Scaletta & Scaletta
[2024] FedCFamC1A 87
•21 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scaletta & Scaletta [2024] FedCFamC1A 87
Appeal from: Scaletta & Scaletta [2023] FedCFamC2F 1290 Appeal number: NAA 309 of 2023 File number: SYC 6504 of 2021 Judgment of: ALDRIDGE J Date of judgment: 21 May 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from final property orders – Where the appellant had difficulties reading and hearing during the trial – Where the appellant demonstrated sufficient ability to engage with the hearing – No lack of procedural fairness – Challenges to fact finding and weight – Relevant findings did not have a large impact on overall outcome – Contributions findings were reasonable – No miscarriage of justice – Appeal dismissed – Appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Maine v Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Martell v Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Xuarez & Vitela (No. 2) [2017] FamCAFC 236
Number of paragraphs: 71 Date of hearing: 24 April 2024 Place: Sydney Counsel for the Appellant: Ms Bridger with Ms Breeze Solicitor for the Appellant: VL Macri Lawyers with Family Lawyers & Mediators Australia Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Marano Family Lawyers ORDERS
NAA 309 of 2023
SYC 6504 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SCALETTA
Appellant
AND: MS SCALETTA
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
21 MAY 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $30,000.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scaletta & Scaletta has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in proceedings between Ms Scaletta (“the wife”) and Mr Scaletta (“the husband”). The primary judge determined that the appropriate division of the parties’ property was that the wife retain 35 per cent of it and the husband 65 per cent of it.
Her Honour found that the husband had introduced all the major assets to the relationship including a business, which provided much of the parties’ income during the relationship, and the matrimonial home. Both parties worked in the business without any formal salary. The wife was found to have undertaken most of the home making activities. Having regard to these matters and to a finding made that the wife’s contributions were adversely affected by family violence, the contributions were assessed as favouring the husband 72.5 per cent and the wife 27.5 per cent.
After taking into account the matters raised by s 79(4) of the Family Law Act 1975 (Cth), her Honour arrived at the distribution already noted.
THE APPEAL
The main focus of the appeal was on the difficulties that the husband had hearing what was occurring during the hearing with the contention being that this gave rise to such a procedural unfairness that there ought be a re-trial. Leave was granted to the husband to amend the Notice of Appeal to make this explicit. The appeal also challenged the fact finding undertaken by the primary judge, including that as to family violence. Grounds 4, 5 and 6 were abandoned. Grounds 9, 10, 11, 12, 15, 16 and 17 will only come into play if another ground, other than procedural fairness, succeeds.
Ground 1 – Did the primary judge err in refusing to place weight on the husband’s evidence unless it was corroborated or uncontroversial? And did the primary judge thereby not afford the husband procedural fairness?
It was this ground which was the vehicle for the asserted procedural unfairness.
Her Honour found:
18.In the foregoing, I do not place weight on the husband’s evidence where it is not corroborated or otherwise states an uncontroversial fact. Where there is factual dispute that requires determination and there is no other corroboration, or rational process to assist me, I prefer the wife’s evidence.
That finding must be placed in the correct context.
The primary judge recorded that the husband had trained as a professional. He suffered a stroke in 2014 and the primary judge considered that he felt frustrated and humiliated by his cognitive and physical decline (at [13]).
Her Honour twice raised the question of whether a litigation guardian was required and was assured by the husband’s counsel that one was not and that the husband was capable of giving instructions.
The primary judge continued:
15.Aspects of the husband’s oral evidence were confusing and suggested that he may not have understood questions. For example, the husband was shown his Financial Statement filed in January 2022. He did not remember swearing the document and asked, “Can someone explain?” He was unable to identify the Financial Statement as his own. When asked about an estimated liability in 2010 of $695,000, to which he had deposed, the husband said, “I don’t know.” When taken to paragraph 11 of his affidavit in which he deposed to meeting his second wife in 1999, he said “I don’t know.” When taken to his current and previous Financial Statements, which described different superannuation funds, the husband said, “I don’t know.” At paragraph 57 of his affidavit, the husband deposes that, in late 2014, the Australian Taxation Office (“ATO”) audited his “business.” In his oral evidence, the husband did not know which business was audited or the outcome of the audit.
16.At one point during cross-examination, the husband became upset and refused to answer questions posed by counsel for the wife because he could not hear what was being said. I harbour some doubt as to whether the husband’s many answers that he “did not know” were due to poor memory, or not hearing and so deflecting the question, or because he otherwise did not know. I make no criticism of the husband. He was obviously frail and found the process of giving evidence difficult. I did not form the view that he was evasive. That said, I found his evidence difficult, and I have done the best I can with it.
The husband submitted that the primary judge was obliged to have taken steps to ensure that the husband could hear what was going on throughout the hearing, leading to the inference that had he been able to, the credit findings would have been different. The point of the husband was simply that, even though there may have been other difficulties with the husband’s evidence, the general proposition remains that if you cannot hear what is going on, especially when being cross-examined, you cannot have a fair trial.
It is not immediately obvious what steps the primary judge could have taken. Whilst some courts have hearing loops available there is no evidence that such a loop would have assisted the husband. Someone could have sat close to the husband to repeat things to him but that hardly needed the judge to intervene. The husband’s lawyers could have easily arranged that. Interpreters are requested and used frequently, but again there was no request.
The authorities show that “natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all of the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise” (per Gibbs CJ in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312).
In Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, Kirby P, as his Honour then was, said at 423:
But so long as the person is in open court and that person is deaf, he or she has an entitlement to translation of what is passing in the court, subject only to the overall residual control of the judge to be exercised for proper reasons to ensure that the proceedings are properly conducted. If it were otherwise, our vaunted boasts about open justice and fair procedures would be empty of content for the person who is deaf.
In Xuarez & Vitela (No. 2) [2017] FamCAFC 236 the Full Court posed the relevant question as being whether “the appellant demonstrated sufficient ability to understand what was put to him and to answer and engage in the process without the aid of an interpreter” (at [27]).
It was not in dispute at the hearing that the husband had difficulties reading and hearing. The question was the nature and extent of those difficulties.
At the commencement of his cross-examination the husband asked counsel for the wife to speak louder because he could not hear him. He added that his eyesight was so poor that he could not read and that his affidavit had to be read to him (Transcript 6 September 2023, p.159 lines 16–32).
This caused a difficulty because his affidavit concluded with the usual jurat and not with one for people who could not read. The primary judge adjourned so that the affidavit could be sworn appropriately.
During the course of the discussion that led to the adjournment for that purpose, the following exchange took place:
[THE HUSBAND]: Your Honour, may I say something?
HER HONOUR: Yes?
[THE HUSBAND]: Whatever you have just said to them now, I hardly heard or understood any of it.
[HER HONOUR]: Okay. All right?
[THE HUSBAND]: So I’m sorry, but I’m sitting here like the dummy of yesterday.
[HER HONOUR]: Okay?
[THE HUSBAND]: I wasn’t a dummy. I was a [professional].
[HER HONOUR]: Okay?
[THE HUSBAND]: I think I was quite smart.
[HER HONOUR]: Mr [Scaletta], that’s okay - - -?
[THE HUSBAND]: But lately, the last three years or so, I can’t read, I can’t see, I – first court case here. I have hardly heard and understood anything that’s going on. So - - -
[HER HONOUR]: Just pause there, Mr [Scaletta]. Can you hear me now?
[THE HUSBAND]: Yes.
[HER HONOUR]: Okay. What I’m going to do is go – I’m going to go off the bench, and you’re going to have a chat with [your counsel] and the solicitor about your affidavit. He will explain what’s going on. And I realise you didn’t hear or understand what just happened but he will explain that to you, and I’m confident that he will do that to the letter?
[THE HUSBAND]: Thank you.
(Transcript 6 September 2023, p.49 lines 11–32)
It seems apparent that, if care was taken, the husband could hear what was being said.
On resumption of the cross-examination the husband advised that he had never had a hearing aid and that even though he had glasses he could not read (Transcript 6 September 2023, p.53 lines 5–15). Again, it is apparent that the husband could hear those questions.
The husband was then asked, with some difficulty, whether he agreed that in his affidavit he said that the matrimonial home had a debt of $695,000. The answer, given twice, was “I might have. I don’t know. I don’t know. I might have. I don’t know” (Transcript 6 August 2023, p.54 lines 41–42).
The answer “I don’t know” was often given in his cross-examination.
A short while later, the husband said:
[COUNSEL FOR THE WIFE]: And, sir, I’m speaking like this because you’re saying you’re having trouble hearing, so I’m trying to make sure - - -?
[THE HUSBAND]: I’m having trouble hearing. I’m having trouble remembering. I’m stuffed. Mate, I wish I was dead today. Mate, it’s killing me. It’s killing me. I’m not the man I used to be. I – I was a [professional]. Pretty smart one. I’m not so smart anymore, today. Today I’m history.
(Transcript 6 September 2023, p.56 lines 6–10)
There was, apparently, more than one difficulty at work.
As the cross-examination continued, it is clear that the husband could hear and understand most questions. For example, when asked about a particular company, he advised that it had been wound up (Transcript 6 September 2023, p.56 lines 33–34).
On occasions, but not many, the husband asked for a question to be repeated or said, for example, “I can’t hear you, I’m sorry, when you speak softly” (Transcript 6 September 2023, p.64 lines 2–3).
The cross-examination then continued for some time, seemingly with the husband having little difficulty in hearing the questions asked as he was able to answer many of them immediately and directly.
After some time, the husband again said he could not hear and that counsel for the wife was mumbling (Transcript 6 September 2023, p.102 lines 1–25). He then said:
For the love of God, I can’t hear. Can you please speak up? I can’t hear. I can’t answer the questions if I can’t hear it.
(Transcript 6 September 2023, p.103 lines 1–2)
It is clear that he could hear the subsequent questions. The following exchange then occurred:
[THE HUSBAND]: I’m not talking to your arrogance because I can’t hear you, you won’t speak up, and you want me to answer it. If I can’t hear you, how can I speak up? Your Honour, I’m not answering any more of his questions. Do what you want to do with me. Put me in jail, throw away the key. I don’t care. You know, he’s an arrogant son of a pig. I can’t hear him.
HER HONOUR: All right. Mr [Scaletta] - - -?
[THE HUSBAND]: Right? And yet he keeps talking.
[HER HONOUR]: Mr [Scaletta], that’s - - -?
[THE HUSBAND]: Your Honour - - -
[HER HONOUR]: Mr [Scaletta], please?
[THE HUSBAND]: If you can’t hear, what are you going to say? May I ask you politely?
(Transcript 6 September 2023, p.106 lines 18–29)
The husband added that it is very frustrating when you cannot hear a question (Transcript 6 September 2023, p.107 lines 12–17).
I have carefully read the entirety of the husband’s cross-examination. I am comfortably satisfied that the husband demonstrated sufficient ability to understand what was put to him and to engage with the process. Whilst it was obvious at times that the husband was having difficulty hearing, it is also clear that, for the majority of the time, the answers indicated that the questions had been heard.
It must be added that at no time did the husband’s counsel complain about the process or suggest that something should be done to assist the husband. Indeed on the contrary, after accepting that the husband had difficulty hearing, counsel added “He has difficulty with some simple propositions” (Transcript 7 September 2023, p.50 line 23) and he agreed with the primary judge that the husband’s evidence was not dishonest, but that some of it needed to be taken “with a grain of salt” (Transcript 7 September 2023, p.52 line 36 to p.53 line 4).
It follows that there was no lack of procedural fairness. To the extent that it might be suggested that there was, it is difficult to see how it had a material impact on the outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141). That position could only be arrived at if it was assumed that each time the husband said I don’t know or gave another unhelpful answer it was due to hearing difficulties. There is no basis for such an assumption and it is contrary to the apparent fact that for most of the time the husband could hear the questions. The lack of recall for whatever other reason, however, affected the acceptability of his evidence.
The primary judge’s credibility finding was fair and clearly open on the evidence. There were apparent difficulties with the husband’s evidence which affected its acceptance.
This ground does not succeed.
Grounds 2, 3, 7, 8, 14 and 15 – Did the primary judge err in finding family violence and in according it weight in making contribution findings?
The primary judge found that there were two incidents of family violence which were described as the “Town S incident” and the “gun incident”.
As to the first, the husband is said to have stopped the car violently on the side of a highway, shouting at the wife to get out. When the parties returned home, the husband pushed the wife and slapped her on the face.
Her Honour made the finding on the following basis:
46.The husband denies the totality of the wife’s account about the Town S incident. There is no other evidence to which I can refer to assist me in determining whether the Town S incident occurred. Having regard to the findings at paragraphs 10 to 18 of these Reasons, I prefer the wife’s account and find accordingly.
The husband pointed to inconsistencies in the wife’s evidence which he submitted meant that it should not have been accepted. That is not enough to demonstrate error.
Where a trial judge’s impression of a witness is relevant to fact finding, as it was here, in order to succeed on appeal, the appellant must demonstrate that the finding is glaringly improbable, or contrary to incontrovertible evidence or compelling inferences (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129).
That is not the case here.
As to the second, it was not contentious that the husband, whilst very drunk, confronted the wife with a gun. What was contentious was whether he pointed the gun at the wife and threatened her or talked about shooting himself. The wife left the home for three months the following day.
The primary judge’s findings were:
62.On any view, there was an incident in the context of an argument in which the husband had a gun in the presence of the wife and threatened to kill himself. Of itself, that would have been terrifying for her. The wife says that the husband pointed the gun at her and that the gun was not in its holster. The husband denies these particulars.
63.I accept the wife’s account of the gun incident including that the gun was pointed at her and was out of its holster and find accordingly. The fact that the wife was concerned about the husband going to gaol, and so did not call police, does not reduce the reliability of her evidence. To consider otherwise is likely to fail to acknowledge the contours of family violence where the perpetrator of the violence and its subject are in an intimate relationship. The husband, by his own evidence, was drunk after consuming three bottles of wine; and was in a heightened emotional state and threatening suicide. These features diminish the reliability of his recollection. The reliability of the husband’s evidence is otherwise generally in doubt as explained at paragraphs 10 to 18 of these Reasons.
The reasoning is apparent and it is clear that the primary judge relied on much more than the general credit finding. The approach was entirely orthodox and no error has been demonstrated.
It was then submitted that neither of these incidents established a “course of conduct” which made the wife’s contributions more arduous and, in any event, there was no evidence as to the latter.
The primary judge’s finding were:
142.As to the Town S incident, the wife gave convincing evidence that the husband told her to get out of the car on the side of the road outside of Sydney, drove away and then returned to collect her. I infer that the act of driving away would cause the wife to feel that she had been abandoned by him and that she would have to find her own way home. When the parties arrived home, the husband continued to accuse her of being like his “bitch wife” and struck her face with the back of his hand. These are acts of verbal abuse and physical violence. I infer that such violence is likely to have had a destabilising effect on the wife, which would have made activities such as work and domestic duties more arduous for her. Counsel for the husband submitted that the wife is a “soft” person as though to imply that she was unusually susceptible to the husband’s manner. In my view, her softness operates to confirm the extent to which the wife is likely to have felt destabilised by the husband’s conduct.
143.The gun incident was a terrifying and egregious act. The fact of a person, in the context of an argument, holding a gun and threatening self-harm requires no further elaboration. I accept that the wife’s contributions after the gun incident were more arduous. She was living at a property where a gun that was ordinarily kept in the glove box of the husband’s car and with the husband who had, at the very least held a gun in her presence, while threatening to kill himself. I have no difficulty understanding and accepting the wife’s experience of fear relating to the gun, namely:
I was scared because I can’t sleep. I’m always crying, and I want to ask for help… I always hear the news the people that die, and there’s a gun in my place, and that’s what’s always in my head. I’m seeing it when I close my eyes.
144.For these reasons, I am satisfied that [the] husband’s conduct in the context of the Town S incident and the gun incident had a discernible effect on the contributions of the wife such that it should be recognised in determining the parties’ respective contributions.
In Kennon v Kennon (1997) FLC 92-757 (“Kennon”), Fogarty and Lindenmayer JJ said in their seminal judgement (at 84,294):
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…
As I endeavoured to explain in Martell v Martell (2023) 66 Fam LR 650 (“Martell”), the words of their Honours are not a statute – immutable and unvarying (at [20]).
First, in that case the Court was concerned with conduct over many years, so it was not surprising that those words were used.
Secondly, it takes only a moment of thought to envisage that a single event could give rise to a permanent disability which would make all subsequent contributions more arduous. Indeed, as Kennon itself explains, the focus is on the nature of the contributions, as the above quotation makes clear (see also Martell at [24]–[28]).
Thus, a “course of conduct” is not a prerequisite for considering whether the nature and extent of contributions has been made more arduous.
It is true that here there was no evidence from the wife that her contributions were made more arduous by the two events. Rather, her Honour inferred the effect, as she was entitled to do (Maine & Maine (2016) 56 Fam LR 500 at [47]–[52]; Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 (“Benson”) at [47]–[50]).
The question here is whether there was sufficient evidence from which an inference could be drawn or whether the finding was mere conjecture (Benson at [50]).
It has to be said that the Town S incident demonstrated violence towards the lesser end of the spectrum.
Standing on its own, it is difficult to draw an inference that this caused the wife’s contributions to be more arduous to the extent that this should be recognised in the findings as to contributions.
The gun incident, even if as described by the husband, is different. Here, there was direct evidence of the effect on the wife from which it can easily be inferred that her subsequent contributions would be more onerous than otherwise.
The primary judge did not err in taking that matter, at least, into account.
It has to be accepted however, that this incident occurred late in the marriage.
Consistently with authority (Benson; Jabour & Jabour (2019) FLC 93-898), the primary judge did not allocate a specific percentage or number to this consideration. Having regard to the other findings on contributions and the outcome, it cannot have been large. It was not suggested that the overall result was unreasonable or plainly wrong (House v The King (1936) 55 CLR 499).
Therefore, even if there was an error particular as to the Town S incident, I am not satisfied that it resulted in any miscarriage of justice (Conway v The Queen (2002) 209 CLR 203).
These grounds are not made out.
Ground 13 – Did the primary judge err by taking into account, as a contribution by the wife, her care of the husband’s son?
The care and support of a child of a spouse from a previous relationship can be both a financial and non-financial contribution. Hence, the husband submitted that the evidence fell short of establishing such care.
The primary judge’s finding was:
160.The evidence establishes that the wife undertook cooking and domestic chores for the benefit of Mr O when he stayed some weekends and was at the business after school each afternoon. This sounds as an adjustment in favour of the wife: Robb & Robb (1995) FLC 92- 555.
Earlier, her Honour had said:
93.The wife deposes that, in 2010, the husband’s youngest child Mr O was 11 years of age. She deposes that Mr O stayed with the parties every second “week” which she clarified to mean alternate weekends although there were weekends that he did not come. The wife said in her oral evidence without further challenge that Mr O came to the business each afternoon after school and stayed there until his mother collected him.
94.The husband deposes that Mr O stayed overnight up to fortnightly weekends until he was 11 or 12 years of age but then stopped coming as regularly.
The suggestion was made that her Honour had mistaken the evidence in that the child did not stay every second week and that that arrangement ended after a couple of years. Her Honour’s findings of “some” weekends and the reasons at [94] indicate that this is not so.
Finally, it was submitted that there should have been no adjustment at all. This cannot be accepted because the care was undoubtedly provided. In the scheme of things, any adjustment would have been small, but as I have already explained, that appears to be the case. The contributions as found by her Honour are entirely reasonable.
DISPOSITION
It follows that the appeal will be dismissed.
The appeal was wholly unsuccessful. No reason was advanced as to why the husband should not pay the wife’s costs.
The wife sought costs in the sum of $49,417.40, calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth). Counsel charged for reading the Appeal Book, drafting the Summary of Argument and 10 hours of preparation. I therefore see no basis on which the husband should also pay the wife’s solicitor’s costs (who unlike counsel, was present throughout the hearing) for reading the transcript ($6,945.58), reading the Appeal Book ($11,339.44) or for preparing the appeal ($1,555.32).
The husband will pay the wife’s costs fixed in the sum of $30,000.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 21 May 2024
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