GANTZ & BILLIAN - [2018] FamCAFC 72

FAMILY COURT OF AUSTRALIA

GANTZ & BILLIAN

[2018] FamCAFC 72

FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – Where the respondent conceded error by the primary judge – Whether the appeal court could re-exercise the discretion – Whether there was a proper basis upon which the appeal court could re-exercise the discretion – Where a re-exercise would require an examination of s 79 of the Family Law Act 1975 (Cth) – Where the parties each owned real property acquired separately prior to cohabitation – Where there was no current value of the interests held by each of the parties in their respective property portfolios – Where the orders sought by each of the parties in relation to the amount to be paid to the wife differed significantly and were based on competing contentions as to the direct financial contributions of each of the parties – Where the findings of the primary judge did not provide a proper basis to enable the appeal court to re-exercise the discretion – appeal allowed and remitted for rehearing.

Family Law Act 1975 (Cth) ss 75(2), 79

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
Vass v Vass (2016) 53 Fam LR 373; [2015] FamCAFC 51

APPELLANT:

Ms Gantz

RESPONDENT:

Mr Billian

FILE NUMBER:

BRC

10173

2014

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

12 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Kent JJ

HEARING DATE:

12 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2017

LOWER COURT MNC:

[2017] FCCA 2106

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hackett (via telelink)

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Looney QC

SOLICITOR FOR THE RESPONDENT:

HopgoodGanim Lawyers

Orders

The appeal be allowed.
Order (15) of the orders made by Judge L. Turner on 7 September 2017 be set aside.
The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than Judge L. Turner.
There be no order as to costs.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of 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 wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of 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 the Act to the respondent husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to both parties a costs certificate pursuant to the provisions of 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 each of them in respect of the costs incurred by them in relation to the rehearing of the proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gantz & Billian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: NOA 50 of 2017
File Number: BRC 10173 of 2014

Ms Gantz

Appellant

And

Mr Billian

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

The questions which would otherwise need to be determined on this appeal by the wife from orders for settlement of property made by Judge L. Turner on 7 September 2017 are significantly truncated by reason of the respondent husband conceding appealable error on the part of her Honour.
The husband does not seek to support the relevant orders despite the error. Rather, he also concedes that a materially different order in favour of the wife should be made. In that respect however, it might be noted that the order thus sought is, in turn, significantly different from the order contended for by the wife.
At paragraph 2 of the husband’s Summary of Argument he contends for a specific alternative order. But, at paragraph 4 of the same outline, it is contended on behalf of the husband, citing Allesch v Maunz[1] and Vass v Vass[2] that it “would not be appropriate for this Court to re-exercise the discretion”. That position emanates from a concession only in respect of one error, or, perhaps more accurately, part of one error, as contended for by the wife.
[1](2000) 203 CLR 172.
[2](2016) 53 Fam LR 373 at [146] – [149] (“Vass”).
As a consequence of that, Mr Looney QC who appears on behalf of the husband contends that this Court could re-exercise the discretion because the error which is conceded by him forms but a small part of the task that would need to be undertaken if this Court embarked upon such a re-exercise. That position is opposed by Mr Hackett who appears for the wife. Mr Hackett contends that the circumstances are such that remitter of the matter is inevitable.
What emerges is that the central question necessary to be answered by this Court is whether there is a proper basis upon which the Court can re‑exercise the discretion based on facts and circumstances pertaining not at the date of the trial but as at the date of the hearing of this appeal.
In Vass the Full Court said:
147.As this Court has sought to explain on a number of occasions, we are of course always anxious to avoid the parties being exposed to yet further expense and delay. However, this court is constrained in re-exercising not by willingness or whim, but by principle.
148.It is plain from the decision of the High Court in Allesch v Maunz that on any re-exercise of discretion, this court is obliged to achieve a just and equitable outcome by reference to the law and facts as they exist as at the date of re-exercise.
149.That presents difficulties both evidentiary and practical. Those difficulties arise where, as here, the Court is told that many matters central to the exercise of discretion are the subject of dispute; where there is no agreed pool of property and where the time that has elapsed since the orders were made might see arguments as to value, contributions (including post-separation contributions) adduced and, equally, might see the parties seeking to depose to changed financial circumstances directly relevant to the exercise of the discretion.
(Citations omitted)
Reference to the submissions made by counsel for each of the parties refer to what might conveniently be described as differing assertions as to the ambit of the task that would be required of this Court in respect of a re-exercise. As I have said, Mr Looney QC contends that the ambit is relatively narrow. I respectfully do not accept that submission. The re-exercise by this Court, in my view, is in fact an examination of s 79 of the Family Law Act 1975 (Cth) (“the Act”) at large, and this Court would be required to embark upon all of the relevant elements of that task as set out in the section and as recently enumerated in Stanford v Stanford.[3]
[3] (2012) 247 CLR 108.
A central uncontroversial fact in this case is that each of the parties owned solely significant income-producing real property portfolios prior to their cohabitation. The pool, if I can call it that, of other property to which her Honour applied the provisions of s 79 was largely agreed, but Mr Hackett points to a number of differences in that pool which were not determined by her Honour. There is no current value of the interests held by each of the parties in their respective property portfolios.
Two questions immediately arise in respect of those properties, at least. First, do the facts and circumstances of this cohabitation and marriage point to justice and equity requiring any order pursuant to s 79 of the Act being made in respect of any or all of those properties. That question is also, of course, common to the property which the parties own jointly, principally in terms of value the former matrimonial home.[4] Secondly, if such an order should be made, should those properties be considered in a “pool” or “pools” separate from that containing the former matrimonial home and the parties’ other property.[5]
[4]s 79(2); Stanford v Stanford (2012) 247 CLR 108.
[5]See, eg, Norbis v Norbis (1986) 161 CLR 513.
In my view, issues between the parties of some substance attend each of those issues.
The parties would appear to agree that each of them should retain the real and other property that each owns or possesses. However, at least as it seems to me, the differences in approach and the parties’ claims based, essentially, on competing contributions arguments, see the wife contending for orders that would see her receiving half a million dollars from the husband and the husband contending that she should receive just short of $37,000. Those submissions are, in turn, based on competing contentions as to the direct financial contributions made by each of the parties in this very short marriage and the asserted ramifications of the same.
The findings made by her Honour do not, in my view, permit this Court to address those questions through submissions made on behalf of each of the parties at this hearing. The findings, or more accurately absence of findings made by her Honour, as to the relevant s 75(2) factors are, in my view, a particular example of that.
It would be necessary for this Court to embark upon a trial process, in effect, at which evidence was adduced and findings made, including in respect of evidence as to issues, for example valuations of the property and otherwise evidence that pertains to the period subsequent to the trial which occurred over a year ago. Other examples of the difficulties confronting a court seeking to re‑exercise the discretion have been referred to in other decisions of this Court, for example, in Surridge & Surridge.[6]
[6](2017) FLC 93-757 at [88].
In my view, it is neither practicable nor appropriate for this Court to conduct the process that would be required, particularly given the limited findings, with respect, made by her Honour at the trial.
Sadly, for the parties at least, I conclude that this Court has no alternative but to remit the matter for rehearing by a Federal Circuit Court judge other than Judge L. Turner.
I would so order and I would hear submissions as to costs.

Kent J

I agree with the orders proposed by Murphy J and his Honour’s reasons for those orders.

Ainslie-Wallace J

As do I.

Costs

The appeal has been wholly successful and was occasioned by an error of law by the primary judge. There was no suggestion that her Honour was led into that error by one or other of the parties. Thus there should be no order as to costs.
Instead there will be orders for costs certificates both for the appeal and the rehearing.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy and Kent JJ) delivered on 12 April 2018.

Associate:

Date: 13 April 2018