Boulton & Boulton

Case [2024] FedCFamC1A 132

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Boulton & Boulton [2024] FedCFamC1A 132

Appeal from: Boulton & Boulton (No 3) [2024] FedCFamC1F 269
Appeal number: NAA 121 of 2024
File number: SYC 1491 of 2021
Judgment of: AUSTIN, JARRETT & CAMPTON JJ
Date of judgment: 9 August 2024
Catchwords: FAMILY LAW – APPEAL – Where the husband cross appeals from a single order adjusting property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Alleged errors as to inadequate reasons, errors of subsidiary facts underscoring findings as to contributions, and errors in failing to consider s 79(4)(e) factors as identified by s 75(2) – Errors of fact not established – Failure to consider relevant s 75(2) factors not established – Error not established by way of “double counting” family violence in contributions up to trial and its prospective impact, in combination with other factors, as relevant to future income earning capacity – Where the reasons are not inadequate by failing to assess contributions and any adjustment thereto by way of a percentage of the property of the parties or a specified sum – Discussion of the requirement of a disciplined and structured process of reasoning for a property adjustment determination engaging with the sequential tasks identified in s 79 of the Act – Recognition that preferred and orthodox approaches to property adjustment reasons have the benefit of a uniformity so as to avoid capricious and arbitrary decision making and ensuring hazards and errors are avoided to secure an absence of controversy from reasons to achieve justice – Cross appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 75 and 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited:

Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61

De Winter and De Winter (1979) FLC 90-605

Ferraro& Ferraro (1993) FLC 92-335; [1992] FamCA 64

Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64

Fowles & Fowles (No 2) [2024] FedCFamC1A 115

G v H (1994) 181 CLR 387; [1994] HCA 48

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hickey and Hickey and Attorney-General (Cth)

(Intervener) (2003) FLC 93-143; [2003] FamCA 395

Horrigan & Horrigan [2020] FamCAFC 25

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

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

JEL & DDF (2001) FLC 93-075; [2000] FamCA 1353

Koyroyshs & Koyroyshs [2021] FedCFamC1A 54

Lee Steere & Lee Steere (1985) FLC 91-626; [1985] FamCA 57

Loncar & Loncar (2021) FLC 94-054; [2021] FedCFamC1A 14

Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168

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AGLC
Boulton & Boulton [2024] FedCFamC1A 132
Case
[2024] FedCFamC1A 132
Decision Date

CaseChat Overview and Summary

The case of Boulton & Boulton concerns a cross appeal by the husband from a single order adjusting property under section 79 of the Family Law Act 1975. The husband's cross appeal included alleged errors such as inadequate reasons, errors of subsidiary facts, and failure to consider certain factors under section 75(2). The primary judge had found that the wife would not return to her previous employment but could potentially move into real estate after training. The husband, a medical professional with an income earning capacity of at least $1 million per annum, argued for a 55 per cent property adjustment in his favour, while the wife sought 70 per cent. The court considered whether the husband had established any errors in the primary judge's decision.

The court found that the husband had not established any errors in the reasons provided by the primary judge. Specifically, the court determined that the reasons were not inadequate for failing to assess contributions and any adjustment by way of a percentage of the property or a specified sum. The court also rejected the husband's claims regarding the consideration of child support under section 75(2)(na) of the Act. The court held that the primary judge had properly considered the impact of family violence on the wife's future earning capacity and did not commit any error in the process of reasoning. The husband's arguments regarding "double counting" family violence and the failure to consider certain factors were also dismissed.

The court dismissed the husband's cross appeal and ordered him to pay the wife's costs in a fixed sum of $48,612. The court concluded that the primary judge's reasons were sufficient and that no appealable errors had been established. The detailed reasoning provided by the court underscored the importance of a disciplined and structured approach to property adjustment decisions to ensure fairness and avoid capricious decision-making. The outcome reinforces the requirement for comprehensive consideration of all relevant factors under the Act, including the impact of family violence and future earning capacity.

The final order was that the amended notice of cross appeal is dismissed, and the husband is to pay the wife's costs in the sum of $48,612 within 28 days. This order ensures that the wife is compensated for the costs associated with the unsuccessful cross appeal.

Orders

Orders of the court

1. The Amended Notice of Cross Appeal is dismissed.

2. The cross appellant pay the cross respondent’s costs fixed in the sum of $48,612 within 28 days.

Background

Background to the litigation

For the reasons that follow, the Notice of Cross Appeal is dismissed.Background The parties commenced cohabitation in mid-2005. They entered a binding financial agreement (“the BFA”) in late 2006 and married two days later, in late 2006. They separated and recommenced their relationship on multiple occasions. The final separation occurred on 16 February 2021, and the husband left the home approximately one month later. The parties have three children, the eldest aged 14, and twins aged eight. Since separation, the children have lived with the wife. Interim orders made on 6 May 2022 (as modified on 10 March 2023) provided for the children to spend four hours on two days each week with the husband. That time did not occur (at [145] and [250]). At the commencement of the relationship the husband was a medical professional and the wife worked in media. In late 2009, prior to the birth of the eldest child, the wife ceased paid employment. She has not worked since that time. On 8 June 2022 the parties entered consent orders setting aside the BFA. The husband is currently a medical professional. His income earning capacity is at least $1 million per annum. The primary judge found at [663] that the wife will not be able to return to her prior employment, however she may move into real estate after some time and training. The parenting orders made on 24 April 2024 provide for the wife to have sole parental responsibility for the children and for them to live with her. No orders were made specifying the time the children are to spend with the husband. The child support departure orders require the husband to pay to the wife periodic child support in the sum of $450 per child per week and non-periodic child support for the children’s school fees and incidental school expenses, private health insurance premiums, and gap medical costs. At the conclusion of the trial the husband sought an adjustment of property as to 55 per cent in his favour. The wife sought an adjustment 70 per cent in her favour. The primary reasons record:519 At the hearing the parties agreed on the property to be divided and its value ($7,258,904), and their superannuation entitlements ($556,281). There was a small dispute as to whether the [husband’s] 2023 tax liability for $26,194 should be included. The liabilities were otherwise agreed as being $94,809.520 The main dispute centred on the “add backs” proposed by the [wife] in the sum of $6,840,607. The [husband] agreed that $2,966,593 should be added back as the total of the parties’ legal fees paid to date. It was agreed that this was the appropriate way to deal with the earlier distribution of proceeds of sale and that they need not be considered further.521 The use of addbacks is not now encouraged with the preferred course being to deal with these issues under s 75(2)(o) of the Act (Trevi & Trevi (2018) FLC 93–858).522 One of the reasons for this is that the property “added back” now no longer exists and is being taken into account as notional property only. Thus, extensive use of add backs has the potential to skew the distribution of the actual property in an unfair manner, unless great care is taken.523 In this case, the add backs proposed by the [wife], if accepted, would constitute 47 per cent of the total net property to be divided.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 1 fails.CONCLUSION AS TO THE APPEAL The husband has failed to establish appealable error. The Notice of Cross Appeal filed 22 May 2024, as amended on 8 July 2024, will be dismissed.COSTS In the event the appeal was unsuccessful, the wife sought for the husband to pay her costs on a party and party basis fixed in the sum of $48,612. The husband did not resist such an order and did not take issue with the reasonableness of the quantum sought. Such order will be made accordingly. For all of the above reasons, we make the order as set out at the forefront of these reasons.

Ratio Decidendi

Legal Principle Established

Both the husband and the wife cited the Full Court decision of Loncar & Loncar (2021) FLC 94-054 as relevant:62In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step.(Emphasis added) There is no error of principle by taking into account findings of prior family violence in evaluating past contributions and then considering its prospective impact in combination with other factors as relevant to findings as to future earning capacity. The projected effects of family violence on the wife were considered by the primary judge, coupled with both the history of the marriage dynamic whereby the wife was not in employment for many years while caring for the children and her future full-time care of them. The accumulation of these facts grounded the predictive prospective factor as to the wife’s future earning capacity from known uncontroversial historical facts and from present circumstances. No error is established. This particular of the ground fails.Ground 3(b) – Failure to consider Child Support (s 75(2)(na)) Section 75(2)(na) of the Act requires the primary judge to take into account “any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage” in considering what order should be made in property settlement proceedings. The gravamen of the husband’s challenge is that the primary judge did not make any express reference “to either child support or any cross-reference to the subsequent subheading “Child Support Departure Order” in the consideration of factors relevant to the adjustment to the contribution finding, despite orders being made requiring him to make both periodic and non-periodic child support payments. By way of illustration as to what the husband contended was a significant value of child support to be paid in the future not considered by the primary judge, he provided during the hearing of the appeal an aide memoire (Exhibit A). That document extrapolated to an annualised value in different categories the periodic payments he made as recorded in his financial statement as at 18 July 2023. He did not take this approach at trial. He made no written or oral submissions in the consideration of s 75(2) matters as to the quantum of any future child support he would pay. This failure was not identified in his Summary of Argument, reflecting an approach looking for error without reference to the manner in which the trial was conducted.