ZAU & UONG
[2016] FamCAFC 76
•11 May 2016
FAMILY COURT OF AUSTRALIA
| ZAU & UONG | [2016] FamCAFC 76 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant complains that the trial judge erred in dismissing her application for an adjournment by failing to give sufficient weight to her submissions – Where the appellant complains that the trial judge erred in not permitting her to have the assistance of the duty solicitor on the day of the hearing, calling the matter on before assistance could be sought – Where the appellant complains that the respondent provided inadequate disclosure – Where the appellant complains that the trial judge gave insufficient weight to her evidence as to the existence of a de facto relationship – Where there is no merit in any of the complaints and no error by the trial judge – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the appellant sought a number of orders most of which pertained to the preparation of the appeal for hearing – Where the majority of the applications have previously been dealt with and orders are no longer necessary or appropriate – Where it is necessary to consider the application made by the appellant to adduce further evidence – Where much of the evidence sought to be adduced was available at trial and in any event is irrelevant to the issues for determination on appeal – Applications dismissed. FAMILY LAW – COSTS – Where the respondent seeks his costs on an indemnity basis – Where the appellant has been wholly unsuccessful and there are circumstances which justify an order for costs being made – Where the appellant opposes any costs order on the basis of her poor financial circumstances – Where impecuniosity in no bar to an order for costs being made where there are circumstances which otherwise justify it – Where the circumstances relied on by the respondent for indemnity costs are not “exceptional” in nature – Costs ordered in favour of the respondent on a party/party basis in default of agreement. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – COSTS – Where the applications were filed due to the appellant’s inability to comply with previous orders made in relation to the filing of documents – Where the appellant had already received an extension of time to file her documents – Where the appellant has clearly been granted an indulgence which placed the respondent in a position of disadvantage – Costs ordered in favour of the respondent on a party/party basis in default of agreement. |
| Family Law Act 1975 (Cth) – ss 93A and 117 Family Law Rules 2004 (Cth) – r 22.39 |
| Australian Securities and Investment Commission v Reid (No 1) (2006) 151 FCR 540 |
| APPELLANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| APPEAL NUMBER: | SOA | 29 | of | 2013 |
| DATE DELIVERED: | 11 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 15 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 April 2013 |
| LOWER COURT MNC: | [2013] FamCA 347 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appeal be dismissed.
The application in an appeal filed by the appellant on 4 May 2015 and the amended application in an appeal filed by the appellant on 24 June 2015 be dismissed.
The appellant pay the costs of the respondent of and incidental to this appeal and the applications in an appeal filed by the appellant on 27 June 2014 and 11 February 2015, such costs to be assessed in default of agreement on a party / party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 29 of 2013
File Number: MLC 3931 of 2012
| Ms Zau |
Appellant
And
| Mr Uong |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 17 May 2013, Ms Zau (“the appellant”) appeals against orders made by Justice Cronin on 23 April 2013.
In summary, the relevant orders provided that all extant interim applications be dismissed, that paragraphs 1 – 3 of the appellant’s Amended Initiating Application filed on 26 October 2012 relating to property settlement and spousal maintenance be dismissed for want of jurisdiction, and declared pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties had not been in a de facto relationship.
The appeal was opposed by Mr Uong (“the respondent”).
By Application in an Appeal and supporting affidavit filed on 4 May 2015, the appellant seeks orders to the effect that all parties listen to the audio of the hearing before Cronin J and that that audio be admitted as evidence; that the respondent obtain the transcript to be placed in the appeal books; that an extension of time be granted for the appellant to file and serve her appeal books; that the parties be ordered to attend mediation; that the respondent pay the appellant’s costs; and, orders in the same terms as those sought in the initiating application the appellant sought to file on 24 April 2015, namely final parenting and property settlement orders.
By Application in an Appeal filed on 22 May 2015, and amended on 24 June 2015, supported by three affidavits filed on 22 May 2015, 22 June 2015 and 24 June 2015, the appellant seeks an extension of time to file an Amended Notice of Appeal and Amended Summary of Argument; to include further evidence in the appeal books; an extension of time to add transcript to the appeal books; to adduce further evidence in the appeal; to issue two subpoenas; and for costs.
Background
In 1991 or 1992 the parties met and engaged in what the trial judge described as an “emotionally charged and sexual” relationship. They were both married at the time.
There is one child of the relationship, W (“the child”), born in 1998 and now aged 18 years.
It was the appellant’s case at trial, and before this court, that the parties were in a de facto relationship between November 1991 and December 2011. The respondent conceded that he once loved the appellant, but strongly rejected the assertion that the parties had ever been in a de facto relationship.
In October 2012 the appellant filed an Amended Initiating Application seeking property and parenting orders. In relation to the property orders, the appellant sought that the court make a declaration pursuant to s 90RD of the Act that the parties were in a de facto relationship as defined by the Act, and further, that the court make orders for property settlement and spousal maintenance. Regarding parenting, the appellant sought to change the final parenting orders made by Brown J in 2005.
In his response filed on 12 November 2012 the respondent primarily sought a declaration pursuant to s 90RD of the Act that there was no de facto relationship between the parties, that there be no orders for property settlement or spousal maintenance, and that the appellant pay the costs of the respondent and provide security in this regard.
On 2 April 2013 there was a hearing before the trial judge of the application for parenting orders, and the discrete issue of whether there was a de facto relationship between the parties. His Honour made orders and delivered his reasons for judgment on these issues on 23 April 2013. As the appellant has not sought to appeal the parenting orders made by his Honour on this date, we are not concerned with those orders, or the reasons provided by his Honour in this regard.
On 10 July 2013 the appellant filed an Application in an Appeal and supporting affidavit seeking, inter alia, orders as to the documents which she asserted should be included in the appeal books. This application was considered by the Appeal Registrar on 16 July 2013 when the Appeal Registrar made orders preparing the appeal for hearing. The Appeal Registrar did not consider that all of the documents sought to be relied upon by the appellant should be before the Full Court, and, as is the usual practice, the Appeal Registrar made orders as to the documents to be contained in the appeal books, and ordered that the appellant be at liberty to file and serve supplementary appeal books containing any further documents she wanted to be before the Full Court.
On 29 July 2013 the appellant filed another Application in an Appeal and supporting affidavit seeking a review of the orders made by the Appeal Registrar on 16 July 2013. The appellant filed an amended version of this application on 1 October 2013. The hearing of this application was adjourned on three occasions, namely 10 October 2013, 7 November 2013 and 17 January 2014. The first two occasions were due to the non-appearance of the appellant, and the third by request of the appellant on the basis that she was in the process of consulting a solicitor who was prepared to act for her on a pro-bono basis. The application was finally heard on 27 and 28 February 2014 and the appellant appeared in person. At the conclusion of the hearing, Strickland J made orders and delivered ex tempore reasons dismissing the appellant’s Amended Application of 1 October 2013, and amending the timeline for preparation of the appeal for hearing.
On 27 June 2014 the appellant filed an Application in an Appeal seeking an extension of time to file the appeal books, the supplementary appeal book and her summary of argument. This application was listed for hearing on 11 February 2015. On the day of the hearing, the appellant filed another Application in an Appeal, supported by an affidavit dated 27 January 2015, seeking an order that the respondent or the Appeal Registrar prepare the appeal books, and seeking to inspect the file of the husband’s proceedings with his ex-wife; that the parties file and produce various documents in the appeal; a declaration that a de facto relationship existed between the parties; and an order for security for costs. This application was accepted only in relation to paragraph 1 thereof seeking that the respondent or Appeal Registrar prepare the appeal books.
On 11 February 2015 the Appeal Registrar made orders providing for the Appeal Registry to provide one copy of the appeal book for the appellant by 27 February 2015, setting a timeframe for the filing of documents in the appeal, and otherwise dismissing the appellant’s applications of 27 June 2014 and 11 February 2015. The costs of this hearing were reserved to this Full Court.
On 11 March 2015 the appellant filed an Application in an Appeal and supporting affidavit seeking various orders, but primarily seeking a review of a decision made by the Appeal Registrar refusing to receive an application in an appeal and supporting affidavit sought to be filed by the applicant on 23 February 2015.
This application was heard by Strickland J on 9 April 2015, and at the conclusion of that hearing his Honour made orders relating to the provision of the transcript, the preparation of the appeal books and the filing of documents in preparation for the appeal hearing. Again, the appellant sought to have certain documents admitted into the appeal books and took issue with the filing of a supplementary appeal book for this purpose. Thus, Strickland J explained that in the alternative there was the opportunity for the appellant to file an application in an appeal seeking to adduce further evidence in the appeal. It appears that the appellant accepted this course and thus his Honour discharged the order of the Appeal Registrar on 16 July 2013 (amended on 28 February 2014) allowing the appellant to file a supplementary appeal book. His Honour ordered that the appellant pay the respondent’s costs of this application.
Summary of trial judge’s reasons in relation to the orders the subject of the appeal
The trial judge began his reasons for judgment by detailing the application before him. His Honour noted that the issue which fell to be determined was whether there was a de facto relationship between the parties which would enliven the jurisdiction of the court to make the financial orders sought by the appellant. His Honour recorded at the outset that there was not (at [1] – [3]).
His Honour then recorded the background of the parties and the procedural history of the matter. In particular, his Honour, in traversing the procedural history of the matter, considered the appellant’s conduct in the proceedings, noting her poor preparation and lack of attention to detail throughout (at [4] – [27]).
Next, his Honour set out his observations of the parties as witnesses. In relation to the appellant, his Honour found that she was “unresponsive, indeed aggressive”, and when excited became “loud and … found it difficult to concentrate on the task at hand”. Additionally, his Honour noted that the appellant “reverted to pejorative language under pressure but gave every indication of understanding the meanings of her words” (at [28]).
On the other hand, his Honour observed the respondent to be “mostly calm and responsive”, apart from one occasion during cross-examination where the respondent had a “virulent outburst”, which he later apologised for (at [29]).
In relation to the evidence of the parties, his Honour found that the appellant’s “evidence was hard to follow and in parts, inconsistent”, including in documents produced by her where there was a “lack of detail about the real nature of the domestic and personal relationship ... that could not have been due to ignorance”. Where there were any “glaring gaps in [the appellant’s] evidence”, his Honour found that the respondent was able to fill in the gaps (at [30]).
Thus, his Honour concluded:
31.I found the respondent a much better historian than the applicant and when all of the documents produced by both parties were collated, I have no hesitation in finding that there is no evidence that:
a.the parties lived together as a couple; nor that
b.there was a genuine domestic basis; nor that
c.the parties had lived in a de facto relationship immediately before, on or after 1 March 2009.
The trial judge then turned to consider the legal principles applicable to de facto relationships. First, his Honour referred to the definition of a de facto relationship in s 4AA of the Act, and the list of circumstances relevant to considering the existence of a de facto relationship. His Honour opined that these factors were “illustrative rather than determinative”, and thus, “[n]o particular finding is necessarily determinative of the issue and a court is entitled to attach such weight to any matter, as may seem appropriate in the circumstances of the case” (at [33]).
Hence, his Honour explained that the “first enquiry of the court is to consider whether the relationship satisfies the definition of s 4AA(1) on its own terms”. However, his Honour noted that de facto relationships usually develop over a period of time and, as a result, it can be difficult to determine when a de facto relationship begins or ends, or whether there was ever one in existence (Keaton v Aldridge [2009] FamCA 92) (at [34]).
In this regard, his Honour observed that it would be significant if there was a “degree of interdependence between the parties of an emotional, financial or physical nature” and if the couple lived together on a “genuine domestic basis”, reflective of “a shared residence with a mutual intention to share lives with one another”. However, his Honour importantly emphasised that s 4AA(1) is a discretionary provision which is to be applied as a “single composite expression of a comprehensive notion or concept” (Simonis v Perpetual Trustee Co Limited (1987) DFC 95-052 at 75,589 per Kearney J) (at [35]).
Thus, in examining whether a de facto relationship existed, his Honour noted that the court must first “examine the overall nature of the parties’ conduct bearing in mind that it will have changed or varied as the relationship changed and to ultimately come to a conclusion based upon the concept of a couple living together on a genuine domestic basis”. His Honour then emphasised the proposition in FO v HAF [2006] QCA 555 that if a couple had “never lived together in a common abode, the circumstances strongly indicate that they have not ‘lived together on a genuine domestic basis’”. His Honour saw no reason to depart from this view in the circumstances of this matter (at [35] – [36]).
Having identified the principles, his Honour commenced his assessment of the evidence. His Honour began this assessment from 1991, the year in which the appellant asserted the relationship commenced. In relation to the initial period, his Honour identified the inconsistencies in the appellant’s evidence as to their living arrangements and then opined that though he was able to find that the parties were lovers in 1991 – 92, he was unable to find that they were “living as a couple” (at [38] – [41]).
As to the relationship between the parties in June 1993 his Honour noted that although the appellant’s evidence was that the parties moved to suburb B together, the respondent’s evidence was that he was “living in suburb C with his wife and children”. Importantly though, the appellant also deposed to her wish to end her relationship with the respondent at his time. Thus, his Honour found that the parties were not living together on a genuine domestic basis in 1993.
The appellant asserted that in 1995 she moved to suburb D and the respondent introduced her to his wife. The appellant also asserted that the respondent was still living with his wife at this time, but that she and the respondent had a good relationship and would travel together. His Honour found this evidence of no assistance to the determination of their relationship at this time (at [43]).
The appellant argued that things “turned wrong” when she told the respondent she was pregnant in 1997. The evidence surrounding this event suggested that the parties were not living together at this time and that the pregnancy “compounded difficulties” in their relationship. Further, on the appellant’s own evidence, the respondent was not living with her during this time, the appellant suspected that he had a new girlfriend, and he was providing no financial or emotional support to the appellant. Thus, his Honour found that the appellant’s assertion as to the length of the de facto relationship was “not possible” (at [44] – [46]).
When the child was born the respondent denied paternity, but upon a paternity test returning positive, he began paying child support. The appellant asserted that they had a “nice family time” between April 1999 and 2002, but confirmed that in 2000 the respondent married another woman and two different addresses were kept. His Honour considered that this was inconsistent with a genuine domestic relationship (at [47]).
His Honour then noted that the evidence from 2003 onwards, and in particular the appellant’s assertion that the respondent sought custody of the child, was inconsistent with the assertion of a de facto relationship. His Honour also reached this conclusion in relation to the period in 2005 when Brown J delivered reasons in relation to the parties’ then parenting proceedings which suggested that her Honour was satisfied the parties were not living together. Thus, his Honour found no de facto relationship during this period (at [48] – [49]).
Whilst it was not disputed that the child lived with the appellant in China from 2005 – 2006, his Honour noted that the appellant had not asserted that the respondent lived with her during this time. Further, the appellant’s claim that in 2006 the parties bought a house in Shanghai together for her father and family was rejected on the basis that in 2012 a court in Shanghai ordered that the appellant return the property to the respondent after the death of the appellant’s father. Though the respondent agreed that he would stay at the property in Shanghai when he visited, and that the appellant stayed at his home on one occasion when she came to Australia, his Honour found that the relationship between the parties was “intermittent” and that the “parties were not a couple living together on a genuine domestic basis” (at [51] – [52]).
His Honour then noted that the sexual relationship of the parties was not one that could shed light on their relationship. The appellant did not challenge the respondent’s denial of a sexual relationship between them after 2006, despite being invited to do so by the trial judge in cross-examination (at [53]).
In relation to a holiday to Thailand in 2008, his Honour accepted the evidence of the respondent. His Honour noted that the evidence surrounding the holiday confirmed “the inconsistency of the parties’ relationship rather than the opposite” and demonstrated that “they were not regularly living together as a couple in some form of union but rather as a separated couple of parents and their meetings were around times that they had [the child]” (at [54] – [55]).
In 2008 the child returned to Australia and commenced attending boarding school. Thereafter, the child “indicated a desire to remain in Australia”. The appellant then returned to China in January 2009 and remained there until March 2009. His Honour held that this evidence “[was] inconsistent with a relationship of any permanency”. The appellant’s assertion that she returned in March to see the child further supported the absence of a de facto relationship (at [57] – [58]).
The appellant took the child to China in 2009 to see her sick father, who later passed away. The appellant asserted that the respondent did not attend the funeral even though he was in China. His Honour found that, at this time, the child and respondent lived in Australia, and the appellant lived in China. In light of this evidence, his Honour held that there was no de facto relationship prior to 1 March 2009 (at [59] – [60]).
After her father died, his Honour noted that the appellant transferred the Shanghai property into her name and this is what led to the subsequent proceedings in a Shanghai court for the return of the property to the respondent (at [61]).
Thus, his Honour found that there was “no evidence of any relationship between the parties in 2009” and accepted the evidence of the respondent “that he had nothing to do with the [appellant]” (at [62]).
In 2010 the appellant returned to Australia and stayed with the respondent’s sister. His Honour noted that there “was a dispute between the [appellant] and the respondent’s sister” which led to the appellant being excluded from the house and the police being called on two separate occasions (at [63]).
His Honour noted that in her trial affidavit the appellant referred to a period in 2011 where she noted that the respondent had a “new girl again”. As such, his Honour found that “in 2011, there was no coupledom [whatever that may mean], no domesticity being shared between them and certainly no form of intimate relationship”. In light of this, his Honour concluded that “there was no de facto relationship at all” (at [64] – [65]).
His Honour then referred to various documents tendered by the appellant and found that none of these documents corroborated the existence of a couple living together on a genuine domestic basis (at [66] – [72]).
Grounds of Appeal
The appellant conducted these proceedings without legal representation. On 28 February 2014, Strickland J informed her that her grounds of appeal were incomprehensible and raised no obvious legal error. Thus, in his orders of that date, his Honour varied the notations of the Appeal Registrar on 16 July 2013 such that the appellant would have until 22 August 2014 to file an Amended Notice of Appeal. The appellant did not do this, but instead filed her application of 27 June 2014 seeking an extension of time to file an Amended Notice of Appeal. An extension of time until 22 May 2015 was granted by the Appeal Registrar on 11 February 2015.
However, in her application of 4 May 2015 and her amended application of 24 June 2015 the appellant seeks a further extension of time to file her Amended Notice of Appeal. These applications are before this Court.
Although the appellant has not sought to provide an Amended Notice of Appeal for this court to consider, in her affidavit of 22 June 2015, filed in support of her amended application of 24 June 2015, the appellant set out the amended grounds of appeal upon which she wished to rely. Unfortunately, apart from her failure to provide amended grounds in the appropriate form, the new grounds of appeal are no better than the previous ones, and still raise no appealable error by the trial judge.
The appellant’s summary of argument also provides no clarity as to this issue. First, the grounds referred to in the appellant’s summary of argument are different to those contained in her Notice of Appeal, and secondly, they again comprise general assertions and complaints which demonstrate no appealable error by the trial judge. In fact, the appellant’s summary of argument is directed at demonstrating the existence of a de facto relationship between the parties rather than any alleged error by the trial judge.
In these circumstances, at the commencement of this hearing we sought to clarify and identify the central complaints of the appellant.
From her responses, and having regard to materials filed by the appellant, it appears that the appellant’s complaints fall into four categories:
1)the trial judge erred in refusing the appellant’s application for an adjournment on the day of the hearing before his Honour;
2)the appellant was not provided with the assistance of a duty solicitor on the day of the hearing;
3)the respondent’s disclosure was inadequate; and
4)the trial judge gave insufficient weight to the evidence of the appellant.
We will address each of these complaints in turn.
Discussion
Refusal of Adjournment
The complaint raised here appears to be that the trial judge erred in dismissing the appellant’s application for an adjournment by failing to give sufficient weight to the submissions made by the appellant in support of her application.
On 2 April 2013, the day of the hearing before the trial judge, the appellant made an oral application for an adjournment of the proceedings on the basis of the alleged pressure she and the child were experiencing and the difficulties the respondent was allegedly causing. This application was dismissed by the trial judge at that time.
We note first that no Notice of Appeal has been filed in relation to this order. However, at the hearing of this appeal we indicated to the appellant that we may be willing to overlook this issue in order to allow the matter to proceed. Upon a proper consideration of this issue though, given the time which has elapsed since the order was made, and the irrelevance of such order now that the trial has concluded and an appeal has been heard, we consider that leave should not be granted to appeal this decision.
Even if the appellant was granted leave to pursue this issue, we do not consider there is any merit in the complaint. At [5] of his reasons for judgment delivered on 2 April 2013 (Zau & Uong (No 2) [2013] FamCA 402) the trial judge clearly considered the submissions of the appellant, but decided on balance not to grant an adjournment. At [23] of his substantive reasons for judgment his Honour said:
When the proceedings began, I refused [the appellant’s] application for an adjournment based upon what she described as the pressure that was being applied to [the child] because of the proceedings. I could not see that pressure being ameliorated if it existed.
Thus, given his Honour has clearly considered the submission put by the appellant, we are not persuaded that the trial judge was in error in the exercise of his discretion, such that his decision was plainly wrong.
This complaint must fail.
Failure to provide Duty Solicitor
The complaint here is that the appellant was not provided with the assistance of the duty solicitor on the day of the hearing, as her matter was called on before assistance could be sought. She says that she was waiting to see the duty solicitor when she was required to return to court.
First, this complaint reveals no error by the trial judge. Secondly, there was nothing preventing the appellant from seeking the assistance of a duty solicitor prior to the date of the hearing. Thirdly, it is not the role of a duty solicitor to appear for a party at the hearing of their matter, and even if it was, it is well settled that a party to a civil proceeding does not have a right to legal representation (New South Wales v Canellis and Ors (1994) 181 CLR 309 at 328; Australian Securities and Investment Commission v Reid (No 1) (2006) 151 FCR 540 at 545; JB & BW (Application to extend time to appeal) [2010] FamCAFC 144 at [59] – [80].
Thus, as the appellant had ample opportunity to seek the assistance of a duty solicitor prior to her hearing, or to engage a solicitor to assist in her matter, she cannot now claim that her failure to do so enlivens appellate interference. As no error has been demonstrated on the part of the trial judge, this complaint must also fail.
Inadequate disclosure
At the hearing before us the appellant complained that the respondent had provided inadequate disclosure. In particular, the appellant complained that her requests for the production of court documents relating to property proceedings between the respondent and his ex-wife, Ms X, had not been complied with. It was asserted that these documents would support her claim of a de facto relationship between the parties from 1991 to 2011, such that his Honour’s finding that they were not in a de facto relationship would be plainly wrong.
We do not accept this submission. The first difficulty the appellant faces is that it does not appear from the extract of the transcript the appellant provided to the court, or from a perusal of her documents, that she raised the issue of non-disclosure with the trial judge. Thus, it is not open for the appellant to raise that issue before us (Metwally v University of Wollongong (1985) 60 ALR 68).
In any case, the property proceedings between the respondent and his ex-wife were completed in 1999. On that basis, we do not consider that the appellant has suffered any prejudice by not having access to these documents. It is difficult to see what relevance these documents would have in the context of the trial judge’s decision, and we are not persuaded that such documents would have the capacity to demonstrate that his Honour’s decision about the absence of a de facto relationship between the parties was plainly wrong.
Insufficient weight
This complaint attacks the trial judge’s finding that there was no de facto relationship between the parties. In particular, the appellant asserts that the trial judge gave insufficient weight to the evidence of the appellant as to the existence of a de facto relationship. Though the appellant did not point with any specificity to the evidence she suggests was not provided sufficient weight by the trial judge, broadly, the appellant complains that his Honour failed to consider the affidavit of her friend Ms Y sworn on 28 October 2012, the photos annexed to her trial affidavit of 1 February 2013, and two affidavits filed by the appellant on 22 August 2003 and 29 November 2012 respectively.
It is well settled that an appellant who seeks to challenge a discretionary judgment on the basis of the weight afforded by a trial judge to the evidence faces a difficult task. The authorities emphasise that an appeal court will be slow to interfere in a discretionary judgment unless the decision is “plainly wrong” or unreasonable, such that it is not a proper exercise of discretion at all. For example, in Gronow v Gronow (1979) 144 CLR 513 at 519, Stephen J said:
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 arrive 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 at 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.
Thus, a challenge to a discretionary judgment cannot succeed on the basis that the appellate court, if in the position of the trial judge, would have come to a different conclusion. The appellant must demonstrate that the trial judge’s decision is founded upon an error, such that the discretion has not been properly exercised.
The appellant complains that the trial judge erred in failing to place sufficient weight on the affidavit of her friend Ms Y sworn on 28 October 2012, and annexed to the appellant’s unsigned affidavit of 2 April 2013. However, it is clear that his Honour received this document, and indeed specifically referred to the appellant’s affidavit at [21] of his reasons:
Despite meeting the deadline of 1 February 2013, the applicant then went overseas and missed her deadline for any affidavit in reply she might want to file. After some discussion, I gave her leave to file that affidavit in reply even though it was not signed. She had provided a copy to the solicitors for the respondent. No real opposition was raised to the filing of the document and although it would appear on the court file as unsigned, the applicant swore in the witness box that its contents were true and correct.
Though his Honour did not specifically refer to the affidavit of Ms Y, it is well established that it is not necessary or required that a trial judge refer to every piece of evidence given in the trial (for example see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 464 and Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386). The evidence of Ms Y is, however, consistent with the findings of the trial judge and does not compel a different conclusion.
Another assertion of the appellant was that the trial judge did not consider the photographs annexed to her affidavit of 1 February 2013. However, his Honour specifically referred to these photographs and his consideration of the same:
66.The applicant attached to her trial affidavit and subsequently tendered to the Court a variety of documents which purported to somehow corroborate the relationship. I have carefully examined those documents some of which are emails between the parties and others documents such as photographs…
…
69....The photographs which appear to have been taken in 1991 confirm that the respondent expressed love for the applicant. For the reasons I have articulated, I do not know where that assists the applicant. She attached photographs of her in model pose and they were also taken over 20 years ago.
70.There were also photographs of the respondent with the applicant’s father and [the child] present tendered in evidence. None of those support a conclusion of a genuine domestic relationship. The respondent acknowledged a respect he held for the late father of the applicant. There are also photographs of the applicant in a family group shot with the respondent, [the child] and two other children of the respondent. But in the same group of photographs, the respondent’s wife also appears. I am not at all convinced that that proves anything.
Finally, the appellant complains that the trial judge did not consider her affidavits of 22 August 2003 and 29 November 2012.
In relation to the affidavit of 22 August 2003, it is clear from his Honour’s reasons that his Honour did consider that affidavit. That affidavit was inconsistent with the appellant’s assertion of a de facto relationship between the parties at that time, and in relation to the parenting proceedings before Brown J in 2003, his Honour said at [49]:
…her Honour was of the impression that the applicant and respondent were not living together. That is supported by the applicant’s affidavit in August 2003 which she had filed for the proceedings before Brown J. There, she said the parties lived “close” to each other. Thus, I find that to June 2005, the parties had not been in any de facto relationship.
As to the affidavit of 29 November 2012, on 3 December 2012 the trial judge made trial directions requiring the appellant to file and serve the affidavits of evidence in chief of all witnesses, including the appellant, which the appellant would be relying upon at the final hearing. As a note to this order, his Honour explained that “affidavits relied upon for previous hearings cannot be relied upon as evidence in chief” (see r 15.06 of the Family Law Rules 2004 (Cth) (“the Rules”)). This was such an affidavit. Despite this, the appellant sought to refer to it during her final submissions on 2 April 2013, and the following discussion occurred:
MS [ZAU]: Everything was in the affidavit.
HIS HONOUR: Well, hang on. Is it in this affidavit you filed on 1 February? Is that the same one?
MS [ZAU]: No, no, not 1 February.
HIS HONOUR: Well, you can’t rely on an affidavit in November because that’s why I made you do another affidavit.
(Transcript 2 April 2013 pg. 60, lines 13 - 21)
To the extent that the appellant was asserting that the trial judge failed to place sufficient weight on her evidence as a whole, we consider that the trial judge carefully weighed the evidence of both parties at [38] – [65] in reaching the conclusion he did. As part of his reasoning, his Honour comprehensively assessed the evidence of the parties as to their relationship between 1991, when the appellant asserted that the relationship between the parties began, and 2011 when the appellant says the relationship ended. It is apparent that his Honour considered the evidence of the appellant in detail, but found that her evidence was unable to be accepted because it was inconsistent with her case and/or that the respondent provided a more reliable account of the issues in dispute. The trial judge’s findings in this regard are accurately summarised in the following paragraphs:
27.It has been said that a trial judge has a responsibility to search carefully through an unrepresented litigant’s material to avoid them being prejudiced by their own obfuscation but the Court cannot make a case for that litigant. Accordingly, I have examined the affidavit material the applicant filed including all of the annexures. I have made findings based upon that material.
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30.The applicant’s evidence was hard to follow and in parts, inconsistent. She produced a number of documents said to corroborate her evidence but as I shall set out below, they did the opposite. The lack of detail about the real nature of the domestic and personal relationship was obvious yet that could not have been due to ignorance. The applicant knew what she was addressing because, as I have already said, she had access to the legislation. In addition, she reverted to a statement about what was usual or acceptable in Chinese culture. That statement highlighted the glaring gaps in her evidence. Those gaps were filled by the respondent who was able to tell me what had occurred during those periods of time.
31.I found the respondent a much better historian than the applicant and when all of the documents produced by both parties were collated, I have no hesitation in finding that there is no evidence that:
(a)the parties lived together as a couple; nor that
(b)there was a genuine domestic basis; nor that
(c)the parties had lived in a de facto relationship immediately before, on or after 1 March 2009.
Thus, it is clear that his Honour was at pains to ensure that he had considered all of the evidence relied on by each of the parties before making his finding in relation to the existence of a de facto relationship between the parties. We consider that his Honour’s finding was clearly open on the basis of his examination of the evidence at [38] – [65], and the appellant cannot complain that his Honour has erred in this regard merely because he did not find in her favour.
There is no merit in this complaint.
Applications in an Appeal
Application filed 4 May 2015
In this application the appellant sought six orders, which for the most part pertained to the preparation of the appeal for hearing. It is convenient to deal with each seriatim.
The first order sought by the appellant is that both parties be granted leave to listen to the audio of the hearing before the trial judge on 2 April 2013, and that that audio be admitted into evidence. However, the appellant raised these issues before Strickland J on two separate occasions, and his Honour dealt with these issues in his reasons for judgment of 28 February 2014 (Zau & Uong [2014] FamCAFC 36) and 9 April 2015 (Zau & Uong [2015] FamCAFC 73). In his reasons of 9 April 2015, his Honour said:
9.The further problem that the applicant has identified though, is that she still has not obtained the transcript, and paragraph 2 of the orders made on 11 February 2015 requires that the appeal book contain any transcript on which she intends to rely. In that regard what the applicant has said is that she is unable to afford to obtain all of the transcript, and she wants to listen to the transcript [sic] and identify those parts of the transcript on which she would want to rely, and then purchase that part of the transcript and provide that to the court and also to the respondent.
10.I note, and Mr Peppin has reminded me of this, that that very issue was raised with the applicant on 27 and 28 February 2014 when I determined that the applicant would be the party who has to obtain the transcript. At that time what the applicant was wanting was the entirety of the transcript. In any event, fortunately there is sufficient time to allow the applicant to now do what she proposes. Thus, I propose to make an order allowing that to occur.
His Honour then ordered:
(2)The applicant be at liberty to arrange with Auscript to attend at their offices to listen to the audio of the hearing before Justice Cronin on 2 April 2013 for the purposes of the applicant identifying those parts of the transcript of that hearing on which she intends to rely for the purposes of this appeal and the applicant obtain those parts of the transcript and provide copies to the Court and to the respondent by the close of business on Friday 8 May 2015.
The appellant acted upon this order and has provided the respondent and the court with a copy of that section of the transcript that she considers relevant to this appeal. On this basis, we are satisfied that this issue has been adequately disposed of. We will therefore not be making the order sought by the appellant.
Secondly, the appellant sought an order that the respondent be responsible for obtaining the transcript. As with the order sought above, this was raised before Strickland J on the two occasions referred to. In his reasons of 28 February 2014, his Honour explained:
23.[The appellant] was not able to indicate any legitimate basis for the respondent to obtain the transcript in the circumstances of it being her appeal, the respondent opposing the appeal, the respondent wanting to maintain the orders of the trial judge and [the appellant] not being able to identify any conduct on the part of the respondent which could be said to have led to the orders made by the trial judge, and from which she appeals.
24.[The appellant] has complained about the conduct of the respondent in relation to the preparation of the matter for hearing before the trial judge and particularly in relation to issues for example, of disclosure. However, there is no necessary link between that complaint, even if it is justified, and I make no comment about that, and the orders ultimately made by the trial judge. Thus, I can see no basis whatsoever for an order to be made that the respondent obtain the transcript.
His Honour then referred to this finding in his reasons of 9 April 2015 (at [10]). We agree with his Honour’s reasons in this regard. In any case, as explained above, the appellant has now obtained that part of the transcript required for her appeal, and this order is no longer necessary.
Thirdly, the appellant sought an extension of time to file her appeal books and an Amended Notice of Appeal. As we explained to the appellant at the hearing of the appeal, the appellant has now filed the documents that she wishes to rely upon, and the appeal has now been heard, and thus there is no basis to make the orders sought by the appellant in that regard.
Fourthly, the appellant sought an order for the parties to attend mediation. These proceedings have been in this court since 2012, there have been final orders made in relation to the property matters and parenting matters between the parties and we have now heard an appeal from the final property orders. Clearly, the time for mediation between the parties has passed, and we will not be making the order sought by the appellant.
Fifthly, the appellant seeks an order that she receive orders in the same terms as those contained in the Initiating Application she sought to file on 24 April 2015, but which was refused by the Appeal Registrar. In the application of 24 April the appellant sought final orders in relation to parenting and property. However, the orders sought were in similar terms to those sought by the appellant in her Amended Initiating Application filed on 26 October 2012. That application was finally disposed of by the trial judge on 23 April 2013 in relation to the property orders sought, and Macmillan J on 4 February 2015, in relation to the parenting orders sought. As the orders contained in this application have been dealt with on a final basis, and given we have now heard an appeal from the final orders of the trial judge in this regard, there is no basis upon which we would make the order sought by the appellant.
Finally, the appellant seeks an order for her costs of the appeal. At the appeal hearing we explained to the appellant that submissions as to costs would be heard at the conclusion of the appeal. We will come to that later in these reasons.
Given there is no basis to make the orders sought by the appellant, this application will be dismissed.
Amended Application filed 24 June 2015
In her Amended Application in an Appeal filed on 24 June 2015 the appellant seeks a variety of orders.
First, the appellant seeks an extension of time to file an Amended Notice of Appeal, Amended Summary of Argument and an Amended List of Authorities by 22 May 2015. For the reasons explained above (at [79]), this order will not be made.
The next order sought by the appellant is that the court “certify” the appeal books to include affidavits filed by the appellant on 22 August 2003 and 29 November 2012. As explained above (at [12] and [17]) the appellant was given an opportunity to prepare a supplementary appeal book but ultimately decided not to. It was then explained to the appellant that if she wished to adduce further evidence she could do so by making the appropriate application to the court. The appellant has not sought to include these affidavits in her application to adduce further evidence. In any case, the appellant has filed her appeal books, and the time is past for any further material to be included. Thus, we are not disposed to make an order of this kind.
The third order sought by the appellant is for an extension of time to adduce further evidence contained in three affidavits filed by the appellant, namely her affidavits of 22 May 2015, 22 June 2015 and 24 June 2015. We note that an extension of time is not required as the appellant filed the application within the time limit prescribed by r 22.39 of the Rules, and thus we are prepared to consider this application.
Section 93A(2) of the Act provides that it is within the Full Court’s discretion to receive further evidence in an appeal which goes to a question of fact, and to draw conclusions and inferences from that evidence. This sub-section was considered in CDJ v VAJ (1998) 197 CLR 172 where their Honours McHugh, Gummow and Callinan JJ said:
109.One 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.
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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 appellant to a new trial. The power to admit further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of 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 has 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.
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116.The 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.
Further, where the evidence sought to be adduced is controversial, in that it would require the evidence to be tested by cross-examination and evidence to be led in response, the evidence will usually not be admitted. It is not the function of an appeal court to hear contested evidence.
The appellant asserts that the evidence contained in her affidavits should be admitted, as it demonstrates that the trial judge erred in finding that there was no de facto relationship between the parties.
First, it is important to note that much of the evidence which the appellant seeks to adduce was available at the time of trial and is similar, if not identical, to the evidence referred to by the trial judge at [66], [69], [70] and [71] of his reasons, in that it comprises photographs and emails which date back as far as 1991. Further, the appellant seeks to adduce court documents and correspondence which predates the trial. It is likely that these documents were also before his Honour. We consider that this is a factor weighing heavily against the admission of this evidence.
Additionally, upon a careful consideration of the evidence, it is clear that very little of the evidence is of any relevance to the proceedings or the issues we must determine. For example, annexed to the appellant’s affidavit are medical records and letters sent from medical practitioners in 2015 which explain the mental health issues suffered by the appellant at that time. Though these records are of course relevant to the appellant and her conduct in these proceedings, they are not relevant to an examination of whether his Honour has erred in finding that there is no de facto relationship between the parties. The same can be said of the emails, text messages, international movement records and passport photos annexed by the appellant.
Given that much of the evidence was available at trial and is irrelevant to the issues for determination in this appeal, there is no basis to admit this further evidence.
Fourthly, the appellant sought that she that she be granted an extension of time to add transcript to the appeal books, and that the respondent be responsible for obtaining the transcript. These issues have been considered in detail at [66] – [70] and [153] and need not be repeated. Suffice to say that these orders will not be made.
Fifthly, in relation to the order seeking leave to issue two subpoenas, again the appellant has misunderstood the nature of an appeal. An appeal is not a re-run of the evidence, and the time for issuing subpoenas is long past. The appellant was provided with ample opportunity to present her case before the trial judge and her failure to do so at the appropriate time is not an issue for this court.
In these circumstances this application will also be dismissed.
Conclusion
Given that we have found no merit in any of the appellant’s complaints this appeal must be dismissed along with the applications in an appeal filed by the appellant.
Costs
The Appeal
At the conclusion of the hearing we sought submissions from the parties as to costs depending on the result of the appeal. In the event that the appeal was dismissed, the respondent sought his costs of and incidental to the appeal on an indemnity basis.
First, we must consider whether an order for costs should be made. If it should be, we will then consider on what basis such costs are to be calculated.
As to the first question, the primary rule is that each party should bear their own costs (s 117(1)) unless there are circumstances justifying the awarding of costs (s 117(2)). In considering whether there are circumstances justifying costs, the court must have regard to the factors in s 117(2A) of the Act.
Plainly, there are circumstances here that justify an order for costs, and we need not look any further than that the appellant has been wholly unsuccessful in her appeal.
However, the appellant opposed an order for costs on the basis of her poor financial circumstances. In support of this submission the appellant indicated that she received a disability pension. However, this court has long accepted that impecuniosity is not a bar to an order of costs, and the court may order costs where the circumstances otherwise justify it (D & D (Costs) (No 2) (2010) FLC 93-435). We are satisfied that this is such a matter.
We must now consider upon what basis the costs should be calculated.
The principles in relation to indemnity costs are well settled and a court will only award indemnity costs where there are “exceptional circumstances” (Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248, D & D (Costs) (No 2) (2010) FLC 93-435 and Kohan and Kohan (1993) FLC 92-340). However, the existence of exceptional circumstances does not necessitate an order for indemnity costs, and it remains in the court’s discretion as to whether such costs should be awarded in the circumstances of the case.
The respondent in support of his application for indemnity costs relies on the conduct of the appellant in the context of the appeal, and the hopelessness of the appeal. In particular, the respondent asserts that there were no “arguable legal or factual questions” and submits that the appellant “has been aware, since at least 28 February 2014, that her Notice of Appeal contains no identifiable grounds of appeal”. The respondent contends that the lack of any merit in the appeal was obvious from Strickland J’s reasons for judgment delivered on 28 February 2014 (Zau & Uong [2014] FamCAFC 36).
The respondent asserted that this case could be distinguished from Janos & Karel [2015] FamCAFC 85 at [59], where Thackray J found that had the appellant been legally advised “he may have recast his appeal so as to make it at least reasonably arguable”. By analogy, the respondent asserts that, even if the appellant amended her Notice of Appeal on the basis of legal advice, “it would not overcome the absence of any appealable error by the Honourable Justice Cronin”. We agree with that submission.
However, we are not satisfied that the circumstances relied on by the respondent are “exceptional” in nature. We would therefore dismiss the application for indemnity costs and order that the costs be paid on a party/party basis.
The Applications in an Appeal filed on 27 June 2014 and 11 February 2015
As explained above, on 11 February 2015 the Appeal Registrar heard the applications in an appeal filed by the appellant on 27 June 2014 and 27 January 2015 (sic; accepted for filing on 11 February 2015) seeking an extension of time to file her appeal books and a summary of argument. At this hearing, the Appeal Registrar amended the dates for the filing of documents in the appeal and reserved the costs of those applications to this Full Court to consider.
It is clear that these applications were filed by the appellant due to her inability to comply with the orders made in relation to the filing of documents in preparation for the appeal. However, it is important to note that at the time of filing these documents the appellant had already received an extension of time in relation to them. Thus, in receiving yet another extension of time the appellant has clearly been granted an indulgence which placed the respondent in a position of disadvantage. Not only did he have to incur costs in relation to the hearing of these applications, but the finalisation of these non-meritorious proceedings was even further delayed.
For these reasons, we consider that the appellant should pay the costs of the respondent of and incidental to the applications in an appeal filed on 27 June 2014 and 11 February 2015.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 May 2016.
Legal Associate:
Date: 11 May 2016
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