Crick & Bennett
[2022] FedCFamC1A 34
•10 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Crick & Bennett [2022] FedCFamC1A 34
Appeal from: Bennett & Crick [2021] FedCFamC2F 122 Appeal number(s): NAA 65 of 2021 File number(s): PAC 2610 of 2016 Judgment of: ALDRIDGE J Date of judgment: 10 March 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the parties have agreed on the disposition of the appeal – Where this Court is asked to make an order by consent allowing the appeal – Where there is a basis for allowing the appeal – Inadequate reasons – Error in law – Appeal allowed – Matter remitted for rehearing – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 90SF(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)
Cases cited: Cramer v Davies (1997) 72 ALJR 146
Bhatnagar & Riju [2018] FamCAFC 144
Heidari & Ebadi [2020] FamCAFC 316
Number of paragraphs: 13 Date of hearing: 10 March 2022 Place: Sydney (via video link) Counsel for the Appellant: Mr Othen Solicitor for the Appellant: Grover Law Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Valenti and Valenti Solicitors ORDERS
NAA 65 of 2021
PAC 2610 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CRICK
Appellant
AND: MS BENNETT
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
10 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 1–15 made on 21 October 2021 are set aside.
3.The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
THE COURT ORDERS BY CONSENT THAT:
4.That on a without admissions basis and pending such rehearing and orders made as to alteration of property interests following such rehearing or further interlocutory order:
(a)Except as otherwise provided for in this Order 4, the appellant be and is hereby restrained from selling, encumbering or further disposing of his interest in the property known as and situate at G Street, Suburb F being more properly described as the property within Folio ID … “the property” or the sale proceeds therefrom (and being the subject of a put and call option by Deed dated 2 September 2021 “the option”);
(b)The appellant be and is hereby directed to forthwith authorise any agent or solicitor/ conveyancer acting on the sale of the property by the option to liaise with and provide information and documents to the respondent through her solicitors, Valenti and Valenti of Suite 4, 3 Ware Street Fairfield NSW or any solicitor then acting for her with respect to the sale of the property;
(c)In the event that the purchaser of the property proceeds to purchase the property pursuant to the option and settlement thereof takes place prior to the rehearing of these proceedings then both parties be and are hereby to direct that any settlement proceeds shall be placed into a Controlled Monies Account by the solicitors acting on the sale of the property to abide the further order of the Court;
(d)The respondent is at liberty to lodge a caveat against the title to the property at her expense and the appellant shall do all acts and things and sign all documents necessary to consent to the caveat being lodged including endorsing his consent on the caveat form when so requested by the respondent;
(e)The respondent shall withdraw any such caveat at her own expense on or before the date of settlement of sale of the property by the option or as otherwise ordered; and
(f)Nothing in this Order 4 prevents the appellant from selling the property and otherwise acting in accordance with his obligations under the terms of the option.
THE COURT FURTHER ORDERS THAT:
5.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 him in relation to the appeal.
6.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 her in relation to the appeal.
7.The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 of the parties in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED THAT:
A.These orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crick & Bennett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
On 21 October 2021 a judge of the Federal Circuit and Family Court of Australia (Division 2) made a suite of property orders in proceedings between Mr Crick (“the appellant”) and Ms Bennett (“the respondent”). A Notice of Appeal was filed on 18 November 2021. The appeal is listed for hearing on 5 April 2022.
The parties have agreed that the primary judge erred and that the proceedings should be remitted for rehearing. Before making such orders, it is necessary that this Court be satisfied that the primary judge has indeed erred (Bhatnagar & Riju [2018] FamCAFC 144; Heidari & Ebadi [2020] FamCAFC 316).
Order 2 provided for the appellant to receive a property at Suburb D. Unfortunately, at the time of the hearing it was no longer owned by the parties, as recorded in the reasons for judgment at [37].
Orders 4 to 7 dealt with a property at Suburb F which was to be sold, with the net proceeds to be divided so that the respondent was to receive $3,302,199 and the appellant to receive the balance.
The evidence established that the Suburb F property was subject to a put and call option for its purchase in the sum of $5,500,000. At the time of the hearing, the purchaser had not exercised that option but was free to do so until 1 February 2023.
It is clear that the primary judge took those facts to indicate that the parties had agreed that the Suburb F property was valued at $5,500,000 (at [46]). That was not correct. The position was that it would be sold for that figure only if the option was exercised. That may not be the case.
The error is compounded by the award of a fixed sum from the proceeds of sale to the respondent, where the fixed sum was based on the premise that the Suburb F property would be sold for $5,500,000 as opposed to a percentage division. If the option was not exercised and the property sold for a different value, then the fixed sum would no longer accord with the overall division found by the primary judge to be just and equitable.
Finally, the primary judge arrived at the division of property by placing it into two pools, a perfectly permissible course. The contributions of the parties to these pools were found to be 54 per cent by the respondent and 46 per cent by the appellant to pool 1, and 100 per cent by the respondent to pool 2. On that basis the respondent would receive $4,251,103 from both pools.
In making that determination, the primary judge took into account that the respondent’s contributions had been made more onerous because of the violence she had suffered at the hands of the appellant.
The primary judge then turned to consider the factors in s 90SF(3) of the Family Law Act 1975 (Cth). In doing so, no consideration was given to whether the contribution based entitlements, particularly as to pool 2, appropriately divided the property. This was particularly the case because an allowance had already been made for family violence.
A further adjustment to pool 1 in favour of the respondent was made, primarily based upon her post-traumatic stress disorder, which was caused by the appellant’s violence. The reasons do not disclose how this adjustment sat conformably with the earlier adjustment. The reasons are therefore inadequate, to that extent.
I am satisfied that the asserted errors have been made, that the orders should be set aside and the matter be remitted for rehearing. It will have to be remitted to the Federal Circuit and Family Court of Australia (Division 2) as this Court does not have power to do otherwise. Consideration should be given by that Court as to whether this matter should be transferred to the Federal Circuit and Family Court (Division 1) given the complexity of the issues involved.
The appeal has been listed for hearing on 5 April 2022 and listed today for disposal “in a public and formal way” (Cramer v Davies (1997) 72 ALJR 146 at [18]). The criteria for making orders under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) are met.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 14 March 2022
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