Fazil & Fazil

Case [2024] FedCFamC1A 54

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fazil & Fazil [2024] FedCFamC1A 54

Appeal from: Fazil & Fazil [2023] FedCFamC1F 1015
Appeal number: NAA 343 of 2023
File number: PAC 917 of 2019
Judgment of: AUSTIN, GILL & CHRISTIE JJ
Date of judgment: 15 April 2024
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Where the appeal hearing was adjourned to enable the husband to amend his Notice of Appeal to include a new arguable claim of denial of procedural fairness – Where the husband complains the orders of the primary judge differed markedly from those propounded by both parties and about which neither had been afforded the chance to make submissions – Where the parties could not have reasonably anticipated the orders made by the primary judge and so were deprived of procedural fairness – Where the orders to effect a 60/40 division of the parties’ assets and superannuation did not correspond with the reasons for judgment – Where the need to vary mathematical errors is eradicated by the need for all the orders to be set aside on account of them being vitiated by procedural unfairness – Where the husband complains some items of property were omitted from the schedule of assets and superannuation – Where the values of those items are de minimis and their omission does not sustain the appeal – Where the orders provide for the sale of two overseas properties and stipulate the parties’ proportional shares of the net proceeds of sale and any capital gains tax incurred on the sale – Where the husband contends the orders do not provide for what ought to occur in the event the overseas properties sell for more or less than the values ascribed to them in the reasons for judgment – Where the orders should have been crafted so as to ensure achievement of the overall proportional division of property – Denial of procedural fairness – Appeal allowed – Matter remitted for rehearing – Costs certificates issued.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 79, 90XZB, 90XZD, 117

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

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17, 13.39

Cases cited:

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

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

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

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

Kearney & McMaster (2024) FLC 94-171; [2024] FedCFamC1A 2

Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

Marcin & Marcin(No 2) [2020] FamCAFC 142

Marriage of Phillips (1985) FLC 91-634

Marriage of Ravasini (1983) FLC 91-312

Marriage of Warwick (1983) FLC 91-342

Molier & Van Wyk (1980) FLC 90-911

Noetel & Quealey (2005) FLC 93-230;

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AGLC
Fazil & Fazil [2024] FedCFamC1A 54
Case
[2024] FedCFamC1A 54
Decision Date

CaseChat Overview and Summary

In the appeal of Fazil & Fazil, the husband sought to challenge the property settlement orders made by the primary judge in the Family Court of Australia. The husband argued that the orders contained mathematical errors and did not result in a just and equitable outcome. However, during the appeal hearing, it became clear that the husband's primary grievance was the form of the property settlement orders, which differed markedly from those proposed by both parties and about which neither had been given the opportunity to make submissions, thereby depriving him of procedural fairness.

The court had to decide whether the husband's appeal was valid and if the property settlement orders were indeed unfair. The husband also sought to adduce further evidence regarding an application made by the wife to amend the orders after the judgment was pronounced but while the appeal was pending. However, the court did not consider it necessary to receive the documents in evidence because the error within the orders was evident when compared to the reasons for judgment.

The court found that the husband's new ground of appeal alleging the deprivation of procedural fairness was valid. The court held that the orders of the primary judge differed markedly from those propounded by both parties and about which neither had been afforded the chance to make submissions. The parties could not have reasonably anticipated the orders made by the primary judge and so were deprived of procedural fairness. As a result, the appeal was allowed, the orders made by the primary judge were set aside, and the parties' applications for relief under the Family Law Act 1975 were remitted to the Federal Circuit and Family Court for re-hearing by a different judge.

In conclusion, the court allowed the husband's appeal on the grounds of procedural unfairness and remitted the matter for rehearing. The husband was ordered to pay the wife's costs thrown away by the adjournment of the appeal hearing, and the wife was granted costs certificates for the appeal and the new trial.

Orders

Orders of the court

NAA 343 of 2023

PAC 917 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FAZIL

Appellant

AND:

MS FAZIL

Respondent

ORDER MADE BY:

AUSTIN, GILL & CHRISTIE JJ

DATE OF ORDER:

15 APRIL 2024

THE COURT ORDERS THAT:

1. The appellant’s oral application to adduce further evidence in the appeal is dismissed.

2. The Application in an Appeal filed by the respondent on 27 February 2024 is dismissed.

3. The appeal is allowed.

4. The orders made by the primary judge on 29 November 2023 are set aside.

5. The parties’ applications for relief under Pt VIII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit and Family Court (Division 1) for re-hearing by a judge other than the primary judge.

6. The appellant shall pay the respondent’s party/party costs thrown away by the adjournment of the appeal hearing on 1 March 2024, fixed in the sum of $7,750.

7. The appellant’s application for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.

8. 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 her in relation to the appeal.

9. The respondent is granted a costs certificate pursuant to s 8 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 any costs incurred by her in relation to the new trial granted by these orders.

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

The appeal is allowed, principally due to a denial of procedural fairness to the husband, and the proceedings are remitted for re-hearing.Background The parties were born in Country B, married in 1986, and migrated to Australia in 1995. They finally separated in 2015, by which time their two children were adults. Upon final separation, the wife vacated the jointly-owned former family home and left the husband in sole occupation of it. The wife commenced proceedings seeking financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) in February 2019. The proceedings were started in the Federal Circuit Court of Australia but later transferred in May 2020 to the Family Court of Australia (as those two courts were known at the time). The proceedings were heard in April 2023, following which judgment was reserved and later delivered in November 2023. The primary judge found the parties’ property, including parcels of real property in Country B, was valued at nearly $12 million (at [132] and [148]) and determined the assets and superannuation interests should be divided in shares of 60 per cent to the wife and 40 per cent to the husband (at [2], [154] and [164]). The husband had submitted for a similar mathematical division – 57.2 per cent to the wife and 42.8 per cent to himself (at [92], [136], [150] and [154]). As initially articulated, the appeal was directed to the husband’s dissatisfaction with the manner in which the proportional division was implemented. Broadly, he contended the appealed orders contained a mathematical error, meaning they did not correlate with the factual findings and reasons for judgment, and additionally, they did not effect a just and equitable outcome. At the hearing of the appeal, which commenced on 1 March 2024, it transpired the husband’s principal grievance was really with the form of the property settlement orders, which differed markedly from those propounded by both parties and about which neither had been afforded the chance to make submissions, thereby depriving him of procedural fairness. The husband’s contention seemed arguable and so, on his application, the appeal hearing was adjourned to enable him to file an Amended Notice of Appeal, confining the amendment to the new claim of procedural unfairness, and the wife’s costs of the hearing thrown away were reserved. The parties were also directed to file supplementary Summaries of Argument in relation to the new ground of appeal. The appeal hearing then resumed on 26 March 2024.Application to adduce further evidence In his original Summary of Argument, the husband foreshadowed his intention to apply for leave to adduce further evidence in the appeal pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). He did not deign to file an Application in an Appeal, as rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires, though that procedural irregularity is overlooked.

Evidence

Evidence Before The Court

The husband’s contention seemed arguable and so, on his application, the appeal hearing was adjourned to enable him to file an Amended Notice of Appeal, confining the amendment to the new claim of procedural unfairness, and the wife’s costs of the hearing thrown away were reserved. The parties were also directed to file supplementary Summaries of Argument in relation to the new ground of appeal. The appeal hearing then resumed on 26 March 2024.Application to adduce further evidence In his original Summary of Argument, the husband foreshadowed his intention to apply for leave to adduce further evidence in the appeal pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). He did not deign to file an Application in an Appeal, as rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires, though that procedural irregularity is overlooked. The further evidence sought to be adduced was only intended to prove an attempt made by the wife after the pronouncement of judgment, while the appeal was pending, to have the primary judge amend the appealed orders by resort to the slip rule. The primary judge refused her application, apparently on the premise that his Honour was functus officio, though no reasons were published for that decision. In any event, the husband contends the wife’s variation application is irrefutable evidence of her admission of mathematical errors within the appealed orders, which must inevitably require the allowance of the appeal and their correction. The husband wished to adduce in evidence the application made by the wife on 19 December 2023, the supporting affidavit she filed on the same date, and the orders made by the primary judge on 2 February 2024 dismissing the application. However, it is unnecessary to receive the documents in evidence because the error within the orders is patent when compared to the reasons for judgment and need not be proven. The error is also evident from the application filed in the appeal by the wife seeking an amendment of the orders.Application to amend the appealed orders The wife filed an Application in an Appeal on 27 February 2024 seeking amendment of the appealed orders pursuant to the slip rule in r 10.13 of the Rules. The perceived need for amendment of the orders arises out of their inherent mathematical error, which is the subject of Ground 2. Whether that error can be corrected by the Full Court’s resort to the slip rule, particularly when the same application has already been made to and dismissed by the primary judge, need not be addressed because the denial of procedural fairness necessarily means the appealed orders must be set aside. Accordingly, the wife’s application must be dismissed.The appeal The new ground of appeal alleging the deprivation of procedural fairness (Ground 1A) will be addressed first, as the law requires (Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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