Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Greer & Shui (No 2) [2023] FedCFamC1A 8
Appeal from: Shui & Greer [2022] FCWA 176 Appeal number: NAA 221 of 2022 File number: PTW 4762 of 2015 Judgment of: ALDRIDGE, RIETHMULLER & CAMPTON JJ Date of judgment: 31 January 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against final property orders made on an undefended basis against the appellant – Where the respondent conceded the appeal – Error established – Appeal allowed – Where the parties both sought that the Court re-exercise discretion pursuant to s 79 of the Family Law Act 1975 (Cth) – Where it is appropriate in the circumstances for the Court to re-exercise discretion – Further order made by consent for the respondent to pay the appellant an additional $200,000 – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) s 79
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Bhatnagar & Riju [2018] FamCAFC 144
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Number of paragraphs: 22 Date of hearing: 31 January 2023 Place: Sydney (via videolink) Counsel for the Appellant: Ms Anderson Solicitor for the Appellant: Kerr Fels Counsel for the Respondent: Dr Smith Solicitor for the Respondent: O’Sullivan Davies Lawyers ORDERS
NAA 221 of 2022
PTW 4762 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: Ms GREER
Appellant
AND: Mr SHUI
Respondent
order made by:
ALDRIDGE, RIETHMULLER & CAMPTON JJ
DATE OF ORDER:
31 JANUARY 2023
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.By consent, notwithstanding any other order in the orders dated 16 September 2022 (as amended on 19 September 2022 pursuant to the Slip Rule) and without limiting the operation of those orders, the respondent husband pay to the appellant wife the further sum of $200,000 within 14 days of the making of these orders, with such sum to be paid to the trust account of the solicitors for the appellant wife.
3.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of
section 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 her in relation to this appeal.
4.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 that Act to the respondent in respect of the costs incurred by him in relation to this appeal.
Note: The form of the order is subject to the entry in the…
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- Greer & Shui (No 2) [2023] FedCFamC1A 8
- Case
- [2023] FedCFamC1A 8
- Decision Date
CaseChat Overview and Summary
In the case of Greer & Shui (No 2), the appeal was brought before the court to re-exercise a discretion under s 79 of the Family Law Act 1975 (Cth) regarding the adjustment of property between the parties. The parties, who had been married and later divorced, had a lengthy history of litigation concerning their children and property. Specifically, the dispute centered on the valuation and distribution of a property acquired by the husband prior to their separation. The wife argued that the primary judge had erred in finding that her contribution to the property was nil and that there was no causal link between her contributions and the property's acquisition, preservation, or maintenance.
The legal issue before the court was whether the primary judge had erred in his assessment of the wife's contributions to the property and, if so, whether an additional payment to the wife from the husband was warranted under s 79 of the Act. The husband conceded that the primary judge's findings on this point were erroneous, leading the court to focus on the appropriate exercise of its discretion to adjust property between the parties. The court considered the broad discretion afforded to it under s 79 and the long-standing nature of the proceedings, which had significantly impacted both parties' lives.
The court found that the appeal should be allowed, and the discretion should be re-exercised in accordance with the parties' agreement. The wife was to receive an additional payment of $200,000 from the husband, which both parties considered to be within the court's discretion. The court emphasized the importance of allowing the parties to move on with their lives and ordered that the appeal be successful. The court also ordered that each party bear their own costs of the appeal.
The legal issue before the court was whether the primary judge had erred in his assessment of the wife's contributions to the property and, if so, whether an additional payment to the wife from the husband was warranted under s 79 of the Act. The husband conceded that the primary judge's findings on this point were erroneous, leading the court to focus on the appropriate exercise of its discretion to adjust property between the parties. The court considered the broad discretion afforded to it under s 79 and the long-standing nature of the proceedings, which had significantly impacted both parties' lives.
The court found that the appeal should be allowed, and the discretion should be re-exercised in accordance with the parties' agreement. The wife was to receive an additional payment of $200,000 from the husband, which both parties considered to be within the court's discretion. The court emphasized the importance of allowing the parties to move on with their lives and ordered that the appeal be successful. The court also ordered that each party bear their own costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, I am satisfied that it is appropriate that the appeal be allowed, as was conceded by the husband, and that on a re-exercise of discretion an additional s 79 order be made as sought by the parties.Short background So as to understand the issues in the appeal, a short background of the matter is necessary. The parties commenced living together in 1994 and were married in 1995. They separated in late 2013 or early 2014 and were divorced in 2016. They had four children together. At separation, the eldest of the four children was 12 and the youngest was six years old. By the time of the trial, the eldest child was 19 and the youngest was 14 years old. Broadly speaking, between separation and 2018 (being for a period of about four years), the children lived with the wife and spent limited time with the husband. Since 2018, all four of the children have generally lived with the husband and spent limited time with the wife. The litigation was commenced by the husband on 19 August 2015 as to parenting matters only. He joined property matters to the proceedings on 15 September 2016. On 23 September 2015, being after separation but before commencing property proceedings, the husband purchased the Suburb C property jointly with his then-partner for $3.6 million. Approximately $3.8 million was sourced by way of a loan from Westpac Banking Corporation (secured on an investment property owned by the husband’s mother) to fund the acquisition, including stamp duty. After separation, the wife repartnered with her now husband. They have twin children born in 2016. In mid-2018 the wife relocated to the United Kingdom with her now husband and their two children. They have lived in the United Kingdom since that time, save for a period of about 10 months in 2020. On 26 November 2021, orders were made by the primary judge dismissing the wife’s Amended Response to an Initiating Application filed on 10 October 2019 (and any other outstanding application or response filed by her in the proceedings), and permitting the husband leave to proceed with his application for the adjustment of property on an undefended basis. That undefended hearing was conducted on 14 February 2022.The grounds of appeal The wife agitated seven grounds in her in her Further Amended Notice of Appeal. The husband conceded the appeal on the basis that Ground 3 has merit, and hence it is only necessary that I deal with this ground. Ground 3 records as follows:3.The [primary judge] erred in variously finding that the [wife’s] contribution to the [Suburb C] property was “nil” [214], that no contribution has been made by her “to the acquisition preservation or maintenance of the property since its acquisition” [213], that “the husband has accepted the entirety of the responsibility for the meeting of the costs of and associated with the same” [213], and that there is no “causal link by reason of contribution under any of the permitted hearings in s.79(4) of the Act” [56].(As per the original)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The ground as to appealable error is established.Conclusion Each party seeks that this Court re-exercise the s 79 discretion so as to finally and completely dispose of the property adjustment dispute. By way of the Minute of Consent Orders filed on 10 January 2023, the parties proposed that such re-exercise take the following form:2. Notwithstanding any other order in the orders dated 16 September 2022 (as amended on 19 September 2022 pursuant to the slip rule) and without limiting the operation of those orders, the [husband] pay to the [wife] the further sum of $200,000 within 14 days of the making of these orders, with such sum to be paid to the trust account of the solicitors for the [wife]. As was identified by the High Court in Harris v Caladine (1991) 172 CLR 84, in circumstances where the Court is adequately informed and where each party is properly represented, as is the case here, little more than consent may be needed to establish that the requirements of s 79 of the Act had been met in making the proposed consent orders in the re-exercise of discretion. Except for those relating to the wife’s contributions to the Suburb C property, neither party seeks to challenge the findings of the primary judge on any re-exercise of discretion by this Court. They both contend that an additional payment of $200,000 to the wife from the husband falls within the broad range of discretion afforded to this Court by s 79 of the Act. These proceedings are long-standing, and the parties have now been separated for a long period of time. It is appropriate that they be afforded the opportunity to move on with their lives. In all of the circumstances, I am satisfied that the appeal should be allowed and that an order should be made as sought by the parties re-exercising the Court’s s 79 discretion, and hence finally disposing of the property adjustment proceedings between them. The conceded appeal is successful after a hearing on a question of law. It is appropriate that the Court provide to each of the wife and the husband costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal.Aldridge J: I agree with the orders proposed by Campton J for the reasons he has given.Riethmuller J: I too agree with the orders proposed by Campton J for the reasons he has given.
Ratio Decidendi
Legal Principle Established
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