FAMILY LAW – APPEAL – PROPERTY – Where the Magistrate heard the wife’s application for final property orders in the absence of the husband – Where the husband had not received the wife’s minute of final orders sought – Where there was difficulty in identifying and valuing the net property of the parties due to incomplete disclosure by the husband – Where the husband had filed trial affidavits – Where there was evidence of possible confusion as to what the Court had communicated to the husband in relation to the conduct of the hearing – Where based on the further evidence and medical evidence, in order to do justice between the parties the appeal should be allowed and the matter reheard – Where there were some significant matters raised by the husband in relation to the asset pool, which if correct, would likely render the result erroneous – Where there was merit in the husband’s complaints about the Magistrate’s consideration of s 75(2) factors – Appeal allowed. FAMILY LAW – APPEAL – EVIDENCE – Application to adduce further evidence – Where the further medical evidence of the appellant husband does not entirely explain the husband’s absence at the hearing – Where the evidence nonetheless explains the medical circumstances of the husband prior to and after the hearing – Where it would be inconsistent with the interests of justice to refuse the application because it would leave unexplained the husband’s failure to participate where there is a relevant context – applications of the husband and the wife allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal was necessitated by the husband’s absence at the trial hearing – Where the wife should not be put to the expense of the appeal and the husband’s financial circumstances would not prevent a costs orders being justified – Husband to pay the wife’s costs of the appeal on an indemnity basis.

Leslighter & Fitzgerald-Stevens [2012] FamCAFC 94 (2 July 2012)

Last Updated: 6 July 2012

FAMILY COURT OF AUSTRALIA

LESLIGHTER & FITZGERALD-STEVENS

[2012] FamCAFC 94

FAMILY LAW – APPEAL – PROPERTY – Where the Magistrate heard the wife’s application for final property orders in the absence of the husband – Where the husband had not received the wife’s minute of final orders sought – Where there was difficulty in identifying and valuing the net property of the parties due to incomplete disclosure by the husband – Where the husband had filed trial affidavits – Where there was evidence of possible confusion as to what the Court had communicated to the husband in relation to the conduct of the hearing – Where based on the further evidence and medical evidence, in order to do justice between the parties the appeal should be allowed and the matter reheard – Where there were some significant matters raised by the husband in relation to the asset pool, which if correct, would likely render the result erroneous – Where there was merit in the husband’s complaints about the Magistrate’s consideration of s 75(2) factors – Appeal allowed. FAMILY LAW – APPEAL – EVIDENCE – Application to adduce further evidence – Where the further medical evidence of the appellant husband does not entirely explain the husband’s absence at the hearing – Where the evidence nonetheless explains the medical circumstances of the husband prior to and after the hearing – Where it would be inconsistent with the interests of justice to refuse the application because it would leave unexplained the husband’s failure to participate where there is a relevant context – applications of the husband and the wife allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal was necessitated by the husband’s absence at the trial hearing – Where the wife should not be put to the expense of the appeal and the husband’s financial circumstances would not prevent a costs orders being justified – Husband to pay the wife’s costs of the appeal on an indemnity basis.

Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) Family Law Rules 2004 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Baldachino & Hanas [2010] FamCA 234 CDJ v VAJ (1998) 197 CLR 172 Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 In the Marriage of Robinson and Huff [1990] FamCA 62; (1990) FLC 92-168 De Winter v Johnstone & Anor S119/1995 [1996] HCA Trans 155 (15 April 1996) Fitzgerald (as child representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123 Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener)[2003] FamCA 395; (2003) FLC 93-143 House v The King [1936] HCA 40; (1936) 55 CLR 499 NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109 FCR 77 Norbis v Norbis [1986] HCA 17; (1986) FLC 91-712 Stephens v Stephens and Anor [2010] FamCAFC 172; (2010) 44 Fam LR 117 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 In the Marriage of Wilkes (1981) FLC 91-060 Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029

APPELLANT:

Mr Leslighter

RESPONDENT:

Ms Fitzgerald-Stevens

FILE NUMBER:

PTW

5767

of

2008

APPEAL NUMBER:

WA

15

of

2011

DATE DELIVERED:	2 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, May & Strickland JJ

HEARING DATE:

17 November 2011

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

15 April 2011

LOWER COURT MNC:

[2011] FCWAM 28

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Stewart

SOLICITOR FOR THE APPELLANT:

Irene E Pickel Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hanly

SOLICITOR FOR THE RESPONDENT:

Hotchkin Hanly Lawyers

ORDERS

(1) The appeal is allowed.
(2) The application of the appellant husband filed 2 November 2011 is allowed.
(3) Paragraphs 1(b) and 3 of the orders made on 19 April 2011 by Family Law Magistrate Moroni be set aside.
(4) The appellant husband pay the respondent wife’s costs of the appeal on an indemnity basis to be agreed or assessed.
(5) The applications of the husband and the wife for property settlement be remitted for rehearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leslighter & Fitzgerald-Stevens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 15 of 2011
File Number: PTW 5767 of 2008

Mr Leslighter

Appellant

And

Ms Fitzgerald-Stevens

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 17 May 2011 the husband filed a notice of appeal from final property orders made by Family Law Magistrate Moroni on 19 April 2011. Those orders provided:
   1. Within the next 42 days:-
      • (a) the Respondent [husband] transfer to the Applicant [wife], all his right, title and interest in the property situated at [P...] and
      • (b) the Respondent pay to the Applicant the sum of $781,134.
2. Upon compliance with the provisions of paragraph 1 of these orders, the Applicant withdraw at her cost any caveat she has lodged pursuant to the provisions of paragraph 1 of the orders of the Court made 16 February 2011.
3. Within the next 42 days, the Respondent do all things necessary as may be required to transfer to the Applicant such number of Qantas Frequent Flyer points as may be necessary to equalise the balances of each of the parties respectively as at 14 February 2011.
4. Otherwise:-

(a) all the right, title and interest (if any) of the Applicant in any property and superannuation entitlement of the Respondent vest absolutely in the Respondent; and

(b) all the right, title and interest (if any) of the Respondent in any property and superannuation entitlement of the Applicant vest absolutely in the Applicant.

5. Both parties’ costs of the proceedings be reserved, with liberty to both parties to apply to relist in respect thereof.
6. The said proceedings otherwise be and are hereby dismissed.

(original emphasis)

2. The essence of this appeal was described in the first paragraph of the written submissions filed on behalf of the appellant husband:

The appeal concerns the decision of Magistrate Moroni to proceed with the hearing of a section 79 application in the absence of the respondent husband, which resulted in an injustice. It concerns errors of fact and law that were made by Magistrate Moroni as a consequence of the hearing proceeding in the circumstances. An adjustment was made that fell outside the range on the evidence available to the court and further as a result of not having evidence of all the relevant material.

3. On 14 November 2011 the husband filed an application in an appeal and an accompanying affidavit from his solicitor, seeking leave to file an amended notice of appeal. Leave was granted at the hearing of the appeal.
4. The grounds of appeal as articulated in the amended notice of appeal complain:
   1. That the learned Magistrate erred in not adjourning the hearing.
   2. That the construction of the asset pool was flawed.
   3. That the court’s findings on contributions were wrong.
   4. That the court failed to take into account relevant s 75(2) matters.
   5. That the orders as pronounced were not just and equitable.
5. In that amended Notice of Appeal the husband asks that all of the orders made be set aside and the matter remitted for rehearing before the Family Court of Western Australia. The husband also sought that the wife pay his costs of and incidental to the appeal. However, in the husband’s written submissions the husband only sought that paragraphs 1(b) and 3 of the orders made by the Magistrate be set aside. He still sought that there be an order for costs.

REASONS FOR JUDGMENT OF THE MAGISTRATE

6. In the proceedings before his Honour, the Magistrate dealt with the wife’s application for final property settlement orders in the absence of the husband.
7. At the commencement of his Honour’s reasons the Magistrate provided a short summary of the parties’ relationship.
8. The wife was born in 1953 and the husband in 1936. The wife is employed full time in the public service. The husband is a retired public official.
9. The parties met in 1996 and commenced cohabitation in 1997. They were married in 2001 and separated in 2008. There are no children of the marriage.
10. The orders sought by the wife were outlined in the Minute of Proposed Orders provided to the Court on 14 February 2011. We regard it as of some significance that the husband was not provided with this document. The wife sought orders that:
    1. The Husband transfer to the Wife all of his right, title and interest in the property [situated at P...]
    2. The Husband pay to the Wife such further amount as the Court may determine to adjust the respective entitlements to the parties as to 70% to the Wife and 30% to the Husband.
    3. Except as otherwise provided in these orders, the sole legal and beneficial ownership of all items of property including but not limited to money at bank or in another financial institution or cash, motor vehicles, insurance policies, equities, superannuation entitlements and personal effects vest absolutely in the party currently in the possession or control of that property.
    4. Except as otherwise provided in these orders, the Wife and the Husband shall each be solely responsible for any and all liabilities presently in the name of each of them respectively and indemnify the other party and keep that party indemnified in relation to such liabilities.
11. It was explained by the Magistrate in the reasons that the husband did not file any minute outlining the final orders as sought by him. It was noted however that the husband, in Part C of his Form 1A response to the wife’s application, proposed that such a minute would be filed within 21 days of the wife providing same. As we discuss later in these reasons, the wife did not provide her Minute of Order until the hearing before the Magistrate, and significantly it was not served on the husband.
12. The Magistrate outlined the history of the proceedings. As the husband contends that his Honour erred in not adjourning the final hearing (despite no formal application from the husband), it is useful to describe the history, as accurately recorded by the Magistrate at the outset. The wife was the applicant and the husband the respondent. The Magistrate recorded:
    15. The Applicant commenced proceedings in the Family Court of Western Australia by filing on 20 November 2008 her Form 1 application seeking unspecified orders by way of property settlement.
    16. The proceedings progressed in the usual way to a conciliation conference listed to take place on 16 March 2009. On that occasion, both parties attended the Court and both were legally represented. It would appear that the conference did not formally convene given that the respective positions of the parties at that time were polarised. The Registrar programmed the proceedings to the pre-trial conference stage and made standard orders for the filing of trial material prior to the pre-trial conference.
    17. A pre-trial conference was listed to take place on 14 July 2010. However, neither party filed any trial material prior to that date. Neither of the parties attended the Court on this date, however both were represented by counsel. The Registrar extended the time allowed to the parties to file their trial material and made other procedural orders.
    18. On 8 September 2010, the Applicant filed her trial affidavit and her updated Form 13 financial statement and the Respondent filed his trial affidavit and his updated Form 13 financial statement.
    19. A second pre-trial conference was listed to take place on 17 September 2010. On this occasion, neither party attended the Court, however both parties were represented by counsel. The Registrar then programmed the proceedings to trial and made a number of standard procedural orders.
    20. On 6 October 2010, the Respondent filed a Form 2 application with supporting affidavit seeking urgent orders for the lifting of a caveat lodged by the Applicant against the title to a certain rural property situated at [M (“the M property”)]. That application was listed for hearing before a Magistrate on 22 October 2010.
    21. On 19 October 2010, the Applicant filed her Form 2A response in reply, with supporting affidavit.
    22. On 22 October 2010 a Magistrate made orders by consent which had the effect of permitting the sale of the [M] property and protecting the net proceeds of sale thereof. Both parties were legally represented at this hearing.
    23. On 10 November 2010, the Respondent’s former solicitors, namely, O’Sullivan Davies, filed a notice of ceasing to act.
    24. On 24 November 2010, the Applicant filed a Form 2 application with supporting affidavit in which she alleged that the Respondent had not complied with certain of the orders made by consent on 22 October 2010. Such application was listed as a matter of urgency before a Magistrate on 24 November 2010, and His Honour made certain orders ex parte against the Respondent. The proceedings were then adjourned for further hearing before the Magistrate on 9 December 2010.
    25. At around this time, the substantive proceedings were included in a callover of defended matters and were listed for trial commencing not before 10.00am on Monday 14 February 2011. Unfortunately, there is no record on the Court file to indicate the date of the callover at which the substantive proceedings were listed for trial and there is no copy letter to the parties confirming the trial date which can be found on the Court file. However, it is the Court’s understanding that the Applicant was represented at the callover and that the Respondent attended in person.
    26. In any event, the Respondent forwarded to the Court a letter dated 30 November 2010, advising that he had relocated to [B in] New South Wales and was taking medication for stress and depression. The Respondent advised further that he doubted he could attend the trial in February and he provided a post office box address in [B]. So, obviously, by 30 November 2010 the Respondent was aware of the trial date. In the same letter, the Respondent refers to sending an earlier letter to the Court bearing the date 17 November 2010. However, there is no original letter of that date from the Respondent to be found on the Court file.
    27. The Respondent’s letter of 30 November 2010 was referred to a Registrar who then wrote to the Respondent by letter dated 2 December 2010 at his nominated post office box address, in the following terms:-

Your letter dated 30 November 2010 has been referred to me.

The case management guidelines of the Court require that all correspondence to the Court must be copied to the other party to the proceedings and the letter must show that it has been copied. It is not proper to have communication with the Court about which the other party is unaware.

I therefore return all three copies of your letter that were faxed to the Court. In addition, it is not possible to simply vacate any trial or hearing dates on the request of one party. If you wish to vacate a hearing date, that can be done by consent with the other party or by filing an application and an affidavit in support setting out the reasons why you are seeking to vacate that hearing date.

28. Next, on 7 December 2010, the Respondent filed a notice of address for service containing his post office box address in [B]. That notice was forwarded to the Court by solicitors in [B], namely, Glenn Lawyers.
29. On 9 December 2010, the Applicant’s Form 2 application filed 24 November 2010 came back for hearing before the Magistrate. The day before the hearing, the Applicant’s solicitors faxed to the Court various affidavit material in support of the application. Unfortunately, it is not entirely clear from the record of proceedings of the hearing conducted on this day whether the Respondent was represented. It does appear that the Respondent may have been represented by a female legal practitioner, but unfortunately, there is no name for the practitioner recorded on the record of proceedings. In any event, the Presiding Magistrate made some interim injunctions against the Respondent and otherwise adjourned the proceedings for further hearing on 15 December 2010.
30. There was a change made administratively to the listing of the Applicant’s Form 2 application filed 24 November 2010 resulting in the application coming on for hearing before the Magistrate on 20 December 2010.
31. On 16 December 2010, Glenn Lawyers faxed to the Court a significant volume of affidavit material to be relied upon by the Respondent at the hearing listed for 20 December 2010.
32. Then, on 20 December 2010, a firm of Perth solicitors acting as agents for Glenn Lawyers, faxed to the Court some further material to be relied upon at the hearing listed for that day.
33. The Magistrate duly proceeded to hear from the parties on 20 December 2010. The Applicant was represented by counsel. The Respondent was represented by counsel instructed by Glenn Lawyers. His Honour reserved judgment until 24 December 2010.
34. Then, on 24 December 2010, the Magistrate made orders permitting the Respondent to settle the purchase of the property in [B] and made other ancillary orders. Again, both parties were represented by counsel. A transcript of His Honour’s reasons for decision delivered orally that day appears on the Court file.
35. Next, by letter dated 28 January 2011, the firm of Perth solicitors acting as agents for Glenn Lawyers wrote to the Court enclosing a minute of consent orders directed towards the variation of one of the orders made by the Magistrate on 24 November 2010. That minute was signed by the Applicant’s solicitor on 28 January 2011. It appears to be signed by the Respondent himself, however the date of his signature does not appear on the minute.
36. The next event to occur was the filing by the Applicant on 4 February 2011 of some ten or so subpoenas. Those subpoenas were listed for return to 11 February 2011, being the working day immediately preceding the first day of trial.
37. On 10 February 2011, the Applicant filed her updated Form 13 financial statement.
38. By letter dated 10 February 2011, the Applicant’s solicitors provided to the Court copies of letters from the Respondent dated 17 November 2010 and 30 November 2010 (the second of those letters being the one already referred to above) together with a copy medical certificate from Dr [C], a general practitioner from [B]. The medical certificate bears the date 6 December 2010 and it provides as follows:-

This is to certify that I have attended Mr [Leslighter].

He is suffering from a Generalised Anxiety Disorder and is Medically unfit to attend Court in Perth.

I expect that it would be at least 1 month before he would be fit to travel and attend court.

39. A search of the Court file reveals that there is no original of the correspondence dated 17 November 2010 and no original of this medical certificate to be found therein.
40. On 11 February 2011, the Court received faxes from both the Respondent and from [Ms W]. The fax from the latter advised the Court that she would not be attending the Court on 14 February 2011 in response to the subpoena recently served upon her. The fax from the Respondent contained a copy of his letter to the Court dated 30 November 2010, but otherwise contained no advice or request.
41. The substantive proceedings were then before the Court on 14 February 2011, as scheduled. The Applicant attended and was legally represented and expressed a wish to proceed that day. There was no appearance by the Respondent nor on his behalf, nor was any correspondence received from him on the day. There was only a brief attendance at Court on that day, as the trial listed immediately prior to this one was continuing. The Court then made some procedural orders and adjourned the proceedings for hearing the following day.
13. The Magistrate then explained his reasons for proceeding with the wife’s application in the absence of the husband:
    42. The Court is bound to say that it was most surprised by the Respondent’s non-involvement in the trial, given the size of the asset pool and given his very recent involvement, with legal representation, in the interlocutory proceedings conducted in November and December 2010.
        43. Given the size of the asset pool and the factual complexity generally, the Court was a little reluctant to proceed with the hearing on 15 February 2011 in the absence of the Respondent. However, the Applicant was, understandably enough, anxious to proceed to complete the proceedings. The case has been on foot since November 2008, and there was no guarantee that to delay the trial by several more months would necessarily result in the Respondent’s participation in the proceedings.
        44. The Respondent has never made an application to the Court in proper form to adjourn the trial. The letter dated 2 December 2010 sent to the Respondent by the Registrar is very clear in its terms. That is to say, it was made clear to the Respondent that if he sought to adjourn the trial, then he would need to file a Form 2 application with supporting affidavit. No such application was ever filed.
        45. The only medical information provided by the Respondent in connection with the listing of the trial was the very brief medical certificate from [Dr C]. That certificate, even if taken at full face value, extends for only one month from the date of issue. Thus, there was no medical information before the Court to establish any unfitness in the Respondent for trial as at 14 February 2011.
        46. In the result, it appeared to the Court that there was simply no basis for it not to proceed to complete the substantive proceedings and so the hearing went ahead. There was no contact from the Respondent received at the Court on either 15 or 16 February 2011. However, on 21 February 2011 the Respondent sent a fax to the Court asking for information regarding the state of the proceedings. The Listing Co-ordinator of the Court wrote to the Respondent by letter (unfortunately undated) confirming that the hearing had been completed and enclosing a copy of the order dated 16 February 2011. It might be mentioned that the Listing Co-ordinator’s letter was slightly erroneous in the sense that it advises that the trial commenced on 16 February 2011. In fact, the case was called on briefly on 14 February 2011 and was heard over 15 and 16 February 2011.

(emphasis added)

14. After explaining why the hearing took place and final orders were made in the absence of the husband, the Magistrate also referred to and applied the four step process applicable to property settlement decisions. We will summarise the findings of the Magistrate under applicable headings.
15. An appreciation of this part of the reasons would not be necessary if we were of the clear view that the Magistrate should not have heard the application in the absence of the husband. In any event the husband argued that there were errors in the reasons of the Magistrate such that it is necessary for us to deal with those claims.

Step 1 - Determination of the asset pool

16. It was explained by the Magistrate at paragraph 48 that identifying and valuing the net property of the parties was difficult given the “significant gaps in the evidence of the [husband] and because of his non-participation in the trial”. The husband had however, filed trial affidavits, which were read by the Magistrate.
17. The Magistrate explained that both parties held property in their own right and that the husband also controlled at least two separate entities, L Trust and L Company, each of which held property of significant value. Further it was understood that the husband also had interests in other companies, the value of which, if any, had been difficult to ascertain.
18. As a result of the husband’s failure to make full and frank disclosure of his financial position in the proceedings, the wife issued a large number of subpoenas to third parties, including the husband’s bank and accountants. The subpoenaed materials were returnable a few days before the trial. It was explained by the Magistrate at paragraph 53 that only after the large quantity of material had been examined was the wife able to “construct her case in some sensible fashion”.
19. The Magistrate said:
    62. In the result, the Court has been left to trawl through the various updated documents which the Applicant was only to obtain under subpoena in order to make some reasonable assessment regarding the extent of all of the wealth likely to be under the control of the Respondent. What ought to have happened is that the Respondent provided to the Court and to the Applicant very detailed updated evidence demonstrating precisely, or as close thereto as reasonably practicable, the value at trial of all of his own property and of all of the property owned by the entities under his control.
        63. In the absence of such evidence from the Respondent, the Court must of necessity take a robust view of the evidence and so the compilation of the relevant asset pool is unfortunately going to be something of an imprecise exercise. In the circumstances, where there is an element of doubt regarding the inclusion in the pool of a particular item attaching to the Respondent, the Court is inclined to give to the Applicant the benefit of such doubt.
        64. It was open to the Respondent to put his case clearly and unequivocally to the Court and to present clear evidence supported by relevant documents establishing precisely the value of his shareholding in [L Company], the value of his interest in the family trust and the value of his interests in any other entities under his control. He did not do so and so it seems to the Court that it might now be difficult for him to complain justifiably in the event that the Court errs in favour of the Applicant when it constructs the relevant asset pool.
20. After providing reasons for including, excluding and/or notionally adding back property into the property pool, the Magistrate set out the following table of the assets and superannuation entitlements of the parties:

Item	$
Respondent’s interest in [property at B] (total purchase cost)	1,405,877
Parties’ joint interest in [property at P]	930,000
Payment to family trust for interest in [partnership M]	400,000
Applicant’s CBA Term Deposit	300,000
Patersons share portfolio in name of [L Company]	221,100
Loan by Applicant to her daughter	100,000
Deposit paid by Respondent to purchase [property A], Perth	78,000
Add back proceeds of sale of shares – 5/6/09, 21/6/09, 9/9/10,13/9/10 and 9/12/10	75,842
Part of Respondent’s half share of net proceeds of sale of [property in C] unaccounted for	70,000
Respondent’s paintings	50,000
Add back Respondent’s loan to daughter forgiven	25,000
Respondent’s gold coins	20,000
Proceeds of cattle sale – subpoena to Farmworks	18,567
Respondent’s Triumph motorcycle	17,500
Respondent’s Mitsubishi motor vehicle	8,000
Applicant’s furniture	5,000
Applicant’s Hyundai motor vehicle	5,000
Applicant’s GESB policy (15/12/100 [sic]	10,130
Applicant’s Colonial Mutual policy (late January 2011)	318,111
Capitalised value of Respondent’s pension	840,623
TOTAL	4,898,750

21. In considering the parties’ superannuation the Magistrate found:
    98. As for the Applicant, of course she is still employed and is yet to reach the stage where she will be able to access her entitlements. She has two policies, one with GESB worth $10,130 as at 15 February 2010 and another with Colonial Mutual worth $318,111 as at late January 2011. The Applicant has made the point that her current balance with Colonial Mutual arises largely as a function of substantial salary sacrificed payments made by her post separation. The standard 9% employer contribution is directed into her GESB account. The Applicant has asked the Court to bear in mind that she has made significant post separation contributions to her Colonial Mutual policy when the Court makes its assessment of the relevant overall s 79(4) contributions. This issue will be taken into account in the overall mix. It is a factor which perhaps counter balances to some extent any imbalance in favour of the Respondent in terms of initial financial contributions.
    99. As for the Respondent, he did retire in June 2008. He has in fact realised his ... superannuation entitlements and now receives, according to his financial statement filed 8 September 2010, a weekly pension of $1,349 net of tax. The Applicant caused a valuation of the Respondent’s pension entitlement to be obtained and a copy of the actuary’s report dated 22 November 2010 was put into evidence as part of the folder of material comprising Exhibit 2.
    100. The Applicant is, as noted above, now 74 years of age and he is entitled to receive his weekly pension until his date of decease. The actuary has concluded that based on the various assumptions set out in his report, the value of the pension which the Respondent now receives is $840,623 as at 30 November 2010.
    101. Interestingly, the actuary has reported in respect of the value to the Applicant of the Respondent’s superannuation entitlements. The Applicant is entitled to certain benefits upon the decease of the Respondent, provided that the parties are not divorced prior to the decease of the Respondent. The value to the Applicant of her potential entitlements under the Respondent’s superannuation scheme has been calculated by the actuary at $468,561. No application for a divorce order has been filed by either party. Of course, there is nothing preventing the filing of any such application by either party at any time and it would appear that the making of a divorce order would be inevitable if a divorce application is filed. In the circumstances, the Court is disinclined to attach any value to any potential rights the Applicant may have under the Respondent’s superannuation scheme.

(original emphasis)

Step 2 – Contributions of the parties

22. After setting out subparagraphs (a), (b) and (c) of s 79(4) of the Family Law Act 1975 (Cth) (“the Act”) his Honour at paragraph 106 said:

Given that the Respondent did not take the opportunity to participate in the trial and to cross examine the Applicant, and given that there is no reason to doubt the honesty and reliability of the evidence provided by the Applicant, the Court has accepted completely the evidence of the Applicant and will make its determination on contributions based on such evidence. The Respondent did not present himself for cross examination upon the contents of his trial affidavit and financial statement. In those circumstances it would not be appropriate for the Court to give any weight to those parts of his evidence which are inconsistent with the evidence of the Applicant.

23. As to each of the parties’ financial circumstances prior to the commencement of the relationship it was found:
    107. At the commencement of the relationship the Applicant owned an unencumbered property at [H] worth about $350,000. Further, the Applicant had savings of about $70,000, a motor vehicle worth about $20,000, a full set of good quality furniture and household items and a superannuation entitlement of some $130,000.
    108. As for the Respondent, at the commencement of the relationship he owned an interest in a property known as [Farm D] which the Applicant concedes was worth $520,000. In addition, the Respondent held an interest in a property in [F] which was purchased on 10 July 1997 for $195,000 with the aid of a mortgage for just under $111,000, a Range Rover motor vehicle, about $5,000 worth of shares and some sheep and cattle. The Respondent also had an entitlement resulting from his service in [public office] of some $466,000, subject to a tax liability estimated at about $100,000. The Respondent also had paintings estimated by him to be worth $50,000 and a gold coin collection estimated to be worth $20,000. The Respondent also had significant liabilities in terms of outstanding legal costs plus other liabilities estimated by the Applicant to run to about $120,000.
24. It was conceded by the wife at trial that the husband made a greater initial financial contribution. His Honour commented however, that the husband’s “somewhat greater initial financial contributions” may have been “counter balanced”, given the husband’s “current superannuation entitlement is partly a function of extra salary sacrificed superannuation contributions made by the [wife] after the date of separation”. (paragraph 109 of the reasons)
25. At paragraph 110 of the reasons for judgment his Honour accepted the history of the parties’ contributions during cohabitation as detailed by the wife in her affidavit filed 8 September 2010.
26. His Honour reiterated that the husband first assumed public office in the year the parties commenced cohabitation and retired within a few months of the parties separating. It was explained that upon retirement, the husband had elected to receive the pension option which sees him receive $1,349 per week net of tax.
27. It was explained at paragraph 112 of the reasons that during the course of the relationship the parties conducted a reasonably large number of financial transactions and that each of them “were substantially engaged in their various commercial activities”.
28. The Magistrate said:
    113. Standing back and looking at the big picture, the parties commenced this relationship as mature adults and both introduced significant capital into the relationship. The Respondent [assumed public office] and he has conducted certain commercial activities, most of which if not all involved both parties. The Applicant worked full time and made by far the greater s 79(4)(c) contributions. As a consequence of this partnership, by the time of the trial, the parties had amassed a pool of assets and superannuation entitlements totalling just under $5,000,000 in value. This was a relatively long relationship by contemporary standards.
    114. Having accepted all of the Applicant’s evidence regarding the various classes of contributions which need to be taken into account, the Court finds that the parties have contributed equally. The contributions have not been identical in each and every respect, however this marriage was conducted as a true partnership and the contributions by each party from the commencement of the relationship until the trial may fairly be considered to carry equal value.

Step 3 – Section 75(2)

29. The wife sought an adjustment under s 75(2) of the Act of 20 per cent in her favour.
30. His Honour found that the sub-paragraphs of s 75(2) of the Act that were most relevant to the case were (a), (b), (f), (o) and perhaps (m).
31. Although the wife is considerably younger than the husband and still employed on a full time basis, earning approximately $102,000 per annum, the wife submitted at trial that her employment in the public service is not secure.
32. It was found at paragraph 124 that although the husband has ended “his working life” he has “the ability to engage in commercial activities such as share trading and other investment activities”. In order to prevent double counting of the capitalised value of the pension and the actual weekly payments received by the husband, his Honour treated the husband as a person without income.
33. His Honour went on and said this:
    129. Given that the Applicant is younger than the Respondent and still working, it is arguable that perhaps the s 75(2) matters tip the scales in favour of the Respondent.
    130. However, before any s 75(2) adjustment is made, the Court needs to take into account the size of the asset pool and the actual result in dollar terms of its determinations on the score of contributions alone.
    131. This is a substantial asset pool. Each of the parties will take almost $2.5M in value. That should be more than sufficient for each of them to meet their reasonable future needs.
34. It was explained at paragraph 133 that the wife sought an adjustment of 20 per cent in her favour “by reason of the failure of the [husband] to provide comprehensive and accurate evidence for the trial of not just his own personal financial circumstances but those of all of the entities under his control”.
35. His Honour, although somewhat sympathetic to the wife, declined to make the adjustment as sought. It was said at paragraph 134 that the adjustment sought by the wife was “a very substantial figure indeed when translated into dollar terms. An adjustment of 20% represents the equivalent of ordering the [husband] to pay over to the [wife] almost $1M out of the $2.5M share to which he is entitled on the score of contributions alone”.
36. Counsel for the wife referred his Honour to Baldachino & Hanas (2010) FamCA 234. Although accepting that the Court has a broad discretion to make adjustments against the interest of a party who has failed to give full and frank disclosure, his Honour correctly said that a reasonable degree of caution must be exercised.
37. His Honour distinguished this case from Baldachino & Hanas as the non disclosing party in that case was found by the trial judge to have made a deliberate attempt to conceal his true financial position:
    138. The circumstances in this case are somewhat different. The Respondent did file his trial affidavit material on time. The concern for the Court is that he did not provide continuous disclosure from that point on and so it was left to the Applicant to endeavour to construct the relevant financial picture at trial largely by recourse to subpoenaed material which ought to have been provided by the Respondent himself. The Respondent did not endeavour actively to mislead the Court at the trial. The Respondent did not participate at all in the trial.
    139. Whilst a greater involvement in both the pre-trial and trial processes by the Respondent himself would have been highly desirable, it does need to be said that the Applicant and her lawyers did a very good job of constructing the relevant financial picture from the subpoenaed material and other available evidence. In the construction of the asset pool the Court has tended to give the benefit of any doubt to the Applicant and has in that way, at least in part, addressed some of the Applicant’s concerns regarding the Respondent’s non disclosure.
38. Ultimately his Honour found that no adjustment should be made in favour of the wife by reason of s 75(2).

Step 4 – The just and equitable provision

39. His Honour found that the property of the parties was to be divided equally. Based on the pool of assets as found by his Honour, such division would see the parties each receive property totalling $2,499,375.
40. In order to realise this the Magistrate said:
    144. The Respondent will be ordered to transfer to the Applicant his interest in the [...] property [at P] which is occupied by the Applicant. The Applicant will then have that property valued at $930,000, her CBA term deposit of $300,000, her daughter’s debt to her of $100,000, her motor vehicle worth $5,000, her furniture worth $5,000 and her two superannuation policies with a combined value of $328,241. These items total $1,668,241.
    145. On the Court’s calculations, the Respondent would need to make a cash payment to the Applicant of $781,134 to equalise the entitlements of the parties in the asset pool.
41. In concluding the reasons the Magistrate said:
    146. The parties commenced their relationship in positions of approximately equal strength, acknowledging that the Respondent may have had the slightly stronger financial base. Their relationship extended for more than ten years. It was an eventful relationship. Each of the parties contributed strongly to the substantial increase in their net worth, in different but in equally important ways. An equal division of the parties’ wealth will leave each of them comfortably placed into the future. The Court is satisfied that its proposed orders are just and equitable.

APPLICATION TO ADDUCE FURTHER EVIDENCE

42. On 2 November 2011 the husband filed an application in an appeal seeking to adduce further evidence. Three affidavits were filed with the application, an affidavit from the husband and affidavits from two medical practitioners, Dr C and Dr W.
43. We understand that this evidence is proposed to explain the husband’s failure to appear at the hearing, and to provide support for the grounds which assert that the Magistrate made factual errors. The admission of this evidence was resisted by counsel for the wife.
44. Although an application to adduce further evidence has not been filed by the wife, we understand the wife also seeks leave to rely on further evidence. That evidence is an affidavit from the wife’s solicitor filed on 17 November 2011.
45. It was explained by counsel for the husband that given the nature and grounds of the appeal, the further material is required to properly argue the appeal. It was also submitted that should we re-exercise the discretion, it would be necessary to admit the further evidence.
46. In many instances, we consider such applications at the conclusion of a discussion in relation to the grounds of appeal. In this case it is necessary to have some regard to the proposed evidence earlier.

Affidavit of the husband

47. The affidavit filed in support of the husband’s application to adduce further evidence addresses a number of matters. First, the husband seeks to explain the nature of his legal representation prior to and at the time of trial. Secondly, the husband provides a chronology of his medical treatment prior to the trial, and various correspondences with the court and the wife’s solicitors, prior to, at the time of, and after the trial. Finally the husband canvasses a range of factual matters, taking issue with assertions of the wife and highlighting the asserted factual errors made by the Magistrate. Annexures are provided in respect of each matter raised in the affidavit.

(a) Legal Representation

48. The husband stated that when the trial was heard in February 2011 he was not represented by a solicitor. He was previously represented by O’Sullivan Davies, a firm in Perth, who assisted in preparation for trial. The solicitors advised him on 8 November 2010 that they were filing a Notice of Ceasing to Act, due to his failure to pay into their trust account part of the funds required relating to the interim hearing and ongoing trial preparation. That notice was filed with the court on the same day.
49. In approximately mid-December 2010 the husband engaged Glenn Lawyers, a firm in B, New South Wales, to assist him in the purchase of a home in O. The husband then instructed the same firm in proceedings in the Magistrates Court of Western Australia in relation to orders related to a caveat and restraining orders on bank accounts.
50. In January 2011, the husband also engaged Glenn Lawyers to assist with the property proceedings trial. The solicitor assigned then advised the husband he would be away for the period 2 February to 18 February 2011. The husband knew that the solicitor had major heart surgery, and made the decision that potential travel by the solicitor to Perth was not desirable.
51. It is clear that the husband was receiving legal advice and representation generally in the period preceding the trial. It would appear, however, that formal representation in the family law proceedings ceased on
    8 November 2010 when the notice was filed. No further notice of address for service on behalf of any solicitors acting for the husband was filed. On
    7 December 2010 the husband filed a Notice of Address for Service containing his post office box address in B. From that, and from correspondence between the husband and the Court it can be inferred and was understood by the Magistrate that the husband was acting for himself from late November 2010 up to and including the dates of trial.

(b) Medical treatment

52. The husband referred to three hospital admissions between 2005 and 2007 following episodes causing him stress, incapacity to communicate and being overwhelmed. He says in early 2008 for a period of two months he consulted a psychiatrist, after experiencing anxiety, depression and sleeping difficulties, for which he was prescribed some medication which he discontinued taking after experiencing suicidal thoughts.
53. In February 2010 the husband was involved in a motor vehicle accident, the recovery from which included a period of rest, which is said to have alleviated his depression. In November 2010, when he prepared for his relocation from Western Australia to New South Wales, he said he began to experience once again severe anxiety, depression and an overwhelming feeling of inability to cope.
54. At the end of November 2010, the husband consulted Dr C about these symptoms, which he said continued beyond February 2011. In January 2011 he was admitted to hospital following heart problems. As at the date of the affidavit being sworn, the husband was being treated by a psychologist
    Mr M, for anxiety and depression.

(c) Correspondence with the Court

55. In November 2010 the husband relocated from Perth, Western Australia to New South Wales. Though the arrival date is not specified, he began the trip on 8 November 2010 and arrived at his destination not before 18 November 2010.
56. The husband said he was unable to access email while travelling until
    17 November 2010. Only on that day did he read the letter from the court dated 2 November 2010, advising of the 19 November 2010 callover date and explaining that the purpose of the hearing was to allocate the matter for trial between 31 January and the end of February 2011. The husband received the letter by email from his former solicitors, who did not forward the correspondence dated 2 November 2010 to him until 9 November 2010.
57. The husband said he immediately caused a letter to be sent to the Court explaining his inability to attend the callover on 19 November 2010. The husband did not retain a copy of that letter, however a positive transmission facsimile report including the contents of the letter was annexed to the affidavit of the wife’s solicitor in these proceedings. The report is dated 17 November 2011, from the hotel at which the husband was staying, and to the fax number of the Magistrates Court. The letter said:

...The writer is sending this correspondence from [...] South Australia where the writer is en route to a new home in [...] New South Wales...

As a result of illness and this major change to the writer’s life style, it was deemed that the writer would not be ready in February for the Family Court hearing. However, the writer is now of the opinion that the writer could be ready in time for the court case in February.

At this stage, it is the writer’s intention to represent himself at the impending hearing....

58. That letter also advised of a new address for service, being the husband’s residential address at B in New South Wales.
59. Having received no response from the court, the husband caused a further letter to be sent by facsimile to the court on 30 November 2010. The husband explained that he had, the day before, been diagnosed as suffering from stress and depression for which he was prescribed medication. He expressed that as a result of his condition, he doubted he would be able to attend the trial in February 2011 as indicated in the earlier correspondence dated
    17 November 2010. The husband advised of a further change of address for service, a post office box in B.
60. The husband accepts that a response was sent by Principal Registrar Monaghan of the Family Court of Western Australia (who is responsible for management of family law matters in both the Family Court of Western Australia and the Magistrates Court of Western Australia) on 2 December 2010. That response is set out above in paragraph 12.
61. As explained above, on 7 December 2010 the husband filed a Notice of Address for Service listing his post office box address in B. There appears to be no further personal contact between the husband and the Court until
    8 February 2011, when he said he telephoned the Court and was directed to the Magistrate’s office and instructed to leave a message. That same day, the husband said he received a phone call from the wife’s solicitor, who asked whether he would be attending the trial. The husband said that when he replied he was unwell and would not be attending, the solicitor said he would contact the Court and then contact the husband. It was the husband’s understanding that the solicitor intended to advise the Court that he was too unwell to attend the trial.
62. On 10 February 2011 the husband telephoned the Court and spoke with a case flow manager, who advised him he needed to write to the court and to the wife. On 11 February 2011 the husband sent to the case flow manager a letter enclosing his letter dated 30 November 2010. Copies were sent to the wife’s solicitors and to the Magistrate’s chambers.
63. On 14 February 2011 the husband was again telephoned by the wife’s solicitor, who asked whether he would be present in Court the following day. The husband replied he was unable to attend as he was still unwell. He said he was surprised by the conversation because he was sure he had done all that was required to have the matter adjourned. The husband said that at no time during the conversation did the solicitor advise the hearing would be continued in his absence, nor did the solicitor mention the letter sent by the husband on
    11 February 2011 or that his request for an adjournment was opposed.
64. The husband said he was again telephoned by the wife’s solicitor on
    15 February 2011. The husband advised the solicitor he had been to see a new solicitor. The husband said he had attended the office of a local solicitor in B that day, who advised she was unable to assist him as the case was in Western Australia.
65. On 18 February 2011 the husband received a copy of the orders made on
    16 February 2011 by the Deputy Registrar of the Magistrates Court which provided:

...

UPON the hearing of the following applications: -

• Form 1 application filed by the Applicant on 20 November 2008
• Form 1A response filed by the Respondent on 6 February 2009

IT IS ORDERED THAT: -

1. Pending disposal of the proceedings, the interest of the Respondent [husband] , in the property situated [at O] in the State of New South Wales [...] stand charged with the performance by the Respondent of any obligation upon him as may arise consequent upon the delivery of judgment in the substantive proceedings between the parties.
2. All material produced to the Court under subpoena be returned to source forthwith.
3. The proceedings otherwise stand adjourned for judgment to be delivered on a date to be fixed and be transferred to the Family Court of Western Australia.

(emphasis added)

66. The husband said that his understanding of order 3 as made by the Deputy Registrar was that, in response to his letter advising the court of his inability to attend the hearing, the matter would not be heard in the Magistrate Court but had been transferred to the Family Court for the purpose of a hearing. As no date had been provided in the order, on 21 February 2011 the husband wrote to the court by facsimile correspondence seeking information about the status of the matter.
67. In response, the husband received an undated letter from Principal Registrar Monaghan of the Family Court of Western Australia, advising him that the trial commenced on 16 February 2011 and that no appearance was recorded for him. A copy of the orders made were attached. However the letter did not expressly advise that the matter had been heard and in fact completed in his absence.
68. In the affidavit in support of the application to adduce further evidence, the husband also makes a number of denials and statements in response to assertions made by the wife in her trial affidavit, also asserting factual errors made by the Magistrate in the reasons for judgment. He takes issue with the composition of the property pool and findings about the financial and non-financial contributions of the parties. It is asserted that there has been a denial of procedural fairness.
69. No evidence in support of the husband’s assertions about factual matters relating to contribution is sought to be adduced.

Affidavit of Dr C

70. In his short affidavit filed 2 November 2011 Dr C explains that he saw the husband for the first time on 29 November 2010, when he diagnosed him with a severe anxiety condition. On 6 December 2010 the doctor provided the husband with a certificate of unfitness. No doubt this is the same document to which the Magistrate made reference in his Honour’s reasons for judgment. The certificate is annexed to the affidavit. It provides:

This is to certify that I have attended [the husband].

He is suffering from a Generalised Anxiety Disorder and is Medically unfit to attend Court in Perth.

I expect that it would be at least 1 month before he would be fit to travel and attend court.

71. In the affidavit the doctor then detailed subsequent consultations with the husband on 24 December 2010, 7 January 2011 and 16 February 2011. These visits were explained to be for leg and hip pain.
72. In April 2011 the husband again attended upon the doctor’s surgery and was seen by Dr C’s colleague. It was explained by Dr C that the notes taken by the treating physician indicated that the husband still reported having problems with sleeping, insomnia and anxiety.
73. In concluding the affidavit Dr C said:

Although I have not treated [the husband] for his anxiety since December 2010, having regard to the symptoms I observed in [the husband] at that time, I consider it was probable that he was still unfit to travel to Perth in February or to deal with issues relating to family law proceedings I understand he was engaged in.

Affidavit of Dr W

74. In his affidavit filed on 27 October 2011 Dr W explained that he first treated the husband on 30 August 2011. It was said the husband “presented with a history of not sleeping properly, low mood and thoughts of suicide” and that he had no enjoyment of life and was emotionally labile. Based on these symptoms, Dr W diagnosed the husband with depression on that occasion.
75. It was deposed by the doctor that given the husband’s condition it would be “very difficult for him to deal with stressful situations such as attending Court”.
76. Dr W referred the husband to Mr M, a psychologist, for assessment. His report dated 21 September 2011 is annexed to the affidavit and provides:

...

I have had an initial session with [the husband] and would assess him as experiencing a moderate to severe episode of unipolar depression. Having relocated across the country to [New South Wales] has given him some distance from his wife and former life but there continue to be significant stressors which are contributing to this current life crisis.

... I would place him as a mild risk of suicide at present with no plans but emotionally vulnerable. ...

77. It was explained that Dr W continued to see the husband to monitor his condition. The husband had expressed to Dr W a reluctance to use medication, however was said to be pursuing psycho-therapy with Mr M.
78. Given Dr W’s treatment of the husband began four and a half months after the hearing before the Magistrate, this evidence could not have been available at the time of the trial. The distance in time between the hearing and Dr W’s first contact with the husband makes it difficult for such evidence to provide on its own a clear and tangible explanation for the husband’s failure to appear at the hearing. We accept however that, in general terms taken with the other medical evidence, it provides some explanation for the husband’s absence.

Affidavit of the wife’s solicitor

79. In an affidavit filed 17 November 2011, the wife’s solicitor sought to respond to the husband’s account of events immediately preceding and at trial.
80. The solicitor explained he telephoned the husband immediately after proceedings concluded on 14 February 2011 and said words to the effect that “[t]he hearing will be proceeding tomorrow. You had better get on a plane because it’s going to go ahead tomorrow”.
81. The solicitor denied the husband’s assertion that the husband told him he was too unwell to attend. The solicitor said he sent a text message to the husband’s mobile telephone approximately half an hour after speaking with the husband. The message said:

Mr [Leslighter], I confirm my telephone conversation with you this morning at 10.15 Perth time. I confirm that the trial will proceed in your absence in Perth tomorrow. If you do fly over tonight please ensure that you bring all your financial records with you, all the documents I have previously requested you and your solicitors to provide including your passport. [Mr] Hanly.

82. The solicitor said that at no stage did he give the husband any indication that his client, the wife, would agree to an adjournment or that the hearing would not be proceeding. Further, the solicitor said that at no stage did the wife give him instructions to even consider agreement to an adjournment.

Relevant law

83. It was explained during the hearing of the appeal that the decision as to whether the further evidence would be admitted would be given after a consideration of the whole appeal. This approach is usually necessary in view of the accepted principles related to the admission of further evidence as provided by the High Court in CDJ v VAJ (1998) 197 CLR 172 where the majority McHugh, Gummow and Callinan JJ said:
    104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. ...
    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.

...

111. ... The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

(footnotes omitted)

Discussion

84. Counsel for the wife opposed the husband’s application to adduce further evidence. It was submitted that the further material does not make any difference and simply seeks to explain why the husband did not appear at trial, and in any event the medical evidence does not cover the appropriate period. It was highlighted that the husband did not dispute having received a letter from the court dated 2 December 2010, advising him of the proper procedure to be observed should he wish to vacate or adjourn the hearing date.
85. Counsel raised the question for our consideration as to how the husband could receive many letters about discovery and merely ignore them, and why he could instruct lawyers on some matters, such as the purchase of the property at B, but not on the trial. It was said the husband was aware of the appropriate procedure, however he had simply elected not to follow it. It was submitted the husband took a “cavalier approach” and decided only to engage in proceedings that were important to him.
86. Ultimately it was submitted on behalf of the wife that even if the further evidence was adduced, it would not establish that the Magistrate erred in failing to adjourn the proceedings.

Conclusion

87. There is no real explanation provided as to why the husband did not do what he should have done, save for implications from the medical evidence and to a limited extent some confusion caused by the order from the Court dated
    16 February 2011. Although the medical evidence does not cover specifically the relevant time period, the evidence of Dr C explains that the husband was suffering physical and mental issues prior to the trial, and that he again later experienced such issues, as explained by the evidence of Dr W. It was submitted by counsel for the husband that the material was relevant in that such “symptoms do not go away straight away”.
88. Although no evidence, medical or otherwise, fully explains the husband’s failure to appear at the trial in February, the evidence he seeks to adduce explains in general terms his medical circumstances which were relevant to his ability to participate in proceedings around that time. On this basis we are disposed to grant the husband’s application for leave to adduce further evidence in the form of the affidavits from Dr C and Dr W, together with his own affidavit. To refuse to do so would, in our view, be inconsistent with the interests of justice because it would leave completely unexplained the husband’s failure to participate when there is a relevant context, even if it does not provide a complete excuse.
89. To have the whole picture, and in fairness to the wife, it is necessary that we also allow her further evidence in the form of the solicitor’s affidavit.

THE APPEAL

90. As explained previously, the essence of the husband’s appeal is that the Magistrate should not have heard the property proceedings in the absence of the husband. It is his contention that by proceeding with the hearing in his absence, numerous errors of fact and law resulted, which ultimately led to an erroneous distribution being made to the wife and an injustice to the husband.
91. Further it was submitted that his Honour erred by “acting upon wrong principles, allowing extraneous or irrelevant matters to guide or affect him, mistakes of facts and a failure to take into account some material considerations”.
92. It was said at paragraph 7 of the written submissions:

In all of the circumstances it was not reasonable to proceed in the absence of the [husband] and it is submitted that the matter ought to be remitted for re hearing to allow an adjustment under s79 in a manner that will enable the court to consider and test all the evidence. It is a case in which it is necessary to have regard to the administration of justice, De Winter v Johnstone & Anor S119/1995 [1996] HCA Trans 155 (15 April 1996).

93. Although this effectively summarises the husband’s position, it is necessary to consider each ground of appeal separately. The most significant ground of appeal is ground 1.

Ground 1 – That the learned Magistrate erred in not adjourning the hearing

94. The written submissions under this ground commence with counsel for the husband distinguishing this case from others where a party did not wish to participate in property proceedings (see In the Marriage of Robinson and Huff [1990] FamCA 62; (1990) FLC 92-168).
95. It was explained that the husband “had in fact been actively involved in the proceedings in the lead up to trial”. Reference was made to the comment of the Magistrate at paragraph 42 of the reasons about his Honour’s surprise at the husband’s non-appearance, “given the size of the asset pool and given his very recent involvement, with legal representation, in the interlocutory proceedings conducted in November and December”. Reference was also made to various transcript references where the husband’s communication with the Registrar and the solicitor for the wife was discussed in the course of the proceedings before the Magistrate.
96. It was submitted that “it would be ludicrous to suggest that the [husband] did not wish to be heard”. Counsel said:
    10. The court was aware that the [husband] had contacted the Registrar in the lead up to trial and that various material had been faxed indicating that he did not believe he would be able to attend. The evidence before the court was to the effect that the [husband] was seeking an adjournment of the February date.
97. Counsel for the husband then succinctly stated his case:
    13. It is conceded that an application for an adjournment was not before the court in accordance with the Rules of Court however the intention and essence of an application were. It is submitted that as a matter of fairness some allowance ought to have been made for the fact that at the requisite time the [husband] was self represented. It is apparent that he endeavoured to adhere to the court’s requirements as directed by the Registrar by forwarding his previous correspondence to the court to the [wife’s] solicitor in the lead up to the trial, which contained information as to his belief that he would be unable to attend and as to his poor state of health. It is further submitted that greater leeway ought to have been afforded when it became apparent the enormity of the consequence of non participation given the size and effect of the property adjustment.
98. Reference was made to the Magistrate’s comment that an appeal would be a probability, as recorded in the transcript: “[i]sn’t the likely scenario that a notice of appeal will be lodged after I deliver the judgement?”. It was said on behalf of the husband that “[i]t was apparent to the court at the time of hearing the matter that the [husband] would not have sought to exclude himself from the proceedings and would wish to be heard by the court”. Further:

... Despite the court being of this opinion it proceeded with the trial in the knowledge that the [husband] was interstate and had been informed that a solicitor was being consulted on that day. There would have been no prejudice against the [wife] if the matter had been adjourned. Particularly given that counsel also thought an appeal possible ...

99. It was also submitted that although the solicitor for the wife filed a minute of proposed order asking for a 70 per cent distribution to the wife, there was no evidence that the proposal and the accompanying material had been provided to the husband, nor was there an opportunity for the husband to file a minute of orders sought in response. Counsel for the husband emphasised that the wife “had not previously advised in any former material written before the court what adjustment she sought”, and that the husband had advised in his Form 1A “that the orders he sought would be filed after receiving particularisation from the [wife]”.
100. The written submissions filed on behalf of the wife also deserve recording here, at least in part:
     1. There was no application before the Court for the adjournment of the trial.
2. This ground of appeal assumes that the Magistrate should, of his own motion, have adjourned the proceedings without there being an application for an adjournment before him.
3. The husband had been advised by letter from the Court dated 2 December 2010 (some 10 weeks before the trial was due to start) that:

“It is not possible to simply vacate any trial or hearing dates on the request of one party. If you wish to vacate a hearing date, that can be done by consent with the other party or by filing an application and an affidavit in support setting out the reasons why you are seeking to vacate that hearing date.” (Appeal Book 12 – Judgment paragraph 27)

4. The Husband has acknowledged that he received the letter dated 2 December 2010 from the Court.
5. The Husband had filed his trial affidavit in September 2010.
6. Between 6 October 2010 (Appeal Book 11 – Judgment paragraph 20) and 24 December 2010 (Appeal Book 13 – Judgment paragraph 33) the Husband was represented by solicitors and actively participating in the proceedings using [...] lawyers and instructing Perth solicitors as agents (Appeal Book 13 – Judgment paragraph 34).
7. By letter 28 January 2011 (two weeks before the commencement of the trial) the Perth solicitors acting as agents for the [...] lawyers were corresponding with the Court regarding a variation of the orders made by another Magistrate on 24 November 2010 (Appeal Book 13 – Judgment paragraph 35).
8. The learned Magistrate (at Appeal Book 13 – Judgment paragraphs 43-46) considered whether to proceed with the hearing.
9. Even if it is correct to submit that “the evidence before the Court was to the effect that the Respondent was seeking an adjournment of the February date” (which is not conceded) the learned Magistrate took into account all appropriate matters in considering whether the hearing should proceed.
10. The Husband’s submissions fail to point to any error made by the learned Magistrate in exercising his discretion. It is not submitted by the Husband that the learned Magistrate acted on a wrong principle or considered extraneous or irrelevant matters to guide or affect him.
11. As the learned Magistrate noted (Appeal Book 14 – Judgment paragraph 43) “the Applicant was, understandably enough, anxious to proceed to complete the proceedings. The case has been on foot since November 2008, and there was no guarantee that to delay the trial by several more months would necessarily result in the Respondent’s participation in the proceedings”.
12. “Justice cannot always be measured in money and a Judge is entitled to weigh in the balance the strain the litigation imposes upon litigants.” (per Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220 referred to as now generally accepted by Gummow, Hayne, Crennan, Kiefeln [sic], Bell JJ in Aon Risk Services Australia Limited v Australian National Universities [2009] HCA 27 (5 August 2009)).
13. “There is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publically funded resource. Inefficiencies in the use of that resource, arising of the vacation or adjournment of trials, are to be taken into account. So to is the need to maintain public confidence in the judicial system.” Per French CJ in Aon Risk Services Australia Limited v Australian National Universities [2009] HCA 27 (5 August 2009) at paragraph 5.
    14. In the circumstances the first ground of appeal must fail.

(original emphasis)

101. While there is considerable merit in the submissions of counsel for the respondent wife, in our view, in the unusual circumstances of this case, the Magistrate should not have proceeded to hear the wife’s property application.
102. It was held by the High Court (Gibbs, Stephen, Mason, Murphy and Aickin JJ) in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 that the Family Court has jurisdiction to set aside orders where a party is absent from the hearing through no fault of their own or of the court. It is also not necessary for the court to consider circumstances whereby fault is an element as in that case the absence of the respondent was without fault.
103. In Taylor, the wife brought proceedings in the Supreme Court of New South Wales for a dissolution of marriage and ancillary relief. Through no fault of his own but rather an oversight on the part of his solicitor, the husband was not present and not represented at the hearing. The decree and order for property settlement was made in the absence of the husband, and upon learning of this order the husband applied to the Family Court for an order varying the order for property settlement. Due to an oversight on the part of her solicitors, the wife was neither present nor represented at that hearing, and the judge made ex parte the orders sought by the husband. The wife appealed to the Full Court, who set aside the order on the basis that the judge had no jurisdiction to make that order. The husband appealed to the High Court, who set aside the orders of both the Supreme Court and the Family Court, on the basis that an order made against a party who did not have a reasonable opportunity to appear ought, in a proper case, be set aside.
104. Murphy J couched the principle in wider terms where he said at 20:

However, there is a longstanding principle that an order made against an absent party may be set aside where the absence is not the fault of the other party or the Court (even where the absence was the absent party’s fault), or where the absence is excusable, and considerations of delay, acquiescence or prejudice are not countervailing.

105. In the Marriage of Wilkes (1981) FLC 91-060, the Full Court (Emery SJ and Fogarty J) were of the view that the statement of principle in Taylor should not be restricted unduly by reference solely to the question of fault of the absent party. Rather, it was said, that the court should have a general power to review, as a matter of natural justice, orders made in the absence of a party and if appropriate remit the matter with costs.
106. In that case, the trial for determination of property proceedings was first listed for July 1980, and then adjourned to September 1980. The wife was informed of the date. The wife had informed the court she was unable to attend any hearings because she had been advised to rest and take holidays. In August 1980 the wife wrote to the Registrar requesting that the matter be deferred indefinitely. Further correspondence followed, however the wife did not make an application for an adjournment and did not appear at the hearing in September 1980. The wife’s appeal was dismissed by the Full Court.
107. In Wilkes a number of factors were considered to be important. These included the need for the litigation to end, the reason for the non-appearance, delay, any prejudice which may not be able to be compensated for by an order for costs and whether there is merit to be tried. It was said although the weight attributed to each factor will vary, the explanation offered to explain the non-appearance is of upmost importance.
108. Interestingly in that case it was held by the majority that, where a party fails to appear at the hearing and then later asks that the orders are set aside on that basis, the appropriate course is to apply to a single judge for a re-hearing rather than file an appeal from those orders. This was raised with counsel for the parties in this case. However, given that the matter was already listed for the hearing of the appeal and that in our view one avenue is an appeal, we determined to hear the matter.
109. It can be observed incidentally that there have been occasions when judges have made orders in the absence of a party, but have given the other party leave to apply within a restricted time to allow an application for the orders to be set aside. Such an approach was not suggested to the Magistrate in this case.
110. In our view, as regrettable as it is for the wife, justice demands that the appeal be allowed and a rehearing ordered where the merits of the respective claims for property settlement can be determined with both parties appearing and having the opportunity to properly present their cases. In saying this, we have not overlooked the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, especially the words of French CJ at page 192, that there is “an irreparable element of unfair prejudice in unnecessarily delaying proceedings” and also at page 189 where his Honour said:

... Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.

... In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.”

(footnotes omitted)

111. We are persuaded that to do justice between the parties the appeal must be allowed and a rehearing ordered because of the evidence including the further evidence and the medical evidence which is now before us. That evidence, as we have said already, does not provide a complete excuse for the failure of the husband to participate in the trial, but it goes a significant way to explain that failure and particularly the implication that can be made from the medical evidence, and the evidence of there being some confusion as to what the court was telling the husband in the correspondence.

Ground 2 – That the construction of the asset pool was flawed

112. Counsel submitted that as a result of proceeding without the husband, the court “was unable to effectively engage in the four step process for an equitable adjustment under s79”.
113. It was submitted:

... The material contained within the affidavit and form 3 of the [husband] were not utilised by the court except to the extent that they assisted the [wife], disadvantaged the [husband] or were deemed by the court to be non controversial. The consequence being that the court was not fully informed and denied crucial evidence. And further that the [husband’s] assertions were not tested.

114. Counsel explained that the husband in the appeal takes issue with the assets included in the property pool as well as the quantum attributed to them. In the written submissions on behalf of the husband it was said:
     19. The court relied on the material in the [husband’s] form 3 with respect to the value of gold coins. The court was not provided with information as to whose care and control the coins were currently in. It is anticipated that further material will be filed with respect to this issue however it is likely an issue that may only be resolved by way of cross examination of each party.
     20. The court incorrectly ascribed the sum of $400,000 to monies received by the [husband] from the sale of his share in the motel partnership. An error in the [husband’s] form 13 (ought to have read $150,000) was not corrected at hearing due to his absence. It is anticipated that further affidavit material will be filed with respect to this.
     21. In ascribing a valuation to the share portfolio of the [husband], the court failed to consider the effects of earlier losses that were being offset and the fluctuating value of the shares.
     22. The court was not privy to part of the funds from [property C]. It is anticipated that further affidavit material shall be filed with respect to the non distribution of part of the sale proceeds (that were/are controlled by the [husband]).
     23. The court engaged in a series of double counting. The court did not appreciate that the deposit monies ($78,000) for [property A] were the one and the same as the monies attributed by the court by way of an “add back” with respect to the sale of [property C].
     24. The court added back the sale monies from [property C] ($70,000) with respect to the [husband] but not the monies received by the [wife] with respect to her portion ($95,000). The court failed to address the further $25,000 that was due to the [husband]. ... It is anticipated that further affidavit evidence will be filed with respect to this issue.
     25. The court double counted the money from share sales when it included their value ($75,842) as it was unaware that part of this money was utilised to purchase shares and part of it was utilised by the farm and ultimately contributed to the value of that farm that when sold was utilised to purchase [property O] – it is anticipated that further affidavit evidence will be filed with respect to this issue.
     26. The court double counted with respect to cattle sales monies ($18,567). It is anticipated that further evidence will be filed with respect to this money being utilised for general running of farm expenses.
     27. The court accepted the evidence of the [wife] that at the commencement of the relationship that the [husband] had debts of $120,000 pertaining to legal fees. This is denied and it is anticipated that further affidavit evidence shall be filed with respect to this issue.
     28. The superannuation entitlements of the [husband] were considered by the Learned Magistrate as an asset of the relationship. No account was taken for the fact that he does not have access to $840,623. The manner of inclusion in the pool was problematic as it ought to more correctly have been treated as a pension. The superannuation ought to have been segregated from the other “assets”. ...
     29. The court wrongly included the [husband’s] accumulated benefits via superannuation for a period post separation. The court ought to have segregated these contribution entitlements that equated to $76,688.
     30. The court failed to include a superannuation amount of $5,300 belonging to the [wife]...
115. In concluding the written submissions on this ground it was said:
     31. The court wrongly concluded that the [husband] was not being full and frank in disclosure when it was in fact a situation of the court not being privy to the utilisation of the monies received. The [husband] had also advised the court that he was awaiting further material from his accountant. Against the background of a medical certificate stating that the [husband] was suffering from depression in the lead up to trial, it is submitted that the court ought not to have drawn the conclusion that he wilfully disengaged from the requirements of disclosure.
116. It was submitted correctly for the wife that the complaints made by the husband are largely “of his own making”. It was said that the husband either now asserts that he made mistakes in his own material, or that his failure to provide proper disclosure meant that the necessary evidence was not before the Magistrate. As was said in paragraph 19 of the wife’s written submissions, correctly in our view, “[w]hat is really being submitted is that further evidence would have produced a different finding on the value of the asset pool”.
117. Acknowledging that the Magistrate did the best he could on the evidence that was before him, the difficulty is that if the husband’s further evidence is correct, then there are errors in terms of value that are substantial. The husband’s contentions regarding errors to the asset pool were controversial, and save and except for one alleged error, were not conceded by the wife in the absence of the provision of further evidence which would support them. Before us counsel for the wife conceded that the correct figure for the payment to the family trust for the interest in partnership M was $150,000 rather than the $400,000 which the Magistrate included in his table of assets. It needs to be pointed out though that this is still an error caused by the husband given that the figure of $400,000 appeared in his affidavit. That said, we agree with the submission of counsel for the husband that some of the matters may not ultimately be determined in the husband’s favour or, if they are, may not ultimately affect the result. However, there are some significant matters raised that, if correct, would likely render the result erroneous. We hasten to add though that that result supports Ground 1 of this appeal and does not demonstrate that Ground 2 has any merit save and except to the extent of the concession by the wife.

Ground 3 – That the Court’s findings on contributions were wrong

118. It was submitted on behalf of the husband that the Magistrate did not consider the husband’s contributions with respect to his business acumen, and his local knowledge with respect to the purchase of both the property C and various other properties including farming entities, the property at P, the motel development site and the wife’s property at J.
119. It was also contended that his Honour erred “in not finding that greater contributions were made by the [husband] due to the nature of his employment that resulted in very significant superannuation amounts”.
120. Counsel for the husband contended that as a result of the trial proceeding without the husband, the court was not privy to any evidence from him as to his non financial contributions, the role and effect of the joint bank account, or the husband’s evidence as to the parties’ income disparity. It was also contended that the absence of the husband prevented the wife’s evidence as to contributions, which was said to be “very much in dispute”, from being tested.
121. Counsel submitted that his Honour also erred in determining contributions by failing to have regard to the material of the husband which advised of lengthy periods of separation.
122. In responding to ground 3 the wife submitted that there was no evidence, not even in the husband’s own material, of him applying the alleged acumen and knowledge to the purchase of the various properties and farming entities, nor to the husband’s alleged “greater contributions”. Where it was contended by the husband that the evidence was in dispute and required cross examination, the wife submitted that the husband had the opportunity to cross-examine the wife but failed to avail himself of the opportunity by choosing not to participate in the trial.
123. In regards to superannuation, the wife submitted that the husband’s superannuation was effectively accumulated during the period of cohabitation, when the wife was contributing by virtue of the support she provided the husband in his role as a public official. It was submitted the Magistrate was consequently entitled to conclude that the wife made a significant contribution to the accumulation of the husband’s superannuation entitlements.
124. If this had been the only ground in this appeal, in our view it would have little merit. However, Ground 1 provides sufficient reason for the appeal to be allowed.

Ground 4 – That the court failed to take into account relevant s 75(2) matters

125. The husband’s counsel made numerous assertions as to errors of the Magistrate in considering the provisions of s 75(2) of the Act. However many of those submissions go to findings as to contributions, which is the subject of Ground 3.
126. It was submitted on behalf of the husband that his Honour erred in incorrectly considering, and in failing to make an adjustment for, the initial contributions of the parties. It was explained that even on the figures used by the Magistrate the husband initially contributed $355,000 more than the wife.
127. It was said the Magistrate erred in finding that the additional voluntary superannuation contributions of the wife post separation effectively counteracted the disparity in the parties’ initial contributions and in failing to consider the husband’s accrued superannuation benefits post separation.
128. At paragraph 107 of the reasons for judgment the Magistrate finds the wife to have brought assets into the marriage valued at $440,000 plus a superannuation entitlement of $130,000. At paragraph 108 he finds the husband to have brought into the marriage assets with a net value of $559,000. In addition, the husband had a superannuation entitlement of some $466,000, subject to a tax liability of $100,000, leaving a net value of $366,000.
129. Thus, even leaving aside the superannuation, the husband’s initial contribution was in excess of $100,000 greater than the wife. His superannuation contribution at the time of the commencement of the relationship was $235,000 greater than that of the wife.
130. Considering these figures, which were figures used by the Magistrate, it is difficult to see how a finding that the wife’s extra salary sacrifice superannuation contributions after the date of separation, of $100,000, could offset the disparity in the initial contributions by the husband, excluding the superannuation, as well as the significant disparity in their superannuation entitlements at the date of commencement of the relationship.
131. The result would appear even more egregious if the husband’ post separation contributions to his superannuation, which he contends was $76,688, was not taken into account.
132. Counsel for the husband also submitted under this ground that his Honour erred in treating the husband’s pension as property (see Coghlan and Coghlan[2005] FamCA 429; (2005) FLC 93-220). In summarising Coghlan it was said in the husband’s written submissions:

... The court went on to say that by including what is in effect a fortnightly pension gives an “air of artificiality” and found that it would be unjust to apply the valuation for the purpose of the calculation of the parties’ net worth. With respect to the legislation they commented that treating superannuation as an “asset” does not mean that superannuation is be (sic) treated exactly the same as property as defined by s4(1). They expressed the view that it is important to give effect to what is “the real nature” of the superannuation interest.

133. In response, relying on Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143, it was submitted for the wife at paragraph 47 of her written submissions that the trial judge has a discretion as to how a superannuation interest will be treated in a particular case. Further it was argued:

An important point in this case is that the Husband had retired and had commuted his ... Superannuation benefits to a pension and there was evidence before the learned Magistrate as to the capital value of that pension entitlement. The calculation of the capital value was in accordance with the Family Law (Superannuation) Regulations 2001.

However, this does not necessarily overcome the force of the husband’s argument.

134. In view of the husband’s failure to attend the hearing and the decision made by the Magistrate in relation to s 75(2) we would not normally be greatly troubled by this ground. However, clearly there is merit in these complaints by the husband, and this adds weight to our conclusion that the appeal should be allowed.

Ground 5 – That the orders as pronounced were not just and equitable

135. It was submitted on behalf of the husband at paragraph 57 of his written submissions that “[t]he orders as pronounced are not just and equitable as they are based upon an incorrectly formulated asset pool, incorrect assessment of contributions and do not adequately account for section 75(2) factors”, and further that at paragraph 58 that “[t]he orders have not been obtained by way of fair, just or due process”.
136. The husband’s counsel submitted at paragraph 60 that a 50:50 per cent distribution could not have been the outcome if his Honour was “privy to all the relevant facts”.
137. Counsel for the husband explained that the effect of the orders made by the Magistrate would require the husband to sell his home, resulting in “the effective loss of the stamp duty paid, sales costs and further purchase costs inclusive of stamp duty as well as moving expenses”. Further it was said in the husband’s written submissions:
     62. The orders would leave the [husband] in a less than equal position to the [wife] who would have the benefit of substantial cash, a good income and the ability to contribute further to her superannuation. The [wife] would have the advantage of a very large sum of cash disproportionate to any payable if the [husband] had taken the superannuation as a lump sum payment. In the event a lump sum had been taken by the [husband] a 50% share would equate to $233,000.00. The [husband] retired 6 months after separation yet the [wife] is getting the advantage of his decision not to take a lump sum. Hence she has the benefit of monies in the form of a lump sum to invest or utilise to create greater capital advantage, while he receives a pension that is largely consumed by living expenses.
     63. The ... superannuation scheme provides for a significant reduction in benefits in the event that the money is to be received by way of a lump sum. The same principle ought to apply when superannuation is spilt in family court proceedings where a lump sum is sought after an election to receive the money by way of a pension is in force, to do otherwise is unfair and unjust to the other party.
138. It is difficult for us to conclude that there is merit in the arguments put by counsel for the husband in this respect, given the absence of the husband and the evidence that was in fact before the Magistrate. Indeed, it seems to us that these are matters for the inevitable rehearing of this case consequent upon the appeal being allowed.

CONCLUSION

139. If the husband had failed to file affidavit evidence, if the husband had failed to notify the Court of his inability to attend, and if there was no merit in any of the other grounds of appeal we would not be so inclined to allow the appeal.
140. In paragraph 65 of the husband’s written submissions it was said, correctly in our view:

... orders 1(b) and 3 of Magistrate Moroni ought to be set aside and the matter be remitted to the Family Court for rehearing to provide for a discretionary judgment on all of the evidence and to enable the parties to adduce further evidence. It is submitted that this would not result in any prejudice to the [wife] as interest on the current judgment is accruing and the residential property in which she resides has already been transferred to her. There are real issues that need to be tried on their merits.

COSTS

Indemnity and security costs

141. As canvassed in Taylor and Wilkes, when natural justice requires a matter be remitted for re-hearing but where such necessity arises by the fault of one party, making an order as to costs should be considered.
142. It is the general principle that each party to litigation in this court will bear their own costs. However the court is at liberty to make an order for costs where there are justifying circumstances.
143. Section 117 of the Act provides:

(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

144. The principles in relation to the discretion to order costs are well settled. As held in Fitzgerald (as child representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123 there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.
145. In this matter the wife asks for orders that would have the effect that the husband pay her costs on an indemnity basis. With regard to indemnity costs, the principles are also well settled (see Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 and Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029).
146. In Stephens v Stephens and Anor [2010] FamCAFC 172; (2010) 44 Fam LR 117 the Full Court (May, Boland & O’Ryan JJ), citing with approval the comments of Lindgren J in NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109 FCR 77, held that the “conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as a litigant”.
147. It was identified by counsel for the wife that the costs sought were the pre-trial, trial, post-trial and the appeal.
148. It was explained that the Magistrate reserved the costs of the trial and that an order is yet to be made. In our view, any order for costs available to us must relate to the appeal, not the trial.
149. Counsel for the husband, correctly in our view, initially acknowledged that should the appeal be allowed, a remedy for the wife could be an order for costs. However, when the issue of costs was raised, inexplicably the husband’s counsel asked that in the event the appeal was allowed an order for costs be made against the wife. It was later conceded that there was no basis on which such order could be made. The husband then submitted that should the appeal succeed on natural justice grounds, costs certificates should be granted to the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
150. We are of the view that the husband should pay the wife’s costs of and incidental to the appeal and that be on an indemnity basis, as it can be seen that the appeal has been necessitated through the absence of the husband at the hearing. The wife certainly should not be put to the considerable expense of this appeal. The husband’s financial circumstances would not prevent such an order being justified.
151. The wife also asked that a caveat be placed over the husband’s property at B and that a sum be placed in the joint names of the solicitors pending disposal of the retrial. It was said that this was necessary to preserve the wife’s entitlement. In addition it was asked that such security be provided within a specific timeframe and that the order be self-executing. In our view an application may be made before a trial judge for such orders. That judicial officer will have the affidavit material upon which the wife would wish to rely directed to such orders, and also importantly the husband would have an opportunity to respond.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Strickland JJ) delivered on 2 July 2012.

Associate:

Date: 2 July 2012