Sheridan & Delany (No 2)
[2025] FedCFamC1A 38
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sheridan & Delany (No 2) [2025] FedCFamC1A 38
Appeal from: Delany & Sheridan [2024] FCWAM 146 Appeal number: NAA 254 of 2024 File number: PTW 1778 of 2022 Judgment of: SCHONELL J Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – APPEAL – Where the appellant appeals orders made by the Magistrates Court of Western Australia in undefended financial proceedings – Where the primary judge found that the s 75(2) factors warranted a further adjustment in favour of the respondent as to 10 percent, divided the party’s property as to 65 percent to the respondent and 35 percent to the appellant, and dismissed the respondent’s application for spousal maintenance – Where the appellant challenged the jurisdiction of the Magistrates Court of Western Australia and contends that the value of the home was grossly undervalued –Where the appellant’s submissions as to jurisdiction was arrant nonsense masquerading as a legal submission-Where no error is made out – Appeal dismissed – Consideration of s 117(2A) – The appellant is to pay the respondent’s costs assessed in the sum of $3,000 within 60 days. Legislation: Family Law Act 1975 (Cth) ss 75(2), 117, 117(2), 117(2A) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lamereaux and Noirnot (2008) FLC 93-364; [2008] FamCAFC 22
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Re Magistrate MM Flynn; ex parte McJannett [2013] WASC 372
Tomasetti & Tomasetti (2000) FLC 93-023; [2000] FamCA 314
Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Number of paragraphs: 48 Date of hearing: 26 February 2025 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 254 of 2024
PTW 1778 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SHERIDAN
Appellant
AND: MS DELANY
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 30 September 2024 is dismissed.
2.The appellant pay the respondent’s costs assessed in the sum of $3,000 such sum to be paid within 60 days of the making of this order.
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 Sheridan & Delany has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Notice of Appeal filed 30 September 2024 the appellant husband (“the appellant”) appeals orders made by the Magistrates Court of Western Australia in undefended financial proceedings.
BACKGROUND
The proceeding the subject of the appeal was commenced by the respondent on 4 March 2022. Orders were made on 14 June 2022 for the appellant to file a Response. Rather than complying with the direction, the appellant corresponded with the court challenging the jurisdiction of the court to determine the respondent’s Application.
On 6 September 2023, the respondent caused the court to issue a subpoena directed to a bank. The appellant objected to the subpoena, again challenging the court’s jurisdiction.
Further directions were made on 12 October 2022. The appellant elected not to comply with those directions.
On 8 January 2024, as a consequence of a failure by the appellant to comply with directions, the court determined the matter would proceed on an undefended basis. Further directions were made that in the event the appellant challenged the jurisdiction of the court, he was to file written submissions setting out the basis for any such challenge by no later than 9 April 2024.
The reasons of Her Honour recorded as Delany & Sheridan [2024] FCWAM 146 (“the reasons for judgment”) recount that the appellant did not file submissions in accordance with the direction, instead choosing to again correspond with the court. His correspondence requested that the court “comply with sections 71, 72, 73 and 74 of the Commonwealth Constitution” as recorded at [15] of the primary judgment.
The matter proceeded to what was described as an undefended hearing on 16 August 2024. At the hearing, both the appellant and respondent appeared unrepresented. At the commencement of the hearing, Her Honour explained the process that she proposed to adopt, identified the documents the respondent relied upon, and indicated to the appellant that he had an opportunity to cross-examine the respondent.
The transcript reveals Her Honour asked some questions of the respondent and then permitted the appellant to cross-examine her. The appellant asked the respondent whether or not she regarded the house as still having the same value as it had two years ago to which she answered “Yes”, (transcript dated 16 August 2024, page 7 lines 25–30). He then asked her whether the house had gone up in value to which she replied “No” and then asked her questions about the number of bedrooms in the house (transcript dated 16 August 2024, page 7 lines 30–40).
The appellant then asked the respondent some questions about an injury she had sustained, why she had left her former employment, and whether the parties owed money to the appellant’s parents to which the respondent agreed that monies had been advanced by them approximately 20 years ago. The appellant also asked the respondent questions about monies he had paid on behalf of the children including the purchase of a motor vehicle and the payment of various expenses.
Following the appellant’s cross-examination, the parties were invited by Her Honour to make submissions. The appellant made a short submission to the effect that the respondent had left him with nothing other than a motor vehicle. The respondent then made submissions, and Her Honour indicated to the parties that her judgment would be reserved.
Judgement was delivered on 3 September 2024. Her Honour in her reasons for judgment recorded the following:
2.These proceedings have been complicated by (appellant’s) repeated failure to comply with orders and participate satisfactorily in the proceedings. As a consequence, the trial proceeded on an undefended basis.
She recorded that she was satisfied that she had jurisdiction to entertain the application advanced on behalf of the respondent.
Her Honour found that the parties had commenced living together in 1991, were married in 1998, and separated in January 2017. She found that there were three children of the parties’ relationship who are aged, at the time of judgment delivery, 22, 20 and 18.
Her Honour identified the property of the parties to have a total net value of $626,132. She recorded that the appellant had a motor vehicle but that there was no evidence as to its value and found that by the appellant’s failure to participate in the proceedings there was uncertainty surrounding his net asset position. Her Honour observed in relation to the value of the home as follows:
27[Ms Delany] conceded she had not obtained a valuation in relation to the … property for some years. She gave some updating oral evidence about what was owed on the mortgage debt, which is reflected in the table.
28I consider that [Ms Delany] has done the best she can in circumstances where [Mr Sheridan] has not provided her with disclosure and has failed to file responding documents in the course of the proceedings.
Her Honour found that it was just and equitable to make an adjustive order. She found that the parties did not have any significant assets at the commencement of their relationship, that in or about 1991 the parties received a cash gift from the appellant’s parents, that they purchased a property in 1993 subsequently selling that property and purchasing the matrimonial home in 1998. Her Honour accepted the respondent’s evidence that her parents provided some money towards the purchase of that property.
Her Honour recorded that the appellant was employed on a fly in, fly out basis from 2001 leaving the responsibility to the respondent to care for the parties’ children. She found that the parties had conducted during the course of the relationship a number of businesses in which both parties worked. She accepted the respondent’s evidence that the appellant made the substantial financial contributions during the marriage whereas the respondent was primarily responsible for the care of the family and the children’s needs. Her Honour found that upon separation the appellant vacated the matrimonial home but paid Child Support until each of the children attained the age of 18 years. She found that the appellant did not spend any regular time with the children following separation.
Her Honour assessed the contribution-based entitlements of the parties as to 55 percent in favour of the respondent and 45 percent in favour of the appellant placing significant weight on what she regarded as the post-separation contributions of the respondent.
In relation to matters under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) she found the respondent to be 53 years of age and earning approximately $942 gross per week and was satisfied that she was working to her capacity. She found her superannuation entitlements to be approximately $84,000 whilst the appellant’s superannuation entitlements were approximately $285,000.
She found the appellant to be 56 years of age but that there was no evidence before about which she could make findings as to his health, living arrangements, employment or financial position generally as recorded at [59]. Her Honour did, however, find that bank records indicated that for the twelve-month period between October 2022 and October 2023, the appellant received wages of approximately $90,000. Her Honour found that the appellant had a vastly superior earning capacity to that of the respondent.
In assessing matters under s 75(2) of the Act, Her Honour found that the factors warranted a further adjustment in favour of the respondent as to 10 percent.
Her Honour found that it was just and equitable to divide the party’s property as to 65 percent to the respondent and 35 percent to the appellant, made orders giving effect to those findings, and dismissed the respondent’s application for spousal maintenance.
NOTICE OF APPEAL
The Notice of Appeal contains three grounds none of which are immediately recognisable as a competent Ground of Appeal. Ground 3 would on its face appear to challenge the jurisdiction of the Magistrates Court of Western Australia and accordingly will be dealt with first.
GROUND 3
By Ground 3 it is presumed the appellant challenges the jurisdiction of the Magistrates Court of Western Australia. The word ‘presumed’ is adopted because what appears as the third ground is arrant nonsense masquerading as a legal submission.
The ground contends as follows:
3.The Commonwealth Constitution states that the exercise of authority throughout the Commonwealth is under the Crown. The State is created under 107,108 and 109 of the Commonwealth Constitution and draws its authority from that constitution. The State Constitution continues after Federation, subject to the Commonwealth Constitution and altered in accordance with its constitution not amended, changed or repealed. Ref HCA 48 of 1996 You and all lawyers MUST swear the oath of allegiance contained in the Commonwealth Constitution as having been removed Unlawfully from the State Constitution. You Must sit as Commonwealth Public OU'icers NOT Public Officers. Without the authority of the Crown as contained in Our constitution, You the Councils Police or Parliament HAVE NO AUTHORITY, No previous decision of State Courts HA VE AUTHORITY. No Laws that do not comply with Our Constitution have any authority whatsoever. No Oath .. No Authority ... End of Story!!
All courts are part of a Federal Judicial system with the High Court at its summit: - the constitution states that fact as does in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 of [1996] known as the Kable decision. In Forge v ASIC [2006] HCA 44 of [2006] states, "Not only permanent judges but temporary judges must swear the oath of allegiance before swearing the oath of oU'ice". There is an obligation to produce those credentials when asked proof of. Eve1y public servant must swear the oath of constitution before their oath of oU'ice. The people establish the Commonwealth not the Government not the politicians. The people through their constitution employ all public servants. No outside agreement signed by the politicians can be used without a Referendum and the will of the people. All oU'icers of the States and the Federal Parliament are employed under the constitution by The People and as such are oU'icers of the Commonwealth Not of the states. In 1999 The People by Referendum chose to reject the republic and retain the Crown. The Australia Act is Fraud and Treason: - It never went to the People by Referendum. Section 5 of the Australia Act in fact states: - Commonwealth Constitution, Constitution Act and Statute of Westminster not aU'ected by this Act. Page 676 states: "The parliament is not supreme, and the very essence of federation is that must be so, the parliament like everybody else is subject to the law and must obey it". Page 791 states: "Neither the state nor federal parliaments are sovereign bodies, they are simply legislatures with limited authority if they attempt to pass laws in excess of that authority those laws are a nullity. At all times both Federal and State Parliaments are subject to the Will of The People and Our Constitution. Only the Governors and their executive council can put legislation together and only the Governor General and his executive council can do the same. There are no exceptions to that Fact. Justice Kirby was correct: - "No parliament by preambular assetiion can speak an authority into being it does not exist in law". It follows, if. The people are the Commonwealth, and they are, all their employees are "Commonwealth OU'icers" if they are not, then they are Not Lawful and have no Jurisdiction. Page 726 and 727 states: Shows the status of state comis vested with federal jurisdiction page 726 clearly states; - "This jurisdiction can only be given with respect to any matters mentioned in section 75 and 76. All courts must sit under Chapter III of Our Constitution and be capable of sitting in Federal Jurisdiction". Page 7 40 states: "The limitation or the power of parliament: - (2) from other federal courts, or courts exercising federal jurisdiction. Also reference page 747 states: "It is my opinion based on the Constitutional description of The People being the Commonwealth and Chapter III of Our Constitution, that every person or persons employed by The People are in fact "OU'icers of the Commonwealth". For the purpose of Our Application a master of the supreme court or any other employee, judges, clerks of the court or sheriU's are Commonwealth OU'icers to be able to exercise federal jurisdiction. No oU'icers of any court in Western Australia are oU'icers of the Crown: - "They are Not Lawful Purported Justice Wayne Martin stated in 2011 that he had not sworn the Lawful Oath. Therefore, all the Courts of Western Australia are illegitimate Cami and is a Fraud on the people it has no authority or head of power under the "Crown" to exist.
South Australia v Totani [2010] HCA 39 (11 November 2010) chief Justice French stated that even Magistrates Courts must be in accordance with Chapter 3 of the Commonwealth Constitution.
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27;211 CLR 1 ;189 ALR 161 ;76 ALJR 926 (26 June 2002) Justice Kirbby stated that "The decision of this Court in Re Wakim;Ex parte McNally contradicts the proposition that the conferral by statute of juridstiction and power on a superior court is immune from the restrictions of the Constitution.Any deployment of public power in Australia must conform to the Constitution.This applies to a purported conferral of juridstiction and power upon a State court as well as on a Federal court as considered in Wakim"
A Magistrates court is actually a star chamber, and these were outlawed in 1641.
Attorney-General (WA) v Marquet [2003] HCA 67 ;217 CLR 5451 202 ALR 233; 78 ALJR 105 (13 November 2003) Justice Kirby states very clearly,between paragraphs 203 and 213, that the purported Australia Act is illegal and void because it purports to alter the Commonwealth Constitution without complying with Section 128, which dictates that can only happen by way of a Referendum.
The WA Constitution is also illegal, as it has to also comply with Section 128 of the Commonwealth Constitution, but has never had Referendums to allow any alterations. It also now includes the Australia Act 1986.
(As per original)
It is not immediately obvious whether the word “oU'icers” is misspelt or has some special significance to the appellant. Neither the Summary of Argument nor the oral submissions cast light on this enigma. The Summary of Argument repeats the ground and refers to a number of decisions of courts of the United States of America; the relevance of which are not apparent.
As Isaacs ACJ observed in Hazeldell Ltd v Commonwealth [1924] 34 CLR 442 at 446 it is “the very first duty of any court in approaching a cause before it to consider its jurisdiction”.
The reasons for judgment reveal that Her Honour satisfied herself that she had jurisdiction, citing in support previous authorities of the West Australian Court of Appeal. The appellant’s argument before Her Honour bears a striking similarity to that advanced by the appellant in Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289 which suffered a similar fate in the Court of Appeal.
No part of the appellant’s submission establishes that the court did not have jurisdiction. I am comfortably satisfied for the reasons referred to above and as advanced by Her Honour that she had jurisdiction. Nothing advanced by the appellant remotely convinces me otherwise. I respectfully adopt the observations of McKechnie J in Re Magistrate MM Flynn; ex parte McJannett [2013] WASC 372 wherein His Honour observed that:
15.… judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law.
There is no merit to Ground 3.
GROUND 1
Ground 1 contends that the value of the home was grossly undervalued and consequently the result achieved was “not a fair settlement value”.
The evidence before the Magistrate was that the home had a value of $350,000 based upon the respondent’s belief as to its value. The appellant challenged the respondent in cross-examination as to the basis of her opinion, from which she did not resile. The appellant did not proffer or suggest to the respondent a different value.
A hallmark of the adversarial system is that courts do not gather evidence, call witnesses, engage experts or present evidence of their own motion. As the Full Court observed in Lamereaux and Noirnot (2008) FLC 93-364:
48. The limits placed by law on reliance by a Judge on evidence, other than evidence regularly adduced by the parties to the litigation, are designed to ensure procedural fairness.
A court within the adversarial system hears the evidence that is presented to it. In circumstances where the parties are unrepresented, it may be in less than perfect form, but the court does the best it can with the evidence the parties present.
The appellant chose not to engage in the court process. A consequence of doing so is that the court determined the matter on the basis of the respondent’s evidence alone. This arose entirely as a consequence of the appellant’s deliberate decision not to engage in the proceedings. He is bound by the decisions he made in the proceedings.
There is no merit to Ground 1.
GROUND 2
By Ground 2 the appellant contends that the “split between the people being unfair as not the complete truth was told”. It is not immediately apparent nor was it articulated what is meant by being “unfair as not the complete truth was told”.
The determination by Her Honour is presumed to be correct unless the appellant can establish that the discretion exercised miscarried in the terms articulated in House v The King (1936) 55 CLR 499 at 505 (“House v The King”). It is not enough that this Court might come to a different determination. That is not appealable error.
The appellant’s contention that the result is “unfair” seems to be based upon the findings and ultimate orders made in the two cases cited by the appellant, namely Tomasetti & Tomasetti (2000) FLC 93-023 and Fields & Smith (2015) FLC 93-638. The submission is misconceived. The cited authorities involve the exercise of a discretion against a different factual matrix. Reliance upon them does not establish error on the part of Her Honour. As Justice Brennan observed in Norbis v Norbis (1986) 161 CLR 513, at 539:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
A reading of the Her Honour’s reasons for judgment reveals that she was satisfied that the respondent had made a greater contribution than the appellant. She provided clear and adequate reasons for why she reached the conclusion that an adjustment pursuant to s 75(2) of the Act was warranted. The appellant has not established error in the House v The King sense on the part of Her Honour in determining despite a long marriage that a division of the parties’ assets as to 65 percent to the respondent and 35 percent to the appellant was other than just and equitable.
Ground 2 fails.
DISPOSITION
In the absence of establishing error, the Notice of Appeal will be dismissed.
COSTS
In circumstances where the appeal will be dismissed, the respondent sought costs in reliance upon a schedule filed in accordance with the directions made by the Appeals Registrar on 11 November 2024.
The appellant opposed a costs order on the basis that it was excessive, and he had not been served with a sealed copy of the schedule. In respect of the latter contention, he agreed that the schedule was served on him in accordance with the orders made by the Appeal Registrar. The order did not require service of a sealed copy and to the extent that the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) prescribed otherwise I dispense with requirement of the Rules. No prejudice is occasioned to the respondent by not receiving a sealed copy.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs. Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
It is well-settled law that no one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor (Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123).
The appellant has been wholly unsuccessful on the appeal and none of the grounds had merit. In those circumstances I am satisfied that an award of costs is justified.
In the event that a fixed sum is not ordered the parties will be left to an assessment which will only incur further costs. I do not propose to allow this aspect of the parties’ litigation to continue beyond this event (Warbrick & Warbrick (No 2) (2021) FLC 94-030 at [13])
The Rules and authorities make plain that I can fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126). I am satisfied that it is just that an order for costs should be made but not in the quantum as sought by the respondent. I will order the appellant to pay the respondent’s costs assessed in the sum of $3,000 which amount I am satisfied is proper and reasonable. I will order the appellant to pay that sum to the respondent within 60 days of the date of the making of this order.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 7 March 2025
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