CAMPBELL & PETERS - [2014] FamCAFC 76

FAMILY COURT OF AUSTRALIA

CAMPBELL & PETERS

[2014] FamCAFC 76

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – ADEQUACY OF REASONS – FINANCIAL AGREEMENTS – where the trial judge did not provide adequate reasons for the property settlement orders – where the trial judge did not deal with a submission by the husband – where the husband filed a notice of contention – notice of contention dismissed - appeal allowed and orders set aside – there be no order for costs.

FAMILY LAW – APPEAL – application to adduce further evidence – application dismissed.

Family Law Act 1975 (Cth)

Stanford & Stanford (2012) 247 CLR 108

APPELLANT:

Ms Campbell

RESPONDENT:

Mr Peters

FILE NUMBER:

BRC

1582

2012

APPEAL NUMBER:

2013

DATE DELIVERED:

9 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland & Murphy JJ

HEARING DATE:

9 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2013

LOWER COURT MNC:

[2013] FCCA 641

REPRESENTATION

COUNSEL FOR THE APPELLANT:

SOLICITOR FOR THE APPELLANT:

Ms P. Wilson

Stockley Furlong Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITORS FOR THE RESPONDENT:

Mr A. George

Finemore Walters & Story

Orders

The appeal be allowed.
The notice of contention be dismissed.
The orders made by Judge Coates in the Federal Circuit Court on 27 June 2013 be set aside.
The matter be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Coates as expeditiously as possible.
There be no order for costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS FURTHER ORDERED IN CHAMBERS:

The application by the appellant to adduce further evidence (filed 26 March 2014) be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Campbell & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 37 of 2013
File Number: BRC 1582 of 2012

Ms Campbell

Appellant

And

Mr Peters

Respondent

EX TEMPORE REASONS FOR JUDGMENT

FINN J

This is an appeal by Ms Campbell (“the wife”) against orders for property settlement made by Judge Coates of the Federal Circuit Court on 27 June 2013. A notice of contention has also been filed on behalf of the respondent to the appeal, Mr Peters (“the husband”), seeking to uphold his Honour’s orders in the event that the appeal was otherwise to succeed.
The orders appealed provided:
(1)That each party shall retain, to the exclusion of the other, all property, chattels and resources of whatsoever nature and kind in their possession or in respect of which the wife each party has an actual, beneficial and/or contingent interest as at the date of these orders, including but not limited to:
(a)      All household contents in their respective possessions;
(b)Funds held in credit in any bank, credit union or savings account;
(c)      Annual leave and/or long service leave entitlements; and
(d)      Any superannuation to which each party is entitled.
(2)      That all other applications and responses be dismissed.
A brief and apparently uncontroversial background to this case appears in paragraph [6] of his Honour’s reasons in relation to the orders appealed, and is as follows:
a)The husband was born [in] 1944 and is aged 68;
b)The wife was born [in] 1949 and is aged 64;
c)Both parties had been divorced previously;
d)There is a dispute as to when cohabitation began, the wife stating such was on 23 August 2004 when she moved her possessions to his residence, and the husband stating such was from February 2005 when he placed the wife onto his private health insurance;
Because there are no relevant contributions said to be made by the wife during the period from August 2004 to February 2005, as against the agreed facts that the husband brought the overwhelming proportion of assets to the relationship, little weight can be given to the length of the relationship with regard to this six month period;
e)The husband was a veterinarian at [B] who retired from practice in June 2006 when he sold his practice;
f)The parties married [in] 2007;
g)At least one of the documents purporting to be a financial agreement was signed by the parties, apart from the one dated 24 April 2007.
h)On 7 December 2010 the parties separated with the [wife] moving from the marital home; and
i)A divorce was granted [in] 2012.
Prior to the hearing of the appeal today, the Court had the advantage of receiving written submissions from counsel for both parties. Although the scope of some of the grounds of appeal might seem to be uncertain (particularly given the content of the summary of argument filed on behalf of the appellant), Ground 7 clearly alleges that there had been a lack of adequate reasons provided by his Honour for his orders.
For my part, I considered – and I understood the other members of the Bench also so considered – that there would have to be concerns about the adequacy of his Honour’s reasons. Accordingly, at an early stage in the hearing today, we invited counsel for the respondent to seek to defend those reasons. Notwithstanding counsel’s valiant attempts to do so, I certainly was not persuaded that his Honour’s orders could be sustained on the basis of the reasons that he had provided.
My principal concern relates to the fact that there was a financial agreement executed by the parties on 24 April 2007. It seems clear that in the proceedings before his Honour the husband had sought to rely on that agreement to exclude the jurisdiction of the Court to entertain proceedings under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). Although his Honour mentioned

the existence of this agreement at paragraph [3] of his reasons, and again in

his factual background in paragraph [6], he does not seem to return to the agreement until the concluding paragraphs of his judgment, which read as follows:
46.Finally, the husband initially wanted the wife’s application dismissed, relying on a financial agreement upon which he sought a ruling that it be a binding agreement. The wife opposed this course. The agreement in no way meets the requirements of the Act wherein there is evidence of independent advice of the advantages and disadvantages applicable to both parties and there is a statement by a legal practitioner that such advice had been given. That is despite submissions that the wife had advice from a solicitor friend, a
Mr [C] that in my view does not meet the specific requirements of the Act.
47.I also dismiss any suggestion made in the wife’s case that she was under duress and or unconscionable pressure as was claimed in signing any financial agreements between the parties. And although I agree with the submission of counsel for the husband that
s.90KA of the Act applies – which is an application of the laws of contract to such an agreement – that does still not get over the requirements of the certificate required by s.90G of the Act, nor that such constitutes evidence which pursuant to s.90G(1A) of the Act the court would be satisfied that it would be unjust and equitable if the agreement was not binding.
48.On that basis I dismiss that part of the husband’s application which seeks to rely on the financial agreement as a binding document.
49.Given the circumstances, the just and equitable order is to make orders allowing the parties to retain what is in their possession.
It will be seen that those paragraphs contain no explanation of why the financial agreement did not meet the requirements of the Act which are necessary for the agreement to be a binding financial agreement. Perhaps more importantly, it seems clear that there was a submission from the husband to his Honour to the effect that if technical defects did exist which would prevent the agreement from being held binding, then nevertheless, his Honour should hold that, under section 90G(1A)(c) of the Act, it would be unjust and inequitable not to hold the agreement binding; although perhaps the subject of the passing reference in paragraph [47] of his Honour’s reasons, this submission appears not to have been dealt with.
Thus, in my view, the issue of whether the financial agreement was binding was not adequately dealt with by his Honour, and this failure on his part left uncertain the jurisdiction of the Court to then proceed to make the orders now appealed.
Even assuming that the agreement was properly held to be not binding, his Honour still needed when considering under section 79(2) of the Act whether an order for property settlement should be made at all, to have had regard to the existence of that agreement (even if not binding). I make that observation having regard to the references to financial agreements between the parties in the following passage from the judgment of French CJ, Hayne, Heydon, Kiefel and Bell JJ in Stanford & Stanford (2012) 247 CLR 108:
41. … If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying
s 79(4).
There are, in my view, also other difficulties attending his Honour’s reasons, being essentially, that those reasons do not reflect the orders that were ultimately made. I will do the best that I can to explain this difficulty.
His Honour can be seen to have decided (at [38]) that there should be a five per cent assessment of the wife’s contributions and (at [41]) that there should be no adjustment to that assessment on account of the matters contained in

section 75(2) of the Act. He then immediately appears to both re-affirm and yet reject that outcome by saying:
41.In all, although I would not make an adjustment because of s.75(2) factors, I still find that her overall contribution was at five per cent. On my calculations that would entail a payment from the wife to the husband.
and I interpolate here, to observe that his Honour has never explained what amount that payment would be. However, he then continued:
42. In my view, such an order would not be just and equitable.
His Honour then, with respect, appears to revisit in paragraphs [42] through to [44], some of his earlier findings in relation to contribution and the s 75(2) matters, and some of his conclusions in this context, may well be inconsistent with earlier findings that he made when he arrived at the five per cent assessment for the wife’s contribution with no adjustment for the s 75(2) matters.
What I have said about these various matters satisfies me that there is substance in the ground of appeal which asserts a lack of adequate reasons for the orders made. The inadequacies in his Honour’s reasons also means that it cannot be demonstrated if there is any substance in the matters concerning the financial agreement raised in the notice of contention.
Counsel for the husband conceded earlier today that if the appeal was to succeed, it would be necessary for there to be a re-trial. That position was not contradicted by counsel for the wife, notwithstanding a contrary suggestion in the orders sought in the Notice of Appeal.
The orders that I would therefore propose are that the appeal be allowed; the notice of contention dismissed; his Honour’s orders set aside; the matter be remitted for re-hearing by the Federal Circuit Court on the most expeditious basis available to that Court.

STRICKLAND J

Yes. I agree with the reasons provided by the presiding judge and with her Honour’s proposed orders.

MURPHY J

I agree that the appeal should be allowed and the notice of contention dismissed for the reasons given by Finn J. I have nothing to add.

FINN J

I speak now for my colleagues. We consider that the circumstances do not warrant an order for costs; rather there will be costs certificates to both parties in respect of the appeal, and for the new trial.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Murphy JJ) delivered on 9 April 2014.

Associate:

Date: 7 May 2014