Dalal & Bunha

Case [2023] FedCFamC1A 217

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dalal & Bunha [2023] FedCFamC1A 217

Appeal from: Bunha & Dalal [2023] FedCFamC2F 852
Appeal number: NAA 228 of 2023
File number: CAC 2887 of 2020
Judgment of: CAMPTON J
Date of judgment: 6 December 2023
Catchwords: FAMILY LAW – APPEAL – Where the husband appeals from final property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Inadequate reasons challenge – Where the primary judge failed to give reasons as to the determination of a number of disputes as items forming the property of the parties and as to the value of each item – Where the primary judge made few findings as to s 79(4)(a) factors and failed to make any findings as to s 79(4)(b)-(d) factors – Where the primary judge did not articulate any reasons as to the refusal to make a superannuation splitting order as sought by the husband – Where the basis of the reasoning for the decision as to adjustment of property pursuant to s 79 is deficient – Where a material finding of the primary judge as to the husband’s disclosure failure did not engage with the evidence or the extensive submissions made by each party save for articulating the acceptance the wife’s submissions “generally” – Appeal allowed – Orders set aside – Matter remitted for rehearing
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited:

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

Boensch v Pascoe (2019) 268 CLR 593; [1990] FamCA 148

Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429

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

Conway v the Queen (2002) 209 CLR 203; [2002] HCA 2

Franklin & Ennis [2019] FamCAFC 91

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

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234

Mallett & Mallett (1984) 156 CLR 605; [1984] HCA 21

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Tanev & Baumann [2023] FedCFamC1A 182

Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 51
Date of hearing: 1 December 2023
Place: Sydney
Counsel for the Appellant: Litigant in person
Counsel for the Respondent: Mr Stagg of Counsel
Solicitor for the Respondent: Legal Aid ACT

ORDERS

NAA 228 of 2023

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

MR DALAL

Appellant
AND:

MS BUNHA

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Appeal filed on 23 August 2023 be allowed.

2.The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 28 July 2023 are set aside.

3.The matter…

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Details
AGLC
Dalal & Bunha [2023] FedCFamC1A 217
Case
[2023] FedCFamC1A 217
Decision Date

CaseChat Overview and Summary

The husband, Mr. Dalal, has appealed against the final property settlement orders made by the Federal Circuit and Family Court of Australia (Division 2). The wife, Ms. Bunha, conceded in her submissions that the primary judge failed to consider some evidence in making findings on the husband's disclosure failures. The husband's appeal was on the basis that the primary judge failed to give adequate reasons for the final property settlement orders and made erroneous factual findings. The husband argued that these errors were material and occasioned a miscarriage of justice.

The court found that the primary judge failed to engage with material evidence and made factual errors in determining the husband's disclosure failures. The court held that the primary judge's failure to engage with material evidence and make findings on the husband's disclosure failures amounted to a miscarriage of justice. The court also found that the primary judge failed to make the requisite factual findings and therefore, the appellate court was ill-equipped to determine the issues joined at first instance. The court held that the appeal should be allowed and the matter remitted for rehearing before another judge.

The court set aside the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 28 July 2023. The court granted a costs certificate to the wife for the appeal and to both parties for the rehearing. The court held that the appeal succeeded on a question of law and the husband incurred no costs in the appeal. The wife sought costs certificates both for the appeal and the rehearing, and the court granted a certificate for both parties on the rehearing. The court held that the primary judge's failure to make the requisite factual findings and give adequate reasons for the final property settlement orders amounted to a miscarriage of justice.

The ratio of the case is that considerations of some of the stages in the s 79 determination by the trial judge were informed by findings that the husband had been dilatory and negligent regarding his duty to provide complete and ongoing financial disclosure. The court held that the primary judge's failure to engage with material evidence and make findings on the husband's disclosure failures amounted to a miscarriage of justice. The court held that the appeal should be allowed and the matter remitted for rehearing before another judge.

Orders

Orders of the court

NAA 228 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DALAL

Appellant

AND:

MS BUNHA

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Appeal filed on 23 August 2023 be allowed.

2. The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 28 July 2023 are set aside.

3. The matter is remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

4. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the appeal.

5. The appellant and respondent are granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the re-hearing.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Ground 6 is established.Ground 8 - The judge made mistakes of fact. He failed to consider relevant materials and considered facts that could not be supported by evidence. He also incorrectly assessed relevant materials. The relevant principles which govern appeals from discretionary judgments are well known. Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. This includes if the primary judge:…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. Further that 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. To the extent that the ground is a challenge to fact finding, the shortcoming in the primary judge’s factual determinations as to the husband’s disclosure failures are recorded earlier herein. Not every factual error will justify appellate intervention. The question to be answered is whether these errors are material to the ultimate decision and have occasioned a miscarriage of justice (Lane & Nichols (2016) FLC 93-750 at [72]). The wife conceded in her summary of argument that the primary judge did not refer to “some” of the evidence on this subject matter in the reasons but that such failure to consider that evidence did not cause a miscarriage of justice (see Conway v the Queen (2002) 209 CLR 203). That submission is not accepted. It was the task of the primary judge to evaluate, weigh and determine the parties’ various contentions. It is not an error to favour one party’s case over another, unless an error of the kind identified in House is established. Here it has been. The primary judge failed to engage with material evidence clearly identified in the husband’s submissions as to the fact of, and evidentiary origin to ground, specific findings on this subject matter and the available inferences that should have been drawn from them. The conclusions reached, especially at [44], as to the nature and extent of the disclosure failures, even if they were open, do not make the approach and impact adopted by the primary judge by way of a 30 per cent differential (from 53 per cent to the wife to 68 per cent) available. On a consideration of the available evidence, on balance this case reflects a circumstance where a finding of non-disclosure is little more than one which complicates the fact-finding process (see Franklin & Ennis [2019] FamCAFC 91 at [9]). In circumstances where that erroneous finding of fact was relied upon in part by the primary judge in informing the conclusion as to justice and equity, I could not safely conclude that the primary judge would have reached the same conclusion but for such error.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The FCFCOA Act provides that:36 Form of judgment on appeal (1)… the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:(a) affirm, reverse or vary the judgment appealed from; or (b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; … In Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51, the Full Court observed as follows:13.… that, if re exercise is to occur, the relevant discretion should be exercised by reference to the facts and circumstances as at the date of the hearing of the appeal. …14.… this Court is ill-equipped on a re exercise to reach decisions on contested evidence. For all practical purposes, if this Court is to re-exercise it must “draw inferences of fact from, and conclusions from, facts as found by the trial judge” and uncontroversial evidence admitted upon the re-exercise. The failure of the primary judge to make the requisite the contested factual findings present this appellate court to be “ill-equipped” to determine issues joined between at first instance. The wife at least may wish to adduce further evidence. The only option is to remit the matter for rehearing before another judge. COSTS The appeal succeeded on a question of law. The husband incurred no costs in the appeal. He sought a cost certificate for the rehearing. The wife sought costs certificates both for the appeal and the rehearing. A certificate for the wife for the appeal and for both parties on the rehearing are appropriate in the circumstances.

Ratio Decidendi

Legal Principle Established

Considerations of some of the stages in the s 79 determination by the trial judge were informed by these findings:50The best that the Court can do in the circumstances outlined is the following: (a) the Court accepts that it is more likely than not that there is some property remaining in [Country B]; (b) there is also at least one bank account in the Husband’s name in [Country B] which contains relatively modest funds, and which he accesses from time to time; (c) the provenance and extent of interest of the Husband in that property (or properties) is problematic, not least because of his [mental health condition]; and (d) he has a current, long-term bank account in [Country B], and for similar reasons, his capacity to operate it for his benefit is questionable. 51One must not lose sight of the fact that since 2017, the Husband has been living in a group house, now apparently living in a garage of dubious repair. It is difficult to consider that someone would willingly, for the better part of 5 years or more, live in such relatively squalid or impoverished conditions if that person had ready access to significant funds elsewhere, including overseas. It would require the Court to form a view that the Respondent was capable of, and had been undertaking, a significant act that posed health and other risks to himself. 52Put all this another way, in my view, accepting the Wife’s argument regarding the Husband’s lack of disclosure, the “benefit” in the Wife’s favour of this lack of disclosure, and the weight and general provenance of the property in [Country B], is not quite the proverbial “pot of gold”, so to speak, as perhaps she expected or argued for. This being so, it reduces the property pool somewhat. This is also to say that ascribing relevant values to any of the property in [Country B] is a rather more fraught exercise than the Wife would suggest. Some general allowance should nonetheless be given in relation to those overseas properties. In my view, it is best to do so in the final stage of determining what is just and equitable as between the parties. In the Court’s consideration of just and equitable orders, due consideration has been taken of other items of significantly lesser value, some of which remain contested (e.g., cars, bank accounts and the like).53For reasons already given , which would effectively exclude the formal value of the [Country B] properties (essentially because of the flaws already detailed and summarised in the Husband’s submissions), the property pool should be taken to be as set out in the Wife’s Case Outline.(Emphasis added) The reasons reproduce, by way of cut and paste, the complete 38 paragraphs of the written submissions of the wife and the complete 57 paragraphs of the written submissions of the husband as to the respective findings sought regarding the husband holding real properties and bank accounts in Country B. The primary judge then made the following findings on this subject matter:44First, I accept, as a general proposition, the Wife’s submission that the Husband has been dilatory, and in a number of respects, quite negligent, regarding his duty to provide complete and ongoing financial disclosure. I accept, generally, the Wife’s submissions relating to such matters, notably in the light of (and having regard to) the brief outline of principle above from the Full Court decision in Chang v Su. …49This said, and accepting that the Husband was self-represented for a significant part of the litigation, his diagnosis in 2019 of a [mental health condition] (a diagnosis accepted by the Applicant), his capacity to comprehend even relatively modest instruction and direction by the Court regarding, for example, disclosure, more likely than not, was compromised. The psychiatric report of the [Dr D] from 2019, which is in the Husband’s separate Tender Bundle (Exhibit B), provides this diagnosis.…56Accepting that, in accordance with authority, the determination of what is “just and equitable” is not an arithmetic calculation, and noting too the problematic issue of what came to be called (and is called in these reasons) “the [Country B] property.” Necessarily, there must also be consideration of the equally problematic issue of the Husband’s significant non-disclosure as recorded in the Wife’s submissions (which I generally accept in this regard). (Emphasis added)