Delacey & Redwood - [2021] FedCFamC1A 3

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Delacey & Redwood [2021] FedCFamC1A 3

Appeal from: Redwood & Delacey [2020] FCCA 2612

Appeal number(s): SOA 89 of 2020

File number(s): DGC 2126 of 2019

Judgment of: STRICKLAND J

Date of judgment: 8 September 2021

Catchwords:
FAMILY LAW – APPEAL – PROPERTY – Where the judgment suffers from a lack of relevant findings and adequate reasons – Where there is no discernible pathway from the primary Judge’s notes to his analysis and findings at the conclusion of the reasons for judgment – Where the primary Judge erred in the approach adopted in relation to the property of the parties and the assessment of contributions and that renders unsafe the conclusions reached as to the s 75(2) factors – Where an appellate court must be slow to overturn a primary Judge’s discretionary decision on grounds that only involve weight challenges but here that challenge gains considerable force because of the failure of the primary Judge to identify and weigh all of the contributions of the parties – Where it could be argued that there was a failure to properly exercise the judicial discretion and as a result the outcome was plainly wrong – Appeal allowed – Proceedings remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.

FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificates ordered.

Legislation:
Family Law Act 1975 (Cth) s 75(2)

Federal Proceedings (Costs) Act 1981 (Cth) s 6 and 9

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

Gronow v Gronow (1979) 144 CLR 413; [1979] HCA 63

Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Scott & Scott (1994) FLC 92-457; [1994] FamCA 12

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Number of paragraphs: 71

Date of hearing: 3 May 2021

Place: Melbourne

The Appellant: In Person

Counsel for the Respondent: Dr R Smith

Solicitor for the Respondent: Sterling Walters Lawyers
ORDERS

SOA 89 of 2020
DGC 2126 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR DELACEY

AND:
MS REDWOOD

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

8 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Paragraphs 16–21 of the Order made on 23 September 2020 be set aside.
3.The proceedings for property settlement between the parties be remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Delacey & Redwood

Details

AGLC: Delacey & Redwood [2021] FedCFamC1A 3
Case: [2021] FedCFamC1A 3
Decision Date

CaseChat Overview and Summary

The case of Delacey & Redwood involved a dispute between the parties over the division of property and parenting arrangements for their child, X. The appellant and respondent, both professionals with significant assets, had cohabitated, married, and subsequently separated. The primary court made orders regarding equal shared parental responsibility for the child, with the child living with the respondent and spending time with the appellant. These orders were not appealed.

The legal issues before the court included the valuation and division of the parties' assets, and the consideration of contributions made by each party to the relationship and their respective properties. The court had to determine the appropriate division of assets, taking into account the contributions made by both parties during the relationship, as well as the value of their respective properties and the debts owed on those properties.

In addressing the division of assets, the court found that the primary judge had overlooked certain aspects of the parties' financial arrangements, such as the mortgage offset account. The court noted that the primary judge had excluded the bank accounts from the asset pool, but had not considered the mortgage offset account. The court concluded that the primary judge's approach was flawed and that the division of assets should be reconsidered in light of the correct valuation of the parties' properties and the contributions made by each party.

The court ordered a rehearing of the matter to determine the appropriate division of the parties' assets, taking into account the correct valuation of their respective properties and the contributions made by each party during the relationship. The orders regarding the parenting arrangements for the child were to remain in place.

Orders

Orders of the court

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Background

Background to the litigation

The parties were also in dispute as to the parenting orders to be made in relation to their child X, born in 2016. However, as part of the order made by his Honour on 23 September 2020, the parties have equal shared parental responsibility for the child, the child is to live with the respondent and spend time with the appellant, and there is no appeal against these orders.RELEVANT BACKGROUND The appellant is 39 years of age, and the respondent is 37 years of age. The parties commenced cohabitation in late 2014, married in 2016, and separated in December 2018. The appellant is a Professional, and at the time of the trial he was employed by Employer M earning in excess of $100,000 per annum. The respondent is a Professional, and at the time of the trial she was employed as a Professional with Employer K on a salary of $150,000 per annum plus superannuation. In November 2010, the respondent purchased an investment property in Suburb N for $300,000 with the assistance of a loan of $50,000 from her parents, and a mortgage of $240,000. By 2013 the respondent had repaid her parents and reduced the mortgage to $135,000. The respondent asserted that when cohabitation commenced she had net assets of $369,000 comprising her equity in the property of $224,000, her motor vehicle, her savings, her share portfolio, her furniture, and her superannuation entitlements. The respondent also asserted that at the commencement of cohabitation the appellant had net assets of $264,900 comprising a motor bike, savings and superannuation entitlements. The appellant though asserted that he also had a quarter interest in a property in Country L valued at $78,600, and that he had net assets with a total value of $365,000. I note that this dispute, including as to the extent of the respondent’s assets, was not resolved by the primary Judge. In June 2015, the appellant purchased a house property in Suburb F for $667,000. His Honour recorded that there was a mortgage of $500,000 and noted the appellant’s assertion that he contributed $180,000 to the purchase price and $30,000 towards stamp duty. However, that was not entirely accurate according to the evidence. The mortgage obtained by the appellant was in the nature of a credit loan of $533,600. Further, the appellant paid $35,000 towards the stamp duty, and he contributed $188,500 to the purchase, with some of that money being used to set up a mortgage offset account at the same time. The parties and their child resided in the property in Suburb F following its purchase, and the respondent continued to rent out her property. She paid just less than one half of the mortgage repayments for that property, and in 2017 she made three payments each of $20,000 towards that mortgage. In May 2016, the appellant received $78,000 from the sale of the property in Country L, and this was applied to the mortgage over his property in Suburb F. During the relationship the appellant was unemployed for a number of months, and he withdrew money from the mortgage account over his property. Some of that money was withdrawn after separation, and in particular, $95,000 went towards his legal fees. His Honour recorded that at the time of the hearing the property in Suburb F was valued at $880,000, and the mortgage was $354,200. However, that was not accurate either. The evidence of the appellant was that the mortgage was $489,200, but the offset account had a credit balance of $135,000. It seems that his Honour overlooked this entirely, and in particular, when addressing the various bank accounts of the parties. His Honour excluded the bank accounts from the asset pool, but without referring to, or including amongst those bank accounts, the mortgage offset account (see [127]). It is unknown whether his Honour would have also excluded this account if he had not overlooked it.

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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Appeal from:	Redwood & Delacey [2020] FCCA 2612
Appeal number(s):	SOA 89 of 2020
File number(s):	DGC 2126 of 2019
Judgment of:	STRICKLAND J
Date of judgment:	8 September 2021
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the judgment suffers from a lack of relevant findings and adequate reasons – Where there is no discernible pathway from the primary Judge’s notes to his analysis and findings at the conclusion of the reasons for judgment – Where the primary Judge erred in the approach adopted in relation to the property of the parties and the assessment of contributions and that renders unsafe the conclusions reached as to the s 75(2) factors – Where an appellate court must be slow to overturn a primary Judge’s discretionary decision on grounds that only involve weight challenges but here that challenge gains considerable force because of the failure of the primary Judge to identify and weigh all of the contributions of the parties – Where it could be argued that there was a failure to properly exercise the judicial discretion and as a result the outcome was plainly wrong – Appeal allowed – Proceedings remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge. FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificates ordered.
Legislation:	Family Law Act 1975 (Cth) s 75(2) Federal Proceedings (Costs) Act 1981 (Cth) s 6 and 9
Cases cited:	Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429 Gronow v Gronow (1979) 144 CLR 413; [1979] HCA 63 Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Scott & Scott (1994) FLC 92-457; [1994] FamCA 12 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs:	71
Date of hearing:	3 May 2021
Place:	Melbourne
The Appellant:	In Person
Counsel for the Respondent:	Dr R Smith
Solicitor for the Respondent:	Sterling Walters Lawyers

SOA 89 of 2020 DGC 2126 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR DELACEY
AND:	MS REDWOOD

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	8 SEPTEMBER 2021