FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gilmour & Hofte (No 2) [2024] FedCFamC1A 9
Appeal from: Hofte & Gilmour [2023] FedCFamC1F 919 Appeal number: NAA 293 of 2023 File number: BRC 1692 of 2020 Judgment of: ALDRIDGE, RIETHMULLER & BRASCH JJ Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the appellant to adduce further evidence – No adequate explanation for failure to produce taxation assessment at trial – Other documents of limited significance in circumstances of case – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Appeal from final property orders and interim spousal maintenance order – Whether the primary judge erred in assessing the property pool, contributions and the appellant’s income – Where evidence before the primary judge was far from helpful – Findings not unreasonable or plainly unjust – Findings open on the state of the evidence – No appealable error – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum.Legislation: Family Law Act 1975 (Cth) ss 75, 90SF, 90SM, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.47
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
House v The King (1936) 55 CLR 499; [1936] HCA 40
Keymer & Keymer [2020] FamCAFC 70
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Saltern & Mink [2020] FamCAFC 320
Sharman vEvans (1977) 138 CLR 563; [1977] HCA 8
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 73 Date of hearing: 1 February 2024 Place: Brisbane, delivered in Sydney Counsel for the Appellant: Mr Wilson KC Solicitor for the Appellant: EV Law Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Wilsons The Family Lawyers ORDERS
NAA 293 of 2023
BRC 1692 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GILMOUR
Appellant
AND: MS HOFTE
Respondent
ORDER MADE BY:
ALDRIDGE, RIETHMULLER & BRASCH JJ
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Appeal number NAA 293 of 2023 is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $45,000.
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…
Continue reading Gilmour & Hofte (No 2)
Sign in free to access the full text
Details
- AGLC
- Gilmour & Hofte (No 2) [2024] FedCFamC1A 9
- Case
- [2024] FedCFamC1A 9
- Decision Date
CaseChat Overview and Summary
The appeal, Gilmour & Hofte (No 2), was heard by the Federal Circuit and Family Court of Australia. The appeal concerns final property settlement orders and an interim spousal maintenance order made by the primary judge on 28 September 2023, following a trial. The primary judge determined that the property of the parties should be divided 80 per cent to 20 per cent in favour of the respondent and that the appellant should continue to pay spousal maintenance at the rate prescribed by earlier interim orders made on 19 July 2022 until the respondent obtained full-time employment or until further order. The appellant challenged the property settlement and spousal maintenance orders, and the respondent did not cross-appeal.
The court needed to decide whether the primary judge erred in assessing the property pool, contributions, and the appellant's income. The evidence presented at trial was deemed unhelpful, and the appellant did not produce financial records setting out his professional income or expenses. The appellant's law practice, valued at around $1.6 million in 2019, was placed in liquidation before the trial, and the appellant had considerable debts pursued by the liquidator as a result of director’s loans from the company to him. The primary judge found that the parties’ net asset pool was around $715,731 and that the parties made equal contributions during the relationship. The primary judge determined that the final property settlement should be 80 per cent to 20 per cent, in favour of the respondent, after adjusting for certain factors.
The court found that the appellant did not provide an adequate explanation for the failure to produce his Notice of Assessment for the 2022/23 financial year at the trial. The appellant did not seek to adduce copies of the Individual Tax Return, nor the source documents supporting the preparation of the return. The court also noted that the appellant did not seek to adduce evidence that he now holds a limited practicing certificate, or a trust account ledger. The court concluded that the findings of the primary judge were not unreasonable or plainly unjust, and that the findings were open on the state of the evidence. The court found no appealable error and dismissed the appeal. The appellant was ordered to pay the respondent’s costs in a fixed sum of $45,000.
The court needed to decide whether the primary judge erred in assessing the property pool, contributions, and the appellant's income. The evidence presented at trial was deemed unhelpful, and the appellant did not produce financial records setting out his professional income or expenses. The appellant's law practice, valued at around $1.6 million in 2019, was placed in liquidation before the trial, and the appellant had considerable debts pursued by the liquidator as a result of director’s loans from the company to him. The primary judge found that the parties’ net asset pool was around $715,731 and that the parties made equal contributions during the relationship. The primary judge determined that the final property settlement should be 80 per cent to 20 per cent, in favour of the respondent, after adjusting for certain factors.
The court found that the appellant did not provide an adequate explanation for the failure to produce his Notice of Assessment for the 2022/23 financial year at the trial. The appellant did not seek to adduce copies of the Individual Tax Return, nor the source documents supporting the preparation of the return. The court also noted that the appellant did not seek to adduce evidence that he now holds a limited practicing certificate, or a trust account ledger. The court concluded that the findings of the primary judge were not unreasonable or plainly unjust, and that the findings were open on the state of the evidence. The court found no appealable error and dismissed the appeal. The appellant was ordered to pay the respondent’s costs in a fixed sum of $45,000.
Orders
Orders of the court
NAA 293 of 2023
BRC 1692 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR GILMOUR
Appellant
AND:
MS HOFTE
Respondent
ORDER MADE BY:
ALDRIDGE, RIETHMULLER & BRASCH JJ
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1. Appeal number NAA 293 of 2023 is dismissed.
2. The appellant pay the respondent’s costs fixed in the sum of $45,000.
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
This is an appeal against property settlement orders made on 28 September 2023 following a trial. The primary judge determined that the property of the parties should be divided 80 per cent to 20 per cent in favour of the respondent, and that the appellant should continue to pay spousal maintenance at the rate prescribed by earlier interim orders made on 19 July 2022, until the respondent obtained full-time employment or until further order.BACKGROUND The appellant and the respondent were in a de facto relationship for ten years, separating on a final basis in June 2018. There are two children of the relationship who are 13 and nine years of age. The appellant does not challenge the parenting orders which were made by the primary judge at the same time (28 September 2023), which provide for the children to live with the respondent and spend six nights per fortnight, and one half of school holidays, with the appellant. At the trial of the matter, the evidence filed by the parties was far from helpful, as the primary judge identified in his reasons for judgment (at [5]). In particular, the appellant did not produce financial records setting out his professional income or expenses. The appellant is not an unsophisticated litigant, having had a law practice that was said to have a value of around $1.6 million in 2019, but was placed in liquidation prior to the trial. There were considerable debts pursued by the liquidator against the appellant as a result of director’s loans from the company to him which, by the time of the trial, had been reduced to $110,000 (through negotiations and some payments). The primary judge delivered an ex tempore judgment the morning after addresses. Ex tempore judgments, by their very nature, are not carefully revised and edited works and must be read in that light. Ex tempore judgments offer significant benefits: they are given at a time when the evidence is fresh in the judge’s mind; they are usually more accessible to litigants as they are succinct and focused upon the substantive issues in dispute; and they end the proceedings quickly. For these reasons, the Court should be “conscious of not picking over an ex tempore judgment” (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]). The primary judge found that the parties’ net asset pool was around $715,731 (comprising assets of $1.48 million (including superannuation) and liabilities of $772,589) (at [27]). The primary judge found that the parties made equal contributions during the relationship (at [41]). After adjusting for the factors set out in ss 90SM(4)(d), 90SM(4)(e), 90SM(4)(f), and 90SM(4)(g) of the Family Law Act 1975 (Cth) (“the Act”), his Honour determined that the final property settlement should be 80 per cent to 20 per cent, in favour of the respondent (at [53]). Whilst the adjustment was a large percentage (30 per cent), this was in the context of the appellant’s case at trial where an adjustment of 25 per cent was argued to be appropriate (albeit based upon the appellant’s argument that the contributions assessment should be 60 per cent to 40 per cent, in his favour) and, as the primary judge noted, 30 per cent of the parties’ property represented only around $210,000; a sum less than the appellant’s yearly income (at [54]).
Evidence
Evidence Before The Court
The primary judge made an interim order for the appellant to pay spousal maintenance in the sum of $583 per week (the spousal maintenance rate prescribed by earlier interim orders made on 19 July 2022) until the respondent obtains full-time employment, noting that the respondent was expected to soon qualify as a healthcare professional.APPLICATION TO LEAD EVIDENCE ON THE APPEAL The appellant sought to adduce further evidence on the appeal. As was explained in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [116]:The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. Whilst the discretion requires particular care in parenting cases, parties are generally expected to put their case at trial and are bound by the way in which they run their case at trial (see Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton v Holcombe (1986) 162 CLR 1 at 7–8 and Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). The appellant sought to adduce evidence of his Notice of Assessment for the 2022/23 financial year which became available to him a few weeks before the trial. There was no adequate explanation for the appellant’s failure to produce this evidence at the trial, where a central issue concerned the appellant’s actual earnings. The appellant did not seek to adduce copies of the Individual Tax Return, nor the source documents supporting the preparation of the return. It cannot be said that a Notice of Assessment is definitive evidence of the income of a person in a given year. The appellant also sought leave to adduce evidence that he now holds a limited practicing certificate. The reason for this restriction was not provided. The primary judge had regard to the risk of such a restriction in his reasons (at [48]). On the appellant’s case at trial, he was not operating a practice as a principal but was working as a “consultant”, and therefore not a principal solicitor. The appellant also sought to lead evidence as to a trust account ledger (for monies of the parties that was held on trust at the time of the trial) in order to show that the respondent received slightly less than that contemplated by the primary judge. The respondent makes no complaint and does not cross-appeal. We were not persuaded that the appellant should be permitted to adduce this evidence on appeal and refused leave. It was agreed between the parties that the property located at Suburb J had sold for $910,000, a price less than the valuation relied upon at trial, which we have taken into account when considering the appeal (see CDJ v VAJ at [114]).THE GROUNDS OF APPEAL The appellant relies upon eight grounds of appeal, as set out in his Amended Notice of Appeal filed 22 December 2023.Ground One – Errors in the calculation of the pool
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.