Camons & Hume
[2022] FedCFamC1A 52
•12 April 2022
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Camons & Hume has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By his Amended Notice of Appeal filed 4 February 2022, Mr Camons (“the husband”) appeals from final property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 October 2021. Those orders provided for a split of the husband’s superannuation with X Super fund in favour of Ms Hume (“the wife”) using a base amount of $65,000, but otherwise dismissed all extant applications.
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
As ultimately formulated, this ground provided:
6. That the trial judge failed to afford the appellant … procedural fairness.
Because a failure to afford procedural fairness strikes at the heart of the judicial process, such grounds should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611). As ultimately distilled, this challenge was that the primary judge failed to give the husband the opportunity to argue that his Y Super fund, rather than his X Super fund, should have been the subject of the splitting order. He says that opportunity ought to have been given to him, if the amount the subject of the split was able to be met by either of the funds.
However the husband did not raise that with the primary judge who, when the trial finished, made it plain he would deliver his judgment the next day. If the husband wanted an opportunity to make further submissions on alternative outcomes, he should have sought it at the trial, but he did not, and natural justice did not require the primary judge to offer it before pronouncing orders consequential upon the concluded trial.
That was all the more obvious because the husband’s case was that an equalisation of the parties’ superannuation accumulation during cohabitation would require a split in favour of the wife of $12,500. Whilst he contended that such a figure was de minimis, and hence a split should not be ordered, on his own case there was a live possibility of a split, yet he did not suggest that it should be from his Y Super fund. Indeed far from it; in submissions to the primary judge, his solicitor explicitly said that the husband “should take [his Y Super fund] out in a four year relationship” (Transcript 7 October 2021, p.100 lines 10–11).
Parties are bound by their conduct at trial (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) at [71]). Appeals are not the means to remedy inadvertence or poor forensic decisions at first instance, as otherwise a trial would become “little more than a preliminary skirmish” (Coulton v Holcombe (1986) 162 CLR 1 at 7).
Ground 6 fails.
Ground 1
This ground provides:
1.That the trial judge failed to take into account and/or give adequate weight to the initial contributions of the appellant.
The primary judge’s conclusion in relation to financial contributions was that “[o]verall, I am satisfied that financial contributions were equal” (at [13]). No challenge to that finding is directly made by this appeal, however in oral submissions, counsel for the husband said that inferentially this ground, and Ground 2, make such a challenge.
According to his Case Outline for the trial filed 6 September 2021, the husband’s primary case then was that justice and equity required no adjustment of the parties’ property or superannuation interests, in accordance with the so-called second step in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). His alternative case, was that “[the husband] contends there ought be an adjustment in his favour for initial contributions in both the non-superannuation asset pool and superannuation asset pool” (Husband’s Case Outline filed 6 September 2021, p.4). At trial however, the husband pursued neither of these positions (although curiously, briefly reverted to his Stanford argument in submissions at Transcript 7 October 2021, p.112 lines 34–36). Rather he contended that there should be no adjustment in either parties’ favour, and each party should keep the property and superannuation in their names, as that was a just and equitable outcome.
In arriving at that conclusion, he contended that there was disparity in the parties’ initial superannuation contributions, in the order of $87,000, with the husband’s superannuation at the start of the relationship being $131,333, and the wife’s $43,889, which, as distilled, is the specific matter the subject of the challenge raised by this ground. Particularly it is said that the disparity in the parties’ initial superannuation positions is not adverted to in the primary judge’s reasons.
It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and that “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked”, and thus regard may be had to the trial transcript (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
To the extent this ground asserts a complete failure by the primary judge to take the husband’s initial contributions of superannuation into account, it is plain from the transcript that the primary judge was well aware of the respective contributions of the parties. Thus on the first day of trial the following exchange occurred with initially the wife’s solicitor, and then the husband’s solicitor:
HIS HONOUR: Is there evidence of the balance of the two super funds at the beginning of the relationship?
[SOLICITOR FOR THE WIFE]: I believe there has been filed that ‑ ‑ ‑
HIS HONOUR: For example, in the trial affidavit?
[SOLICITOR FOR THE WIFE]: Yes. I’m looking at that now, your Honour, and I believe it was filed.
HIS HONOUR: Well, it’s pretty fundamental, isn’t it? If you’re seeking a split of the husband’s super, you’ve got to show what the contributions are.
…
HIS HONOUR: Well, you want to split his – he has got $334,000 in super. You’re seeking a split of 150 from that. So where’s the evidence of the contribution? It’s not a long marriage. Medium marriage. So I’m going to presumably look to the amount – the balance at the beginning of the relationship and the balance now, am I not?
…
[SOLICITOR FOR THE HUSBAND]: I can assist, if you would like, your Honour. It depends which dates your Honour start from, and I can give you the two dates.
…
[SOLICITOR FOR THE HUSBAND]: It can be, your Honour. So the evidence if you’re going to rely on it for the period around June ’15 because they combine finances in March ’15 – the relationship starts in February ’14. They combine finances in March ’15. Around those dates, your Honour, there are two options, and so super figures for 30 June ’15, which is three months post-combining finances, is located at page 71 as an annexure of the wife’s affidavit, 17 August 2021, and page 17 of the husband’s in the annexures.
HIS HONOUR: Page 71.
[SOLICITOR FOR THE HUSBAND]: 71 of the wife’s. She had 67,348.
HIS HONOUR: Yes. I see that.
[SOLICITOR FOR THE HUSBAND]: And the husband’s is 90,916.
…
[SOLICITOR FOR THE HUSBAND]: … Those dates are both 30 June ’15.
HIS HONOUR: All right. Thank you. Yes. Go on, [solicitor for the wife].
(Transcript 6 October 2021, p.6 line 1 to p.8 line 13) (Emphasis added)
Unfortunately it transpired that the figure of $90,916 was only in relation to the husband’s X Super fund. Later there was tendered into evidence a statement of his Y Super fund at 30 June 2014 (exhibit R3). Both of the husband’s superannuation accounts were explicitly raised in address by the husband’s solicitor, and plainly acknowledged and understood by the primary judge (Transcript 7 October 2021, p.99 line 40 and p.101 lines 22–37).
There is simply no reason to think that the primary judge had forgotten both of those pieces of evidence in the 24 to 48 hours between their receipt and when he gave his ex tempore reasons. I am therefore not satisfied that his Honour failed at all to take into account the husband’s initial contributions by way of superannuation.
Insofar as this ground comprises a weight challenge, it faces a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519; Mallett v Mallett (1984) 156 CLR 605). Error is not established merely because an appellate court might have reached a different outcome, as the weight to be given to discretionary factors is quintessentially a matter for the primary judge. Here, given that the relationship persisted some six and a half years, it cannot be said that the primary judge’s conclusion that the parties’ financial contributions were equal, was not reasonably open to him, or plainly wrong.
Ground 1 fails.
Ground 2
As ultimately formulated at the hearing, this ground provided:
2.That the trial judge failed to take into account and/or give adequate weight to [all of] the financial contributions made by the appellant during the parties’ relationship and post-separation.
(Emphasis added)
The primary judge dealt with the parties’ financial contributions at [10]–[13]. I have already noted that the finding of equal financial contributions is not directly challenged by this appeal, but counsel for the husband says this ground, and Ground 1, inferentially seek to do so.
As ultimately formulated, before me the challenge under this ground honed on [12], where the primary judge said:
12.The figure for the husband also takes into account the fact that he was paying the mortgage on the Suburb F property where the parties lived with their children. The mortgage at that time for Suburb F was about $500 a week. So his financial contribution was in reality about $870 a week, which is similar to the wife’s financial contribution for that period. The husband said that this was the high point of his mortgage commitment and usually his disposable income was more, taking into account rents. He said that was a period of particularly low rent receipts. However, there is no other evidence about that and I am satisfied that during the period when the parties mingled their finances in the joint account, that is from March 2015 to August 2019 when they separated, financial contributions were about equal.
(Emphasis added)
Before me, it was firstly said that this shows that the primary judge undertook a “mathematical” approach to the assessment of contributions. However that must be rejected. All his Honour was there doing was reflecting on part of the evidence.
Next it was said that this passage did not properly recognise that the husband’s financial position during the period of about two months in 2015, which was the subject of cross-examination of the husband by reference to his relevant bank statements, was not representative of his financial position during the whole period of the relationship, as detailed in other evidence and addressed in submissions. However it bears repeating that, given the very slight lapse of time between the receipt of that evidence, those submissions, and the judgment, there is no reason to think the primary judge had forgotten that material, such that he failed to take it into account. More, his Honour specifically refers to that argument in [12] itself. That aspect of this ground fails.
Finally it was said that the primary judge failed to take into account all of the financial contributions made by the husband during and after the relationship, as detailed in paragraph 21 of the husband’s Summary of Argument filed 4 February 2021.
Several matters are sufficient to rebut the challenge. Firstly, insofar as this aspect of the ground challenges the finding at [12] that the parties’ financial contributions during the relationship were equal, that very submission was made by the husband’s solicitor to the primary judge (Transcript 7 October 2021, p.106 33–35). Parties are bound by the conduct of their case at trial (Metwally).
Secondly, it was obvious that, post-separation, both parties’ employers continued to make contributions to their respective X Super fund accounts, and both accounts had enjoyed market growth.
Thirdly, the husband’s post-separation payments on his loans did reduce his indebtedness, but little emphasis was placed on this at trial (Metwally), and again there is no reason to think the primary judge overlooked the evidence on this point.
In any event, a judge is not obliged to “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun v Dixon (2003) 200 ALR 447 (“Whisprun”) at [62]).
Finally, insofar as this ground relates to the alleged failure of the primary judge to give adequate weight to the husband’s contentions in this respect, that challenge must fail for the same reasons it failed in relation to Ground 1.
Ground 2 fails.
Ground 3
This ground provides:
3.That the trial judge failed to take into account relevant considerations, namely the respondent’s non-disclosure and her failure to provide a more current figure for her superannuation entitlements.
This ground may be shortly dealt with. In the balance sheet at [9] the primary judge expressly noted that the wife’s superannuation of “$140,966+” was “(at 30.06.20, present balance unknown)”. There is no reason to think that the primary judge later overlooked that fact in his ex tempore reasons, particularly given the exchange in submissions at Transcript 7 October 2021, p.113 line 19 to p.114 line 31, where the husband successfully opposed a current statement of the wife’s superannuation being admitted into evidence.
Ground 3 fails.
Ground 4
This ground provides:
4. That the decision was plainly wrong.
This ultimately became the main contention advanced in the appeal. It is said that the husband’s greater initial contributions, together with his greater post separation contributions, could not possibly, when weighed against the wife’s (unchallenged in this appeal) superior non-financial contributions, result in a $65,000 adjustment of superannuation to the wife, from a total superannuation pool of $475,000. It was said that the outcome was a “leap” too far, as referred to in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234].
Whilst significant to the parties, objectively the sum ordered to be paid is not great, and does not of itself bespeak error, or suggest that the outcome is plainly wrong. However, it is clear that the husband’s real concern is not so much with the figure of $65,000 itself, but that the amount came out of his X Super fund, which performs well, rather than his Y Super fund, which does not.
To this end, at the hearing of the appeal the husband sought to lead additional evidence that, by his retirement at age 65, the sum of $65,000 in X Super fund is likely to be represented in an entitlement of $182,353.28, but a present sum of $65,000 in his Y Super fund would not produce anything like $182,000 at age 65. That evidence was not before the primary judge, although it was then available and no cogent reason (other than perhaps inadvertence) for the failure to tender it is apparent (CDJ v VAJ (1998) 197 CLR 172). Yet the position established by that material is the true genesis of the husband’s concerns here. Indeed his counsel went so far as to candidly concede that is really what is at the heart of this appeal.
Given the absence of evidence or submissions before the primary judge as to the husband’s preferred superannuation fund to which any splitting order would attach, I am not persuaded that the primary judge’s decision to split the X Super fund was plainly wrong.
However, whilst I will not admit into evidence that part of the husband’s further material which related to this ground, in any event, even if admitted it would not establish error, as it is unclear to me why, or how, it could be said that any error is demonstrated merely because the primary judge did not split what appears to be an underperforming superannuation fund.
I should note that there is some curiosity to the primary judge’s reasoning, in that, rather than the adjustment in favour of the wife being 16.5 per cent of the parties’ superannuation, it was 16.5 per cent of the total pool which, given the negative equity in three of the four real properties, was a far lesser figure than if it was only superannuation. That curiosity, however, only favours the husband, and indeed favours him significantly. I say it is curious because the 16.5 per cent figure was introduced by the primary judge in the context of discussing the husband’s submissions about the equalisation of the increase in the parties’ superannuation during the relationship, not the asset pool generally.
Ground 4 fails.
Ground 5
This ground contends:
5. That the trial judge failed to provide adequate reasons.
The obligation to provide reasons is uncontroversial. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 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.
I have already noted the approach of appellate courts to ex tempore first instance judgments, and that a trial judge is not obliged to discuss every fact or argument raised by the losing party (Whisprun). Further, an appellate court will avoid an overly critical, or pernickety analysis of the primary judge’s reasons (AMS v AIF (1999) 199 CLR 160, per Kirby J at 211).
Here the primary judge’s reasoning is quite clear. His Honour found that the parties’ financial contributions were equal (at [13]) but non-financial contributions favoured the wife (at [17]). Weighing those matters, he accepted that even if there was an equalisation of the increase in the parties’ superannuation between 2015 and 2019, there should nonetheless be a further 16.5 per cent adjustment in favour of the wife (at [18]). The pathway by which his Honour arrived at the final outcome is thus sufficiently disclosed.
Ground 5 fails.
OUTCOME
No ground of appeal succeeds and hence the appeal will be dismissed. In the event that the appeal succeeded, and the Court was inclined to re-exercise the primary judge’s discretion, then the husband sought to rely upon the balance of his affidavit filed 3 March 2022. In the circumstances, the Application in an Appeal filed 3 March 2022, which sought to introduce that material, will also be dismissed.
COSTS
The wife self-represented before she disengaged from the appeal, and has sought no order for costs. There will be no order as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 12 April 2022
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