Faine & Naden
[2021] FedCFamC1A 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Faine & Naden [2021] FedCFamC1A 104
Appeal from: Naden & Faine [2021] FedCFamC2F 346 Appeal number(s): NAA 67 of 2021 File number(s): BRC 314 of 2020 Judgment of: AUSTIN J Date of judgment: 23 December 2021 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the grounds of appeal do not allege any appealable error or are bare assertions – Where the appeal was listed to afford the appellant the opportunity to make submissions about why the appeal should not be summarily dismissed – Where the appeal has no reasonable prospect of success – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Number of paragraphs: 18 Date of hearing: 23 December 2021 Place: Newcastle via video link Solicitor for the Appellant: I Global Lawyers Solicitor for the Respondent: Cooper Family Law ORDERS
NAA 67 of 2021
BRC 314 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS FAINE
Appellant
AND: MR NADEN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 18 November 2021 is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $732.70
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 Faine & Naden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal was listed today to afford the appellant the opportunity to make submissions about why the appeal should not be summarily dismissed, it being apparently bereft of any reasonable prospect of success.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) enables the summary dismissal of appeals if they have no reasonable prospect of success (ss 46(2) and 46(3)), which dismissal power may be exercised by a single judge (ss 32(3)(b) and 32(5)).
Yesterday, the appellant filed written submissions, which have been taken into account, together with the oral submissions made by the parties today.
The appeal is brought from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) pursuant to Pt VIII of the Family Law Act 1975 (Cth) on 9 November 2021.
The primary judge found the combined net value of the parties’ assets and superannuation was $401,997 (at [40] and [43]), which would be justly and equitably divided in proportions of 55 per cent to the appellant and 45 per cent to the respondent (at [14], [44] and [45]).
In relation to that discretionary judgment, the appellant pleaded these grounds of appeal:
1.[Respondent] failed to make full and frank disclosure of financial circumstances in contravention of Family Law Rules 2004, rule 13.04, and s31(2), and s79(2) of Family Law Act 1975.
2.The order made is not just and equitable (s79(2) of the Family Law Act 1975.
3.Miscarriage of justice as a party has not disclosed their assets.
(As per the original)
Ground 1 is incompetent because it does not allege any appealable error of the primary judge. It is instead a bare assertion of misconduct made against the respondent, the misconception of which as a ground of appeal is compounded by the appellant’s failure to claim at first-instance that the respondent had failed to fully and frankly disclose his financial circumstances.
The failure to give full and frank disclosure of financial circumstances was indeed an issue at trial, but it was only ever an allegation made by the respondent against the appellant, sustained by the primary judge’s factual findings (at [28]–[36]). Significantly, the appellant did not make any reciprocal allegation against the respondent.
If the claim of the respondent’s failure to give full and frank disclosure had been made and pursued at trial, he would have then been able to adduce further evidence to refute the claim, but it is now unnecessary because the appellant is bound by the way in which she ran her case at trial (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7–8; Water Board v Moustakas (1988) 180 CLR 491 at 497).
In submissions, the appellant contended she wanted to lead further evidence in the appeal which would tend to vindicate the allegation of the respondent’s concealment of assets and financial information, but that intention is thwarted by legal principle. It was not asserted the evidence was unavailable at the time of trial and no sensible explanation was advanced as to why such evidence was not led then. Its admission in the appeal would tend to obliterate the distinction between original and appellate jurisdiction, aside from it being contentious (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]).
Ground 3 is equally incompetent because the alleged “miscarriage of justice” hinges entirely upon acceptance of the proposition that the respondent improperly failed to fully and frankly disclose his financial circumstances. The appellant is unable to now prove that assertion and so the primary judge’s exercise of discretion could not have miscarried for that unproven reason.
Ground 2 may be presumed to be a complaint that the result was “unreasonable or plainly unjust” (House v The King (1936) 55 CLR 499 at 504–505) or “plainly wrong” (Norbis v Norbis (1986) 161 CLR 513 at 539–540), being a viable ground of appeal which lies from a discretionary decision, even though difficult to establish (CDJ v VAJ at 231–232). The appellant made no submission at all, written or oral, to try and explain how she intended to make good on the assertion if the appeal is allowed to proceed.
The ground is no more than a bare complaint that she eventually received less than the share of the property for which she applied. She received 55 per cent of the assets and superannuation when she had sought 70 per cent (at [39]). Given the unchallenged finding about the net value of the property being $401,997, the 15 per cent differential amounts to some $60,000.
The parties’ relationship lasted about 10 years. Their two children, now aged 11 and seven years, live primarily with the appellant. The parties agreed their respective contributions until the time of their separation in October 2019 were equal (at [16]), which mutual assessment the primary judge endorsed (at [18]). While the appellant contended her post-separation contributions were greater (at [19]), the primary judge found the parties’ contributions up to the time of trial were equal because, even though the appellant provided primary care to the children and worked part-time, the respondent made greater financial contributions to service the home loan debt, thereby enabling the appellant and children to remain in occupation of the former family home while he rented elsewhere (at [22]).
In subsequently determining an adjustment of five per cent in the appellant’s favour (at [44]), the primary judge took into account her continuing role as the children’s primary carer (at [26]), tempered by her non-disclosure of assets (at [28]–[36] and [43]).
As can be seen from that summary of the reasons, the property division ostensibly falls comfortably within the discretionary range and is not an incongruent outcome. Not being able to identify any frank appealable error, there is no reasonable prospect of the appellant successfully showing that an unidentifiable appealable error should be inferred from the result, so as to enable its characterisation as “unreasonable”, “plainly unjust” or “plainly wrong”.
It follows that the appeal has no reasonable prospect of success and it should be summarily dismissed.
Upon announcement of that outcome, the respondent sought that the appellant pay his costs of and incidental to the appeal in the fixed sum of $732.70, to which order the appellant ultimately agreed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 December 2021
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