HARRELL & NESLAND
[2016] FamCAFC 122
•13 July 2016
FAMILY COURT OF AUSTRALIA
| HARRELL & NESLAND | [2016] FamCAFC 122 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto relationship – Whether the trial judge failed to provide adequate reasons – Add backs – Contributions – Whether the trial judge failed to consider the non-disclosure of assets – Appeal allowed on the basis of inadequate reasons – Where the appellant submitted that the trial judge also took into account irrelevant matters, erred in the exercise of discretion and made a number of errors of fact – Where, due to the lack of adequate reasons, the Full Court is unable to determine whether the trial judge erred in his exercise of discretion. FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – De facto relationship – Where the trial judge failed to consider and assess s 90SF(3) factors – Where the trial judge erred by taking the appellant’s means-tested pension into account – Where the trial judge failed to give reasons for taking the appellant’s inheritance into account – Where the trial judge failed to identify how he resolved the parties’ competing submissions as to whether the appellant could support herself. |
| Family Law Act 1975 (Cth) ss 72, 75(2), 90SE, 90SF, 90SM |
| A v J (1995) FLC 92-619 Briese & Briese (1986) FLC 91-713 Bennett and Bennett (1991) FLC 92-191 Bevan & Bevan (1995) FLC 92-600 CDJ v VAJ (1998) 197 CLR 172 Chang v Su (2002) FLC 93-117 Cornwell v The Queen (2007) 231 CLR 260 De Winter and De Winter (1979) FLC 90-605 Hunter v Transport Accident Commission (2005) 43 MVR 130 Kimberly Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 Kowaliw and Kowaliw (1981) FLC 91-092 Kuru v New South Wales (2008) 236 CLR 1 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 Moylan v Nutrasweet Co [2000] NSWCA 337 Nesland & Harrell [2015] FamCAFC 208 Oriolo & Oriolo (1985) FLC 91-653 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Robertson & Robertson [2012] FamCAFC 60 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Sun Alliance Insurance Limited v Massoud (1989) VR 8 Vass & Vass (2015) 53 Fam LR 373 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Ms Harrell |
| RESPONDENT: | Mr Nesland |
| FILE NUMBER: | BRC | 6489 | of | 2012 |
| APPEAL NUMBER: | NA | 30 | of | 2015 |
| DATE DELIVERED: | 13 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Cronin JJ |
| HEARING DATE: | 25 November 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 April 2015 |
| LOWER COURT MNC: | [2015] FCCA 732 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms DE Pendergast |
| SOLICITOR FOR THE APPELLANT: | Matthew Love Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk QC |
| SOLICITOR FOR THE RESPONDENT: | Hirst & Co |
Orders
The appeal is allowed.
The orders made by Judge Vasta on 1 April 2015 are set aside.
The matter is remitted to the Federal Circuit Court of Australia to be re-heard before a judge other than Judge Vasta.
The parties are to file with the Appeals Registrar and serve written submissions as to costs within 28 days of this judgment. Further submissions in reply are to be filed with the Appeals Registrar and served within a further 28 days.
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 Harrell & Nesland 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 BRISBANE |
Appeal Number: NA 30 of 2015
File Number: BRC 6489 of 2012
| Ms Harrell |
Appellant
And
| Mr Nesland |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 August 2014, Judge Jarrett declared that the parties to this appeal were in a de facto relationship for a period of about 14 years between approximately October 1997 and June 2011. Consequent upon that declaration, on 1 April 2015 Judge Vasta made property adjustment orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
By the latter orders the appellant is to have transferred to her a jointly-owned unit valued at $670,000 and is to receive $30,000 in cash. She further retains pursuant to the orders a car, furniture, jewellery, cash and legal fees added back. His Honour found the total value of this property to be $235,830. This amount is in error.[i] His Honour found that the net value of the interests in property of the parties was $3,449,681. The orders therefore reflect the appellant receiving about 27 per cent of the property.
The appellant appeals those orders. In addition, the appellant appeals his Honour’s dismissal of her claim for maintenance.
The Amended Notice of Appeal contains 48 grounds. With all due respect, many lack particularity such that they cannot be described accurately as grounds of appeal at all. Others are repetitive. In yet others, we were unable to ascertain the challenge embraced by them. The grounds tended to obscure the appellant’s challenges rather than identify them.
In her written Summary of Argument counsel for the appellant condensed the grounds into eight groups. In oral submissions, however, counsel identified seven challenges but two were subsequently abandoned. As a result, the challenges to his Honour’s orders were grouped as follows:
·Lack of adequate reasons;
·Taking into account irrelevant considerations;
·Error in the exercise of discretion;
·Errors of fact; and
·Attributing disproportionate weight to irrelevant matters.
As the appellant’s oral argument unfolded before us, it became apparent that the central challenge was to the adequacy of his Honour’s reasons.
For reasons shortly to be expanded upon we are of the view that his Honour’s reasons were inadequate in two central respects. First, his Honour did not do justice to the case agitated by the appellant;[ii] that is, that the respondent had failed significantly in his duty of disclosure. We do not consider that it is possible “to identify the basis of the judge’s decision and the extent to which [the applicant’s] arguments had been understood and [rejected]”.[iii] Secondly, his Honour’s consideration of s 90SF(3) was confined to one sentence and the reasons do not at all consider at least six matters raised on the evidence before him by the appellant which, taken together, were highly relevant s 90SF(3) considerations.
We are not persuaded of the merit of the appellant’s remaining challenges. Our reasons for that conclusion are also briefly set out below.
The Appeal Record
An Application in an Appeal filed by the respondent seeking an adjournment of the appeal and the removal of a number of parts of the record was heard and determined by May J on 3 November 2015 (Nesland & Harrell [2015] FamCAFC 208).
We make it clear that, in accordance with her Honour’s orders, we have not had regard to the affidavits the subject of her Honour’s orders nor to any of the material contained in the agreed list of evidence rejected by the trial judge (but which was not identified as such on the copied material within the record).
Inadequate Reasons
The appellant contended that the trial judge gave inadequate reasons in respect of the following issues:
·Add backs;
·Non-disclosure of assets by the respondent;
·Contributions;
·Section 90SF(3) considerations; and
·Spousal maintenance.
The Add Backs and Non-Disclosure Issues
It should be recognised at the outset that the trial judge’s task in dealing with the appellant’s claims for add backs was, with respect, made extremely difficult by the uncertain way in which they were claimed. Different claims, and claims for different amounts, were made in the Outline of Case document, the Amended Application and a document headed “Assets and Liabilities” which was provided to the trial judge at the time of the hearing.
In her written submissions to the trial judge (there were no oral submissions), the appellant provided general submissions as to add backs under the heading “Notional property added back” but did not identify the claims to which the submission referred. There was also a fleeting and general reference to “waste” and to Kowaliw and Kowaliw (1981) FLC 91-092, in which that concept is discussed. However, the submissions did not identify the “waste” or particularise why, by reference either to Kowaliw or other relevant authorities, it should be regarded as such.[iv]
In the list of orders sought by the appellant attached to the written submissions made to the trial judge on her behalf, the appellant sought this order:
9.That the respondent be deemed to have acquired as part of his interest in the property available for distribution the following amounts:-
(a)$31,431. representing funds transferred to [Ms N]; and
(c)$140,030 representing funds transferred from BOQ Account number […]; and
(d)Such other amounts which the Court deems.
(As per the original)
The written submissions dealt further with these two claims although, somewhat perplexingly and unhelpfully, they came under the heading “The right to maintenance”. The reference to Ms N is a reference to the respondent’s current partner and to a payment to her from a company under the control of the respondent through which he runs a business. The second sum specified within the proposed order relates to a payment which the appellant asserted was paid by the respondent to a Mr O, when there was no justifiable basis for the payment.
After finding that it was appropriate to add back the parties’ legal costs, his Honour turned to the claims just referred to and simply said:
35.In my assessment of this pool, I have not made any allowance for the amounts that the applicant seeks as “add-backs”. On my view of the evidence, these amounts were explained sufficiently by the respondent.
(Original emphasis)
The trial judge does not identify the claims for add backs that he was rejecting. The claims are not otherwise referred to in his Honour’s reasons. Importantly, the appellant’s claims in each respect were integrally connected to her claim that the respondent had not complied with his duty of disclosure[v] and that, despite numerous requests by her, his disclosure remained manifestly inadequate. This important issue was not at all referred to by his Honour.
In respect of the amount paid to Ms N, counsel for the appellant took us to the respondent’s evidence given in cross-examination:
Okay. So then we go to the next page. And on 26 June 2013 we have got a transfer to Ms [N] of K64,000. What’s that on account of? --- I wouldn’t – I – you would have to ask her because I – I don’t know. But it could be she transferred some more money out for me or – it could be anything.
Well, it’s money transferred from [Business A] to Ms [N], isn’t it? --- Yes. That’s correct.
So you’re not able to say what that was on account of? --- No, no.
…
Okay. Now, then the next document is, again, an ANZ bank account. This time for [Business A] and - - - ? --- Yes.
- - - you will see that there’s a transfer to you on 26 June 2013 of 64,000 kina.[vi] Do you see that? --- Yes.
Do you recall what that’s for? --- I don’t remember this one because it may have been an approval.[vii]
As can be seen, the respondent accepted that payments were made to Ms N but could not explain their purpose. There was otherwise no evidence by the respondent that could have been accepted by the trial judge in respect of the payments or their purpose.
As to the $140,000 the respondent deposed relevantly:
18.In response to paragraphs 135 – 139 of the Applicant’s Affidavit, I say as follows:
…
b.Most recently, I have been involved in the sale of [Property Y] in [northern Queensland]. The sale of that property was ongoing for a period of 2 to 3 years, and settled in July 2014.
c.I also acted with [Mr O] as buyer’s agent in the sale of the [Property Y], as he held the position of general manager with the [E Group].
…
e.At settlement, Mr [O] and I received a commission of $200,000 by way of two cheques deposited to the account of [Business C in Brisbane]. Of those funds, I withdrew the amount of $140,040 and provided them to Mr [O] as his share of the commission on the sale. I utilised the remaining $60,000 commission I earned for my living and travel expenses.[viii]
The respondent’s evidence as to the payment to Mr O was, of course, capable of being accepted by the trial judge. However, the appellant posited the respondent’s failure to produce documents – both in respect of this particular issue and more generally – as central to a general attack on his credit and the veracity and reliability of his evidence and, in particular, to his evidence in respect of this specific payment.
Moreover, Mr O did not file an affidavit or otherwise give evidence despite the veracity of the payment to him plainly being in issue between the parties. The absence of his evidence is not explained. The respondent did not produce any documents evidencing his or Mr O’s entitlement to that amount of, or any, commission or any other documents relating to the sale that might establish or corroborate any such claim.
The respondent submits before us that as the sum of $140,000 had been considered and rejected as an “add back”, there was no need for the trial judge to make a specific reference to non-disclosure because the appellant cannot have it “both ways”. We understand this submission to be that, as there was sufficient evidence before the court for it to consider and to reject the sum as an add back, the transaction must have been sufficiently disclosed. In our view, this submission begs the question rather than answers it; the analysis of the evidence so as to arrive at such a conclusion is absent from his Honour’s reasons. Further, that argument ignores the appellant’s cogent contentions as to the respondent’s failure to produce information and documents which his duty to the court required him to produce.
The written submissions on behalf of the appellant to the trial judge raised specific and acute issues in that respect. For example:
46.The extent of the Respondent’s non-disclosure in this matter is so exceptionally broad that it is open for the Court to make the finding that the Respondent has deliberately attempted to evade disclosure of his financial position and circumstances. For example:-
a.The Applicant has at paragraphs 132 to 134 of her affidavit filed 23 February 2015 deposed to attempts to obtain cheque stubbs in relations to the Papua New Guinea Bank accounts and that she was advised by the Respondent’s legal representatives that he had not retained the business cheque butts (see annexure PH 22.) The bank statements for those accounts, which relate to the use of the sale proceeds from [Business F, located in Papua New Guinea (“Business F”)], are unintelligible in the absence of those cheque butts. However in her evidence, [Ms N], the bookkeeper for the business, deposed quite clearly that she held such records and had prepared her own evidence by reference to those same cheque stubbs;
b.On 13 October 2014 the Respondent filed a Financial Statement which was misleading and he subsequently failed to correct those matters being:-
i. Understatement of his income;
ii. Failing to disclose the existence of various shares and subsequent disposal of shares;
iii. Amounts paid to his partner [Ms N] were not disclosed.
c.The Respondent failed to disclose in his affidavits the existence and subsequent disposal of shares including:-
i. Westpac shares totaling $143,848.23;
ii. ANZ Shares totaling $157,711.45;
d.Until his affidavit in Reply filed 5 March 2015 the Respondent failed to disclose a transaction wherein $200,000 was removed from the accounts of [Business D], and that of those funds $60,000 was expended on overseas travel and living expenditure (see par. 18 e) and he further purports that $140,000 of those funds were transferred to a person he describes as “[Mr O]”. Only when those transactions were raised by the Applicant did the Respondent provide this explanation however there remains no disclosure of any documents in relation to this purported business venture. It is open for the Court to find that the amount of $140,000 remains in the control of the Respondent.
e.The Respondent confirmed in cross examination that the funds utilized to purchase the [Business B] rent roll were sourced from an undisclosed term deposit in the amount of 400,000 kina. He was unable to give any meaningful account as to why he failed to make disclosure of the term deposit and further, as to why the transaction appeared on the bank records as “loan funding”.
f.The respondent in cross examination was unable to identify by reference to any disclosed material the sources of the payment of the balance of settlement funds on the purchase fo the [Business B] rent roll.
(As per the original)
The trial judge did not refer to these submissions in any way, including the specific assertions pertaining to the payments to Ms N and to Mr O. His Honour’s reasons do not refer to non-disclosure at all. In our view, that leads almost inexorably to the conclusion that his Honour did not consider that issue. If, contrary to that conclusion, his Honour did in fact consider those submissions and the evidence supporting them, it is impossible to determine from the reasons how and why the evidence and submissions based on that evidence were rejected.
The parties and this Court have been deprived of an explanation as to why the respondent’s case on this issue has been preferred to that of the appellant, and “justice is not seen to have been done”.[ix] While “a judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue”,[x] the reasons must nevertheless “do justice to the issues posed by the parties’ cases”.[xi]
Here, we are unable to discern why, or how, the case advanced by the appellant was rejected. It was in our view a case well founded on the absence of evidence and referenced to well-settled principles relating to the duty of disclosure. In our respectful view the trial judge’s reasons were plainly inadequate in respect of this central issue and the appeal should succeed on that basis.
It has been said that “[i]n some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge”.[xii] Here, however, as will be plain from what we have already said, the inadequacy of reasons is directly relevant to a central credit issue.
The section 90SF(3) considerations
The trial judge’s treatment of the factors to be considered under s 90SF(3) was cursory. As we have already said, it consisted of one sentence contained within [55] of the reasons:
55.On my calculations, this is an amount of $235,830.00 rounded up. This would leave her with a total of $626,670.00. To my mind there should be adjustment made to reflect the disparity in assets and all the other factors pursuant to s.90SF(3). In my view this should see the applicant with a sum that totals a further $700,000.00, rather than the $626,670.00, once those items that she would be keeping in any event are discounted.
(Emphasis added)
In discussing separately the appellant’s claim for spousal maintenance the trial judge said:
62.The applicant is in receipt of a pension and does have an inheritance from her late parent. Even though she is now aged 67, she is still able to work – she just chooses not to do so because she feels that she has earned the right to retire.
63.She candidly admitted that any financial problems she may now have are solely caused by her pursuit of the respondent in the present application. I cannot see how it can be said that she cannot support herself.
Although referring specifically to the appellant’s claim for maintenance, we would not infer that his Honour did not take these findings into account when considering the role of s 90SF(3) within the property division.
The appellant submitted to the trial judge that the following factors were relevant to his Honour’s determination of property adjustment orders that were just and equitable by reference to s 90SF(3):
·The considerable disparity in the income, earning capacity and financial resources of the parties significantly advantaged the respondent;
·The appellant’s eligibility for a pension was to be disregarded for the purpose of the proceedings;
·The appellant had lived in the H property in Brisbane, which she regarded as her home, since 2011. She had paid the upkeep of that unit since May 2012;
·If an order were made for the appellant to receive the property in which she lived plus further property or funds, she could use interest or rent to assist her in meeting her living expenses;
·The appellant was beyond middle age with skills that were not transferrable. She would not, due to her age and skills, be suitable for re-training; and
·The parties had enjoyed a high standard of living during the course of the relationship. At the time of the hearing the respondent was a wealthy man enjoying a significantly better standard of living than the appellant.
Obviously enough, the trial judge was not obliged to accept that these considerations raised by the appellant required an adjustment of the property division in her favour. His Honour was, however, obliged to consider and assess the relevant considerations, albeit that, if adequate, that consideration could be brief.[xiii]
The failure to do so at all speaks both of an inadequacy of reasons and a failure to take account of relevant considerations. On either account, appealable error is established.
The contributions issue
The appellant submits that his Honour does not refer in the reasons either to her contribution as a homemaker or her contribution to the purchase of the respondent’s business (“Business C”) at Suburb L in Brisbane. The latter contribution is indirect; the appellant contends her contribution was by way of making available real property co-owned with the respondent as security for the borrowings to enable the purchase to take place. The appellant submitted that in the absence of reasons it cannot be known whether the trial judge took these matters into account.
The trial judge said:
12.Whilst I accept that there was some financial interaction, it seems to me that it was somewhat limited. The applicant gave the respondent $110,000 so that he did not have to seek some bridging finance when he was to purchase a boat. The applicant and respondent jointly purchased [Property H] in Brisbane, [Property G] in New Zealand and [Business C] in [Suburb L] (though this latter purchase is more properly categorised as the Applicant being a shareholder of the trust that purchased and now owns the business).
13.Notwithstanding that those assets were jointly owned and meant that there was joint borrowings, it was the respondent who shielded the applicant from any financial liabilities in relation to those acquisitions. It was only the respondent who made mortgage payments or the income of [Business F] that ensured that payments were made. The applicant has not expended any money on either the acquisition of assets or the servicing of the resultant debts, except for the use of her $110,000.
14.One of the further illustrations of the “habit” that the applicant and respondent had formed was that the applicant cooked meals every night for the respondent notwithstanding the fact that they did not eat their evening meals together. The applicant also would make meals and freeze them for the respondent if she was required to be away overnight. The applicant also cut the respondent’s toenails because he has an arm injury that prevented him from doing so.
The trial judge went on to find that the asset pool had grown significantly since the commencement of the relationship and that the reason for that growth was one of the respondent’s businesses, Business F. His Honour said:
41. There is no doubt, however, that in the years in which this relationship occurred, that the business grew to become significantly larger than it was when the relationship first began.
42.The applicant contends that she should be seen as making an equal contribution to that growth. In keeping with the findings I have already made about the nature of the relationship that existed, I cannot accede to that view.
The trial judge did not refer to property in which the appellant was a joint owner being used as security for the respondent’s borrowing to purchase Business C. Importantly, however, the properties used for security, although jointly owned, had been purchased entirely with the respondent’s funds. The appellant’s agreement to use the jointly owned property was, undoubtedly, an indirect contribution by her. We would not infer that, merely because it was not mentioned, this contribution was not taken into account by the trial judge; in the particular circumstances of this case, that indirect contribution cannot be seen to have real significance. As the authorities to which we have earlier referred make clear, a trial judge’s reasons are not rendered inadequate merely because not every piece of evidence or every fact is referred to. That is, of course, all the more true when the omitted facts or circumstances can be seen to have properly had little bearing on the ultimate result.
In relation to the challenge pertaining to the appellant’s contribution as a homemaker, in addition to the paragraphs of the reasons earlier quoted, his Honour said (at [8]):
…By moving in with the applicant, he acquired a stability through which he was able to concentrate his energies on making his business an even stronger one. He did not have to pay any rent and despite some minor payments, was supported by the applicant in a not insubstantial way until around 2008.
The trial judge clearly referred to and took into account the contribution made by the appellant as a homemaker and was aware of its importance.
This aspect of the challenge fails.
The Spousal Maintenance Challenge
The provisions of the Act pertaining to “spousal” maintenance in de facto relationships are, in their material particulars, identical to those provisions pertaining to spousal maintenance in marriages.[xiv] Equally, the fundamental principles enunciated, for example, in Bevan and Bevan[xv] are analogously applicable to maintenance claims arising from de facto relationships.
In particular, one party’s obligation to maintain the other arises “only if” the latter is “unable to support himself or herself adequately” by reason of any or all of three prescribed reasons – relevantly, by reason of “age or physical or mental incapacity for appropriate gainful employment” or “any other adequate reason”.[xvi] His Honour concluded that the appellant had failed to satisfy this fundamental requirement. His Honour said that he “cannot see how it can be said that she cannot support herself”.[xvii]
We have earlier referred to his Honour’s key findings in relation to spousal maintenance. We have also earlier referred to his Honour not considering what we consider to be relevant considerations prescribed by s 90SF(3).
At [62] of the reasons earlier quoted, the trial judge clearly appears to take into account the pension received by the appellant as income received by her. The evidence of the 67-year-old appellant, apparently unchallenged, was that she is in receipt of the “Aged Pension and Pension Supplement”. Neither party contended that this pension was not subject to both an income test and an asset test under s 1064 of the Social Security Act 1991 (Cth). As such it was to be disregarded on an application for spousal maintenance.[xviii]
The trial judge does not identify the amount of the inheritance he regarded as relevant or how it was relevant to the claim for maintenance. At the time of the hearing, other than for her car, jewellery, furniture, and assets held jointly with the respondent, the appellant’s assets were three bank accounts which contained $1,082.73, $30,977.63, and $2,825.74 respectively. She deposed to receiving $65.00 per week in interest. There is no finding that the funds in some or all of these bank accounts came from the inheritance. It is by no means clear to us how the receipt of the inheritance in an unspecified amount informed the trial judge’s conclusion that the appellant was able to support herself adequately.
The respondent’s submission was that the appellant had many skills and was in good health. He pointed to the failure of the appellant to attempt to return to employment since May 2012 and submitted that she had failed to prove that she did not have the capacity to obtain employment that would meet her reasonable expenses. The appellant submitted to the trial judge that due to her age she would find it difficult to obtain employment similar to that which she had engaged in for most of her working life. At the time of the hearing she was earning $25 per hour as a casual cleaner.
We are, with respect, somewhat perplexed by his Honour’s finding earlier quoted that “[e]ven though she is now aged 67, she is still able to work – she just chooses not to do so because she feels that she has earned the right to retire”. That is particularly so in light of the fact that we are unable to see any findings as to the type of work of which it is said the appellant was then capable of or how and when the 67-year-old appellant might obtain such work. In that regard, there is, in addition, an absence of findings as to the “commitments of [the appellant] that are necessary to enable [her] to support [herself]”[xix] and, concomitantly, in what way and to what extent the appellant would be able to meet those expenses from whatever employment the appellant might be able to find. His Honour did not say what that job was likely to be or could be or what income she was likely to earn from it.[xx]
We do not consider that his Honour’s reasons are adequate to explain how he resolved the competing contentions of the parties and we consider that his Honour failed to take account of the relevant considerations to which we have referred.
In either and both respects appealable error is, in our view, established.
Mistakes of fact
The appellant’s written submissions as to errors of fact are as follows:
25.In reaching his decision in this matter the Appellant submits that the Trial Judge made a number of errors of fact. Those errors of facts are outlined in the Amended Grounds of Appeal at 13 – 19.
26.The Appellant says that those errors together with the other matters stipulated in the grounds of appeal lead the Trial Judge to make orders that were manifestly unjust.[xxi]
The appellant’s contentions were not further elucidated in oral submissions; we were merely referred to the written submissions. With great respect, the submissions are completely unhelpful.
Whilst Grounds 13 to 19 of the Amended Notice of Appeal identify the mistakes of fact said to have been made, the submissions do not identify why or how the findings are erroneous. Additionally, and importantly, the submissions do not identify the materiality of the suggested errors to the ultimate findings of fact and exercises of discretion.[xxii]
Even if it was the role of this Court to trawl through the evidence for itself so as to satisfy itself as either or both of those matters – which it is not – we are mindful that remitter is necessary and that many factual matters are the subject of competing assertions as to veracity or reliability.
We have not been persuaded of any material error of fact.
The Appellant’s Additional Challenges
In addition to the matters already discussed, the appellant asserts that his Honour erred by taking account of irrelevant considerations and challenges attributions of weight by his Honour and asserts that his Honour’s exercise of discretion is “plainly wrong”.[xxiii]
We have already indicated that we will allow the appeal. We are conscious of what has fallen from the High Court in respect of dealing with all challenges forming the subject of an appeal.[xxiv] Here, the relevant challenges (referenced to poorly particularised grounds) are to weight and the exercise of “a very wide discretion”. Those same principles suggest that those issues are better left for the rehearing.
A particular difficulty in this case is that, with respect, due to the inadequate reasons of the trial judge, findings critical to the exercise of that discretion have not been made.
In addition, as will soon be clear, for similar reasons we consider that this matter must be remitted for rehearing and we are reluctant to comment on matters relevant to the exercise of discretion when findings about many of the matters founding the exercise of that discretion are yet to be made.
Conclusion
We have found merit in the appeal.
The orders made by the trial judge should be set aside.
We repeat, as we have done in many cases, that we are acutely conscious of the time, expense and emotional toll of remitting a successful appeal for rehearing. However, issues both of principle and pragmatics render us unable to re-exercise the relevant discretions for ourselves.[xxv]
Remitter is, unfortunately for the parties, the only realistic option available to us.
Costs
The parties informed the Court that the issue of costs should be dealt with on the basis of written submissions after judgment, primarily because there was an appeal pending from a separate decision of the trial judge as to the costs of the proceedings before him, which made it difficult for costs to be dealt with at this hearing.
We will make directions for the filing of such submissions.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Cronin JJ) delivered on 13 July 2016.
Associate:
Date: 13 July 2016
[i] Order 6 provides that the appellant bears responsibility for the liability in her name. That is listed by his Honour at [33] as $3,416.43. The correct (rounded) total received by the appellant is $232,400. The orders refer to the appellant retaining “[h]er interests in superannuation as at the date of [the] orders” and “[t]he inheritance received by [her] from her father’s estate”. No mention of either is made in the reasons, nor how the latter might otherwise be represented in the parties’ property listed by his Honour at [33]-[34].
[ii] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
[iii] Pollard (above), at [59], citing McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 279.
[iv] Noting that, while always a matter of discretion for the trial judge, add backs are “the exception rather than the rule” because, among other reasons, parties are entitled to get on with their post-separation lives (See C & C [1998] FamCA 143 at [46]).
[v] Federal Circuit Court Rules 2001 (Cth) r 24.03. See also, for example, Briese & Briese (1986) FLC 91-713; Chang v Su (2002) FLC 93-117; Oriolo & Oriolo (1985) FLC 91-653.
[vi] Accepted as approximately AUD $31,431.
[vii] Transcript of proceedings, 11 March 2015, pp 208 and 228.
[viii] Affidavit of the respondent filed 5 March 2015.
[ix] See Bennett and Bennett (1991) FLC 92-191 at 78,266, citing Gray J in Sun Alliance Insurance Limited v Massoud (1989) VR 8 at 18.
[x] Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at 464 (per Gleeson CJ, McHugh and Gummow JJ). See also, for example, A v J (1995) FLC 92-619 at 82,232.
[xi] Pollard (above), at [59]-[61], per McColl JA (Ipp JA and Bryson AJA agreeing) quoting, inter alia, Moylan v Nutrasweet Co [2000] NSWCA 337 at [61].
[xii] Pollard (above) at [67], citing Hunter v Transport Accident Commission (2005) 43 MVR 130 at [37], per Nettle JA.
[xiii] See, for example, Robertson & Robertson [2012] FamCAFC 60 at [42].
[xiv] Compare ss 90SE and 90SF with ss 72 and 75 of the Act.
[xv] (1995) FLC 92-600 at 81,981-81,982.
[xvi] Section 90SF(1)(b)(ii) and (iii) of the Act.
[xvii] Reasons, [63].
[xviii] Section 90SF(4) of the Act.
[xix] Section 90SF(3)(d) of the Act.
[xx] Section 90SF(3)(b) of the Act.
[xxi]Appellant’s Amended Summary of Argument filed 8 October 2015.
[xxii]See, for example, De Winter and De Winter (1979) FLC 90-605.
[xxiii] CDJ v VAJ (1998) 197 CLR 172, at 231 per Kirby J.
[xxiv] See, for example, Kimberly Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274; Cornwell v The Queen (2007) 231 CLR 260 at 301; Kuru v New South Wales (2008) 236 CLR 1 at 6.
[xxv] See, for example, Vass & Vass (2015) 53 Fam LR 373 at [147]-[149].