Felip & Biovin

Case [2025] FedCFamC1A 87

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Felip & Biovin [2025] FedCFamC1A 87

Appeal from: Biovin & Felip [2024] FedCFamC2F 1697
Appeal number: NAA 366 of 2024
File number: SYC 2804 of 2023
Judgment of: CAMPTON J
Date of judgment: 16 May 2025
Catchwords: FAMILY LAW – APPEAL – CROSS-APPEAL – PROPERTY – Where the appellant contends a factual error as to finding of the value of his bank account – Where the cross-appellant concedes the error, contending that it does not impugn the ultimate determination – Where the error increases the value of the property of the parties by 77 per cent – Where the error of fact permeates, and is material to, each step of the considerations pursuant to s 79 of the Family Law Act 1975 (Cth) corrupting the justice and equity of the property adjustment determination – Appeal allowed – Determination of the cross-appeal otiose – Matter remitted for re-hearing.
Legislation:

Family Law Act 1975 (Cth) ss 75, 79, 117

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 10.13

Cases cited:

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

De Winter and De Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Hickey and Hickey and the A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Russell & Russell (1999) FLC 92-877; [1999] FamCA 1875

Number of paragraphs: 31
Date of hearing: 14 May 2025
Place: Sydney
Counsel for the Appellant: Mr Givney
Solicitor for the Appellant: Lama Family Lawyers
Counsel for the Cross-Appellant: Mr Blackah
Solicitor for the Cross-Appellant: AMG Law Firm

ORDERS

NAA 366 of 2024
SYC 2804 of 2023

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

MR FELIP

Appellant
AND:

MS BIOVIN

Cross-Appellant

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal of the wife filed on 11 April 2025 is dismissed.

2.The appeal is allowed.

3.The Cross-Appeal is dismissed.

4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

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

6.The wife 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 her in respect of the costs incurred by her in the appeal.

7.The husband and the wife are granted costs certificates pursuant…

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AGLC
Felip & Biovin [2025] FedCFamC1A 87
Case
[2025] FedCFamC1A 87
Decision Date

CaseChat Overview and Summary

The case of Felip & Biovin involves an appeal and cross-appeal concerning a property adjustment and spousal maintenance dispute following the separation of the parties. The husband, Mr Felip, appeals the primary judge’s determination, arguing that a factual error regarding the value of his bank account necessitates a re-evaluation of the property distribution. The wife, Ms Biovin, cross-appeals, asserting that any error in the bank account valuation does not significantly impact the final outcome. The court was required to determine whether the error in the bank account valuation was material and whether it influenced the property adjustment decision under section 79 of the Family Law Act 1975 (Cth).

The court found that the error in the bank account valuation, which inflated the husband's assets by 77 per cent, was both material and pervasive, affecting each step of the property adjustment considerations. The court concluded that this error corrupted the justice and equity of the primary judge’s determination, rendering it invalid. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different judge of Division 2. The cross-appeal was dismissed as the determination of the property adjustment error made the cross-appeal otiose.

The court ordered the appeal to be dismissed, the cross-appeal to be dismissed, and the matter to be remitted for rehearing. Both parties were granted costs certificates for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth). The court found that neither party should bear the costs of the other, given the unsuccessful outcomes for both the appeal and cross-appeal.

The court’s decision emphasised that significant factual errors in property valuation can invalidate the entire property adjustment process, necessitating a complete re-evaluation. This case highlights the importance of accurate property valuation in family law proceedings to ensure just and equitable outcomes.

Orders

Orders of the court

NAA 366 of 2024

SYC 2804 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FELIP

Appellant

AND:

MS BIOVIN

Cross-Appellant

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal of the wife filed on 11 April 2025 is dismissed.

2. The appeal is allowed.

3. The Cross-Appeal is dismissed.

4. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

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

6. The wife 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 her in respect of the costs incurred by her in the appeal.

7. The husband and the wife are granted costs certificates 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 them 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).

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

For the reasons that follow, the appeal is allowed. The matter is remitted for rehearing to a judge of Division 2 other than the primary judge. A determination of the Amended Notice of Cross-Appeal is otiose. It will be dismissed.BACKGROUND Each of the husband and the wife were born in Country C, the husband in 1976, currently 48 years old, and the wife in 1982, currently 42 years old. They commenced a relationship in or around mid-2019 (at [5]) and married in Country C in early 2020 (at [6]). They did not commence to live in the same household until the wife obtained a visa, migrating to Australia in mid-2021 (at [16(f)]). Between early to mid-2022, the wife was in Country C (at [16(h)]). The parties separated on a final basis in mid to late 2022 (at [7] and [16(i)]). They occupied the same residence for approximately 11 months of their 20-month marriage. There are no children of the marriage. On 24 April 2023 the wife filed an application for adjustment of the property and for spouse maintenance in Division 2. On 3 August 2023 interlocutory orders were made providing for the husband to pay periodic spousal maintenance to the wife in the sum of $580 each week for a period of 12 months. On 13 November 2023 the husband ceased making the weekly periodic spousal maintenance payments. On 24 December 2023 he filed an Application in a Proceeding seeking to discharge the order made on 3 August 2023. That application was dismissed on 4 April 2024. On 17 May 2024 the wife filed an Enforcement Application to recover the arrears of spousal maintenance. On 13 June 2024 the husband paid the arrears of the spouse maintenance order in a lump sum prior to the enforcement application being determined. At the time of trial, there was no order for the husband to pay maintenance to the wife. Immediately prior to the commencement of oral submissions, the parties adduced a collaboratively constructed joint balance sheet (Exhibit J1) (Transcript 23 October 2024, p.176 line 41 to p.177 line 11). Exhibit J1 records: The primary judge made findings as to the specie and value of the property of the parties considered for adjustment. The reasons record that “[b]y the time of submissions, the parties were in agreement about both the items to be included in the matrimonial property pool and values to be attributed to those items” (at [25]). The primary judge then “reproduced” the joint balance sheet in the reasons as follows: The husband contended at trial that there was no warrant for adjustment of the property of the parties. The wife contended that the property ought to be adjusted 30 per cent in her favour and 70 per cent to the husband. The primary judge determined a contribution finding 97.5 per cent in favour of the husband and 2.5 per cent in favour of the wife (at [119]). The adjustment to the contribution finding pursuant to s 75(2) was determined to be 7.5 per cent in favour of the wife (at [130]). Accordingly, the primary judge determined it was just and equitable for the wife to receive 10 per cent of the property of the parties (at [137]). The husband was ordered to pay to the wife $259,559 within 90 days.THE NOTICE OF APPEAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is no utility in dealing with or considering the Amended Notice of Cross-Appeal (Boensch v Pascoe (2019) 268 CLR 593 at [8]). It will not be addressed and will be dismissed. The setting aside of the orders under challenge will enable the wife to prosecute her alternate application for spouse maintenance.CONCLUSION Initially, in the event the appeal was allowed, both parties sought for a re-exercise of discretion. By the conclusion of the appeal, they agreed that in the event the appeal was allowed, the matter be remitted for rehearing before a judge of Division 2 other than the primary judge. Such an order will be made.COSTS In the event the appeal was allowed, the husband sought that the wife pay his costs fixed in the sum of $18,333. In the alternative, he sought an order for a costs certificate for the appeal and for the re-hearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The wife opposed an order that she pay the husband’s costs. She did not put the quantum of cost sought into issue. She sought for costs certificates to be issued for both the appeal and the re-hearing. The starting position established by s 117(1) of the Act is that each party pays their own costs. An order for costs requires the Court to be satisfied, in all of the circumstances, that such an order is just (s 117(2)). In considering that, the Court must take into account the matters set out in s 117(2A) of the Act. The husband submitted that the wife was wholly unsuccessful in opposing the appeal and implicitly, properly advised, she ought to have conceded the appeal. The undertone of his submission was that the hearing of the appeal was unnecessary. The wife identified that the husband was not wholly successful in prosecuting the appeal, because until during the hearing of the appeal, he sought that this Court re-exercise discretion in the event the appeal was allowed, and that his position changed during the appeal to seek for the remittal of the proceeding. She further identified her comparative modest financial circumstances, being in receipt of workers compensation benefits and having limited other property interests, militated against justifying the exercise of a costs discretion in favour of the husband. Notwithstanding the merit of the husband’s submission that the wife ought to have conceded the appeal, the submissions of the wife as to her financial circumstances tip the balance to restore the s 117(1) position. The circumstances do not justify an order for the wife to pay the husband’s costs. As the appeal has succeeded due to errors on the part of the primary judge, it is appropriate to grant each of the parties’ costs certificates for both the appeal and the re-hearing. Such orders will be made.

Ratio Decidendi

Legal Principle Established

In the Amended Notice of Cross Appeal filed on 9 April 2025 the wife raised four grounds of appeal as follows:1. […] That having regard to His Honour’s assessment that the wife was only entitled to an adjustment of 10% for her s79 claim, His Honour erred in failing to additionally make an order for the payment to her by the husband of lump sum spouse maintenance.2. That the learned trial judge made an error in finding that the Wife’s contributions prompted an adjustment of only 2.5%.3. That the learned trial judge made an error in finding that the Wife’s future needs prompted an adjustment of only 7.5%.4. That the learned trial judge erred in the exercise of his discretion by not giving adequate weight to the non-disclosure by the Husband of his business interests, as was revealed in cross-examination. (Underline emphasis removed)CONSIDERATIONGround 1 of the Notice of Appeal – “In finding erroneously that the [husband] held a balance of $1,225,000 in ANZ […] Account […]48] in lieu of the actual balance of $27,305 was a fundamental error and vitiated the discretion of the Trial Judge.” The ground contends an error of fact in the primary judge’s finding as to the value of the husband’s ANZ account #48. Exhibit J1 records the agreement of the parties that Item 4 in the balance sheet (ANZ account #48) was $27,305. The value of Item 4 as found by the primary judge (at [25]) is $1,225,000. Notwithstanding the charity of the husband’s submission describing the error as typographical, the finding as to the value of the husband’s ANZ account #48 as made by the primary judge was not reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296). Notwithstanding that the wife conceded the factual error raised by Ground 1, she submitted “[t]he error does not affect the final result, or it’s [sic] effect is negligible, or in any case the conclusion reached was correct, notwithstanding the error.” She directed attention to [38] of the primary reasons, which records:38 The relevant pool in this case includes a [property] in Sydney that the Husband purchased prior to the relationship commencing. It includes two investment properties in Tasmania, and some debt secured by mortgages against those three properties. There are then miscellaneous assets such as bank accounts, a motor vehicle etc each of which has a relatively modest value. (Emphasis added) The wife contended that this demonstrated that the primary judge “had this in mind when arriving at the figure for the cash payment” to the wife. She submitted this contention was supported by paragraphs [126]–[129] which record:126 The Wife makes an alternative claim for a lump sum payment sufficient to pay for tuition fees for a [professional education course] in Australia. Coincidentally, the quantum of that claim is very similar to the lump sum that she seeks by way of property adjustment.127 There is no evidence to suggest that the parties contemplated the Wife undertaking a [professional education course] in Australia during their relationship with each other.128 It is common fact that the Wife completed [professional] qualifications in [Country C]. There is no evidence about the recognition or otherwise of those qualifications in Australia.129 I am not persuaded that it would be just or equitable to order the Husband to pay for that study. Due to the adjustment that I have decided is appropriate in this matter, the Wife will receive a comparable sum of cash in any event. (Emphasis added)