Couldrey & Sedgwick

Case [2025] FedCFamC1A 125

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Couldrey & Sedgwick [2025] FedCFamC1A 125   

Appeal from: Order dated 24 February 2025
Appeal number(s): NAA 119 of 2025
File number(s): DNC 595 of 2023
Judgment of: CAMPTON J
Date of judgment: 18 July 2025
Catchwords:

FAMILY LAW – APPEAL – Consent final property orders – Where the appellant contends jurisdictional error, inadequate reasons and factual error – Consideration of Harris & Caladine (1991) 172 CLR 84 and Maxwell v Miltiadis (2015) FLC 93-644 – Where compliance with the requirements of s 79 of the Family Law Act 1975 (Cth) in the making of consent orders is much less demanding provided that the court is adequately informed, where the parties are at arm’s length, and are properly represented – Where little more in that circumstance than consent may be needed to establish that the requirements of justice and equity have been met – Where the appellant was legally represented by counsel and a solicitor at the trial and for the purposes of the entry of the consent orders – Where no error of jurisdiction or inadequacy of reasons is established – Where the primary judge did not err as to the fact of the appellant’s consent – Appeal dismissed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant made an oral application to adduce further evidence – Application allowed.

Legislation:

Family Law Act 1975 (Cth) ss 79, 90AE, 114UB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, ch 7, r 10.19

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Cases cited:

Anderson & Anderson (1982) FLC 91-251; [1982] FamCA 36

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Harris & Caladine (1991) 172 CLR 84; [1991] HCA 9

Harvey v Phillips (1956) 95 CLR 235

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395

Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68

Maxwell v Miltiadis (2015) FLC 93-644; [2015] FamCAFC 40

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

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Robinson & Willis (1982) FLC 91-215; [1982] FamCA 16

Rollings & Rollings [2009] FamCAFC 87

Vrabec & Vrabec [2024] FedCFamC1A 177

Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 58
Date of hearing: 10 July 2025
Place: Sydney (via Webex)
The Appellant: Litigant in person
Counsel for the Respondent: Mr Baston
Solicitor for the Respondent: O’Neill Family Law

ORDERS

NAA 119 of 2025
DNC 595 of 2023

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

MR COULDREY

Appellant
AND:

MS SEDGWICK

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

18 JULY 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.Within 28 days of the date of these orders, the appellant pay the respondent’s costs…

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Couldrey & Sedgwick [2025] FedCFamC1A 125
Case
[2025] FedCFamC1A 125
Decision Date

CaseChat Overview and Summary

The case of Couldrey & Sedgwick involved an appeal by the appellant, Mr Couldrey, against property orders made by the primary judge. The appellant argued that the primary judge made a jurisdictional error by not properly assessing whether the consent orders were just and equitable, and that the reasons provided were inadequate. The respondent, Ms Sedgwick, maintained that the primary judge correctly followed the law and that there was no error in the making of the orders.

The legal issues before the court included whether the primary judge complied with the statutory requirements under section 79 of the Family Law Act 1975 (Cth) and whether there was sufficient evidence and analysis to determine that the orders were just and equitable. The court considered authorities such as Harris & Caladine and Maxwell v Miltiadis, which highlighted that while a court must not rubber-stamp consent orders, the inquiry required is less demanding if the parties are at arm's length and properly represented.

The court found that the primary judge was adequately informed, and the parties were properly represented. The appellant was legally represented by counsel and a solicitor at the trial and for the entry of the consent orders. The court concluded that the primary judge did not err in finding that the appellant consented to the orders and that there was no jurisdictional error or inadequacy of reasons. Therefore, the appeal was dismissed.

The court also allowed the appellant's application to adduce further evidence on appeal. The final orders of the court were that the appeal be dismissed and that the appellant pay the respondent’s costs in the sum of $9,424 within 28 days of the date of the orders.

Orders

Orders of the court

NAA 119 of 2025

DNC 595 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR COULDREY

Appellant

AND:

MS SEDGWICK

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

18 JULY 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. Within 28 days of the date of these orders, the appellant pay the respondent’s costs fixed in the sum of $9,424.

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).

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

Background

Background to the litigation

For the reasons that follow the appeal is dismissed.BACKGROUND The appellant is 70 years old. He practiced as a professional from 1997 to 2019 and as a further qualified professional from 2019 until late 2024. He says, although the respondent does not accept, that he has retired. The respondent is 57 years old. She has practiced as a professional for 25 years and remains employed as a professional. The parties married in 1992. There are six children of the marriage, all of whom are now adults. There is dispute as to the date of separation, being in late 2020 as asserted by the appellant or mid 2022 on the version of the respondent. The date is not material to the appeal. An order for divorce was made in late 2023. On 29 November 2023 the respondent filed an Initiating Application seeking orders as to the adjustment of property between she and the appellant pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). On 20 February 2024 the appellant filed a Response to an Initiating Application seeking different orders adjusting their property. On 24 January 2024 prescriptive consent orders were made for the sale of a real property at Town B, Queensland (“the Town B property”) and on completion of the sale, after the discharge of the mortgage, payment of rates and agent’s commission, legal costs and other outgoings, the balance of the proceeds of sale were to be paid, pending further order, into the appellant’s solicitors’ trust account. Further orders were made for disclosure pursuant to ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the appointment of ch 7 single experts to opine as to the value of two other real properties in Town C, Queensland (“the Town C property”) and in City D, Northern Territory (“the City D property”). On 2 September 2024 directions were made listing the s 79 dispute for trial over four days commencing on 24 February 2025. Each party filed affidavit evidence supported by large volumes of exhibits. The sale of the Town B property had not progressed by the date of the trial. Each party lay fault as to the failure to list and sell the Town B property with the other. The matter was called over by the primary judge at 10.34 am on the first listed day of the trial. Counsel for the respondent identified that in addition to the s 79 matter listed for trial, also before the primary judge was a contempt application filed by the appellant alleging failure of the respondent to comply with the orders made on 24 January 2024 as to the disposal of the Town B property; an Application in a Proceeding of the appellant for substituted service as to a witness; and an application of the respondent to set aside a Notice to Admit. The respondent provided to the primary judge, absent input from the appellant, a contended balance sheet (AB p.1,417). Counsel for the respondent confirmed the contention advanced by his client that the Town B property was held on trust for the parties’ children and hence not an item in the balance sheet identifying the property of the parties. Counsel for the appellant identified his client’s contention that the Town B property interests were property of the parties amenable for adjustment pursuant to s 79 of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant conceded that the 2014 document had been available in the public domain since that time and hence was available to him at trial. The appellant identified in his Summary of Argument that he proposed to rely on the document at the hearing of the appeal and served a copy of it on the respondent at that time. The respondent said that the relevance of the document on appeal remained unclear, but did not assert any prejudice if the evidence was adduced. The content of the 2014 document was not disputed. The appellant submitted that it would be relevant to “illustrate” the “jurisdictional error” asserted in Ground 2. Although it was not further explained how the evidence would help establish any appealable error by the primary judge, or how it would likely produce a different result, the document was received into evidence on appeal because this Court is able to evaluate it and take it into account when considering the appeal (CDJ v VAJ (No 1) (1998) 197 CLR 172).CONSIDERATION Ground 1 – “The primary Judge failed to comply with the statutory requirement under section 79(2) and 90AE(3)(a)(e) of the Family Law Act 1975 (Cth) to be satisfied that the making of the orders was “just and equitable” and therefor [sic] lacked legal authority to make the order.” The appellant cited in his Summary of Argument a purported passage from Bevan & Bevan (2013) FLC 93-545 (“Bevan”) that “the just and equitable requirement is not to be assumed or glossed over [m]erely because both parties propose or consent to the order”. The cited passage does not form part of the reasons in Bevan. The appellant also cited purported passages from Harris & Caladine that are best described as his conclusions as to an amalgam of the High Court’s judgments in that matter. The import of his complaint was that there “must be evidence and analysis that the order is just and equitable.” The ground was developed by the appellant asserting two sub-complaints being that:(a)There was "no judicial scrutiny" because the primary judge "made no enquiry" themselves as to the justice and equity of the proposed orders; and(b)The submissions made by counsel for the respondent as to the justice and equity of the proposed orders were "inaccurate and misleading". The Full Court in Maxwell v Miltiadis (2015) FLC 93-644 (“Maxwell”) observed what was said by the High Court in Harris & Caladine, concluding:12.Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply “rubber stamp” the parties’ agreement and that the process is “no mere formality” (Brennan J in Harris v Caladine (1991) 172 CLR 84, 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter. 13.Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at 124:… The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins v Livesey [1985] AC 424 at 437-444. 14.To similar effect, Mason CJ and Deane J said that “comparatively little” was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order “is not automatic”:The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation into the consent order will be seen to be “proper” …