Applicant:MR CAINE Respondent:MS CAINE - [2020] FCCA 225

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAINE & CAINE

[2020] FCCA 225

Catchwords:
FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – marriage counselling, mediation and arbitration – arbitration – arbitral award concerning property interests – application for review of award – review on question of law – form and contents of application.

FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – procedure – costs – security for costs.

HIGH COURT AND FEDERAL COURT – Federal Circuit Court – Procedure – ending proceedings early – summary disposal or stay.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.44(1), 44AAA(1)
Family Law Act 1975 (Cth), ss.13C, 13E, 13H, 13J, 13K, 117(2)
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, r.13.10
Repatriation Act 1920 (Cth), s.107VZZH(1)

Cases cited:
Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499
Berry v Commissioner of Taxation [2015] FCA 1244
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Brown v Repatriation Commission [1985] FCA 236
Child Support Registrar & Crabbe (2014) FLC ¶98–062
Haritos v Commissioner of Taxation (2015) 233 FCR 315
Jamal v Secretary, Department of Social Services [2017] FCA 916
Luadaka & Luadaka [1998] FamCA 1520
Sharma v LGSS Pty Ltd [2018] FCA 167
Weng & Wah [2019] FamCAFC 242
Westrupp v BIS Industries Limited (2015) 238 FCR 354

Applicant:

MR CAINE

Respondent:

MS CAINE

File Number:

BRC 6733 of 2017

Judgment of:

Judge Jarrett

Hearing date:

18 October 2019

Date of Last Submission:

18 October 2019

Delivered at:

Brisbane

Delivered on:

6 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Crofts

Solicitors for the Applicant:

McKean Park Lawyers

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Evans Brandon Family Lawyers

ORDERS

The following matters be struck from the Second Further Amended Application in a Case filed on 3 September, 2019:
(a)Question 2 and paragraphs 3 and 4;
(b)Question 4 and paragraphs 6(a) and 6(b);
Within 21 days of the date of these orders the parties agree upon a Court Book index and within 14 days after such agreement the respondent, Mr Caine prepare, file and serve a copy of the Court Book;
No later than 28 days before the date fixed for hearing of the review application the respondent, Mr Caine, file and serve upon the applicant, Ms Caine, written submissions and a list of authorities in support of the application for review;
No later than 14 days before the date fixed for hearing of the review application the applicant, Ms Caine, file and serve upon the respondent, Mr Caine, written submissions and a list of authorities in support of her opposition to the application for review;
The application for review be listed for hearing at 10:00 am on 28 May, 2020.

IT IS NOTED that publication of this judgment under the pseudonym Caine & Caine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 225
Decision Date: 6 February 2020

CaseChat Overview and Summary

This matter concerned an application by Ms Caine to review an arbitral award concerning property interests made pursuant to the *Family Law Act 1975* (Cth). Mr Caine sought to have certain questions and paragraphs struck from Ms Caine's Second Further Amended Application in a Case, and the court also made orders regarding the preparation of a Court Book, the filing of written submissions and authorities, and the listing of the review application for hearing.

The central legal issues before the court were whether the arbitrator had misapprehended the facts or made an entirely erroneous assessment of the issues, and whether it was open to the arbitrator, as a matter of law, to make certain findings regarding the financial adjustment between the parties, the husband's capacity to maintain a standard of living, and the wife's future earning capacity. Further, the court was asked to consider whether the arbitrator had made a wholly erroneous assessment of the relevant issues and evidence in determining the percentage of contributions and the final apportionment of property, particularly in light of alleged failures to consider or properly apply the provisions of s 79(4)(a) to (c) and s 79(4)(d) to (e) of the *Family Law Act 1975* (Cth), including the effect of the award on the parties' earning capacities and the provisions of s 75(2) of the Act.

The court's reasoning, as evidenced by the orders made, focused on procedural matters and the proper framing of the review application. The decision highlights the importance of clearly articulating questions of law in appeals from arbitral awards, drawing parallels with appeals from administrative tribunals. The court indicated that the substance of the appeal, rather than mere form, would determine whether it was properly brought as a question of law, and that a broad approach to what constitutes a question of law, extending beyond jurisdictional error, would be taken.

The court ordered that specific questions and paragraphs be struck from the application, indicating that they did not properly raise a question of law for review. Directions were given for the preparation of the Court Book, the filing of submissions and authorities by both parties, and the application for review was listed for hearing on 28 May 2020. Publication of the judgment under the pseudonym Caine & Caine was approved.

Orders

Orders of the court

1. The following matters be struck from the Second Further Amended Application in a Case filed on 3 September, 2019:

1. (a) Question 2 and paragraphs 3 and 4;

1. (b) Question 4 and paragraphs 6(a) and 6(b);

2. Within 21 days of the date of these orders the parties agree upon a Court Book index and within 14 days after such agreement the respondent, Mr Caine prepare, file and serve a copy of the Court Book;

3. No later than 28 days before the date fixed for hearing of the review application the respondent, Mr Caine, file and serve upon the applicant, Ms Caine, written submissions and a list of authorities in support of the application for review;

4. No later than 14 days before the date fixed for hearing of the review application the applicant, Ms Caine, file and serve upon the respondent, Mr Caine, written submissions and a list of authorities in support of her opposition to the application for review;

5. The application for review be listed for hearing at 10:00 am on 28 May, 2020.

IT IS NOTED that publication of this judgment under the pseudonym Caine & Caine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The next question is stated as follows:Question Two - Did the Arbitrator misapprehend the facts or make an entirely erroneous assessment of the issues?3. Whether it was open to the Arbitrator as a matter of law to:(a) Be “satisfied’ that “the payment to the Applicant of $741,473.19 will result in an adjustment that is just and equitable” in circumstances where the Arbitrator:(i) was “conscious that from this sum the [Husband] will have to meet his legal fees”;(ii) subsequently determined that the Husband pay the legal costs of the Wife fixed in the sum of $31,995.10;(iii) also made the findings detailed at paragraph 3(b) below.(b) “Conclude” that the Husband “will receive a generous payment of cash that will enable him to maintain a standard of living that is appropriate” in light of the Arbitrator’s findings that:(i) the Husband was 59 years of age; and(ii) the Husband’s state of health when compared to the Wife and especially the Arbitrator’s own findings that the Husband:(A) has a serious physical disability and has not worked outside the parties’ business for many years;(B) has a knee injury and back pain and suffers from an acute stress disorder and an adjustment disorder;(C) has limited employment opportunities and may require a total knee replacement;(D) was issued with a Serious Injury Certificate following the workplace accident in 2008 and has not worked in the open labour market since that time; and(iii) the Husband’s capacity to obtain appropriate gainful employment when compared to the Wife and especially the Arbitrator’s own findings that;(A) the Husband has limited education and may have dyslexia;(B) As to the Husband’s health detailed at paragraph 3(b)(ii) above;(C) The Husband is unemployed and in receipt of new start allowance;(D) The Wife will remain employed as a professional with a current salary of $208,481.63 per annum and “will retain a much higher income earning capacity than the Respondent”; and(iv) the commitments necessary to enable the Husband to support himself when compared to the Wife and especially the Arbitrator’s own findings that:(A) the Wife would retain:(I) her Perth apartment which had an agreed value of $622,000;(II) her shares, and a modest sum of cash but would “continue to earn a lucrative income”; and(B) In respect of the Husband the matters set out at paragraphs 3(a) and 3(b)(i) to (iii) above when the Husband otherwise retained only $119,456 after allowance for spousal maintenance during the period of separation.(c) The Arbitrator had regard, or inappropriate regard, to the Wife’s speculation that at 38 years of age, and with no evidence that she was in any relationship, wished to have children and concluded “which will necessitate some time out of the workforce and then when she returns .... will lead to a likely reduction of income”.4 Whether it was open to the Arbitrator and did not amount to an error of law in being the wholly erroneous assessment of the relevant issues and evidence to:(a) Arrive at a “view’’ that “it is appropriate to assess the contributions of the parties as to 65% to the Applicant (Wife) and 35% to the Respondent (Husband)”, in the light of:(i) s. 79(4)(a) to (c) of the Act - in that the Arbitrator failed to consider and apply, alternatively properly consider and apply, the contributions made by the Husband and particularly;(A) the duration of the marriage and the period prior to marriage in which they cohabitated (from 2007) and shared an intimate relationship (from 2002);(B) the Husband’s contribution to the income, earning capacity, property and financial resources of the Wife during the marriage and their earlier period of cohabitation;(ii) the matters at paragraph 1 hereof;(iii) the justice of the case generally.(b) To order that “the property of the parties be apportioned 55% to the Wife and 45% to the Husband’ in the light of:(i) s. 79(4)(a) to (c) of the Act - in that the Arbitrator failed to consider and apply, alternatively properly consider and apply, the contributions made by the Husband and particularly;(A) the duration of the marriage and the period prior to marriage in which they cohabitated (from 2007) and shared an intimate relationship (from 2002);(B) the Husband’s financial and non- financial contributions to the income, earning capacity, property and financial resources of the Wife during the marriage and their earlier period of cohabitation;(ii) s. 79(4)(d) to (e) of the Act - in that the Arbitrator failed to consider and apply, alternatively properly consider and apply, the effect of the proposed award on the parties earning capacities or the provisions of s. 75(2) of the Act in so far as they were relevant and particularly:(A) the matters set out at paragraphs 3(a) (i) to (ii) above; and(B) The matters set out at paragraphs 3(b) and 3(c) above;(iii) the justice of the case generally.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The process of review or appeal on a question or questions of law also appears in other Commonwealth statutes and has garnered its own jurisprudence. For example, similar expressions appear in the Administrative Appeals Tribunal Act 1975 (Cth):44 Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.and in respect of child support proceedings:44AAA Appeals to Federal Circuit Court from decisions of the Tribunal in relation to child support first reviews(1) If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. In the context of s.44(1) of the AAT Act, it is the question of law that is the subject matter of the appeal: Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [84] – [90]. Earlier instances of the same statutory formulation took the same approach: e.g., Brown v Repatriation Commission [1985] FCA 236 which was concerned with s.107VZZH(1) of the Repatriation Act 1920 (Cth). In Haritos v Commissioner of Taxation the Full Court of the Federal Court of Australia (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:62. We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:(1) The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.…[94]. In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

Ratio Decidendi

Legal Principle Established

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