Dumont & Cabrara

Case [2025] FedCFamC1A 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dumont & Cabrara [2025] FedCFamC1A 82

Appeal from: Cabrara & Dumont [2024] FedCFamC2F 1687
Appeal number: NAA 370 of 2024
File number: BRC 9357 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 9 May 2025
Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Contributions – Primary judge erred by assuming equality as a starting point in assessing the parties’ contributions –Where no principle or presumption of equality of contributions exists in property settlement cases – Whether error of principle contributed to errors of approach to fact-finding – Appeal allowed – Matter remitted for a rehearing before of a judge of Division 2 other than the primary judge.

FAMILY LAW – APPEAL – PROPERTY – Where appellant sought s 102NA order on the day of the trial – Where appellant sought for the matter to be determined on the papers at trial – Where matter was determined on the papers at trial – Where appellant contends the primary judge failed to afford her procedural fairness – Whether primary judge made factual error due to determining the matter on the papers.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where appellant seeks adduce further evidence that she intends to relocate to Australia – Where the evidence was available at the time of trial – Where the evidence could have been adduced at the trial – Application refused.

Legislation:

Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

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

Cases cited:

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

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

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

House v The King (1936) 55 CLR 499 at 504–505; [1936] HCA 40

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

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

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

Preston & Preston (2022) 66 Fam LR 285; (2022) 66 Fam LR 285

Quen & Chen [2025] FedCFamC1A 39

Rolfe and Rolfe (1979) FLC 90-629; [1977] FamCA 106

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

Wardman and Hudson (1978) FLC 90-466; [1978] FamCA 68

Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71

Number of paragraphs: 35
Date of hearing: 24 April 2025
Place: Parramatta
Counsel for the Appellant: Mr Leneham (direct brief)
The Respondent: Litigant in person

ORDERS

NAA 370 of 2024
BRC 9357 of 2022

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

MS DUMONT

Appellant
AND:

MR CABRARA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

9 MAY 2025

THE COURT ORDERS THAT:

1.Appeal NAA 370 of…

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Dumont & Cabrara [2025] FedCFamC1A 82
Case
[2025] FedCFamC1A 82
Decision Date

CaseChat Overview and Summary

The appellant, Ms Dumont, appeals against the property settlement orders made by the primary judge on 27 November 2024, which were made in the proceedings between Ms Dumont and Mr Cabrara. The couple was married for 19 years and separated in 2013. The proceedings were brought out of time, with the parties consenting to the orders. The primary judge ordered the parties’ property, valued at approximately $2.25 million, be split 58 per cent to Ms Dumont and 42 per cent to Mr Cabrara, with Ms Dumont retaining the property in the UK, Mr Cabrara retaining one of the Australian properties, and the third property being sold. The appeal concerns the primary judge's approach to the property settlement, and Ms Dumont sought to adduce further evidence on appeal regarding her intention to relocate to Australia. Ms Dumont also sought an order for the matter to be determined on the papers at trial.

The appeal raises several legal issues. The first is whether the primary judge erred in assuming equality as a starting point in assessing the parties’ contributions. The second is whether the primary judge's error of principle contributed to errors of approach to fact-finding. The third is whether the primary judge made a factual error due to determining the matter on the papers at trial, and whether this deprived Ms Dumont of procedural fairness. The final issue is whether Ms Dumont should be permitted to adduce further evidence on appeal regarding her intention to relocate to Australia. The appeal also includes a submission that the primary judge erred in refusing to make an order under s 102NA Family Law Act 1975 (Cth) on the day of the trial.

The court found that the primary judge erred in assuming equality as a starting point in assessing the parties’ contributions, and that this error of principle contributed to errors of approach to fact-finding. The court found that the primary judge did not make a factual error in determining the matter on the papers at trial, and that Ms Dumont was not deprived of procedural fairness. The court found that Ms Dumont should not be permitted to adduce further evidence on appeal regarding her intention to relocate to Australia, as the evidence was available at the time of the trial and could have been adduced at the trial. The court found that the primary judge did not err in refusing to make an order under s 102NA Family Law Act 1975 (Cth) on the day of the trial. The appeal was allowed, the primary judge's orders were set aside, and the matter was remitted for rehearing.

The court orders that the appeal be allowed, the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 27 November 2024 be set aside, and the matter be remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge, for rehearing. The appellant is not entitled to a certificate for costs of the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

NAA 370 of 2024

BRC 9357 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DUMONT

Appellant

AND:

MR CABRARA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

9 MAY 2025

THE COURT ORDERS THAT:

1. Appeal NAA 370 of 2024 be allowed.

2. The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 27 November 2024 be set aside.

3. The matter be remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge, for 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 appellant wife appeals against property settlement orders made by the primary judge on 27 November 2024.BACKGROUND The parties were married for 19 years, finally separating in 2013. However, the property settlement proceedings were not commenced until 2022 (the parties consented to orders to bring the property settlement proceedings out of time). The value of the assets and superannuation of the parties (less their liabilities) was around $2.25 million. In substance, this consisted of three properties, one in the UK and two in Australia, and their respective superannuation entitlements. The primary judge concluded that their property should be split 58 per cent to the appellant and 42 per cent to the respondent. As the appellant was living in the City N property in the UK and the respondent was in Australia, the primary judge ordered that the appellant retain the City N property, the respondent retain one of the Australian properties and that the third property be sold.APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE The appellant filed an Application in an Appeal on 10 April 2025 seeking leave to lead further evidence with respect to her place of residence in support of ground 5 of the appeal. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) affords the Court a discretion to admit further evidence on appeal. The power “exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43], footnote omitted) and is remedial in nature. The High Court, in CDJ v VAJ (1998) 197 CLR 172 noted that “its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous” (at [109]). Although there is no fixed rule with respect to applications to adduce further evidence on appeal, the High Court in CDJ v VAJ said that “where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion” (at [116]). Other relevant considerations include whether the evidence could have been obtained with reasonable diligence, the weight of the further evidence and whether it would have been likely to affect the outcome of the trial. Generally speaking, material that was available to be used at the hearing should not be readily admitted on appeal; however, the whole of the circumstances of the particular case must be considered. The need for finality of litigation must also be borne in mind as an important consideration, as the High Court identified in Coulton v Holcombe (1986) 162 CLR 1, saying (at 7):It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

Evidence

Evidence Before The Court

The primary judge concluded that their property should be split 58 per cent to the appellant and 42 per cent to the respondent. As the appellant was living in the City N property in the UK and the respondent was in Australia, the primary judge ordered that the appellant retain the City N property, the respondent retain one of the Australian properties and that the third property be sold.APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE The appellant filed an Application in an Appeal on 10 April 2025 seeking leave to lead further evidence with respect to her place of residence in support of ground 5 of the appeal. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) affords the Court a discretion to admit further evidence on appeal. The power “exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43], footnote omitted) and is remedial in nature. The High Court, in CDJ v VAJ (1998) 197 CLR 172 noted that “its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous” (at [109]). Although there is no fixed rule with respect to applications to adduce further evidence on appeal, the High Court in CDJ v VAJ said that “where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion” (at [116]). Other relevant considerations include whether the evidence could have been obtained with reasonable diligence, the weight of the further evidence and whether it would have been likely to affect the outcome of the trial. Generally speaking, material that was available to be used at the hearing should not be readily admitted on appeal; however, the whole of the circumstances of the particular case must be considered. The need for finality of litigation must also be borne in mind as an important consideration, as the High Court identified in Coulton v Holcombe (1986) 162 CLR 1, saying (at 7):It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. In essence, the appellant seeks to lead evidence that the appellant has, or intends to, relocate to Australia. This proposition was not put to the primary judge at the hearing, nor the subject of evidence. The appellant says that the evidence was not led as a result of a failure by her legal advisors. On 17 April 2025, the respondent filed an affidavit in opposition to the appellant’s application in an appeal, disputing the appellant’s claims. The ultimate purpose of the evidence is to support an argument that the primary judge ought to have allowed the appellant to retain one of the properties in Australia.

Decision

Reasons for decision

As the appellant has been successful with respect to ground 1 and the orders must be set aside, it is unnecessary to determine the remaining grounds.CONCLUSION Even if there were no issues as to the findings of fact, it is not appropriate to re-exercise the discretion in this case as the determination must be made on the facts at the time of the re-exercise of the discretion (Allesch v Maunz (2000) 203 CLR 172). In this matter the appellant alleges that different circumstances prevail (that she is returning to live in Australia and thus wishes to retain the Suburb W property and not the one in City N), which claims are disputed by the respondent. The matter requires a rehearing. Whether the appellant receives a better or worse outcome is for the judge on the rehearing. None of the property settlement orders have yet been carried out. Whilst the respondent had provided documents to facilitate the transfer of the City N property, the transfer has not been effected and the appellant gave an undertaking to the court not to take any steps to effect the transfer until the outcome of the appeal, and if the appeal was allowed, the re-hearing. It is therefore appropriate to set aside all of the orders made by the primary judge. I will therefore order that the appeal be allowed, primary judge’s orders set aside and for the matter to be remitted for rehearing.COSTS The appellant seeks a certificate for costs of the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Federal Proceedings (Costs) Act”). The appellant’s conduct of the matter, in making the late application for the s 102NA order, and pressing for a hearing on submissions alone despite the clear position of the respondent that there were factual issues that required cross-examination, was a significant contribution to the primary judge’s error. In these circumstances, it is not appropriate that the appellant receive a certificate pursuant to the Federal Proceedings (Costs) Act. There is no basis on which the respondent should be ordered to pay any part of the appellant’s costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.