WARD & PAINTER-WARD
[2013] FamCAFC 154
FAMILY COURT OF AUSTRALIA
| WARD & PAINTER-WARD | [2013] FamCAFC 154 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband seeks to appeal final property settlement orders of the Federal Magistrate (as she then was) made 30 March 2012 – where the wife opposes the appeal – where the husband seeks to appeal all orders made – where many of the husband’s grounds of appeal are misconceived – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the husband seeks to adduce further evidence in relation to bank deposit slips and timeshare records – where the wife seeks that the application be struck out – where it is not appropriate for the court to exercise the discretion in favour of admitting the further evidence – application dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the wife sought an order for costs against the husband in the event that the appeal was unsuccessful – where it is taken that the husband opposes such application – where there are orders which justify an order for costs being made – where costs should follow the event – husband to pay the wife’s costs of and incidental to the appeal on a party/party basis with such costs to be as assessed in default of agreement. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth)
| Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 |
| APPELLANT: | Mr Ward |
| RESPONDENT: | Ms Painter-Ward |
| FILE NUMBER: | MLC | 2470 | of | 2011 |
| APPEAL NUMBER: | SOA | 35 | of | 2012 |
| DATE DELIVERED: | 8 October 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 March 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 245 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Lewis Holdway Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Potter |
Orders
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal on a party/party basis with such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ward & Painter-Ward has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 35 of 2012
File Number: MLC 2470 of 2011
| Mr Ward |
Appellant
And
| Ms Painter-Ward |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 29 October 2012 Mr Ward (“the husband”) appeals against property settlement orders made in these proceedings by Federal Magistrate Hartnett, as she then was, on 30 March 2012. The wife in the appeal is Ms Painter-Ward (“the wife”) and she opposes the appeal. The husband appeared without legal representation at the hearing of the appeal but the wife was represented by counsel.
On 31 October 2012 the husband filed an application in an appeal, together with an affidavit in support, seeking to adduce further evidence on the hearing of the appeal. I will address this application later in these reasons.
As a result of the husband’s failure to file and serve his summary of argument by the close of business on 2 November 2012, as ordered by me at the hearing on 24 September 2012, I called the matter on for directions on 19 November 2012. At that hearing the wife’s solicitor advised that she had received an unsealed copy of the husband’s summary of argument and list of authorities. The husband alleged that Registry staff had provided him with an incorrect email address, via letter or email, and he had sent his documents to that email address in error.
Partway through that directions hearing, the telephone connection to the husband was lost and could not be reconnected. I made orders that the husband file his summary of argument and list of authorities forthwith, extended the time for the wife to file and serve her summary of argument and list of authorities, a response to the husband’s application to lead further evidence together with a supporting affidavit, and any application to lead further evidence, with service upon the husband to take place by email. I also ordered that at the hearing of the appeal the husband provide the court with a copy of the letter or email he said he received which contained the incorrect email address, and that he forthwith file a Notice of Address for Service in compliance with r 8.05 of the Family Law Rules 2004 (Cth) (“the Rules”).
The husband did not file a Notice of Address for Service as ordered on
19 November 2013, and he was unable to produce the letter or email which specified the email address as the address to use for the filing of his summary of argument and the like.
Background
At the time of the hearing before her Honour the husband was aged 67 years, and the wife was aged 57 years.
Since 14 December 2009 the husband has been in receipt of an aged pension and says that his health is poor. His evidence at trial was that he was employed part-time by various employers, including having entered into a consultancy agreement with WH Pty Ltd on 25 February 2009.
The wife is employed as a senior sales consultant and apart from a depressive disorder says her health is good.
There are no children of the relationship, but the husband has three adult children from a previous marriage.
At the commencement of cohabitation in 1982 neither party had assets of any significance.
In 1985 the wife accepted a transfer in her employment to Sydney and the husband followed her. Initially he relied on the financial support of the wife but eventually gained employment in the building industry.
On 29 December 1988 the parties moved to W and commenced operation of a catering and provisioning business. Unfortunately the pilots’ dispute that year affected the business to the extent that it ceased trading at Christmas 1989, and the parties entered into voluntary bankruptcy in 1990.
The parties relocated to C where they lived for approximately one year. The wife was employed during this time but the husband remained mostly or entirely unemployed.
In approximately 1991 the parties moved to Brisbane. They were both successful in gaining employment as contractors to NH.
In or around 1993 the husband lost his position with NH and obtained employment with a builder and his wife with whom the parties eventually went into business forming the business AH.
In 1996 the parties became bankrupts on the petition of a major supplier to AH as a result, they allege, of their business partners misappropriating business funds.
The parties separated for a time with the wife moving to Melbourne where she obtained employment with company O. Her employment was terminated after a period of approximately four to six months and she received a payout of $20,000. The wife found other employment and the husband moved to Melbourne and they reconciled. The husband too found employment.
In 1999 the wife suffered ill-health and she resigned from her job and did not work for a period of approximately four to six months.
In about May 2000 the wife commenced working for SH, where the husband also worked.
In about 2001 the parties purchased the property they were renting at
S for the sum of $245,000 with a mortgage through the National Australia Bank.
In 2002 the parties purchased Property A as an investment property in the wife’s sole name. Rental income from this property was paid into the husband’s Bendigo Bank account. These payments were then transferred to a line of credit account with any shortfall between rent and interest due made up from the joint funds of the parties in the husband’s Bendigo Bank account.
In late 2002 SH terminated the parties’ employment. The wife then commenced employment as a sales representative with HH. The husband obtained a position selling investment property but left this position, asserting that he was never paid what he earned, and he also commenced work with AH.
In 2002 the wife was successful in obtaining a transfer to Queensland to be near her elderly parents. She started work with NH, a company which was part of the same group as AH, and resided in rental accommodation. The husband continued to reside in Melbourne in the parties’ S property.
In October 2004 the S property was sold for $350,000 and the husband joined the wife in Brisbane.
In November 2004 the parties purchased a property at P and security for the line of credit was transferred to this property.
In December 2004 the parties married in a civil ceremony on the Gold Coast.
The wife began employment with another company, GH and in March 2005 the husband also obtained a position with them.
In May 2005 the wife commenced working with DH as a sales consultant.
The parties separated on 26 May 2005 when the wife left the former matrimonial home at P and moved to Brisbane to live with her brother. The husband remained living in the former matrimonial home and still does so.
The wife moved from Brisbane to the Gold Coast for work, and then returned to Melbourne to be with friends and family, where she obtained a position with SH. Upon her return to Melbourne the wife terminated the tenancy on
Property A and she took up residence there.
The reasons for judgment of the Federal Magistrate
Her Honour commenced her reasons for judgment by setting out the documents the parties relied upon at trial.
Her Honour then found the pool of assets to be as follows:
Assets
a)The Property A with an agreed value of $470,000.
b)The property at P with an agreed value of $375,000.
c)The husband’s Range Rover motor vehicle with an agreed value of $8,000.
d)The wife’s Volvo motor vehicle with no or negative equity.
e)The parties’ joint interest in WR with an agreed value of $20,000.
f)The husband’s Telstra shares with an agreed value of $1,400.
g)The chattels in the possession of each party.
Liabilities
a)A mortgage of $241,419.83 secured over Property A.
b)A mortgage of $241,390.82 secured over the property at P.
c)The wife’s Australian Taxation Office debt of $142,078.65, but noting that the husband asserts the debt is a lesser figure.
d)The wife’s credit card debts of approximately $60,000.
e)The husband’s alleged judgment debts totalling $68,868, but noting that the husband presented no evidence to the court in relation to these debts.
Superannuation
a)The wife’s superannuation valued at approximately $45,000.
b)The husband has no superannuation entitlements.
In addition, there was the husband’s claim for various debts owed to him by the wife.
Her Honour then set out the background of the parties, finding their contributions to be equal at the commencement of their relationship and remaining approximately equal up to the date of their separation.
After setting out the assets, liabilities and superannuation of the parties at separation, her Honour set out the amounts the husband said the wife owed him, namely:
a)$930.05 per month for the period 21 June 2005 to 21 May 2007 in respect of the Volvo motor vehicle. The wife who had retained this motor vehicle took over these payments from October 2007.
b)$13,891.33 for payment of the WR timeshares, which total amount was automatically debited to the husband’s Visa credit card up to and including 22 March 2009 when the wife took over the payments. Her Honour did not accept this claim and noted that the husband provided no “corroborative proof” of the same.
c)$942.53 for the wife’s medical insurance payments and $695.04 for her Optus mobile telephone monthly repayments both payments being automatically debited to his Visa credit card.
d)For the period 26 May 2005 until 22 January 2006 the husband says that the wife ran up a total of $16,560.02 in debits to his Visa credit card using her access card and this only stopped when her access card expired.
e)The husband claimed that the wife continued to access his Bendigo Bank account up until 27 May 2006. She deposited her commission payments from DH into that account, totalling $11,193.80. However, she withdrew $12,933 more than she deposited.
f)The husband says that the wife also withdrew $1,968.62 from his National Australia Bank account prior to 27 May 2006.
Her Honour noted that the husband instituted proceedings in the Magistrates Court of Queensland to recover the monies he alleged were owed to him by the wife in the total sum of $108,954.15, which sum included interest and costs. The wife defended the proceedings and the husband withdrew them.
Her Honour then addressed the parties’ finances at the time of separation and following, and in the end result found that it was the husband who owed the wife money.
With regard to the income of each of the parties her Honour found that the wife provided the husband and the court with full details of her income earned, and all of her banking documents. She had also lodged her taxation returns and as at the date of the hearing she had a debt owing to the taxation department in the sum of $145,000 which she was paying off in instalments of $1,000 per month. In contrast the husband had not lodged taxation returns since well before separation and her Honour found that he had not made full and frank disclosure of his income. Her Honour was able to find though that “[t]he husband has sufficient income to support himself in a relatively comfortable lifestyle”.
Her Honour found that since separation the wife had made the bulk of the repayments off the lines of credit secured over the P and A properties, despite the husband residing in the former. There had been an increase in the combined debit balance of the lines of credit since separation, but her Honour found that that balance “would have been far greater had the wife not made the financial contributions that she has, in particular since 2007”. Her Honour then said this:
48.… The husband has failed to make regular contributions toward the line of credits from separation and has transferred money from one line of credit to the other line of credit, therefore not changing the parties’ debt position. It is only very occasionally that the husband has made any repayment toward the line of credit of the properties. In September 2011, the wife obtained an order that the husband pay the monthly debt associated with the home in which he resided.
Her Honour found that in all the wife contributed $145,232.40 to the lines of credit and the husband the sum of $30,074.30.
Her Honour found that “[t]he husband’s behaviour has contributed to [the wife’s] financial plight.” The wife was required to place a “freeze” over the lines of credit because when she deposited money the husband would withdraw that money and sometimes more for his own use.
Her Honour recorded that since occupying the A property the wife “has spent monies in the maintenance of, and improvements to the property.” However, her Honour was unable to quantify any increase in value as a result.
The husband’s case to her Honour was that the wife’s personal expenditure was extravagant whilst refusing to pay him what he alleged she owed him. He claimed that the wife’s refusal to pay “her personal debts to him has caused him considerable hardship”. Indeed, he sheeted home all his “current financial ailments” to the wife and said that the proceedings “could have been avoided had the wife had agreed to repay the debts that she owed [him] when first requested”.
In his response filed on 13 March 2012 the husband set out the orders that he sought from the court. They comprised 14 in number extending over three pages. As to these orders her Honour said this:
54.The orders sought by the husband are not just and equitable; they are oppressive and cannot be made. Although the husband does not seek this in his orders sought, in paragraph 274 of his affidavit affirmed 8 March 2012, the husband says:
“That my wife be ordered to pay a monthly support sum of $1500 to enable me to retain my home and maintain a basic standard of living in my old age.”
The husband has shown no perspective in these proceedings. He has been harassing and obsessive and in so doing has been oppressive to the wife. …
55.The husband has no capacity, on his own evidence, to retain the [P] property and meet its liabilities. The wife will not be released by the mortgagee and cannot be held in such a financial relationship with the husband. He has already caused her considerable financial loss.
Her Honour found that the wife’s superannuation had been “accumulated in two periods of separation”, and although the husband had made no contribution to this the wife’s interest must still be taken into account “as part of the property pool and pursuant to s.75(2) of [the Act]”.
Her Honour then found that “since separation the wife’s contribution to the retention and maintenance of the parties’ assets considerably exceeds that of the husband”, and the orders must “acknowledge this preservation of the asset pool by the wife.”
Her Honour then concluded as follows:
57.… In the exercise of my discretion I consider an apportionment to the wife of 80% of the net proceeds is just and equitable in the circumstances of this case. This, together with retention of her superannuation entitlements will produce orders which are just and equitable in all the circumstances of this case.
The orders made 30 March 2012
The Federal Magistrate made the following orders:
1.The respondent husband, within 90 days hereof, lodge with the Australian Taxation Office each and every one of his taxation returns which remain outstanding and include for the years ended
30 June 2006 to the year ended 30 June 2011, together with the taxation returns of any business and/or company operated by him and provide proof of same to the wife’s solicitors. In the event of non-compliance with this order the Court will give consideration to referring this matter to the Commissioner of Taxation.2.Forthwith the property located at [P] in the State of Queensland being the whole of the land more particularly described in Certificate of Title with title reference …….. (‘[P] property’) be placed on the real estate market for sale with an agent to be as determined by the wife and in the State of Queensland and with an auction to be held in no more than two months upon such terms and conditions, including reserve price, as are agreed between the parties and in default of written agreement within 14 days hereof, then on terms, conditions and at a reserve price as shall be nominated by the president (for the time being) of the REIQ and the proceeds derived from the sale be applied as follows:
a.first, to pay all costs, commissions and expenses of the sale;
b.second, to discharge the line of credit to the National Australia Bank with BSB …, account number … (‘[P] line of credit’);
c.third, to pay the net proceeds of sale as to:
i.the husband 50% but out of the husband’s share and before being paid out to him is to come any amount not paid by him pursuant to the orders made by the Court on 14 September 2011 being order number 1 and pursuant to these orders and such monies shall be paid to the wife together with interest on same in the sum of 10% per annum calculated from the date of default until the date of payment; and
ii.the wife 50%.
3.Pending the sale of the [P] property:
a.the husband be entitled to solely occupy the [P] property;
b.the husband be solely responsible for all rates and taxes and like apportionable outgoings of the [P] property as they fall due;
c.the husband be solely responsible for all repayments on the line of credit owing to the National Australia Bank secured against the [P] property with reference number BSB …, account number … ([P] property line of credit);
d.neither party is to encumber the [P] property without the consent in writing of the other party;
e.the husband ensure that, at all times, the [P] property is kept in a marketable and presentable condition; and
f.the husband ensure that he make the [P] property available at all reasonable times as requested by the appointed selling agent.
4.Forthwith the property located at [A] in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume .., Folio … (‘[A] property’) be placed on the real estate market for sale, with the wife to appoint a real estate agent and with an auction to be held in no more than two months upon such terms and conditions, including reserve price, as are agreed between the parties and in default of written agreement within 14 days hereof, then on terms, conditions and at a reserve price as shall be nominated by the president (for the time being) of the REIV and the proceeds derived from the sale be applied as follows:
a.firstly, to pay all costs, commissions and expenses of the sale;
b. secondly, to discharge the line of credit to the National Australia Bank with BSB …, account number … (‘the [A] line of credit’);
c. thirdly, to the wife 80%; and
d. fourthly, to the husband 20%.
5.Pending the sale of the [A] property:
a.the wife be entitled to solely occupy the [A] property;
b.the wife be solely responsible for all rates and taxes and like apportionable outgoings of the [A] property as they fall due;
c.the wife be solely responsible for all repayments on the line of credit owing to the National Australia Bank secured against the [A] property with reference number BSB …, account number … (‘[A] property line of credit’);
d.neither party is to encumber the [A] property without the consent in writing of the other party first obtained;
e.the wife ensure that at all times, the [A] property is kept in a marketable and presentable condition; and
f.the wife ensure that she make the [A] property available at all reasonable times as requested by the appointed selling agent.
6.By consent, within 14 days of the date of these orders, the parties contemporaneously do the following:
a. the husband do all such acts and things required to transfer his right, title and interest in the [WR] credits to the wife; and
b. the wife do all such acts and things required to discharge the husband from the lease held over the [WR] credits.
7.The wife retain all of her property absolutely, to the exclusion of the husband, and the husband relinquish any entitlement to the wife’s property as follows:
a.her individual bank accounts;
b.any chattels in her possession;
c.her superannuation balance; and
d.her Volvo motor vehicle.
8. The husband retain all of his property absolutely, to the exclusion of the wife, and the wife relinquish any entitlement to the husband’s property as follows:
a. his individual bank accounts;
b. any chattels in his possession;
c. his Range Rover; and
d. his Telstra shares.
9.By consent, the wife indemnify the husband from all and any taxation liability owing by her to the Australian Taxation Office and being past, present and future.
10.The husband indemnify the wife from any liability pursuant to court judgments entered against him in the past, present and the future and further indemnify the wife against all and any taxation liability owing by him to the Australian Taxation Office and being past, present and future.
11.The parties each retain sole responsibility for all credit card debts and personal loans held in their individual names and indemnify the other party from any such debt.
12.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
a.each party shall be solely entitled, to the exclusion of the other, to all property, including choses in action, in the possession of such party as at this date;
b.money standing to the credit of either the wife or the husband in any bank, building society or investment account shall be the property of the account holder;
c.all insurance policies shall be the sole property of the owner named therein;
d.each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
e.each party shall be solely liable for and indemnity [sic] the other in respect of their individual debts; and
f.any joint tenancy of the parties in any property, real or personal, is hereby severed.
13.There is liberty to the wife to apply with respect to the question of costs and the payment of her legal costs, in part or in their entirety by the husband.
14.Pursuant to s.81 of the Family Law Act 1975 (Cth) the parties intend these orders shall, as far as practicable, finally determine the financial relationships between them and avoid further proceedings between them.
The husband appeals against all orders.
The grounds of appeal
The husband set out his grounds of appeal in his Amended Notice of Appeal filed on 29 October 2012 as follows:
1.That the Magistrate was wrong in Fact and in Law
2.That the Magistrate allowed the [wife’s] lawyers to file and serve documents that were served out of time and containing new claims and allegations, to be used in evidence against the [husband] and for which the [husband] had no opportunity to obtain evidence in rebuttal.
3.That the Magistrate erred in not allowing the [husband] leave to obtain that evidence upon his return to Brisbane that would have enabled him to refute the [wife’s] false claims.
4.That the [wife] gave False Evidence to the Court which contributed to a Miscarriage of Justice.
5.That the Magistrate gave credence to the [wife’s] word over documented evidence filed by the [husband] with the Court.
6.That the Magistrate erred when she stated that the [husband] had not provided any evidence of a debt over the [husband’s] motor vehicle at the end of the relationship.
6A.That the Magistrate erred when accepting the [wife’s] word that the [husband] had full access to the [WR] timeshares during the period from May 2005 until March 2012.
7.That the Magistrate erred in accepting the word of the [wife] that she had been making regular payments into the [husband’s] bank accounts in repayment of her debts which the [wife] incurred in the [husband’s] name after the date of separation.
8.That the Magistrate erred by excluding the [wife] from being responsible for 50% of the debt on the [husband’s] credit card at the time of separation.
9.That the Magistrate erred in excluding the [wife’s] superannuation from the property pool of the parties.
10.That the Magistrate erred in assessing that the [husband] had provided Discovery very late in the proceedings.
11.That the Magistrate erred in deeming that the [wife] had contributed more to the preservation of the parties’ assets than the [husband].
12.That the Magistrate erred in assessing that some of the [wife’s] debt had been indirectly caused by the [husband].
Plainly, it is difficult to address these grounds of appeal given they mostly comprise general assertions and provide little relevant detail. I attempted unsuccessfully at the hearing of the appeal to have the husband appreciate the nature of an appeal and the need for properly drawn grounds of appeal. Unfortunately, the husband professed to have no understanding of the nature of an appeal and he determined to proceed on the basis that the appeal hearing was an opportunity to re-run his case rather than demonstrate appealable errors (if there were any) by the Federal Magistrate.
This approach by the husband can be seen by the first order that he sought in the appeal, namely:
1.That the Decision of the Magistrate delivered on the 30th March 2012 be reviewed to provide a fairer and more equitable outcome.
As to the other orders sought by the husband in the appeal I do not propose to set them out, but I note that apart from the first order there were other orders such as order 4 which would not be made by an appeal court. Order 4 in summary sought that the wife’s “false statements” in her affidavit, her financial statements, and in her oral evidence “be referred to the appropriate Authority for further investigation”. I proceed on the basis though that if successful the husband seeks that the orders be set aside, and the discretion be re-exercised rather than the matter be remitted for rehearing to the Federal Circuit Court.
To return to the grounds of appeal, I will not be addressing Grounds 1, 4 or 5. Ground 1 is simply far too general and it is impossible to address; Ground 4 does not allege any error by the Federal Magistrate; and Ground 5 is a mere assertion and provides no detail of any error by the Federal Magistrate.
I also observe that to compound the difficulties arising from the inadequate grounds of appeal, the husband’s written summary of argument did not comply with the Rules, and it not only failed to address the grounds of appeal but went way beyond those grounds.
In the summary the husband nominates a number of paragraphs from
her Honour’s reasons for judgment and suggests that the findings contained therein are wrong. He does attempt to identify where in his material the alleged error by the Federal Magistrate is demonstrated, but it is plain that this was not put to the Federal Magistrate during the trial, and this is just another attempt by the husband to re-run that trial in this court. I also observe that much of the material to which the husband now refers comprises schedules prepared by him without producing all of the source material, and as such, even if admissible, carries little weight.
These inadequacies led to the hearing of the appeal taking far longer than it needed to, and rendered the court’s task in attempting to understand the husband’s complaints and address them appropriately far more difficult than it should have been.
However, it was not only the husband’s written summary of argument which was inadequate. The written outline of the wife was also of little assistance in determining this appeal. It comprised an extensive narrative which also failed to comply with the Rules. The grounds of appeal were not specifically addressed and the submissions included unnecessary and irrelevant material, some of which also arose after the making of the orders the subject of the appeal.
Application to adduce further evidence
On 31 October 2012 the husband filed an application to adduce further evidence.
On 28 November 2012 the wife filed a Response seeking that that application be struck out.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. The law in relation to adducing further evidence on appeal is well settled. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. McHugh, Gummow and Callinan JJ said as follows:
109One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the husband to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
116The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The evidence sought to be adduced is described by the husband as being “Bendigo Bank deposit slips” which “expose and refute the False Evidence” given by the wife at trial, and “booking confirmation records” for timeshares which show that the husband could not have availed himself of the use of the timeshares as the wife claimed before the Federal Magistrate.
The husband filed an affidavit in support of this application but he failed to annexe thereto the actual evidence that he sought to lead. Fortunately, he did annexe the Bendigo Bank deposit slips to his first draft appeal index filed on
23 May 2012, and thus I had access to them. However, the “booking confirmation records” were not attached to the draft appeal index and thus it is impossible for this court to make any assessment of whether that further evidence should be received.
Turning then to the bank deposit slips. The husband says that they indicate that the wife’s claim in her affidavit of 13 March 2012 that she had deposited approximately $40,000 in the husband’s Bendigo Bank account was “false”, and that demonstrates that the Federal Magistrate erred in her finding in paragraph 41 of her reasons for judgment that “[f]ollowing separation (and until 8 July 2007) the wife deposited payments of her income into the husband’s Bendigo Bank accounts totalling some $38,903 approximately. Such monies were to be applied by the husband toward joint matrimonial debt and expenditure”.
However, I am not prepared to receive this further evidence for the following reasons:
a)The deposit slips are not evidence of anything more than a deposit of a specific amount being made on a particular date into a bank account. There is no evidence of who made the deposit or the source of the funds. Thus, even if the deposit slips were received into evidence I do not consider that they demonstrate error by the Federal Magistrate.
b)The husband claims that none of this further evidence was available at the time of the trial. However, the husband conceded that the deposit slips were in his possession and had always been in his possession, but he did not bring them with him to the hearing.
As will be seen, when addressing Grounds 2 and 3, I find that the husband was on notice that there was an issue about what deposits had been made by the wife into his bank account, and he had ample time to present all relevant evidence touching on this issue. Yet, he did not discover the deposit slips, and to repeat, he did not bring them with him to the hearing.
In these circumstances, it would not be appropriate to exercise the discretion of the court in favour of admitting this further evidence and I propose to dismiss the application.
Discussion
Grounds 2 and 3
The complaint here relates to the fact that the Federal Magistrate permitted the wife to rely on an affidavit filed on the day before the commencement of the trial.
The affidavit was an affidavit sworn on 13 March 2012 and served on the husband on that day. The husband says that he had “no opportunity” to present evidence in response to the content of that affidavit”.
There were two particular aspects of the affidavit that the husband was concerned about and they were the wife’s claim that she had made a number of deposits into the husband’s Bendigo Bank account following separation totalling approximately $40,000, and the wife’s claim that the husband had the ability to use the timeshare credits that the parties had, but he chose not to.
In relation to the first issue the husband says that he made the deposits and not the wife, but, to repeat, he says he was not able to establish that to her Honour because of the lateness of the affidavit.
Her Honour dealt with this issue in paragraph 42 of her reasons for judgment where she said this:
The husband complained about the late filing of the wife’s affidavit sworn 13 March 2012. That affidavit was a response to the affidavit of the husband sworn 8 March 2012, the husband’s affidavit replying to the earlier affidavit of the wife filed on 25 March 2011 – almost one year earlier. The husband had ample time to address the matters raised by the wife in the proceedings and in particular address the question of the wife’s deposits into his Bendigo Bank accounts he having sole control and access to those accounts and their history during the proceedings. I note he provided discovery with respect thereto very late in the proceedings. The wife raised in her affidavit sworn 18 July 2011 and that sworn
13 September 2011 her claim to have deposited funds into the husband’s Bendigo Bank account following separation for payment of her car loan and other expenses. The husband was on notice and not denied procedural fairness.The relevant sequence of events that emerges from the affidavits of the parties that were before her Honour is as follows:
a)The wife filed her affidavit of evidence-in-chief on 25 March 2011. In that affidavit the wife deposed generally to the financial history of the parties including since separation, but she did not specifically allege that she had made deposits into the husband’s Bendigo Bank accounts.
b)In an affidavit filed by the husband on 9 June 2011 he deposed to the wife paying a total of $7,000 into his “Bendigo account” (paragraph 1(viii)).
c)In paragraph 15 of her affidavit filed on 18 July 2011 the wife denied the husband’s allegation in paragraph 1(viii) of his affidavit and deposed that from her calculations she had made payments of $21,247.35 into the husband’s account since separation.
d)In paragraph 11 of her affidavit filed on 13 September 2011 the wife deposed that following separation she placed some of her income into the husband’s Bendigo Bank account.
e)The husband filed his affidavit of evidence-in-chief on 8 March 2012, less than one week before the commencement of the trial. In this affidavit the husband responded to and dealt with the issues raised by the wife in her affidavits and put his position in relation to deposits by her into his Bendigo Bank accounts. For example, he repeated his claim that the wife had deposited a total of $7,000 into one of his Bendigo Bank accounts. He also annexed a number of schedules that he had prepared apparently from source documents including bank statements and the like.
f)The wife filed her affidavit on 13 March 2012 responding to the husband’s affidavit of 8 March 2012. In that affidavit the wife denied the husband’s claims as to the deposits she had made and annexed a table outlining the payments she says that she made into the husband’s Bendigo Bank account. Significantly, in paragraph 54 the wife said this:
… After receiving disclosure from the [husband] I need to amend the figure outlined in paragraph 15 of my affidavit of 18 July 2011 to demonstrate the true payments I have made into this account which were $40,075.76.
I observe that although the husband filed affidavits of documents in November 2011, he filed a further extensive affidavit of documents on 13 March 2012 as well. Included in that affidavit were the bank statements of the husband’s two Bendigo Bank accounts. However, as I have referred to earlier in these reasons, he failed to discover or produce the deposit slips.
As to the issue of the late filing of the wife’s affidavit of 13 March 2012 I find that it was perfectly proper for the Federal Magistrate to receive that affidavit at that time. The wife had filed her affidavit of evidence-in-chief almost a year previously yet the husband only filed his affidavit of evidence-in-chief less than one week before the commencement of the trial. The wife then had the choice of filing an affidavit in response or leaving any response to be given by way of oral evidence during the trial, and she quite properly chose the former.
There can be no criticism of the wife, or in the context of an appeal, of the Federal Magistrate in receiving the wife’s affidavit at that time, given that the cause of its lateness was the husband’s failure to file his own affidavit of evidence-in-chief in a timely manner. Indeed, support for the approach of the Federal Magistrate is amply provided by the High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009) 258
ALR 14.
The husband raised this issue with the Federal Magistrate at the commencement of the hearing but he made no application for an adjournment and the hearing proceeded.
As to the husband’s complaint that there were new issues raised by the wife in that affidavit that he was unable to address, and particularly the matters that I have just referred to, I find that there is no basis for the complaint. As
her Honour said in her reasons for judgment, the husband had been on notice for some time that there was an issue about what deposits the wife had made into his Bendigo Bank accounts and he had ample time to address this. He was also the author of his own misfortune by failing to provide discovery in a timely fashion, by failing to produce the bank deposit slips, and by filing his own affidavit of evidence-in-chief as late as he did.
I also observe that the husband cross-examined the wife extensively about the deposits made by her into his Bendigo Bank accounts, and in so doing he took her through the bank statements that he had in fact produced.
Again, it is not suggested that at any time during the hearing the husband sought an adjournment to better address this issue. What he did do though was during his final address on 16 March 2012 say to her Honour that “the only way that these deposits can be verified as to their source is by the bank itself”, that a request would have to be made of the bank, and he sought to be allowed to do that and then provide the information later. (Transcript 16 March 2012, page 2, lines 35-43).
This issue is in fact the subject of Ground 3. However, the husband was unable to take the court to any part of the transcript which indicated that the husband made a specific application to be able to obtain and produce the documents from the bank and where the Federal Magistrate refused that request. In any event, it was clearly her Honour’s view, as expressed in paragraph 42 of her reasons for judgment, that the husband had had ample time to do whatever was necessary to put the evidence that he wished to rely on before the court, and that is amply borne out by the history of the proceedings.
As to the second issue of the timeshare credits, again it is apparent from the history of the proceedings that the husband had ample time to produce whatever documentation he sought to rely on at the trial, and it is not open to him to suggest that he only became aware of any issue about this from the wife’s affidavit of 13 March 2012.
In these circumstances I find that there is no merit in Grounds 2 and 3.
Ground 6
At paragraph 38 of her Honour’s reasons her Honour stated that “[t]he husband retained the debt-free Range Rover.” Earlier, in paragraph 34(c) her Honour had recorded that the husband claimed that there was a debt on that motor vehicle at separation of $11,000, but presented no supporting documentation to establish this claim. Then in paragraph 35 her Honour set out the liabilities of the parties at the end of their relationship and there was no liability listed in relation to the Range Rover.
The complaint by the husband here is that he did provide evidence to the Federal Magistrate of the debt that was owing on the Range Rover motor vehicle at separation. That motor vehicle was apparently the subject of a hire purchase agreement and the husband tendered a statement from the finance company to her Honour on 15 March 2012. That statement was received by her Honour and marked Exhibit “JMPW 5”.
The statement indicated that as at separation the balance outstanding was approximately $31,082.92. The monthly repayments were $850.62 payable on the second of each month, and the hire purchase contract was due to end on
2 October 2006.
Given this exhibit her Honour was in error when she said that the husband retained the “debt-free Range Rover” and that the husband had not provided any “supporting documentation” in relation to any liability. However, I do not consider that this error should result in the appeal being allowed. By the time of the hearing before her Honour the husband still had the Range Rover. It had an agreed value of $8,000, and it is apparent from the husband’s financial statement filed on 13 March 2012 that there was no liability attached to the vehicle. That of course is consistent with the fact that the hire purchase contract would have been finalised in 2006.
The relevant date of course for ascertaining the property of the parties and their liabilities is the date of the hearing and not the date of separation, and thus in collating the pool of assets and liabilities to be distributed between the parties her Honour was correct in including the Range Rover motor vehicle at an agreed value of $8,000 and in not recording any liability relating to that motor vehicle.
The only possible area where the error by her Honour as to any liability attaching to this motor vehicle would have had any impact was in the area of the assessment of the respective contributions of the parties. However, it is clear that following separation the husband had had the sole use of this motor vehicle and the monthly repayments had been made presumably from the husband’s Bendigo Bank account into which of course the wife had deposited money as well.
Thus, there is no necessary basis for appellate interference with her Honour’s relevant findings as to the asset pool and the assessment of the respective contributions of the parties. In these circumstances this ground of appeal must fail.
Ground 6A
In paragraph 36(b) of her Honour’s reasons her Honour found that since separation the wife had “availed herself of the benefits of the timeshares, although the husband has not”. Her Honour further found that the husband had been able to access the parties’ joint credits “but [he] has chosen not to do so”.
In this regard it is apparent that her Honour has accepted the evidence of the wife in preference to that of the husband, and that is a consistent theme throughout her Honour’s reasons. Indeed, her Honour said this as to the credit of the parties in paragraph 54:
… The husband has shown no perspective in these proceedings. He has been harassing and obsessive and in so doing has been oppressive to the wife. The husband is not a witness of credit. At times, in particular in the examination of his own income and financial contribution since separation, he was an utter liar. By comparison the wife was a credible witness and in her demeanour entirely exhausted by the husband’s onslaught.
There is of course a presumption that a decision of a trial Judge or a Federal Magistrate is correct, and the onus is on an appellant to demonstrate that the trial Judge or the Federal Magistrate made an error. This is always a difficult task where the challenge is to a trial Judge’s or a Federal Magistrate’s findings on credit, because they enjoy advantages that an appeal court lacks.
Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 said this:
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probability of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Here it has not been demonstrated that her Honour either “failed to use or has palpably misused [her] advantage”. Thus there is no merit in this ground of appeal.
Ground 7
This is a similar challenge to the previous one in that it attacks the acceptance by her Honour of the wife’s evidence in preference to that of the husband.
The topic here is the wife’s evidence that she made deposits into the husband’s bank account after separation, and that money was then used to meet various debts of the parties. Specifically this relates to the wife’s evidence that the husband’s complaints only first appeared in the wife’s affidavit of 13 March 2012. To repeat, the husband says that because of the late filing of that affidavit he was unable to respond to the wife’s claims. I have dealt with this issue when addressing Grounds 2 and 3 above and I have found that
her Honour was correct in saying that the husband had ample opportunity to present any evidence that he wished to rely on in relation to this topic and he has not been prejudiced as a result of her Honour receiving the wife’s affidavit.
Thus it was open to her Honour to accept the wife’s evidence and make the finding that she did in paragraph 41 of her reasons for judgment. There is again no merit in this ground of appeal.
Ground 8
At separation the husband’s Visa credit card was in debit to the extent of $26,650. The husband also had an American Express card at separation but the wife’s evidence, which her Honour accepted, was that she was unaware of that card at the time and was further unaware of what expenses had been placed on it by the husband. Thus the debt in issue was that on the husband’s Visa card.
In the orders that the husband pursued at trial he sought that the wife pay him 50 per cent of the amount owing on the Visa credit card at separation. However, there are two points to be made. First, the husband conceded under cross-examination that approximately seven months after separation the credit card debt was reduced to nil by the husband applying part of a cheque that he received comprising income earned prior to separation. Thus, there was clearly no basis in any event for the wife to have to pay to the husband 50 per cent of what was owed on that card at separation. Secondly, the order sought by the husband overlooks that it is not the date of separation when the pool of assets and liabilities are crystallised, but rather as at the date of the hearing. Thus, what her Honour took into account ultimately was the credit card debts of both parties as at the date of the hearing.
In these circumstances there is no merit in this ground of appeal.
Ground 9
This is a complaint by the husband that is misconceived. Her Honour did not “exclude” the wife’s superannuation entitlement from the property pool of the parties. In setting out the relevant “pool of assets as at the date of trial”
her Honour included the wife’s superannuation entitlement (paragraph 7(c)) and her Honour confirmed that in paragraph 56 of her reasons for judgment. As her Honour explained in that paragraph the wife’s superannuation had been accumulated in two periods of separation, and the husband had made no contribution to the same. Thus, her Honour simply took this superannuation into account under s 75(2) of the Act. Once again there is no error here by
her Honour.
Ground 10
This is yet another challenge by the husband which is without foundation. As identified already, the husband filed an extensive affidavit of documents on
8 March 2012, less than one week before the commencement of the hearing. Thus it was entirely correct for her Honour to “note” in paragraph 42 of her reasons for judgment that the husband had provided discovery “very late in the proceedings”.
There is no merit in this ground of appeal.
Ground 11
This is plainly a challenge to the weight attributed by the Federal Magistrate in the exercise of her wide discretion to the respective contributions of the parties to the “preservation of the parties’ assets”.
The difficulties confronting the husband in succeeding in such a challenge are well known.
In Norbis v Norbis (1986) 161 CLR 513, Brennan J said at 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v Satterthwaite [1948]
1 All ER 343 at p. 345 Asquith L.J. stated the rationale of an appellate court’s approach:“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In addressing this challenge the husband has failed to take the court to any evidence or submission which demonstrates that her Honour, in assessing the respective contributions of the parties, exceeded “the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
In a careful judgment her Honour found for example:
50.… In all, the wife contributed to the line of credit over both properties the sum of $145,232.40 and the husband the sum of $30,074.30. A sum of over $115,000 in favour of the wife.
Further, her Honour said this in paragraph 51 of her reasons:
Since occupying the [A] property the wife has spent monies in the maintenance of, and improvements to the property. It had not been well cared for by the tenants and the wife has spent considerable funds making improvements to the property, including building a deck, bifold doors, six person spa, placed down new flooring, inserted a new front door and other doors, cleared the garden and re-landscaped the property, which she claims has led to an increase in the value of the property. I cannot make a finding in any quantified sum but note that she has at the least maintained and improved the property.
Understandably, these facts proved significant in allowing her Honour to make the findings that she did. She did not exercise her discretion by reference to erroneous facts (her findings on the evidence were plainly open), nor did
her Honour have regard to extraneous facts or circumstances, or fail to have regard to relevant facts or circumstances. No error of principle has been demonstrated and nor has it been shown that despite the absence of demonstrable error, the adjustment made by the Federal Magistrate was manifestly excessive.
This ground too must fail.
Ground 12
This was yet another challenge to her Honour’s acceptance of the evidence of the wife in preference to that of the husband, and I need not repeat all that I have said about this already in these reasons for judgment.
Suffice to say it was open to the Federal Magistrate to make the findings that she did and no appealable error has been established by the husband. For example, her Honour said this in paragraph 49 of her reasons for judgment:
… The husband’s behaviour has contributed to her financial plight. On
21 February 2011, the wife transferred the sum of $1,500 into the line of credit. Three days later the husband withdrew the available balance on their line of credit of $1,905, putting in the reference, “Reparation.” On
3 March 2011, the wife sent the husband an email requesting that he return such funds to her. The husband refused. The husband claimed in one email response that, “It was my money,” and in the other, “What is good for the goose is also good for the gander.”This required the wife to place a “freeze” over the line of credit over the A property to enable mortgage payments to be made but not to allow withdrawals from the account.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing I received submissions as to costs depending on the result.
In the event that the appeal was unsuccessful counsel for the wife sought an order for costs against the husband. Although the husband did not specifically say so, I proceed on the basis that he opposes such application.
There are circumstances here that justify an order for costs, and particularly that the husband has been wholly unsuccessful in the appeal. Accordingly, costs should follow the event and I propose to make an order for costs in favour of the wife.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 October 2013.
Associate:
Date: 8 October 2013
0
3
0