Valasco & Pellam
[2021] FedCFamC1A 70
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Valasco & Pellam [2021] FedCFamC1A 70
Appeal from: Pellam & Valasco [2021] FCCA 988
Pellam & Valasco (No. 2) [2021] FCCA 1345
Appeal number(s): EAA 50 of 2021
EAA 75 of 2021File number(s): PAC 6127 of 2018 Judgment of: ALDRIDGE J Date of judgment: 19 November 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed applications seeking to set aside a warrant for possession and consent orders – Allegations of forgery – Whether adequate notice was given to the appellant of the issue of a warrant for possession – Alleged collusion – No error is established – Findings of fact were open on the evidence – Appellant conceded he received notice – Where the appeals have no possibility of success – Leave to appeal refused – Appeals dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: Carr v Finance Corporation of AustraliaLtd(No. 1) (1981) 147 CLR 246; [1981] HCA 20
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 69 Date of hearing: 3 September 2021 Place: Sydney (via video link) The Appellant: Self-represented litigant Solicitor for the Respondent: Matthews Dooley & Gibson ORDERS
EAA 50 of 2021
EAA 75 of 2021
PAC 6127 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR VALASCO
Appellant
AND: MS PELLAM
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 August 2021 is dismissed.
2.The application for leave to appeal the orders made by the primary judge on 14 May 2021 be dismissed.
3.The application for leave to appeal the orders made by the primary judge on 18 June 2021 be dismissed.
4.The appellant pay the respondent’s costs fixed in the sum of $6,880.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valasco & Pellam has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Valasco (“the appellant”) and Ms Pellam (“the respondent”) have been engaged in parenting and property proceedings in the Federal Circuit Court of Australia since 2018. On the 28 January 2020, a judge of the Federal Circuit Court made a suite of property settlement orders by consent (“the consent orders”).
On 23 December 2020, a writ of possession was issued to remove the appellant from a property subject of the consent orders so as to enable its sale pursuant to the consent orders. On 28 January 2021, he filed an application seeking to set aside the issue of the writ. By a further Application in a Case filed on 29 January 2021 the appellant sought to set aside the consent orders themselves. He was unsuccessful and both applications were dismissed on 14 May 2021.
Appeal No. EAA 50 of 2021 is against that dismissal.
On 2 June 2021, the appellant filed an Application in a Case seeking a stay of the orders made on 28 January 2020 pending determination of Appeal No. EAA 50 of 2021. The respondent did not oppose an order staying Order 1(e) of those orders (which provided for the distribution of the net proceeds of the sale of a property at Suburb C (“the Suburb C property”) to the lawyers for the respondent as to 65 per cent and the previous lawyers for the appellant as to 35 per cent). That order was an order that the net proceeds of sale be held in the trust account of the respondent’s solicitor pending determination of the appeal. The application was otherwise dismissed.
Appeal No. EAA 75 of 2021 is against those orders.
BACKGROUND
In order to understand the appeals it is necessary to set out some key facts which are taken from the reasons of the primary judge and which are not challenged on appeal.
The consent orders made on 28 January 2020 divided the parties’ property so that the respondent was to receive 65 per cent of the net proceeds of sale of the Suburb C property and the appellant 35 per cent. The parties’ share of the proceeds was to be paid to their lawyers in the first instance and not directly to them. Otherwise each party was to retain the assets in their possession. Importantly for the appeal, the orders provided for the wife’s credit card debts to be paid from the proceeds of sale before the division of the proceeds of sale.
The sale did not proceed smoothly. On 20 October 2020, the respondent sought an order requiring the appellant to leave and not to re-enter the Suburb C property so it could be sold. That order was made on 9 November 2020. The appellant did not attend that hearing.
On 11 December 2020 the respondent sought the issue of a warrant for possession of the Suburb C property and the forcible removal of the appellant from it. Those orders were made on 23 December 2020, again in the absence of the appellant.
On 28 January 2021 the appellant filed an Application in a Case seeking that the orders made on 23 December 2020 be reviewed and that a lawyer be appointed to represent the appellant.
On 29 January 2021 the appellant filed the application seeking to set aside the consent orders.
The consent orders which were given to the Court cover three pages. The appellant accepts that his signature appears on the last page, headed “Certification of Orders”, but denies that the signature or initials, which could be “…”, the appellant’s first name, which appear on the first two pages, were placed there by him.
At the time the orders were made, the appellant was represented by Mr B from G Law Firm. He appeared for the appellant at the time the orders were made. The appellant was also present in court.
In his affidavit filed on 29 January 2021, the appellant alleged that:
·Prior to a mediation which took place on 19 January 2020, Mr B advised him that, for the time being, only the Suburb C property should be the subject of settlement;
·At the mediation he agreed to a division of that property so that the respondent received 65 per cent and he received 35 per cent;
·At the hearing on 28 January 2020, the judge asked Mr B “why 20% of the sale proceeds from [his] portion shall go to [his] underage daughter” (paragraph 9);
·When he confronted Mr B after the hearing, Mr B denied that the presiding judge said such a thing;
·As the judge made the comment and because no such term was in the consent orders, they are not “authentic”; and
·He never agreed to an order that the respondent’s credit cards be paid out of the proceeds of sale of the Suburb C property prior to division.
The matter came before the primary judge on 15 February 2021 when it was adjourned to the following day. On that day the primary judge attempted to conduct the hearing by Microsoft Teams but came to the view that because of technical difficulties the hearing should be conducted in person. The matter was adjourned until 18 February 2021.
The appellant filed an affidavit on 17 February 2021 in which he alleged that:
·The orders of 28 January 2020 were obtained by the fraud of his lawyer, Mr B, for the reasons set out in his earlier affidavit and
·He never instructed his lawyer that he would agree to an order for the payment of the respondent’s credit cards or for her to retain the property in her possession.
At the hearing on 18 February 2021, the primary judge referred to the appellant’s allegations as to the comments made on 28 January 2020 as to the daughter receiving 20 per cent of the proceeds. His Honour had obtained the transcript which contained no such comment. It was read to the appellant.
The appellant was then given a copy of the signed orders. He said:
[THE APPELLANT]: … As from my knowledge, this sign is not mine and I haven’t signed anything on this kind of paper. I signed the paper that was on, like, handwriting and the clause page when we sitting with the mediator and that’s the last sign as far as my knowledge, your Honour.
(Transcript 18 February 2021, p.22 lines 32–35)
Some considerable discussion with the bench then ensued as to why the appellant did not raise this issue on 28 January 2020 when he was in Court with his lawyer. Further discussion revealed that the appellant accepted that it was his signature on the third page of the consent orders but disputed that he had signed the first two pages. He said that he only ever signed documents with his full name. None of this had been raised in his affidavits.
The primary judge returned to the question as to whether the judge had raised the question of the parties’ daughter. The appellant agreed he had been mistaken (Transcript 18 February 2021, p.21 line 28 to p.22 line 13).
The upshot was that the matter was again adjourned so that both parties could put on further evidence.
The appellant filed an affidavit on 24 February 2021 in which he alleged:
·The signatures on the first two pages of the consent orders, which appear to read “[the appellant’s first name]” were not placed there by him and are forgeries (paragraphs 3–4);
·His instructions were that he wished to keep the Suburb C property himself and purchase the respondent’s interest in it (paragraph 6) (the primary judge noted, however, that the first and second assertions were contrary to his earlier evidence (at [14]));
·Mr B defied the appellant’s instructions that the respondent’s credit cards were not to be paid out of the sale proceeds and she was not to keep the goods in her possession (paragraph 7) and
·Mr B lied to him when he told the appellant he would ask the Court for the division of “the sale proceeds of [the Suburb C property], jewellery and homeware” (paragraph 7).
In response, the respondent filed an affidavit from Mr B who said that the consent orders were not signed at a mediation. His evidence was that the appellant signed the consent orders at court in his presence and that of his colleague, Mr F. He then gave the signed document to the solicitor for the respondent. Mr F provided an affidavit to the same effect.
The matter returned to Court on 8 March 2021. The primary judge heard submissions from both parties and reserved his reasons.
The matter was relisted on 22 April 2021. It is a fair inference that the primary judge took this course so as to provide the appellant with the opportunity to cross-examine the respondent’s witnesses. The matter was adjourned to 30 April 2021 for that purpose.
On that day the appellant and the respondent’s witnesses were cross-examined.
The respondent’s lawyer denied that the proceedings had settled at a mediation in January 2021 (Transcript 30 April 2021, p.33 lines 13–33). He said that the agreement was reached on 28 January 2020 and that:
[THE APPELLANT]: … I remember seeing you with a group of lawyers. I think there may have been three, and, it appeared to me, that you were signing a document.
(Transcript 30 April 2021, p.35 lines 42–44)
Mr B and Mr F adhered to their affidavits. Each agreed that they had been the only two present at the time the document was signed.
His Honour gave extensive reasons (at [24]–[30] (noting [30] has 17 subparagraphs)) as to why he did not accept the appellant’s evidence. The primary judge found that the appellant had signed the consent orders and dismissed the application to set them aside.
THE APPEALS
Application in an Appeal
The appellant filed an Application in an Appeal on 26 August 2021 seeking the following orders:
1.That a handwriting expert be arranged to determine whether the signatures on the Consent Orders dated 28 January 2020 are genuine signatures of the Appellant Husband or not.
2.That the Appellant Husband is to provide authentic samples of his signatures for use by the handwriting expert.
3.That the video/audio recording of the hearing of PAC6127/2018 of the date 28 January 2020 heard by [the primary judge] be ordered from Auscript.
4.That the Appellant Husband to pay the costs of said video/audio recording.
5.That the evidence of contact between the Respondent and the former solicitor of the Appellant be allowed as fresh evidence.
6.That until further order compliance by the Appellant with the Family Law Rules relating to the making of affidavits be dispensed with.
It is not the court’s function to obtain evidence on the behalf of one of the parties. In any event, the appellant has had ample time to seek such evidence himself. Orders 1 and 2 will not be made.
Contrary to his admission to the primary judge, that he was mistaken about the judge who made the consent orders referring to a 20 per cent payment to the daughter, the appellant now maintains that it was said. It follows that the appellant asserts that the transcript does not reflect what was actually said and hence he wishes to obtain the audio recording of that hearing.
Auscript, who record the hearings and provide the transcripts of them, informed the appellant on 11 August 2021 that an audio of a family law hearing in the Federal Circuit Court can only be released with the prior approval of that Court. No such approval was sought.
It is true that the primary judge took into account, as a matter going to the acceptability of the appellant’s evidence, that he alleged that the conversation as to the daughter receiving 20 per cent did occur but accepted he was mistaken when confronted with the transcript. The assertion that the transcript was not accurate was not made to the primary judge. Had it been made, evidence could have been called on the issue and the audio obtained. It is therefore now too late to raise this allegation (Metwally v University of Wollongong (1985) 60 ALR 68; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418).
Orders 3 and 4 will not be made.
The appellant asserts that the respondent has been in frequent contact with Mr B and proffers a screenshot from his phone as proof (Appellant’s affidavit filed on 26 August 2021, Annexure “D”). It is not clear to me that it does so. In any event, contact between the appellant’s former solicitor, who gave evidence on the respondent’s case, does not, of itself, establish that the solicitor has or was acting inappropriately.
The application to adduce evidence will be dismissed.
Appeal No. EAA 50 of 2021
A refusal to set aside consent orders is an interlocutory order and leave to appeal is required (s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) (Carr v Finance Corporation of AustraliaLtd(No. 1) (1981) 147 CLR 246; Ebner & Pappas (2014) FLC 93-619). I shall return to the question of leave after discussing the merits of the appeal.
The appellant relies on 19 grounds of appeal. His Summary of Argument filed on 23 August 2021 in support of those is somewhat brief.
Of those grounds, Grounds 1, 2, 3, 6, 8, 9, 10, 11, 12 and 16 deal with the validity of the consent orders, Grounds 13, 17 and 18 challenge the finding that the appellant was given adequate notice of the writ of possession. Grounds 14 and 15 allege collusion between his former lawyers and the respondent’s lawyers and Grounds 4, 5 and 7 refer to the legal basis of his application. It is convenient to deal with them in those groups. Only the first two were the subject of written or oral submissions.
Ground 19 states that the appellant would argue other grounds of appeal at the hearing. The appellant did not and in any case this is not a valid ground of appeal.
Did the appellant consent to the orders made on 28 January 2020? (Grounds 1, 2, 3, 6, 8, 9, 10, 11, 12 and 16)
The primary judge was satisfied that there was no fraud on the part of Mr B, the appellant’s lawyer (at [29]). His Honour was satisfied that the appellant “initialled” the bottom pages of 1 and 2 of the consent orders and signed the “Certification of Orders”, that the appellant could read and understand the order and that they accorded with the instructions he had given to Mr B (at [30]).
In coming to that conclusion, the primary judge gave no weight to the appellant’s evidence for the reasons set out at [24]–[28].
Instead, his Honour accepted the evidence of Mr B and Mr F, which was supported by the evidence of Mr H. Weight was given to the fact that the appellant did not raise any allegations of forgery until 18 February 2021. His Honour also described the appellant’s assertion that on 28 January 2020 the Court raised the issue of 20 per cent of the net proceeds of sale of the Suburb C property going to the parties’ daughter, as “plainly incorrect” (at [30]).
It is convenient to deal with the appellant’s submissions as to the last point at this stage. As I have already noted, the appellant asserts that the transcript does not reflect what actually occurred. He submits that the primary judge erred by not listening to the audio recording itself and instead relying on the transcript (Ground 12). This ground asserts that such a request was made in the appellant’s affidavit sworn on 24 February 2021. It was not, as the 20 per cent payment is not referred to there. Rather, as the transcript of the hearing itself demonstrates, the appellant asked the primary judge to listen to the audio recording for a different purpose. He said:
7.My lawyer [Mr B] grossly defied my instructions by including the terms that [the respondent’s] credit card bills will be paid out of the sale proceeds and the [the respondent] has sole title in goods in the her possession in the Consent Order as I never agreed to those terms. He lied to me when he assured me that he would ask the court for the division of the sale proceeds of [the Suburb C property], jewellery and homeware. These are deliberate fraud on his part. If the Court may graciously be pleased to hear the audio tape of the Directions hearing of 28 January 2020 then my lawyer’s fraudulent submission will be proved and it will help secure justice.
(Appellant’s affidavit filed on 24 February 2021, paragraph 7) (As per the original)
In any event, the appellant did not explain how the transcript, which is prepared by an independent organisation from its own recording, could be altered in such a significant way.
The appellant relies on the following in his contention that the primary judge’s findings were wrongly made:
·The initials on pages 1 and 2 of the consent orders did not match the signature on the third page (Ground 1);
·The primary judge did not consider the discrepancy between the evidence of his lawyers and Mr H (the first said there were two people present when the appellant signed the document but the latter said there “may” have been three) (Transcript 30 April 2021, p.35 line 43) (Grounds 2 and 9);
·The primary judge failed to take into account the conflict of interest of Mr B. The conflict was said to be that he was to receive the appellant’s share of the proceeds of sale of the Suburb C property (Ground 3). It is true that they were to be paid to him, subject to his fees, not for his benefit but on behalf of the appellant;
·The appellant’s evidence was that he never agreed to a number of orders in the consent orders (Ground 6);
·The primary judge preferred the evidence of Mr B, Mr F and Mr H to that of the appellant even though their evidence was, in conflict (Ground 8, also see Ground 2 above);
·The primary judge erroneously took into account the appellant’s delay in discovering that he had not in fact signed the consent orders, because it is not a precondition to setting aside orders “that the party seeking to set aside the order exercised reasonable diligence to attempt to discover the fraud at the earliest instance” (Ground 10);
·The appellant successfully challenged the evidence of Mr B and Mr F in cross-examination. He did not say how he did so or refer to a relevant part of the transcript and no successful challenge is apparent to me (Ground 11); and
·That the primary judge wrongly gave weight to the fact that the appellant engaged a firm of solicitors in July 2020 to write to the respondent’s lawyers proposing that the consent orders be varied so that the appellant’s share of the proceeds would not be payable to Mr B (Ground 16).
The primary judge’s findings of fact were based on a wide range of circumstances as set out in the reasons for judgment. His Honour made those findings having seen all the relevant witnesses give evidence and be cross-examined. The matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable (Lee v Lee (2019) 266 CLR 129; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550). The findings were clearly open on the evidence (Edwards v Noble (1971) 125 CLR 296 at 304).
It follows that these grounds are not established.
Was the appellant given adequate notice of the application for the issue of a writ of possession? (Grounds 13, 17 and 18)
An employee of the respondent’s solicitor, Ms R, deposed in her affidavit filed on 17 December 2020, that on 11 December 2020 she sent the appellant a copy of the Application in a Case and the supporting affidavits filed on 9 December 2020 by registered post and to four email addresses used by the appellant.
In her affidavit filed on 9 December 2020, Ms R annexed an email from the appellant dated 18 November 2020, which was sent from one of those four email addresses. Ms R, on 16 November 2020, had sent the appellant a copy of the orders made on 9 November 2020, which required the appellant to leave the Suburb C property. The appellant’s response was:
Unfortunately, I did not understand what you exactly trying to say on your email. Your sounds looks like you want to rob my property and sale unlawfully, fraudulently. I believe you better know what is the present situation. Also I know very well what’s the lawful procedure., so my advice my advice to you stop fraudulent activists, do not wasting your time and mine asule. Just wait for next step regarding my property matters..please do not send me this type of meaningless email. If you can proceed your procedure..
(Ms R’s affidavit filed on 9 December 2020, Annexure “D”) (As per the original)
The appellant, in his affidavit filed on 28 January 2021, denied that he received the documents but proffered no explanation as to why that might have been so.
Nonetheless, the appellant submits that his email of 18 November 2020 “clearly demonstrates that he did not understand the nature, quality or content of [the] said email” (Ground 13).
In his Summary of Argument filed on 23 August 2021 at paragraph 10, the appellant said that the service of the documents sent on 11 December 2020 was not effective because he did not understand what he had been sent.
Thus, although in response to Ms R’s email of 16 November 2020 and not 11 December 2020, the appellant relies on that response to demonstrate, by inference, that he did not understand the later email. That carries an implicit admission, contrary to his evidence, that he did receive the documents.
In any event, the obligation on the respondent was to give the documents to the appellant, not to ensure that he understood them.
Ultimately, in the course of cross-examination, the appellant conceded that he received the email of 11 December 2020. He was therefore properly served.
There is no substance in Grounds 13, 17 and 18.
The alleged collusion of the lawyers (Grounds 14 and 15)
Ground 14 contends that Mr B had a conflict of interest because the appellant’s share of the sale proceeds were to be paid to him, yet Mr B gave evidence on behalf of the respondent.
As explained above, the consent orders do not permit Mr B to retain anything over and above whatever he might be entitled to retain. They merely provide that the orders would be complied with by payment to the parties’ lawyers rather than directly to the parties. The appellant agreed to this course when he signed the consent orders.
The fact that Mr B was called by the respondent to give evidence does not establish collusion of any kind.
Ground 15 asserts that because Mr B has frequently contacted the respondent, the solicitors for both parties have engaged in fraudulent conduct.
This submission is based on the proposed fresh evidence of the appellant. As it is not being received, this ground must fail. These grounds fail.
The remaining grounds (Grounds 4, 5 and 7)
The appellant could only succeed on his application to set aside the consent orders if he established fraud. He did not and the appeal against that finding does not succeed. Similarly, he failed to demonstrate that the orders of 23 December 2020 should be set aside because he had not been served with the application.
There is, therefore, no point in dealing with the grounds of appeal which assert that the primary judge was wrong when he said that the appellant did not identify the legal basis on which he relied, whether fraud, for relevant purposes, could indicate fraud by one’s own lawyer, or whether precedent was wrongly applied.
The appeal has no possibility of success and therefore leave to appeal will be refused.
Appeal No. EAA 75 of 2021
This appeal is against the refusal to stay the orders of 14 May 2021. These orders will remain in force as leave to appeal against them has been refused. It is now futile and will also be dismissed.
COSTS
The appeals have been wholly unsuccessful. In accordance with the direction of the registrar, the respondent produced a costs schedule claiming $6,880.30 which was, at the time of its preparation, pursuant to Sch 3 of the Family Law Rules 2004 (Cth) (now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)). The appellant did not challenge that figure.
In the circumstances, it is just that the appellant pay the respondent’s costs fixed in that sum.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 19 November 2021
0
8
0