WATSON & REAGAN
[2010] FamCAFC 188
•21 September 2010
FAMILY COURT OF AUSTRALIA
| WATSON & REAGAN | [2010] FamCAFC 188 |
| FAMILY LAW - APPEAL – ENFORCEMENT APPLICATION- Whether the Federal Magistrate made findings that were not open on the evidence – Whether the Federal Magistrate erred in preferring the evidence of the wife over the evidence of the husband including evidence about the use of a credit card – Where the Federal Magistrate had the advantage of observing the parties – No error established in preferring evidence of wife and accepting her as a witness of credit. – Whether the Federal Magistrate erred by failing to take into account payments by the husband over the course of the home loan – No appealable error demonstrated – Appeal Dismissed. FAMILY LAW - CROSS-APPEAL – Whether Federal Magistrate failed to deal with all claims in Enforcement Summons – Where the wife is bound by manner and conduct of the proceedings before the Federal Magistrate – Cross-Appeal Dismissed. FAMILY LAW - COSTS – Where in the circumstances there should be no departure from s 117(1) of the Family Law Act 1975 (Cth) – Each party to bear their own costs. |
| Family Law Act 1975(Cth) Federal Proceedings (Costs) Act 1981(Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Fox v Perry (2003) 214 CLR 118 SS v AH [2010] FamFC 13 |
| APPELLANT/CROSS RESPONDENT: | Mr Watson |
| RESPONDENT/CROSS APPELLANT: | Ms Reagan |
| FILE NUMBER: | PAC | 5232 | of | 2008 |
| APPEAL NUMBER: | EA | 126 | of | 2009 |
| DATE DELIVERED: | 21 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 11 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 September 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 976 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Watson appeared in person |
| ADVOCATE FOR THE RESPONDENT: | Ms Reagan appeared in person |
Orders
The husband’s appeal is dismissed.
The wife’s cross appeal is dismissed
The wife’s application filed 18 January 2010 is dismissed.
The wife’s application filed 9 November 2009 is dismissed.
Each party shall pay his or her own costs of and incidental to the appeal and the cross appeal.
IT IS NOTED that publication of this judgment under the pseudonym Watson & Reagan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 126 of 2009
File Number: PAC 5232 of 2008
| Mr Watson |
Appellant/Cross Respondent
And
| Ms Reagan |
Respondent/Cross Appellant
REASONS FOR JUDGMENT
Introduction
On 15 October 2009, Mr Watson filed an appeal against orders made by Federal Magistrate Dunkley. His Honour’s orders provide that the husband pay to Ms Reagan the sum of $7,349.08, together with interest from 6 January 2005 such interest to be “at the rates prescribed in the Family Law Act 1975”.
On 9 November 2009, Ms Reagan filed a cross-appeal against the orders. The single ground in the cross-appeal is as follows:
N.B. My grounds for an Appeal is that Magistrate Dunkley refused to accept evidence to prove Mr [Watson] did not adhere to a court order dated 13 May 2004. This was detrimental to [sic] amount awarded to me.
Mr Watson and Ms Reagan were involved in proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage. Those proceedings were resolved by the making of consent orders on 13 May 2004 (“the consent orders”). In these reasons, for convenience, I will refer to Mr Watson as “the husband” and Ms Reagan as “the wife”.
Before me neither party was represented. Each had drawn their own Notices of Appeal, and neither document contained recognisable grounds of appeal. But in the course of submissions from each of them I was able to distil the essence of their complaints about the Federal Magistrate’s orders.
The husband asserted that the Federal Magistrate had made findings which were not open on the evidence. He submitted his Honour accepted the wife’s evidence that she had not used a credit card issued in the husband’s name after January 2005, when documentary evidence tendered by him proved she had done so. Thus, he submitted his Honour erred finding he was indebted to the wife under the consent orders.
The wife asserted the Federal Magistrate had failed to deal with all of the claims in an Enforcement Summons she filed on 21 January 2009, and as Order 8 of the Federal Magistrate’s orders dismissed all outstanding applications, she was precluded from prosecuting her claim for $20,000.00 set out in the Enforcement Summons.
On 9 November 2009, the wife filed an application in an appeal supported by the affidavit filed on the same day. The wife also filed an application in an appeal on 18 January 2010. In that application she sought orders that the husband’s appeal be dismissed for failure to serve documents, enforcement of the Federal Magistrate’s orders of 17 September 2009, and costs. The wife relied on her affidavit sworn 18 January 2010 in support of her application.
The wife did not pursue the application for summary dismissal of the appeal based on asserted failure to file documents. It is unnecessary that I consider these applications individually as the relief sought in each application is substantially identical, namely that the husband’s appeal be dismissed and that he pay the wife’s costs.
As will become apparent from these reasons, each party made submissions which referred to matters beyond the scope of the appeal and cross-appeal. Unfortunately, they remain in conflict in respect of financial transactions which occurred both before and after the making of the consent orders, and as to what happened before the Federal Magistrate.
The husband had obtained the majority of the relevant transcript before the Federal Magistrate on a CD. As he had not printed out the whole of the transcript, I made administrative arrangements for that to be done. I have therefore been able to trace the history of the proceedings, which I will set out in some detail below, as it is necessary to refer to that history to understand each party’s complaints.
In his Notice of Appeal and before me, the husband asserted that if I found appealable error, the orders of the Federal Magistrate should be “discharged”, or the wife’s enforcement summons remitted for rehearing. I understand from the husband’s submissions that if I find appealable error, he seeks that I re-determine the matter and dismiss the enforcement summons, or that I remit the matter for rehearing.
In these reasons I will set out the background of the litigation between the parties. I will then summarise the relevant parts of the Federal Magistrate’s reasons, and consider the husband’s ground of appeal as identified above. In so doing, I will refer to the relevant evidence before the Federal Magistrate. I will, to the extent I have not dealt with it in considering the appeal, then consider the wife’s cross-appeal. I will finally deal with the parties’ submissions about costs of the appeal.
Although an application by the husband for a stay of the Federal Magistrate’s orders is included in the appeal book (as is a response by the wife opposing the stay), no order of the Federal Magistrate staying his orders in whole or part was before me. However, a search of the Federal Magistrates Court file discloses the Federal Magistrate granted a stay of his orders on 28 October 2009.
The background to the litigation
There is no detailed evidence before me about the history of the parties’ relationship.
The parties entered into the consent orders on 13 May 2004. At the time of the making of the consent orders both parties were legally represented. The consent orders deal with four parcels of real estate. Each of the four properties was registered in the sole name of the husband.
The first property the subject of the orders is a property in South-Western Sydney, NSW (“the C property”). Order 1 of the consent orders required the husband to transfer his interest in this property to the wife within 28 days.
Order 2 of the consent orders required the wife to indemnify the husband “in respect of his past, present and future liability” under the mortgage secured on the C property with BankWest, and to ensure, unless agreement was otherwise reached between the parties, that the mortgage was discharged within two years of the date of the orders. I pause here to note that although Order 2 clearly provides an indemnity to the husband in respect of past liabilities under the mortgage, before me each party raised issues about exactly who made payments under the mortgage before the making of the consent orders. Given the terms of the Order I do not propose to canvass those submissions in any detail in these reasons.
Order 3 of the orders required the wife to ensure utility bills for the C property were transferred (presumably from the husband’s sole name) into her sole name and she was “forthwith” to be responsible for them, unless the husband occupied the property in which case he was to assume responsibility for 30 per cent of “the utility bills and rates and charges” during the time of his occupation.
Order 4 required the husband to pay 30 per cent of the mortgage secured over the C property during his occupation of it after the making of the consent orders. It was common ground before me that the husband occupied the C property for some time after the consent orders were made. It was also common ground that all payments pursuant to the BankWest mortgage, after the date of the consent orders until its discharge in January 2004, were made by the wife. The notations to the orders, which I note were made on 13 May 2004, included a notation to the effect the husband was in occupation of the C property at the date of the orders and would remain in that property up to 6 April 2004 [semble 2005]. The mortgage to BankWest secured over the C property was not identified by dealing number in the consent orders.
Order 5 of the orders required the parties to sell, by private treaty, within three months of the date of the orders, the two other parcels of real estate being properties at 26/8 M Street in Western Sydney, NSW (“the first M property”) and 22/8 M Street (“the second M property”), and if not sold by that date the properties should be sold by public auction (Order 7). The consent orders disclose that each of the M properties was encumbered by mortgage to BankWest.
Order 8 provided that the proceeds of sale of the first M property were to be applied as follows:
Upon sale of the [first M property], the proceeds of the sale be applied as follows:
(a)in payment of all costs, commissions and expenses of the sale;
(b)in payment of all rates, taxes and outgoings of or with respect to the property;
(c)in full payment of the mortgages with BankWest identified by account number … ;
(d)payment of the balance then remaining be divided in the propositions of:
i). 50% to the Wife
ii). 50% to the Husband.
Order 9 of the orders provided that the proceeds of sale of the second M property were to be applied as follows:
Upon sale of the [second M Property], the proceeds of sale shall be distributed as follows:-
(a)in payment of all costs and outgoings of or relating to the property;
(b)in discharge of any mortgage encumbering the property;
(c)in discharge or reduction of the Bank West loan secured over the [C] property of approximately $51,000.00;
(d)the balance remaining, if any, to be divided equally between the parties;
Order 10 of the orders provided that the husband was, within 28 days of the date of the orders, to pay to the wife the sum of $6,000.00, and the wife was thereafter to indemnify the husband in respect of a Commonwealth Bank of Australia credit card held in the wife’s sole name. Submissions were made to me by each of the parties about a credit card held in the husband’s name but used, presumably on a supplementary card, by the wife, but no reference was made to this order, nor was there any assertion by the wife that the husband was in default under Order 10.
Order 11 of the orders declared the husband to be the sole owner of a property at A Street on the Northern Beaches of Sydney (“the A property”) and the husband is required to indemnify the wife in respect of an encumbrance secured against that property.
Order 12, which is not expressed to be subject to Order 9 of the consent orders and which is at the heart of this appeal, provides as follows:
Both the Husband and the Wife shall continue to be equally and jointly responsible for the loan secured against the [C] Property which has a current approximate value of $51,0000.00 and that both the Husband and the Wife will make equal payment on that loan until it is discharged.
On 6 January 2005 the wife paid to BankWest the sum of $35,198.16 to discharge the balance of this loan (“the G Home Loan”) which stood at approximately $51,000.00 at the date of the consent orders.
The wife filed her Enforcement Summons on 21 January 2009. The Form 46 was completed by the wife by hand. It was returnable before the Court on 12 March 2009. Paragraphs 1 and 2 of the Summons are in the following terms:
1.An order was made [the parties entered into a financial agreement] to be payable by you to [Ms Reagan] on 13 May 2004 requiring that you pay $9,015.00 + interest and $20,000.00 for the benefit of loan repayment and sale of property
2.Payments under the order or agreement are in default or in arrears in the amount of $37,684.30 this date 31 October 2008
...
On 12 March 2009 the parties appeared in person before Dunkley FM. At the commencement of the hearing his Honour referred to the application before him saying:
FEDERAL MAGISTRATE: Now, I understand the competing claims now are that we’ve got $9049 and some sense in respect of a loan. I understand that Mr [Watson] says that he’s paid – his defence in respect of that is that he paid on 15 December 2004 some $3004? (transcript, 12 March 2009, p 1).
The wife did not agree with the Federal Magistrate’s description of her claim. The wife explained her claim to the Federal Magistrate as follows:
… I actually got advice from the registrar regarding what to put in my enforcement order and basically she’s told me, whatever you feel you’re entitled to, if he had to adhere to the Court order, that is what you’re actually enforcing. Now I’m being told, well, that can’t happen. I have evidence of – from the time that I applied for settlement – for separation settlement from him, he’d withdrawn the – I’ve got the subpoenaed documents that shows at the time that I applied for settlement there was a balance of 106,000 owed on the home loan. By the time settlement Court order was made there was a balance of $205,000. He’d written several cheques for himself from 27,000, 12,000, 11,000 – it’s all in the subpoenaed documents. I don’t know what they were for. I don’t know what they were about. That’s why in the order – I think it’s 22 – no – yes, in point 23:
The husband is injuncted from increasing the mortgage balance.
(transcript, 12 March 2009, pp 3 and 4).
Further dialogue between the wife and the Federal Magistrate occurred as follows:
…There’s also a letter here from one of the real estate agents where he was actually refused offers of $192,000 for the second property. I didn’t know what the property was listed for, who it was listed to. There’s also evidence to show that- - -
That’s done by other than an enforcements summons. That’s why I said did you get any legal advice and you told me that you didn’t?---No, I didn’t because I didn’t have enough money.
So that that’s – the remedy that you’re seeking there is other than by an enforcement summons?---Okay.
So you should get some legal advice about that?---Everything’s so expensive. Everyone wants money.
Sorry?---I said everything’s so expensive. Everybody wants dollar signs---
Well, that’s your choice, ma’am?---Yes, I know. (transcript, 12 March 2009, p 5).
The husband gave sworn evidence before the Federal Magistrate on 12 March 2009 that he acknowledged the BankWest loan payout figure was $52,000.00, and testified that he had paid $17,100.00 off the G Home Loan. He also testified that the parties were in dispute about a credit card which the wife paid out in the sum of $8,404.00 and in respect of which the wife said the parties were equally liable. The husband testified that after the payment of $17,100.00 to the wife he was indebted to her in the sum of $9,049.00. (transcript, 12 March 2009, p 8).
The husband also testified before the Federal Magistrate that he had made available to the wife his credit card facility (a BankWest Visa credit card) after the making of the consent orders with a credit limit of $8,500.00. He asserted he had paid the sum of $3,400.00 to the wife. He also asserted that he was indebted to the wide in the sum of $549.00.
After the wife had been cross-examined, and she had cross-examined the husband, the husband made an application for an adjournment to enable him to obtain copies of the relevant credit card statements (transcript, 12 March 2009, p 15). The proceedings were adjourned part heard to 18 July 2009.
On 18 July 2009 the husband appeared on his own behalf. The wife was represented by a solicitor acting as agent for her solicitor. The solicitor sought and was granted an adjournment of the proceedings until 26 August 2009.
At the resumed hearing, the husband again appeared for himself and the wife was represented by her solicitor, Ms Gray.
As further affidavit material had been filed by the husband shortly before the resumed hearing Ms Gray made an application for adjournment, but later, on instructions, withdrew her oral application. The wife gave further evidence in chief and was again cross-examined by the husband. When submissions commenced Ms Gray sought to have the matter stood down to obtain further instructions from the wife about the sum of $3,400.00 asserted by the husband to have been paid by him to the wife in respect of the G Home Loan. The wife had said the sum was payment of rental received for the first and second M properties. It was not in contention that rentals were applied to the mortgage repayments for the first and second M properties. Ms Gray then made the following concession on the wife’s behalf:
MS GRAY: - - - is the reason for that payment, which Ms [Reagan] apologises for thinking that it was rent for the [M] properties. It in fact relates to her paying back the loan repayment for the $51,000 that Mr [Reagan] [sic] borrowed against the family home. She made payment [sic] from settlement, which was on or about April 2004. The [C] property was hers. There is documentation showing where money was transferred from what is called an equity release statement, which is the [C] property, to paying off $51,000. It is my submission and my instructions that the $3400 was, in fact, to repay his share of the $51,000 that he borrowed against the [C] property. I have all the documentation here, your Honour. Now, even though it says [Mr Watson], it is actually Mrs [Reagan] controlling the property, because there were the two years for her to transfer the property into her name, and although the property is still in Mr [Watson]’s name, it actually is Mrs [Reagan] controlling this account… (transcript, 26 August 2008, p 33).
Later, in submissions made on behalf of the wife, Ms Gray confirmed the amount the wife sought to enforce pursuant to the enforcement summons as follows:
HIS HONOUR: That is a figure of about $8400. I am not talking about interest. I recognise that there will be some, and so we are really focusing on that 8400. The parties concede that, with interest, that is about $9045. So that is the sum that you [sic] client is seeking to recover?
MS GRAY: It is, indeed, your Honour.
HIS HONOUR: The 9045.
MS GRAY: Yes. (transcript, 26 August 2009, p 37).
Ms Gray later submitted (transcript, 26 August 2009, p 38) that the wife had made all the repayments to the G Home Loan. The wife submitted before me that Ms Gray’s concession was erroneous, and what the wife asserted was that she made all the payments after the making of the consent orders. She further asserted that the equity release account (“the mortgage”) secured over the C property as distinct from the G Home Loan, increased by reason of transfer by the husband from that facility to make repayments on the G Home Loan. She further submitted that on discharge the whole of the mortgage debt was refinanced by her.
Federal magistrate’s reasons
The Federal Magistrate commenced his reasons noting the proceedings before him were enforcement proceedings in which the wife sought in her summons to recover the sum of $29,045 plus interest. The Federal Magistrate noted the wife calculated that would bring her total claim to $37,684.30.
At paragraph 6 of his reasons, the Federal Magistrate referred to the wife’s position at the commencement of the proceedings, which was that she had suffered loss because of delay in the sale of the second M property, and because the property had sold for less in 2008 than it would have had it been sold in 2004.
At paragraph 7 of his reasons, the Federal Magistrate said:
That is not an issue that I am able to determine or decide as there is no evidence in the applicant’s supporting affidavit that would assist me to make any findings.
The Federal Magistrate then noted it was conceded by the wife that her claim could only proceed on the basis of Order 12 made on 13 May 2008.
Having recorded that the husband had borrowed $51,000.28 from BankWest on 23 November 2003 [semble 2002], the Federal Magistrate went on to record that the husband had paid funds totalling $17,100.00 on 17 and 20 December 2004.
At paragraph 11, the Federal Magistrate noted:
On 6 January 2005 the applicant paid out the balance owing of $35,198.16. Of this sum she therefore paid $9,049.08 that should have been paid by the respondent. The applicant made the repayments and eventually on 6 January 2005 discharged the loan in its totality by paying the balance then outstanding of $34,293.16, that being the balance to which the loan had been reduced by virtue of the payments that she had made pursuant to the Orders made 13 May 2004 on behalf of both parties. (footnotes omitted)
The footnotes in the Federal Magistrate’s reasons were to an exhibit tendered before him. As footnote 3 appears crucial to understanding the Federal Magistrate’s reasons I set that footnote out in full:
Payout figure as at 27 November 2004 $50,988.31 before Respondent makes any payments. Payment figure after Respondent makes payments of $17,100.00 is $35,198.16 which includes $905.00 of discharge fees and $394.86 of interest. By adding back the interest and discharge fees to the payout figure at 17 December 2004 of $50,998.31. The total payout was $52,298.17. The Respondent paid $17,100.00 of his half share of $26,149.08. Therefore he owed the Applicant $9049.08.
Having noted it was the wife’s case that the husband had never repaid her the remaining half of the balance of the G Home Loan of $9,049.08, the Federal Magistrate, at paragraph 13, set out his summary of the husband’s case as follows:
It is the respondent’s case that on the 15 December 2004 he paid to her the sum of $3,400.00. It was the wife’s initial evidence that that payment was received by her by way of a rental payment. Her final evidence was it was a share of the mortgage she had been paying. In total she had made payments of $3,345.99 over the life of the loan from 18 December 2003 [semble 2002] to 22 November 2004. The husband denies that. The only evidence of the payment is in an electronic internet banking statement which is Annexure I to the respondent’s affidavit, which shows a transfer to “[Ms Reagan]” on 15 December 2004 at the sum of $3,400.00. (footnote omitted).
The footnote to this paragraph referred to Exhibit A. As I will shortly explain there were two Exhibits before his Honour, both marked Exhibit “A”. Part of one Exhibit A were statements for a “[G] Home Loan” … from BankWest. As I will also more fully explain it appears the Federal Magistrate accidently omitted payments made on the loan from 18 December 2002 to 17 December 2003 (the loan having commenced on November 2002 not 2003).
Having noted there was nothing in the orders which required the payment of any rental monies by the husband to the wife, at paragraph 16, the Federal Magistrate concluded as follows:
I therefore accept the respondent’s evidence that the payment of $3,400.00 by him to the applicant on the 15 December 2004 occurred. I find this was a payment as part of his obligations with respect to Order 12. It was not a payment of rent and it was not a part discharge of the loan. He has therefore paid all the instalments due on the loan and $54.01 extra. The obligation to service the loan was joint. An amount of $1,700.00 will, therefore, be allowed off the Applicant’s claim reducing it from $9,049.08 to $7,349.08.
Having referred to the husband’s assertion that he had permitted the wife to access his credit card, and the wife’s evidence on that issue, the Federal Magistrate concluded, at paragraph 19, as follows:
She denies having further use of the credit card after that time. She says she returned the credit card to him in January 2005. He says she didn’t do this until August 2005. He denies being in Western Sydney when money was taken from his card in the period January to August 2005 and that it could therefore only have been the applicant. He says a telephone payment of a water account and Energy Australia account had to be for her. The applicant denies both. I prefer her evidence, and accept it as truthful, and for this reason make the Orders as set out above.
THE GROUNDS OF APPEAL
As I have already indicated, the husband’s Notice of Appeal does not contain recognisable grounds of appeal. Among the claims set out in the Notice of Appeal (and ignoring points which assert errors in dates in the Federal Magistrate’s reasons) the husband asserts:
· the Federal Magistrate did not take into account payments made by him over the course of the G Home Loan;
· the Federal Magistrate was in error in preferring the evidence of the wife over his evidence about paying out the credit card on 6 January, 2005 and not using it thereafter.
Central to the husband’s appeal is his assertion that the Federal Magistrate accepted the wife as a witness of credit when there was documentary evidence of a credit card payment of $179.00 to Sydney Water made in April 2005 (that is, some four months after the wife asserted she had ceased operation on the credit card) by telephone transfer for the rates in respect of the C property to an account then in the wife’s name.
The husband also referred to the credit card statements which showed cash withdrawals at Westpac in Western Sydney and other locations proximate to the wife’s residence after January 2005.
The husband also referred to a further credit card telephone payment made to Energy Australia for $369.55 in April 2005 and said there was no payment credited by Energy Australia to an account in his name.
THE RELEVANT LAW
To assist the parties, particularly the husband, to understand these reasons, I propose at this point to refer to the principles to be applied by an appellate court dealing with a challenge to credit findings, and a claim that findings were not open to a judicial officer on the evidence. These principles are clearly explained by the High Court Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178:
In S.S. Hontestroom v S.S. Sagaporack, Lord Sumner pointed out that:
‘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 probabilities 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.’
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion’: Watt or Thomas v Thomas. (footnotes omitted).
In the later case of Fox v Percy (2003) 214 CLR 118 at 126-127 Gleeson CJ, Gummow and Kirby JJ further explained the relevant principles including:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’. (footnotes omitted).
DISCUSSION
In his submissions the husband emphasised that, in his view, the evidence of the wife given in cross-examination was unsatisfactory, particularly when viewed against the documentary evidence.
The Federal Magistrate was faced with two diametrically conflicting versions of the arrangement between the parties. His Honour had the opportunity to assessing both parties, over the extended hearing, when the wife was both represented and unrepresented. He had the benefit of observing her cross-examination on two occasions. He also had the opportunity of assessing the husband.
The advantage which a judicial officer has in dealing with a self-represented litigant has been referred to in a number of recent Full Court decisions. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) refer to Mr Justice Wilson’s 2002 Atkin Lecture, “The Misnomer of Family Law” which lecture is directed to the advantage enjoyed by a judicial officer in dealing with a self-represented litigant.
Here, the Federal Magistrate was asked by the husband to drawn inferences that because payments of utilities and cash advances were made using the credit card after January 2005, when the wife said she had paid out the card and ceased using it, that she should be disbelieved on her oath.
It must be remembered however, that there was also evidence before the Federal Magistrate from which he could draw the inference that the credit card transactions were not for the wife’s benefit. The consent orders (Order 3) provided that the husband was to pay 30 per cent of the utilities (as well as 30 per cent of the mortgage (Order 4)) while he occupied the C property. It could be inferred that the payments on the credit card were made to satisfy his obligation under this order.
The evidence in respect of the cash transactions made the drawing of inferences difficult. The wife relied on her assertion that the husband had a practice of using the card for cash transactions in the locale prior to the consent orders, and that he continued to visit the area to return her children on Mondays after time spent with him, and playing golf in the area with members of her family. The husband sought an inference be drawn that the wife had used the card because the transactions occurred in her locale.
The Federal Magistrate clearly preferred the evidence of the wife, and accepted her as a witness of credit. I am not satisfied in the circumstances that his Honour has erred in so doing.
Before leaving the husband’s appeal I note that he complains that the Federal Magistrate has not taken into account repayments made by him on the G Home Loan after the consent orders (transcript, 11 February 2010, p 20). It is useful I again set out Order 12 of the Consent orders:
Both the Husband and the Wife shall continue to be equally and jointly responsible for the loan secured against the [C] Property which has a current approximate value of $51,000.00 and that both the Husband and the Wife will make equal payment on that loan until it is discharged.
The order may be interpreted as requiring equal payment on and from the date of the consent orders, that is that the husband and wife “will make equal payment on that loan until it is discharged”. The order does not on its face suggest any adjustment should be made between the parties for payments up to the date of the consent orders. It is arguable however, that the words “shall continue to be equally and jointly responsible” could mean that all repayments over the term of the whole loan should be equal. This appears to be the view his Honour took when he explained at paragraph 16 “[h]e has therefore paid all the instalments due on the loan and $54.01 extra. The obligation to service the loan was joint. An amount of $1,700 will, therefore, be allowed off the Applicant’s claim …”.
His Honour’s reasoning was not readily apparent to me without reconstructing the footnotes to his reasons. It appears his Honour calculated the parties’ separate liability after the consent orders and up to discharge of the loan as follows:
Balance outstanding 27/11/04
50,998.31
Plus discharge fee
905.00
Plus interest
394.86
52,298.17
Each party responsible for
26,149.09
Less husband’s payment
17,100.00
Payable by the husband
9,049.09
In this calculation the Federal Magistrate ignores the sum of $3,400.00 apparently conceded by the mother’s legal representative notwithstanding this sum was paid in December 2004, that is, after the making of the consent orders. Before me the husband asserted the payments were made to the mortgage account and totalled $1,951.20.
The Federal Magistrate appears to have accepted, based on the wife’s evidence and the BankWest statements, that the wife made payments of $3,345.99 between 18 December 2003 until 15 December 2004. Those statements reveal the following payments:
18-Dec-03 268.41 Cr trf Mr Watson 19-Jan-04 293.30 Cr trf Mr Watson 18-Feb-04 274.64 Cr trf Mr Watson 18-Mar-04 265.49 Cr trf Mr Watson 19-Apr-04 292.95 Cr trf Mr Watson 18-May-04 500.00 Cr trf Mr Watson 22-Jun-04 48.27 account number … 22-Jul-04 300.00 Visa … 24-Aug-04 260.00 Visa … 20-Sep-04 300.93 account number … 22-Oct-04 257.00 account number … 22-Nov-04 285.00 account number … 3,345.99
I am unable from either the reasons or footnote to discern how his Honour calculated the husband had paid “$54.01 extra”. But no ground of appeal, or cross-appeal asserts inadequate reasons.
The use of a start date of 18 December 2003 for the Federal Magistrate’s calculations is explicable when regard is had to the original exhibits, rather than the exhibits as they appear in the appeal book prepared by the husband. Exhibit A tendered by the wife on 12 March 2009 contained all relevant statements, that is statements from December 2002 to 2005. A further Exhibit also marked Exhibit “A” tendered by the wife’s solicitor on 26 August 2009, omitted the first statement for the period December 2002 to December 2003.
The G Home Loan statements, reveals total credits between 18 December 2002 and 22 November 2004 were $6,423.02.
I observe what is relevant is how much each party paid after the consent orders were made on 13 May 2004 until discharge of the loan on 6 January 2005, rather than what each party paid during the term of the loan in circumstances where the wife asserted that the G Home Loan payments claimed by the husband to have been made solely by him, were in fact transfers from, and debited to, the mortgage account which was treated as a joint liability and discharged in full by the wife in January 2005. I pause here to note that the mortgage balance which was borne solely by the wife on payout on 6 January 2005 was $206,135.43. In December 2002 it stood at $195,962.13 (Exhibit A, 26 August 2009).
Before me, but not before the Federal Magistrate, the husband submitted repayments made to the mortgage account were in reality his contribution to repayment of the G Home Loan account. The husband asserted he had made six payments totalling $1,951.20 to the mortgage account (transcript 11 February 2010, pg 22).
In the appeal book, which was prepared by the husband, he had highlighted a number of transactions in the mortgage account statements. My examination of the original exhibits discloses no similar markings on those exhibits. The husband did not in his affidavit evidence or orally before the Federal Magistrate, testify that these payments were payments made as interest payments by him in respect of the G Home Loan account. Nor did the husband seek to adduce further evidence in support of his appeal. I have therefore disregarded his assertion that entries on the mortgage account should have been taken into account by the Federal Magistrate.
The G Home Loan statements disclose that after separation the following sums were paid:
Date Payment by Husband 15-Dec-04 3,400.00 Total 3,400.00 Date Payment by Wife 16-May-04 500.00 22-Jun-04 48.27 22-Jun-04 300.00 24-Aug-04 260.00 20-Sep-04 300.93 22-Oct-04 257.00 22-Nov-04 285.00 Total 1,951.20 Total by both 5,351.20 Half total interest payments 2,675.60 Adjustment in Husband's favour (2,675.60 – 1,951.20) 724.40 Total Capital adjustment by the husband (see paragraph 45) 9,049.09 Less adjustment (724.40) Sum payable by Husband to wife 8,324.69
On this basis, the adjusting sum to be paid by the husband to the wife was $8,324.69. His Honour ordered that the husband pay $7,349.08. Thus the difference between the adjusting sum and the Federal Magistrate’s order was $975.61. I observed that the wife, subject to the complaint in her cross-appeal, said she would accept the sum payable under the order made by the Federal Magistrate although it was less than her claim. While it appears there is a mathematical error in the Federal Magistrate’s reasons, it favours the husband.
I am satisfied that no appealable error having been demonstrated by the husband that his appeal should be dismissed.
THE CROSS-APPEAL
The wife’s cross-appeal can be disposed of shortly. As I have set out in my recitation of the chronology of this matter, the wife ultimately did not press any claim for interest or loss suffered by reasons of the delayed sale of the first and second M properties.
The Federal Magistrate recounted that the wife had not filed any material in support of her claim of non compliance by the husband with the consent orders.
The appeal book index prepared by the husband was not challenged by the wife. That index did not include an affidavit of the wife sworn 4 November 2008 and reaffirmed on 12 January 2009 which is marked with the court date 12 March 2009 (the first day of the hearing). It appears that the wife did not draw this affidavit to the Federal Magistrate’s attention as material on which she sought to rely. This may be explicable because the wife had an application before the Court on 6 November 2008 which was withdrawn and dismissed on that day.
However, of more significance, when the wife was legally represented at the resumed hearing, as the transcript discloses, his Honour was at pains to ensure just what was the claim the wife was pursuing before him. Ms Gray confirmed in unambiguous terms that the wife’s claim was limited to $9,045.00 plus interest (transcript 26 August 2009, p 37).
I am satisfied, having regard to the manner in which the proceedings were conducted before the Federal Magistrate, that the wife is now bound by that conduct, and accordingly the cross-appeal must be dismissed.
COSTS
At the conclusion of the appeal the wife sought, in the event the appeal was dismissed, that the husband pay her costs of, and incidental to, the appeal. The husband sought, if his appeal succeeded, that the wife should pay his costs. He asserted he had obtained some legal advice. In the alternative, the husband submitted in the event that the appeal succeeded and each party was to pay their own costs and expenses of the appeal, that he should receive a certificate under the provisions of the Federal Proceedings (Costs) Act1981 (Cth).
The husband has been wholly unsuccessful in respect of his appeal. The wife has been wholly unsuccessful in respect of her cross-appeal. Neither party was legally represented, and, although the husband obtained a CD of the transcript, he did not have photocopying expenses because the complete transcript had not been printed and bound into the appeal book. In these circumstances, I am satisfied that there should be no departure from s 117(1) of the Act and that each party should pay his or her own costs of and incidental to the appeal.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland delivered on 21 September 2010.
Associate:
Date: 21 September 2010
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