds of Appeal

The one ground of appeal articulated in the husband’s amended Notice of Appeal asserted “that the new orders made on 16 May 2006 be stayed”. The Court endeavoured, without apparent success, to explain to the husband that this was not a ground of appeal. Strictly speaking, the husband thus had no grounds of appeal.
In fairness to the husband, the draft Notice of Appeal upon which he relied when seeking an extension of time to appeal against the orders of 26 May 2006, though not so concisely expressed, appeared to assert that the orders of 16 May 2006, which were clearly made in his absence, had been made without his knowledge in circumstances where he had no opportunity to contest the wife’s application for relief pursuant to s 79A of the Act.
From other parts of the initial Notice of Appeal the husband appeared to assert that the orders could not be varied by a Court exercising original jurisdiction by reason of the inclusion in the January 2005 orders of a notation:-
… pursuant to section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them. (Property Orders of 12 January 2005, page 2, par 4).
It would also appear from the original Notice of Appeal that the husband contended that only the High Court of Australia could change the orders of 12 January 2005.
Further, it appeared from the husband’s original Notice of Appeal that he contended that he had no liability to pay any part of the mortgage instalments or other expenses with respect to D to which reference was made in the January 2005 orders.
It is likely that the husband has prosecuted his appeal under the belief that his amended Notice of Appeal added to, rather than replaced his original Notice of Appeal. Such a belief is understandable and in fairness to the husband, the Court, albeit not necessarily on a ground by ground analysis, has considered what appear to be the various complaints which the husband has sought to agitate.

The Federal Magistrate’s Reasons for Judgment

The learned Federal Magistrate settled his Reasons for Judgment on 13 November 2007. Nothing turns on that, and no criticism of the learned Federal Magistrate could fairly be inferred from the delay of 18 months between the making of orders and the publication of formal Reasons for Judgment. On any view of the evidence, the need for settled Reasons for Judgment first arose in November 2007 when the husband applied for an extension of time in which to appeal against the orders of 26 May 2006.
It should be noted at the outset that the husband did not directly engage with any finding of fact made by the learned Federal Magistrate, or with any inference drawn by him in reliance upon such findings of fact, or with any conclusion reached by him in reliance upon the findings of fact he made, other than to the extent of making clear and repeated assertions that both the order under s 79A, and the order for costs which arose as a consequence of that order, were wrong, and constituted a grave injustice to the husband.

Although his Honour did not expressly refer to it in his Reasons for Judgment, it is clear from the material upon which the husband relied in the appeal that the orders of 12 January 2005 were made at a time when the husband was represented, and that he had been represented for some prior to making the orders. His Honour referred, accurately there is no doubt, to the substance of the Consent Orders of 12 January 2005.
Before considering the wife’s application filed 20 November 2004, and the evidence in support of that application, the learned Federal Magistrate considered the impact on the proceedings of the husband’s failure to appear. His Honour recorded, accurately there is no doubt, that the husband had “failed to appear today, that his solicitors have withdrawn from acting for him, and that they have indicated to the Court that they lacked instructions from him”. (Reasons for Judgment, page 2, par 3).
His Honour recorded, accurately having regard to the transcript of the proceedings before him, that the solicitors previously instructed by the husband who appeared at the commencement of the hearing had also “indicated that he [the husband] indicated to them that he would not be attending the proceedings today and that he opposed the orders that were being sought by the wife”. (Reasons for Judgment, page 2, par 3).
To the extent that the husband has asserted in this Court that he was unaware of the proceedings being before the Court on 16 May 2006, or that his solicitor in any way misrepresented his position on that occasion, nothing to which this Court has been referred establishes that his Honour’s record of what was said by the husband’s former solicitors was other than accurate. His Honour’s record of what occurred also has the very considerable attraction that it accords with logic and commonsense. At least implicit in the husband’s assertion is that, presumably by pure coincidence, his solicitor happened to be in Court on the day the application against him was before the Court. It is also significant that the solicitor communicated to his Honour that the husband opposed the granting of the relief the wife sought. That is, an indication entirely consistent with the husband’s position at all material times.
His Honour accurately recorded that by failing to appear, or to give his solicitors instructions, other than to the extent his Honour recorded, the husband had “failed to press his opposition to the application made by the wife”. (Reasons for Judgment, page 2, par 3). There can be do doubt that his Honour appreciated however that the husband opposed the wife’s application.
The learned Federal Magistrate then considered, having understandably given leave to the husband’s legal representatives to withdraw, that it was appropriate for the Court to proceed in the absence of the husband, for reasons which his Honour recorded, and then turned to consider the substance the wife’s application and the evidence upon which she relied.
His Honour recorded in relation to the original orders for settlement of property that the parties, although not expressly so stated, had agreed in January 2005 “that each party would pay half of the mortgage costs”. (Reasons for Judgment, pages 2 – 3, par 6).
The learned Federal Magistrate found that the house had not been sold, some sixteen months after the orders were made. His Honour did not make a finding that the failure to sell the property was the fault of either party. His Honour found that the highest offer for the property which had been received was $241 000 and that there was “an existing prospective purchaser willing to pay $235,000”. (Reasons for Judgment, page 3, para 6). There has been no challenge to any of these findings of fact.
His Honour concluded, in reliance upon the evidence before him, that a sale for $235 000 “would not be sufficient to discharge the mortgage”. He then referred to the husband’s failure to pay amounts “pursuant to his obligation under the mortgage (emphasis added) and pursuant to the assurance or undertaking given to the wife at the conciliation conference.” (Reasons for Judgment, page 3, par 7). Whilst the husband appears to challenge the latter finding, there is no suggestion that he has paid anything with respect to the property since, at the latest, 12 January 2005, nor that he remained other than liable as a joint borrower with the wife under the mortgage which had been secured over the property prior to 12 January 2005.
The learned Federal Magistrate found that the wife had “maintained her part of the payments” and had “subsequently borrowed money and in other ways brought the mortgage payments up to date” but that, as a result of the husband’s failure to make the payments which he was obliged to make under the mortgage instrument, the “mortgage fell into arrears”. (Reasons for Judgment, page 3, para 7).
The learned Federal Magistrate’s understanding of one of the bases of the wife’s case was summarised in the following terms:-
8.It is the submission of the wife in all of those circumstances that the orders should be set aside based upon s.79A(1)(a) of the Family Law Act, in that the wife was encouraged, and in fact did enter into the terms of settlement based upon the assurance given to her as to the payment of 50 per cent of the mortgage pending the sale of that home. That has not occurred. The husband has not made one such payment. (Reasons for Judgment, page 3, par 8).
The following findings of fact were made by the learned Federal Magistrate and have not been successfully challenged or otherwise shown to have been unsound:-
9.The wife has been pushed further into indebtedness because of his failure to do that and it would appear clear that because of the failure of the husband to comply with the assurance given to the wife that the wife’s financial position has been made significantly worse than it would otherwise have been either had the orders been made in accordance with her original application or if the husband had maintained the 50 per cent mortgage payments. (Reasons for Judgment, page 3, par 9).
In reliance upon the findings of fact which he made and the inferences which he drew from them, the learned Federal Magistrate concluded that there had been a miscarriage of justice, for reasons which he detailed. His Honour thus made the orders which give rise to this appeal. At the conclusion of his deliberations, his Honour recorded:-
12.We are left with the 70/30 apportionment. The wife does not seek to disturb the other orders that were made, simply the orders in relation to the former matrimonial home which, in any case, has minimal if any value but it would transfer the property to her, would enable her in the long term to possibly avoid a further loss. Taking all of that into account, although she has been perhaps entitled to greater then, that property that she has received, the orders that she has sought are just and equitable as to transfer of the home to her and I will therefore grant the application in the following orders. (Reasons for Judgment, page 4, par 12).

The course of the proceedings before the learned Federal Magistrate.

In the interests of fairness to the husband, the Court has closely scrutinised the transcript of the proceedings before the learned Federal Magistrate. It is instructive to refer to some of the matters which emerge from that transcript. These essentially fall into two areas, they being natural justice considerations, and the merits of the wife’s claim pursuant to s 79A of the Act.
The proceedings were called on before the learned Federal Magistrate at 10.48am on 16 May 2006. They concluded at 3.42pm. The transcript of the proceedings occupies some 32 pages from which it is apparent that the proceedings were briefly interrupted in order that his Honour could deal with other matters in the course of a busy list, and briefly interrupted on one other occasion so that his Honour could read the material placed before him in relation to the wife’s s 79A application.
It is instructive to see what Ms S said to the learned Federal Magistrate with respect to the husband’s failure to attend Court, and his instructions in that regard. Ms S informed his Honour that the husband had said that “he couldn’t attend today for whatever personal reasons he has. I don’t know. He simply said he wasn’t going to be attending. He did say, however, that he wanted to oppose the orders. I explained to him that if that was the case he would have to turn up today”. (Transcript page 1, line 20 – 24).
Significantly, Ms S was instructed to convey to his Honour the husband’s opposition to the granting of relief, but was not instructed to seek an adjournment of the proceedings. Ms S advised the husband of the need to appear if he wished to further his opposition to the wife’s claim. The husband did not give Ms S instructions which enabled her to advance any reasonable excuse for the husband’s failure to appear. Also significantly, nothing of a convincing, much less compelling explanation for the husband’s failure to appear on 16 May 2006 emerges anywhere from the extensive material which the husband has filed in this Court.
Counsel for the wife briefly, accurately, and in clear and unequivocal terms, opened the wife’s case before the learned Federal Magistrate. The case, which his Honour ultimately accepted, was that there had been little or no equity in D when the orders were made in January 2005, and that thereafter the husband had paid nothing with respect to the property whilst the wife had paid, at the very least, for her half of the property, which she continued to do, and avoided the mortgage falling into further arrears in circumstances where a sale of the property would have produced insufficient funds to clear the debt to the Bank secured by the mortgage over the property, and legal costs in excess of $8000 which the mortgagee could recover from the proceeds of sale of D pursuant to the terms of the bank’s security instrument.
As a reading of the transcript would make clear, far from the matter proceeding in a manner analogous to an application for default judgment, the learned Federal Magistrate engaged in prolonged and probing debate with Counsel for the wife with respect to the law which governed the wife’s application and the evidence in support of it.
His Honour clearly considered the implications of the failure of the January 2005 orders to expressly oblige the husband to pay anything under the mortgage or otherwise with respect to D subsequent to the making of the orders. His Honour, correctly there can be no doubt, rejected as a basis for relief the default of a party in carrying out an obligation imposed by virtue of an order made under s 79 of the Act. During the course of debate with Counsel, his Honour accepted, as was clearly open to him having regard to the affidavit of Mr H upon which the wife relied, that “it was represented to the wife by the husband’s legal representative that he would pay half of the mortgage” at the time of the orders. (Transcript, page 17, lines 14 – 15).
As a reading of the transcript also makes clear, the learned Federal Magistrate was diligent in requiring Counsel for the wife to refer him to evidence of the matters upon which she relied in support of the wife’s claim rather than simply making submissions. His Honour also made clear, correctly in this Court’s view, that he was not satisfied that the wife was entitled to relief pursuant to s 79A(1)(c) of the Act and, that the focus thus became s 79A(1)(a).
Counsel for the wife submitted that the miscarriage of justice which would enliven s 79A(1)(a) was the husband’s failure to meet his obligations under the mortgage, and inferentially pursuant to the collateral agreement at the time of the orders of January 2005, any equity in D would “disappear completely” notwithstanding that the wife had fully discharged her obligations pursuant to the January 2005 consent orders. (Transcript, page 20, line 40).
That issue was thoroughly debated by the learned Federal Magistrate and Counsel for the wife, as was the impact of the wife having borrowed $5000 from her family in order to attempt to avoid the mortgagee sale of D, as was her vacating the premises, finding tenants for them and providing $356 per month to “top up the mortgage”, that sum being the difference between the monies required under the mortgage and the rent paid by the tenants. (Transcript, page 23, line 4).
His Honour then closely considered the evidence before him in relation to the outstanding mortgage balance (approximately $230 290.25), the offer to purchase of $235 000, agent’s selling costs of $6500 – $7000 and the $8000 of legal fees which the mortgagee’s solicitors would take from the proceeds of sale. Counsel submitted, accurately, that the parties were “probably [$15 000] to $20,000 in the negative” without further reference to any adjustment as between the parties by reason of the monies which the wife had paid subsequent to the orders in her endeavours to avoid a mortgagee sale of the property. (Transcript, page 28, line 22).
The learned Federal Magistrate, properly in this Court’s view, then briefly considered the evidence before him in relation to the contributions of the parties prior to the making of the orders of January 2005 albeit ultimately, as his Honour acknowledged in his Reasons for Judgment, his conclusions as to the likely contribution and s 75(2) based entitlements of the parties was not decisive or even influential in his final decision, the effect of which was to place the wife in no better position than she would have occupied had the husband made the payments which he found, on various bases, to have been his obligation to have paid.

The husband’s complaints

Doing the best the Court can to distil what the husband appears to complain about, the following topics appear to have excited the husband’s industry.

Denial of Natural Justice

Having regard to the matters referred to earlier, the Court is not satisfied that the husband was denied natural justice on 16 May 2006. On the material before the Court, and particularly having regard to the matters submitted by the solicitor then appearing for the husband, for reasons best known to him, the husband chose not to attend Court on 16 May 2006. To the extent that the husband was denied natural justice, that was a result of the choice he consciously made.
Importantly, nothing to which the husband has referred this Court establishes that the result would, or could have been any different had the husband appeared on 16 May 2006. The Court has earlier analysed the basis of the learned Federal Magistrate’s decision. Quite simply, in the circumstances as found by the learned Federal Magistrate, and not shown to have been erroneous in any material respect, to have failed to vary the 12 January 2005 orders, thereby leaving the husband potentially entitled to 50 per cent of any equity which there might be in D, notwithstanding his complete failure to make any payments with respect to the property since 12 January 2005, and the wife’s efforts to avoid the sale of the property, and to preserve the prospect of equity existing or arising, would have been an affront to justice and equity.
The Court thus concludes that the husband was not denied natural justice, but, if the Court is wrong in so concluding, that denial of natural justice would not, in the circumstances of this case provide a basis for interfering with the learned Federal Magistrate’s exercise of discretion.

An appeal to the High Court

The husband’s apparent assertion that, only by an appeal to the High Court could the orders of January 2005 be “changed” is palpably erroneous. (Husband’s Summary of Argument, page 2, par 17). Without suggesting that an application would have any prospect of success on the material the husband has presented to this Court, an application to a judge of this Court for an extension of time to appeal against the orders of 12 January 2005 is the only avenue now potentially, although almost certainly not available to the husband.
To the extent that the husband asserts that the s 81 order precluded any further proceedings between the parties, that assertion is incorrect. (Husband’s Summary of Argument, page 2, par 18; Initial Notice of Appeal, page 3, par 3). Section 81 has been consistently held to confer no substantive power upon the Court. In the absence of an unrevoked approval of a s 87 agreement (which was not the case), provided that the wife’s application of November 2004 constituted a matrimonial cause within s 4 of the Act, the Court had jurisdiction to entertain it. The application before the learned Federal Magistrate was undoubtedly a matrimonial cause and thus within jurisdiction. The relief which his Honour granted was within power, whether or not the husband can demonstrate in this Court that his Honour’s exercise of that power was erroneous.

Orders regarding Mortgage Repayments

The husband appeared to rely upon an order apparently made in late 2004 in support of his contention that he was not obliged to contribute to the D mortgage. (Husband’s Summary of Argument, page 1, pars 14 & 15). The husband seemed to regard the decision of a Federal Magistrate on 10 December 2004 in interim proceedings declining to order that the husband make any payments under the mortgage over D as in some way absolving the husband from making payments under the mortgage over the property at any time thereafter. Apart from the obvious illogicality of such a proposition, the orders of 12 January 2005, which were final orders for settlement of property, expressly obliged the wife to pay one half of the mortgage over the property. As the learned Federal Magistrate was well aware, although the orders did not expressly oblige the husband to pay the other half of the mortgage over the property, or any other outgoings, the husband remained bound by the terms of the mortgage which he and the wife entered into with the Commonwealth Bank to pay the other half. One could ask rhetorically in the circumstances, if the husband wasn’t obliged to pay the other half of the mortgage who was?
To the extent that the husband relies upon the December 2004 orders as in some way absolving him from making mortgage payments after January 2005, or precluding the learned Federal Magistrate from relying upon the husband’s failure to make any such payments, the Court does not accept that such assertions have substance.
Similar observations apply to the orders of January 2005 themselves. It is reasonably evident from correspondence upon which the husband himself relied by way of annexure to his further evidence affidavit in this appeal, that the husband at all times refused to agree to pay half the mortgage payments with respect to D. That however did not change his legal obligation as a tenant in common in equal shares with the wife, as the Court believes he became as a consequence of the orders of 12 January 2005. Nor did the husband’s liability pursuant to the mortgage instrument between the parties and the Bank charge.
Absent the husband clearly being absolved by a Court order from meeting his half share of the property, which there is no doubt that he was not on 12 January 2005, or at any time thereafter, the learned Federal Magistrate was able to rely, in determining whether a miscarriage of justice had arisen by reason of “any other circumstance”, upon the absence of equity in D at that time, and who had, and who had not, made payments with respect to the property after 12 January 2005. The husband’s assertions in reliance upon the terms of the orders of 12 January 2005 that his failure to pay could not be held against him is ill-founded.

Sale of the Property

The husband made two complaints with respect to the sale of the property, they being that the property could be worth much more than the wife asserted, and that the wife had defeated a sale of the property by refusing to co-operate with the sale. The only evidence before the learned Federal Magistrate, which was able to be accepted, was that there had been an offer to purchase the property for $235 000.

In his further evidence affidavit, the husband relied upon market appraisals dated March and July 2005 respectively, asserting that the property to be worth $260 000 – $270 000 and “around the $260 000 mark”. (Affidavit filed 31 January 2008, annexure H1 & H2). Those documents, it can be inferred, were in the possession of the husband well prior to the proceedings in March 2006. Why he did not attend on that occasion and seek to put those forward has not been adequately explained.
To the extent that the husband asserts that the wife refused to co-operate on the sale of the property, that too would have been known to the husband prior to May 2006 and could have been raised by him at that time. The husband has failed to adequately explain his failure to attend and raise those claims on 16 May 2006. No material upon which the husband has relied in the appeal establishes the possibility, much less the probability by admissible evidence, that the wife has frustrated the sale of the property. Indeed, the circumstantial evidence suggests the opposite.

Contributions

So far as the husband’s assertions with respect to contributions are concerned, those were largely subsumed by the orders of 12 January 2005. (Husband’s Summary of Argument, page 3). To the extent that the husband asserts, as clearly he does, that he made far greater contributions to the property than did the wife, those were all matters of which the husband would have been aware and to which he would have had regard when consenting to the orders of 12 January 2005. As is not in doubt, the husband was then represented and had been represented for at least the latter parts of the previous year, 2004.
Perhaps more significantly, quite apart from the fact that the husband failed to seek to place any of this material in support of his claims with respect to contributions before the learned Federal Magistrate in May 2006, his Honour’s decision did not, as he clearly explained, involve elevating the wife’s entitlement in reliance upon her pre-January 2005 contributions.
It is clear from the learned Federal Magistrate’s Reasons for Judgment and even clearer from the transcript of the hearing of the proceedings, that his Honour’s decision was based upon a number of basic and essentially irrefutable facts. The parties had little or no equity in D when the orders were made in January 2005. Thereafter, in the 16 months leading up to the hearing before his Honour, the husband paid not a cent with respect to the mortgage over the property or any expense associated with it. During that time, the wife paid not only the half share of the outgoings which she was obliged to meet under the January 2005 orders but, as his Honour found, extra monies, which she obtained from family, in her endeavours to forestall the sale of the property and had in fact, albeit to some extent with the assistance of rental from the property, remedied the arrears under the mortgage, save it seems for the bank’s solicitor’s costs of about $8000.
On the evidence before the learned Federal Magistrate, the parties had probably no equity in D, and possibly even a residual liability under the mortgage to the Bank in the event of the property being sold for what appeared on the evidence before his Honour to be the best price then realistically available. What his Honour in effect did, was to give the wife the chance to retain the property. Importantly, for present purposes, that chance did not have a positive monetary value. Also important was the indemnity order in favour of the husband, the potential value of which was real given the likelihood of a shortfall, and the reality that the personal covenants between the parties as borrowers and the Bank as lender under the mortgage instrument would not necessarily be extinguished on completion on the sale of the property.
The husband having paid nothing during the relevant period, the wife having paid as his Honour found she had, and as is not in doubt was the case, the learned Federal Magistrate concluded that there would be a miscarriage of justice in those circumstances for the existing orders to continue. Clearly implicit in so concluding was the determination that, if there was any equity in the property, either now or in the future, it would in the circumstances be an affront to justice for the husband to be able to share in it. The only reason the prospect of any equity arose was because of the actions of the wife, despite the inaction of the husband.
In the circumstances of this case, the contributions asserted by the husband assumed no significance before his Honour, and assume no significance in the appeal.
No complaint, howsoever agitated by the husband having substance, his appeal against the substantive orders of 16 May 2006 will be dismissed. It remains to consider the appeal against the order for costs which was also made on that day.

Costs

The learned Federal Magistrate does not appear to have given reasons for his decision to order the husband to pay the costs of the wife’s s 79A application. The reasons for making such order can be inferred from both his Honour’s Reasons for Judgment and the transcript of the hearing of the proceedings.
The wife was wholly successful in the proceedings and the husband was wholly unsuccessful. The proceedings arose because of the husband’s failure to make the payments which were at least envisaged by the January 2005 Court orders and had earlier been imposed upon him by the mortgage to which he was a party. It can fairly be said that the husband’s conduct gave rise to the necessity for the wife to bring a s 79A application or suffer an injustice.
In this Court’s view the circumstances of the proceedings before the learned Federal Magistrate thoroughly justified the making of a costs order against the husband.

Costs of the Appeal

The husband has been wholly unsuccessful in this Court. Whilst he was entitled to represent himself before this Court, the husband’s failure to understand the nature of the proceedings in this Court, and his production of and reliance upon extensive and essentially irrelevant material has almost certainly increased the wife’s costs of successfully resisting his appeal.
The outcome of the proceedings and the husband’s conduct of them both incline the Court to form the requisite opinion and order the husband pay to the wife her costs of the appeal.
Little is known of the husband’s financial circumstances save that he earns $19 per hour, working about ten hours per week at K and receives Government assistance of, the husband thought, about $150 per fortnight. The husband was guarded in his finances when the Court asked about them.
Subsequent to the Court reserving its judgment in the appeal the husband sent a facsimile transmission to the Court clarifying that his Centrelink income per fortnight is approximately $150 or “usually about $70 to $100 per week”. It was further advised that the husband had “not claimed any Centrelink payments at all for at least two and a half [years]” and such payments were only claimed after the husband’s “savings in [his] bank [account] had almost finished in about mid 2007”. The facsimile transmission concluded by advising that “for quite some time” the husband was “living with [his] current wifes [sic] parents”. Nothing further advised by the husband materially advances his position in relation to the costs of the appeal to this Court.
Without suggesting that the husband is in other than very modest circumstances, he cannot expect to avoid the consequences of his having instituted and pursued an appeal which as wholly unsuccessful and avoid the costs of that exercise in reliance upon his financial circumstances.
The Court will accordingly order that the husband pay the wife’s costs of and incidental to the appeal on a party and party basis.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 17 March 2008