C & C - [2006] FamCA 191

[2006] FamCA 191

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA74 of 2005

(No. BRM6447 of 2004)

BETWEEN:
C

Appellant Wife
(Respondent to Cross-Appeal)

AND:
C

Respondent Husband
(Cross-Appellant)

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 1 February 2006

Date of Judgment: 3 March 2006

Appearances: Mr McGregor of Counsel, instructed by K L King & Associates, Solicitors, appeared on behalf of the Applicant Wife

Mr Galloway of Counsel, instructed by Stacks Gray Lawyers, appeared on behalf of the Respondent Husband

C and C NA74 of 2005 (BRM6447 of 2004)

Heard: 1 February 2006
Delivered: 3 March 2006

CATCHWORDS:

APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY – VALUE OF PROPERTY – MISTAKE – Orders made splitting the property on a 50/50 basis – The Federal Magistrate made an error in determining the value of the former matrimonial home.

CROSS APPEAL – PROPERTY SETTLEMENT – CONTRIBUTIONS – Husband argued Federal Magistrate erred in assessing equal contributions between the parties – Husband had care of the 2 children of the marriage during 7 year period of the marriage when the wife lived overseas.

COSTS – OFFER TO SETTLE – Orders made – Husband argued discretion of the Federal Magistrate miscarried as the wife made no written offer to settle.

CASELAW CITED:

G and G [2004] FamCA 1179
Ruscoe and Walker (2002) FLC 93-093

Appeal allowed. Matter remitted to Jarrett FM for re-hearing.

Cross-appeal dismissed. Husband ordered to pay wife’s costs.

This appeal must succeed on the issue of the valuation of the former matrimonial home of the husband and wife and consequently the application for property settlement will be remitted for (at the least, depending on the result of a cross-appeal) reconsideration of valuation and, in the light of the impact of any reassessment and its impact on the monetary element of other orders, whether the husband should have (as the orders appealed provided) the opportunity of exchanging payment for a transfer of the wife’s interest in the home, or the home be forthwith sold.
While technically the appeal succeeds because of an error made by the trial Magistrate, so unsatisfactory were the circumstances in which the issue was presented to his Honour, that a mis-step in trying to find a path through the difficulties is unsurprising.
Jarrett FM heard the wife’s application for property settlement on 26 August 2005. In his reasons for the orders made shortly after, on 2 September 2005, he recorded that the wife had sought that the parties’ property (which his Honour determined to be in the sum of $614,464.00 net) be divided equally, but that the husband had sought 80%-85% of that property.
The wife succeeded in obtaining an equal division, but she appealed nonetheless, on the basis indicated, namely that a mistake had been made in the determination of the value of the former matrimonial home, which was by far the major asset of the parties.
The husband cross-appealed, essentially…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: C & C [2006] FamCA 191
Case: [2006] FamCA 191
Decision Date: 3 March 2006

CaseChat Overview and Summary

The appeal concerned property settlement orders made by a Federal Magistrate. The husband argued that the Magistrate erred in valuing the former matrimonial home, leading to an incorrect 50/50 split of the property. The wife cross-appealed, contending the Magistrate erred in assessing equal contributions, given the husband had primary care of the two children during a period when she lived overseas. The husband also argued that the Magistrate miscarried discretion regarding costs, as the wife had not made a written offer to settle.

The court was required to determine whether the Federal Magistrate made an error of fact in valuing the former matrimonial home, and whether the Magistrate erred in assessing the parties' contributions as equal. Additionally, the court had to consider whether the Magistrate's discretion in awarding costs was improperly exercised.

Warnick J applied established principles regarding appeals from discretionary judgments, emphasising the caution an appellate court must exercise and the wide ambit within which reasonable disagreement is possible. The court noted that an appellate court should only interfere if the decision below is plainly wrong. In relation to the property valuation, the court found that the Federal Magistrate had made an error of fact. Consequently, the appeal was allowed, and the matter was remitted to the Federal Magistrate for a rehearing. The cross-appeal was dismissed, and the husband was ordered to pay the wife's costs.

Orders

Orders of the court

Appeal allowed. Matter remitted to Jarrett FM for re-hearing.

Cross-appeal dismissed. Husband ordered to pay wife’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Absent error of fact, the question is whether the approach of the learned Magistrate was within discretion. I discussed the principles applicable to appeals in such circumstances in G and G [2004] FamCA 1179. Some of the statements I quoted there are also pertinent to the level of satisfaction necessary before an appellate court will find a mistake of fact. In G and G, I said:“82. The statements of principle applicable to appeals from discretionary judgments are familiar. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)83. In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)84. Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”85. In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:“…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.”86. Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:“1.…The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)87. While I think one must be careful not to lose the ordinary sense of a passage by focussing excessively on one or two words, I note that the passages refer to the ambit being wide enough, at a minimum, to contain reasonable disagreement. In other words, something more even than actual disagreement is required before interference is justified. Attention is then drawn to the strength of disagreement, to determine whether the appellate court may interfere or not.88. It seems reasonable to imagine that, along the continuum of levels of disagreement, before a conclusion is reached that the result below was plainly wrong or manifestly excessive, the appellate Judge may pass through a stage of uncomfortable uncertainty about the result below, of which uncertainty that result is entitled to the “benefit of the doubt”.89. Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.90. In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.91. In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)

Ratio Decidendi

Legal Principle Established

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