Baldoni & Baldoni

Case [2023] FedCFamC1A 167

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Baldoni & Baldoni [2023] FedCFamC1A 167

Appeal from: Baldoni & Baldoni (No 2) [2023] FedCFamC1F 337
Appeal number: NAA 139 of 2023
File number: SYC 1234 of 2019
Judgment of: AUSTIN, WILSON & CHRISTIE JJ
Date of judgment: 3 October 2023
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant husband asserted the primary judge’s decision was impugned by bias – Where the husband could not demonstrate the conduct of the primary judge was inconsistent with the fair performance of judicial duty – Where the primary judge preferred the uncorroborated evidence of the wife to that given by the husband – Where the husband complained the primary judge denied him procedural fairness – Where the assessment of the spouses’ credit was open to the primary judge – Where the husband complained the primary judge did not properly consider the evidence – Where there is no rational foundation from which to impute the husband’s case and evidence was not properly evaluated by the primary judge – Where the husband asserted the primary judge made mistaken findings – Where the husband failed to point to the specific error – Appeal dismissed – Where the appeal lacked merit – Costs ordered in a fixed sum on a party/party basis.  
Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 and r 13.23

Cases cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47

Adacot & Sowle (2020) FLC 93-982; [2020] FamCAFC 215

Baldoni & Baldoni (No 2) [2023] FedCFamC1F 337

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Commissioner of Taxation & Worsnop and Anor (2009) 40 Fam LR 552; [2009] FamCAFC 4

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fierro & Fierro (No 3) [2022] FedCFamC1A 175

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gilbert-Siddon & Gilbert-Siddon [2009] FamCAFC 190

Goswami & Rapozo (No 2) [2020] FamCAFC 282

House v The King (1936) 55 CLR 499; [1936] HCA 40

In the Marriage of Kowaliw (1981) 7 Fam LN N13

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Jabour v Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78

Jones v Hyde (1989) 63 ALJR 349; [1989] HCA 20

March v E &…

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Details
AGLC
Baldoni & Baldoni [2023] FedCFamC1A 167
Case
[2023] FedCFamC1A 167
Decision Date

CaseChat Overview and Summary

In the case of Baldoni & Baldoni, the appellant, Mr Baldoni, appealed against property settlement orders made in the Federal Circuit and Family Court of Australia. The primary dispute centered around the division of property and assets between the parties, as well as the procedural fairness of the court's handling of the case. The court was required to decide several key legal issues, including whether the primary judge's decision was tainted by bias, whether procedural fairness was adequately provided, and if the evidence was properly considered and evaluated.

The court thoroughly examined the appellant's claims of bias and procedural unfairness. It found that the primary judge's preference for the wife's uncorroborated evidence did not equate to a denial of procedural fairness. The court held that procedural fairness pertains to the fairness of the hearing process, not the fairness of the outcome. Additionally, the court found that the primary judge adequately considered relevant evidence and did not fail to consider any pertinent matters, nor did she consider irrelevant matters. The court also noted that the appellant's evidence lacked a rational foundation and was not properly evaluated by the primary judge.

Ultimately, the court concluded that the appeal lacked merit, as the appellant failed to demonstrate any error on the part of the primary judge. The court dismissed the appeal and ordered the appellant to pay costs in a fixed sum on a party/party basis, given the lack of merit in the appeal. The wife's costs were set at $20,000, and the second respondent's costs were set at $12,000.

This case highlights the importance of demonstrating clear error in a primary judge's decision to successfully appeal, as well as the need for proper consideration and evaluation of evidence in family law matters.

Orders

Orders of the court

NAA 139 of 2023

SYC 1234 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALDONI

Appellant

AND:

MS BALDONI

First Respondent

MR VERTUE

Second Respondent

ORDER MADE BY:

AUSTIN, WILSON & CHRISTIE JJ

DATE OF ORDER:

3 OCTOBER 2023

THE COURT ORDERS THAT:

1. Appeal NAA139/2023 is dismissed.

2. The appellant pay the first respondent’s costs in the sum of $20,000.

3. The appellant pay the second respondent’s costs in the sum of $12,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In those circumstances the appellant has failed to demonstrate error.Ground 1: Proper consideration of the evidence The failure to “properly consider the evidence” is probably best understood as a one of the following:(a)Failure to consider relevant matters; and/or(b)Consideration of irrelevant matters; and/or(c)Failure to afford proper weight to matters. The matters which the husband raised in his written submissions were primarily concerned with the financial advantages that the wife had obtained from [R Company]. The primary judge acknowledged those financial advantages in her reasons at [226]–[230]. It cannot therefore be concluded that her Honour failed to consider relevant matters. The appellant’s submissions do not contend that the primary judge took into account irrelevant matters and therefore that need not be considered further. The submissions made by the husband in support of this ground comprise a litany of allegations about the wife’s perfidy, including that she: lied in evidence to a State court in 2019; defrauded the corporation via which the parties had formerly conducted business; under-stated her income on past taxation returns; made false representations to a finance company; and defamed the husband on social media. The primary judge did not make the findings for which the husband contended in respect of those issues, but that is not the same thing as “not considering all the evidence properly”. The primary judge recorded the husband’s proposal (at [62]) and was familiar with the evidence upon which he relied to prosecute his application (at [47]). There is no rational foundation from which to impute the husband’s case and his evidence was not properly evaluated. Ultimately, her Honour resolved to make orders that more closely resembled those sought by the wife, but she did not have it all her own way. The primary judge found the parties’ debts to the corporation they once controlled should be brought to account in their schedule of assets and liabilities (at [232] and [237(b)]) with the greater share borne by the wife (at [242]–[244]).Ground 4 – erroneous decisions This ground asserts the primary judge “made erroneous decisions”. The use of plural rather than singular terminology provides insight into this complaint. Rather than contending the overall result was plainly unreasonable or unjust, being a recognisable ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505), this is really a complaint of the primary judge making mistaken findings in respect of certain factual disputes. Specifically, the husband asserts the primary judge made mistaken findings about these issues: an insurance claim; the husband’s use of post-separation income; the circumstances under which a family violence order was made against the husband by a State court in 2019; and the interim injunction made against the husband in April 2022 restraining him from posting comments on social media.

Decision

Reasons for decision

Ultimately, her Honour resolved to make orders that more closely resembled those sought by the wife, but she did not have it all her own way. The primary judge found the parties’ debts to the corporation they once controlled should be brought to account in their schedule of assets and liabilities (at [232] and [237(b)]) with the greater share borne by the wife (at [242]–[244]).Ground 4 – erroneous decisions This ground asserts the primary judge “made erroneous decisions”. The use of plural rather than singular terminology provides insight into this complaint. Rather than contending the overall result was plainly unreasonable or unjust, being a recognisable ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505), this is really a complaint of the primary judge making mistaken findings in respect of certain factual disputes. Specifically, the husband asserts the primary judge made mistaken findings about these issues: an insurance claim; the husband’s use of post-separation income; the circumstances under which a family violence order was made against the husband by a State court in 2019; and the interim injunction made against the husband in April 2022 restraining him from posting comments on social media. The husband’s submissions in support of this ground do not explain how the findings made in respect of those issues were not open to the primary judge on the available evidence, particularly in light of her Honour’s stated preference for acceptance of the wife’s evidence, in which event the ground fails. Appealable error is not demonstrated by the husband’s plaintive wish that his evidence on those topics had instead been accepted. If we have understood the husband’s written material correctly, part of his complaint is about an injunction said to have been made on 8 April 2022, but his appeal is against the orders later made on 5 May 2023. It is otherwise difficult to discern from the narrative in the husband’s written submissions whether it is more a complaint of the matters which he considered were material were not given the weight he deemed appropriate. Where an appellant fails to point to the specific error in the primary judge’s assessment it is almost impossible for an appeal court to try to fathom the connection for itself.COSTS Assuming the dismissal of the appeal, the wife sought an order that the husband pay her costs, preferably on an indemnity basis, but otherwise on a party/party basis. There was no justification for an award of indemnity costs but, given the lack of merit evident in the appeal, a party/party order is warranted. The husband contended his limited financial circumstances would militate against any costs order being made, but that consideration carries less weight than the appeal’s abject lack of merit. The wife’s assessment of her party/party costs at $34,049 was still excessive and she properly conceded a lesser sum could be fixed by reliance upon r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The wife’s Summary of Argument was commendably succinct and her senior counsel felt no need to supplement it with oral submissions at the hearing. Given the relative simplicity of the appeal, $20,000 is a proper sum for costs.

Ratio Decidendi

Legal Principle Established

No error on the part of the primary judge has been demonstrated.Ground 2: Consideration of procedural fairness This ground contends the primary judge “did not take into consideration procedural fairness”, which complaint was re-stated in the Summary of Argument to be a complaint that her Honour “failed to provide procedural fairness to the husband”. The husband failed to identify either in his lengthy written submissions or orally what matters are said to have resulted in a denial of procedural fairness. Under this heading the husband’s written submissions deal in detail with perceived inconsistencies in the wife’s evidence but make no connection to the primary judge’s reasons or resulting orders and certainly no reference to matters which would traditionally be considered miscarriages arising from the failure to afford procedural fairness. The primary judge certainly preferred the uncorroborated evidence of the wife to that given by the husband (at [78]–[79] and [82]–[89]), but that credit finding does not manifest the denial of procedural fairness. Nor does the rejection of submissions made on the husband’s behalf, no matter how fervently he may believe in their truth. As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). The husband made no complaint about the manner in which the trial was conducted, save in relation to the contentions of bias, already addressed. In those circumstances the appellant has failed to demonstrate error.Ground 1: Proper consideration of the evidence The failure to “properly consider the evidence” is probably best understood as a one of the following:(a)Failure to consider relevant matters; and/or(b)Consideration of irrelevant matters; and/or(c)Failure to afford proper weight to matters. The matters which the husband raised in his written submissions were primarily concerned with the financial advantages that the wife had obtained from [R Company]. The primary judge acknowledged those financial advantages in her reasons at [226]–[230]. It cannot therefore be concluded that her Honour failed to consider relevant matters. The appellant’s submissions do not contend that the primary judge took into account irrelevant matters and therefore that need not be considered further. The submissions made by the husband in support of this ground comprise a litany of allegations about the wife’s perfidy, including that she: lied in evidence to a State court in 2019; defrauded the corporation via which the parties had formerly conducted business; under-stated her income on past taxation returns; made false representations to a finance company; and defamed the husband on social media. The primary judge did not make the findings for which the husband contended in respect of those issues, but that is not the same thing as “not considering all the evidence properly”. The primary judge recorded the husband’s proposal (at [62]) and was familiar with the evidence upon which he relied to prosecute his application (at [47]). There is no rational foundation from which to impute the husband’s case and his evidence was not properly evaluated.