Sweep & Sweep (No 2)

[2018] FamCAFC 228

FAMILY COURT OF AUSTRALIA

SWEEP & SWEEP (NO. 2) [2018] FamCAFC 228

FAMILY LAW – APPEAL – PROPERTY – Two appeals – No appearance by the respondent – Where the husband drew significant amounts on the mortgage post-separation – Where funds transferred to husband’s partner – Found that husband may retrieve those funds –  Where the primary judge found that the husband failed in his duty of disclosure – Adjustment made in favour of the wife in light of the husband’s non-disclosure and the wife’s caring responsibilities – Apprehended bias – Where more than a year lapsed between the complained of conduct and an application for recusal – Waiver - Procedural fairness – Limitations on re-opening of trial - Whether certain factual findings of the primary judge were open on the evidence – Whether the primary judge failed to take into account relevant considerations – Adequacy of reasons – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where further evidence adduced in support of apprehended bias ground to show conduct of the primary judge following delivery of orders – Where the remainder of the evidence is not relevant to the questions on appeal – Application in an appeal allowed in part.

Family Law Act 1975 (Cth) ss 75(2), 96AA
Family Law Rules 2004 (Cth) rr 11.02, 13.15, 22.30

Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clausen & Clausen (1995) FLC 92-595; [1995] FamCA 10
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ferraro & Ferraro (1993) FLC 92-335; [1992] FamCA 64
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kannis and Kannis (2003) FLC 93-135; [2002] FamCA 1150
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22
Stephens & Stephens (Enforcement) (2009) FLC 93-425; [2009] FamCAFC 240
Sweep & Sweep and Anor [2017] FCWA 102
Sweep & Sweep [2017] FCWA 161
Tate & Tate (2000) FLC 93-047; [2000] FamCA 1040
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Weir& Weir (1993) FLC 92-338; [1992] FamCA 69
XYZ Pty Ltd & Charisteas; ABC Pty Ltd & Charisteas (2017) FLC 93-782; [2017] FamCAFC 112

APPELLANT: Mr Sweep

RESPONDENT: Ms Sweep

FILE NUMBER: PTW 5569 of 2011

FIRST APPEAL NUMBER: WA 29 of 2017

SECOND APPEAL NUMBER: WA 32 of 2017

DATE DELIVERED: 22 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Pascoe CJ, Ainslie-Wallace & Ryan JJ

HEARING DATE: 10 April 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 9 August 2017

LOWER COURT MNC: [2017] FCWA 102

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: No appearance

Orders

1. The Application in an Appeal filed by the applicant husband on 7 March 2018 be allowed in part.

2. The appeal be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sweep & Sweep (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: WA 29 of 2017; WA 32 of 2017
File Number: PTW 5569 of 2011

Mr Sweep

Appellant

And

Ms Sweep

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed on 2 March 2018, Mr Sweep (“the husband”) appeals against orders for the settlement of property made by Duncanson J on 9 August 2017 and 12 September 2017.  The husband seeks that all the orders be set aside and the proceedings be re-determined by us. 

2. Ms Sweep (“the wife”) is the respondent to the appeal. The wife is weary of litigation with her former husband and chose not to participate in the appeal. Having been satisfied that the wife had been served with the documents filed in the appeal and knew that it was listed for hearing and that she did not wish to participate, the appeal proceeded as listed in accordance with r 22.30 of the Family Law Rules 2004 (“the Rules”) (non-attendance by a party). Thus, the task faced by the husband was to establish that the primary judge erred in the relevant sense.

3. It is also necessary for us to consider an application by the husband to adduce further evidence in the appeal, being an affidavit by him filed on 7 March 2018 and to which a large number of documents are annexed.  Stated broadly, the proposed further evidence fell within three categories;  firstly being evidence which would impugn various findings of fact, secondly in relation to the apprehended bias challenge and thirdly as relevant to any re-exercise of discretion. 

Background Facts

1. The parties met in September 2000 and in December 2001 they moved into the Suburb A Property (“Property A”) which became the family home.  Property A was acquired in the husband’s sole name and with the assistance of a mortgage.  

2. There are two children of the marriage who were 13 and 11 years of age at the time of trial.  Following separation, the children remained in the primary care of the wife and spent considerable time with the husband.  The husband worked throughout the period of cohabitation and the wife ceased work when she became pregnant with the elder child. 

3. Separation occurred in October 2010, albeit the parties continued to reside in Property A.  At separation the amount outstanding on the mortgage was $124,246.  Although the husband vacated Property A in May 2011, the wife and children remained in occupation and the husband continued to pay its outgoings, including the mortgage repayments.  As the sole registered proprietor the husband was able to borrow against the property without reference to the wife, which he did.  The manner in which he drew against the equity in Property A and his use of those funds was one of the pivotal issues at trial. 

4. The first significant transaction occurred in early 2011 when, without reference to the wife, the husband borrowed $225,000 from Bank D.  These funds were used to pay out the existing mortgage ($125,000) and  to establish a line of credit ($100,000) with which the husband traded shares. 

5. In mid-2011 the parties entered into a financial agreement and a child support agreement which between them required the husband to continue to pay the outgoings on Property A.  In broad terms the parties agreed that on or before 17 April 2015 the wife would pay the husband $335,000 and procure the husband’s “complete release” from any mortgage secured against Property A whereupon he would transfer the property to her.  Until then, the husband would pay its mortgage and rates and the wife would have sole occupation.  Relevantly the husband failed to disclose the moneys he borrowed from Bank D and the agreement was executed on the basis that Property A was worth $550,000 subject to a mortgage on which $125,000 was outstanding.  This was significant because the true figure of $225,000 potentially affected the “complete release” from the mortgagor and the wife’s ability to offer the property as security to pay the husband out.  

6. In any event, upon the agreements being entered into, the husband borrowed an additional $205,000 from Bank D, which was secured by an extension of the mortgage over Property A.  The effect of this was that as at 30 June 2011 the amount secured against the property stood at $430,000. 

7. With the additional $205,000 the husband paid out his car loan, paid $68,168 in legal expenses in proceedings with the wife and used $76,137 as a deposit for the purchase of a property at Suburb Ce registered in his sole name (“Property C”).  The husband paid $365,000 for Property C, in relation to which he borrowed $291,537 from Bank D.  As with the mortgage secured over Property A, this advance from Bank D was secured by Company E.  In any event the husband and Ms Warren, to whom the husband became engaged, made Property C their home.  The wife and children remained at Property A, the outgoings of which continued to be met by the husband.

8. In 2013 the husband sold Property C for $470,000. He applied the $172,395 net sale proceeds to the purchase of a property at Suburb B in Ms Warren’s sole name (“Property B”). Contrary to the husband’s position that Ms Warren (who did not give evidence) had made contributions to Property C (and to him) and was entitled to the net proceeds of sale, the primary judge was satisfied the monies were advanced so as “to place the funds beyond the reach of the wife” [66].

9. Both the financial agreement and child support agreement were set aside in late 2014. Property proceedings commenced in 2014, and on 8 December 2014 an order was made which restrained the husband from, relevantly, encumbering or dealing with Property A [66]. Setting aside the child support agreement created difficulties with the Child Support Agency and the assessment of child support. By early 2015 the husband was in serious dispute with the Child Support Agency and, after the Agency intercepted his taxation refund of $13,000, he took stress leave from his full time employment. Not long afterwards the husband resigned and stopped making the mortgage repayments on Property A.

10. Eventually Company E took possession of Property C which saw the wife and children effectively evicted.  When it was sold in November 2016 for $592,000 the mortgage stood at $485,773; that is approximately $360,000 in excess of the amount outstanding at separation.  The primary judge was satisfied that the husband had the capacity to pay the periodic mortgage payments and that his actions were “designed to force the sale of the property to prevent the wife retaining it” [77] as by her application she sought to do.  The net proceeds of sale achieved from the sale of Property A were in the amount of $68,578, most of which was secured pending trial.   

11. Property B was sold in December 2016 for $645,000 albeit the net sale proceeds were not known. By then Ms Warren had been joined as a party to the proceedings and an injunction made which restrained her and the husband from receiving the Property B proceeds of sale. Although the husband gave evidence that he did not receive anything from the sale, the evidence did not establish the position vis-a-vis Ms Warren. Ms Warren did not participate in the hearing and it was the husband’s evidence that she now lived abroad, their relationship had come to an end and she wanted nothing to do with him or the proceedings. The primary judge considered “it more likely than not that the husband has either not ended his relationship with Ms Warren or will resume it when these proceedings are concluded” [105].

12. Including the parties’ superannuation, the total net property was valued at $471,867.  The net non-superannuation assets were valued at $276,560, the most valuable of which was the $172,395 net sale proceeds of Property C as reflected in the proceeds of sale of Property B.  In a classic application of the principles that emerge from cases such as Kowaliw & Kowaliw (1981) FLC 91-092, the primary judge was not satisfied that the “funds no longer exist” and that it was “possible that the husband may receive the benefit of these funds in the future” [117].

13. The primary judge determined that the husband made the greater initial contribution, contributions during cohabitation were equal (both findings reflect the husband’s case at trial) and post-separation contributions favoured the wife.  As to initial contributions the husband owned a car and had savings of approximately $30,000.  The wife owned a car subject to a loan of about $5,000.  As to post-separation contributions, the wife always had greater responsibility for the day to day care of the children and substantially so post-2015 and in an obvious application of cases such as Ferraro & Ferraro (1993) FLC 92-335, the primary judge gave significant weight to this important role undertaken by the wife. It is apparent that the husband’s greater initial contribution was quite modest and thus the post-separation period was appropriately afforded greater weight.

14. In total, the wife’s contributions were assessed at 55 per cent compared to the husband’s 45 per cent.  The assessment of post-separation contributions and identification of the parties’ property were pivotal issues at trial.

15. In accordance with s 75(2) of the Family Law Act 1975 (Cth) (“the Act’) the primary judge considered a raft of factors and determined that an adjustment of 25 per cent in favour of the wife was appropriate. The most significant factors were the husband’s superior earning capacity, the wife’s care and control of the children and the husband’s “financial misconduct and lack of disclosure which…the justice of the case requires to be taken into account” [165], in particular, the husband’s failure to pay the Property A mortgage and the losses sustained as a consequence, including that during the period when the mortgage was not paid, the mortgage debt increased by about $58,340 [152]. In this regard the husband’s failure to give full and frank disclosure invoked cases such as Kannis and Kannis (2003) FLC 93-135 where the Full Court explained that in such circumstances it may be appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of complete disclosure. The primary judge was satisfied this approach was appropriate [163].

16. The effect of the adjustments made pursuant to s 75(2) of the Act was to increase the wife’s overall share of the property available for distribution from 55 to 80 per cent. Thus, from this modest property pool the wife received the proceeds of sale of Property A ($43,997), her car and household contents ($3,000). Further, she retained her superannuation interest worth $30,361 and a superannuation splitting order was made, the effect of which was that she received the husband’s entire superannuation interest which was worth $164,946. In this regard it should be noted that the wife was then 45 years of age and there was no doubt it would be a significant period of time before her superannuation would vest.

17. For his part, the husband received the Property C proceeds of sale and $68,168 in paid legal costs (paid from his borrowings secured against Property A) and his child support debt was discharged.

The Grounds of Appeal

1. Before we commence our analysis of the various challenges, this appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”).  Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513).

2. Unfortunately the grounds of appeal were not clear statements of asserted error readily identifiable within the House principles.  Although the headings given to each ground suggest attention to House, it is in the subparagraphs which followed that difficulty arose.  For example, in Ground 3 the husband included 36 particulars which he said established that the primary judge “failed to consider relevant matters or considered irrelevant matters and material or did not identify the issue or asked the wrong questions”.  Which particular related to which proposition was not identified.  Particulars such as “[the wife]’s inability to negotiate” are meaningless.  Many more examples could be given.  Thus, although it is not our task to search through voluminous material in an attempt to find error, we thought it appropriate to attempt to have the husband identify the strongest “particulars” of each challenge so that a coherent core could be litigated.  He fully engaged with this exercise and the discussion which follows will focus on his identified core.  We agree that the matters he identified to us constituted his appeal at its highest.  

3. Consistent with authority, the apprehended bias and procedural fairness challenges must be considered before the other grounds.  This is because a successful challenge to the constitution of the court and a denial of procedural fairness in relation to a material matter strikes at the validity and acceptability of the trial process and its outcome.  Where a defect in the administration of justice has been found to have occurred the orders must be remedied (see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 612). In this case, the appropriate remedy would be that the orders are set aside and the proceedings remitted for re-hearing before a judge other than the primary judge.

Apprehended Bias (Ground 2)

1. By this ground the husband argues that through a series of procedural rulings in favour of the wife and the management of the case generally, the primary judge should have recused herself.  In support of this challenge the husband was permitted to introduce further evidence in the appeal being various transcripts and orders which are annexures A-J to his affidavit filed 7 March 2018.  The lack of particularity contained in the ground and summary of argument meant that considerable effort was required during the appeal hearing to identify when it was that the husband came to the view that a pattern of rulings had emerged such that he believed that the primary judge might not bring an impartial mind to the resolution of the property proceedings.  This was important because none of the rulings or exchanges resulted in a contemporaneous recusal application by the husband, albeit in a number of instances objection was taken to the remarks.  Indeed the application that the primary judge recuse herself was made after the property settlement orders under appeal were made and in the context of an application to vary the parenting orders and for publication of certain documents.

2. It will be recalled that the orders under appeal were made on 9 August 2017 and 12 September 2017.  The application that the primary judge recuse herself was made on 6 November 2017.  It was heard on 16 November 2017 and by an order of the same day the primary judge recused herself (“the recusal judgment”).  She did so as a consequence of events that occurred during a telephone directions hearing on 29 September 2017. 

3. The circumstances of what occurred on 29 September 2017 are set out in the reasons for judgment delivered on 16 November 2017 (Sweep & Sweep [2017] FCWA 161). The transcript of 29 September 2017 was admitted in the appeal and her Honour’s description of what occurred is apt. The husband’s assertion that he struggled to speak without interruption is not. Based on this transcript and other pre-trial transcripts admitted as further evidence it is clear that, irrespective of the nature of the listing, the husband was relentless in his determination to make his point and when rulings went against him or the tide suggested they might, he cavilled with the judge. Time constraints and the nature of the listing held no traction for him. There can be no doubt that when the matter came before the primary judge on 29 September 2017 she well knew that if this was to be the intended “short directions hearings” then the hearing would require firm judicial control.

1. In any event, the primary judge explained the circumstances in the recusal judgment as follows:

   22.In relation to the proceedings on 29 September 2017, the husband describes my behaviour as alarming. He says he was denied the right to be heard. The husband deposes that he "struggled with opportunities to respond on outstanding applications/matters without interruption and being overridden in what may be considered as a rude tone and manner" by me.

   23.He says his telecommunications were "deliberately and maliciously disconnected" by me and that I performed this action to avoid further evidence being presented. He refers to my "intent" with respect to the proceedings and says I am unable to remain impartial. I assume from this that he asserts apprehended bias.

   24.At the commencement of the proceedings on 29 September 2017 I informed both parties that the matter was back for a short directions hearing and that what was before the court was the application of the husband and the response of the wife in relation to the parenting matters and the publication of court documents. I informed the parties that I had inquired of the family consultant as to the possibility of a child inclusive conference which would involve interviewing the children, which the family consultant had said could be listed on 27 November 2017 at 9.15 am. That course of action was acceptable to the wife but not to the husband. I told the parties that the option of the appointment of a single expert witness remained.

   2.5The husband agreed that independent evidence regarding the children was required, but sought the appointment of an independent expert. He spoke in support of that request and quoted some cases.

   26.I interrupted the husband after a period of time and informed him that he would have an opportunity to make more detailed submissions at a later date and I reminded him that the hearing was for directions only. The husband responded that my decision was prejudiced as predetermination had occurred.

   27.I ordered that the parties and the children attend a child inclusive conference.

   28.I ordered that the proceedings stand adjourned generally to be relisted after the family consultant's report had been received and upon the relisting, the matters to be determined were those contained in the husband's application in a case filed 15 May 2017 and the wife’s response filed 10 July 2017, which include parenting issues and matters relating to the publication of court documents.

   29.I have therefore not determined the husband's application for the appointment of a single expert witness or the other orders sought. I do not consider I have predetermined that issue.

   30.I gave both parties an opportunity to respond to my orders. The husband sought to raise several other matters with me. I explained again that the hearing was for directions only and that I would allocate time to hear the outstanding matters. I repeated the matter was for directions only, but the husband said there were other matters he wished to discuss. He said he wished to be heard and had a right to be heard.

   31.I then brought the hearing to a conclusion. The husband kept speaking. He then referred to the initiating application in relation to the children and his response of 19 September 2016 and while he did so, I adjourned the court and left the court room. While the husband was still speaking my associate put down the phone.

   32.The husband therefore attempted to raise with me the issue of the reply to response filed 19 September 2016 which I now, but did not then know, had been finalised in Casetrack and which ought not to have been.

   33.In these circumstances where I did not allow the husband to raise this further matter, it is not impossible that a fair-minded lay observer in the court might reasonably apprehend that I might not bring an impartial and unprejudicial mind to the resolution of the question I am required to decide.

   34.I have concluded the appropriate course of action is for me to recuse myself from these proceedings.

2. The primary judge correctly identified that the husband’s application engaged the principles that emerge from Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337. The husband did not assert otherwise. Ostensibly on the basis of those principles the primary judge determined that “it was not impossible” that a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question she was required to decide. It should be pointed out that the test is not one of “impossibility” but whether the fair minded lay observer would reasonably apprehend partiality. The application of the correct test should have seen the recusal application dismissed. Be that as it may, the events of 29 September 2017 do not cast a shadow over her Honour’s impartiality prior to that date. Thus, to the extent that the husband argued that the decision by the primary judge to recuse herself in the circumstances she did is proof positive she should have stood aside before she made the orders under appeal, he must fail.

3. Otherwise, in support of this ground the husband listed items 2(a) - 2(n) which he contends established a pattern of rulings favourable to the wife and which raise the spectre of apprehended bias. The itemised contentions provided no detail of what it was or when it was that the primary judge was said to have acted inappropriately. Indeed the material was so lacking it was amenable to summary dismissal pursuant to s 96AA of the Act. However, as the wife had not appeared and would not be disadvantaged if we allowed this challenge to go forward, we proceeded accordingly. Thus we attempted to take the husband through the occasions which gave rise to complaint. Unfortunately a pattern unfolded of the husband providing a date when he said the judge did something he viewed as colourable, but when taken to the transcript of the relevant date and/or orders that issued, his complaints did not withstand scrutiny.

4. The husband was particularly concerned about what occurred after the first tranche of the hearing.  In this regard it needs to be understood that the property proceedings were heard on 2 – 4 March 2016.  By then Company E had commenced proceedings to take possession of Property A in the Supreme Court of Western Australia, but the judge had little other information about this litigation.  The wife was not a party to those proceedings and great difficulty was experienced by her and the court being properly apprised of that action.  In the end directions were made on 2 June 2016 that if a party sought to re-open the case an application to that effect should be filed.  Although the application is not included in the appeal books, the transcript and orders of 25 July 2016 reveal that the wife filed an Application in a Case on 13 June 2016 seeking to re-open and other orders.  On 22 July 2016 the husband filed an Application in a Case seeking an order that the hearing not be re-opened but if it was then various self-executing and interlocutory orders.  His application was given a listing date on 11 August 2016, however the proceedings came before the primary judge on 25 July 2016 in relation to the application to re-open, certain interim or interlocutory as contained in the wife’s amended response filed on 1 July 2016 and for the return of subpoena.  Orders were made that the evidence be re-opened and injunctions issued against the husband and Ms Warren. 

5. The hearing on 25 July 2016 took place in the absence of the husband.  Whatever attempts, if any, had been made to serve the husband failed.  He had been out of the country with Ms Warren and at that stage the wife believed he had no intention of returning to Australia (transcript, 25 July 2016 page 12, lines 38 – 40).  In any event, the husband was unaware the proceedings were listed on 25 July 2016.  Thus he complains that the primary judge allowed the proceedings to go forward in his absence.  No such criticism is warranted.  This is because the matters raised by the wife were very serious.  For example, she and the children had been forced from Property A, Property B had been put up for auction and the husband and Ms Warren had left Australia.  There can be no doubt that wife made a compelling case for urgent action, ex-parte if need be.  The primary judge responded to the urgent issues but sought to address any procedural unfairness by an order which gave the husband and Ms Warren “liberty to apply to vary or set aside the orders made today on short notice” (Order 8 dated 25 July 2018).  The approach taken by the primary judge was entirely reasonable and does not sound in partiality.

6. The husband also relied on the events of 11 August 2016 as evidencing partiality by the judge.  Consistent with Order 8 dated 25 July 2016 and by an Application in a Case filed on 3 August 2016 the husband sought a stay of the orders made on 25 July 2016.  This was followed by an Application in a Case he filed on 10 August 2016 seeking that those orders be discharged.  These applications were listed for hearing on 11 August 2016, as was the husband’s application filed on 22 July 2016 mentioned earlier.

7. The primary judge dealt with the re-opening issue and set the parameters for it as follows:

   ·Seizure and sale of Property A;

   ·The decisions and reasons for decisions of the AAT in relation to child support and any subsequent appeal; and

   ·The joinder of Ms Warren and the related sale of Property B.

8. However, the wife had not been served with the husband’s applications and the judge declined to hear them until she was.  Unlike the situation on 25 July 2016 there was nothing pressed which was sufficiently urgent to justify proceeding as the husband sought.  Ultimately, as the reasonableness of the approach adopted by the primary judge became unarguable, the husband said it was her Honour’s tone which gave rise to his concern.  If that was the case it was incumbent on the husband to make an application for us to consider the audio recording which he failed to do.  In this respect we note that the husband was given audio access to other hearing days and it is inferred that had he sought access to this day’s recording it too would have been given.  In circumstances where there is nothing on the face of the record which gives reason to be concerned about these exchanges, we chose not to consider that matter further.  Our decision was reinforced by the fact that on 11 August 2016 the primary judge advised the husband that if he wished to press an application that she recuse herself it was necessary that he file an application to that effect.  Yet more than 12 months lapsed from when he was first told he would need to file an application that he did so. 

9. In relation to the husband’s complaint about the parameters of the re-opening, in particular the failure to include further examination of the wife’s financial circumstances, it can be seen that he sought to pursue arguments he had already run and, properly understood, he sought to rectify what he now perceived to be deficiencies in the presentation of his case in the March 2016 hearing.  The decision to refuse him that opportunity accords with authority and does not sound in partiality.

10. He continued to seek that the re-opening address this issue and on 15 December 2016 the husband asked the primary judge to deliver a preliminary judgment on the financial matters.  His request is entirely inconsistent with the notion that he believed he had a proper basis to have the primary judge recuse herself or that he had been denied a fair hearing.  On a proper reading of the transcript, one sees a lengthy and measured exchange by the primary judge in response to persistent, frequently argumentative propositions put by the husband which demonstrate that he would not accept her Honour’s ruling that she would not issue a preliminary judgment and which sought to cavil with other rulings far more than is acceptable. 

11. The fair minded lay observer would make no criticism of the approach taken by the primary judge on any of the dates which precede the application for recusal.  Nor do we.

12. In our view, this ground of appeal was misconceived.  The failure to apply to the primary judge for her to recuse herself prior to the orders under appeal being made is fatal.  As we did at the hearing, in these reasons we have sought to help the husband understand why his complaints about the approach adopted by the primary judge have not withstood proper analysis.  Furthermore, there can be no doubt that by falling to bring the application in a timely way the husband waived his right to object to the constitution of the court (XYZ Pty Ltd & Charisteas; ABC Pty Ltd & Charisteas (2017) FLC 93-782.)

13. Finally, it is appropriate to observe that none of the matters relied upon by the husband in support of the recusal ground lends support to his challenge that the trial was unfair.

Procedural fairness (Ground 1)

1. By Ground 1 it is contended that the primary judge made various procedural rulings which had the effect of denying the husband a fair trial.  In addition, that having restricted the re-opened hearing to three matters, the primary judge unfairly sought further evidence from the husband in relation to his health which was beyond the scope of the re-hearing.

2. Before this challenge can be answered, it is useful to record that in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:

   [T]he authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. 

3. Ultimately, questions of procedural fairness turn on their own facts. 

4. These challenges centre on the approach taken to the re-opening.  In this respect it is useful to recall that the property hearing was conducted in two parts.  The first part took evidence current at that time but in the shadow of proceedings commenced by Company E in the Supreme Court of Western Australia to take possession of Property A and for its sale.  Questions of the extent to which the parties had disclosed or failed to disclose, as well as their income and income earning capacity, were dealt with at this stage.  The second part of the hearing concerned events which unfolded after that date and which were relevant to the identification of the property of the parties and child support. 

5. However, the husband agitated to expand the parameters of the re-opening to include further exploration of the wife’s financial circumstances and the adequacy of her disclosure.  To this end he sought leave to issue a series of subpoenas.  He also sought to pursue an application that the wife be dealt with for contempt and contravention of orders but these do not seem relevant to the re-opening question.  In any event he was not permitted to expand the re-opening albeit the parties were ordered to file an undertaking as to disclosure and to comply with their duties of disclosure.

6. In relation to an application to re-open a hearing after judgment has been reserved, a fundamental principal to be applied is whether the interests of justice are better served by allowing the application or rejecting it (Stephens & Stephens (Enforcement) (2009) FLC 93-425 at 83,947 (“Stephens”)).  Proper regard must be had to any prejudice to the other party (Gaspaldi & Gaspaldi [2008] FamCAFC 134. This includes the strain the litigation imposes on litigants. Stephens also demonstrates at [273] that the impact on court resources and prejudice to other litigants waiting to be heard may also be relevant considerations. The list is not exhaustive, but gives the flavour of how variable the considerations were to a judge in the position of the primary judge when asked to re-open the hearing.

7. In ruling against the husband’s case that the re-opening should include further investigation of the wife’s financial circumstances, the transcript of 15 December 2016 reveals that the primary judge took into account the need to finalise the proceedings, that issues about the wife’s disclosure and income had already been dealt with and that the resumed hearing needed to be completed within the nominated two days.

8. The husband was given permission to issue a number of subpoena, but not those that went to the wife’s income, for example to the real estate agent from whom she rented the house she and the children now lived in.  The primary judge clearly viewed this as irrelevant, which it was.  The evidence already established that the wife was in receipt of Centrelink benefits and had casual part-time work which she disclosed to Centrelink.  Thus the fact that she was able to pay her modest rent could not establish that the wife was in recept of undisclosed income.  With respect to the husband, the amount of time he put into trying to persuade the Court that the wife may have occasionally undertaken slightly more casual work (as a cleaner or counsellor) than she disclosed was an exercise in futility.  There is no suggestion that the wife ever earned an income the equivalent to that earned by the husband and even if he was able to establish she occasionally had more work than had been disclosed, it would not have affected the outcome of the proceedings.  Her Honour’s decision to not permit that issue to go further was plainly correct.

9. The final aspect of this ground is that, having restricted the re-opening to the three aforementioned topics, her Honour expanded the scope of the re-hearing and unfairly raised the issue of the husband’s health and unfairly sought evidence from him about this at short notice. 

10. A review of the transcript, reveals that it was the husband who raised the issue of his mental health (as a reason for his unemployment and current financial circumstances), and the primary judge did no more than give him the opportunity to adduce further evidence in support of his assertions (transcript, 27 March 2017, page 73 lines 18 to 49). As it turns out this further evidence was found wanting [138]. However there can be no doubt that her Honour’s approach advantaged the husband and was not procedurally unfair.

11. This ground has not been established.

Failure to take into account relevant considerations (Ground 3)

1. Though broadly stated within his Notice of Appeal, in the appeal hearing the husband narrowed this ground to be that her Honour failed to consider:

   ·The husband’s financial contributions in attempting to maintain the asset pool, particularly in the context of the parties children living with him forty percent of the time;

   ·The husband’s evidence about his ill health;

   ·The husband’s disclosure; and

   ·The wife’s lack of disclosure.

2. The first of these challenges is to the effect that the primary judge failed to make a finding that over the life of the Company E/Bank D loan secured against Property A, the husband paid $797,994 by way of periodic instalments.   This figure was extracted from an affidavit by an employee of Bank D filed in the Supreme Court of Western Australia and which became Exhibit 25 in the trial. 

3. The husband argued that the finding at [130] that “the husband remained in employment until early 2015 and paid the mortgage repayments and other expenses in respect of [Property A] until mid-2015” does not go far enough.  However, the submission overlooks the fact that under a separate heading “Costs associated with [Property A]” the primary judge considered the husband’s argument that the payments by him in respect of Property A, which he quantified at $810,000, should be included as the wife’s notional property.  The primary judge correctly, did not do this (see Vass & Vass (2015) 53 Fam LR 373). However, in rejecting the argument, she said “I shall take into account payments made by the husband in relation to Property A post-separation when considering the parties’ contributions” [119]. It is thus apparent that the primary judge was alive to the full extent of the payments made by the husband in relation to Property A post-separation (primarily the mortgage) and, in the interests of brevity, rather than repeat the findings as to quantum made at [119], made the finding at [130] mentioned earlier.

1. Otherwise, it is clear that the primary judge took into account the fact that for some years after separation the children lived with the wife nine nights in each fortnight and with the husband five nights in each fortnight but then almost exclusively with the wife [131]. The wife’s greater role undoubtedly warranted significant weight (Clausen & Clausen (1995) FLC 92-595)

2. The contention that the primary judge failed to consider these matters cannot be sustained.

3. The challenge to findings concerning the husband’s health was somewhat difficult to follow.  In any event, as to the husband, her Honour found:

   138.The husband resigned from his employment, and says he is unable to work by reason of ill health. The wife disputes this. The husband provided no reliable evidence of a medical condition which precluded him from working. The high point of the evidence was a short certificate from [F] Medical Centre which became Exhibit 19 upon which the husband relied. The certificate he produced states he was unfit to attend work since 27 June 2015 to 27 March 2016. In fact, the document looks as if it has been altered. The husband also provided a letter from his General Practitioner dated 23 September 2016 which states the husband does not feel able to return to work. The General Practitioner was not available for cross-examination. The report is equivocal and does not explain how his condition impacts on his capacity to earn an income.  

4. Otherwise, in relation to each of the parties, the primary judge said “[t]he parties’ ill health is likely to be of short-term duration and both parties are likely to improve their health once the outcome of the proceedings is known” [141].

5. Doing the best we can with the argument advanced before us, it would seem that the husband contends that the primary judge failed to take into account his evidence that he had attended a clinical psychologist for three years (as per his affidavit filed 15 October 2015), was physically and mentally distressed at work in mid-March 2015 (and on two subsequent occasions) and resigned his employment because of stress; also that the primary judge failed to have proper regard to the F Medical Centre’s medical certificates and prescriptions attached to the 15 October 2015 affidavit. 

6. We are not satisfied that this evidence was overlooked.  Even if it was, this evidence does not undermine the veracity of the findings as to the husband’s current state of health and his capacity to earn an income.  There is no report from the clinical psychologist and a referral to a psychiatrist without a report from the psychiatrist has little forensic value.  Furthermore the early 2015 “unfit for work” reports and prescriptions could not have justified a finding to the effect that his health issues were more enduring or severe than as found.  Her Honour’s findings were undoubtedly available and this argument too is not made out.

7. The next aspect of this ground concerns disclosure and the findings  that:

   162.The husband has failed in his duty of disclosure. The wife's disclosure was disorganised, but I am satisfied that she has not deliberately failed in her duty to disclose. The husband on the other hand has done so. He has been less than frank with his financial position and he has ensured that the financial circumstances of his cohabitation with [Ms Warren] were not provided to the Court.

8. The husband argues that insofar as the findings relate to him fail to take into account the full extent of his disclosure.  With respect to the husband, that is not the point.  Rather the question is whether, notwithstanding extensive disclosure the husband gave complete disclosure (see Weir& Weir (1993) FLC 92-338). The findings below provide more than ample justification for the conclusion at [162]:

   10.On 14 March 2016 I ordered that the husband provide a written authority to the solicitors for [Company E] to discuss with and provide information to the wife regarding the Supreme Court action and failing which the orders were authority for them to do so.

   …

   12.They acknowledged receipt of the above orders. They informed the wife that the husband had written to them refusing his consent to provide documents requested by her…

   …

   25.Financial matters occupied the greater part of the trial in March 2016. In this respect the husband was not a truthful witness. He was evasive. He prevaricated….

   …

   36.…The husband’s disclosure to the wife at the time of entering into the binding financial agreement was seriously deficient. When the husband was asked about [Ms Warren’s] loan in relation to the Property B and whether there was any disclosure about it, the husband’s response was:

   The disclosure has been given to you, [Ms Sweep], over and over. It’s in subpoenas; it’s smattered everywhere.

   37.I accept the wife’s evidence that the husband did not disclose his dealings with the children’s bank accounts.

   …

   50.It was put to the husband that the information in Schedule A was incorrect as the loan of $125,000 had been paid out, and that the husband did not disclose that he had borrowed a total of $225,000 from [Bank D] secured over the property. The husband's answers in relation to this issue were entirely unsatisfactory. Although he had received legal advice, he said he did not know he had to disclose the liability. He denied it was a loan and said that Schedule A contained the agreed values and therefore it did not matter that they were incorrect. The husband asserted the wife knew of his borrowings from [Bank D]. He did not tell her, but said she was aware of it. When asked if he told the wife he had borrowed $225,000 from [Bank D] and secured it over [Property A], the husband said he had not "in that black and white terms" told her, but she knew.

   51.He subsequently said he had not told her of the borrowings.

   52.I do not accept the husband's evidence in this respect. I accept the wife's evidence that she did not know of the borrowings in January 2011 at the time of the agreement.

9. An examination of the trial transcript, even if only in relation to cross-examination of the husband in relation to his misrepresentation of the Property A mortgage in the financial agreement and the wife’s knowledge of it justifies the findings at [25], [36] and [50].

10. In respect of the finding at [25] that the husband prevaricated in his evidence, the transcript provides ample evidence of this fact, particularly in relation to the husband’s relationship with Ms Warren:

    [THE WIFE]: (indistinct) …So in 2015, do you agree that yourself and [Ms Warren] were still together as a de facto couple?

    [THE HUSBAND]: ---Actually, the definition of de facto, we wouldn’t have been a de facto couple, because by that stage [Ms Warren] was in [South East Asia], and I was an Australian. We actually had two separate lives. So there you go.

    [THE WIFE]: Were you together - - -?

    [THE HUSBAND]: ---I’ve answered the question.

    [THE WIFE]: - - - as a couple - - -?

    [THE HUSBAND]: ---I’ve answered the question, Ms Sweep.

    HER HONOUR: (indistinct) I think his short answer is no, because he – but – so - - -

    [THE WIFE]: Are you saying you actually weren’t together as a couple? Not living together. Were you together, as a couple?

    [THE HUSBAND]: ---Say it in any way in which you like. I’ve given you the answer. Short answer is no. We (indistinct)

    [THE WIFE]] You weren’t together. When actually did you break up with [Ms Warren]?

    [THE HUSBAND]: ---Well, let’s go through as far as a de facto, because that’s a separate question to what you asked. That’s like you with your on/off boyfriend, I support.

    HER HONOUR: All right. Just answer the question, [Mr Sweep], please?---

    [THE HUSBAND]: Question is: don’t have an answer for you.

    [THE WIFE]: I need an answer.

    HER HONOUR: What was the question?

    [THE WIFE]: When did they actually break up.

    [THE HUSBAND]: Don’t have an answer for you.

    (Transcript, 27 March 2017, page 53 lines 5 to 40)

11. Further examples can be seen in the transcript regarding the husband’s answers in relation to bank account standing in the children’s names and their closure (transcript, 2 March 2016, page 81 line 28 to page 86 line 2) and, in an example of how the husband approached the litigation, this following exchange with the wife during cross-examination is illuminative:   

    [THE WIFE]: What do you think my share of the [Property C] should have been; do you think I was entitled to any?

    [THE HUSBAND]:---Let’s see. Your grand total of effort was coming over once and pulling out a couple of weeds, so if you want 50 bucks, sure.

    [THE WIFE]: That’s what you think I should obtain from [Property C] is $50; is that right?

    [THE HUSBAND]: ---Well, then we go and reflect and, at the same time, I also fixed that back fence which had collapsed and you were worried about the dog getting out, so labour for labour, yes, I would say zero.

    [THE WIFE]: Zero?---

    [THE HUSBAND]: Is that a question or a statement?

    [THE WIFE]: No, I’m just - - -

    HER HONOUR: Thank you. So you say in return you fixed the back fence at [Property A]?

    [THE HUSBAND]: I also fixed her car. I have done (indistinct) - - -

    [HER HONOUR]: And so you say that cancels that out?

    [THE HUSBAND]: ---Well, it’s a minor arbitrary sum. We’re talking about thousands of dollars here. We’re not talking about minute things or, to my knowledge, going that petty.

    [THE WIFE]: Yet you had used money that you have borrowed against the [Property A] to invest, and to make more money between yourself and [Ms Warren]?

    [THE HUSBAND]: ---It’s called moving forward and having your own life.

    [THE WIFE]: It’s not having your own life, [Mr Sweep] - - -?

    [THE HUSBAND]:---Well - - -

    [THE WIFE]:- - - if you’re using - - -?

    [THE HUSBAND]: ---No, not - - -

    [THE WIFE]: - - - somebody else’s money?

    [THE HUSBAND]: ---Not if somebody keeps on continuously harassing you about financials and things like that, which is what [the wife] has actually done since we have separated.

    [THE WIFE]:Sorry. There’s just so – so many untruths, I’m really not sure where to go. So given that - - -

    HER HONOUR: All right. Well, this is good. Just keep on the factual situation.

    [THE WIFE]: Just given the fact that you believe … [Mr Warren], is entitled to, say, 50 per cent of the profits made on [Property C], so 50 per cent of the 172 [thousand], what do you think my percentage is that I should be having from [Property A]?

    [THE HUSBAND]: ---Well, that’s actually all in my affidavit of where I have stated how much [the wife] has already (a) either hidden, (b) utilised and, therefore, subsequently should have net proceedings go to the father.

    (Transcript, 3 March 2017, page 95 line 28 to page 96 line 28)

12. These are just two examples.  Otherwise, in relation to the wife’s disclosure, the primary judge accepted some of the husband’s contention about its untimeliness and the like, but did not go so far as he wished.  Before us, the husband was able to demonstrate that the wife failed to give an appropriate undertaking as to disclosure, but did not establish that the primary judge erred in failing to be more critical of the wife’s disclosure than she was. 

13. For completeness, the primary judge did not overlook the fact that in March 2016 the wife owned shares worth $2,234 which had apparently been disposed of by the time she swore her financial statement on 27 February 2017.  Although the husband complained to us about the lack of documentation concerning the share transactions, as the primary judge pointed out, no questions were asked of the wife about this small transaction.  Indeed, the husband’s approach to the share transaction is illustrative of his approach at trial and on appeal.  That is, that somehow his disposition of hundreds of thousands of dollars, including the payments made to Ms Warren, were comparable to tiny transactions undertaken by the wife and thus they warranted the same scrutiny by the court.  As the primary judge attempted to explain more than once, it was necessary to bring some proportionality to the dispute and attempt to keep the proceedings focussed on matters of substance rather than trivia.  In this case, trivia was never going to trump the matters of real substance.

14. Ground 3 has not been made out.

Whether her Honour should have proceeded with the hearing on an undefended basis (Ground 4)

1. In his Notice of Appeal the husband cast this ground as a series of four complaints that the primary judge made errors of law based on the Rules concerning service and disclosure, as well as the exercise of her discretion. In oral argument however, various aspects of the ground were abandoned so that the only remaining complaint was clarified to be that the judge erred by not proceeding with the hearing on an undefended basis after the wife failed to meet her disclosure obligations, including a failure to comply with a procedural order that both parties file and serve an undertaking attaching a list of their disclosure documents pursuant to r 13.15 of the Rules. The point being that the wife’s non-disclosure was such that her Honour should have granted the husband’s application to shut the wife out of the hearing.

2. This ground can be disposed of quickly. In the event that a procedural order, Rule or Regulation is not complied with, or not complied with within the time specified, then the court may, as the husband wished, determine the case as if it were undefended (r 11.02(c) of the Rules). However, a judge in the position of the primary judge retains a discretion about whether or not to do so. So that it is clear the primary judge was not obliged to do as the husband wished. Once again the trial transcript amply demonstrates that the wife disclosed significant material, indeed sufficient material, to enable the Court to establish her financial circumstances. In our view this case did not fall within that band of exceptional cases where such a course may have been appropriate and it would have been quite wrong for the matter to proceed undefended basis qua the wife (see Tate & Tate (2000) FLC 93-047).

3. There is no merit in this ground. 

Adequacy of reasons (Ground 5)

1. By Ground 5 the husband challenges the trial reasons, in particular, findings made during the course of the proceedings and various factual matters in the final trial judgment.  It is accepted that a court from which an appeal lies must state adequate reasons for its decision and that what is adequate may vary from case to case.  There are innumerable formulations of what will be adequate and it is sufficient for us to acknowledge that what was required in this case was a basic explanation of the fundamental reasons which led the judge to her conclusion (see Bennett & Bennett (1991) FLC 92-191 and the cases cited therein).

2. We have already considered the findings concerning the husband’s disclosure, disclosure given by the wife and the mortgage repayments he made towards Property A.  These matters need not be considered further.

3. Of the remaining challenges, those concerning the husband, his credibility, his relationship with Ms Warren and placing funds beyond the wife’s reach may be considered together.

4. As found by the primary judge at [50], information the husband provided in the financial agreement concerning his borrowings from Bank D “was incorrect”, and that although he had taken legal advice, he understated the then indebtedness and wrongly said the borrowings were at $125,000 whereas, as found at [54], they were $430,000. 

5. Furthermore, the primary judge was satisfied that:

   ·The husband completed these, and other large transactions, without first informing the wife [52], [54];

   ·The husband transferred the proceeds of sale of Property C to Ms Warren but failed to call her as a witness to assess her contributions to Property C and relationship [66];

   ·The time when he stopped paying the Property A mortgage he had $26,000 in the bank [75] and deliberately ceased making payments on the loans [78]; and

   ·That the mortgageor suggested “they may be able to help him repay the debt by agreeing to vary the contract” but he did not contact them to discuss this [76], [77].

6. These findings were undoubtedly available, indeed, on a fair reading of the transcript the primary judge was compelled to make them.

7. In relation to his relationship with Ms Warren, the primary judge found:

   99.It is not clear when the husband's relationship with [Ms Warren] ended, if in fact it has. The husband said he broke up with [Ms Warren] in June 2016. He asserted [Ms Warren] sold a Subaru motor vehicle in Perth in June 2016.

   100.On 9 June 2016 when the husband gave his evidence to the AAT he told the tribunal he relied upon his de facto to meet his self-support needs. He told the tribunal that he lived rent free in [Property B] which was owned by his de facto. He also told the tribunal his partner was based in [South East Asia] and he regularly travelled to and from that country. At that time he and [Ms Warren] were planning to relocate permanently to [South East Asia].

   101.In the husband's notice of address for service filed on 6 July 2016 he stated he had no physical address in Australia and requested his email address be used to serve documents. As at that time there had been no suggestion that the husband intended to live anywhere other than [South East Asia] with [Ms Warren].

8. The inconsistency between what the husband told the AAT concerning his relationship with Ms Warren and his evidence at trial is obvious.  The primary judge was entitled to take that inconsistency into account and to reach the conclusion about the status of their relationship, which she did.    

9. As to the husband’s challenge to findings concerning the wife’s income, the primary judge did not overlook the husband’s assertion that the wife had undeclared income:

   118.In March 2016, the husband asserted the wife had savings of $175,000. He said the wife had worked cash in hand 15 hours a week at $30 per hour for five years. He said this money did not go into her bank account and it would not surprise him if she had opened a bank account which she had not disclosed and saved these funds. Not only were the husband's calculations incorrect, but he was unable to substantiate his assertion with any evidence. The wife's explanation was far more plausible, namely the funds she earns as a cleaner she receives cash in hand. She discloses her earnings each fortnight to Centrelink and her Centrelink benefits are adjusted according to her earnings. I have no doubt that the wife's earnings are used for her living expenses and those of the children and she does not have the means to accumulate savings.

10. The husband’s assertion that the wife worked 15 hours a week at $30 per hour for five years such that she had $175,000 in accumulated funds she had not disclosed was mere supposition and his challenge under the heading “Even if [the husband]’s calculations were incorrect, how [the wife] had shown all funds during post separation” does not establish error.

11. Nor, do the husband’s challenges under the headings “[The wife]’s reasons for obtaining full time employment”, “[the wife]’s contributions negate foreclosure”, “[the husband]’s rejecting maintenance and cleaning of [Property A] falling on the responsibility of the [the wife]” and “how [the husband] is malicious when [the wife] was in full knowledge of [Property C] residence” establish error.  The detail of these matters have either already been discussed when considering other grounds and need not be considered again.  Otherwise, for example, in relation to the submissions concerning full-time employment, they are argumentative and fail to recognise that from mid-2016 the wife had full-time responsibility for the care of the children and she was not obliged to pursue full-time employment.

12. It is accepted that it was open to the primary judge to find that the wife ought to have maintained Property A so that the amount of $15,042 required to prepare the property for sale need not have been incurred.  However, merely because a different finding may have been available does not mean that the finding made is erroneous (Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679). Her Honour was satisfied that the wife, as a recipient of Centrelink benefits, did not have “the means to maintain or improve [Property A]” [160]. The husband’s contention was obviously considered and for the reasons given it was rejected. Error as alleged has not been established.

Finding as to the value of the wife’s shareholdings (Ground 6)

1. The gravamen of Ground 6 is that the primary judge erred in concluding that the wife sold a small amount of shares owned by her, in circumstances where the wife failed to disclose her ownership of them.  Although this issue was mentioned earlier, it is useful to repeat the finding made:

   157. As at March 2016 the wife owned [H Bank] share worth $2,234.  Although she was not asked about this, it appears she has disposed of these shares as she deposed to having no investments in her financial statement sworn 27 February 2017.

2. Two points need to be made on this ground.  The first, as we raised with the husband during the hearing, is that such a small amount in the context of this pool, even if we accepted that her Honour was in error, would be of such little consequence that it would justify setting the order aside (De Winter and De Winter (1979) FLC 90-605). The second, as pointed out by her Honour, is that there was an opportunity for the husband to ask the wife about these shares during the hearing, and he failed to do so. There is no merit in this ground.

Application to adduce further evidence

1. The husband has failed to establish error and thus his application to adduce further evidence in the appeal must be considered.  The ability of this Court to receive evidence in an appeal is constrained.  Ordinarily, evidence that was available or could reasonably have been obtained at the time of the hearing will not be received (CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) at [55]).  If it is argued that the admission of the new evidence would require a new trial, “justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial” (CDJ at [111]).

2. By an Application in an Appeal filed 7 March 2018, the husband sought to adduce further evidence in the form of an affidavit filed the same day.  A number of documents were annexed to the affidavit.  It will be recalled that annexures A – J were said to be in support of the husband’s recusal application on the ground of apprehended bias (Ground 2) and were considered and admitted in the discussion of the merit of that ground.  What follows is our consideration of the remaining annexures (annexures K – U) but restricted to those documents which the husband said he still wished to rely on.  The point being that most of remaining annexures were only relevant if the appeal was allowed and the court re-exercised the discretion of the primary judge.  

3. Annexure K is an affidavit of the wife, filed 25 January 2018, in which she deposes to events since the final orders and her frustration about the appeal.  It is irrelevant.

4. Annexure L is a valuation of the husband’s superannuation account, as at 28 February 2018, included to be taken into account in the event of a re-hearing and is presently irrelevant.

5. Annexure N is a series of social media posts said to show that the wife was selling some furniture and was working as a cleaner.  The husband asserted that this demonstrated that the wife had a property staging business which she had not disclosed.  Before us he properly conceded that this no more than supposition.  If admitted it would not alter the outcome ordered at trial.

6. Annexure Q also concerned the wife’s disclosure; being a document showing the cancellation of her ABN in September 2015, which is said to show that she was running a counselling business.  The primary judge was aware of this business and this evidence would not have affected the outcome.  

7. Annexure O was one of the wife’s social media posts, in which she admits the seriousness of her relationship with her former partner, which she told the primary judge was “casual”.  To the husband, this demonstrates that the wife committed perjury.  More to the point though the wife says that relationship has ended.  Irrespective of the degree of “seriousness” with which the wife said at trial she viewed that relationship, this evidence would not alter the findings made at [149] and would not alter the outcome.

8. Although the husband did not address annexure P it was not withdrawn.  It contains yet another of the wife’s social media posts where she discusses the litigation and is irrelevant.

9. Annexure R is the parties’ child support assessment, issued on 20 November 2014, which shows that for the eight week period covered by the assessment the wife had an “Adjusted Taxable Income” of $41,187.  According to the husband this demonstrated the inadequacy of the wife’s disclosure.  Of course it predates the trial by more than 12 months and in the absence of any reasonable explanation for this document being raised now, it should not be admitted.  Although it is somewhat repetitive, it was not the wife’s case that she was without employment and the fact that over a few weeks she had the income disclosed in this document would not affect the outcome.

10. Annexure S is apparently a screen shot taken of the Child Support Agency online portal, which shows that as of 7 August 2016 there was a nil balance, that is, that the husband was up to date with his child support obligations. The husband submitted that although this evidence was not before the primary judge it should be considered by us in the event of a re-hearing. Of course by then the Agency had seized a taxation return of his in the amount of $13,000. Pleasing as it may be that as at 7 August 2016 there were no arrears, it will be recalled that somewhat surprisingly the primary judge took into account $12,000 in child support arrears in formulating the property pool. The effect of this is that the wife in effect contributed 80 per cent to the arrears and it would seem that if this evidence was not admitted it might potentially work to the husband’s advantage. More relevantly, there was voluminous evidence about the significant dispute about the payment of child support and ample evidence that at the time of trial the wife received such child support as was deducted from the husband’s welfare benefits. This document would not, relevantly, have changed the application of s 75(2) of the Act.

11. Annexure T is a social media post of the wife, which includes photos of a skip bin that she had rented.  The husband said that this evidence was relevant in the event of a re-hearing, and demonstrated that, contrary to the primary judge’s findings that the wife was not in a position to maintain Property A, she was able to do so.  It does not.

12. The last document is Annexure U.  Annexure U is an extract from mygov.au that shows that the husband now has a HECS debt of $15,000, which he said should have been included as a liability in the property pool.  He gave evidence at trial that he had all but completed a Masters degree and paid his course fees as they fell due.  By March 2017 he was enrolled full time in an Associate Degree in relation to which he said he had the HECS debt of about $6,000.  However, he did not produce any other evidence (such as this document) about it.  It is too late to do so now.  Nor was it established that it would be just and equitable to include that liability in the property pool, particularly as it was incurred so many years after separation and the husband was qualified in other fields. 

13. It follows that the balance of the documents sought to be adduced as further evidence will be rejected.

Conclusion

1. We have not found error on the part of the primary judge and the appeal will be dismissed.  As the wife did not participate in the appeal the question of costs does not arise.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Pascoe CJ, Ainslie-Wallace & Ryan JJ) delivered on 22 November 2018.

Associate: 

Date:  22 November 2018