TUTTON & JORDISON - [2019] FamCAFC 77

FAMILY COURT OF AUSTRALIA

TUTTON & JORDISON

[2019] FamCAFC 77

FAMILY LAW – APPEAL – PROPERTY – Where leave to appeal is not required – Where most if not all of the grounds of appeal are incompetent – Where the purported grounds are either mere assertions, fail to identify appealable errors made by the primary judge, or relate to orders not the subject of this appeal – Where the primary judge has not erred in any way – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent has not incurred legal costs or disbursements – No order as to costs.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Tutton

RESPONDENT:

Ms Jordison

FILE NUMBER:

PTW

3149

2010

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

7 May 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Kent & Duncanson JJ

HEARING DATE:

6 May 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

25 July 2018

LOWER COURT MNC:

[2018] FCWA 130

REPRESENTATION

THE APPELLANT:	In Person
THE RESPONDENT:	In Person

Orders

The appeal be dismissed.
There be no order as to costs.

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 Tutton & Jordison 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).

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 26 of 2018
File Number: PTW 3149 of 2010

Mr Tutton

Appellant

And

Ms Jordison

Respondent

REASONS FOR JUDGMENT

Introduction

By way of Notice of Appeal filed on 17 August 2018, Mr Tutton (“the husband”) appeals from orders 1 and 3 of the final property settlement orders made by O’Brien J on 25 July 2018.
The orders appealed from provide for the husband’s interest, if any, in any bank accounts of Ms Jordison (“the wife”), any chattels in her possession and her superannuation, to vest in the wife (order 1), as well as for the dismissal of any outstanding applications and responses of the parties (order 3). We note that order 2 provides that the wife’s interest, if any, in any bank account of the husband’s, any chattels in his possession and any superannuation entitlement of his is to vest in him.
Essentially, his Honour finalised the parties’ property settlement dispute by providing for each party to retain the property which was in their respective possession at the time of the hearing.
The husband seeks leave to appeal, and if leave is granted, he raises 17 grounds of appeal. However, as the orders were final orders for property settlement, leave is not required.
If the appeal is granted, the husband seeks that the court make the following order:
1.Immediate restitution of all the money and property of [Mr Tutton], including his home, personal property, cars etc. $1,3000,000:00.
(As per original)
The wife has not filed a summary of argument in the appeal, but she did appear at the hearing of the appeal and indicated that she opposed the appeal.
We note that despite being ordered to do so, the husband has failed to provide the transcript from the hearing on 28 June 2018. He also attempted to file four volumes of the appeal books, but only two, and portions of the third, were accepted for filing. There were also two books of disputed documents filed by the husband.

Background

The husband was born in 1966 and is currently 52 years of age. He is unemployed and receives welfare benefits.
The wife was born in 1972 and is currently 47 years of age. She too is unemployed and receives welfare benefits.
The parties married in 1997. They separated in June 2009 and were divorced in 2010. There are no children of the marriage.
The wife commenced property settlement proceedings in the Magistrates Court of Western Australia on 18 January 2011. Over the following 18 months a number of orders were made, but the husband failed to comply with most, if not all, of those orders. For example, he failed to file a Response, despite four separate orders requiring him to do so, until 22 July 2011.
On 15 July 2011 the presiding Magistrate made interim orders for the sale of the former matrimonial home, and for the net proceeds of sale to be placed in an interest bearing account pending further orders, or agreement between the parties. Orders were also made transferring the proceedings to the Family Court of Western Australia.
Further orders were made on 1 November 2011, 12 December 2011, 19 January 2012 and 17 July 2012, inter alia, to implement the order for sale. For example, the husband was ordered to vacate the property and was prohibited from removing certain items from the home.
Eventually, the wife was made the sole trustee of the former matrimonial home for the purposes of its sale, and it was sold soon thereafter.
On 8 October 2012 orders were made by consent that each party receive the sum of $20,000 from the net proceeds of sale. By the time of the hearing before O’Brien J none of these funds remained.
On 1 July 2013, the Chief Judge made orders, inter alia, requiring the husband to transfer to the wife his interest in Motor vehicle A, for the equal division of any balance of the net proceeds of sale of the former matrimonial home, and until further order, for the parties to each retain the assets in their respective possession. The competing substantive applications were also dismissed, on the notation that the issues had not been resolved on their merits. An order was then made requiring that if either party sought to file a further Application for property settlement, specific affidavits were to be filed, together with an up to date Statement of Financial Circumstances, and an affidavit of documents.
The husband sought to recommence proceedings, and filed his application in that regard on 25 August 2016.
A trial listing of 30 November 2017 was adjourned as the husband had not been served with the wife’s most recent Statement of Financial Circumstances.
On 6 June 2018 the husband filed an Amended Application, and although the orders sought are not easily summarised, they included that he receive all of the wife’s superannuation entitlements, that the wife be “charged with contempt”, that she and her mother be “charged with perjury”, that the wife pay him $1,000,000 to reflect his assessment of his financial contributions, that the wife’s mother be joined as a party and pay him in excess of $900,000, or otherwise surrender to him her home, chattels and superannuation, reimbursement by the wife of monies that she is said to have misappropriated, and the return to him of a motor vehicle.
For her part, the wife sought the dismissal of the husband’s application, orders prohibiting the husband from reopening the litigation, for the production of various documents by the husband, and “reimbursement by the husband by way of compensation”.
In his Honour’s reasons for judgment delivered on 25 July 2018, the primary judge addressed all of the claims made by each of the parties. In conclusion though, in relation to the respective applications for alteration of property interests, his Honour found that apart from personal items, there was no real or personal property available for division between the parties. Despite this, his Honour considered it appropriate to make an order for alteration of property interests so as to ensure that the financial relationship of the two parties was finally terminated.

The appeal

As referred to above the husband agitates 17 grounds of appeal. Most, if not all of those grounds, are incompetent. They are either mere assertions, fail to identify appealable errors made by the primary judge, or relate to orders which were not the subject of this appeal.
The grounds of appeal in the latter category are Grounds 10, 11, and 12, and to a certain extent, Ground 16. They allege errors by the Magistrate who made the interim orders prior to the dismissal of the proceedings on 1 July 2013. Those orders though are not the subject of this appeal, and no application for an extension of time to appeal those orders has been brought by the husband. In that regard we note correspondence dated 13 November 2018, in which the Appeal Registrar advised the husband that “if you are seeking to appeal an order other than that of Justice O’Brien, it will be necessary for you to file a (sic) Application in an Appeal seeking leave to file your Notice of Appeal (Related to other orders) out of time”. Accordingly, those grounds of appeal are incompetent.
Grounds 5 to 9 inclusive are mere assertions by the husband, and need not be addressed. However, for completeness, it is apparent that those assertions go to the question of the respective financial contributions of the parties during the relationship. His Honour dealt with the issue of contributions at [53] – [57] and it is useful to set out those paragraphs in full, as follows:
53Neither party had assets of significance at the commencement of the relationship. Both worked at different times during the relationship. Both contributed their earnings to joint expenses at different times, while also spending money on their own pursuits or otherwise without the express consent of the other. While there were disputes between them on the evidence as to who had paid various bills, and mortgage payments in particular, even were it possible on the state of the evidence for me to resolve those disputes, nothing would turn on them.
54Similarly, both parties were critical of the efforts made by the other in terms of non-financial contributions.
55It is clear that the parties faced financial difficulties throughout most of their relationship. I accept the evidence of the husband to the effect that hardship payments from his superannuation entitlements, and compensation payments he received, were applied to the joint benefit of the parties. By the same token, I accept the evidence of the wife that her income was primarily applied to the joint benefit of the parties.
56It is also clear that the financial difficulties faced by the parties continued after the separation, at least in part because of the conduct of each of them in relation to the ongoing dispute. While it was suggested that the difficulties encountered in selling the home contributed to a reduction in the value of the property available for division between the parties, by preventing any opportunity for a higher sale price, there was no admissible evidence as to what sale price might have been achieved had those difficulties not been encountered. It would accordingly be a sterile exercise to endeavour to apportion responsibility for those difficulties between the parties.
57Doing the best that I can on the evidence presented, I conclude that the contributions of the parties from the commencement of their relationship until separation are appropriately to be assessed as being approximately equal. I conclude further that the wife has made a greater contribution than the husband to the increase in the value of her superannuation post separation. Because of the paucity of the evidence, I am unable to quantify that contribution.
We are not persuaded that his Honour has erred in any way in making those findings.
Turning then to Grounds 1 – 4 inclusive, they can be summarised as follows:
1)That the primary judge erred in finding that the wife cannot be charged with perjury as she was not under oath at trial.
2)That the primary judge erred in failing to find that the wife had been “stripping” the husband’s 2004 superannuation payout of over $47,000.
3)That the primary judge failed to afford the husband procedural fairness in failing to order that the wife “replace” the Motor vehicle A, which the husband alleges belongs to him, without a hearing and evidence on the issue.
4)That the primary judge erred in failing to order that the wife “replace” the Motor vehicle C which he alleges had been purchased from his superannuation disability payout and traded in for another motor vehicle for the wife.
As to Ground 1, at the hearing of the appeal the husband submitted in effect that this issue comprised his main complaint, and was the reason why he brought the appeal.
The husband says that the wife perjured herself by first deposing in paragraph 3 of an Affidavit filed on 18 January 2011 that she “vacated the [former matrimonial home” on 1 June 2009, the date of separation, because of ongoing “domestic violence and verbal and emotional abuse”. Then, in paragraph 3 of her Affidavit filed on 21 November 2016 she deposed that she “vacated the [former matrimonial home] on the (sic) 1 June 2009, and [she] did not under any circumstance claim the reason at (sic) leaving that time as domestic violence”.
As can be seen, the husband claims that the primary judge found that the wife could not be charged with perjury, as she was not under oath at trial. However, that is not what his Honour said. His Honour said this in relation to this issue:
32Similarly, the Court does not have the power to “charge [the wife and her mother] with perjury” as sought, whether the alleged perjury occurred in evidence given to this or some other court. The Court does, however, have the power to hold a party or parties in contempt of its own motion, or on application. Perjury is conduct capable of amounting to contempt, although more typically it will be dealt with by way of criminal charges in another court, whether arising from a referral by this Court for consideration of prosecution or otherwise.
33An application by a party for an order that another person be punished for contempt of court must be filed in accordance with Part 21.1 of the Rules. Such an application must be made in accordance with the prescribed form; no such application was properly filed in these proceedings.
We consider that his Honour did not err in providing this response to the claim by the husband.
As to Ground 2, his Honour said this:
First,
62The husband made various complaints in relation to the wife’s conduct which he would assert either amounted to a premature disposition of assets by her in the form of a gift to her mother, or wastage in the sense of allowing chattel items to deteriorate and thereby lose value. While those matters are capable of being taken into account pursuant to s 75(2)(o) in some circumstances (even though the husband did not articulate his claim in that manner), the evidence does not support the conclusions the husband would wish me to draw. I accept the evidence of the wife as to the approximate amount gifted by her to her mother; that amount was not significant. As already noted, there is no evidence as to the value of the chattels to which the husband claims he was entitled and which he did not receive, nor is there any evidence as to the value of the chattels which he claims were damaged.
Then,
69The husband also sought “compensation” or “restitution” from the wife. The Court does not, in my view, have the power to make the orders sought. In any event, the husband’s purported claim appears to be based on:
…
(b)a claim that the wife had given her mother the sum of $47,000 from a payment received by the husband by virtue of his disability, with the amount now sought by the husband being calculated by applying compound interest of 18% per annum to that sum for the 14 years since the alleged payment. The wife’s evidence, which I accept, was that she gave no more than about $2000 from the sum in question to her mother, and that the balance was applied to the joint benefit of the parties and payment of joint liabilities;
…
Again, we are not persuaded that his Honour made any error in these findings.
In relation to Grounds 3 and 4, they also have no merit. They are a restatement of the orders that the husband sought at trial. His Honour addressed these claims in [69], and found that the court does not have the power to make the orders sought. Indeed, in [71] his Honour indicated that “even if the Court had power to make the orders sought by the husband, the evidence submitted does not support his claims”.
That leaves Grounds 13 – 17 inclusive, and the husband says that they are grounds that demonstrate that he was not afforded procedural fairness, or a “fair and impartial hearing”.

Ground 13 – the wife failed to file the IVRO cancellation document

It is apparent that the wife, through her lawyers at the time, failed to file this document when filing her response. However, as the husband himself confirms, he subsequently filed this document in 2016, and thus, if it was relevant for the purposes of the hearing before the primary judge, the husband has suffered no prejudice, or more specifically, he has not been denied procedural fairness.

Ground 14 – the wife failed to serve “Form 2 documents” upon the husband in order to allow him appropriate time to respond

A Form 2 document is an Application in a Case, and according to the court record, the last Application in a Case filed by the wife was on 7 June 2012. Thus, it is unclear what application or documentation the husband is referring to. It could be that he is referring to the wife’s failure to provide him with her most up to date Statement of Financial Circumstances prior to the trial listed for hearing in November 2017, however, this was remedied by an adjournment of that trial. Thus, once again the husband has failed to demonstrate that he was denied procedural fairness.

Ground 15 – the wife’s assertions that the husband “was not making much money was inaccurate and defamatory”

Plainly, this is a mere assertion and not a competent ground of appeal. It does not reveal any appealable error by the primary judge.

Ground 16

In summary, and doing the best that we can, the complaint by the husband is that he was “not allowed to object and could not have any ruling reversed until he went to trial”, in relation to his allegation before the presiding Magistrate that the wife had “stripped away” over three years of mortgage repayments from the husband’s wages.
It is readily apparent that this complaint is misconceived. Plainly the question of whether the wife had “stripped away” over three years of mortgage repayments from the husband’s wages, was a matter to be determined at trial, and not at an interim hearing. The primary judge addressed this claim at the hearing and found the evidence to be wanting. Again, no appealable error by the primary judge in this regard has been demonstrated.

Ground 17

The complaint here is that no evidence was produced to support the wife’s assertion made through her lawyer during the interim hearings that the husband was not working “for about four years”. Again, this relates to the interim hearings and forms no part of an appeal against orders made by the primary judge in July 2018. In any event, as can be seen from [53] his Honour dealt with the work history of the parties to the extent that his Honour needed to.
Finally in relation to the assertion that the husband was not afforded procedural fairness, it is useful to set out in full what his Honour said about the assistance that the primary judge gave to both parties in relation to the running of the trial before him, as follows:
34 The parties were both self-represented.
35At the hearing on 30 November 2017, when it was anticipated that the trial would proceed that day, I explained to both parties the sequence of events at trial, and the nature and effect of evidence in chief, cross-examination and re-examination. I explained to them the purpose of opening and closing statements and the importance of cross-examining on any matter relevant to an issue in the proceedings where there was a factual dispute.
36I explained the legislative requirements in relation to an application for alteration of property interests, including the need for the Court to be satisfied that the making of any order would be just and equitable in all the circumstances, the need for the Court to identify the existing legal and equitable interests of the parties in property, and relevant values if possible, and the need for an assessment both of their respective contributions and the prospective factors referred to in sub-s 79(4)(d) to (g) inclusive of the Act. I explained the need for those issues to be addressed both in evidence and submissions.
37I provided each party with a copy of ss 79 and 75(2) of the Act. I also confirmed that they had each received the handbooks produced by the Court for the assistance of self-represented litigants.
38At the status hearing on 17 November 2017, and again at the hearing on 30 November 2017, I explained to the parties that it was open to either of them to seek an order for the splitting of superannuation, but that such an order could not be made without the relevant trustee first being served and given the opportunity to be heard, and compliance with that process having been proven to the Court.
39As some months passed between the giving of those explanations to the parties and the eventual trial before me, at the status hearing on 15 June 2018, I provided each party with a copy of the transcript of the hearing on 30 November 2017, and directed their attention to the information I had provided to them at that time, recommending that they read that material carefully before the trial commenced.
40Given the nature of allegations raised by the husband, and some of the relief sought by him, I also explained the provisions and operation of s 11 of the Evidence Act 1906 (WA).
41I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties, and that they were both assisted by the Court in the presentation of their cases to the extent reasonably possible and appropriate.

From our review of the appeal record we share the primary judge’s satisfaction that both parties were afforded procedural fairness. There is no substance in the husband’s complaint.

Conclusion

Given that there is no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

The wife has not incurred any legal costs or disbursements in relation to the appeal, and thus there should be no order as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Duncanson JJ) delivered on 7 May 2019.

Legal Associate:

Date: 7 May 2019