Dorin & Alina

Case [2024] FedCFamC1A 26

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dorin & Alina [2024] FedCFamC1A 26

Appeal from: Alina & Dorin (No 3) [2023] FedCFamC2F 878
Appeal number: NAA 215 of 2023
File number: SYC 166 of 2017
Judgment of: TREE J
Date of judgment: 8 March 2024
Catchwords:

FAMILY LAW – APPEAL – Property – Appeal from final property orders – Consideration of Stanford & Stanford (2012) 247 CLR 108 – Whether the primary judge conflated the consideration of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) with the ultimate consideration of whether the outcome was just and equitable – Whether the primary judge failed to consider s 79(2) separately from the assessment of the factors under s 79(4) of the Act – Where there are arithmetical errors in the judgment – Where there is insufficient exposure of reasoning for the conclusion reached by the primary judge – Appeal allowed – Costs certificates granted for the appeal and the rehearing.

FAMILY LAW – CROSS APPEAL – Property – Where the success of the appeal means that all of the orders of the primary judge must be set aside and the cross-appeal falls away – Cross appeal dismissed..
Legislation:

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

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

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

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

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Water Board v Moustakis (1988) 180 CLR 491; [1988] HCA 12

Number of paragraphs: 40
Date of hearing: 5 December 2023 and 8 March 2024
Place: Heard in Cairns (via video link) and in Sydney
Counsel for the Appellant: Mr Condon SC and Mr Watkins
Solicitor for the Appellant: Juris Cor Legal
Counsel for the Respondent: Ms Bateman
Solicitor for the Respondent: Burt & Allen Lawyers

ORDERS

NAA 215 of 2023
SYC 166 of 2017

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

MS DORIN

Appellant
AND:

MR ALINA

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS THAT:

1.The Appeal is allowed.

2.The Further Amended Notice of Cross-Appeal filed 4 October 2023 is dismissed.

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 appellant is granted a costs certificate pursuant to s 9 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 appellant in respect of the costs incurred by him in the appeal.

5.The respondent is granted a costs certificate pursuant to s…

Continue reading Dorin & Alina

Sign in free to access the full text

Details
AGLC
Dorin & Alina [2024] FedCFamC1A 26
Case
[2024] FedCFamC1A 26
Decision Date

CaseChat Overview and Summary

Dorin and Alina were married in 2013 and separated in August 2015. Dorin appealed the final property orders made by the primary judge, arguing that there were errors in the application of the Family Law Act 1975 (Cth). Alina cross-appealed, seeking a reconsideration of the property division. The appeal was heard by the Federal Circuit and Family Court of Australia, Division 1, Appellate Jurisdiction.

The legal issues involved whether the primary judge had conflated the consideration of s 79(2) of the Act with the overall consideration of whether the outcome was just and equitable. Additionally, it was argued that the primary judge had failed to separately consider s 79(2) from the assessment of the factors under s 79(4) of the Act. There were also arithmetical errors in the judgment, and insufficient reasoning for the conclusions reached by the primary judge.

The court found that the primary judge had conflated the considerations under s 79(2) and s 79(4), leading to an incorrect calculation of the husband’s entitlements. There were arithmetical errors in the judgment, which should have resulted in a different property division. Furthermore, the court found that the reasoning provided by the primary judge was insufficient to justify the conclusions reached. As a result, the appeal was allowed, and the cross-appeal was dismissed. The matter was remitted for rehearing by a different judge.

The court ordered that the appeal be allowed, the cross-appeal be dismissed, and the matter be remitted for rehearing by a different judge of the Federal Circuit and Family Court of Australia (Division 2). The appellant was granted a costs certificate for the appeal, and both parties were granted costs certificates for the rehearing.

Orders

Orders of the court

NAA 215 of 2023

SYC 166 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DORIN

Appellant

AND:

MR ALINA

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS THAT:

1. The Appeal is allowed.

2. The Further Amended Notice of Cross-Appeal filed 4 October 2023 is dismissed.

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 appellant is granted a costs certificate pursuant to s 9 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 appellant in respect of the costs incurred by him 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 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 appellant in respect of the costs incurred by him in the appeal.

6. The Court grants to each party a costs certificate 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 the parties 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).

Background

Background to the litigation

For reasons which follow, the appeal will be allowed and the cross-appeal dismissed.BACKGROUND The husband is presently 66 years of age and the wife 59. They commenced their relationship in 2011, married in 2013, and separated in August 2015, thereby concluding a relationship of a little over four years duration. There were no children born to the relationship. During the relationship various real properties were acquired, mostly, if not entirely, funded by the wife. As determined by the primary judge, at the time of trial, the net pool of property was worth $1,432,895, all of which was legally owned by the wife (at [173]). The primary judge found that, at the commencement of the relationship, the husband brought in “no capital” (at [189]), whereas the wife brought in equity in investment properties worth $299,000 (at [188]) together with equity in property in Country B of an unknown value (at [189]). Next the primary judge concluded that during the relationship, the husband contributed his salary, superannuation and a tax refund, all totalling $206,0788, and the wife made direct financial contributions of $66,425 (at [197]). The primary judge found that, mathematically expressed, relative to each other, up until separation the husband had made 36 per cent of the total financial contributions, and the wife 64 per cent (at [198]). This appears to have been adopted by her Honour as the foundation for the property division. The primary judge then addressed the parties’ non-financial contributions, finding that they were equal (at [208]). Her Honour next considered relevant factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) concluding that they favoured the husband to the extent of a 10 per cent adjustment (at [212]). However curiously, the primary judge said that “[t]his produces an overall distribution of the 44 per cent to the husband and 56 per cent to the wife” (at [212]). Plainly that involved an arithmetic error, as the relevant addition of 36 per cent and 10 per cent would see the husband entitled to 46 per cent, not 44 per cent, however it is an error to the advantage of the wife. Her Honour perpetuated this error by assessing the husband’s entitlements at $630,473 (when it should have been $659,131). Ultimately the primary judge concluded that the husband should take all the equity in a particular property, in the wife’s sole name, at a value of $640,512, together with accounting to the wife for a disbursement by her, to a value of $16,000. Ultimately the husband was found to be entitled to $657,012 (still some $2,000 less than a 46 per cent entitlement). Her Honour was satisfied that outcome was just and equitable (at [216]).THE APPEAL At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he 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 may exercise its own discretion in substitution for his if it has the materials for doing so. 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. …

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.