Cosio & Cosio

Case [2022] FedCFamC1A 187

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Cosio & Cosio [2022] FedCFamC1A 187 

Appeal from: Cosio & Cosio [2022] FedCFamC2F 987
Appeal number(s): NAA 179 of 2022
File number(s): SYC 6131 of 2019
Judgment of: TREE J
Date of judgment: 16 November 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Whether it was just and equitable to adjust the parties’ interests in their property – Error of fact – Where the primary judge made an error of fact – Where the wife concedes the error but submits it was immaterial – Whether the error of fact was material – Where the Court is satisfied the error was material and likely influenced the result – Where it is unnecessary and undesirable to consider the remaining grounds of appeal – Appeal allowed – Where the circumstances compels a remitter for rehearing – Application to adduce further evidence dismissed – Orders made for the filing of written submissions on costs.
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 5, 67
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

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

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

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

Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26

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

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 44
Date of hearing: 8 November 2022
Place: Cairns (via video link)
The Appellant: Self-represented litigant
Solicitor for the Respondent: Marsdens Law Group

ORDERS

NAA 179 of 2022
SYC 6131 of 2019

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

MR COSIO

Appellant
AND:

MS COSIO

Respondent

order made by:

TREE J

DATE OF ORDER:

16 November 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 24 October 2022 is dismissed.

2.The appeal is allowed.

3.The matter is remitted for rehearing before a judge other than the primary judge.

4.No later than:

(a)4:00pm on 23 November 2022 the appellant is to make file and serve any material or submission in support of his application that the respondent pay his costs;

(b)4:00pm on 30 November 2022 the respondent is to make file and serve any material and submissions in relation to the appellant’s application for costs;

(c)4:00pm on 7 December 2022 the appellant is to make file and serve any material strictly in reply to any material filed by the respondent under Order 4(b).

5.Upon the last filing of material in conformity with Order 4,…

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Cosio & Cosio [2022] FedCFamC1A 187
Case
[2022] FedCFamC1A 187
Decision Date

CaseChat Overview and Summary

In the case of Cosio & Cosio, the husband appealed a property settlement decision made by the primary judge in the Family Court. The husband argued that the property settlement should have favoured him more significantly, while the wife contended for a more equitable division. The husband’s appeal contained numerous grounds, with some alleging errors of fact and others challenging the exercise of the primary judge's discretion under the Family Law Act 1975 (Cth).

The court considered whether the primary judge made an error in determining that it was just and equitable to make a property settlement order, and if so, whether this error was material. The court also examined whether there were errors in the exercise of the primary judge's discretion regarding the division of assets. The husband argued that he should have received a larger share of the assets, citing the primary judge's miscalculation of a post-separation loan as a material error. The court accepted that the error was material and likely influenced the outcome, leading to the conclusion that remitter for rehearing was necessary.

The court held that the appeal should be allowed and the matter remitted to another judge of the relevant court for rehearing. The court dismissed the husband’s application to adduce further evidence on the appeal, as it deemed impractical to turn the re-exercise into a trial. The court emphasized the importance of judicial economy and the efficient delivery of justice in reaching its decision.

Orders

Orders of the court

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Background

Background to the litigation

The wife resists the appeal. For the reasons that follow, the appeal will be allowed.background The husband is currently 53 years old and is a professional. The wife is currently 52 years old and is a public servant. The parties commenced their relationship in 1991, married in 1992, separated in 2017 and divorced in 2019. Two now adult children were born to the relationship, the youngest of whom still lives with the husband in the former matrimonial home. The husband has re-partnered. The primary judge heard the trial over two days in February 2022. It was the husband’s position at trial that he should receive 86 per cent, and the wife 14 per cent, of the parties’ net assets and superannuation, whereas the wife sought a property division in the order of 55/45 in her favour. The primary judge delivered her reasons for judgment on 2 August 2022, and made the orders as set out above.the appeal The husband’s Amended Notice of Appeal filed 12 September 2022 extended to no less than 22 grounds, almost all of which contained numerous sub-grounds. The error of fact complained of by Ground 3 was conceded by the wife, however she argued that nonetheless the error was immaterial. No other error was conceded. Although as cast, aspects of Grounds 14 and 21 alleged actual bias, when explored during the hearing of the appeal, those challenges were not pressed, nor was an allegation of procedural unfairness seemingly encompassed in Ground 21(b). I therefore need not consider them before all other grounds (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). The balance of the grounds were in two categories. The first category comprises only one ground (Ground 4) which contends that the primary judge erred by making any order for property settlement at all, as her Honour’s conclusion that it was just and equitable to make such an order (seemingly other than in relation to superannuation) was wrong. If successful, that ground would not see any occasion for re-exercise of the primary judge’s discretion, or the remitter of the matter for rehearing. The second category, which comprised the remaining grounds, contends error in the exercise of the discretion under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Ground 3 was amongst that group. Success on any of those grounds would require the Court to either re-exercise the discretion, or remit the matter for rehearing. Logically therefore, Ground 4 should be considered first. However at the outset, it is useful to recall that this is an appeal from the exercise of a discretion. In House v The King (1936) 55 CLR 499 at 504–505, it was said in relation to such appeals: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 4

Evidence

Evidence Before The Court

In Allesch v Maunz (2000) 203 CLR 172 (“Allesch v Maunz”) at [30]–[31] the High Court said in relation to the re-exercise of a discretion by this Court as follows:30.Although, on an appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act “order a re-hearing, on such terms and conditions, if any, as it considers appropriate.” And where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.31.If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances. It is not entirely clear that that happened in the present case, particularly as the Full Court indicated that it could only speculate as to the likely outcome of a fresh application of the principles governing property settlement to the property then owned by the parties.(Emphasis added) The husband indicated that if Ground 3 of the appeal succeeded, and the Court was minded to re-exercise (as was both parties’ preference, at least initially) he would want to lead further evidence on the appeal, comprising at least an updated valuation of the former matrimonial home. Pursuant to Allesch v Maunz he is perfectly entitled to do so, as the Court is obliged to re-exercise the discretion on the facts pertaining as at the date of that exercise. That less than a year has elapsed since the last valuation is not to the point, especially given that the husband contends that the value of the former matrimonial home has diminished in that time, in accordance with what he says has befallen the Sydney property market generally. More, the husband wants to put on evidence as to his post judgment work and expenditure on the former matrimonial home. From the oral submissions advanced by the wife at the appeal, it is likely that the value of the property may prove contentious, as may the claim for an allowance for post judgment work. It is simply not practical to turn the re-exercise into a hearing involving the resolution of conflicting factual contentions; that is, axiomatically, what trials are for. The success of Ground 3 therefore, in the circumstances, compels a remitter for rehearing. In those circumstances, there is no need to consider the husband’s application to adduce further evidence on the appeal and it will be dismissed.outcome The appeal will be allowed, and the matter remitted to another judge of the relevant Court for rehearing. costs

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Later, under the heading “Conclusions on Contributions” at [113] the primary judge said:113.Post separation earnings are relevant when used to increase the pool of assets. They are also relevant where assets have been disposed of or significant liabilities reduced post separation. Taking into account the liability incurred by the husband shortly before separation, his post separation contributions place the parties where they would have been but for his extension of the mortgage.(Emphasis added) (Footnote omitted) It was conceded by the wife that the last sentence evidenced that the primary judge erroneously thought that the $150,000 loan was still outstanding. I accept that is the only sensible construction of it. Error is therefore established. But for that error, it seems plain that post-separation contributions would have favoured the husband. Whilst if mathematically expressed, it might have been in the order of $150,000, of course contributions are assessed holistically, not mathematically (Dickons v Dickons (2012) 50 Fam LR 244 at [21]). Hence despite the valiant efforts of the wife to persuade me that the maximum extent to which the error could have informed the ultimate outcome was, in dollar terms, minimal, simply one cannot know how, in the primary judge approaching her task of holistically assessing contributions, the superior post-separation contributions of the husband would have impacted on the ultimately assessed 52.5/47.5 split in the husband’ favour. It seems almost certain that it would have made some impact, as it simply cannot be ignored that $150,000 is a significant percentage of the net pool here. That in the holistic assessment of contributions it might not have been given full expression in that value, or may have been offset by other matters such as the husband’s tax liability, is neither here nor there. The error was material, and I am satisfied it likely influenced the result. This ground succeeds. I do not need to consider whether the outcome was nonetheless sustainable as no Notice of Contention contending such was filed by the wife. The remaining grounds The other grounds, if successful, would all lead to the same outcome as that which the success of Ground 3 sees, namely a consideration of whether the Court ought re-exercise the primary judge’s discretion, or remit the matter for rehearing. I shall shortly explain why remitter is the only practical alternative here. Given that, the overwhelming number of the remaining grounds compels the conclusion that to deal with them is unnecessary and in any event undesirable, for a number of reasons, not least of which are judicial economy (Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]), and that the matters which they raise will inevitably be enlivened in the rehearing (Kuru v New South Wales (2008) 236 CLR 1at 6). Moreover the objects of the Federal Circuit and Family Court of Australia Act2021 (Cth), particularly, the efficient delivery of justice (s 5) and the overarching purpose of practice and procedure provisions in s 67, including the quick resolution of disputes, all underscore the imperative that the Court, even when dealing with appeals, should not be bogged down with quite unnecessary tasks.