Barker & Barker
[2007] FamCA 153
•8 March 2007
FAMILY COURT OF AUSTRALIA
| BARKER & BARKER | [2007] FamCA 153 |
| APPEAL – PROPERTY Per Finn J: Whether trial Judge’s reasons for judgment were inadequate – Trial Judge did not express final conclusion as to content and value of parties’ property – No explanation given as to why entirety of property not identified and valued – Not possible to ascertain whether orders were just and equitable – Findings as to contribution assessment and s 75(2) adjustment also inadequate – Appeal allowed – Matter to be reheard. Per Warnick and Boland JJ: Whether trial Judge’s reasons for judgment were inadequate – Whether trial Judge’s reasons disclose that her Honour followed preferred approach to determination of proceedings under s 79 – Trial Judge did not address alleged interest of husband in a particular bank account – Trial Judge did not deal with asserted advances made by husband to new partner – Trial Judge did not deal with parties’ paid legal costs – Trial Judge’s reasons do not disclose she was unable to identity with any precision the pool of assets – Unable to discern consideration trial Judge gave to all asserted assets and liabilities of parties – Merit in this ground. Whether reasons sufficient to support overall result – Unable to discern from trial Judge’s reasons weight afforded to parties’ contributions – Unclear as result of trial Judge’s lack of identification of pool of property approach to assessment of contribution – Adequacy of reasons ground established. Whether trial Judge erred in failing to make s 75(2) adjustment in favour of wife – Number of relevant factors trial Judge required to consider under s 75(2) – Trial Judge appears not to have given any appropriate weight to these factors with consequent adjustment in wife’s favour – Appealable error – Ground established. Appeal allowed – matter to be remitted for retrial. COSTS Per Finn J: No order for costs – Not appropriate case for grant of certificates under Federal Proceedings (Costs) Act 1981 (Cth). Per Warnick and Boland JJ: Trial Judge made findings each party failed to make full, frank, complete and timely disclosure – Cognisant of trial Judge’s comments about lack of appropriate preparation of matter and difficulties faced by trial Judge as a result – Each party to pay own costs of appeal – Not appropriate to grant certificates under Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) s 75(2), s 79 |
Bennet and Bennet (1991) FLC 92-191
Chang v Su (2002) FLC 93-117
Chorn and Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Davut and Raif (1994) FLC 92-503
Ferraro and Ferraro (1993) FLC 92-335
Gronow v Gronow(1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Lee Steere and Lee Steere (1985) FLC 91-626
Norbis and Norbis (1986) 161 CLR 513
Pastrikos and Pastrikos (1980) FLC 90-897
Prpic and Prpic (1995) FLC 92-574
Whitely and Whitely (1996) FLC 92-684
| APPELLANT: | Barker |
| RESPONDENT: | Barker |
| FILE NUMBER: | SYF | 4353 | of | 2002 |
| APPEAL NUMBER: | EA | 130 | of | 2005 |
| DATE DELIVERED: | 8 March 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Finn, Warnick & Boland JJ |
| HEARING DATE: | 28 July 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2005 |
| LOWER COURT MNC: | [2005] FamCA 1047 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Rockliffs |
| COUNSEL FOR THE RESPONDENT: | Mr Bell |
| SOLICITOR FOR THE RESPONDENT: | Manion McCosker |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Barker v Barker.
Orders
That the appeal is allowed.
That Orders 1 to 7 inclusive of the orders made by the Honourable Justice Lawrie on 30 September 2005 be set aside.
The matter be listed for rehearing before a trial Judge other than the Honourable Justice Lawrie.
That each party pay their own costs of and incidental to the appeal.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 130 of 2005
File Number: SYF 4353 of 2002
| Barker |
Appellant
And
| Barker |
Respondent
REASONS FOR JUDGMENT
Finn J:
As is explained in the joint judgment of Warnick and Boland JJ (which I have had the advantage of reading in draft form), the primary challenge raised in this appeal by the wife against the property settlement orders made by Lawrie J on 30 September 2005, is to the adequacy of her Honour’s reasons for her orders. Particularly subject to challenge is her Honour’s reasoning in relation to the pool of property available for division between the parties and the adjustment to be made on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”). I agree that the appeal must succeed on the basis of that challenge, and that the orders must be set aside and the matter remitted for rehearing.
It has long been recognised that in order for the Court to be able to satisfy itself under s 79(2) of the Act that any order for property settlement which it proposes to make under s 79 is just and equitable, it must so far as possible determine the nature and value of the whole of the property of the parties to the proceedings (see for example Norbis and Norbis (1986) 161 CLR 513, particularly at 532; Pastrikos and Pastrikos (1980) FLC 90-897.)
The Reasons of the Trial Judge in Relation to the Pool of Property and s 75(2) Matters
In the present case Lawrie J expressly recognised in her reasons for judgment (paragraph 12) this requirement “to identify and quantify the matrimonial property”. When she came to consider the property of the parties, she stated (paragraph 29) that “the property of the parties was not agreed.” She went on to say that the property which was agreed on as at the start of the hearing was “at least” the following:
·a home unit occupied by the wife [(the matrimonial home)] which had an agreed value of $1,750,000 and which was subject to a mortgage and secured two lines of credit
·the contents of the wife’s unit agreed at $55,600
·personal property of the husband agreed at $23,000
·superannuation of the wife agreed at $440
·Telstra shares of the wife agreed at $4,032 and
·funds in a controlled money account then being $310,000.
Then under the heading “Liabilities of the parties” her Honour said:
30. The mortgage on the home consisted of the Colonial Home loan, $630,000 (that the sum that had been borrowed to pay out the creditor on the [North Sydney property]) + [V] no 1 $50,000 + [V] no 2 $345,000: total $1,025,000. After the payment of the funds in the controlled money account were eventually paid in the “mortgage” was about $680,000.
31. The husband contends that the wife has appropriated the proceeds of sale of various properties which were held by the family at the date of separation, drawn down the line of credit for her own benefit, and made cash drawings on credit cards. The wife contends that the husband has taken and wasted joint assets, mainly through making advances to his partner…
In the following paragraph (paragraph 32) and still under the heading “Liabilities of the parties”, her Honour said: “The three companies which are the subject of the applications are:”. (I understand her Honour’s reference to “the applications” to be to the wife’s amended application for property settlement and the husband’s amended response, which had been explained by her Honour in the opening two paragraphs of her reasons for judgment.)
Immediately following paragraph 32, her Honour inserted a heading “[OA] Pty Limited”. Under that heading in paragraphs 33 and 34 her Honour provided some history of the ownership and business of that company. She concluded paragraph 34 by saying:
… The share structure of the company is: 9997 “A” shares are held by [B] Pty Limited; 1 by the wife; and 2 “B” shares are held by [B].
In paragraph 35 her Honour listed the six real estate properties which OA Pty Ltd had held when the parties finally separated in August 2001, and also the proceeds of sale of those properties all of which had been sold during 2001 or 2003.
Her Honour then said:
36. The company has some capital losses which have enabled it to not have to pay capital gains tax on its capital profits from the sales of the properties in 2003 which amounted to $593,248. It has $13,174 remaining.
Then under the heading “[B] Pty Limited”, her Honour said in relation to this second company:
37. This is said to be the corporate trustee for the [BF] Trust. The trust is the beneficial owner of the shares in [OA] Pty Ltd. The wife has two preference shares, and the sons each have one preference share. The beneficiaries are said by the wife to be herself and the parties’ sons. They are all adult. They were served with the application. They have not appeared in the matter. They do not appear to have clearly agreed to it being wound up. It is not proposed that any portion of the assets should be distributed to them.
Finally in relation to the three companies and under the heading “[MEM] Pty Limited” her Honour said:
38. In 1985 a retirement village called the [ME] Project was developed by the parties. This was one of the associated companies. It has tax losses of about $1,200,000. It is used by the husband as the vehicle for receiving his income as a real estate consultant. He is paid up to the tax free limit as salary and then receives the balance from the company income which has been adjusted against the accumulated losses, and as a result the husband has not paid personal income tax. I am not able to quantify a value for the company in the hands of someone who operates in this fashion, but it has had, and would continue to have very significant financial advantages in the hands of the husband.
39. He proposes that it be wound up. The wife proposes it be transferred to him, with him indemnifying her in relation to any consequences of her shareholding. This seems the more constructive course and I will make such an order.
Next in her Honour’s judgment there appears a heading “Items in dispute”. Immediately under that heading is a further heading “The [Queensland] property”. Under that further heading her Honour made the following observations about that property which was owned by the husband and his partner:
40. … It was agreed at the start of the hearing that this property had a value of $1,300,000. …
41. The wife asserts that the husband is the beneficial owner of the whole property. The husband says that his partner has paid $17,000 of the $18,000 deposit. He says he has borrowed from the bank against the security of the property and used the money to live on. He says the equity in the property should be [his partner] … in the absence of any evidence I would not displace the legal ownership, which would make the husband’s net interest in the property $202,954. The wife has effectively made no contribution to this amount.
Her Honour then immediately moved to a discussion of the parties’ contributions under the heading “Contributions”. It must be noted that nowhere to this point had her Honour expressed, and indeed at no point in her judgment did she express, a final conclusion as to the content and value of the parties’ property, notwithstanding that she had said in paragraph 29 at the outset of her discussion of their property, that it “was not agreed”.
It is important to note also that despite having at an early stage in her reasons explained that the first step in determining a property application is “to identify and quantify the matrimonial property”, at no point in her reasons did her Honour explain why she had not, or considered herself unable to, identify and value the entirety of the parties’ property.
In the course of her assessment of the parties’ contributions, her Honour having referred to the husband’s case that contributions throughout the marriage should be treated as equal, expressed herself (at paragraph 46) “satisfied that the parties were making equal contributions to the marriage…”.
However, her Honour then moved to consider the financial assistance given to the parties by the wife’s parents when the husband became bankrupt, and concluded (at paragraph 53) “that the funds which came from the wife’s father should be treated as additional contributions which have been made on behalf of the wife”.
Having reached this conclusion, her Honour continued:
54. The wife has had the control of most of the parties’ assets. She has occupied the former matrimonial home, and objected strongly to the husband occupying one of the apartments. The husband purchased the property in Queensland without any contribution from the wife. The husband has used some 500,000 frequent flyer points, and has taken a very small proportion of the parties’ chattels. He made capital drawings from various accounts, but less than the wife.
55. The wife has also had the control of the proceeds of the sale of the properties held at the time of separation. I did not accept her analysis of the application of the funds being to business expenses alone, because her analysis did not take into account the substantial rents which were received and applied to outgoings, but was really a capital gains calculation.
Her Honour then listed (in paragraph 56) the six properties (previously found by her in paragraph 36 to have been “held” by OA Pty Limited) and the proceeds of the sales of which, she found the wife to have controlled.
In the following three paragraphs (57, 58 and 59) her Honour described the position in relation to a number of different accounts which are apparently in the name of OA Pty Limited, but which had been operated by the wife.
Again without expressing any final assessment of the parties’ contributions, her Honour moved to the section 75(2) factors, but saying only:
60. The husband has a much greater capacity to make money than the wife. He has his interest in the Queensland property which he acquired after the separation with funds external to the marriage. Otherwise I would see the parties as being on a similar footing.
Then under the heading “What would be a fair result?” her Honour reached her ultimate conclusion:
61. In all the circumstances I think that the funds which the wife introduced from her father during the family’s blackest days should be offset against the various drawings against capital which she has made since the separation, and her larger contents, and that the former matrimonial home should be sold and the proceeds divided equally, with remaining assets to stay where they are.
Her Honour then proceeded to make orders whereby the matrimonial home was to be sold with its net proceeds to be divided equally between the parties; the wife was to transfer her shareholding in MEM Pty Limited to the husband (with appropriate indemnities from him); and otherwise each party was to keep all property which was in his or her possession or control.
Discussion and Conclusion
As I indicated at the outset, the primary challenge by the wife to her Honour’s orders is an asserted inadequacy of reasons. The test for the adequacy of reasons which was adopted for this Court by the Full Court in Bennett and Bennett (1991) FLC 92-191 in light of earlier decisions of other courts, is as follows:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In the present case it is impossible for me as a member of this appeal Court to ascertain whether the orders which her Honour made were just and equitable in the absence of findings as to the content and net value of the parties’ property, or at least, as I indicated earlier, in the absence of any explanation from her Honour as to why she did not, or considered herself unable to, make such findings.
It must, of course, be acknowledged that early in her reasons for judgment (at paragraphs 16 to 28) her Honour made extensive and adverse credit findings against each of the parties. It is clear from her Honour’s discussion in this regard, that both parties had “failed to make full and frank disclosure of their financial affairs.”
It may well be that this non-disclosure on the part of both parties explains why her Honour was not able to reach a final conclusion concerning the dispute which she identified (in paragraph 29) as existing between the parties as to their property. But with respect to her Honour, she needed, in my view, to explain in her reasons the link between the parties’ non-disclosure and her apparent inability to determine that dispute in order that this appeal Court and the parties might be satisfied that at least as far as was possible on the apparently limited material before her Honour, she had made a just and equitable order.
Apart from the failure to make findings as to the pool of property available for division between the parties (which was itself the subject of the wife’s second ground of appeal), her Honour’s reasoning was also, in my view, inadequate to explain her conclusions as to her contribution assessment and even more so, what her intention was in relation to the s 75(2) adjustment (which itself is the subject of the fourth ground of appeal).
A reading of paragraph 61 of her Honour’s judgment against the background of what she had earlier said concerning the parties’ contributions, and leaving to one side the parties’ other property, would suggest that her Honour divided the proceeds of the home unit equally because she concluded that the assistance given by the wife’s father during the husband’s bankruptcy should be set off against the use of funds which the wife had had since separation.
But there then remains unanswered the question of what adjustment was made in the wife’s favour on account of the husband’s “greater capacity to make money” and his interest in the Queensland property which her Honour had identified (in paragraph 60) in the context of the s 75(2) factors, as apparently warranting an adjustment in the wife’s favour. Again her Honour has failed to explain her reasoning in relation to that matter.
For these reasons, therefore, I agree with Warnick and Boland JJ that the appeal must succeed, that her Honour’s orders be set aside and the parties’ applications be re-heard.
I also agree with their Honours that there should be no order for costs in this appeal, and that it is not an appropriate case for the grant of certificates under the Federal Proceedings (Costs) Act 1981.
Warnick and Boland JJ:
Introduction
By amended Notice of Appeal filed 16 November 2005 the wife seeks to appeal against orders made by Lawrie J on 30 September 2005 in property proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) between herself and the husband.
The trial Judge determined that “the former matrimonial home should be sold and the proceeds divided equally, with remaining assets to stay where they are”.
The wife’s challenges to the trial Judge’s orders are essentially on the following bases. She asserts the trial Judge:
·
failed to provide adequate reasons to discern the ultimate outcome of the
s 79 proceedings;
· failed to determine the asset pool available for distribution between the parties;
· failed to properly assess evidence relevant to contribution findings;
· made an error of law in failing to make an adjustment in favour of the wife under s 75(2); and
· made orders which do not provide a just and equitable result.
Before us the wife sought, without objection, to further amend the grounds of appeal by the insertion of a new ground 1A, which ground asserted error by the trial Judge in dealing with the wife’s evidence in respect of application of funds from a company OA Pty Ltd. The wife also abandoned the original ground 3 of her amended Notice of Appeal filed 16 November 2005.
Background
The husband was born in 1946. He was aged 58 years at the date of the trial. The wife was born in 1947. She was aged 57 years at the date of the trial. The parties married on 13 December 1969 and they finally separated in August 2001. There are three children of the marriage, C born in January 1974, J born in March 1976 and N born in October 1981. At the date of the trial the husband was living in a de facto relationship with Ms S.
The trial Judge’s reasons for judgment
There is no dispute between the parties that the trial Judge’s reasons for judgment accurately set out the parties’ positions at the commencement of the hearing before her Honour. In summary, the husband sought orders that the matrimonial home be sold and that he receive the whole of the net proceeds thereof. He further sought orders that three corporate entities and a trust controlled by the parties be wound up and the net proceeds be divided as to 55 per cent to him and 45 per cent to the wife. The husband sought a similar order concerning any bank accounts held by the parties. Additionally he sought the equal division of chattels, and otherwise the parties each be declared the sole legal and beneficial owner of property in their control.
By contrast, the wife sought orders that the husband transfer to her his interest in the matrimonial home, subject to the existing mortgage, and that she transfer to the husband her shareholding in a company MEM Pty Ltd. The wife otherwise sought orders that each party retain the property in their possession as at the date of the orders.
At the commencement of her Honour’s reasons, she noted that during the marriage the husband had engaged in business as an insurance broker and property developer, and that the wife was a primary school teacher, and after the birth of the children, was the principal homemaker and parent.
Her Honour recorded that the parties organised their affairs through a number of companies of which “three remained operative at separation”. Her Honour said “[t]he family’s business enterprises thrived until the mid-1980s … [a]fter the period of prosperity there were problems which culminated in the husband being made bankrupt in 1993. He was discharged from his bankruptcy in 1996”. Following the husband’s bankruptcy the wife was involved in litigation with a creditor over her interest in the parties’ North Sydney property. The litigation was compromised and the wife retained her interest in the home on payment to the creditor of $650,000.00 which was raised by way of a mortgage secured over the home.
On sale of the North Sydney property the mortgage secured over that property was, as described by the trial Judge, “rolled over” and secured against the matrimonial home. The matrimonial home also provided security for two lines of credit resulting in total borrowings of $1,025,000.00.
At the commencement of her reasons, the trial Judge noted “[s]ince separation both parties have had some limited income from work they have done, but they have both lived well beyond their income, and to a large degree they have lived on capital. In the case of the wife this was the capital which came from the sale of the properties owned by [OA Pty Ltd]”. OA Pty Ltd was the corporate vehicle used by the parties in the latter years of their marriage for property investment. The trial Judge noted that in the case of the husband he had “money borrowed against the beach property owned with [Ms S]”. The beach property referred to is the Queensland property.
At paragraph 16 of her reasons, the trial Judge discussed the issue of credit. Her Honour said:
Each of the parties points the finger at the other and says that they have deficiencies as reliable witnesses and have failed to make full and frank disclosure of their financial affairs. They are both right.
Further on the issue of credit, her Honour said:
I do not consider one of them significantly more reliable than the other. If anything, I thought the husband gave the more accurate account of the family’s activities. I have no doubt that the wife was prepared to go along with the style of the husband’s commercial behaviour while they were a couple.
Under the heading “Property of the parties” her Honour set out those assets of the parties which she noted were agreed at the commencement of the hearing in “May 2003 [sic]”. Her Honour included as an agreed asset of the parties “funds in a controlled money account then being $310,000”. Before us it was asserted on behalf of the wife this sum was not an asset of the husband or wife but was an asset of OA Pty Ltd.
Under the heading “Liabilities of the parties” the trial Judge discussed the quantum of the borrowings secured against the matrimonial home which she noted totalled $1,025,000.00. Her Honour said “[a]fter the payment of the funds in the controlled money account were eventually paid in the ‘mortgage’ was about $680,000”. Her Honour then recorded:
The husband contends that the wife has appropriated the proceeds of sale of various properties which were held by the family at the date of separation, drawn down the line of credit for her own benefit, and made cash drawings on credit cards. The wife contends that the husband has taken and wasted joint assets, mainly through making advances to his partner, [Ms S].
Having set out the details of the history of activities engaged in by the parties through OA Pty Ltd, her Honour concluded “[i]t has $13,174 remaining”.
The trial Judge then set out a brief history of B Pty Ltd which company acted as the corporate trustee for the BF Trust. She also set out a brief history of MEM Pty Ltd and concluded “I am not able to quantify a value for the company in the hands of someone who operates in this fashion, but it has had, and would continue to have very significant financial advantages in the hands of the husband”.
Having noted the parties’ competing applications in respect of MEM Pty Ltd, the trial Judge concluded that the wife’s shareholding in the company should be transferred to the husband and the husband should indemnify the wife “in relation to any consequences of her shareholding”.
Her Honour then turned to discuss the Queensland property owned by the husband and Ms S, and recorded the parties’ competing assertions as to whether or not the whole of the equity in the property should be included as an asset of the parties as the wife contended, or whether the equity in the property was the property of Ms S. Having noted that Ms S did not give evidence, and that inference could be drawn that her evidence would not have assisted the husband’s case, her Honour concluded “[h]owever, in the absence of any evidence I would not displace the legal ownership, which would make the husband’s net interest in the property $202,954”. The trial Judge found “[t]he wife has effectively made no contribution to this amount”. Those findings of the trial Judge are not subject of challenge in this appeal.
In assessing the parties’ relevant contributions, the trial Judge rejected the submissions made on behalf of the wife that her action in pursuing litigation against the creditor claiming entitlement pursuant to a security held over the North Sydney property should be considered a contribution on the wife’s behalf. Her Honour concluded “I am satisfied that the parties were making equal contributions to the marriage through their efforts, although the proportions of their efforts in the different spheres of family activity varied”.
The trial Judge qualified her finding of equality of contribution during cohabitation, by reason of the contribution made on behalf of the wife, of funds advanced by her father, particularly during the period of the husband’s bankruptcy. The trial Judge accepted the wife’s father advanced the sum of $323,817.00 which was used by the parties for their lifestyle and the payment of school fees for the children. Her Honour found that these sums should be considered additional contributions made on behalf of the wife.
In respect of post separation contributions, the trial Judge made findings that the wife had occupied the matrimonial home, that the husband had purchased the Queensland property without any contribution from the wife, and had made capital drawings from various accounts, “but less than the wife”.
The trial Judge rejected the wife’s analysis of application of funds by her post separation to business expenses on the basis that “her analysis did not take into account the substantial rents which were received and applied to outgoings, but was really a capital gains calculation”. The trial Judge set out the proceeds of sale of various investment properties owned by OA Pty Ltd, and concluded, in a footnote, “[m]oney which seems to have been used by the wife alone $282,264”.
Earlier in her reasons the trial Judge noted that there had been a failure on behalf of the wife to produce documents in a timely manner and bank records were only tendered at the end of the litigation. In paragraph 57 of her reasons, the trial Judge set out her analysis of bank accounts operated by the parties, including balances at various dates, and details of some withdrawals. She noted that on 14 July 2003 the wife “put $210,000 from the [OA Pty Ltd] account into an account with [PI]/Trustees in name of [B Pty Ltd]” and on 25 November 2003, approximately two weeks before the matter was listed for hearing, that she paid $157,819.11 “into the controlled money account”.
The trial Judge then turned to her assessment of relevant factors under s 75(2) and commenced her discussion noting that “[t]he husband has a much greater capacity to make money than the wife. … Otherwise I would see the parties as being on a similar footing”. The trial Judge concluded her reasoning under the heading “[w]hat would be a fair result?” and said:
In all the circumstances I think that the funds which the wife introduced from her father during the family’s blackest days should be offset against the various drawings against capital which she has made since the separation, and her larger contents, and that the former matrimonial home should be sold and the proceeds divided equally, with remaining assets to stay where they are.
Notice of appeal
The grounds of appeal as set out in the further amended Notice of Appeal annexed to the Application in a Case filed 14 July 2006 are as follows:
1.That her Honour erred at law in failing to provide adequate reasons in the judgement in order to discern either expressly or by implication the path by which the result has been reached.
1A.That her Honour erred in rejecting the wife’s analysis of the application of funds from the proceeds of sale of various properties owned by [OA Pty Ltd], “because such analysis did not take into account the substantial rents which were received and applied to outgoings, but was merely a capital gains calculation”, in circumstances where not only were the rents accounted for in the evidence but the properties were each negatively geared.
2.That her Honour erred at law by failing to make findings as to the asset pool available as at the date of trial for division between the parties.
3.That her Honour erred in the findings that she made in relation to contribution based entitlements by:
i. Failing to property [sic] interpret the evidence of Mr [R] that it was the wife’s actions alone following the husband’s bankruptcy that saved a one half interest in the then matrimonial home;
ii.Failing to determine the effect of the contributions of $323,817 made by the wife’s father on her behalf;
iii. Failing to determine what was the setoff against the wife’s father’s contributions made on behalf of the wife;
iv.Failing to determine the asset pool to weigh contribution based entitlements against;
v. Wrongly determining that any drawings made by the wife were against the capital of the parties when in fact such drawings, if any, were against capital of [OA Pty Ltd] in circumstances where her Honour did not adjust the interest of the wife in [OA Pty Ltd]
vi. Wrongly concluded equality of contributions other than for the wife’s father’s contributions offset against drawings.
4.That her Honour erred at law by failing to make an adjustment for section 75(2) factors in favour of the wife having made a finding that the husband has a greater income earning capacity than that of the wife, all other matters being equal.
5.That her Honour erred in that the result produced is manifestly unjust and inequitable. [original emphasis]
Before us the wife’s counsel argued her grounds of appeal seriatim. The first challenge to her Honour’s reasons was directed to the asserted failure to provide adequate reasons (grounds 1 and 2). The wife’s counsel provided detailed submissions in respect of ground 1A. The remaining broad challenge was to her Honour’s assessment of contribution and failure to make any adjustment under s 75(2) (ground 4).
We find it convenient to deal with the grounds relating to adequacy of reasons in respect of identification of the pool of assets, contributions to that pool, and relevant s 75(2) factors, and thereafter consider the remaining grounds.
Lack of adequate reasons challenge
(a) The parties’ submissions – asserted failure to identify the parties’ net assets
There is no challenge by either party that the trial Judge set out the preferred approach to the determination of proceedings under s 79 of the Act. However, as we noted above, it was asserted that the trial Judge failed to provide adequate reasons by firstly failing to reach a conclusion as to the composition and value of the asset pool to be divided between the parties, and secondly in reaching her contribution based assessment, adjusted for relevant s 75(2) factors, of how the parties’ assets should be divided.
In his outline of submissions, counsel for the wife set out the asset pool as contended by the wife at the conclusion of the hearing. We find it useful for the purposes of our discussion, to set out that list of assets and liabilities:
ITEM 1 [The matrimonial home] 1,750,000.00 2 Contents of [the matrimonial home] 55,600.00 3 Personal property - H 23,000.00 4 [The Queensland property] 1,300,000.00 5 ING account – W 20.00 6 Dragon account – W nil 7 Portfolio Cash Management - W nil 8 Bankwest account – H (F 17 14/4/03) 25,000.00 9 Mazda Motor Vehicle – H leased – no equity 10 Mercedes SLK - W 45,000.00 11 [OA Pty Ltd] trading account 34,515.00 (balance of Perpetual account) 12 [MEM Pty Ltd] unknown (non-disclosed value of tax losses) 13 Superannuation -W 440.00 14 Telstra shares – W 4,032.00 15 H Bankwest 1230071580 94,500.00 16 H advance to S 64,500.00 17 H – interest in [SA Pty Ltd] 111,000.00 18 H – interest in [DS] 51,500.00 19 Costs paid by husband 73,000.00 20 Costs paid by wife 66,938.00 Liabilities 1 Home mortgage 656,609.00 2 [Queensland property] mortgage 894,091.00 3 Wife’s credit cards 37,355.00 4 VI and VII accounts 38,212.00 + 49,349.00 (amendments added)
In paragraph 29 of her reasons, the trial Judge noted the only agreed assets at the commencement of the hearing as follows:
· the matrimonial home $1,750,000.00
· contents of the home in the possession of the wife $55,600.00
· personal property of the husband $23,000.00
· wife’s superannuation $440.00
· Telstra shares owned by the wife $4,032.00
· funds in a controlled monies account $310,000.00
It was submitted on behalf of the wife that her Honour was in error in attributing the amount of $310,000.00 as being agreed property of the parties, it being asserted this sum “clearly belonged to [OA Pty Ltd] being proceeds of property sales owned by that company which her Honour recorded at paragraph 18”. We note that the consent orders made by Rose J on 19 December 2003 recorded inter alia:
A.The undertaking given by the wife to the Court on 6 May 2003 was for the purpose of ensuring that proceeds of sale of property owned by [OA] Pty Ltd in respect of the sale of real estate which has taken place this year were to be deposited by the wife in a controlled monies account under the joint control of the solicitors of the parties.
B.That counsel for the wife has informed me that his instructions are that the wife has fully complied with that undertaking.
C.The funds so deposited will now be drawn and applied in accordance with the terms [of order 2 above].
Order 2 provided as follows:
(2)That the monies standing to the parties’ credit in the Westpac Controlled Money account held by [Mr T] and [Mr M] be paid forthwith into the [V] II account held at the Commonwealth Bank of Australia in the names of the parties.
At paragraph 19 of her reasons for judgment, the trial Judge traced the history of the funds which had been in the controlled monies account, and recorded that eventually a payment of $314,433.00 went in reduction of the liability on the matrimonial home. We accept that the recording of $310,000.00 as being in a controlled monies account was in error, although the trial Judge did at paragraph 30 of her reasons explain the funds in the controlled monies account had been applied to reduce the mortgage secured over the matrimonial home.
On behalf of the wife, her counsel submitted that:
· the trial Judge failed to deal with a number of assets (BankWest account, MEM Pty Ltd tax losses, advances to Ms S and legal costs paid by the husband);
· that her Honour failed to make any findings as to any particular sum used by the wife for her sole purpose; and
· there was a lack of explanation for the offsetting of various drawings made by the wife for her personal use against the contributions made on behalf of the wife by her father.
By contrast, counsel for the husband noted that before the trial Judge, the wife’s counsel had submitted “[t]his is not a case where your Honour will ever be able to make a finding, in my respectful submission, as to step 1, that is, the asset pool and its value”.
The husband’s counsel also submitted:
· that the trial Judge would have been in error if she had “added back” the husband’s paid legal costs but not those of the wife;
· there was a lack of evidence of the value of the tax losses in MEM Pty Ltd;
· the relevance of the trial Judge’s findings on credit particularly in relation to the wife;
· the unreliability of the documents produced by the wife; and
· that the wife on appeal was seeking to take advantage of her own failings, in that she failed to provide an accurate and comprehensible explanation of her use of the funds of OA Pty Ltd post separation and was seeking to rely on her own failure to support her appeal and her application for a retrial.
(b) Appellate principles
This is an appeal against a discretionary judgment.
The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow(1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The fundamental challenge in this appeal is one directed to adequacy of reasons. The requirement for a trial Judge to give reasons is not in doubt. In Bennett and Bennett (1991) FLC 92-191 the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
(c) Discussion
We discern considerable overlap in the issues raised in relation to the grounds relating to lack of findings about the asset pool and lack of reasons for her Honour’s overall determination. At the commencement of our discussion it is appropriate we record that the task confronting the trial Judge in this matter was not without considerable difficulty. Neither party provided any expert evidence as to the value of their corporate interests. It is clear from her Honour’s reasons that many documents were not produced in a timely manner and there was significant doubt about the veracity of many documents. Further, although the wife produced quite extraordinary amounts of material, as became clear to us from the folder of material being Exhibit FFF, save and except for an aide memoire produced by her counsel, there was no summary or logical distillation from the documents, and no breakdown of, nor clearly comprehensible explanation of the wife’s expenditure between her personal expenditure and that of OA Pty Ltd. So far as we are able to discern, neither was there an adequate breakdown by the husband of his post separation expenditure from the parties’ capital or otherwise.
We also note that counsel for the wife made submissions to the trial Judge at the conclusion of the hearing, that the husband had failed to make a full, frank and complete disclosure of his financial position and further submitted that:
This is not a case where your Honour will ever be able to make a finding, in my respectful submission, as to step 1, that is, the asset pool and its value. All your Honour will be able to do is identify some of the major assets with agreed values – the home mortgage of $656,906 – and that’s an agreed figure, as I understand it. … And I have given the updated figure on the husband’s and the credit cards are an agreed statement of $37,355. (transcript, 17 September 2004, p 22, line 26)
Thereafter the wife’s counsel submitted that the wife’s contribution based entitlements “outweigh those of the husband to a very, very significant extent”.
Whilst her counsel assessed the wife’s contribution based entitlement in the range of 70 to 80 per cent, he did not suggest a percentage adjustment in relation to s 75(2) factors. However, he raised health issues, and in particular under s 75(2)(o), submitted the husband’s asserted failure to make a full and frank disclosure should result in an adjustment in the wife’s favour. The wife’s counsel noted the husband retained his interest in the Queensland property, his interest in MEM Pty Ltd as well as “other investments of an unknown nature and costs paid”.
The husband’s counsel before the trial Judge asserted her Honour should treat the Queensland property as a post separation asset in which the husband had, at best, a 50 per cent equitable interest.
At the conclusion of her submissions, counsel for the husband who appeared before the trial Judge, submitted that the Queensland property should be treated as a financial resource of the husband, that the monies expended by the wife post separation should be taken into account under s 75(2) and the husband should receive 60 per cent of the net proceeds of sale of the matrimonial home.
The preferred or usual approach to the determination of proceedings under s 79 of the Act is clearly enunciated in the case law (see Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Whitely and Whitely (1996) FLC 92-684 and Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143).
In Hickey the Full Court said:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC ¶91-626; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Prpic and Prpic (1995) FLC ¶92-574; Clauson and Clauson (1995) FLC ¶92-595; Townsend and Townsend (1995) FLC ¶92-569; Biltoft and Biltoft (1995) FLC ¶92-614; McLay and McLay (1996) FLC ¶92-667; JEL and DDF (2001) FLC ¶93-075 and Phillips and Phillips (2002) FLC ¶93-104.
It is not in dispute that the trial Judge at the commencement of her reasons succinctly set out the usual or preferred approach to be undertaken by a trial Judge. We discern the fundamental issue to be determined in this appeal is whether or not her Honour’s reasons disclose that she followed the preferred structured approach. Before us, counsel for the wife sought to demonstrate that the effect of the trial Judge’s orders was to leave the wife with approximately $608,000.00 and the husband with assets (excluding advances to the S’s and legal costs paid) of $760,000.00. He asserted that the trial Judge’s inferred finding of equality at the end of the parties’ long term marriage had not been achieved as a result of her Honour’s orders.
Her Honour’s reasons correctly recorded a number of the agreed assets of the parties including the value of the matrimonial home, the contents retained by the wife, personal property of the husband, and superannuation and Telstra shares held by the wife.
The trial Judge did not set out in her reasons a list of the parties’ assets and liabilities as found by her. Her Honour did however within her reasons identify the following assets and liabilities of the parties:
Assets
Matrimonial home
1,750,000.00
Contents (W)
55,600.00
Personal property (H)
23,000.00
Superannuation (W)
440.00
[OA Pty Ltd]
13,174.00
[MEM Pty Ltd] *
not known
[The Queensland property]
202,954.00
Telstra shares
4,032.00
2,049,200.00
Liabilities
Mortgage over matrimonial home 680,000.00 * having tax losses of about $1,200,000.00
It is clear that the trial Judge did not, in her reasons for judgment, address the alleged interest of the husband in a BankWest account which was asserted by the wife to have a balance of $25,000.00, nor did her Honour deal with asserted advances by the husband to Ms S, or the parties’ paid legal costs. It is asserted that the husband’s paid legal costs were funded from borrowings secured against the Queensland property, and should have been offset against those borrowings. We accept there is merit in this submission if the wife’s paid legal costs were also subject to appropriate consideration (see Chorn and Hopkins (2004) FLC 93-204).
We have already referred to the difficult task confronting the trial Judge as a result of the manner in which each party’s case was presented. We accept however that the trial Judge did not specifically in her reasons say she was unable to identify with any precision the pool of assets available for division between the parties.
We accept that on occasions a trial Judge, in a case of non disclosure, will have difficulty in identifying with precision the pool of assets available for division, and it may be appropriate, having identified the lack of appropriate disclosure, to rely on such evidence as is available to identify the assets in respect of which a global or asset by asset assessment of contribution is evaluated (see Chang v Su (2002) FLC 93-117 at paragraphs 67 – 70). However, the trial Judge is generally required to conduct a global or asset by asset evaluation after identification of and valuation of the whole of the assets of the parties. This was explained by Wilson and Dawson JJ in Norbis v Norbis (1986) 161 CLR 513 at 532:
If, as we understand to be the case, the so-called global approach requires no more than that the whole of the assets of the parties be identified and, so far as possible, assessed in value before any alteration of property interests can take place under s. 79, then it is a requirement which, as a general rule, is imported by the section itself. It would not ordinarily be possible to have confidence in the justice and equity of a division of property based upon anything other than the whole of the assets available. Nor would it ordinarily be possible to assess the contributions made directly or indirectly by or on behalf of the parties to the marriage for the acquisition, conservation or improvement of the property or otherwise in relation to the property as required by s. 79(4)(a) and (b) if the whole of the property were not identified and valued. Moreover, if the matters referred to in s. 75(2) were relevant and had to be taken into account under s. 79(4)(d) (now s. 79(4)(e)), they could only be considered against the whole financial background of the parties. So much is clear from the terms of the legislation itself and it has been so interpreted by the decisions of the Family Court. [our emphasis].
(d) Conclusion – identification of net assets
In this case we are unable to discern with any precision from her Honour’s reasons the pool of assets against which her Honour sought to make her contribution based assessment. Although we have been able to identify her Honour’s findings in respect of some assets and liabilities, we are unable to discern the consideration the trial Judge gave to all the asserted assets and liabilities of the parties. Accordingly we find merit in ground 1.
Asserted lack of reasons in reaching overall result
After dealing with the parties’ contributions throughout their cohabitation, the trial Judge referred to the financial assistance received by the parties from the wife’s father during the period of the husband’s bankruptcy. Her Honour concluded “I am satisfied that the funds which came from the wife’s father should be treated as additional contributions which have been made on behalf of the wife” (paragraph 53).
Thereafter the trial Judge referred to the fact “[t]he wife has had the control of most of the parties’ assets” and found she did not accept the wife’s evidence of her application of funds to business purposes alone. In a footnote to paragraph 56 of her reasons the trial Judge noted “[m]oney which seems to have been used by the wife alone $282,264”. As best we can calculate, this sum appears to be derived by totalling the net sale price of four properties sold ($467,697.00 subtracting the sum of $314,433.00 paid in reduction of liabilities = $153,264.00) plus the total net proceeds of [the Sydney property] of $129,000.00. In respect of the latter sum the trial Judge, having traced the movement of the net proceeds through various accounts, said it “appears to have been used by the wife for living and some business expenses”.
We are unable to discern from her Honour’s reasons the weight she afforded to the parties’ post separation contributions, including how she assessed the wife’s personal expenditure, other than her finding that both parties lived beyond their means.
We accept the contention of counsel for the wife that the only finding of the trial Judge in relation to the wife’s expenditure appears to be footnote 7 to paragraph 57 of her Honour’s reasons, and that the trial Judge’s finding that this was personal expenditure by the wife does not appear sustainable given her Honour’s finding that one component of the sum referred to in the footnote was found by her Honour to have been used “for living and some business expenses”.
At the conclusion of her analysis of the parties’ contributions, and in particular the wife’s post separation control of the assets, the trial Judge did not set out any conclusions about her contribution based evaluation, but moved directly to consider relevant factors under s 75(2).
Her Honour appears to set out her conclusions about the parties’ contribution based entitlements at paragraph 61 of her reasons where her Honour said:
In all the circumstances I think that the funds which the wife introduced from her father during the family’s blackest days should be offset against the various drawings against capital which she has made since the separation, and her larger contents, and that the former matrimonial home should be sold and the proceeds divided equally...
It is unclear to us, by reason of the trial Judge’s lack of identification of the pool of property to be divided between the parties whether, in her assessment of contribution, the trial Judge took into account as an asset of the parties available for division the husband’s interest in the Queensland property, or if she did not take this property into account, the weight she afforded to his ownership and occupation of this property in her assessment of relevant factors under s 75(2).
Overall, we are in some doubt as to whether her Honour assessed the parties’ contributions up to the date of the hearing to be equal, although such an outcome may be capable of inference from her Honour’s reasoning. We also accept we could infer from paragraph 61 of her reasons that her Honour made no adjustment in either party’s favour under s 75(2). However we conclude reliance on these inferences is unsound because of lack of adequate reasons and findings about the pool of assets to be divided between the parties, and her Honour’s orders, which do not appear to reflect an equal division of the parties’ assets. In these circumstances we are satisfied the grounds relating to adequacy of reasons are established.
Section 75(2) ground
It was asserted by the wife’s counsel that the trial Judge was in error in failing to make an adjustment in favour of the wife given her Honour’s findings that the “husband has a much greater capacity to make money than the wife”.
We are satisfied there were a number of relevant factors which required consideration by the trial Judge under s 75(2) and appropriate adjustment as a result of that consideration. First, we note the trial Judge found that the tax losses in MEM Pty Ltd, a company which was to be retained by the husband, “would continue to have very significant financial advantages in the hands of the husband”. Her Honour noted the tax losses were about $1,200,000.00. Second, the trial Judge made findings that the husband had “a much greater capacity to make money than the wife”. Third, the trial Judge also found that the husband had financial benefits flowing from his cohabitation with Ms S. Fourth is the husband’s interest in the Queensland property. It is unclear if, in her contribution assessment, the trial Judge excluded the Queensland property as a post separation acquisition of the husband. If this was the course adopted by her Honour, as had been urged by the husband’s counsel, then the benefits flowing to the husband from his one half ownership of this property required consideration under s 75(2)(b). Her Honour appears not to have given any appropriate weight to these factors with consequent adjustment in the wife’s favour, and we are satisfied this constitutes appealable error. Accordingly we are satisfied the ground relating to s 75(2) is made out.
Conclusions
We are satisfied that the grounds relating to adequacy of reasons and failure to consider relevant s 75(2) factors having been made out, it is unnecessary for us to further determine matters relevant to ground 3 (as amended) or ground 5.
It was conceded before us, in the event that the grounds relating to adequacy of reasons succeeded, the matter would have to be remitted for a retrial before a Judge other than Lawrie J and we propose to so order.
Costs
Each party sought in the event that the appeal succeeded on a question of law that we should grant certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and any retrial.
Section 9 of that Act provides:
Section 9 Costs certificates—Federal appeals in family law proceedings
(1) Subject to this Act, and in particular without limiting section 6, where:
(a) a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b) in accordance with section 117 of the Family Law Act 1975 , each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Section 6 provides:
Section 6 Costs certificates for respondents—Federal appeals
(1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2) Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:
(a) the costs incurred by the respondent in relation to the appeal; and
(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.
Section 8 provides for the granting of costs certificates in circumstances where an appeal has succeeded on a question of law and there is a necessity for a retrial.
We have already noted the trial Judge’s findings that each of the parties failed to make a full, frank, complete and timely disclosure in this matter. Further, we are cognisant of her Honour’s comments about the lack of appropriate preparation of the matter, and have regard to our observations of the difficulties faced by her Honour by reason, for example, of Exhibit FFF. In these circumstances in the exercise of our discretion we find it is appropriate that each party should pay their own costs of the appeal and that we should not grant certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal or for the retrial.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 8 March 2007
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Appeal
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Costs
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Remedies
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Procedural Fairness
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