Blatch & Blatch (No 2)

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Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Blatch & Blatch (No 2) [2023] FedCFamC1A 14  

Appeal from: Blatch & Blatch (No 5) [2022] FedCFamC1F 651
Appeal number(s): NAA 215 of 2022
File number(s): SYC 1613 of 2021
Judgment of: TREE, CHRISTIE & SCHONELL JJ
Date of judgment: 17 February 2023
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appeal challenged property settlement and child support orders – Actual bias – Where the primary judge’s assessment of contributions and adjustments could not support a claim of actual bias – Whether the primary judge erred in not accepting a new valuation – Where the new valuation was never part of the evidence and the primary judge was correct to ignore it – Where the husband is precluded from raising contentions not raised before the primary judge – Where leave to appeal is required from the child support orders – Where no ground of appeal succeeds – Leave refused – Appeal dismissed – Costs ordered in favour of wife in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 79, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 36
Cases cited:

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

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

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

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Number of paragraphs: 41
Date of hearing: 1 February 2023
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Othen
Solicitor for the Respondent: Landers & Rogers

ORDERS

NAA 215 of 2022
SYC 1613 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR BLATCH

Appellant
AND:

MS BLATCH

Respondent

order made by:

TREE, CHRISTIE & SCHONELL JJ

DATE OF ORDER:

17 february 2023

THE COURT ORDERS THAT:

1.Leave to appeal Orders 29 and 30(b) made by the Federal Circuit and Family Court of Australia (Division 1) on 31 August 2022 is refused.

2.Appeal no. NAA 215 of 2022 is dismissed.

3.The appellant is to pay the respondent’s costs in the sum of $20,000 within 28 days.

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

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Details
Case
[2023] FedCFamC1A 14
Decision Date

CaseChat Overview and Summary

In the matter of Blatch & Blatch (No 2), the appellant, the husband, challenges the orders made by the primary judge regarding property settlement, lump sum child support payment, and ongoing child support and school fee contributions. The parties had been married, separated, and had two children. The wife had been the primary carer for the children since their separation, and had been responsible for their private school fees. The husband had ceased paying child support and was subject to enforcement orders for arrears.

The legal issues in this appeal concern the valuation of the former matrimonial home, the appropriateness of the lump sum child support payment, and the assessment of the wife's contributions to the relationship. The husband argues that the primary judge erred in not accepting an updated valuation of the property, not considering the changed parenting arrangements and fluctuating incomes when ordering the lump sum child support payment, and overestimating the wife's contributions.

The court found that the husband's grounds of appeal were without merit. The court upheld the primary judge's decision on the property valuation and dismissed the husband's argument regarding the lump sum child support payment. The court also found that the wife's contributions to the relationship were accurately assessed. As a result, the appeal was dismissed and the husband was ordered to pay $20,000 in costs.

Orders

Orders of the court

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Background

Background to the litigation

For the short form reasons (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)) that follow, the appeal will be dismissed.background The parties commenced cohabitation in 2003, married in 2005 and separated under the one roof in April 2018. They physically separated in December 2018 after an incident occurred which resulted in the husband being charged with assaulting the wife and an Apprehended Domestic Violence Order being made for her protection. The parties’ two children were born in 2010 and 2012 and are currently 12 and 11 years of age. The wife and children presently live with the maternal grandparents in their home. The husband lives in the former matrimonial home and he has re-partnered. As found by the primary judge, each party had modest assets at the commencement of the relationship (at [272]). Both parties worked during the relationship, with the wife returning to part-time work after the children were born. The wife has been the primary carer of the children since separation, although as the primary judge found, that was her choice so as to exclude the husband from that role (at [274]). Since 2019, the wife has been solely responsible for the children’s private school fees which expenditure was found to be approximately $163,000 at the date of trial (at [216]). The husband ceased paying child support to the wife in March 2021, and thereafter has been the subject of two enforcement orders to pay child support arrears. At the time of trial, the asset pool comprised the former matrimonial home, some savings, a motor vehicle, motor cycle and superannuation (at [269]). The primary judge included in the balance sheet various add-backs for monies withdrawn, or distributed by way of partial property settlement, and child support arrears. The appealed orders provide for the husband to pay the wife a cash settlement representing 60 per cent of the parties’ non-superannuation net assets (Order 30(a)), together with a lump sum child support payment of $186,238 to be credited against the husband’s child support liability (Orders 29 and 30(b)), and for the husband to be responsible for one half of the children’s private school fees when they become due (Order 24). In the event the husband is unable to pay the wife the amounts ordered, the former matrimonial home is to be sold and the net sale proceeds used to fund the payments (Order 33). The husband challenges all those orders in this appeal.the appeal The Notice of Appeal filed 28 September 2022 contained three grounds as follows:1.Ground 1 – The primary judge made an error when she did not accept the updated valuation of the property at L Street, Suburb K that was performed by [a valuer] dated 23 August 2022. There is no justification for not accepting this valuation, and in not accepting or acknowledging the valuation, the primary judge has made an error when determining how much the Respondent Wife should be paid out. 2.Ground 2 – The primary judge made an error when she ordered the Appellant to make a lump sum payment of child support to the sum of $186,238. The primary judge did not consider the changed parenting arrangements and the fluctuating incomes of the parties when making this order.3.Ground 3 – The primary judge made an error when assessing the Respondent’s contributions when determining her contribution of some $213,000 required an adjustment in her favour.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This appears to be a claim for costs of the litigation before the primary judge. As such, it is plainly not a valid ground of appeal, and it fails.Conclusion No ground of appeal succeeds and hence the appeal will be dismissed.costs The appeal was hopeless, and has inevitably failed. The husband has greater earning capacity (and income) than the wife, although under the primary judge’s s 79 orders, she has more property than he does. Weighing those factors tells in favour of a costs order against the husband, notwithstanding the usual position established by s 117 of the Act. As to quantum, we are satisfied that $20,000 is a reasonable sum, and it should be payable within 28 days.

Ratio Decidendi

Legal Principle Established

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