MacCallion & MacCallion [2025] FedCFamC1A 144 | Case summary

MacCallion & MacCallion [2025] FedCFamC1A 144 | Case summary | Zoe

[37]

This is an appeal from parenting and property orders made by a judge of the Family Court of Western Australia on 21 March 2025, brought by the appellant husband.
By his Amended Notice of Appeal filed on 5 June 2025, the appellant abandoned the grounds of appeal (Grounds 3, 4 and 5) directed to the parenting orders.
The appeal was therefore limited to challenging the property orders. At the commencement of the hearing of the appeal, there were only two grounds of appeal. During oral argument the appellant applied to amend one of those grounds. We will return to the grounds and proposed amendment below.
Pursuant to orders made on 16 July 2025, the Independent Children's Lawyer ("ICL") was excused from appearing at the appeal once it was clear there was no appeal from the parenting orders.
We observe here that the appellant made the qualifications and accreditation status of a purported lawyer central to the appeal.
It was undisputed that between 30 June 2023 and 28 February 2025, the solicitors on the record purporting to represent the appellant in the Court below were "B Lawyers". A Notice of Address for Service was filed bearing this firm name on 30 June 2023. The "principal" of B Lawyers was said to be Mr C.
However, it was also undisputed that between June 2023 and February 2025 Mr C did not hold a practising certificate. In fact, in late March 2022, Mr C had undertaken not to renew his practising certificate and it was cancelled by resolution of the Legal Practice Board of Western Australia on the same date.
In April 2025, the Western Australia State Administrative Tribunal recommended that Mr C be struck off for professional misconduct relating to dishonesty involving his fabrication of emails and subsequently misleading the (then) Legal Profession Complaints Committee.
Mr C and his firm had been allocated to the appellant by Legal Aid Western Australia, by reason of order made under s 102NA of the Family Law Act 1975 (Cth) ("the Act"). It goes without saying, but we will say it nonetheless, this is a deeply troubling and reprehensible situation. But it cannot save the appeal.
For the reasons which follow the appeal will be dismissed.

[38]

The parties commenced cohabitation in 2007, married in 2010 and separated in 2017. There are two children of the relationship.
The trial of both parenting and financial issues commenced on 17 July 2023 and ran for five days with judgment reserved on 21 July 2023. During the trial the appellant was represented by solicitor and counsel. The solicitor in question was Mr D. The significance of this will become apparent later in these reasons.
No direct complaint is made about the conduct of the trial up to 21 July 2023. Rather, the focus of the appellant's complaint relates to the period after the main part of the trial was completed. To understand the appellant's contentions and dispose of the appeal it is necessary, therefore, to record in some detail the course of events after 21 July 2023.
In October 2023, the appellant was arrested and remanded in police custody, charged with various offences. The parties appeared before the primary judge on 28 November 2023, when the implications of this criminal process were discussed. Mr D appeared for the appellant on this occasion.
The proceedings returned before the primary judge on 28 December 2023. Again, Mr D appeared for the appellant. Mr D explained at some length the nature of the charges against the appellant to the primary judge.
On 5 January 2024, the parties and the ICL were granted leave by the primary judge to reopen their cases limited to the consequences of the appellant's criminal charges and "any substantive update to the property proceedings; arising since the conclusion of the Trial". Leave was granted to the parties to file and serve one affidavit of themselves and up to two further witnesses, together with written submissions, and to apply to conduct further cross-examination.
In June 2024, the appellant was sentenced to incarceration for 26 months (backdated to commence from October 2023). He is due to be released in September 2025.
On 29 August 2024, leave was again granted to the parties to reopen their cases to adduce further evidence limited to the issues arising from the appellant's criminal convictions and any further update to the property proceedings. According to the transcript, Mr D appeared at the hearing conducted by telephone on 29 August 2024. The appellant was also present by telephone. Mr D told the primary judge that the appellant's grant of legal aid had expired and an extension had been sought. He described his presence as "acting as an amicus-type position" (Transcript 29 August 2024, p.3 lines 24-25). However, Mr D sought a short adjournment from the primary judge on the basis the appellant was due to be released from incarceration and would raise funds of $40,000 to discharge a liability to Company K (Transcript 29 August 2024, p.4 line 14 to p.5 line 4). The proceedings were adjourned to 1 October 2024.
On 1 October 2024, Mr D again appeared by telephone and the appellant was present by telephone as well. Again, the issue of the appellant's liability to Company K was discussed and the appellant was questioned directly by the primary judge about payment of that debt (Transcript 1 October 2024, p.5 lines 13-41). The proceedings were stood over to the next day, 2 October 2024. Mr D again appeared, in person on this occasion (Transcript 2 October 2024, p.479 lines 11-12). However, it does not appear that the appellant was present at the hearing. The lawyer for the respondent raised in open court the fact that Mr C "isn't working and doesn't have a practising certificate currently" (Transcript 2 October 2024, p.480 lines 8-10).
The proceedings were adjourned to 10 October 2024. Mr D appeared and the appellant was again present by telephone on that occasion. There was no appearance for the respondent, although she had, in the interim, filed another application to reopen the evidence. After some further discussion about the payment of the Company K debt, Mr D agreed the proceedings should be finalised. The primary judge had dialogue directly with the appellant about updating property valuations and his liabilities. The following exchange took place:

[39]

HIS HONOUR: Yes. Look, understood. [The appellant], you might recall on the last occasion the solicitor for the [respondent] was proposing that the three properties in [Suburb E] and [Suburb F] be valued. And - so, an application has been made to the court, and an affidavit has been filed to say that funding for the valuations has been obtained from Legal Aid. What's your position in relation to whether the property should be valued?

[THE APPELLANT]: Thank you, your Honour. So, I guess, with the passage of time, between the trial and now, there is no doubt that the values would have increased. However, there is also the debt equation on the other side that has also increased. So, obviously, you can't sort of have one side of the equation going up, and the other part - the other side of the equation remaining as it was. Obviously, whilst I am in custody, the debts have been building, too, because I haven't had a chance to pay them off.

And, likewise, the debt information that I did provide the court at the time of the trial, due to the rush and then the hastiness of having to get information into the court quickly, all the debt information was actually dated information. So it was really just an opportunity to provide a benchmark - or basic information to show the court that these are the debts that I did have, you know, from some time ago that I still actually owed. And there is actually more interest on top of those current debts. So unless the valuer can backdate a valuation, it's obviously not going to match up with the debt side of the equation.

HIS HONOUR: [The appellant], I think it's entirely appropriate that you be permitted to provide some information about the amount of the mortgages because, I agree with you, if the properties have gone up, then it's relevant to know what the mortgages are over the properties. So if you were permitted to file further evidence about what the mortgages are, what's your position in relation to the properties being valued?

[THE APPELLANT]: I don't have a - I don't have a problem with that at all. But also - there is also the outstanding rates and water rates and credit cards that are still being owed as well, personal loans that have all got to be considered as part of the pool of the assets and liabilities. But I am happy to provide any information that is required to sort of get a better snapshot of the current position.

HIS HONOUR: Yes. All right. Okay. Look, thank you. I will have another chat to [Mr D]. So what I am inclined to do, [Mr D], is to allow the valuations to be undertaken. As I said to [the appellant], I think it's entirely appropriate that he be permitted to adduce some evidence about the value of the mortgages.

He is talking about other debts as well. If something wants - has to be done about that, there will need to be an application brought. All right. So that's a matter for you and [the appellant].

(Transcript 10 October 2024, p.5 line 9 to p.6 line 19)

[42]

The primary judge then made directions for the parties to file further evidence and orders were made for the appointment of a single expert to value three properties owned by the appellant. The appellant was given the opportunity to file and serve updating evidence; orders were made for him to file and serve an affidavit strictly limited to the debts secured by the mortgages over the Suburb E and Suburb F properties.
In December 2024, the updated single expert valuation report of the three properties was filed by the respondent.
On 27 February 2025, the appellant was contacted by a Mr G who told him the practice of B Lawyers was in administration and was closing.
The primary judge published the Reasons for Judgment on 5 March 2025. At [319]-[320] he explained:
1. If it is necessary for the [appellant's] properties to be sold, I have little confidence in his preparedness to facilitate an orderly sale and intend to order that the [respondent] have responsibility to sell those properties necessary for her to be paid the sum of $660,520. I will give the parties liberty to apply in that regard and in relation to how the sale is to be effected.
2. I have published these Reasons from chambers to enable the parties to consider my judgment and confer with each other with the matter to be listed in the near future on a date to be advised for formal orders to be made.
The primary judge then set out the orders he proposed to make. These proposed orders included the order that the appellant pay to the respondent the amount of $660,520 (Order 9).
Despite leave being granted three times between January and October 2024, at no time up to 5 March 2025 did the appellant file any evidence in accordance with the leave granted by the primary judge regarding his liabilities or anything else.
The proceedings were listed on 5 March 2025. The appellant appeared for himself on that occasion. He stated that he had the Reasons for Judgment but had not had an opportunity to consider them or obtain further advice. He complained vociferously about the fact Mr C was unqualified and his practice was bankrupt, and about an inability to contact Mr D who had been in hospital. The appellant expressed the view that the situation "doesn't pass the pub test" (Transcript 5 March 2025, p.7 lines 36-37). The primary judge observed: "Well, I guess [Mr C] may not have had a practising certificate, but I'm gathering that [Mr D] did, and does" (Transcript 5 March 2025, p.4 lines 32-34). The appellant claimed: "But I haven't even spoken to [Mr D]. My primary contact is [Mr C] and he just gets [Mr D] to sign the documents" (Transcript 5 March 2025, p.4 lines 36-38).
However, the primary judge observed that a further delay would prejudice the respondent because she "has so little" and was entitled to "a considerable sum of money" (Transcript 5 March 2025, p.8 lines 45-47). The appellant himself specifically adverted to additional evidence on financial issues. The following exchange took place with the primary judge:

[43]

[THE APPELLANT]: Sorry, Mr - Mr - [primary judge]. I do apologise. I just wanted to just say that I haven't been able to - I mean, I - I recall the last hearing that we had was before Christmas, and I was required, or [Mr D] was required, or the office was required to collate a whole bunch of other documents and debts, which I - I - I had done, and, since then, I have not heard from anyone. I have not heard from the court, from [Mr D], from the office, to be able to get these into you. So I was - I was waiting and - and trying to call these other guys with all this information that's pertinent to the matter.

HIS HONOUR: So - - -

[THE APPELLANT]: All the bank statements, and the - and the - the other debts that you wanted - that - that we talked about. Do you remember?

HIS HONOUR: Look, I do. There were two aspects to that, [the appellant]. One was that you had permission to provide the court with further information about what the mortgages were.

[THE APPELLANT]: Yes.

HIS HONOUR: That was specifically ordered. In relation to the balance of any other debts, the position was that there needed to be a formal application brought by you to update the court about any further figures of those debts. So that - - -

[THE APPELLANT]: Yes. Well, as I said, like, I - I do apologise for cutting in.

HIS HONOUR: Yes. That application wasn't brought.

[THE APPELLANT]: Okay. Because, again, I haven't had contact from my solicitors regarding that, but I've had - you know, I've - I've - I've sought accounting advice and everything, because there's also capital gains tax that needs to be considered, which will have to be paid if the properties are sold.

HIS HONOUR: Yes.

[THE APPELLANT]: So there's substantial costs that will affect the net balance, and we are looking - it's easy to say, "Sell this and sell that, and arrive at a figure", but there's - there's agent's costs, there's capital gains tax that needs to be applied, etcetera, etcetera. We're talking three - three - probably three, $400,000 worth of additional costs.

(Transcript 5 March 2025, p.8 line 49 to p.9 line 50)

[45]

In light of the grounds relied upon, it is not necessary to describe the reasoning of the primary judge extensively. However, the following parts of the judgment below are relevant to the disposition of the appeal.
The primary judge specifically addressed the appellant's liabilities for rates, water use and land tax at [260] and [262]-[263]. At [263] he explained:
1. By the end of the trial, I was not satisfied that any of the council rates, Water Corporation, credit card and personal loan liabilities listed in the [appellant's] schedule were current or likely to be pursued. Even if I am wrong about this I do not consider that the [respondent] should be responsible for them. She justifiably complains about the [appellant's] control of the family finances, and her lack of involvement in them particularly in managing the sale of the parties' properties and I have already made comment about the adequacy of the [appellant's] disclosure. In the circumstances I do not intend to include lines 15 - 33 of the [appellant's] assets and liabilities as detailed above as debts of the parties.
The comment about the appellant's disclosure to which the primary judge referred was made at [250] where he found: "Overall, the [appellant's] level of disclosure was abysmal which obliged the [respondent's] lawyers to have to work out things 'on the fly'".
The primary judge otherwise relied on the Form 13 Financial Statements filed by the parties for the values of the parties' assets, liabilities and superannuation interests (at [265]). The appellant's Form 13 Financial Statement was dated 7 July 2023.
In relation to mortgages in particular, the primary judge articulated his reasoning at [274]-[277]:
1. Despite my order of 10 October 2024 requiring the [appellant] to file an affidavit about the current amounts of the mortgages over the [Suburb F] and [Suburb E] properties, he did not do so.
2. The [respondent] proposes that the three loans secured against the [Suburb F] and [Suburb E] properties be included in the sum of $679,543 comprising separate loans of $76,427.54, $331,906 and $271,209 which roughly correlate with the figures in the [appellant's] credit report.
3. In his oral evidence the [appellant] confirmed the amounts owing on the loans totalled $685,000 comprising two loans of $210,000 and third loan of $265,000. As can be seen the difference between the parties is not large.
4. I intend to use the information contained in the [appellant's] credit report which I consider to be the best available evidence which details loans of $77,032, $337,749 and $264,508 respectively for a total figure of $679,289.
The primary judge determined the total net assets of the parties to be $1,430,303, including three properties owned by the appellant with the following values (at [279]):

[50]

In his Amended Notice of Appeal the appellant seeks an order, that "the matter" be remitted for rehearing. However, in oral submissions the appellant made clear that there was no challenge to the primary judge's parenting orders, so any order remitting the proceedings should be limited to property orders.
It is helpful to begin with a statement of basic principle governing the determination of this appeal. The decision of the primary judge was a discretionary decision which is presumed to be correct (Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627). Nonetheless, the task of this Court is to conduct a "real review" (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 ("Fox v Percy") at [25]), although it is no part of the function of an appellate court to reformulate the case a party seeks to make (Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 at [67]).
In a discretionary judgment, the appellant must identify error of principle, material error of fact or a plainly unjust or unreasonable result. In Macarthur & Macarthur (No 3) [2024] FedCFamC1A 35, the Full Court explained:
1. _..._the orders the subject of the appeal arose from a discretionary judgment. Since the primary judge was exercising broad discretions, the appellant is required to identify an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is "unreasonable or plainly unjust": House v the King (1936) 55 CLR 499 at 505 ("House v The King"); Bartram & Marsden [2023] FedCFamC1A 207 at [19].
2. Secondly, a fundamental purpose of the appellate process is the correction of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. An appellant must properly particularise the asserted error which they contend was made by the primary judge. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors and not for the appellate court to rummage around in voluminous documents on the off chance that the facts might emerge or in order to find material which may be relevant to the questions in the appeal: Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]; Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 at [53]. The appellant also bears the onus of not only demonstrating error, but that it was material in the sense that a different result might have flowed had the error not occurred: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320.
The onus is on the appellant to identify the asserted error in the orders appealed from (Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]; Newett & Newett (No 2) (2021) FLC 94-051 at [34]), but obvious error must still be corrected, because an appellate court should not perpetuate error where it is apparent even if not made so by the grounds of appeal (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Fox v Percy at 127-129 and 138-147; Navickas & Fried (No 2) [2025] FedCFamC1A 80 at [17]) or is obfuscated by the appellant's advocacy (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148).
The foundation of the appeal is the contention that the primary judge made a factual or legal error because he made findings about the parties' assets based upon updated valuation evidence provided by the respondent and made findings about the appellant's liabilities without any updating evidence from the appellant. The appellant contends that the error arose because he had incompetent representation who failed to file documents on his behalf, depriving him of the opportunity to be heard about his liabilities and leading to a miscarriage of justice.
We turn then to the grounds of appeal.

[54]

We will allow this amendment, although it was made late and on the run in the face of counsel's concession that Ground 2, as originally formulated, could not succeed. It can be seen that the amended ground asserts error by the primary judge in the nature of a failure of procedural fairness because he knew of the appellant's incarceration, but relied on a net asset position which he also knew was wrong because he had received no updated evidence of the appellant's liabilities.
Since this ground alleges a failure of procedural fairness it should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 ("Royal Guardian Mortgage Management") at [9]-[10]). Procedural fairness must be afforded to all parties and a lack of procedural fairness must result in a re-trial regardless of possible findings on the other issues (Royal Guardian Mortgage Management at [9]-[13]).
Procedural fairness requires a party to be given a reasonable opportunity to present their case, whether or not that opportunity is taken up (Kioa v West (1985) 159 CLR 550), and just what will be required in a particular case to afford a party procedural fairness will vary according to the facts of the case. Procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner (Vines v Australian Securities and Investments Commission [2007] NSWCA 75; (2007) 233 FLR 1 at [58]). It is a question of avoiding practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]). A failure to properly afford procedural fairness will only sound in relief where that failure is material to the outcome of the case (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609).
The argument appears to be that the primary judge should not have proceeded to judgment upon evidence which he ought to have known was incomplete or inaccurate.
This is misconceived. Although the primary judge knew the appellant was incarcerated by December 2024, and the appellant's mortgages were in default, we infer he reasonably believed the appellant was represented by the same lawyer who had represented him at trial, and continued to appear on his behalf until October 2024, including on each occasion where the appellant was granted leave to adduce fresh evidence or apply to do so. In addition, the appellant's own presence at directions hearings and dialogue with the primary judge demonstrates he had direct knowledge of his opportunities to adduce further evidence, as the primary judge also knew.
The appellant's ongoing representation by his solicitor was a consideration leading the primary judge to conclude that the appellant had been afforded procedural fairness in the period subsequent to July 2023. The primary judge considered procedural fairness at [8]:

[60]

Before continuing the consideration of Ground 1, it is necessary here to determine applications by the appellant to rely upon additional evidence in the appeal.
On 7 July 2025, the appellant filed an Application in an Appeal which sought leave to adduce as evidence, and rely upon, three affidavits: an unsworn affidavit by the appellant sealed 5 July 2025, which was later sworn and refiled on 16 July 2025 in this appeal, and two affidavits of Mr Anthony Robert Clarke, his current solicitor, filed in the primary proceedings on 19 May 2025 and 4 June 2025 in support of the appellant's stay application, but attached to the appellant's Application in an Appeal.
At the hearing of the appeal the appellant handed up an Amended Application in an Appeal seeking leave to rely upon a further affidavit of Mr Clarke sworn on 29 July 2025, and served upon the respondent late on the evening of the same day.
We note that when it was filed on 7 July 2025, the original application was made in relation to both grounds of appeal as then formulated. However, the amendment to Ground 2, set out above, made this proposed additional evidence plainly irrelevant to that ground. Nevertheless, the proposed evidence may have some relevance to Ground 1, so it will be dealt with in that connection.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) allows the Court to admit further evidence on appeal. This is a discretionary power which "exists to serve the demands of justice" (Hsiao v Fazarri [2020] HCA 35; (2020) 270 CLR 588 ("Hsiao v Fazarri") at [43]) and is remedial in nature. In CDJ v VAJ (1998) 197 CLR 172 ("CDJ v VAJ") the High Court described the principal purpose of the discretionary power was to admit further evidence which, if accepted, would demonstrate that "the order under appeal is erroneous" (at [109]).
But generally there is no proper basis for evidence to be adduced as further evidence in the appeal when it could have been tendered at trial and was not, as otherwise the distinction between original and appellate jurisdiction would be impermissibly obliterated (CDJ v VAJ at [55], [111], [114], [116], [118], [148], [169] and [186.9]).
In CDJ v VAJ at [111] the High Court said:

[67]

It is well known that incompetence of legal representation cannot itself be a ground of appeal. In other words, of itself the incompetence of legal representation does not establish appealable error. The Full Court in Clifton and Stuart [1990] FamCA 154; (1991) FLC 92-194 ("Clifton and Stuart") concluded that a miscarriage of justice must arise out of the judicial process and that the incompetence of legal representatives, unless so bad as to be the equivalent of no representation at all, does not by itself affect the judicial process or the fairness of the trial even though the result may be unjust to the party concerned (at 78,335 and 78,338).
The incompetence of counsel has been considered many times in the context of criminal trials as a basis to set aside a criminal conviction where it constitutes a material irregularity (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8], [74] and [79]).
The Full Court has in the past endorsed the view that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways, such as where egregious conduct of counsel causes the trial process itself to miscarry, whatever the outcome, or it produces an unfair outcome (Markusson & Markusson [2024] FedCFamC1A 196 at [13]-[14] referring to OP v TP (Conduct of Counsel) [2002] FamCA 1155; (2002) 30 Fam LR 281 ("OP v TP") at [123]-[124]).
But in OP v TP the Full Court expressly drew a distinction between criminal cases and cases involving children on the one hand, and property cases on the other, saying at [121]: "We would class property cases as classic adversary cases where the results of a miscarriage of justice are not as serious from a community point of view".
Earlier in their reasons in OP v TP, the Full Court referred to Clifton and Stuart observing it was a property case under s 79A of the Act where a "miscarriage of justice" was said to arise by reason of the incompetence of the wife's lawyers at trial (at [95]-[97]). The Full Court continued:
1. In [Clifton and Stuart] the court distinguished between an unfair result and an unfair trial and held that only the latter could constitute a miscarriage of justice.
2. It must be remembered that this was a decision relating to the meaning of a particular section of the Family Law Act and we think that the principles there stated should be confined to property proceedings in so far as they indicate that an unfair result is not an indicia of a miscarriage of justice.
3. In determining whether a miscarriage of justice has occurred it is necessary to have regard to the jurisdiction that the court is exercising...
4. Similarly, the Full Court in [Clifton and Stuart], after referring to [Wilson v Wilson (1967) 10 FLR 203], pointed to the fact that in criminal trials, the need to preserve the liberty of the subject "must clearly override to some extent the need to avoid further litigation": see [Clifton and Stuart at 78,337].
We agree that property disputes in this Court have the character of conventional adversarial litigation, and are to be distinguished from parenting and criminal cases. The public interest in financial cases is served most obviously by the integrity of the judicial process and considerations of finality. The essential question is about the integrity of the process, although the outcome may bear on this question. The issue here raised by Ground 1 is whether the appellant has established that the trial miscarried or the outcome was unfair because of the incompetence or failures of his lawyers (cf Krupin & Krupin (No 2) [2024] FedCFamC1A 146 at [97]).
This ground fails for the following reasons.
First, as mentioned, the findings made by the primary judge about the liabilities of the appellant were clearly open on the evidence before him (see above at [35]-[43]).
Secondly, the appellant has failed to demonstrate that Mr C acted as his lawyer at the material times, rather than Mr D. We observed at the start of these reasons that Mr C had no status as a legal practitioner at any time after 2022. In his affidavit, the appellant focused extensively on Mr C. He asserts that Mr C was "virtually the sole point of contact" with the "bulk" of email correspondence made directly with him in the period between June 2023 and February 2025 (appellant's Summary of Argument filed 20 June 2025, paragraphs 13 and 14). Surprisingly, however, the appellant's affidavit filed 16 July 2025 annexes only some brief text messages about parenting issues and a perceived conflict between Mr C's advice and the advice of counsel between 17 and 27 July 2023, and a blank email dated 5 July 2023 attaching a minute of final orders sought. There is no evidence of further communication with Mr C. The appellant met Mr C on several occasions in the lead up to his trial. He claims Mr C prepared his trial affidavit, however, he also concedes that the documents prepared for him state they were prepared by Mr D. He gives evidence that he spoke to Mr C during the trial, but there was no dispute that Mr D instructed counsel for and at the trial which completed on 21 July 2023.
Indeed, according to his evidence, the appellant in truth substantially dealt with Mr D during the trial in July 2023 and thereafter. At paragraph 24 of his affidavit, the appellant stated:

[69]

We recorded earlier the deep engagement of Mr D as the representative of the appellant after July 2023.
After discovering Mr C held no practising certificate, the appellant claims in his affidavit:
1. During the period between October 2024 and February 2025, I tried to make contact with [Mr C] and [Mr D]. [Mr C] did not take any of my calls. I finally reached [Mr D] in late 2024. He told me that he had been admitted to hospital with [health] problems and had been in the intensive care unit. Whilst I understood that [Mr D] had been unwell, I assumed that he was now acting for me since [Mr C] was clearly unable to, since he did not hold a practising certificate.
2. I recall that [Mr D] was involved in obtaining updated valuations for the real estate when the matter was re-opened in October 2024. Indeed, orders were made on 10 October 2024 giving me 21 days to provide updated information in relation to the debts of the marriage, so that the Court could consider updated values in relation to both assets and liabilities. Despite orders having been made for documents to be filed, none were ever prepared or filed on my behalf by anyone at [B Lawyers]. I did not know what was happening at the time - all I knew was that I could no longer contact [Mr C] who was no longer answering my calls, and [Mr D] was not contactable for a lengthy period, I assumed due to health reasons. This ultimately resulted in the orders made on 10 October 2024 never being complied with, leaving the Court with only updated information as to the value of the real estate, and no information whatsoever in relation to the debts...
According to this evidence the appellant dealt only sporadically with Mr C, and on any view ceased to rely upon him after October 2024. But he assumed Mr D was acting for him, although he became uncontactable through illness. The extensive reference to relevant transcripts earlier in these reasons makes abundantly clear that the appellant was represented by Mr D on every occasion after July 2023 up to 10 October 2024. The transcripts of 5 March 2025 and 21 March 2025 demonstrate the appellant himself made submissions on his own behalf, so the competence of his lawyer could not be in issue on those occasions.
There was no evidence given to this Court about the status of Mr D as a lawyer. We are unable to determine whether he was actually an employee of Mr C, if that matters. His conduct as the appellant's lawyer at the many court appearances after July 2023 support the inference that he was the lawyer with carriage of the appellant's matter, not Mr C. There was nothing to suggest Mr D did not hold either legal qualifications or a practising certificate at any relevant time. Even if he was a "proxy" for Mr C, there is no basis to infer he was not a properly qualified solicitor when representing the appellant. As recorded above (at [29]), the primary judge believed Mr D "did, and does have" a practising certificate.
The appellant sought to bolster his argument about the importance of the role of Mr C by pointing to an email from the Legal Practice Board of Western Australia dated 19 June 2025 in which Ms L, solicitor for the Board, states:

[73]

We agree a miscarriage of justice may result from a litigant accepting incompetent advice (Prior and Prior [2002] FamCA 327; (2002) FLC 93-105 at [51]), and the appellant in his affidavit highlighted supposedly incompetent advice from Mr C. But for the reasons given, any such incompetent advice from Mr C bears no connection to this ground of appeal. It is difficult to see why the position of Mr C, howsoever it was compromised, makes any material difference for the purposes of disposing of this appeal. He appears to be a red herring. It was Mr D who carried the family law proceedings for the appellant, certainly after July 2023, which is the critical period. The appellant does not impugn the advice or competence of Mr D.
We are satisfied, primarily by the appellant's own evidence and the extensive references to the transcript and matters above at [14]-[32], that Mr D, not Mr C, was the appellant's lawyer at the material times.
Thirdly, we are not persuaded that the appellant has demonstrated any deficiency in the process before the primary judge which produced an unfair outcome. The problem for the appellant is his failure to take the opportunity, first granted by the primary judge in January 2024, to adduce, or make an application to adduce, at any time before the final judgment, updated evidence about his liabilities, which he himself knew was necessary. In other words, having been afforded procedural fairness by the primary judge he failed to take it. Contrary to his submissions, none of the evidence relied upon by the appellant in this appeal demonstrates the deficiencies in his evidence before the primary judge were the consequence of failures by Mr D, putting Mr C to one side.
As the respondent points out, the appellant's evidence is singularly uninformative about this critical issue. Other than to assert "I did not know what was happening", there is no compelling explanation why the appellant took no steps to engage Mr D or, if he was uncontactable, anyone else to obtain updated mortgage statements, or evidence about the relevant rates, water or land tax. According to his own evidence, the appellant was at least able to instruct a friend (Mr N) to find documents for him and prepare a complaint about Mr C. There was no evidence from this person.
The lacunae in the evidence before us were not cured by the evidence of Mr Clarke. In his affidavit of 19 May 2025, he stated that as of May 2025 he was "yet to gather the material relating to the debts" (at paragraph 6), and he goes on to describe how the appellant's prior solicitors "failed to appropriately represent [the appellant] and, in particular, failed to... obtain evidence in relation to the debts of the parties and, more particularly, the debts for which [the appellant] was, and is, responsible" (at paragraph 12). Although the appellant's appeal was brought on the basis that the primary judge erred with respect to the value of the property pool, the affidavit does not identify the specific debts in dispute, nor the precise evidence that was not, but should have been, obtained or presented to the Court by the appellant's former legal representatives.
However, in the affidavit of Mr Clarke of 4 June 2025, several debts are identified. At paragraph 9, he points to amounts owed to the Water Corporation, the City of Suburb F and the Department of Revenue in relation to the three properties held by the appellant. Mr Clarke says that the appellant "has only very recently received" the documents (at paragraph 9) and it is unclear if the documents were provided to the appellant's prior solicitors. It is noted that the Water Corporation invoices were issued on 18 March 2025, which is after judgment delivery (though prior to orders being sealed) and after the appellant's representation with B Lawyers ceased in February 2025. The invoices from the City of Suburb F and Department of Revenue were issued between August and November 2024.
The amounts owing for water, rates and land tax for each property, according to the evidence annexed to the affidavit of Mr Clarke are as follows:

[75]

At paragraphs 10 and 11, Mr Clarke identifies a P Debt Collectors debt on behalf of ANZ of $90,901.74 as at 23 December 2024. He says he was instructed that B Lawyers were provided the document by a friend of the appellant, but it was not provided to the Court or the respondent's solicitors. We do not doubt that those were the instructions to Mr Clarke, but surprisingly, the appellant himself gives no evidence about these matters.
At paragraph 12, Mr Clarke references a statement for mortgage account #...04 as at December 2023 disclosing a debit balance of $355,451.45. This appears to be the mortgage account secured against the appellant's properties at 1 and 2 J Street, Suburb E. In his reasons the primary judge included this liability with a value of $337,749 on the basis of the evidence before him. This is not substantially less than the bank statement annexed by Mr Clarke.
The further affidavit of Mr Clarke sworn on 29 July 2025 does not progress the position of the appellant. Much of his evidence constitutes a record of his instructions from the appellant. Instructions have no evidentiary value in the present context. Indeed, some of the instructions were disavowed by counsel for the appellant such as the claim the appellant's "CBA mortgages are likely to have a combined value of about $600,000" (at paragraph 6). The appellant himself gives no evidence to support this factual assertion. It was also conceded in argument that rental income had been received from the appellant's properties which would have helped reduce the debit balance of the mortgages, but there was no evidence about this.
Another debt mentioned by Mr Clarke was said to be a debt owing to Q Debt Collectors of $81,253.86 pursuant to a court judgment obtained under a Seizure and Sale Order registered in April 2022 for unpaid land tax owing to the Commissioner of State Revenue. Mr Clarke claims the failure to put this before the primary judge was a serious failure by the appellant's "former legal representatives". The appellant must have known of this liability well before June 2023. But there is no evidence from him that he made Mr D aware of it at any time, and he never mentioned it to the primary judge.
The respondent objected to all the evidence of Mr Clarke. We have received it and taken it into account. It simply demonstrates how the matters the appellant now seeks to prove and which underpin his claim of a miscarriage of justice should always have been relatively easy to adduce before the primary judge in accordance with the leave granted, as we pointed out above, on three separate occasions. The appellant has even failed on appeal to provide and seek to adduce coherent evidence purporting to cure the deficiencies in his evidence before the primary judge. It also remains unexplained why Mr Clarke could not annexe to his affidavit, for example, a copy of all the most recent statements of the appellant's mortgage accounts well before the hearing of the appeal.
We are not satisfied the appellant has established a material factual error by the primary judge, nor any miscarriage of justice arising out of incompetent representation. The appellant was afforded procedural fairness but failed to take advantage of the opportunity to present updated evidence of his liabilities.
Ground 1 fails.

[76]

It is necessary to refer to three additional matters. The first is that counsel for the appellant, towards the close of his oral submissions, attempted to introduce a fresh ground of appeal.
As we understood the argument, the appellant contended the primary judge had made a mathematical error in his calculation of the respondent's entitlement because he had, in effect, double counted superannuation.
After a brave but futile attempt to link the argument to Ground 1, counsel for the appellant conceded that the respondent had no notice of this proposed ground, and that the appellant's Summary of Argument was entirely silent about it. He informed the Court that his instructor had conceived of the argument the previous evening. These are sufficient reasons to refuse any leave to further amend the grounds of appeal in the manner proposed.
However, it was also not possible to discern in the primary judge's reasons the asserted error. In summary, the appellant argued that the primary judge should have "started" by calculating the entitlement of the respondent by applying her percentage to the non-superannuation assets, in other words, adopt a two pool approach. But in treating the assets of the parties as a single pool, including superannuation, the primary judge not only adopted an orthodox approach but also embraced the approach proposed by both parties at trial, including the appellant. The appellant is bound by his case at trial and cannot raise such an issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8).
The appellant is refused leave to rely upon the proposed new ground of appeal.
The second matter is that counsel for the appellant also argued towards the end of his oral submissions that the primary judge erred in failing to give proper consideration to likely capital gains tax liabilities which accrue to the appellant if one or more of his properties had to be sold to meet his obligation to pay the respondent $660,520.
But responsibility for the absence of any evidence on this issue lay with the appellant, particularly as the primary judge recorded that the appellant gave evidence that he had $180,000 of tax losses which he could apply to his personal tax (at [311]). If true, such losses could have had a material impact on the calculation of any capital gains tax. The appellant himself mentioned capital gains tax before the primary judge on 5 March 2025 (above at [30]), but there is no evidence he took any steps to produce evidence on the issue.
We find no merit in this argument.
Thirdly, we have pointed out that this Court is required to conduct a real review and should not perpetuate error where it is apparent even if not made so by the grounds of appeal. As the appellant originally formulated his grounds of appeal, we harboured some initial concerns that the form of the primary judge's orders for a lump sum payment to the respondent did not accord with the principle expressed in decisions such as Noetel and Quealey [2005] FamCA 677; (2005) FLC 93-230 at [143] to the effect that where a sale of property is necessary then the amount to be paid to one of the parties following any such sale should be expressed in percentage terms, rather than by way of lump sum payment.
However, as the appeal unfolded, it became clear that the appellant placed no reliance on such a principle and in any event the primary judge calculated the lump sum payment to the respondent on the basis of her percentage entitlement. We need say no more about this.

MacCallion & MacCallion [2025] FedCFamC1A 144 (19 August 2025)

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