Dando & Attard

Case [2024] FedCFamC1A 158

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dando & Attard [2024] FedCFamC1A 158 

Appeal from: Dando & Attard [2024] FedCFamC2F 349
Appeal number: NAA 95 of 2024
File number: CAC 927 of 2022
Judgment of: SCHONELL J
Date of judgment: 13 September 2024
Catchwords: FAMILY LAW – APPEAL – Appeal from final financial orders – Denial of procedural fairness – Adequacy of reasons- Where the primary judge made orders in relation to a property contrary to the agreed position of the parties and without notice – Where the primary judge erred in his treatment of s 75(2) of the Family Law Act 1975 (Cth) in not taking into account a significant inheritance– Appeal allowed.
Legislation:

Family Law Act 1975 (Cth) ss 75(2) and 79

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Cases cited:

Abbott & Vastano [2022] FedCFamC1A 222

AJO and GRO (2005) FLC 93-218; [2005] FamCA 195

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

Boulton & Boulton [2024] FedCFamC1A 132

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

Dando & Attard [2024] FedCFamC2F 349

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

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

Horrigan & Horrigan [2020] FamCAFC 25

Hoskins v Repatriation Commission (1991) 32 FCR 443

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

NHC & RCH (2004) FLC 93-204; [2004] FamCA 633

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Vida v Vida (2023) 67 Fam LR 285; [2023] FedCFamC1A 175

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Yarrow & Yarrow (2022) FLC 94-112; Yarrow & Yarrow (2022) FedCFamC1A 135
Number of paragraphs: 57
Date of hearing: 4 September 2024
Place: Sydney
Counsel for the Appellant: Mr Sansom SC
Solicitor for the Appellant: Parker Coles Curtis
Counsel for the Respondent: Mr Othen SC
Solicitor for the Respondent: Kennedy & Cooke Lawyers

ORDERS

NAA 95 of 2024
CAC 927 of 2022

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

MS DANDO

Appellant
AND:

MR ATTARD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made 22 March 2024 are set aside.

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

4.The appellant is granted 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 her in the appeal.

5.The respondent is…

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AGLC
Dando & Attard [2024] FedCFamC1A 158
Case
[2024] FedCFamC1A 158
Decision Date

CaseChat Overview and Summary

The case of Dando & Attard involved an appeal from the final financial orders made in the parties' property settlement. The appellant, Ms Dando, challenged the orders on multiple grounds, including denial of procedural fairness, error in the treatment of an inheritance, and inadequate reasons for the division of property. The parties had cohabited since 2009, married in 2017, and separated in 2021. They jointly owned a property acquired in 2017. The primary judge had determined the division of the property pool but made orders contrary to the agreed position of the parties and without notice, leading to contentions of procedural unfairness and inadequate consideration of significant inheritance. The Federal Circuit and Family Court of Australia was tasked with reviewing these issues.

The legal issues before the court encompassed whether the primary judge's orders denied procedural fairness, if there was an error in the treatment of the inheritance under section 75(2) of the Family Law Act 1975 (Cth), and whether the reasons provided were adequate. The appellant argued that the primary judge had made orders without proper notice and failed to consider the inheritance appropriately. Additionally, there were concerns about the weight given to certain contributions and the treatment of legal fees. The court had to determine whether these issues warranted a rehearing of the case.

The court found that the primary judge had indeed made orders contrary to the agreed position of the parties and without providing proper notice, thereby denying procedural fairness. Furthermore, the judge had erred in his treatment of the inheritance, failing to give it appropriate consideration under section 75(2) of the Family Law Act 1975 (Cth). The reasoning provided by the primary judge was also deemed inadequate, particularly in relation to the division of property and the inheritance. Consequently, the appeal was allowed, the orders were set aside, and the matter was remitted for rehearing to a different judge.

The final orders of the court were that the appeal was allowed, the orders made on 22 March 2024 were set aside, and the matter was to be reheard by a different judge. Both parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), with the Attorney-General potentially authorising payments for the costs incurred in the appeal and the rehearing. This decision underscored the importance of procedural fairness and the correct application of relevant legal provisions in property settlement cases.

Orders

Orders of the court

NAA 95 of 2024

CAC 927 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DANDO

Appellant

AND:

MR ATTARD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders made 22 March 2024 are set aside.

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

4. The appellant is granted 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 her in the appeal.

5. The respondent is granted 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 him in the appeal.

6. The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates 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 rehearing.

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

The Amended Notice of Appeal comprised five grounds. Grounds 1 and 2 were argued together contending a denial of procedural fairness. Ground 3 contended error in relation to matters of weight, Ground 4 contended error in failing to make an adjustment pursuant to s 75(2) and the inadequacy of reasons thereof, while Ground 5 contended error in the treatment of legal fees by way of addback.BACKGROUND The parties commenced cohabitation in or about 2009, married in 2017 and separated in 2021. There are no children of the relationship, however both parties had children from former relationships. At the time of hearing, all children were over the age of 18. In 2017, the parties acquired in their joint names a home (“the matrimonial property”). Following the breakdown of the relationship, the appellant commenced proceedings for property settlement. The primary judge captured the parties’ respective positions in Dando & Attard [2024] FedCFamC2F 349 (“the judgment”) as follows:26.By her Amended Initiating Application filed 23 January 2024, the wife sought final orders to the effect that she receive 60 per cent of the value of the net property pool. By her Outline of Case Document, the wife contends that the contributions ought to be assessed as equal, there is no specified adjustment for future needs, but states the overall division of 60 / 40 in the wife’s favour is just and equitable.…30.By his Amended Response filed 2 December 2022, the husband sought final orders to the effect that the [matrimonial property] be sold and the net proceeds be divided equally, and each party retain all other property which they are already legally entitled to. The husband does not contend for a stepped approach of assessing contributions and future needs in monetary or percentage terms. He contends that an equal division of the parties’ joint property happens to be a just and equitable outcome overall. The primary judge proceeded to identify the documents relied upon, the case for each party and addressed matters of credit. He then noted that there were issues about the initial contributions of the parties, contributions to the respondent’s business and real estate, the care of step-children, post-separation contributions, how the respondent’s inheritance should be treated and the present and future needs of the parties. Having identified those matters, the primary judge determined the pool of assets including what was to happen by way of addbacks. The primary judge then, in a somewhat unconventional approach, assessed the parties’ contributions but did not, at the end of step two (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]) make any findings as to contributions. His Honour then considered the matters under s 75(2) and determined that there should be no adjustment. Under a heading of ‘Justice and Equity’ the primary judge identified the property to be retained by each of the parties and then stated:124.The effect of the orders on the respective interests in the property of the parties or either of them is set out in Annexure A at columns J and K. The overall effect of transferring title to the [matrimonial property] to the wife, on the balance sheet that I have determined, is a division of the net property pool as to 63 / 37 percent in favour of the husband.125.Having taken into account all of the matters referred to in section 79(4) of the Act, in particular the husband’s greater initial contributions and the use made by the parties of those contributions during and since the relationship, I am satisfied that it is a just and equitable result in all of the circumstances.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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