WALLACE & JEFFREE - [2012] FamCAFC 131

FAMILY COURT OF AUSTRALIA

WALLACE & JEFFREE

[2012] FamCAFC 131

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the wife did not appear at the final hearing and the matter proceeded on an undefended basis – No appealable error established.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
Gronow v Gronow (1979) 144 CLR 513
Mallet v Mallet (1984) 156 CLR 605
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Ms Wallace

RESPONDENT:

Mr Jeffree

FILE NUMBER:

TVC

649

2007

FIRST APPEAL NUMBER:

2011

SECOND APPEAL NUMBER:

2011

DATE DELIVERED:

24 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace &
Murphy JJ

HEARING DATE:

31 May 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 July 2011

LOWER COURT MNC:

[2011] FMCAfam 653

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Waterman

SOLICITOR FOR THE APPELLANT:

Grace Law

COUNSEL FOR THE RESPONDENT:

Ms Mayes

SOLICITOR FOR THE RESPONDENT:

Roberts Nehmer McKee

Orders

That Appeal NA 60 of 2011 and Appeal NA 61 of 2011 be dismissed.
That the Application in an Appeal filed by the husband on 16 May 2011 be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Jeffree has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

First Appeal Number: NA 60 of 2011
Second Appeal Number: NA 61 of 2011
File Number: TVC 649 of 2007

Ms Wallace

Appellant

And

Mr Jeffree

Respondent

REASONS FOR JUDGMENT

Ms Wallace (“the wife”) appeals against property orders made by Coker FM on 1 July 2011 in determination of property proceedings between her and Mr Jeffree (“the husband”).
On 1 July 2011 the Federal Magistrate finally determined the property proceedings between the parties and made interim parenting orders in relation to the two children of the relationship, B (born in 2007) and D (born in 2008). The hearing was on 22 March 2011. The wife did not appear.
By Appeal NA 60 of 2011 the wife challenges the orders for property and spousal maintenance made on 1 July 2011. An amended notice of appeal in this regard was filed on 27 January 2012.
A second appeal (NA 61 of 2011) challenged an order made by the Federal Magistrate on 22 July 2011 that the wife vacate the property at X (“the X property”). That appeal was not pressed and it was undisputed that the wife had in fact left the property.

Background

It is necessary to set out some background both to the parties’ relationship and the procedural history of the matter to give context to the appeal.
The parties met in about February 2005. Some six months before being married in November 2005, the wife and her three children from previous relationships moved in to live with the husband in his home at X. They first separated in about February 2006.
Consent orders for property settlement were made on 12 April 2006. The orders provided that the wife would relinquish any interest she had in two properties owned by the husband (one of which was the X property) and his business, Y company. The orders required the husband to pay the wife $17,798 and further provided a list of household and like items to be retained by her.
In addition to the money required to be paid to the wife pursuant to the consent orders of 12 April 2006, the husband assisted her to relocate, paid her rental bond and six months rent in advance on a property in the same location as the parties had previously lived. She moved out of the area shortly afterwards.
In June 2006 the parties attempted reconciliation. They again separated and in May 2007 the wife brought an application for further property orders and for spousal maintenance. On 5 November 2007 consent orders were made which provided for the husband to pay $500 per week to the wife by way of spousal maintenance. The husband asserted that he had paid spousal maintenance of $500 per week from June 2007 before the making of the consent orders.
Up until the time of final separation in April 2010 the husband said that he and the wife attempted to reconcile on a number of occasions. It was during periods of resumed cohabitation that the children of the parties were conceived.
From June 2007 until December 2007 the husband paid $500 per week spousal maintenance to the wife. In December 2007 he reduced the payment to $340 per week and in June 2010 further reduced the payment to $200 per week. In addition to the payment of spousal maintenance, the husband paid the mortgage repayments and all outgoings on the X property in which the wife, the parties’ two children and the wife’s three other children were living. The husband further paid for his own accommodation in rented premises at $300 per week.
In September 2007 the husband purchased a boat and trailer. It was kept at the X property. It is undisputed that the wife removed the boat, sold it for $35,000 and spent the proceeds.

Procedural History

Pursuant to an application filed by the husband on 30 September 2010, the matter came before the Court on 11 October 2010. The application (although not included in the appeal books) related to the boat and trailer which, the husband alleged the wife had wrongfully removed from the X property and sold.
The wife appeared represented by a duty solicitor who sought an adjournment because, she said, the wife had been assaulted on the previous weekend and as a result was on “quite heavy medication such as valium” and, in the solicitor’s opinion not able to give adequate instructions. The application was stood in the list and on the resumption of the matter the wife appeared for herself.
In the course of hearing the application for adjournment, the Federal Magistrate asked the wife, “What do you say has happened with the boat? Where is it?” to which she replied:
[MS WALLACE]: I have sold the boat to recuperated (sic) money that was outstanding as [Mr Jeffree] had taken off with money that we had borrowed at the beginning of the year and we did a home equity loan.
The wife indicated to his Honour that she had evidence to support her use of the money from the boat but needed time to gather it together. The Federal Magistrate told the wife that she would need to produce her evidence to which the wife said:
[MS WALLACE]: I will have every receipt available, your Honour.
HIS HONOUR: Well, it will be attached to affidavits and sworn, etcetera.
[MS WALLACE]: Yes, it will.
The wife produced a medical certificate to support her application for an adjournment of that hearing. The husband’s counsel challenged her assertion that she was not capable of conducting the hearing and opposed the adjournment.
The Federal Magistrate granted an adjournment of the proceedings until 27 October 2010 and directed the wife to file any response to the husband’s application and affidavits by 4 pm on 22 October 2010.
When the matter was next before the Court on 27 October 2010, the wife was not present but was on a telephone communicating with the court room. It seems that the wife had sent a letter to the Court enclosing a medical certificate from a Dr M which indicated that she was not well and so her letter requested an adjournment. She had also arranged with the court registry to appear by telephone. The husband’s legal representative opposed the adjournment and the sufficiency of the medical certificate produced by the wife.
In the course of submissions on the application the husband’s legal representative raised the issue of whether the wife needed a litigation guardian appointed for her. This point was taken up by his Honour who said:
HIS HONOUR: …If [Ms Wallace] cannot represent herself, then there should be the appropriate application by another person to stand in her stead.
His Honour decided to grant the adjournment and said to the wife:
HIS HONOUR: …There are serious concerns obviously expressed. And at the moment, with the greatest respect to Dr [M], the report that you seek to rely upon, doesn’t satisfy me at all that you can’t attend to what’s required…
[MS WALLACE]: Well, your Honour, if you do need further medical evidence and a detailed letter, then I’m sure the doctor will be quite prepared to give that to you.
HIS HONOUR: I’m sure that the doctor will be able to when the request is made for that to be provided…
His Honour adjourned the hearing until 16 November 2010 and extended the time for the wife to file a response and affidavits to 4 pm on 12 November 2010. His Honour said:
HIS HONOUR: I will include a requirement that if there is no compliance with that direction, then that at that time, an application be required for the appointment of a legal personal representative. In other words, ma’am, if you are unable to represent yourself, someone else must do so in relation to these proceedings. I will further order that an affidavit be produced, either on behalf of the wife, or by the legal personal representative, addressing issues in relation to the injuries sustained by the wife, the continuing consequences of those injuries upon the wife, details of all medication and provision of information as to the future prognosis…
His Honour said to the wife:
HIS HONOUR: …But, ma’am, at the moment the letter from Dr [M] is thoroughly and entirely insufficient to satisfy me that there should be further delays in relation to these proceedings.
On 12 November 2010 the wife filed an application in which she sought the following order:
1. Apply that the Federal Magistrate Court of Australia make appointment a lawyer to represent the respondant. (errors as in original)
The wife also filed an affidavit on 12 November 2010 in which she said that she had been refused legal aid and, “…I am currently suffering chronic pain with my back and neck. My depression has become worse after the assault and [Mr Jeffree’s] emotional, mental and finacial (sic) abuse”.
On 16 November 2010 the wife filed a response to the husband’s initiating application and an affidavit to which was annexed several hundred pages of documents.
The matter was again before the Court on 16 November 2010. The wife appeared for herself. It seems that her application filed on 12 November 2010 represented her understanding of the Federal Magistrate’s remarks about a litigation guardian. She said that she had consulted lawyers who had advised her that they were unaware of the type of order to which his Honour referred.
However, the wife again asked for the matter to be adjourned citing medical problems.
Counsel for the husband opposed any further adjournment and sought, if the matter was to be adjourned, that his Honour make an order requiring the wife to cause the husband to be registered on the children’s birth certificates as the father and that the order for spousal maintenance of November 2007 be suspended.
In the course of considering the adjournment, the Federal Magistrate observed that the wife had said that she could and would account for the proceeds of sale of the boat but had not done so.
His Honour adjourned the hearing to 28 January 2011. His Honour made orders for the husband to spend time with the children and that the time be supervised. He also ordered the parties to attend on a Family Consultant on 15 December 2010 and an urgent report be prepared in relation to the children’s issues.
His Honour further ordered that the order of 5 November 2007 relating to spousal maintenance be stayed pending further order and further ordered:
8. That the Mother file and serve a Financial Statement detailing her current financial circumstances by 4.00pm on 17 December 2010.
9. That the Mother file and serve an Affidavit or other accounting of monies received by her from the sale of a… boat and trailer package… by 4.00pm on 17 December 2010.
The matter was before the Court again on 22 December 2010. The wife appeared. The husband’s representative complained that the wife had failed to comply with the most recent directions for filing of documents although observed that the wife had emailed to the solicitor’s office an incomplete and unsigned financial statement. He noted that she had failed to attend the child dispute conference on the nominated date.
The husband’s counsel sought that the matter be listed for an undefended hearing “…given that [Ms Wallace] has had several opportunities to comply with orders, has been ordered to file material on at least three separate occasions and has simply failed to do so…”
The wife said that she had been “…in touch with the solicitors…” and had been “…laid up in bed for two days with heavy medication for the pain…”
His Honour said:
HIS HONOUR: Ma’am, I’m going to give you one further opportunity to do that but I’m going to list this matter to proceed as an undefended hearing. [Mr Jeffree] is entitled to have his day in court and if, for whatever reason, you refuse or unable (sic) to participate in relation to the proceedings, then those refusals or inability will lead to the matter being heard. You will have some time to take some arrangements, as you have had months already, to take steps in relation to this matter. But what I intend to do is to list this matter for 11 am on 15 February 2011 to proceed as an undefended hearing.
The wife asked his Honour what he meant and he said:
HIS HONOUR: I will extend the previous directions with regard to the filing of any application, including an application for appointment of a legal personal representative to 4 pm on 7 February 2011. Ma’am, that will give you another six or nearly seven weeks to get your house in order but, ma’am, with the greatest respect, if you do not do it, an excuse of, “I forgot”, “I have been under the effects of Valium” or any other explanation in relation to failure to take appropriate steps or to have the assistance that you know, having been told about it, available to you will mean that this matter proceeds on 15 February 2011 as an undefended hearing.
On 28 January 2011 the wife filed a financial statement and on 11 February 2011 she filed an affidavit.
On 15 February 2011 the matter was again before the Court. A solicitor appeared for the wife. She sought an adjournment of the matter for two weeks because she had been recently instructed and said that it was likely she would want to file further material for the wife because, she said referring to the affidavit filed by the wife, “…that affidavit doesn’t appear to address all of the issues currently before the court…”
The adjournment was granted over the objections of counsel for the husband. The wife was ordered to pay the husband’s costs assessed at $2,785.
His Honour again extended the previous directions to the wife for the filing of documents to 4 pm on 11 March 2011 and said:
HIS HONOUR: …I will then adjourn the application to 2.30 pm on 22 March 2011 to proceed as either a contested application in relation to issues currently before the court, provided, however, that if there is non-compliance in any respect with the direction in relation to this matter, then that the husband, the father, have the opportunity to proceed on an undefended basis.
On 22 March 2011 the same solicitor appeared for the wife as had appeared on 15 February 2011. She sought leave to withdraw from the matter. She said:
MS JOHNSTON: And it’s my understanding that the respondent is not here today.
HIS HONOUR: Your client was here, I think, on the last occasion, 15 February, when the matter was here and it was adjourned to proceed for an interim hearing or on an undefended basis if there was non-compliance with the directions in any event. I take it you say she is aware of the requirement to be here today?
MS JOHNSTON: She is aware, your Honour. She was in my office earlier today, however, became extremely distressed and it has been extremely difficult to get in contact with her since.
Counsel for the husband said:
MR BETTS: …We had understood that the mother was in fact present somewhere in the building downstairs…
Counsel then made a reference to a man sitting in the court room.
His Honour inquired about the presence of that man. The solicitor for the wife said:
MS JOHNSTON: He is a friend of [Ms Wallace], or the respondent. He did make attempts to try and locate [Ms Wallace]. She was unable to be located and he stated that he wants to simply be here so that when he returns home he can advise her of what has happened in court, if he can locate her.
The matter then proceeded in the absence of the wife.
At the beginning of the hearing, counsel for the husband said to his Honour in referring to his written outline of argument:
MR BETTS: …Your Honour will see that I made the concession, in the written outline, that the mother had, albeit late and, I would submit, in a fairly unconvincing way, complied with your Honour’s orders, but then I probably would not have pressed your Honour for an undefended hearing if she had turned up simply because of the fact that she had filed that material. I would have pressed your Honour to proceed on an interim basis and set us down for a trial as soon as possible. The practical reality now, though, is she hasn’t turned up. So, your Honour, the only course I can ask for, your Honour is, particularly given that your Honour said last time it would proceed undefended if she breached the orders – a more fundamental breach than not turning up is hard to imagine…
During that hearing counsel for the husband tendered the wife’s affidavit of 11 February 2011.
At the conclusion of the hearing his Honour reserved his decision which was delivered on 1 July 2011. He ordered the parents to have on an interim basis equal shared parental responsibility of the children and that the children live with the wife. He made interim orders for the husband to spend time with the children and for that time to be supervised by Relationships Australia. The children’s issues were otherwise adjourned to 17 October 2011.
His Honour made the following final property orders:
(10) That the Federal Magistrates Court Orders dated 5 November 2007 be discharged.
(11) That the Orders made by consent on 12 April 2006 be discharged pursuant to section 79A of the Family Law Act 1974 (sic).
(12) That within 30 days the wife pay to the husband the sum of $27,750 as reimbursement of part of the sale proceeds of the… boat and trailer package…
(13) That the Husband otherwise retain sole right, title and interest in the following:
(a)Y company
(b)The property located at X, including all chattels located on the property as at April 2010;
(c)All property purchased by the husband since 12 April 2010;
(d)All other real and personal property of whatsoever nature and kind in his ownership, possession or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects; and
(e)All superannuation entitlements in his name.
(14) That the Wife otherwise retain sole right, title and interest in the following:
(a)Subject to any other order, all other real and personal property of whatsoever nature and kind in her ownership, possession or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects; and
(b)All superannuation entitlements in her name.
His Honour ordered that the husband indemnify the wife in relation to liabilities of the business and that the wife similarly indemnify the husband in relation to any of her liabilities.
Finally, his Honour declared that the husband had sole right, title and interest in the boat at the time it was removed by the wife.

The appeal referred only to the property orders.

The Federal Magistrate’s Reasons

His Honour first considered the husband’s application for parenting orders and observed that the amended application on which the husband relied sought substantially limited orders to those he had first sought in the initiating application. After considering the memorandum from the Family Consultant and the evidence (including that filed by the wife), his Honour came to the view that there was a benefit in the children having a relationship with both parents and proposed to make interim orders.
His Honour noted at [44] that the principal order sought by the wife in her response filed on 16 November 2010 was as follows:
1. Seek leave for further advise (sic), as legal aid has been denied and recover on medical grounds.
His Honour observed that the order sought was “all but incomprehensible”. His Honour further noted that it was “…not… clarified despite repeated directions to do so as well as noting the fact that the wife did have legal representation on all further occasions that there were appearances before the Court”.
His Honour noted that in the application the wife sought the following interim orders:
(1) Dismiss applicant’s application and seek leave to file further affidavits, amend response and materials subpoenas;
(2) Set aside 2006 orders under section 79A;
(3) Enforcement of Spousal Order of 2007 and payment of back-pay.
His Honour set out that the husband’s application in relation to property proceedings and spousal maintenance was as follows:
1. That the Federal Magistrates Court Orders dated 5 November 2007 be discharged.
2. That the Orders made by consent on 12 April 2006 be discharged pursuant to section 79A of the Family Law Act 1974 (sic).
3. That within 21 days the wife pay to the husband the sum of $35,000 as reimbursement of the sale proceeds of the… boat and trailer package… In default of this payment, a Declaration be made that the Husband held sole right, title and interest in the… boat and trailer package… at the time that it was removed from the husband’s property by the wife.
4. That the husband retain sole right, title and interest in the following:
i.     [Y company]
ii.    The property located at [X], including all chattels located on the property as at April 2010;
iii. All property purchased by the husband since 12 April 2010;
iv. All other real and personal property of whatsoever nature and kind in his ownership, possession or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects; and
v.    All superannuation entitlements in his name.
5. That the wife retain sole right, title and interest in the following:
i.     Subject to any other order, all other real and personal property of whatsoever nature and kind in her ownership, possession or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects; and
ii.    All superannuation entitlements in her name.
6. That within 30 days of the date of these Orders, the wife reimburse the husband the amount of $35,000 being the sale proceeds of the… boat and trailer package.
7. That the husband must do all things necessary to indemnify, and keep indemnified, the wife in respect of any and all liabilities held in his name or in the name of the business, [Y company].
8. That from the date of these Orders, the wife must do all things necessary to indemnify, and keep indemnified, the husband in respect of any and all liabilities held in the wife’s name.
9. That subject to any other order to the contrary, each party mutually releases the other from all debts or claims owing from one to the other.
10. Any further or other order deemed necessary by this Honourable Court.
11. That the Respondent pay the Applicant’s costs of and incidental to this Application.
His Honour accepted at [49] the submission made on behalf of the husband that two orders sought initially as interim orders ought to be made as final orders. His Honour there noted that he had granted leave for those orders to be included as final orders. They were as follows:
4. That, within 21 days, the wife vacate the former matrimonial home located at [X], and that the husband be granted exclusive use of the property.
5. That the property of the husband stored by the wife… be immediately returned to the husband.
Turning to the property orders, his Honour observed that final orders were made in April 2006 and noted that both parties sought (in various ways) to set those orders aside. His Honour concluded at [47] that it was a proper course to be adopted in this case, and that he would set aside the April 2006 orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).

The Boat

His Honour noted at [51] that despite the wife indicating that she could and would provide receipts for her expenditure of the money from the sale of the boat, she had not done so.
His Honour however said that the wife in fact filed an affidavit in which she set out the disposition of the money including an asserted payment of $3,500 commission to a person in relation to the sale. His Honour noted that this man had sworn an affidavit in which he denied receiving such money. His Honour accepted his evidence.
His Honour found:
55. …I am satisfied that the wife has inappropriately obtained title to the boat and has through her fraudulent statements, facilitated the sale of the boat which was not hers to sell.
His Honour then turned to the matters to be considered pursuant to ss 79(4) and 75(2) of the Act and the approach to be taken in determining an application under s 79.
His Honour considered how to quantify the parties’ assets. He recognised the difficulty he faced and said at [63], “The best that can perhaps be assessed in that regard is the details contained within the affidavit filed by the husband on 17 March 2011”.
Based on the assessments of value contained in that affidavit, his Honour found that the property of the parties was $180,000.
His Honour observed that the husband’s uncontested evidence was that the value of his assets at the date of cohabitation were in the order of $363,432 and, after a distribution of the proceeds of sale of one property to his former wife, the husband’s assets were valued in excess of $200,000. Accepting the husband’s assessment of the wife’s assets at the date of cohabitation as being less than $5,000, his Honour found at [65] that there was “…an enormous disparity between the contributions at the commencement of the relationship…” and that, at the end of the relationship, the pool of property of the parties was less than when the relationship commenced in 2005. He further commented at [66] that assets were “dissipated through the inappropriate actions of the wife”.
His Honour found at [67] that the receipt by the wife of the funds from the boat together with continued payments of spousal maintenance by the husband, his payment of outgoings on the property occupied by the wife and her children from previous relationships represented “very significant additional financial contributions made by the husband”.
His Honour concluded:
68. I am satisfied that the husband has made enormous contributions over and above those which would perhaps be more generally expected in relation to provision for children and that as a result of those contributions, there has been a real effect on his own capacity to meet his obligations and to operate his business. In fact, the evidence would appear to indicate that there have been sales effected of certain items of plant and equipment contained within the business, [Y company], as a direct result of the husband’s need for funds and the specific requirement that he should reduce his liabilities and other expenditure.
After noting that, although the parties married in 2005, there were significant periods of separation between the parties which meant that the total period of cohabitation was significantly less than five years, his Honour said:
70. The husband contributed significantly at the commencement of the relationship. He contributed financially I would find to a far greater extent than the wife did during the relationship but I make no negative finding in that regard, because it is clear that whilst the husband may have contributed more financially to the relationship during the time or times that they were together, he had the assistance of the wife in relation to the care of the household and the care of her children and subsequently the care of both [B] and [D]. I do not consider that it would be appropriate to make any adjustments in relation to the contributions made during the relationship.
His Honour weighed the husband’s post-separation contributions, payment of spousal maintenance and payments in respect of the property in which the wife and children were living against what he referred to as the “actions of the wife” in selling the boat and trailer and dissipating the funds which led to a reduction in the overall assets of the parties for distribution.
His Honour said:
73. When one looks therefore at the initial contribution, the contributions during the relationship and the contributions subsequent to final separation, including the issue of waste to which I have referred, it is clear that the percentage assessments in relation to each of the parties must be very significantly adjusted from that which would be presumed of an equal entitlement. In this instance, I am satisfied without any shadow of a doubt, that the appropriate adjustment in relation to property to be effected in relation to this matter would be an assessment of 95/5 in favour of the husband.
Turning to s 75(2) factors, his Honour said that as a result of the orders he was asked to make, the wife would have primary responsibility for the children. While noting that she was working, his Honour found that her health placed limitations on what she might be able to do. He considered that the husband retained the business which enabled him to earn income in the future. He also took into account the husband’s financial contribution to the children of the wife’s previous relationships.
His Honour said:
79. I am satisfied that whilst there may be some adjustment in that regard there would be a far greater effect to be looked at in relation to these proceedings as a result of the wife’s health and responsibilities for the care of [B] and [D], such that an adjustment in her favour should be made and whilst there is a balance to be looked at in relation to the proceedings, I am satisfied that should properly be credited to the wife in the percentage of 10 per cent in all the circumstances, such that the final entitlements of the parties would be 85/15 in favour of the husband.
His Honour then considered at [80] the pool of available assets and added the value of the boat back into that, coming to a total asset pool of $215,000. He found that 15 per cent of that would reflect a sum in the order of $32,250 to be received by the wife.
After taking into account the assets currently in the wife’s possession and the funds received by her from the boat sale, his Honour found at [82] that she had already received assets in the order of $60,000 and thus should pay to the husband the sum of $27,750.
In considering whether the proposed order was just and equitable, his Honour noted at [84] that the orders would pose a hardship on the wife but said:
84. In this instance, I am satisfied that whilst there will no doubt be hardship for the wife in relation to a repayment required to the husband, there needs to be a recognition of the fact that the issues of waste and more particularly the issues of what are nothing short of fraudulent behaviours on the part of the wife should not be rewarded by there being some adjustment because of difficulties caused to her, as a result of the dissipation of the assets of the parties.

The Appeal

Before dealing with the matters raised by the grounds of appeal, it is necessary to make a number of observations which are pertinent to the grounds and the premises underpinning them.
The fact that the wife was self-represented for at least part of the tortuous history leading to his Honour’s orders and that at one stage in the proceedings the Federal Magistrate suggested perhaps she could not adequately represent herself, leads this Court to scrutinise her claim of a denial of natural justice with particular care.
Errors said to relate to the trial process should be pleaded with care and particularity in the grounds of appeal. In this case, the ten grounds of appeal are discursive and difficult to understand. A good example is Ground 4 which contains 12 sub-grounds none of which elucidates the central challenge. That ground, and others like it, might be seen more as “general grounds of complaint” rather than properly particularised grounds of appeal.
The gravamen of Ground 4, and underlying much of the argument advanced in respect of the other grounds, is that in dealing with the matter and making final orders in the absence of the wife, the Federal Magistrate did not accord her natural justice and, in turn, that resulted in his Honour arriving at an unjust conclusion.
We will consider Ground 4 in due course but it, and other grounds in which it is asserted that the wife was not afforded procedural fairness, must be seen in the context of a very important factual background to which we have already referred but which bears summarising:
·    The wife was granted five adjournments over a period of approximately four months; the adjournments were granted despite the wife not having complied with directions or provided satisfactory evidence to the Court of why directions had not been complied with;
·    Adjournments were granted to the wife despite an earlier indication that further adjournments would not be given;
·    An adjournment was granted to the wife on 15 February 2011 over the objections of the husband and despite the Federal Magistrate having, on 22 December 2010, told the wife in very clear terms that non-compliance with his directions would result in “this matter proceed[ing] on 15 February 2011 as an undefended hearing”.
·    The wife had undertaken to the Court to provide receipts accounting for the disposition of the sale proceeds of the boat but failed to do so;
·    Despite being told in the plainest terms on 27 October 2010 that the medical evidence then offered by her as at least part of the reason for her non-compliance with directions was “thoroughly and entirely insufficient to satisfy me that there should be further delays in relation to these proceedings”, the wife produced no further medical evidence of any type. This is important because, for example, Grounds 2 and 3 proceed on the premise that the wife’s health was “seriously compromised”. There was no evidence before his Honour (despite his Honour specifically requesting it) that can found that contention.

Litigation Guardian

As the procedural history earlier outlined shows, during one of the numerous procedural hearings, on 27 October 2010, submissions were made by counsel for the husband to the effect that perhaps the wife needed a litigation guardian to be appointed for her:
MR BETTS: …But it’s pretty radical to be suggesting she has no capacity to properly litigate. She should be having a litigation guardian appointed if this is going to drag on any longer.
His Honour responded as quoted at [20] of these reasons. However, apart from this exchange, his Honour made no specific reference to a “litigation guardian” either during the proceedings or in his order.
Orders made on that date were to the effect that if the wife had not complied with directions for the filing of material by 4 pm on 12 November 2010:
…the [wife] file and serve an application for the appointment of a legal personal representative for the [wife], with any such application to be supported by an affidavit by either the [wife] or the legal personal representative for the [wife], addressing issues in relation to the injury sustained by the [wife], the continuing consequences of those injuries, details of all medication and providing information as to the future prognosis of the [wife].
The wife filed the application in a case referred to earlier in these reasons (at [24]). She also filed an affidavit supporting the application. Unsurprisingly that affidavit contains no reference to any matters that might be relevant to the appointment of a litigation guardian (or a “legal personal representative”). The wife told the Federal Magistrate on 16 November 2010 that she had consulted lawyers who had advised her that they were unaware of the type of order to which his Honour referred.
There is no reference to a “legal personal representative” in the Magistrates Court Rules 2001 (nor, it might be added, in the Family Law Rules 2004).
We consider it unfortunate that counsel’s comment was taken up by his Honour who then used the expression “legal personal representative” rather than the term referred to in the Rules. It is tolerably clear that a certain amount of confusion ensued, not the least of which was the wife’s apparent assumption from the Federal Magistrate’s comment that the Court could appoint a lawyer to represent her.
It is important to observe that, despite the infelicity of his Honour’s expression, it was never otherwise suggested that the wife lacked the necessary capacity to appear for herself. She filed a comprehensive affidavit on 16 November 2010 and had argued, successfully, for adjournments of the hearing. Most cogently, Ms Johnston who appeared for the wife on the day of the hearing and on the previous adjournment made no application for an adjournment, nor did she indicate to the Court that the wife was in any way under a disability.

Ground 1

This ground asserts:
1. The learned Federal Magistrate did not give adequate reasons for his decision and his failure to do so amounted to an error of law and the exercise of discretion by the Learned Federal Magistrate miscarried as a consequence.
The written argument in support of this ground is brief. It is asserted [written argument paragraph 3.7]:
The learned Federal Magistrate does not provide any adequate reasons discernable from his judgment to support a finding of 45% in favour of the Respondent based on post-separation contributions and in respect of the current income/liabilities based on his financial statement acted upon an erroneous assumption.
The law as to the adequacy of reasons is well established.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at page 279:
…without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
This Court applied Soulemezis in 1991 in the case of Bennett and Bennett (1991) FLC 92-191 where the Full Court said at page 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”

His Honour’s reasons for his determination are apparent from the judgment and we find no error.

Ground 2

This ground asserts:
2. The learned Federal Magistrate having been advised by the Wife’s then solicitor Ms Johnston that she sought leave to withdraw and “without divulging anything that might be of a privileged nature, indicated that she was without instructions” and that there were “also other reasons why she indicated that she would not be able to continue the represent the wife…”.
The learned Federal Magistrate erred:-
a) in finding that such discussions were “no doubt in relation to the requirements for filing of material, which were made on 15 February, 2011 and which were not complied with…” absent any such evidence and;
The learned Federal Magistrate further erred:-
a) in circumstances where the learned Federal Magistrate had been advised by the Wife’s then solicitor, Ms Johnston, that she (referring to the Wife) was distressed “and apparently left her office and thereafter, despite repeated attempts by Ms Johnston and a gentleman who was sitting at the back of the Court, apparently a friend of the wife’s, they were unable to draw a response from her…” and;
b) where the Family Consultant, Ms [T], noted on 16 March, 2011 that the wife:-
i)      “attended 25 minutes late for the appointment” and;
ii)      “appeared to walk slowly and with apparent discomfort and;
iii)    having departed to collect medication from her motor vehicle, it was noted that the wife requested water and;
iv)     was then observed to take approximately six to eight tablets, poured into her hand by her daughter, [E].” and;
v)      to have “difficulty in maintaining focus on the children, separate from her own needs or to speak specifically about issues relating to the children…” and;
vi)     further, having noted “[t]he mother’s health and well-being (eg. regularly incapacitated due to ongoing neck and back injuries; depression, PTSD) including dependence on prescribed medication (eg analgesics)…”
in failing to take into account or give sufficient weight to the evidence of Ms Johnston and Ms [T] in finding or inferring that the Wife’s non-compliance with the Orders made on 15 February, 2011 was occasioned by any wilful act of non-compliance of Orders when the evidence of the Family Consultant clearly demonstrated that the Wife’s health and demeanour was seriously compromised less than one week prior to the hearing date and on the hearing date. (errors as in original and footnotes omitted)
We agree that the Federal Magistrate’s comment, “no doubt in relation to the requirements for filing of material, which were made on 15 February 2011 and which were not complied with…” is speculation. However we consider this comment to be no more than a reference to the history of the matter and the number of opportunities the wife had been given to comply with relevant directions. The comment does not inform any of the findings made by his Honour which are challenged on appeal.No particular error was asserted to be contained in his Honour’s comment nor do we discern any error.
Some assistance in understanding what is meant by this ground is gleaned from the written argument.
The thrust of this ground appears to relate to the wife’s capacity to appear and take part in the proceedings. It was said in the written argument [page 3 paragraph 1.7]:
The Appellant contends that the learned Federal Magistrate erred in proceeding to determine the property settlement proceedings and discharge of spousal maintenance order on an undefended basis in circumstances where there was cogent evidence of the Appellant’s compromised functionability during the week prior to the hearing and on the day of hearing compounded by the withdrawal of the Appellant’s then solicitor.
It was argued that the observations of the Family Consultant contained in her memorandum relating to the wife’s attendance on 16 March 2011 indicated physical and emotional distress which, coupled with her solicitor’s comment that the wife had been “distressed” when in her office that morning, ought in some way to have indicated to the Federal Magistrate that the wife was not capable of appearing at the hearing.
First, we observe that the events of that day must be seen in the context of the history of the proceedings to which we have already referred. We note too that on the day of the hearing there was no application on behalf of the wife by her solicitor for an adjournment of the proceedings, nor was there any suggestion by the solicitor that the wife was otherwise unable or too unwell to attend the hearing and participate. We also observe that this same solicitor appeared for the wife on 15 February 2011.
Secondly, to the extent that the argument rests on information contained in the memorandum from the Family Consultant, the ground selectively quotes from it. True it is that the memorandum lists the wife’s health and dependence on prescription medication as issues for determination but, in our opinion, the memorandum when read as a whole falls far short of providing the substance for the submission that there was “cogent evidence” that the wife’s functioning was impaired on 16 March 2011.
The issue of the wife’s asserted ill health had been squarely in issue in the proceedings for some time. In adjourning the hearing on 27 October 2010, the Federal Magistrate ordered the wife to provide evidence of her medical condition and details of the medication prescribed for her. No such affidavit had been filed. The direction had been made in the context of the wife claiming an inability to attend court and comply with directions because of ill health.
It was asserted that his Honour ought to have inferred that the wife’s failure to comply with the orders of 15 February 2011 was not wilful but was because she was in someway compromised. There was no evidence before his Honour to that effect, it was not submitted by the solicitor who appeared for her and, in the context of her repeated failure to comply with directions for filing of affidavits, that his Honour did not draw that inference is entirely reasonable.

Ground 3

This ground asserts:
3. The learned Federal Magistrate further erred in placing undue weight upon the Wife being “present in the Court on 15 February 2011 when Orders were made in relation to the matter and the specific notation was given as to the requirement to attend at 9:00am on 15 March 2011…” in circumstances where the Mother’s health and demeanour appeared to be seriously compromised on 16 March, 2011 when interviewed by the Family Consultant and further in view of the evidence from the bar table given by the Wife’s then solicitor in respect of the Wife’s distressed state. (footnotes omitted)
This ground (as does ground 2) proceeds on a fundamental misunderstanding of the evidence before his Honour. It assumes as a fact that the wife’s health was “seriously compromised”. There was no evidence of that fact before his Honour and the wife’s bona fides in so claiming had been squarely raised on a number of occasions, resulting in his Honour ordering on 11 October 2010 that she file an affidavit from her medical practitioner setting out the details of her conditions and treatment. That was never done.
Otherwise we find this ground difficult to understand. It seems to us undisputed that on 15 February 2011 the wife was present in court and was represented. The date for the appointment with the Family Consultant was then set. The wife did not attend. She told the consultant that her solicitor had reminded her of the appointment. This was a matter that his Honour was entitled to take into account. However, other than a bare assertion that his Honour “placed undue weight on” that fact, there was no indication as to how that undue weight resulted in error.

Ground 4

This ground asserts:
4. The learned Federal Magistrate further erred in proceeding to hear the proceedings with respect to settlement of property/spousal maintenance by way of final hearing on an undefended basis in circumstances where:-
a)the Husband had filed a further Amended Initiating Application on 17 March, 2011 (two clear days) prior to the adjourned hearing date seeking substantially different Orders to those property/maintenance Orders referred to in his Initiating Application together with additional Interim Orders and;
b)the listing of such Application on 22 March, 2011 was non-compliant with the Rules of Court and/or did not afford the Wife procedural fairness in being able to respond to the Amended Application with respect to Final and Interim Property Orders.
c)the learned Federal Magistrate was not precluded “from proceeding by way of interim hearing” if there was “non-compliance by the respondent mother with the Orders herein” and;
d)notwithstanding paragraphs 4(a), (b) and (c) hereof the learned Federal Magistrate granted leave to the Husband to amend to include Orders 4 and 5 of the Interim Orders contained in the Amended Application filed 17 March 2011 to be sought as final orders without notice to the Wife on an ex parte basis without affording the Wife procedural fairness in being able to respond to the amendments sought.
e)it was not pressed by the Husband that final Orders should be made in respect of parenting matters which were the subject of serious allegations being made by both parents in respect of their parenting capacity and;
f)in particular, there being evidence of a complaint being made by the Wife to Queensland Police in respect of alleged “inappropriate dealings by the Husband with a child of a previous relationship of the wife’s, her child [Z]” and;
g)the parenting proceedings were not determined on a final basis and;
h)no directions had been made in relation to the valuation of the property pool and;
i)there was no admissible evidence in respect of the value of the property in issue that would have enabled the Court to identify the assets, liabilities and financial resources of the parties and attribute a value to all assets and consider the relevant s75(2) factors including the Wife’s spousal maintenance needs and make just and equitable orders between the parties and;
j)the Orders made in respect of settlement of property were manifestly outside a reasonable assessment of contribution based entitlements and s75(2) factors when the determination required the Wife to pay a sum of money absent any evidence of the capacity of the Wife to pay from her own entitlement apart from other relevant considerations;
k)the Order discharging the Wife’s spousal maintenance was made absent a consideration of the Wife’s needs, the stayed arrears and the Husband’s demonstrated capacity to pay;
l)The learned Federal Magistrate made credit findings based on untested evidence.
The learned Federal Magistrate in so proceeding did so clearly outside a reasonable exercise of the discretion.
The way this ground is expressed makes it almost impossible to determine exactly what complaint is being made.
It seems that the thrust of this ground (at least so far as appears from the written argument) [written argument paragraph 1.8] is that the Federal Magistrate denied the wife procedural fairness by hearing the matter to finality “on an undefended basis” and by permitting the husband to rely on an amended application filed by him on 17 March 2011. It was asserted that this amended application was “substantially different” to that previously filed.
We reject the assertion that the document was “substantially different”. The only amendment of significance reflected the position, well understood, that the wife had taken and sold the husband’s boat and kept the $35,000 proceeds. In fact, from the outset, the proceedings before his Honour had focussed on this. The wife had asserted that she had spent the money on joint debts and had indicated a willingness to account for the money. She had been directed to file an affidavit in that regard attaching receipts. That had not been done although she purported to account for the expenditure of the money, unsupported by evidence, in an affidavit.
Further, although the wife had filed a response to the husband’s initiating application in which she sought no final orders, and despite being ordered to do so on a number of occasions, she never filed a response to the husband’s application filed in February 2011 which was amended by the application filed on 17 March 2011.
Again, we note that no application for adjournment was made on the wife’s behalf by her solicitor on the day of the hearing. She took no point before his Honour that the wife was disadvantaged by the filing of the amended application.
Although it was asserted (and apparently accepted as being correct) that the wife was not personally served with this amended application, it was not suggested that the document had not been served on the solicitor then appearing for her.
It was not specified in argument how the amendments contained in the amended application filed on 17 March 2011 worked any unfairness on the wife. Simply that the application was filed, with leave, outside the time provided for filing of such applications does not of itself point to procedural unfairness in this instance.
In the context of this matter as understood by his Honour, the number of adjournments granted by him to the wife coupled with directions for filing affidavits which were largely not complied with, it would have represented a significant unfairness on the husband were the matter to have been adjourned again with the prospect that no further action would be taken by the wife. We find no error in his Honour’s approach.
During oral argument it was submitted that in fact his Honour was wrong to proceed with the hearing in the absence of the wife because the conditions precedent to having an undefended hearing were not met. It was said that the orders of 15 February 2011 had been complied with and so the matter ought not to have been heard.
The orders of 15 February 2011 provided (so far as relevant to this appeal) as follows:
2. That the directions made on 16 November 2010 and 22 December 2010 relating to the Respondent Mother be extended to 4.00pm on 11 March 2011.
…
4. That the matter be adjourned to 2.30pm on 22 March 2011 to proceed for interim hearing or on an undefended basis if there is non-compliance by the Respondent Mother with the Orders herein.
(emphasis as in original)
On 16 November 2010 the Federal Magistrate made the following orders:
…
8. That the Mother file and serve a Financial Statement detailing her current financial circumstances by 4.00pm on 17 December 2010.
9. That the Mother file and serve an Affidavit or other accounting of monies received by her from the sale of a… boat and trailer package… by 4.00pm on 17 December 2010.
On 22 December 2010 an order was made extending the time for compliance with the directions for filing made on 16 November 2010 to 4 pm on 7 February 2011.
On 16 November 2010 the wife filed an affidavit of more than 300 pages, comprising of mostly annexed documents; on 28 January 2011 she filed a financial statement; and on 11 February 2011 she filed an affidavit.
It was argued that the wife felt secure in not appearing on 22 March 2011 because she knew that she had complied with the directions and thus there could be no undefended hearing.
There was not a scrap of evidence to support this submission and we reject it.
Having regard to the documents filed by the wife it could hardly be said that she had properly attended to her obligations imposed by the orders. In our view, the Federal Magistrate was entirely correct to proceed to a determination of the matter in the wife’s absence.
It is not to the point, as was argued in this appeal, to say that the wife was denied procedural fairness because the matter was heard in her absence when she chose not to appear.
As Kirby J said in Allesch v Maunz (2000) 203 CLR 172 at [35], speaking of the principle to afford a hearing:
35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made…
However, at [38] and [39], his Honour said:
38. …it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39. Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought. (footnotes omitted)
We find no error in the Federal Magistrate’s approach.
In the tranche of complaints contained within this ground, it is asserted that his Honour erred in not ordering valuations of the property of the parties. No authority was cited to support the suggestion that property must be the subject of valuation. The husband’s documents clearly assert values to the property held by him from time to time. It was always open to the wife to challenge those asserted valuations, assert her own assessment of value or obtain a valuation. She did none of those things. No application (as can be discerned from the filed materials and the transcripts in the appeal books) was made by her or on her behalf for such a valuation. She cannot now cavil with the approach taken by his Honour.
Equally, it is asserted that his Honour erred in making orders for property settlement between the parties without evidence of the wife’s financial circumstances. It is further argued that his Honour erred in discharging the order for spousal maintenance without first assessing whether the wife had a need for such an order.
The wife filed a financial statement. It is woefully incomplete.
In the financial statement filed by the wife (which, according to the transcript, was different from the document emailed to the husband’s solicitors), the wife asserts a “total salary or wages before tax” of $944 per week which, seemingly, was comprised of a “parenting payment” of $309, “family tax” of $309 and child support of $262, $30 and $34 paid by the fathers of her other children. No income from work is disclosed although it seemed at least from indications from the wife during the court hearings that she had employment of some type. In the document, she discloses “total income tax” of $944 per week. The document asserts a total personal weekly expenditure of $1300 per week. The wife discloses total liabilities of $10,254, the majority of which relate to unpaid school fees for a child for whom the husband has no financial responsibility. In the part of the document in which the wife is called upon to detail her weekly expenses, she makes no provision for the needs of the children.
It is against this background that it was argued the Federal Magistrate ought to have found that the wife had a need for spousal maintenance, that the husband had the means to pay it and that to discharge the spousal maintenance order was in error. It was argued that the Federal Magistrate ought to have inferred that the wife’s financial needs had not changed from the date on which the husband consented to the spousal maintenance order in 2007.

At least from 15 February 2011 until 22 March 2011 the wife was represented by Ms Johnston. Had the wife desired, she could have put proper evidence before his Honour of her finances. She did not do so. She had been ordered on a number of occasions to provide proper evidence. That finally when the matter proceeded, his Honour did not have her evidence, does not now enable her to complain of appealable error.
Also contained in this umbrella ground of appeal is asserted error in that the Federal Magistrate made credit findings on untested evidence.
In oral argument we were directed to his Honour’s findings about the circumstances of the sale of the boat.
At [53] and following of the reasons, his Honour said:
53. The wife did not have the authority to do so says the husband, and she has acted fraudulently and inappropriately in relation to such steps. The evidence also given by the subsequent purchaser of the… boat and trailer [Mr L] and also by [Mr J] would indicate that the wife mislead them as to the circumstances under which she had the boat in her possession or control and in fact has been untruthful in much that she has said, with regard to the moneys received from the boat and its disposition.
54. In particular, whilst there is only limited material filed by the wife, she in fact did file an affidavit which set out what she said was a tracing of the moneys received by her from the sale of the boat and its subsequent disposition. Specifically, she refers to a payment of a commission to [Mr J] of $3500 which is categorically denied by him. Mr [J] was not required obviously in relation to these proceedings and I accept his evidence in that regard.
55. I similarly accept the evidence of Mr [L] in relation to this matter and to the fact that moneys were paid to the wife for the purchase of the boat and that they were paid in cash. I am satisfied that the wife has inappropriately obtained title to the boat and has through her fraudulent statements, facilitated the sale of the boat which was not hers to sell. (errors as in original)
Mr J’s affidavit was filed on 27 October 2010 and that of Mr L on 9 February 2011.
On 12 November 2010 the wife filed a very brief affidavit in which she claims she had been refused legal aid and was suffering ill health. She filed another affidavit on 16 November 2010. This affidavit and the voluminous annexed documents comprise two of the appeal books. In the affidavit, the wife refers to the boat and the circumstances in which she came to sell it. She claims that Mr J’s account of their dealings is false.
On 7 January 2011 the wife swore an affidavit in which she set out how she spent the money received from the sale of the boat received from Mr L. She does not challenge Mr L’s evidence.
The evidence of Mr J to whom his Honour referred was not otherwise challenged by the wife.
His Honour’s credit findings are not to be considered in a vacuum. The wife had agreed that she had taken and sold the boat and had not accounted to the husband for the proceeds. She had asserted that she used the proceeds, in part, to repay debts of the parties, yet the accounting in her affidavit made no reference to any debt of the parties. His Honour formed a view as to the wife’s honesty based on her undisputed actions with the boat. It was not suggested that his Honour was in error in those findings. That he preferred the evidence of witnesses who provided affidavits to the Court is hardly surprising in the circumstances.
We find no merit in this asserted error or any other of the complaints raised in Ground 4.

Ground 5

This ground asserts:
5. The overall division of property between the parties of 95% to the Husband and 5% to the Wife, or expressed in dollar terms as to $204,250.00 to the Husband and as to $10,750.00 to the Wife was clearly outside a reasonable exercise of the discretion in circumstances where the learned Federal Magistrate in assessing contributions did “not consider that it would be appropriate to make any adjustments in relation to the contributions made during the relationship”; and the adjustment made in favour of the Husband of 45% or in dollar terms $96,750.00 was based on post-separation contributions including the Wife’s use of funds and the learned Federal Magistrate did not provide any adequate reasons discernible from the judgment to support such a finding. (footnotes omitted)
Before considering the ground, it is useful to set out here the unchallenged facts before his Honour which were that:
·    the husband had made the overwhelming financial contribution to the marriage at its commencement;
·    at the date of the parties’ final separation the value of the assets brought into the marriage were significantly diminished;
·    the relationship constituted some 19 or 20 months of cohabitation;
·    the husband had provided significant funds to the wife after their separations and
·    the wife had sold the husband’s boat for $35,000 and retained the proceeds.
·    despite undertaking to do so, the wife failed properly to account for the disposition of those proceeds.
This ground appears to relate to his Honour’s reasons at [73] in which he said:
73. …it is clear that the percentage assessments in relation to each of the parties must be very significantly adjusted from that which would be presumed of an equal entitlement…
No reference was made to this paragraph in the oral argument. However the appellant’s written argument [paragraph 3.7] asserts that the post-separation contributions of the husband sounded in a 45 per cent adjustment to him because it assumes that his Honour found the contributions of the parties during cohabitation to be equal and then made a further adjustment in the husband’s favour to reflect the post-separation contributions.
If, by this phrase in [73], his Honour was saying that there is a presumption of equal entitlement between the parties or that the Court should proceed from any such assumption or “starting point”, it is clearly wrong in law (see Mallet v Mallet (1984) 156 CLR 605).
We are not persuaded that his Honour did indeed proceed upon such a presumption that the contributions were equal or used that as a starting point as a close reading of his reasons on the question of contributions demonstrates.
The matters we have set our earlier together with a consideration of the evidence as a whole leads us to the conclusion that his Honour’s result falls entirely within the proper ambit of his Honour’s discretion.
It was argued [paragraph 3.3 of the written argument] that his Honour’s order for property settlement was not just and equitable because, when considering the post-separation contributions by the husband, the Federal Magistrate found that these contributions had had an effect on the husband’s capacity to meet his obligations in his business.
This was said to be in error because the husband’s filed financial statement demonstrated an excess of income over expenditure. While that appears to be correct, his Honour had before him the husband’s affidavit sworn on 8 February 2011 in which he deposed to the payments he made to or on behalf of the wife following separation and said:
At the time of the 2007 Orders, my business was thriving and I was earning a considerable income. In the last 2 years however, my business has steadily declined and I have been forced to sell off assets to avoid bankruptcy.
He further said [paragraph 41] that, using the X property as security, he raised a loan to “avoid certain bankruptcy”.
We understand the thrust of this ground of appeal to be that the Federal Magistrate’s discretion miscarried in his assessment of the s 79 contributions of the husband and the wife.
This Court, in reference to numerous High Court and Full Court decisions has continually emphasised that the assessment of contributions is quintessentially an exercise of discretion. In order to demonstrate appealable error, an appellant must satisfy the Court that the Federal Magistrate was “plainly wrong, his decision being no proper exercise of his judicial discretion”.
The wife has not pointed to any matter that persuades us that his Honour’s discretion miscarried.

Ground 6

This ground asserts:
6.The learned Federal Magistrate erred in making a s75(2) adjustment of 10% in favour of the Wife or in dollar terms $21,500 of the property pool in circumstances where such an adjustment was manifestly inadequate and outside a reasonable exercise of the discretion in circumstances where:-
(a) The Wife was the unchallenged primary carer of the 2 children of the marriage aged but 3 and 4 years respectively;
(b) The Wife’s health and responsibilities for the care of the children impacted upon her earning capacity;
(c) The Wife was not in employment and reliant upon Centrelink payments;
(d) The Wife had significant responsibilities and costs in the ongoing care of the children of the marriage; and
(e) The Husband was not paying spousal maintenance.
In the written argument it was asserted that the effect of the 10 per cent adjustment made by his Honour was rendered nugatory by reason of the subsequent payment of $27,500 by the wife to the husband to reflect money already had by her from the sale of the boat and from her retention of other assets of the parties.
While it is asserted in the ground of appeal that the wife was not working, that submission does not accord with the evidence before his Honour or his Honour’s unchallenged finding of fact that the wife was working, although his Honour took into account, to the extent possible given the paucity of evidence provided by the wife, that her health placed “…limitations on what work might be able to be done…” (at [76] of the reasons).
His Honour took into account the matters to which the ground of appeal referred in determining what adjustment to make having regard to the s 75(2) matters to which he referred in his reasons.
Again, the determination of this matter was one calling for the exercise of discretion. Nothing was raised in the appeal that supports the asserted error in the exercise of that discretion.
It is true that the net effect of his Honour’s consideration of contributions was that the wife was required to make a payment to the husband to give effect to that determination. In oral argument it was submitted that the effect of the orders was to leave the wife with no money. It was argued for the husband that this, of itself, would not justify any other order if there was no error in the exercise of discretion. We agree with that submission. His Honour, mindful of the need to “step back” and consider the effect of the proposed division of property and whether the proposed order was just and equitable, did so at [84] and [85] where he said:
84. In this instance, I am satisfied that whilst there will no doubt be hardship for the wife in relation to a repayment required to the husband, there needs to be a recognition of the fact that the issues of waste and more particularly the issues of what are nothing short of fraudulent behaviours on the part of the wife should not be rewarded by there being some adjustment because of difficulties caused to her, as a result of the dissipation of the assets of the parties.
85. It is appropriate that there should be an order made and in any event I am satisfied that it could properly be considered that there be some form of setoff over time in relation to the moneys owed by the wife to the husband, as a result of the orders made here. The orders that I intend to make in relation to the matter therefore are generally a reflection of those that are sought by the husband.
No error has been demonstrated by this ground of appeal.

Ground 7

This ground asserts:
7. The learned Federal Magistrate in discharging the order for spousal maintenance in circumstances where the Wife had established need and the Husband had demonstrated capacity to pay erred in discharging the order and otherwise the Learned Federal Magistrate did not provide any reasons or any adequate reasons discernible from the judgment to support such an order being made.
The order providing for the payment of spousal maintenance had been stayed by the Federal Magistrate’s order of 16 November 2010. No final order for the payment of spousal maintenance was sought by the wife, although in a response to the husband’s application of 16 November 2010 the wife sought an interim order for “Enforcement of Spousal Order of 2007 and payment of back-pay”. In coming to a determination of the property issues, his Honour took into account that the wife was working albeit constrained by her health issues. His Honour also had before him the wife’s financial affidavit.
It is clear from a reading of his Honour’s reasons and the affidavits before him that he was intending to effect finality of financial matters between the parties. His purport is sufficiently clear and we see no error in his Honour’s approach. We observe that had the wife intended to seek a final spousal maintenance order, she had ample opportunity afforded to her to file such evidence as would support it. She did not.

Ground 8

This ground asserts:
8.The learned Federal Magistrate erred in making an order for the wife to pay the Husband the sum of $27,500 within 30 days in circumstances where:-
(a) The learned Federal Magistrate found that the wife “simply dissipated without any explanation of an acceptable nature whatsoever, those funds”… “leading to a significant reduction as I have said in the assets for distribution between the parties.”
(b) The learned Federal Magistrate added back in to the asset pool the sale price of the… boat and trailer;
(c) The learned Federal Magistrate having found that the sum of $35,000.00 had been dissipated by the Wife made an order for the payment of that sum from a source of funds that the learned Federal Magistrate had in effect found did not exist;
(d) The learned Federal Magistrate having made a contribution-based adjustment of 45% in favour of the husband to give effect to an overall 95/5% contribution-based entitlement in favour of the Husband (“including the issue of waste”) then in effect “double counted” the value of the… boat and trailer proceeds in adding the sum of $35,000.00 back into the asset pool, allocating the sum of $35,000.00 against the Wife’s 15% entitlement and then making an order for the Wife to pay the Husband the sum of $27,750.00 (footnotes omitted)
The point of this ground as appears from the written argument is that his Honour “double counted” the value of the boat and trailer. We do not accept this argument.
As can be seen, his Honour correctly identified at [63] the assets available for division between the parties which included assets then held by the wife amounting to some $38,000. To that total asset pool of $180,000, his Honour included at [80] the $35,000 obtained and retained by the wife on the sale of the boat and trailer. His Honour thus found the pool of assets of the parties then to be $215,000. He continued:
81. If the wife were then to receive 15 per cent, she would receive a total of $32,250 from the pool, but it is clear that she has already received $35,000 from the sale of the boat, as well as the retention of her motor vehicle and other personal items, as well as perhaps the retention of at least some items of the household contents at the [X property].
His Honour estimated at [82] that, taking into account the items retained by her as well as the money from the sale of the boat, the wife had received about $60,000 of the parties’ assets. In order to bring her entitlement in line with that his Honour found it to be, it required her to repay $27,750 to the husband in order that she retain $32,250.
His Honour did not “double count” as asserted and we find no error in his approach.

Ground 9

This ground asserts:
9. The learned Federal Magistrate having recognised that “there will no doubt be hardship for the Wife in relation to a repayment required to the Husband” and then referred to a “form of setoff over time in relation to the monies owed” proceeded to make an order for payment within 30 days, without providing any reasons or any adequate reasons discernible from the judgment to support such an order being made.
His Honour was obliged to bring finality to this matter. That was especially acute given the extraordinary delays occasioned by the wife’s recalcitrance in complying with procedural orders and being ready so that the husband’s application could be heard. While his Honour clearly recognised that the wife would have difficulty in making the ordered payment and might seek some form of “set off”, it seems to us that, if the wife sought that set off, it was for her to make an application. His Honour’s order for a 30 day payment was, in our view, entirely appropriate in the circumstances of the case and did not represent error.

Ground 10

This ground asserts:
10. The learned Federal Magistrate’s determination of an overall 85%/15% apportionment of the parties’ property in favour of the Husband falls outside a reasonable exercise of discretion pursuant to s79 and is plainly wrong and manifestly unjust.
As we have made clear, we find no error of the exercise of his Honour’s discretion in this matter.
The appeal therefore fails and we will dismiss both appeals (NA 60 of 2011 and NA 61 of 2011).

Application for Further Evidence

The husband filed an application on 16 May 2011 in which he sought to introduce further evidence in the appeal. The evidence was to the effect that, although the wife had vacated the X property, she had so damaged and dirtied the property that the husband would be put to considerable expense to repair and clean the property.
As we have already noted, the wife’s appeal against the order requiring her to vacate the property was not pressed. Counsel for the husband argued that the further evidence would buttress the Federal Magistrate’s findings about the wife’s waste of assets. It was further argued that, although the wife had moved out of the property, the husband continued to maintain the mortgage payments while paying rent and, through her conduct, incurred additional expense.
In light of our determination of the appeal, we do not propose to admit the further evidence and will dismiss the application.

Costs

As is usual, we sought submissions from both parties as to costs to save further time and expense in making submissions once the appeal was determined.
The husband sought an order for costs should the appeal be unsuccessful.
Whether a costs order is to be made depends on a consideration of the matters referred to in s 117(2) of the Act.
Any order for costs against the wife was opposed on the basis that she was impecunious.
The husband argued that this Court could infer that the wife had the ability to meet a costs order because her finances as disclosed to the Court were unclear and she had counsel appearing for her on this appeal which, it was argued, spoke of her having some financial resources. While, as we have observed, the wife’s affidavit as to her finances was inadequate, it would not be safe for us to make an inference of her finances from that or indeed from the fact that she was represented by counsel.
But for a consideration of the wife’s financial circumstances, this is a case in which she should properly be ordered to bear the husband’s costs.
In all of the circumstances of this matter, although the husband has undoubtedly been exposed to the costs of responding to the wife’s wholly unsuccessful appeal, her financial circumstances are such that it would not be appropriate to order her to pay the husband’s costs. It should be said that, other than her lack of capacity, we would not hesitate to order her to pay the husband’s costs.
We note that on 15 February 2011 the wife was ordered to pay the husband’s costs fixed in the sum of $2,785. She appealed that order and on 20 June 2011 May J dismissed the appeal and ordered her to pay the husband’s costs of the appeal which were fixed at $3,000.

As a result we will not make a costs order in favour of the husband.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 24 August 2012.

Associate:

Date: 24 August 2012