Dalal & Bunha
[2023] FedCFamC1A 217
•6 December 2023
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 JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalal & Bunha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
The appellant (“the husband”) appeals from property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 July 2023. The respondent (“the wife”) opposes the appeal.
The order broadly provide for the wife within 60 days to pay the husband $224,998 and to discharge or refinance a mortgage secured upon a property at Suburb T, Region Q. On compliance by the wife, the husband is to transfer his interest in that real property to the wife. Should the wife default in compliance, the property was to be sold and after payment of an amount to discharge the mortgage and selling costs the proceeds of the sale are to be distributed at 64 per cent to the wife and the balance to the husband. The husband’s relief for a superannuation splitting order in his favour from the wife’s member entitlement was refused. The orders did not otherwise alter the property interests of the parties.
The husband filed a Notice of Appeal on 23 August 2023. He seeks for all the property orders to be set aside and for this court to re-exercise the s 79 discretion of the Family Law Act 1975 (Cth) (“the Act”). In the event the appeal is successful, the wife seeks that the matter to be remitted for trial before a judge other than the primary judge.
For the reasons that follow, the appeal will be allowed, and the matter remitted for re-hearing.
THE APPEAL
The appellant was unrepresented in this appeal. The errors asserted in the grounds of appeal are:
1. The judge failed to give procedural fairness to [the husband].
2. The judge failed to provide transparency and accountability.
3.The judge failed to properly assess all available evidence when giving his views and decisions.
4.The judge made decisions that were plainly wrong leading to injustice and inequity..
5. There was a denial of natural justice.
6.The judge gave inadequate reasons for his decisions, thus obstructing error of law findings.
7. The judge was biased.
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.
9. The judge made unjust and unreasonable decisions.
10. The judge abused his discretion when making the judgment.
(As per the original)
As argued, these grounds included a complaint of bias and a complaint of want of procedural fairness. Ordinarily such grounds should be dealt with first, as they go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612 and 674). The focus of each party during the hearing of the appeal were Grounds 6, 8 and 9. There is considerable overlap between the grounds. It is appropriate in this appeal to deal with the grounds in the sequence adopted by the parties.
Ground 6 – The Adequacy of reasons
The obligation to provide reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
By way of introduction, the reasons of the primary judge commence:
1This is a sad case that concerns property issues between parties of some senior years (the parties are aged respectively 64 and 65 years) and a long relationship. The parties married in 1988 and, on the Applicant Wife’s evidence, the relationship ended in […] 2008 – thus a relationship of 20 years or thereabouts.
2 There was much disordered and difficult evidence, especially from the Respondent Husband who, at times, despite valiant efforts by his lawyers (Counsel in particular), was rather incoherent and very inconsistent in his evidence. Especially regarding the location, or even the reality, of certain payments overseas, the Husband’s evidence was flatly contradicted by documents put to him by the Wife’s Counsel. He seemed almost disoriented by this and other evidence. As well, to speak generally, primarily during longer periods when he was self-represented, the Respondent’s lack of financial disclosure and the impoverishment (sometimes even incoherence) of his documentation was a regular issue.
At [4] the primary judge recorded the relief sought by the husband as being, albeit ineloquently drafted, a superannuation splitting order in his favour as to 50 per cent of the wife’s superannuation entitlement.
The process of a determination pursuant to s 79 was broadly identified by the primary judge:
36…the regular “four-step” process will be undertaken here. That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
(Citations omitted)
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)
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (“Pollard”), the New South Wales Court of Appeal said:
57The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”
The findings made by the primary judge do not engage with the significant evidence identified in the written submissions. This included, but is not limited to, the weight ascribed to hearsay evidence and as to the wife conceding in cross examination that several of her assertions could not be maintained. One such assertion was as to the title document to a Country B real property that she said the husband told her he owned was conceded to be registered to an unknown third party. Another was that the “valuation reports” of two Country B properties recorded that the “owner” of the property (which the wife asserted was the husband) had been present at the inspection for purposes of valuation, to which the wife conceded was not true. A third, was that the wife conceded that she had not seen the husband type or sign a specific letter (which she conceded had been signed in two separate pens), in which it was suggested that he wrote to a “police officer” in Country B about one of the two properties for which the valuation had been done. Fourthly, she conceded that the documents in Language C relating to the title reports, had not all been translated into English and had been altered due to an error in them relating to the name of the property.
The summary finding of the primary judge, as to accepting the wife’s submission “generally” (at [44] and [56]), is barren. The pathway of reasoning cannot be discerned. It is unknown as to what submissions on this subject matter, as extensively made by both the wife and the husband, were accepted, or rejected, by the primary judge. Whilst it is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue” (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]), it is fundamental that the reasons discharge the obligation to enable the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted, canvassing and explaining why one case is preferred over another (see Pollard). That did not occur here. This subject matter overlaps with Ground 8.
In a somewhat unorthodox fashion, the primary judge did not include in the reasons a schedule or table identifying each of the assets, liabilities, or superannuation interests of the parties. The finding as to the property of the parties made by the primary judge was at [53] taken to be as set out in the wife’s Case Outline.
The wife’s Case Outline filed 27 March 2023, not being a document available to any person reading the reasons except the parties, recorded:
Property interests, superannuation and financial resources Description Ownership Applicant’s value Respondent’s value ASSETS 1 R Street, Suburb T, Region Q property Joint $855,000 $900,000 2 Club S Membership Joint Nil $10,000 3 Motor vehicle 1 Wife $3230 Unknown if agreed 4 Commonwealth Bank of Australia account ending #29 Wife $4330 Unknown if agreed 5 Commonwealth Bank of Australia account ending #05 Wife $7500 Unknown if agreed 6 Commonwealth Bank of Australia shares Wife $14,694 Unknown if agreed 7 Commonwealth Bank of Australia account #89 Husband $8 $8 8 E Street, Suburb N, City L, Country B Husband $511,135* Not agreed 9 Property F, City M, Country B Husband $193,411* Not agreed 10 Property G, City M, Country B Husband NK Not agreed 11 Property H, City M, Country B Husband NK Not agreed 12 Property J, Region O, City L, Country B Husband NK Not agreed 13 Property K, Region P, City L, Country B Husband NK Not agreed 14 Motor vehicle 2 Husband $1500 $1500 15 Motor vehicle 3 Husband $3100 Unknown if agreed 16 Motor vehicle 4 Husband $3200 Unknown if agreed 17 Trailer Husband NK Unknown if agreed 18 Bike Husband NK Unknown if agreed 19 Possible Commercial Bank, Country B bank account Husband NK Not agreed Assets subtotal $1,507,167 Not known LIABILITIES 20 U Bank Home Loan (against
Suburb T, Region Q property)Joint $189,473.74 $189,473.74 21 Commonwealth Bank of Australia Awards Card Wife $0.00 $0.00 Liabilities subtotal $189,473.74 $189,473.74 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value Respondent’s value 22 Super Fund Accumulation Wife $311,061 $311,061 Superannuation subtotal $311,061 $311,061 TOTAL (assets – liabilities) $1,317,693 Not known TOTAL (assets – liabilities + superannuation) $1,628.754 Not known FINANCIAL RESOURCES Description Ownership Applicant’s value Respondent’s Value 23 Financial resources subtotal $0.00 Not known OTHER Description Ownership Applicant’s value Respondent’s Value 24 Other subtotal $0.00 Not known TOTAL (assets – liabilities + superannuation + financial
resources + other)$1,628.754 Not known
The reasons do not record the evidentiary foundations relied upon by the primary judge grounding the existence of any item in the “property pool” as asserted by the wife, or the findings made as to the value the wife asserted for each item (excluding the contended Country B properties). They further do not record any of the husband’s contentions as to the items he asserted ought to compromise “the property pool” or the fact or basis for the findings not accepting the value of each that he sought or the reasons why those he promoted that were in contest with those of the wife were rejected. To broadly say that unspecified items are the subject of “due consideration has been taken of other items of significantly lesser value, some of which remain contested” (at [52]) is inadequate.
Section 79(4) of the Act reads:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The reasons record the primary judge’s evaluation of contributions of parties up to the date of trial in single paragraph, as follows:
54Regarding contributions, I accept the Wife’s evidence that she had some property, owned with her parents, at the commencement of the relationship, and that during the relationship and post-separation, the Wife’s significant payments of the mortgage over the [R Street] property, and payment of rates and utilities, entitles her to a higher percentage value regarding her contributions, perhaps most especially having regard to her initial and post-separation contributions. I would estimate this to be approximately in the order of 7%.
Whilst it is accepted that reasons need not be elaborate to be adequate, the reasons are devoid of:
(a)Any identification or assessment of any s 79(4)(a) – (d) contributions made by the husband, save at [11] that he paid $97,105 to the mortgage for an unspecified period;
(b)Any basal subsidiary findings of fact grounding the conclusions as to the wife’s identified contributions at [54]. The reasons do not identify the wife’s “property, owned with her parents, at the commencement of the relationship” her share of that property or the use and application of that property, or any other 79(4)(a) – (d) contributions made by the wife save at [11] that the wife paid $244,141 to mortgage for an unspecified period; and
(c)Any finding as to any subject matter as to the matters identified in s 79(4)(b) – (d) of either party. The reasons do not go so far as to even identify the names and dates of birth of the two children of the marriage.
It is undeniable that this was a long relationship where each of the parties’ made contributions, which included the acquisition of a home and other assets, the accumulation of superannuation and the care of children.
The primary judge, in circumstances where the husband sought a superannuation splitting order and the wife opposed same and identified (at [55]) that the asserted value of the superannuation was “sizeable”, did not identify in the reasons whether the superannuation property was treated separately from the non-superannuation property, applying longstanding principle (see Coghlan & Coghlan (2005) FLC 93-220; Tanev & Baumann [2023] FedCFamC1A 182).
It is unclear if the contribution finding of the primary judge is:
(a)Made against a single pool of superannuation and non-superannuation property of the parties, or against only one form of that property; or
(b)Is made in favour of the wife as to 7 per cent of a single pool of the parties’ superannuation and non-superannuation property or, as may be implicit from the next paragraph of the reasons, as to the non-superannuation pool of property, only such that the finding was as to 57 per cent in favour of the wife;
(c)In the event of the latter, the primary judge undertook that which the High Court in Mallett & Mallett (1984) 156 CLR 605 stressed ought not to occur, being inferring a starting point of equality as to contribution, at least as to the non-superannuation property that was not sourced from the evidence; and
(d)Then gave no reason as to why no finding as to contribution was made as to the superannuation pool of property.
There was also a single paragraph dedicated to the conclusion as to the adjustments to the contribution finding:
55A particular area of concern and delicate balance relates to “future needs.” It is not in dispute that the Wife still works and therefore is in receipt of good income (set out in her Financial Statement of $1509 per week), and has sizeable superannuation (of $311,061). The Husband has neither of these financial securities, and as noted, he has some mental health issues. Given his age and his circumstances, including his less than salubrious and seemingly improvident living situation, his future needs are not insignificant. I would allow him a benefit of approximately 4% regarding these matters.
The reasons then record the consideration of justice and equity:
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).
The reasons then conclude:
57 Having regard to the limited certainties in this matter, and the larger number of vagaries and completely problematic areas noted in the course of these reasons, in my view a just and equitable percentage split should be 68% in the Wife’s favour, and the balance to the Husband, of the net asset pool (excluding the Wife’s superannuation which she is to keep) as set out by the Wife, minus the [Country B] properties. The percentage division takes into account the many issues regarding those properties.
58Absent the Wife being able to pay out the Husband within 60 days of the date of these Orders, [the R Street, Suburb T] property is to be sold and the net proceeds of its sale are to be divided according to the percentages as determined above by the Court.
At no time did the primary judge articulate any conclusion as to:
(a)The reasons for exercising discretion to refuse the husband’s application for a superannuation splitting order, or why it was just and equitable to deal with the wife’s superannuation as a factor in the adjustments to the contribution findings; or
(b)The actual outcome, in the sense of what the ultimate and overall position of each party would be, because of the property orders.
Ignoring the primary judge’s awareness (at [52]) as to items in the “property pool” that “remained contested” and the primary judge’s failure to provide reasons as to these items in the pool of the property of the parties to be adjusted, if the wife’s items of property and asserted values are accepted, to generate the “justice and equity” of the determination, the wife received:
Description Ownership Applicant’s value ASSETS 1 R Street, Suburb T, Region Q property Wife $855,000 3 Motor vehicle 1 Wife $3230 4 Commonwealth Bank of Australia account ending #29 Wife $4330 5 Commonwealth Bank of Australia account ending #05 Wife $7500 6 Commonwealth Bank of Australia shares Wife $14,694 Assets subtotal $884,754 LIABILITIES 20 U Bank Home Loan (against
Suburb T, Region Q property)Wife $189,473 Payment to Husband Order 1 of 28 July 2023 Wife $224,998 Liabilities subtotal $414,471 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value 22 Super Fund Accumulation Wife $311,061 Superannuation subtotal $311,061 TOTAL (assets – liabilities) $470,283 TOTAL (assets – liabilities + superannuation) $781,344
This equates to broadly 77 per cent of a single pool of superannuation and non-superannuation property.
The husband received:
Description Ownership Applicant’s value ASSETS 7 Commonwealth Bank of Australia account #89
Husband $8 14 Motor vehicle 2 Husband $1500 15 Motor vehicle 3 Husband $3100 16 Motor vehicle 4 Husband $3200 Payment from wife pursuant to Order 1 of
28 July 2023$224,998 Assets subtotal $232,806 Liabilities $0 Superannuation $0 TOTAL $232,806
This equates to broadly 23 per cent of a single pool of superannuation and non-superannuation property.
The husband in his written submissions complained that this conclusion did not occasion justice and equity in that “it ended up with 68% for her of the property and 100% of the superannuation for her.” He also stated that the primary judge “has not finished” and gave the wife all the household contents including jewellery, and “tells us to cancel our [Club S] membership while she was willing to transfer it to me, he [sic] wants us to sell our house at a loss on a forced sale at a discounted price.” The husband correctly submitted that the primary judge failed to advert to this outcome in the reasons.
The reasons do not enable the parties to understand the basis of the primary judge’s decision and the extent to which the husband’s arguments have been accepted. I am not satisfied that the content of the reasons adequately demonstrate that justice is seen to have been done, at least on the husband’s case, in the form of an adequate consideration of prescribed s 79 relevant matters.
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.
I am satisfied that these errors underscoring the disclosure failure finding have the effect of vitiating the ultimate determination, rendering it unsafe. The ground succeeds.
Ground 9 -The judge made unjust and unreasonable decisions.
It is the actual order which must be just and equitable. Where the order is erroneous to such a magnitude, then the just and equitable finding that underpins the order must also be erroneous.
Having regard to the above findings as to Grounds 6 and 8, this ground also has merit and is established.
The remaining grounds
Consistent with the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) calling for the quick resolution of disputes and the efficient delivery of justice, in the interests of judicial economy the remaining grounds will not be addressed (Boensch v Pascoe (2019) 268 CLR 593).
CONCLUSION
The appeal succeeds. The husband sought a re-exercise of discretion. The wife sought the matter be remitted.
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.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 December 2023
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