Daines & Daines

Case [2014] FamCAFC 61

FAMILY COURT OF AUSTRALIA

DAINES & DAINES [2014] FamCAFC 61

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the trial judge purported to make orders on a “final basis” effecting a property settlement between the parties – where the “orders” purporting to effect a distribution between the parties did not alter the legal or equitable interests of the parties and were wholly unenforceable – whether the “orders” constituted a “decree” for the purposes of s 94AAA(1) of the Family Law Act 1975 (Cth) – where the “orders” were not “orders” for the purposes of s 79 of the Act and were not a “decree” for the purposes of s 94AAA(1) – where the appeal is incompetent – where, however, subsequent orders made by the trial judge can be seen to be orders effecting a property settlement between the parties – where the challenge on appeal relates to the reasons given at the same time as the ineffectual “orders” – where the subsequent orders give effect to those reasons –where the appeal can proceed as if it was from the second set of orders.

FAMILY LAW – APPEAL – PROPERTY – where the appellant husband contends that the trial judge conflated ss 79(2) and 79(4) – where each of the parties proposed orders altering their existing legal interests – where this is one of “many cases” in which the s 79(2) requirement was readily satisfied – where no error demonstrated in the trial judge’s approach.

FAMILY LAW – APPEAL – PROPERTY – CONTRIBUTIONS – where the appellant husband contends that her Honour’s discretion miscarried as a result of her findings regarding the parties’ contributions were “plainly wrong” – whether the trial judge’s decision was “plainly wrong” – where the appellant contends the trial judge erred in findings made regarding his earning capacity – whether the trial judge so erred – where no error demonstrated.

FAMILY LAW – APPEAL – PROPERTY – where the appellant contends the trial judge failed to consider whether the orders ultimately made were just and equitable in all of the circumstances – where the orders made were not only as agitated by the parties, but were the only orders that could be made in the circumstances of this case – where no error demonstrated – appeals dismissed – appellant ordered to pay the respondent’s costs.

Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583
Allesch v Maunz (2000) 203 CLR 172
Bevan & Bevan (2013) FLC 93-545
Coghlan & Coghlan (2005) FLC 93-220
Mickelberg v R (1989) 167 CLR 259
Mullane v Mullane (1983) 158 CLR 438
Wang v State of New South Wales [2011] NSWCA 321
Willis & Willis [2007] FamCA 819
APPELLANT: Mr Daines
RESPONDENT: Ms Daines
FILE NUMBER: SYC 3797 of 2011
FIRST APPEAL NUMBER: EA 136 of 2012
SECOND APPEAL NUMBER: EA 16 of 2013
THIRD APPEAL NUMBER: EA 37 of 2013
FOURTH…

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AGLC
Daines & Daines [2014] FamCAFC 61
Case
[2014] FamCAFC 61
Decision Date

CaseChat Overview and Summary

The case of Daines & Daines involved an appeal against a decision made by the trial judge in relation to a property settlement between the parties. The husband argued that the trial judge had made errors in her approach to the property settlement, including conflating sections 79(2) and 79(4) of the Family Law Act 1975 (Cth) and misapplying her discretion in relation to the parties' contributions. The husband also argued that the trial judge had failed to consider whether the orders ultimately made were just and equitable in all of the circumstances.

The court considered whether the orders made by the trial judge constituted a "decree" for the purposes of s 94AAA(1) of the Family Law Act 1975 (Cth). The court found that the orders were not a "decree", "judgment" or "order" for the purposes of s 94AAA(1) of the Act; they were not "binding" on the parties in that they were utterly unenforceable, and they were certainly not "definitive of [the parties'] legal rights." The court also considered whether the trial judge had conflated sections 79(2) and 79(4) of the Act and whether her decision was "plainly wrong" in relation to the parties' contributions. The court found no error demonstrated in the trial judge's approach.

The court dismissed the husband's appeals and ordered him to pay the wife's costs. The court held that the appeal could proceed as if it was from the second set of orders made by the trial judge, which gave effect to the reasons given at the same time as the ineffectual "orders". The court also held that the orders made by the trial judge were not only as agitated by the parties, but were the only orders that could be made in the circumstances of this case. The court found no error demonstrated in the trial judge's approach and dismissed the husband's appeals.

Orders

Orders of the court

1. That appeal EA 136 of 2012 be dismissed.

2. That appeal EA 37 of 2013 be dismissed.

3. Each of the parties shall, within twenty-eight (28) days of the date of these orders file such written submissions as they might choose in respect of appeals EA 16 of 2013 and EA 38 of 2013, limited in length to five pages.

4. The remaining issues in each of appeals EA 16 of 2013 and EA 38 of 2013 shall be determined by this Full Court on the papers unless, within the written submissions provided for in paragraph 3 of these Orders, one or both parties request an oral hearing and provide submissions in support of that request.

5. In the event the appellant fails to file written submissions in respect of

either or both appeals EA 16 of 2013 and/or EA 38 of 2013 within the time specified, either or both appeals as the case may be shall be deemed abandoned.

6. Each of the parties shall, within twenty-eight (28) days of the date of these orders file such written submissions as they might choose in respect of the costs of the appeals, limited in length to five pages.

7. The issue of the costs of the appeals shall be determined by this Full Court on the papers unless, within the written submissions provided for in paragraph 6 of these Orders, one or both parties request an oral hearing and provide submissions in support of that request.

8. In the event that the parties reach agreement about any or all of the issues outstanding between them, including but not limited to the issue of costs, they shall file with the Appeals Registrar a minute or minutes of the orders consented to and shall be at liberty to do so by email jointly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The meaning of “judgment” in s 24(1) of the FCAA has been considered in a number of cases including, perhaps most notably, in Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583. In Ah Toy, Toohey, Morling and Wilcox JJ, after discussing a number of authorities, held (at 588-589):Unless there is a “judgment, decree or order”, there is nothing against which an appeal may be brought……These dicta make it clear that reasons for judgment are not of themselves judgments, that a judgment must be binding upon parties and definitive of their rights and that a judgment is the formal order whereby a court disposes of the matter before it. It is not enough that, in conducting an inquiry under s 278 of the Companies Act, the Chief Justice was exercising judicial powers; it may be accepted that he was doing so. The question rather is whether what the appellant seeks to appeal against, in the various paragraphs of his notice of appeal, is a judgment of the Supreme Court of the Northern Territory. (Bold emphasis added). Ah Toy was recently considered in Wang v State of New South Wales [2011] NSWCA 321. Campbell JA considered the meaning of “judgment or order” and held, relevantly:23.…A “judgment or order” in this context means an operative judicial act, ie the formal judgment or order which when entered is binding on the parties and definitive of legal rights: ……While error in a judgment or order might be demonstrated on an appeal by showing error in a judge’s reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment… (Authorities and citations omitted; Bold emphasis added). Special leave against that decision was refused by the High Court, with Hayne and Crennan JJ observing that “[t]here is no reason to doubt the correctness of the decision of the Court of Appeal below” (Wang v State of New South Wales [2012] HCASL 10 at [4]). There are real similarities in the meanings of “decree” as used in the Act and “judgment” as used in the FCAA. Both pieces of legislation were enacted relatively contemporaneously. The statements in Ah Toy and Wang support a similar meaning being given to the expressions. We are, then, prepared to hold that there is, relevantly, no difference of substance between “decree” as used in the Act and “judgment” as used in the FCAA. By reference to those authorities, we consider that paragraphs 1 and 2 of the orders of 19 September 2012 were not a “decree”, “judgment” or “order” for the purposes of s 94AAA(1) of the Act; they were not “binding” on the parties in that they were utterly unenforceable, and they were certainly not “definitive of [the parties’] legal rights.” Further support for the proposition just advanced can be found in what Mason ACJ, Wilson, Brennan, Deane and Dawson JJ said in Mullane v Mullane (1983) 158 CLR 438 (at 445): “…s 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them…”

Ratio Decidendi

Legal Principle Established

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