Funar & Headley
[2022] FedCFamC1A 214
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Funar & Headley [2022] FedCFamC1A 214
Appeal from: Funar & Headley [2022] FedCFamC2F 1018 Appeal number(s): NAA 188 of 2022 File number: BRC 14077 of 2020 Judgment of: MCCLELLAND DCJ, HENDERSON & HARPER JJ Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where final property orders and a declaration were made – Where the appellant challenged the primary judge’s reasons on 10 grounds – Where the first ground regarding procedural fairness was conceded by the second respondent – Appeal allowed by consent – Orders made by consent for the matter to be remitted for rehearing – Costs certificates granted for the appeal only. Legislation: Family Law Act 1975 (Cth) s 90XT(1)(a)
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
House v The King (1936) 55 CLR 499; [1936] HCA 40
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 33 Date of hearing: Determined on the papers Place: In Chambers Counsel for the Appellant: Mr Kelly Solicitor for the Appellant: Paddingtons Lawyers and Attorneys The First Respondent: Filed Submitting Notice 10 October 2022 Counsel for the Second Respondent: Ms Murphy Solicitor for the Second Respondent: Maven Lawyers ORDERS
NAA 188 of 2022
BRC 14077 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS FUNAR
Appellant
AND: MR HEADLEY
First Respondent
MRS HEADLEY
Second Respondent
order made by:
MCCLELLAND DCJ, HENDERSON & HARPER JJ
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
1.The appeal be allowed.
2.Order 1, 2, 5 and 6 of the orders of the primary judge dated 3 August 2022 be set aside.
3.The matter be remitted for rehearing before a judge other than the primary judge.
4.The Court grants to the appellant 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the second respondent 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 the respondent in relation to the appeal.
AND THE COURT NOTES THAT:
A.The first respondent filed a Submitting Notice in respect of the appeal.
B.The first respondent has been advised of the proposed order and intention to enquire whether the matter could be considered in chambers and has raised no objection to that course.
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 Funar & Headley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCLELLAND DCJ, HENDERSON & HARPER JJ:
This is an appeal by Ms Funar, the appellant wife (“the appellant”). The appellant was the applicant in the substantive proceedings. The first respondent was her former husband, Mr Headley, and the second respondent, Mrs Headley, was her former mother-in-law.
A significant issue for determination at the trial was whether the property owned by the second respondent at Suburb A in the State of Queensland (“The Suburb A property”), and in which the parties had lived for some years, was to be included in the matrimonial pool of assets for division, as was contended for by the appellant. The appellant pleaded the existence of an oral agreement made between the parties in 2009 and confirmed in part in 2015 by a draft written agreement. The respondents each denied the existence of the oral agreement or that Suburb A property was matrimonial property.
On 3 August 2022, the primary judge delivered her reasons for judgment. The primary judge did not accept the evidence of the appellant regarding the asserted 2009 oral agreement or of any interest of herself and the first respondent in Suburb A property, preferring the evidence of the respondents in all respects, to that of the appellant, on this issue.
The primary judge declared the second respondent was the sole and beneficial owner of Suburb A property. The primary judge found the matrimonial pool consisted of the first respondent’s superannuation and items of personality and ordered a splittable payment of the first respondent’s superannuation fund to the appellant, in the amount of $125,000, pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth), inter alia.
With respect to the appeal, the first respondent filed a Submitting Notice on 10 October 2022, and the second respondent has conceded the appeal, and that the matter be remitted for re-hearing before a judge in the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
It is appropriate that the appeal was conceded and must be re-heard for the following reasons.
Short chronology
In 1953, the second respondent was born.
In 1981, the first respondent was born.
In 1981, the appellant was born.
In 2007, the appellant and the first respondent marry.
March 2015, the appellant and the first respondent separate on a final basis.
October 2019, the appellant and the first respondent are divorced.
On 8 October 2020, the appellant commenced the proceedings in the Federal Circuit Court of Australia (as it was then known).
On 30–31 March 2022, the matter was listed before the primary judge for final hearing. Judgment was reserved pending the provision of written submissions.
On 9 June 2022, the last set of written submissions were filed.
On 3 August 2022, the primary judge delivered her reasons for judgment and made orders as stated above.
On 30 August 2022, the appellant filed their Notice of Appeal, which was amended on 4 November 2022.
On 10 October 2022, the first respondent filed a Submitting Notice.
On 25 November 2022, the second respondent filed her Summary of Argument and conceded the appeal.
The grounds of appeal
The appellant, in her Amended Notice of Appeal filed on 4 November 2022, provides 10 grounds of appeal, with Ground 10 having five sub-grounds. Ground 1 reads as follows:
1.The Trial Judge failed to accord the applicant wife natural justice and procedural fairness.
(As per the original)
The second respondent conceded the appeal on the basis that Ground 1 has merit. For the following reasons, it is only necessary to deal with this ground.
Ground 1 – Procedural fairness
It is a matter of logic that a ground of appeal that raises procedural fairness must be dealt with first to determine the “validity and acceptability of the trial and its outcome”.[1] Further, it is appropriate in the circumstances of this appeal that the Court is not required to consider or determine all grounds of appeal raised by the appellant given that Ground 1 is dispositive of the appeal. The High Court of Australia considered this as follows:
Within the integrated Australian legal system, the mere potential for an appeal to be brought, by special leave, to the High Court provides no reason for an intermediate court of appeal to sacrifice those efficiencies. That is not to deny that there will be occasions when departure from judicial economy will enhance the overall efficiency of the system or that the prospect of an appeal being brought, by special leave, to this Court in a particular case can give rise to such an occasion. There is accordingly no reason to deny that, “although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground”. But a non-universal rule making it important for intermediate courts of appeal to consider whether to deal with all grounds of appeal is quite different from a rule that always or even ordinarily requires those courts to deal with all grounds of appeal. It is important to the efficiency of the system as a whole that intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm.[2]
(Footnotes omitted)
[1] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] (Kirby and Crennan JJ); Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9] (Basten JA).
[2] Boensch v Pascoe (2019) 268 CLR 593 at [8] (Kiefel CJ, Gageler and Keane JJ).
In the primary judge’s reasons for judgment, the documents relied upon by the parties and read by the primary judge are listed,[3] with the following comment provided at the end:
The enormous volume of material filed in this matter was completely unnecessary in my view.
[3] At [4]–[6].
The appellant submits,[4] and it is conceded by the second respondent,[5] that the primary judge read material that was not relied upon by the parties, had relied upon extraneous material and, thus, the appellant was not afforded procedural fairness. It is conceded that the appellant was unaware that the primary judge intended to rely upon material that was not put before her by any party in the matter and where the appellant was not given any opportunity to answer that extraneous material.[6]
[4] Appellant’s Summary of Argument filed 4 November 2022, paragraph 19.
[5] Second Respondent’s Summary of Argument filed 25 November 2022, paragraphs 5–6.
[6] Appellant’s Summary of Argument filed 4 November 2022, paragraphs 16–17.
The High Court of Australia discussed this in the oft-cited extract from House v The King:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[7]
(Bold emphasis added)
[7] House v The King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ).
Further, the Full Court has recently discussed primary judges considering and relying upon extraneous material, with the following extracts referred to by the second respondent:[8]
10… the rules of procedural fairness require that anything relied upon by a court in reaching its decision be made known to the parties to the proceeding prior to the making of the decision, so that the parties may oppose reliance upon it, produce evidence in relation to it and make submissions about it. Reliance upon material which does not emerge in that manner is a breach of the rules of procedural fairness: McGregor & McGregor (2012) FLC 93-507 at [59].
…
13Put another way, the breach of procedural fairness needs to be material. A breach is only material if it operates to deny a party an opportunity to give evidence or make arguments and thereby to deprive that party of the possibility of a different and more favourable outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2].[9]
(Emphasis in original)
[8] Second Respondent’s Summary of Argument filed 25 November 2022, paragraph 4.
[9] Berry & Andrews (2022) 65 Fam LR 183 120 at [10], [13] (Tree, Jarrett and Campton JJ).
The primary judge included in her list of material read in the appellant’s case, four affidavits which the appellant did not rely upon, nor was the appellant cross-examined on in respect of those affidavits.[10] The appellant was not provided notice, by the primary judge, of her intention to rely upon material that the parties had not sought to reply upon contrary to what was stated in their respective Case Outlines.[11]
[10] These affidavits were the affidavits of the appellant filed on 8 October 2020, 13 January 2021, 30 July 2021, and 16 March 2022.
[11] See Appeal Book pages 939, 954, and 948, for the material relied upon, in the first instance, by the appellant, first and second respondents respectively.
Not only did the primary judge read these extraneous affidavits, she determined there were inconsistencies in those affidavits and the affidavits that were relied upon by the appellant. The primary judge noted that the appellant’s “evidence throughout her affidavits was inconsistent”,[12] and there are numerous instances of the primary judge referring to affidavits filed by the appellant she did not rely upon.[13] For example, the primary judge made a finding that the appellant’s “evidence about the oral agreement [regarding Suburb A property] unreliable and I do not accept her evidence”.[14]
[12] At [67].
[13] At [34], [36], [37], [42], [43], [67], [127], [138], [170].
[14] At [67].
It is clear that the extraneous material grounded the primary judge’s findings of inconsistencies in the appellant’s evidence and led her to reject the appellant’s evidence in relation to the existence of an oral agreement in 2009 and the import of the draft written 2015 document. Ultimately the determination of these inconsistencies infected the primary judge’s finding in respect of all aspects of the appellant’s case. We are satisfied that the breach of procedural fairness was material by denying to the appellant the possibility of a different and more favourable outcome.
Accordingly, Ground 1 is made out and this is dispositive of the entire appeal.
Conclusion
The appeal should be allowed and the declaration and orders made by the primary judge be set aside.
As put forward by the appellant and conceded by the second respondent, the matter should be remitted for re-hearing by a judge other than the primary judge, and such an order is made.
Further, it is appropriate that the Court provide the appellant and second respondent with costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Henderson & Harper. Associate:
Dated: 19 December 2022
0
6
0