Reyes & Reyes

[2024] FedCFamC1A 161

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Reyes & Reyes [2024] FedCFamC1A 161

Appeal from:

Ryes & Reyes (No 2) [2024] FedCFamC2F 597

Appeal number:

NAA 140 of 2024

File number:

BRC 2946 of 2022

Judgment of:

AUSTIN J

Date of judgment:

18 September 2024

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders – Where the husband complains of not being legally represented at trial after his lawyers were allowed to withdraw at the start of the trial – Where the husband did not apply for an adjournment of the trial – Where the suggestion the primary judge should have considered appointing a litigation guardian for the husband is rejected – Where the solicitors for the husband currently accept and act on his instructions without a litigation guardian –  Where the husband argues the primary judge should have joined his two witnesses as parties to the proceedings – Where no application for joinder was made by the husband – Where the husband’s contention of erroneous factual findings by the primary judge is rejected – Where the grounds complaining the primary judge made mistaken findings which influenced the 10 per cent adjustment in the wife’s favour are unmeritorious – Where the grounds asserting an inadequacy of reasons are rejected – Appeal dismissed – No application for costs.  

Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 75, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.15

Australian Solicitors’ Conduct Rules (Qld) rr 3, 4, 21

Barristers Conduct Rules (Qld) rr 25, 39, 41, 43, 57, 59, 60, 63, 64, 66  

Cases cited:

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Number of paragraphs:

65

Date of hearing:

16 September 2024

Place:

Newcastle (via Microsoft Teams)

Counsel for the Appellant:

Ms Gajic-Pavlica

Solicitor for the Appellant:

Sambanis Family Law

Counsel for the Respondent:

Mr Laing

Solicitor for the Respondent:

Tempest Legal

ORDERS

NAA 140 of 2024
BRC 2946 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR REYES

Appellant

AND:

MS REYES

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.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 the pseudonym Reyes & Reyes has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of the husband’s appeal from property settlement orders made between the parties on 14 May 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).

   Background

2. The parties married in 2005, but disputed whether they cohabited before their marriage (at [10]), which seems irrelevant when their only child was born in 2002 (at [13]).

3. The parties moved to Australia from the United Kingdom in 2015 (at [11]–[12]).

4. The parties also debated the date of their final separation (at [14]), though the primary judge found that occurred in May 2021 (at [15]–[18]). Proceedings were commenced in March 2022.

5. By reason of an order made in December 2022 under s 102NA of the Act binding both parties, the husband could not personally cross-examine the wife and needed lawyers for that purpose. The State legal aid agency allocated him lawyers in September 2023, though they withdrew their representation of him a month later in October 2023 (at [21]). New lawyers were appointed, but they were removed from the Court record in November 2023 when the husband filed a Notice of Address for Service indicating he was representing himself (at [21]). Then a third set of lawyers began acting for the husband later in November 2023, though they were granted leave to withdraw their representation of him on the morning the trial started (at [26]).

6. The trial occurred on 23 November 2023 and, because the husband was not legally represented, he could not cross-examine the wife (at [27]). The trial concluded within the day, though the parties thereafter filed written submissions (at [29]–[30]).

7. Judgment was pronounced on 14 May 2024. The primary judge found the state of the evidence adduced by the parties to be less than helpful, but nonetheless found the net value of their property and superannuation interests to be $840,674 (at [93]) and their contribution-based entitlements to be equal (at [135]). Her Honour found an adjustment of 10 per cent in the wife’s favour was warranted by considerations under s 75(2) of the Act and so the property was ultimately divided in shares of 60/40 favouring the wife (at [152]–[154]).

8. To effect the 60/40 division of the parties’ property and superannuation interests, in summary, the orders provided for: the sale of an Australian real property and the division of its net proceeds (Orders 1–11); the husband’s retention of a United Kingdom real property, subject to the wife retaining accrued rental payments and her being discharged from any liability under the mortgage encumbering it (Orders 12–15 and 17–20); the husband’s payment of outstanding costs orders (Order 16); and the parties’ retention of personal property and superannuation entitlements (Orders 21–23). Ancillary procedural orders were also made (Orders 24–28), but they are not germane to the appeal.

   The appeal

9. The husband appealed from all orders on 11 June 2024.

10. There are 17 grounds of appeal, but some overlap and so they will be addressed in categories according to the complaints they raise.

11. The appellant was self-represented when he filed his appeal, but counsel prepared his Summary of Argument and other counsel represented him at the appeal hearing. Despite the emergence of legal representation, somewhat surprisingly, the grounds of appeal were not amended.

    Grounds 1, 2, 3, 4, 5 and 6

12. These grounds all complain about the trial continuing despite the husband not being legally represented, though none asserts any identifiable appealable error of law, fact or discretion.

13. The grounds contend the primary judge:

    (a)ought not to have allowed the husband’s lawyers to withdraw at the start of the trial (Grounds 1, 2 and 3);

    (b)ought to have “stood the proceedings down” to enable the husband to consult the duty lawyer before allowing his lawyers to withdraw (Ground 4); and

    (c)ought to have then adjourned the trial when the husband was not legally represented (Grounds 5 and 6).

14. It is presently unknown why the husband’s third set of lawyers applied for leave to withdraw their representation of him at the start of the trial. At least inferentially, it was because they foresaw a conflict between the ethical duties they owed to both the husband and to the Court and properly understood the latter duty prevailed (rr 25, 39, 41, 43, 57, 59, 60, 63, 64 and 66 of the Barristers Conduct Rules (Qld); rr 3, 4 and 21 of the Australian Solicitors’ Conduct Rules (Qld)). The husband must have known the reason for the lawyers’ withdrawal because they informed him before the hearing by way of email of the circumstances which either required or justified it. This exchange occurred in Court at the start of the trial:

    HER HONOUR: You’re asking me to release you [addressing counsel for the husband] and [husband’s solicitor named]?

    [Counsel for the husband]: Yes.

    HER HONOUR: Okay. All right. You’ve explained the reason why and that you intended to ask me for permission to do that or leave to do that?

    [Counsel for the husband]: My instructor sent an email to the client. We attempted to talk to him yesterday - - -

    HER HONOUR: Right.

    [Counsel for the husband]: - - - but to no avail. But an email was sent.

    HER HONOUR: Right. Okay. All right then. I will give you leave. Thank you. Thank you, [name of husband’s solicitor]. Okay. [Addressing husband], grab a seat where [husband’s solicitor named] was. …

    (Transcript 23 November 2023, p. 2 lines 13–29)

15. The husband neither remonstrated with those submissions at the time, nor sought to adduce as further evidence in the appeal the correspondence he received from his lawyers outlining the reason/s given by them for their withdrawal, nor sought to prove he did not receive the email. Without such evidence he cannot displace the reasonable inference that the lawyers gave him notice of their intended withdrawal for proper reason/s, making it impossible for him to now maintain the primary judge erred by allowing his lawyers to withdraw.  

16. After the lawyers were excused from further participation, without any apparent trepidation, the husband took control of his case and the trial began.

17. The primary judge confirmed the husband could not cross-examine the wife in person, saying:

    HER HONOUR: Okay. [Addressing husband], you’re not able to cross-examine [the wife] but you can cross-examine her witness.

    (Transcript 23 November 2023, p. 4 lines 37–38)

18. The husband confirmed he did not want to cross-examine the wife, saying:

    [The husband]: …I’m just – I think you will find out yourself, your Honour, there’s probably little I can offer other than what I’ve already offered. So I’m happy for you to take the processes, your Honour. I understand that – I don’t even want to cross-reference her, your Honour. I don’t think it’s helpful for anything. I think we can just try and work through this today - - -

    HER HONOUR: Okay. All right. So you - - -

    [The husband]: - - - and get this done, your Honour, if my learned friend ..... that notion is what’s at fault. So I’m happy for that, your Honour.

    (Transcript 23 November 2023, p. 5 lines 20–29)

19. Having told the primary judge he just wanted to “get this done” that day, the husband made no application for an adjournment of the trial. Nor did he make any application to delay the start of the trial whilst he consulted the duty solicitor.

20. The husband admitted this in his final written submissions to the primary judge:

    5.I decided to allow the court to proceed on the basis that I was and remain to be a self-represented litigant in person. It was my belief that due to the conventions of the court and the duties imposed by our honourable fine members of the Judiciary that I was in good and firm hands…

    6.For the smooth running and administrative tasking of the courts, I did not object to the trial continuing and despite not being able to cross examine the [wife], the nature and content of the proceedings were self-explanatory. The counsel who questioned me on the stand was able to tease out the most contentious issues.

21. Against that uncontroversial background, it is impossible to see how the primary judge fell into any form of appealable error by allowing the trial to proceed with the husband representing himself. The wife did not want the trial adjourned either. It is quite extraordinary to now contend the primary judge should have adjourned the trial when neither party sought it.

22. The husband sought to call to his aid Re F: Litigants in Person Guidelines (2001) FLC 93-072, in which the Full Court articulated principles to guide the conduct of litigation involving self-represented litigants (at [215], [218], [232]–[241] and [246]–[253]) but that authority is of no present assistance. The Full Court expressly observed how any asserted shortcomings in the implementation of the guidelines ought not be regarded as grounds for appeal because, by definition, guidelines are not immutable (at [209], [229] and [230]). But it is not even explained how the primary judge breached the guidelines, so the premise upon which it is asserted her Honour erred is even more opaque.

23. The husband’s counsel audaciously submitted this in the appeal:

    13.Remarkably, at no point during the trial did the trial judge consider that [the husband], who was self-represented, may lack the capacity to undertake his own litigation, and may require a litigation guardian. Even when the Court hears evidence that [the parties’ adult son] and [a third party] perform a “joint decision-making” process, and they “organise” the [husband’s] life, there is no consideration of impaired capacity to conduct litigation.

    …

    17.There was a real and live issue as to whether the [husband] had capacity to give evidence and conduct his own litigation. In those circumstances, the trial judge ought to have explored those issues with counsel for the [husband] before excusing her and her instructor.

    18.Based on the contents of the First Observation alone (paragraphs 3 to 7 above), and without even turning to the contents of the Second Observation, it is clear that the Court needed to satisfy itself that a self-represented party before it had capacity to conduct litigation. The trial judge ought not have excused [the husband’s] counsel, but rather adjourn the proceeding and required the legal representatives for [the husband] to obtain evidence that [the husband] had the necessary capacity to represent himself in court.

24. The submissions are rejected. There was no “real and live issue” about the husband’s capacity to give evidence and to conduct his own litigation. The husband prepared his own very lengthy affidavit in readiness for the trial and, while he deposed to suffering from various medical conditions, he did not adduce any admissible medical evidence of his diagnoses, symptoms, treatment or incapacity. In the appeal, his counsel was impelled to concede that was so. At the trial, the husband neither expressed nor implied that he then lacked cognitive capacity. Nor is any lack of cognitive capacity evident from the husband’s exchanges with the primary judge, either before or during the trial. His oral evidence was generally responsive to the questions posed to him and his submissions were coherent.  

25. The husband said in his trial affidavit that, in the first three months following separation, his adult son took full control of all his assets. They “implemented an assisted decision-making process” and, while he was “finally feeling like [his] old self” again, he envisaged the joint decision-making process would remain in place. During cross-examination, the husband said his adult son and another person had been “appointed as [his] decision-making people”, but there was no evidence of any statutory guardianship appointment for the husband – either then or now. The husband was and remains free to organise his own affairs. He was sufficiently competent to bring this appeal without either a litigation guardian or legal assistance.

26. The submission now made in the appeal of how the evidence compelled the primary judge to stop the trial and consider the appointment of a litigation guardian for the husband is rejected. Neither r 3.12(1) nor r 3.15(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) required her Honour to do so. If the husband’s current lawyers earnestly maintain the submission of the husband’s former need for a litigation guardian then, in the absence of any attempt to explain his alleged cognitive recovery in the meantime, it may be wondered how they can presently legitimately accept and act on the husband’s instructions in the appeal without a litigation guardian in place. They did not apply for the appointment of one. By implication, they must accept the husband is competent to provide them with instructions. These grounds all fail.

    Grounds 7, 8 and 9

27. These grounds all relate to the treatment of two witnesses upon whose evidence the husband relied. It is asserted the primary judge ought to have joined, as parties to the proceedings, the parties’ adult son (Ground 7) and the husband’s step-father (Grounds 8 and 9). In addition, it is alleged that the primary judge ought to have obliged the wife to cross-examine the husband’s step-father (Ground 9). The various contentions are misconceived and are rejected.

28. In advance of the trial, the husband filed affidavits sworn or affirmed by the parties’ adult son and his step-father, upon both of whom he relied as witnesses.

29. The step-father’s affidavit comprised seven short paragraphs and, relevantly, said only this:

    4.        I will be available to attend court in person and provide evidence in chief.

30. The step-father was present at Court at the start of the trial, but the wife elected not to cross-examine him. She was not obliged to cross-examine him and presumably chose not to do so because she considered he gave no useful evidence in his affidavit. The primary judge had no power to compel the wife to cross-examine the husband’s witness. His contrary misguided assertion is rejected.

31. The primary judge could have asked questions of the witness had her Honour wished, but need not have done so. Presumably, her Honour was conscious of the need to preserve both the actuality and appearance of impartiality by detaching from the adversarial contest and deciding the case on the evidence each party elected to adduce (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]–[20]). Ground 9 therefore fails.

32. Nor was the primary judge obliged to ensure the husband’s step-father was joined to the proceeding as a party. The wife did not seek any remedial relief against him, so there was no need for her to join him to the proceeding. She only sought an order compelling the husband to satisfy or discharge the step-father’s registered charge over the UK property.

33. The prospect of the husband joining his step-father to the proceeding was mooted during the trial, but he elected not to make any such application. The husband had this exchange with the primary judge over the issue:

    HER HONOUR: Is [the step-father] prepared to join in these proceedings?

    [The husband]: [The step-father] is currently paying a mortgage on [the UK property] - - -

    HER HONOUR: Is he prepared to join - - -

    [The husband]: Yes, your Honour.

    HER HONOUR: - - - in these proceedings?

    [The husband]: Yes, your Honour. Yes, your Honour.

    HER HONOUR: Will he – but, well, you need to get some instructions for him, for want of a better – if he’s prepared to join in the proceedings - - -

    [The husband]: He’s prepared to act as a witness, but that’s about it.

    HER HONOUR: No, no. He is prepared to act as a witness. I understand that. I’m asking whether or not, and this is a matter he might need - - -

    [The husband]: Not without legal advice, I wouldn’t imagine he would, your Honour.

    (Emphasis added)

    (Transcript 23 November 2023, p.11 line 47 to p.12 line 22)

34. The husband did not then pursue the joinder application. Relying upon his step-father as only a witness, the husband alleged the step-father enjoyed some form of proprietary interest in the UK property as a result of a “charge” securing money supposedly advanced to the husband by loan for use in respect of the property. The UK property was registered in the joint names of only the parties. However, the alleged loan by the step-father to the husband was not taken into account as a debt, payable either by the husband or the parties jointly, because it was not proven on the available evidence (at [62]–[65], [107]–[111] and [128]–[132]).

35. The husband again audaciously but incorrectly made this written submission in the appeal:

    35.      As to ground 8, in circumstances where:

    …

    (e)…the trial judge ought not to have made any order (or finding) in respect of the UK property without having first joined [the step-father] as a party to the proceeding, and (given that the [husband] was self-represented), and consistent with Re F, asked [the step-father] some questions about the nature of his interest in the UK property so that there was a proper evidentiary foundation for the making of findings in respect of the UK property.

    (Footnotes omitted)

1. The submission is instructive in one material respect which the husband did not anticipate. It implies his admission that the primary judge was correct to find, without the step-father having given any evidence on the point, that there was no proper evidentiary foundation to enable a finding he enjoyed some form of proprietary interest in the UK property.

2. Aside from the implied admission, the submission is rejected. Neither party ultimately sought to join the step-father to the proceeding. Nor did the step-father independently seek leave to intervene in the proceeding to assert his alleged equitable interest in the UK property. The primary judge had no right to insist upon, and bore no obligation to ensure, the step-father’s joinder to the proceeding as a party, in which event Ground 8 also fails.

3. The wife’s counsel did cross-examine the parties’ adult son, but neither party applied to join him as a party to the proceeding. The husband made, but then abandoned, an application to join only his step-father. Nor did the adult son make any independent application to intervene in the proceeding, which is understandable because he did not allege having any proprietary interest in the parties’ assets and they did not allege having any proprietary interest in his assets. Therefore, Ground 7 also fails.

4. The husband incorrectly submitted this in the appeal:

   34.The [husband] made it clear that his son, [named], had equity in the [Australian property] – the [husband] ought to have been able to press his joinder application…

5. The submission is rejected for two reasons.

6. First, the husband did not assert, either in evidence or by submission, the adult son had “equity” in the Australian property. Nor did the adult son assert it in his affidavit.

7. Secondly, the husband did not make any application to join the adult son as a party to the proceeding, which is evident from both the transcript and this contradictory submission made by the husband in his Summary of Argument:

   32.…the trial judge ought to have told the [husband] that he could make his application to join his son…

8. The husband cannot simultaneously criticise the primary judge for, on the one hand, failing to advise him he could apply to join the adult son as a party and, on the other, blocking his application to do so.

   Ground 10

9. This ground complains of the primary judge’s failure to find certain facts, which is really a converse complaint about the findings actually made by the primary judge.

10. It is alleged the primary judge:

    (a)should have found the husband was “no longer capable of employment”;

    (b)should have found the husband had not “hidden assets”;

    (c)should not have found the husband was “operating a business”;

    (d)should have found the parties’ son had made “significant financial and non-financial contributions” to both the Australian and UK properties; and

    (e)should have found the husband’s step-father had a proprietary interest in the UK property as security for GBP $40,000.

11. At the outset, it is worthwhile pointing out how the complaint of the failure to make certain factual findings is not an appealable error. It is not an error of legal principle, unless the missing factual finding was an essential jurisdictional fact or an integral element of the cause of action. Nor is it a factual error to either deliberately abstain from making, or inadvertently fail to make, a particular finding. Nor is it a discretionary error. The ground is therefore incompetent but will be addressed to explain its misconception in any event.

12. As to the husband’s capacity for gainful employment, the primary judge acknowledged the husband’s evidence about his ill health (at [139]) and found this:

    140.The husband argued that his earning capacity is substantially lower compared to that of the wife’s. It is accepted by the wife that he has been diagnosed with Post Traumatic Stress Disorder however, any evidence as to how that may impact his ability to earn an income is lacking. The husband goes on to submit that he is in receipt of a disability pension in the amount of $1,056 per fortnight however, again there is no evidence to support this.

    …

    144.I understand that the husband completed a ... degree in the UK however, such qualification has not provided any benefit throughout the parties’ relationship or post-separation. The evidence does not suggest to me that he has ever utilised this qualification despite comments made by him at the final hearing.

    145.It is the husband’s case that once this matter is finalised and his health improves, he will be in a position to commence paid employment again. He states that he still operates his [business] and is involved with [a not-for- profit] which I understand mainly consists of volunteer type work. It is unclear why the husband can engage in these organisations, which on his case involves quite a bit of travel, however he is unable to obtain and maintain paid employment.

    146.I am ultimately placed in a position where I am unable to make a finding about the true nature of the husband’s income in circumstances where there has been no disclosure provided nor has there been a consistent narrative put forward by him about his circumstances.

    147.In terms of the husband’s physical health, I am again placed in a similar position where I have no evidence to support his case that he is unable to earn an income to support himself. I am not satisfied that any reduced earning capacity the husband may be faced with is a result of any medical or mental health condition due to the complete lack of any medical evidence to support such an assertion. I consider any disparity in earning capacities may be a direct result of the husband’s own conduct which has resulted in him being banned from provision of support and/or services to NDIS funded participants. This is supported by a document tendered by counsel for the wife now marked as exhibit 5.

    (Emphasis added)

13. Those findings are entirely consistent with the husband’s evidence and submissions because he did not contend he was incapable of any employment.

14. In evidence, the husband said he is waiting on approval of income insurance payments and was currently receiving “jobseeker allowance”, which must mean he is capable of and expected by Centrelink to search for paid employment. He said he does not believe he will ever be able to earn $280,000 per annum, as he did in the past, but hopes to enter into the workforce in the future.

15. Then, in submissions, the husband contended:

    72.My future earning potential is substantively lower now as a result of the actions of the [wife] and my medical presentation. This requires to be calculated within the final orders that the court makes.

16. As to the asserted finding that the husband had “hidden assets”, there was no such finding. The primary judge found only that the husband had persistently failed to comply with his obligation to make full and frank financial disclosure (at [38], [44], [46], [135], [148] and [151]).

17. As to the asserted finding that the husband was operating a business, there was no such finding. No business interest was taken into account by the primary judge as an asset of the parties (at [93]). The primary judge took into account under s 75(2) of the Act how the husband may in future acquire some interest in the business conducted by the parties’ adult son, but that was entirely in accordance with the evidence given by the husband (at [151]).

18. Regarding the asserted contributions made by the parties’ son to the Australian and UK properties, the son alleged “contribut[ing] significantly” to both properties over “the last eight years” but, given he was aged only 21 years at the time of trial, it is highly unlikely he made contributions to the parties’ real properties from the time he was aged 13 years. The primary judge was understandably cautious about accepting the adult son’s evidence because he was “strongly aligned with the husband” (at [122]). Even accepting the adult son’s evidence about his financial and non-financial contributions at its highest, he did not allege having any proprietary interest in either property. Nor did he allege either party was indebted to him by way of loan. Nor did he allege he could sue either party on some form of cause of action for a remedy. The only evidence given by the husband in his affidavit on the topic was to the effect that the adult son had “worked hard to assist [him] complete the scheduled works” on the Australian property.

19. Regarding the asserted proprietary interest held by the husband’s step-father in the UK property, the primary judge did not accept there was any debt due to by the parties (or either of them) to the step-father. The primary judge acknowledged the husband’s assertion that the step-father had loaned him money to purchase the UK property and put money towards mortgage repayments (at [62] and [108]), but noted such evidence was contradicted by other evidence given by the husband of raising the purchase money by other means (at [62], [108]), which contrary evidence accorded with the wife’s version of events (at [107], [109] and [110]). The UK property was encumbered by mortgage (at [61]), likely securing the original bank loan used to buy the property. Significantly, the primary judge did not find the step-father had not given the husband money but, even allowing for the step-father having given money to the husband which he then put towards the UK property, such financial accommodation did not necessarily invest him with an equitable proprietary interest in the UK property.

    Grounds 11, 12, 13 and 14

20. These grounds all complain of mistaken findings in so far as they influenced the 10 per cent adjustment in the wife’s favour pursuant to considerations mandated by s 75(2) of the Act, but none is meritorious.

21. Given the parties’ assets and superannuation interests were found to have a net value of $840,674 (at [93]), the 10 per cent adjustment amounted to $84,067 and the wife’s receipt of that extra amount would commensurately diminish the husband’s share of the property.

22. These grounds allege it was not open to find the husband’s non-disclosure warranted any adjustment (Grounds 11 and 13), it was not open to make any adjustment given the “nature and extent” of the evidence given in cross-examination by the husband and the parties’ adult son (Grounds 12 and 14).

23. As to Grounds 11 and 13, the adjustment in the wife’s favour was not assessed on account of only the finding of the husband’s failure to give proper financial disclosure, as it was but one factor. The husband made no submission to explain why the finding of his financial non-disclosure was incorrect. He only submitted it was incorrect, which is unhelpful.

24. As to Grounds 12 and 14, the “nature and extent” of the evidence elicited in cross-examination of both the husband and the parties’ adult son remains unidentified by either the grounds, the Summary of Argument, or the oral argument.

    Grounds 15, 16 and 17

25. The grounds assert an inadequacy of reasons, though in different respects.

26. Ground 15 alleges the reasons for judgment do not identify the evidence upon which the primary judge relied to make “findings of fact”. The specific findings which are susceptible to challenge are not identified, either by the ground, the Summary of Argument, or the oral submissions. The complaint is rejected.

27. Grounds 16 and 17 allege the inadequacy of reasons given for the 10 per cent adjustment in the wife’s favour for factors prescribed by s 75(2) of the Act. The grounds are rejected as the reasons are plainly adequate.

28. The primary judge’s consideration of the factors prescribed by s 75(2) of the Act included: the wife’s receipt of income protection due to anxiety and depression (at [137]); her potential income-earning capacity of $110,000 per annum (at [138]); the husband’s medical conditions (at [139]); the husband’s admission of some future income-earning capacity (at [145]); the husband’s failure to properly disclose his true financial position (at [148]–[151]); the prospect the husband may have some future interest in the business conducted by the parties’ adult son (at [151]); and the husband’s deliberate or reckless attempt to suppress the value of the Australian property (at [133] and [152]). Upon analysis of those features of the evidence, the primary judge assessed a 10 per cent adjustment in the wife’s favour (at [152]–[153]). When pressed in the appeal, the husband’s counsel could not articulate what extra reasons the primary judge could have given to explicate the adjustment finding.

    Disposition

29. The appeal is dismissed.

30. The wife did not seek any costs order if the appeal was dismissed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       18 September 2024