Camons & Hume

Case [2022] FedCFamC1A 52

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Camons & Hume [2022] FedCFamC1A 52

Appeal from: Hume & Camons [2021] FedCFamC2F 374
Appeal number(s): NAA 59 of 2021
File number(s): DNC 565 of 2020
Judgment of: TREE J
Date of judgment: 12 April 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders which provided for a superannuation split from the husband to the wife – Ex tempore reasons for judgment – Procedural fairness – Adequacy of reasons – Weight challenges – Whether the primary judge failed to take into account relevant considerations – Where appellate courts make assumptions in favour of an ex tempore judgment – Where parties are bound by the conduct of their case at trial – Where the primary judge’s decision was not plainly wrong – Where no ground of appeal is established – Appeal dismissed – Application in an Appeal dismissed – No order as to costs.
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

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

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

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

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

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

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Maviglia v Maviglia [1999] NSWCA 188

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

Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Whisprun v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 56
Date of hearing: 24 March 2022
Place: Cairns (via video link)
Counsel for the Appellant: Ms Horsley
Solicitor for the Appellant: Withnalls Lawyers
The Respondent: Litigant in person (no appearance)

ORDERS

NAA 59 of 2021
DNC 565 of 2020

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

MR CAMONS

Appellant
AND:

MS HUME

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

12 APRIL 2022

THE COURT ORDERS THAT:

1.The appellant’s Application in an Appeal filed 3 March 2022 is dismissed.

2.The appellant’s Amended Notice of Appeal filed 4 February 2022 is dismissed.

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

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

Section 121 of the

Continue reading Camons & Hume

Sign in free to access the full text

Details
AGLC
Camons & Hume [2022] FedCFamC1A 52
Case
[2022] FedCFamC1A 52
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by Mr Camons, the appellant, against the final property settlement orders made by the Family Court. The orders required Mr Camons to provide a superannuation split to Ms Hume, the respondent. The appeal was heard ex tempore and written reasons were subsequently provided. The primary legal issues for the court to decide were whether the primary judge failed to take into account relevant considerations, whether there was procedural unfairness, and whether the reasons provided were adequate. The court also had to consider whether the appeal was plainly wrong or if there was a weight challenge to the primary judge's decision.

The court held that it is well established that appeals from discretionary judgments require the establishment of error. The appellate court must find that there has been a failure to properly exercise the discretion reposed in the primary judge. The court found that the appeal was not plainly wrong, as the primary judge's decision was not unreasonable or unjust. The court also found that there was no procedural unfairness and that the reasons provided by the primary judge were adequate. Furthermore, the court assumed in favour of the ex tempore judgment, and the parties were bound by the conduct of their case at trial. Therefore, the court dismissed the appeal.

The court dismissed the appellant's application in an appeal and the amended notice of appeal. No order was made as to costs. The parties were bound by the conduct of their case at trial, and the primary judge's decision was not plainly wrong. Therefore, the appeal was dismissed, and no further orders were made.

Orders

Orders of the court

NAA 59 of 2021

DNC 565 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CAMONS

Appellant

AND:

MS HUME

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

12 APRIL 2022

THE COURT ORDERS THAT:

1. The appellant’s Application in an Appeal filed 3 March 2022 is dismissed.

2. The appellant’s Amended Notice of Appeal filed 4 February 2022 is dismissed.

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

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

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The wife did not meaningfully engage in the preparation of the appeal, and did not appear at the hearing. Nonetheless, for the reasons that follow, the appeal will be dismissed.BACKGROUND At the time of the trial, the husband was 48 years of age and the wife 41. They commenced their relationship in February 2013, married in April 2016, and separated in August 2019. Although there were no children born to their relationship, the husband has two children from a previous relationship who were aged 13 and 11 at the time of trial, and the wife has one child from a previous relationship, who was aged 17 at the time of trial. At the commencement of the relationship, the husband owned three properties and the wife owned one. The parties still owned those properties in their respective names at the time of trial. As found by the primary judge, the parties kept their finances largely separate up until March 2015, after which they opened a joint bank account. The items in the property pool and their values were agreed by the parties. Those items consisted of the four pieces of real estate, motor vehicles, cash in bank accounts, furniture and the parties’ superannuation. The husband has two superannuation interests; one with X Super fund and the other in Y Super fund. The wife’s superannuation is solely with X Super fund. The liabilities of the parties primarily consisted of mortgages over the four properties; significantly, only one of the properties (owned by the husband) was worth more than the relevant mortgage debt. The wife also had a personal loan. At trial, the wife’s proposal for property settlement was a payment to her of $100,000 by the husband in instalments over three years, and a superannuation splitting order in her favour of $150,000 of the husband’s superannuation. Given that only one of the husband’s superannuation funds – X Super fund – had sufficient funds in it to pay such a sum, it must have been that account she had in mind. The husband’s position was that there should be no orders for the alternation of property interests or superannuation interests. The trial was heard over two days on 6 and 7 October 2021, and on 8 October 2021 the primary judge pronounced orders and delivered reasons for judgment ex tempore. The reasons for judgment were subsequently settled and published in writing on 12 November 2021.THE APPEAL At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said: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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Ground 6

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.