Fazil & Fazil
[2024] FedCFamC1A 54
•15 April 2024
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; [2005] FamCA 677
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pera v Pera (2008) FLC 93-372; [2008] FamCAFC 87
Robertson & Sento [2009] FamCAFC 49
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
U v U (2002) 211 CLR 238; [2002] HCA 36
Yarrow & Yarrow (No 2) (2022) FLC 94-112; [2022] FedCFamC1A 171
Yarrow & Yarrow (No 3) (2023) FLC 94-155; [2023] FedCFamC1A 137
Number of paragraphs: 64 Date of hearing: 1 & 26 March 2024 Place: Sydney Counsel for the Appellant: Mr Bunning Solicitor for the Appellant: Watts McCray Lawyers Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Hammond Nguyen Turnbull ORDERS
NAA 343 of 2023
PAC 917 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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) Act1981 (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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fazil & Fazil has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, GILL & CHRISTIE JJ:
By an Amended Notice of Appeal filed on 11 March 2024, the husband appeals from the property settlement orders made between the parties on 29 November 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1).
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.
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]).
The deprivation of procedural fairness does not concern any basal factual issue and only vitiates the form of orders made by the primary judge, which error could conceivably be cured by giving the parties the chance to submit further on the form of orders in the re-exercise of discretion by the Full Court. However, the husband advocates for more extensive errors which, if demonstrated, would require the proceedings to be remitted for re-hearing, so it is still necessary to consider the residual grounds.
Ground 2 pertains to the mathematical error within the orders.
Grounds 1, 3 and 4 all allege, albeit for different reasons, the orders are not just and equitable.
Denial of procedural fairness (Ground 1A)
This ground is pleaded as follows:
The parties were denied procedural fairness as the learned Judge made Orders which fell outside the Orders that either of the parties sought and the learned Judge took no submissions about the Orders that were ultimately made by him.
(As per the original)
The ground is made good by comparing the appealed orders with those sought by the parties. Despite reciting the nature of the suites of orders proposed by the parties in the reasons for judgment, the appealed orders bore no correlation at all to their applications.
The husband sought that he acquire sole ownership of the former family home, subject to his exclusive liability for its encumbrance, and that the wife pay him a sum of money. He proposed an order compelling the wife to sell one of her Country B properties if she defaulted in paying him the cash. Otherwise, he proposed that each party retain their real property, personal property, and superannuation (at [136] and [139]).
The wife agreed the husband could acquire sole ownership of the former family home, subject to him assuming exclusive liability for its encumbrance, and subject also to him paying her a sum of money. She proposed an order compelling the sale of the former family home if the husband defaulted in paying her the cash (at [140]). Otherwise, she proposed that each party retain their real property, personal property, and superannuation.
Self-evidently, the parties agreed the husband should acquire sole ownership of the former family home, though they disagreed over the payment of a cash adjustment by one to the other. They agreed they should retain their individual real property, personal property and superannuation interests.
In summary, the appealed orders made provision for this: the sale of the former family home (Orders 4–10); the transfer to the wife of the totality of the husband’s superannuation interests (Orders 1–3); the sale of two parcels of Country B real estate, one owned exclusively by the wife and the other in which she only enjoyed a partial interest (Orders 11–14); the husband’s transfer to the wife of all the money held by him in his bank accounts (Order 17); the husband’s retention of the shareholding in an incorporated business (Order 18); and the parties’ retention of personal property and their responsibility for personal liabilities (Orders 15, 16, 19, 20 and 21).
So summarised, the radical departure of the orders from the parties’ proposals becomes obvious. Nobody sought the sale of the former family home, other than as necessary to rectify any default in compliance with the orders. Nobody sought any superannuation splitting orders. Nobody sought the sale of any Country B real estate, other than as necessary to rectify default in compliance with the orders. Nobody proposed that the husband withdraw and pay to the wife the totality of his savings in bank accounts.
Given the way in which the hearing was conducted by the parties, the order to sell the former family home could not have been reasonably anticipated by the husband and he was thereby denied any chance to argue against it.
The superannuation splitting orders deprive the husband of all his superannuation interests, approximating $146,000. Nor could those orders have been reasonably anticipated by him at trial. The issue was belatedly raised while judgment was reserved, at which time the husband affirmed his objection and submitted how, since no superannuation splitting orders were sought, any such orders would be made without affording the trustees of his various superannuation funds the procedural fairness required by law. Such deprivation deprives the orders of binding force (s 90XZB and s 90XZD(1) of the Act).
On 2 November 2023, several weeks before judgment was pronounced, the primary judge re-listed the proceedings to take further submissions from the parties on two discrete points, one of which was the treatment of their superannuation interests. The husband re-affirmed his objection to any superannuation splitting orders and, although the wife was willing to acquiesce, both parties emphasised the need for the superannuation fund trustees to be afforded procedural fairness. The discussion concluded in this way between the primary judge and the husband’s counsel:
[COUNSEL FOR THE HUSBAND]: And for the husband’s purpose, your Honour, it may assist the parties, when your Honour is determining the effect of whatever your Honour’s judgment is, if there needs to be anything in relation to the superannuation proportion, if your Honour is contemplating a superannuation split one way or the other.
HIS HONOUR: Yes.
[COUNSEL FOR THE HUSBAND]: That whatever orders your Honour proposed to make in relation to that be possibly put over to another date so that that procedural fairness can then be affected upon whichever superannuation trustee is required, depending on the value.
HIS HONOUR: Yes.
[COUNSEL FOR THE HUSBAND]: Knowing that the husband has one, two, three, four different superannuation funds.
HIS HONOUR: Yes.
[COUNSEL FOR THE HUSBAND]: Can be affected upon that specific trustee, because of the wording of each trustee might be slightly different.
HIS HONOUR: Well, that’s an extremely valuable suggestion. Thank you, [counsel for the husband]. Thank you so much for your clarification. …
(Transcript 2 November 2023, p.7 line 33 to p.8 line 10) (Exhibit B)
Despite his Honour acknowledging the “extremely valuable” suggestion for the proceeding to be re-listed on another future date if superannuation splitting orders were to be made, the primary judge did not take that course. The property settlement orders finalising the cause were pronounced three weeks later on 29 November 2023.
The order requiring the husband to surrender to the wife all of his savings, approximating $288,000, could not have been reasonably anticipated by him either.
Although the wife did not complain about the orders, they require her to sell a parcel of real estate in Country B in which she holds only a minority proprietary interest. It may be wondered how she will accomplish the sale if it is resisted by the majority owners, none of whom were either joined to the proceedings or afforded procedural fairness by being given the chance to be heard about the sale order.
The appealed orders deprive the husband of his residence, his superannuation, and his savings, leaving him with no Australian assets at all, save for his shareholding in an incorporated business, which the parties agreed was worth only $75,000.
The primary judge was obliged to make such orders altering the parties’ property interests as his Honour considered “appropriate” (s 79(1) of the Act), but only in so far as such orders are “just and equitable” in all the circumstances (s 79(2) of the Act). Such statutory discretion is broad (Norbis v Norbis (1986) 161 CLR 513 at 518, 535 and 539–540), but it is not so broad as to be unbounded.
In exercising discretion, judges are not bound to simply select between the competing suites of orders for which the parties contend (U v U (2002) 211 CLR 238 at 284–285) but, conversely, cannot determine the cause by making orders which are unheralded and could not have been reasonably anticipated by the parties, given the way they chose to contest the cause, as to do so deprives them of procedural fairness (Kearney & McMaster (2024) FLC 94-171; Robertson & Sento [2009] FamCAFC 49 at [138]; Bolitho and Cohen (2005) FLC 93-224 at [85]). That occurred here.
When confronted with the new ground of appeal and the submissions made in support of it, the wife adopted a neutral position, neither conceding nor opposing the point. We are satisfied the complaint of the denial of procedural fairness is made out and this ground succeeds.
Mathematical error (Ground 2)
The primary judge plainly attempted to effect a 60/40 division of the parties’ assets and superannuation. However, the orders do not achieve that outcome.
The orders require two Country B properties to be sold and the net proceeds of sale apportioned in 60/40 shares (Orders 11–14), but the primary judge calculated the parties’ overall entitlements in the reasons for judgment using different amounts. His Honour concluded the wife’s share of the proceeds from one Country B property would be $5,012,880, which sum well exceeds 60 per cent, and that her share from the second Country B property would be $379,719, which is somewhat less than 60 per cent (at [173]–[174]).
Having regard to the raw arithmetical calculations within the reasons for judgment, which are correct and uncontested, to effect the intended overall 60/40 division, the wife must instead receive 71.6 per cent from the sale proceeds of the first property and 57.1 per cent from the net sale proceeds of the second property. Of course, the husband’s corresponding entitlement would then be 28.4 per cent and 42.9 per cent respectively.
Orders 12 and 14 do not correspond with the reasons for judgment, but the need for their isolated variation is eradicated by the need for all the appealed orders to be set aside on account of them being vitiated by procedural unfairness.
Justice and equity of the orders (Grounds 1, 3 and 4)
Grounds 1, 3 and 4 all assert the appealed orders are not just and equitable, though several reasons are advanced for that proposition, those being:
(a)some items of property were wrongly omitted from the schedule of assets and superannuation (Grounds 3 and 4);
(b)the orders left the husband with few Australian assets (Grounds 1.1 and 1.7);
(c)the husband should have received the former family home in specie as part of his share of the assets and superannuation (Ground 1.2);
(d)the orders do not cater for the two Country B assets selling for more or less than the values attributed to them at trial in accordance with expert valuation evidence (Ground 1.3);
(e)the orders should have allowed a period of more than six months within which to sell the Country B assets (Ground 1.4);
(f)the orders should have enabled the husband to participate in the sale of the Country B assets (Ground 1.5);
(g)the orders should have required the sale of only one Country B property, not two (Ground 1.6); and
(h)Orders 11, 12, 13, and 14 are vague and imprecise (Ground 1.8).
Save for Ground 1.3 and the extent to which there is otherwise overlap with Grounds 1A and 2, we reject each of those contentions.
The parties’ assets and superannuation interests were valued at the total net amount of $11,867,100. It is true that calculation omits a bank account (with a credit balance of $2,638), some household contents possessed by the wife (with an agreed value of $1,000), and some household contents possessed by the husband (which he asserted had no value at all), but those amounts are de minimis and their omission does not sustain the appeal. Grounds 3 and 4 fail.
The parties’ property was divided in 60/40 shares. The husband’s 40 per cent share computed to $4,746,840 and incorporated his lesser share of the net proceeds realised on the sale of the two Country B properties, his existing part interest in a third Country B property, and the incorporated business he conducted.
The husband also wanted to acquire sole ownership of the former family home, to which proposal the wife acquiesced, but only on condition that the husband pay her a cash adjustment, in default of which it be sold. The primary judge instead ordered that the former family home be sold and the net proceeds of sale paid to the wife as part of her overall 60 per cent share of the property, which amounted to $7,120,260. The sale of the former family home was expected to yield net proceeds of $1,145,000.
The primary judge explained the decision to order the sale of the former family home (at [141], [145]–[147], [149], [157], [163] and [169]), so the problem is not the lack of reasons for the decision. Nor is the primary judge’s refusal to give the husband all of the assets he wanted, of itself, an appealable error. The primary judge was not obliged to make an order compelling the wife to transfer her one-half interest in the former family home to the husband (subject to its encumbrance) merely because she did not dispute his application for an order in those terms. However, before taking that course, the primary judge was obliged to foreshadow such an unforeseen outcome so the husband had the chance to be heard against it. As already explained under Ground 1A, the order deprived the husband of procedural fairness, but Grounds 1.1, 1.2 and 1.7 fail.
Orders 11–15 require the sale of two Country B properties and stipulate the parties’ proportional shares of both the net proceeds of sale and any capital gains tax incurred on the sales. In respect thereof, Ground 1.3 asserts this:
The orders do not provide for what ought to occur in the event that assets in [Country B], which formed the majority of the pool, sell for more or less, than the values ascribed to them in the reasons
Assuming the properties sell for more or less than the values they were ascribed at trial in reliance upon uncontroversial expert valuation evidence, it would necessarily follow that the overall 60/40 adjustment of the parties’ property interests would be distorted to some degree. One would inevitably receive less than his or her complete entitlement and the other would correspondingly receive more. Orders for the sale of assets and the division of net proceeds in proportional shares is the commonly accepted way of ensuring the parties share equitably in any windfall or loss (Noetel & Quealey (2005) FLC 93-230 at [143]). However, the orders should be crafted so as to ensure achievement of the overall proportional division of property, not the proportional division of the net proceeds realised on the sale of only one or some assets in isolation from consideration of where the remaining assets fall. Ground 1.3 therefore succeeds.
Orders 11 and 13 allow the wife six months within which to sell the two Country B properties. Ground 1.4 alleges the primary judge should have stipulated a longer period, which was a surprising contention for the husband to advance given the contrary manner in which he conducted the trial. He urged the primary judge to reject the wife’s assertions of likely difficulty in selling the Country B properties and to instead find that they could easily be sold in a timely way.
The primary judge described the husband’s submissions in that regard in this way:
21.The husband disputed the validity of the difficulties recorded by the wife in her selling her real property in [Country B]. He said no such complications existed.
…
138.As is readily apparent from the positions adopted by each party, the properties in [Country B] are relevant to the determination of the justice and equity in this case. [Counsel for the husband] submitted that the valuation of the real property in [Country B] supported the notion that land is in fact selling in [Country B], even at high prices. He submitted the travel warning on which the wife relied to demonstrate the practical obstacles of a foreign owner selling land situated in [Country B] was two years old, not current, and no other evidence had been adduced to demonstrate the actual difficulties a foreign resident who owned real property in [Country B] might encounter when attempting to make money from that sale of that real estate.
…
163.… Conversely, the husband expressed no reservation about the possibility of realising [Country B] assets, concluding that the wife was in error when she said so vocally that it was extremely difficult for her (as a foreign female) to sell land she owned in [Country B].
Within the orders propounded by the husband, he sought the enforced sale of one Country B property if the wife defaulted in paying him the large sum of cash he wanted within 60 days. If that were to be necessary, he proposed the Country B property be sold for the highest offered price after only four weeks of marketing (at [139]). In effect then, the husband expected the Country B property could be sold within a month at best and three months at worst. Ground 1.4 fails.
The orders require two Country B properties to be sold, but Ground 1.6 asserts the orders should have required the sale of only one. The primary judge explained the need to sell both properties in this way:
173.…. The wife’s entitlement to 60% of the net assets’ value is $7,120,260. Even when she receives the net proceeds of sale of the former matrimonial home, ($1,145,000), superannuation ($240,960) and the miscellaneous assets ($341,601) a discrepancy of $5,392,868 is thereby presented. Selling the [Country B] properties is the most immediate source of funds to generate the requisite sums. The wife has expressed her reluctance to be involved in that process. That is not to say that an agent cannot be appointed to sell [the wife’s two Country B properties] for the best price reasonably available which, as [the expert’s] valuation has revealed, is approximately AUD $7,000,000 and $665,000 respectively. Upon a sale of [one property] at the price of $7,000,000 being achieved, the wife would be paid from the proceeds of sale the sum of $5,012,880, leaving the amount of $1,987,020 for application to the husband. Upon a sale of [the second property] at the price of $665,000 being achieved, the wife would be paid $379,719 of the net proceeds of sale and the husband would retain $285,281.
The wife owns the first Country B property and has a part interest in the second Country B property. The husband has no proprietary interest in either. He did not articulate how he is disadvantaged by the need for both, rather than only one, to be sold. Ground 1.6 fails.
As only the wife is seized of proprietary interest in the two Country B properties, the orders require her to sell them. Ground 1.5 alleges the primary judge erred by not making provision for the husband to “participate” in their sale, but the ground fails because its premise was not explained by any submission about how the orders were vitiated by error.
Ground 1.8 alleges this:
Orders 11-14 are unduly vague and imprecise when leaving the execution solely to the wife with no transparency over the integrity of her execution provided to the husband and the court.
(As per the original)
No submission was made to elaborate the assertion, either orally or in writing, and it is rejected. The orders requiring the sale of the two Country B properties and the proportional division of their net sale proceeds are sufficiently prescriptive to be understood and implemented. The Court always retains power to make, as and when necessary, supplementary procedural orders to ensure the implementation of substantive property settlement orders (Molier & Van Wyk (1980) FLC 90-911; Marriage of Ravasini (1983) FLC 91-312; Marriage of Warwick (1983) FLC 91-342; Marriage of Phillips (1985) FLC 91-634; Pera v Pera (2008) FLC 93-372 at [58]–[62]).
Disposition
The appeal must be allowed in respect of Grounds 1.3, 1A and 2 and the appealed orders must be set aside.
The question is how the appealable errors should be remedied. The husband sought that the proceedings be remitted for re-hearing, without restriction, whereas the wife contended for the re-exercise of discretion, either by the Full Court or upon remitter to the primary judge, but in either case with the re-exercise of discretion confined to re-formulating the property settlement orders needed to achieve the unchallenged division of the parties’ property in 60/40 shares.
The wife sought to derive support for her position from reliance upon Full Court authority (Yarrow & Yarrow (No 2) (2022) FLC 94-112; Marcin & Marcin (2020) FLC 93-956), however the Full Court qualified its statements in each instance (Yarrow & Yarrow (No 3) (2023) FLC 94-155; Marcin & Marcin(No 2) [2020] FamCAFC 142).
It is accepted that remitter for re-hearing should be the remedial order of last resort (CDJ v VAJ (1998) 197 CLR 172 at 199), though such an order is often unavoidable if circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, in which event the parties must be given the opportunity to adduce updated evidence as to current circumstances (Allesch v Maunz (2000) 203 CLR 172 at 183 and 191–192). In this instance, the evidence in the hearing conducted before the primary judge closed just under 12 months ago in April 2023 and so some of it is likely to be stale.
The husband indicated he wished to adduce fresh evidence directed to the current value of the parcels of real property and his current financial circumstances. We are not persuaded we could, in the face of the binding authority of Allesch v Maunz, preclude him from so doing. He was not armed with such evidence to adduce in the appeal and, in any event, it might be contentious, so there is no option but to remit the proceedings for re-hearing.
The wife should have her wasted party/party costs caused by the adjournment of the appeal hearing on 1 March 2024 paid by the husband due to his belated desire to prosecute the appeal on an amended premise. Those costs are fixed at $7,750 pursuant to r 12.17(1)(a) of the Rules.
Once the essential issue of the denial of procedural fairness was identified by the husband, the wife sensibly did not seriously contest it, so there is no warrant to order her to pay any part of his costs of the appeal.
The husband sought costs certificates for both the appeal and the re-hearing, which application is dismissed. Although the appeal was allowed for errors of law, the costs order made against the husband in the wife’s favour precludes the grant of any costs certificate to the husband in respect of the appeal (s 9(1)(b) of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”)). In the exercise of discretion, we refuse the husband any costs certificate for the re-hearing (s 6 of the Costs Act) because his tactical conduct of the appeal, including by his failure to have any fresh evidence or agreed facts ready for use, precluded the Full Court from re-exercising discretion under Pt VIII of the Act to finalise the financial cause between the parties.
By comparison, in the exercise of discretion, we grant the wife costs certificates for both the appeal and the re-hearing (s 6 and s 8 of the Costs Act) because the appeal was allowed for errors of law, which she neither induced nor seriously contested, and she argued ably for why the Full Court could conclude the financial cause by the re-exercise of discretion under Pt VIII of the Act, which course is only rejected at the husband’s insistence. While the Costs Act precludes the grant of a costs certificate to an appellant in an appeal when the parties do not bear their own costs of the appeal pursuant to operation of s 117(1) of the Act, no similar statutory restriction precludes the grant of a costs certificate to the respondent.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Gill & Christie. Associate:
Dated: 15 April 2024
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