CKC and RRC

Case [2006] FamCA 1290

FAMILY COURT OF AUSTRALIA

CKC & RRC [2006] FamCA 1290

APPEAL – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – FUTURE NEEDS – In property settlement proceedings, the trial Judge assessed contributions at 70/30 in favour of the wife – Following a consideration of s 75(2) factors, the trial Judge adjusted to a division of two-thirds to the wife and one-third to the husband – In relation to future needs, the trial Judge found, inter alia, that the wife’s earning capacity was greater than the amount she was earning at trial as a casual school assistant – This finding was based on equivalent salary the wife was receiving in previous employment at a bank and the trial Judge found that the wife had the “physical and mental capacity” to undertake that or similar work – The wife argued that, there being no evidence that any particular work was available to the wife where she might be remunerated at a similar level to the husband, the trial Judge’s finding regarding the wife’s earning capacity was not open to him – As far as earning capacity of a party is a relevant s 75(2) factor, it is a concept comprised of capabilities and/or qualifications possessed by the party and the availability of opportunity to exercise those capacities in the workforce for predictable reward, at least within a range – In the absence of evidence about the workplace, it was not open to his Honour to conclude that she could exercise whatever capacities she had to earn the salary that she had previously been receiving.

Family Law Act 1975 (Cth)
G and G [2004] FamCA 1179
Mitchell and Mitchell (1995) FLC 92-601

APPELLANT:  CKC

RESPONDENT:  RRC

FILE NUMBER:  SYF303 of 2004

APPEAL NUMBER:  EA109 of 2005

DATE DELIVERED:  1 December 2006

PLACE DELIVERED:  Brisbane

JUDGMENT OF:  KAY, WARNICK AND MAY JJ

HEARING DATE:  11 September 2006

LOWER COURT JURISDICTION:                  Family Court of Australia

LOWER COURT JUDGMENT DATE:            22 August 2005

APPELLANT: CKC
COUNSEL FOR THE APPELLANT: Mr Simpson
SOLICITORS FOR THE APPELLANT:
 Kells the Lawyers
RESPONDENT: RRC
COUNSEL FOR THE RESPONDENT: Mr Miller
SOLICITORS FOR THE RESPONDENT:
 Rita Thakur & Associates

Orders

1.That the appeal be allowed.

2.That order 9.5 of the orders of 22 August 2005 be varied by deletion of the words “to pay 49.12 percent of the balance to the husband” and the insertion in lieu of the words “to pay to the husband $256,134 plus or minus 30 percent of the difference between the balance and $582,413.”

3.That each of the parties be at liberty to make, by way of written submissions filed and served within 21 days of the date hereof;

(i)application with respect to the costs of the appeal;

(ii)application for extension of time within which leave to appeal the costs orders made at first instance;

(iii)submissions in support of any proposed appeal against the costs orders.

4.That each party have a further 14 days from service upon that party to provide an answer…

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CKC and RRC [2006] FamCA 1290
Case
[2006] FamCA 1290
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CaseChat Overview and Summary

This decision concerns an appeal from a discretionary judgment. The parties are identified as CKC and RRC. The core of the dispute revolves around the breadth of a trial judge's discretion and the circumstances under which an appellate court is entitled to interfere with such a decision.

The legal issues before the court were to determine the principles governing appeals from discretionary judgments, specifically the degree of caution an appellate court must exercise when reviewing a trial judge's decision. The court was required to consider the established legal tests for when an appellate court may overturn a discretionary decision, such as whether the decision was "plainly wrong" or fell outside the "generous ambit within which reasonable disagreement is possible."

The court, through the observations of Warnick J, reiterated established principles from numerous High Court and appellate decisions. These principles emphasize the wide discretion afforded to trial judges and the strong presumption in favour of the correctness of their decisions. An appellate court is only justified in interfering if the trial judge's decision is demonstrably wrong, exceeding the bounds of reasonable disagreement. This restraint is particularly pronounced in family law matters due to the complex, personal, and evaluative nature of the decisions involved. The court noted that a trial judge often possesses advantages, such as observing witnesses and reflecting on the entirety of the evidence, which an appellate court, reviewing only the record, may not fully share.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In G and G [2004] FamCA 1179, Warnick J discussed what had been said in a number of cases with regard to the breadth of the trial Judge’s discretion in circumstances such as the instant case as follows:“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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