Baleni & Nowenyu [2015] FamCAFC 91; (21 May 2015)

Last updated: 25 May 2015

FAMILY COURT OF AUSTRALIA

BALENI & NOWENYU

[2015] FamCAFC 91

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – Where the wife seeks to appeal certain final orders for property settlement – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where both parties are self-represented – Where no application for costs was made by either of them and r 22.53 applies.

Family Law Act 1975 (Cth) – ss 79(2) and 79(4)(na)

Family Law Rules 2004 (Cth) – r 22.53

APPELLANT:

Ms Baleni

RESPONDENT:

Mr Nowenyu

FILE NUMBER:DGC2658of2012 APPEAL NUMBER:SOA31of2014

DATE DELIVERED:

21 May 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 April 2014

LOWER COURT MNC:

[2014] FCCA 547

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

ORDER

(1) The appeal be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 31 of 2014
File Number: DGC 2658 of 2012

Ms Baleni

Appellant

And

Mr Nowenyu

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Notice of Appeal filed on 3 September 2014 Ms Baleni (“the wife”) appeals against certain of the orders for property settlement made by Judge Curtain of the Federal Circuit Court of Australia on 11 April 2014. Mr Nowenyu (“the husband”) opposes the appeal.
2. In summary the orders subject to challenge provided for the husband to transfer to the wife his interest in the former matrimonial home at B, for the wife to take over the payment of the mortgage loan and the rates, taxes and other outgoings in relation to that home, for the husband to deliver certain documents and chattels to the wife, for the wife to pay outstanding school fees for the child of the marriage, and for each party to otherwise retain the assets that they have.

BACKGROUND

3. The wife was born overseas in 1975, and thus was aged 39 years at the time of the hearing before the trial judge.
4. The husband was also born overseas in 1966, and thus was aged 47 years at the time of the hearing before the trial judge.
5. The parties commenced cohabitation in around 2000 and they married in the United Kingdom in 2003. They ultimately migrated to Australia in 2008 or 2009 with their daughter A who was born in 2004.
6. In July 2011 the husband’s two children from a previous relationship aged respectively 19 years and 17 years at the time of the hearing before the trial judge migrated to Australia from the United Kingdom to live with the parties.
7. The parties separated in May or July 2012.
8. At the time of the hearing before his Honour the wife was living in the former matrimonial home at B with the child A, and the wife was employed as a health professional.
9. At the time of the hearing before his Honour the husband, who is a professional, was living in rented premises with the two children from his previous relationship.
10. In 2010 the parties purchased a vacant block of land at B and had a home constructed thereon in late 2011/early 2012. His Honour found that at that time the parties’ total debt for the purchase of the land and the construction of the home exceeded the value of the property.

THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE

11. After recording the background of the parties and the evidence relied on by each of them, his Honour set out the “general approach to hearing property applications” by reference to [72] of the decision of Walters J in Jewel v Jewel [2013] FCWA 81.
12. His Honour then identified the assets and liabilities of the parties, and their superannuation entitlements. It is useful to set out his Honour’s findings in this regard as follows:

The Pool

17.

ASSETS
Asset	Value determined on the evidence (rounded to nearest dollar)
[Former matrimonial home at B]	$495,000
Husband’s ... motor vehicle	$4,500
Husband’s 2011 ... motor vehicle	$11,500
Wife’s 2008 ... motor vehicle	$12,000
Husband’s chattels	$5,000 E
Wife’s chattels	$5,000 E
Home theatre equipment in possession of the husband	$6,000 E

Liabilities

18.

LIABILITY
Liability	Agreed (rounded to nearest dollar)
Mortgage over former matrimonial home	$494,000
Husband’s credit cards	$16,400 (approximately)
Outstanding school fees owed by the husband	$9,000
School fees owed by the wife	$1,485
Wife’s credit card	$7,518
Wife’s Gold credit card	$4,918
Wife’s master card	$2,286
Husband’s personal loan for [2011] ... motor vehicle	$18,000 (approximately)

SUPERANNUATION
Superannuation	Agreed value (currently) (rounded to nearest dollar)
Husband’s superannuation	$28,706
Wife’s superannuation	$31,070

(Emphasis in original)

13. His Honour then found that it was “just and equitable that orders should be made ... in relation to the parties’ property” (at [19]).
14. His Honour proceeded to make findings as to the respective contributions of the parties pursuant to s 79(4)(a), (b) and (c) of the Family Law Act 1975 (Cth) (“the Act”). His Honour concluded as follows:
    42. Overall in relation to contributions, whilst the husband clearly made contributions pursuant to s. 79(4)(a), (b) and (c) of the Act, the wife made greater contributions in all areas.
15. After finding that his Honour’s proposed orders “do not affect the earning capacity of either party” (s 79(4)(d) of the Act), his Honour turned to a consideration of the relevant matters arising under s 75(2) of the Act.
16. His Honour then concluded this part of his judgment by reference to s 79(4)(f) and s 79(4)(g) of the Act.
17. Under the heading “Just and equitable conclusion” his Honour described the “essence of the wife’s case” as being that she should retain the assets that she had, the former matrimonial home be transferred to her, and the husband should pay to her $43,000 by transferring his superannuation entitlement of $28,706 to her, and the balance ($14,294) being paid in cash.
18. His Honour found that this claim was “unrealistic and certainly not just and equitable in all the circumstances of the case” (at [75]).
19. His Honour then recorded this at [76]:

The husband did not specify what property orders he sought in his application and neither party sought orders against the other’s chattels (save for the home theatre) and it was clear that the wife was to retain her motor vehicle and the husband his motor vehicle.

20. His Honour then set out in some detail the effect of his proposed orders at [77].
21. In summary, the wife would retain and receive net assets totalling $12,315 together with her superannuation of $31,070. On the other hand the husband would have a net deficit of $26,900 (assets of $16,500 but liabilities of $43,400), and he would retain his superannuation of $28,706.
22. His Honour then concluded as follows:
    78. These parties have few assets and resources to divide; these cases are always difficult. With a net pool of less than $50,000 it is inappropriate to view the outcome in percentage terms. The wife through these orders has an opportunity to not only house their daughter but build up her assets over time given her income earning capacity.
    79. The husband is in a worse position than that of the wife. Some of it is a result of him increasing his debt post-separation of which he is the author. He also has the capacity to earn an adequate income, and overtime rebuild his assets.
    80. A significant factor in this case was [A], who is much younger than her half sisters. She will be a great strain on the wife’s resources overtime, notwithstanding that I accept the husband is likely to pay child support and contribute to her school fees, when he has that capacity. The wife has a duty to house her daughter and will devote herself to her daughter’s welfare as she has for the last 9 years.
    81. The husband has been under employed in the recent past and made some poor post-separation financial decisions. However, he impressed me that he will work hard to rebuild his assets and promote the welfare of his 2 daughters who reside with him.

THE GROUNDS OF APPEAL

23. The grounds of appeal set out in the Amended Notice of Appeal are as follows:
    1. The orders in regard to the property division are not just and equitable pursuant to Section 79(2) of the Family Law Act 1975.
    2. The Honourable Judge misinformed himself as to the value of the matrimonial home and as a consequence the Appellant wife obtained a negative share of the matrimonial property.
    3. The Honourable Judge did not take into account paragraph 3 of the orders made on the 2nd April 2013 wherein the agreed value of the matrimonial home was set at $480000.
    4. The Honourable Judge failed to take into account paragraph 5 of the orders made on the 2nd April 2013 wherein the husband was to pay out arrears of the mortgage and council rates and has failed to do so.
    5. That the Honourable Judge failed to consider the Appellant’s response to the the [sic] question he raised wherein on being asked by the Honourable Judge if she could take over the mortgage of $494000, she replied only if the husband paid the outstanding amount of $27000 owed by him on the mortgage, credit cards and child’s school fees.
    6. During the course of the case, the Husband failed to produce any of his financial records to the wife or the court despite repeated attempts by the wife to obtain them. Therefore it is unclear on what basis the Honourable Judge reached his findings about the husband’s financial picture.
    7. The Honourable Judge did not consider the poor record of child support payments made by the husband are likely to occur in the future.
24. Ground 1 is not a proper ground of appeal; it is just an assertion, and in any event, as I understand it, the alleged errors raised in the balance of the grounds are the complaints on which the wife says that the orders are “not just and equitable”.
25. Ground 6 is also not a proper ground of appeal. It cannot be an error by the trial judge that the husband failed to produce “financial records” as requested by the wife. It is also plain from his Honour’s reasons for judgment the basis on which his Honour made his findings about the husband’s financial position.
26. Grounds 2 and 3 can conveniently be addressed together, but the rest of the grounds will need to be discussed individually.

THE ORDERS SOUGHT IN THE APPEAL

27. The orders sought by the wife in her Amended Notice of Appeal are as follows:
    1. That it is ordered that the husband pay the sum of $27000 to the wife as to his share of the mortgage over the matrimonial property, credit cards and child’s school feed.
    2. That the matrimonial home be placed on the market to be sold with a reserve price of $495000 or such other reserve as advised by the estate agents appointed to carry out such sale.
    3. That should the matrimonial home be sold at a price which does not meet all mortgage, sale costs and other costs, the parties be at liberty to apply to this court to seek orders in regard to the payment of the outstanding amounts owed and the husband be liable to pay 75% of outstanding costs and the wife 25%.
28. However, in her written summary of argument filed on 14 October 2014, apart from order 1, namely that the husband pay to the wife the sum of $27,000, the wife set out substantially different orders that she sought. Most if not all though were orders that could not be made for various reasons, and this was explained to the wife at the commencement of the hearing.

DISCUSSION

Grounds 2 and 3

29. His Honour determined that “on the evidence” (at [17]) that the former matrimonial home at B was valued at $495,000. This is challenged by the wife, relying it seems on what was an agreed value of $480,000.
30. In the lead up to the final hearing there was an affidavit filed in March 2013 by a real estate agent opining that the property was “worth” $480,000, and it seems that became an agreed figure between the parties. That agreement is evidenced by the order his Honour made on 2 April 2013 which provided for the wife to enquire about and apply for a mortgage loan to purchase the B property for $480,000, and for the parties to do all things necessary and sign all necessary documents to have the reserve fixed at $480,000 in the event that the property was auctioned should the wife not apply for a loan or otherwise make an offer that is accepted to purchase the property. I also need look no further than [10] of his Honour’s reasons for judgment where he quoted from paragraph 68 of the husband’s affidavit filed on 17 July 2013. There, the figure of $480,000 is referred to as an agreed value between the parties. Indeed, the property was placed on the market at that figure, but remained unsold prior to the final hearing (see paragraph 70 of the husband’s affidavit filed on 17 July 2013, quoted at [10] of his Honour’s reasons for judgment).
31. However, primarily because of the lapse of time since the affidavit of the real estate agent was filed, on the first day of the hearing before his Honour, namely on 25 October 2013, his Honour made an order that the husband arrange for up to three kerbside assessments to be undertaken by real estate agents in relation to the property, and the wife do all reasonable things necessary for those agents to inspect the property.
32. The husband complied with that order, and when the hearing resumed on 26 February 2014 he presented the three assessments. The average of the three assessments was $495,000, and that of course was the figure accepted by his Honour as the value of the property.
33. There was a suggestion made during the hearing before his Honour that it may be necessary for the authors of those appraisals to be called for cross-examination, but that did not happen, and the transcript does not reveal a reason for that; indeed the issue does not appear to have been raised again either by his Honour or by any party.
34. In these circumstances, there can be no merit in these grounds of appeal.

Ground 4

35. Paragraph 5 of the order made on 2 April 2013 provided as follows:

The Husband approach the Bank and the [Council] to arrange to pay the mortgage arrears and his share of the [Council] rates.

36. This was part of an interim order made that day prior to and in the lead up to the final hearing.
37. At that final hearing the husband agreed that he had not arranged to pay the mortgage arrears or his share of the council rates. He said candidly, but clearly unacceptably, that he could not afford to make these payments because of his other commitments.
38. His Honour though did take into account the fact that the husband made far less mortgage repayments than the wife and that the wife paid all of the council rates.
39. At [29] of his Honour’s reasons his Honour referred to the mortgage repayments made by each of the parties following the separation and then said this:

...

However, this contribution by the wife has to be seen in the context of her occupation of the former matrimonial home from July, 2012 to date, to the exclusion of the husband. She benefited from these payments by having exclusive use of the property whereas the husband did not directly benefit from his payments of nearly $7,000.

40. There of course his Honour was specifically addressing the issue of mortgage repayments, however in his Honour’s overall findings in relation to the respective contributions of the parties, it is plain that his Honour took into account the wife’s greater contributions including by way of payment of council rates, although of course those payments are also offset by the wife’s occupation of the former matrimonial home to the exclusion of the husband (see [42]).
41. Thus, there is no merit in this ground of appeal.

Ground 5

42. The options facing the trial judge in relation to the former matrimonial home were to do as the wife sought and allow her to retain it, or order that it be sold.
43. There was of course a dispute as to the value of the home, and that was an issue for the wife in retaining that property given the amount of the mortgage, namely $494,000. She was concerned that if the home was worth only $480,000 then she would not be able to take over that mortgage. In addition there were her other debts, comprising credit card debts, and outstanding school fees.
44. Initially, the wife sought that the husband pay her approximately $43,000 as well as she retaining the former matrimonial home and taking over the mortgage, but during the hearing before the trial judge that claim was reduced to $27,000 as a result of appropriate interventions by the trial judge, and ultimately accepted by the wife, in relation to the amounts that made up that total claim.
45. The sum of $27,000 was made up of an amount of approximately $16,000 being one half of the amount that the wife had paid towards the mortgage loan over and above the amounts that the husband had paid subsequent to separation, approximately $9,000 being the husband’s share of the wife’s credit card debt at separation (i.e. representing his use of that card), and the balance being outstanding school fees for the child of the marriage.
46. Certainly, at one stage during the hearing the wife did indicate to the trial judge that she could not retain the former matrimonial home and take over the mortgage without the husband paying her the money that she said he should. This occurred on the last day of the hearing before his Honour, and it is instructive to record the entire exchange between the wife and the trial judge as follows:

HIS HONOUR: ... Now, in relation to the property, you’re seeking a payment from the father. I’ve reduced it to some degree, but nonetheless it’s a lot of money. My concern is this, I haven’t made my mind up about property yet, I’m still thinking about it, but my concern is this, when you look at his financial statement where does he get the money from to pay you? You need money now. You don’t need it in the future.

[THE WIFE]: No. I need money. It’s savings that I’ve lost which I was hoping to actually reduce borrowing from the bank against this home as well.

HIS HONOUR: If you keep the house, can you borrow enough money to pay the current mortgage or can you leave that in place?

[THE WIFE]: According to my plan, that’s not how I planned.

HIS HONOUR: What I’m asking you is this: if you keep the house, can you go to a bank and borrow enough to pay out what’s owing and put the mortgage in your name or you can’t do that?

[THE WIFE]: The last time they offered me 480,000.

HIS HONOUR: The mortgage is about 493, so you can’t do it at this stage?

[THE WIFE]: If I get the money from him, this is what I’m saying, the savings that I have lost, then - - -

HIS HONOUR: Yes, but I explained to you the other day, this is not a case about getting back money lost. This is about contributions to property and there’s no doubt you’ve made significant contributions. You’ve only got to look at the payments in separation. On the mortgage you’ve paid 39,000 and he has paid 6000. It’s clear you made a greater contribution. That’s why it’s my view you should retain the home and the mortgage but the problem is there’s not much else. You should keep your own super, you should keep your own car, but when I turn to him and I look at his financial statement, there’s not much there.

Like any people who have just recently come to Australia, you’re both working very hard, you’re both trying to build up resources, but you’ve only been here a relatively short period and what you’ve created is a lot of debt you can’t service, but over time you can, but I can’t give you money that’s not there. I can’t say he has got to pay you. I can’t make him go out and borrow it and give you 20,000, give you 30,000. It’s just not possible.

(Transcript 28.2.14, page 237, lines18 – 47, page 238, lines 1-11)

47. It is apparent that his Honour was not satisfied that the husband could pay anything to the wife, but it is important to highlight that later that same day his Honour said this to the husband in discussing the wife’s need to retain the home at least for the benefit of the child:

HIS HONOUR: It’s just good for the child to stay in the same home. To have stability but ultimately if she can’t do it and she has got to sell it at least she has got control of the sale and can minimise any loss. What do you say about this though? There’s a certain attraction to this. You don’t have the money to give her $27,000 or $43,000 but you do have a car you’re prepared to sell for $4000. If you give that to this lady, she can sell her car for about $11,000 and reduce her debt.

[THE HUSBAND]: I am happy ---

HIS HONOUR: What’s wrong with that concept in terms of giving her financial stability for the benefit of [the child]?

[THE HUSBAND]: I am happy to do that, your Honour.

(Transcript 28.2.14, page 245, lines 9-21)

48. Thus, although his Honour was not prepared to require the husband to pay $27,000 to the wife, he did take into account the fact that she had paid more by way of mortgage repayments than the husband, and ordered that the husband transfer to the wife the motor vehicle referred to in the above exchange.
49. It also must not be forgotten that it was open to his Honour to proceed on the basis that the former matrimonial home was worth $495,000, and that that was just in excess of the amount owing on the mortgage.
50. Thus, I am not persuaded that there is any basis for appellate interference here, and I again find that there is no merit in this ground of appeal.

Ground 7

51. Despite the complaint made in this ground of appeal, the issue of child support was clearly raised before the trial judge by the wife, and his Honour was made aware of the husband’s payment history.
52. There was no dispute that in the past the husband had not always paid what he was required to pay under the relevant child support assessment, but at the time of the hearing the evidence was that he was making regular payments.
53. His Honour was obliged under s 79(4)(na) of the Act to take these matters into account, and it is readily apparent that he did so (see [65]).
54. There is no merit in this ground of appeal.

CONCLUSION

55. Given that I have found no merit in any of the grounds of appeal the appeal must be dismissed.

COSTS

56. Both parties appeared without legal representation, and there was no application for costs made by either of them. However, if either wish to now make such an application then under r 22.53 of the Family Law Rules 2004 (Cth) that party has 28 days to file that application.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 May 2015.

Associate:
Date: 21 May 2015