Janzen & Naish (No 2)
[2024] FedCFamC2F 607
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janzen & Naish (No 2) [2024] FedCFamC2F 607
File number(s): CAC 119 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 16 May 2024 Catchwords: FAMILY LAW - PRACTICE & PROCEDURE – supplementary reasons regarding whether to re-open or not to re-open (that is the question) – arithmetical errors in Husband’s balance sheet used by the Court in judgment but which were not brought to Court’s attention until later Directions Hearing post-judgment – judgment not “perfected” – considerations regarding use of “slip-rule” compared to re-opening – evidence re-opened on Court’s own motion to correct inadvertent error and to admit evidence of which the Court was unaware at the time of preparing judgment – parties provided written submissions regarding re-opening – later agreed balance sheets from each party admitted into evidence – no need to re-visit or re-consider findings by the Court on the evidence at trial. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 10.4; rr.10.13, 10.14 Cases cited: Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300
Burrell v The Queen (2008) 238 CLR 218
De L v Director-General, NSW Department of Community Services (No.2) (1997) 190 CLR 207
Dickons v Dickons (2014) 50 Fam LR 244
DJL v Central Authority (2000) 201 CLR 226
Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355
FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097
Janzen & Naish [2024] FedCFamC2F 309
Janzen & Naish [2024] FedCFamC1A 75
Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147
L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590
Smith v NSW Bar Association (1992) 176 CLR 256
Division: Division 2 Family Law Number of paragraphs: 82 Date of hearing: 23 April 2024
8 May 2024 (last submissions)Place: Canberra Solicitors for the Applicant C Law Firm Solicitors for the Respondent Robinson + McGuinness Family Law ORDERS
CAC 119 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JANZEN
ApplicantAND: MR NAISH
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.The evidence be reopened for the purpose of
(a)admitting into evidence the November 2023 balance sheets of the parties,
(b)assigning Exhibit numbers respectively, AW1 and RH1, and
(c)annexing those Exhibits to these reasons.
2.Exhibit RH1 be substituted for the balance sheet set out at paragraph [202] of the principal reasons of 14th March 2024.
3.Pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the final percentage figure at paragraph [213] of the principal reasons of 14th March 2024 be amended to 37% to the Wife, and 63% to the Husband.
AND IT IS NOTED THAT these Orders have been amended pursuant to Rule 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
What follows are supplementary reasons to those that were published by the Court on 14th March 2024 (“the March Orders”) in relation to parenting and property matters. There are, apparently, no issues or contentions regarding the parenting reasons or Orders. There are now formalised contentions, by way of appeal, regarding the property Orders, namely Orders 3 and 5. Further iterations of grounds of appeal regarding property continue to be filed.
Order 3 of the March Orders provided:
Within 30 days of the date of these Orders, the parties are to provide a consent Minute that reflects the Court’s findings and the procedural course regarding (a) the sale of one of the Husband’s properties (and the mechanics of the sale), and (b) the dollar amount payable to the Wife from the net proceeds of sale in accordance with the “just and equitable” percentages determined by the Court.
Order 5 of the same Orders provided:
Within 45 days, the Wife’s lawyers are to pay 70% of the Husband’s costs, either as agreed or taxed.
AND IT IS NOTED THAT the Father has paid legal costs in the order of approximately $180,000; 70% of that sum is $126,000. If the lawyers agree on that sum so as to avoid a taxation, a more specific Order may be made in Chambers.
For reasons set out below, Order 3 has now been fulfilled, but which is the subject of further grounds of appeal in the light of Austin J’s decision of 7th May 2024, in which his Honour, among other things, (i) noted the anomalous nature of the appeal (in part because the interests of the Wife and her lawyers do not totally align but both seek appellate review, the latter in relation to a personal costs Order against the Wife’s lawyers who are not otherwise parties to the proceeding);[1] (ii) summarily dismissed Grounds 1-6 inclusive of the original Notice of Appeal (filed 11th April 2024); and (iii) allowed the Second Appellant (the Wife’s lawyers) to file and serve an Amended Notice of Appeal by 10th May 2024.[2]
[1] His Honour also noted that “alignment” of interests was not the only issue, recording, at [6] of his reasons, that the interests of the Wife and her lawyers could be in “direct conflict if the issue ultimately devolves to which of them should bear liability for the Husband’s costs.” It would appear that his Honour was not apprised of the “special costs arrangement” whereby the Wife’s costs, certainly at trial, and perhaps likely on appeal, were being paid for by her employer.
[2] See Janzen & Naish [2024] FedCFamC1A 75.
At [12] and [13] of his reasons,[3] Austin J stated:
The wife’s first appeal, filed on 11 April 2024, is incompetent and is amenable to summary dismissal pursuant to the power enshrined in the FCFCA Act (s 46(2)), which power may be exercised by a single judge exercising appellate jurisdiction (s 32(3) and s 32(5)).
The solicitors belatedly realised the problems besetting the first appeal and now wish to file an Amended Notice of Appeal substituting themselves as the sole appellants, bringing a challenge to only Order 5 made on 14 March 2024. Orders are made allowing them a short period of time within which to do so, in default of which the first appeal is entirely dismissed. They are now out of time to file a fresh appeal and would require the grant of leave to do so.
[3] Janzen & Naish [2024] FedCFamC1A 75
Having found themselves out of time, as noted by Austin J, the Wife’s lawyers have filed further Grounds of Appeal, consequent upon the Court making Orders pursuant to the Court’s original Order 3 on 24th April 2024, curiously by consent.
These reasons, broadly stated, relate to issues concerning “the balance sheet”, which have only recently been raised with the Court. As outlined for the first time at the extended Directions Hearing on 23rd April 2024, in effect, there were three, albeit overlapping, areas of discussion, namely (a) were the parties’ accumulation superannuation funds included (or intended to be included) in the balance sheet; (b) were there any (or various) alleged arithmetic errors in the balance sheet used by the Court; and (c) did the Court incorrectly/inadvertently use the wrong balance sheet in its reasons for judgment.
There were two balance sheets provided to the Court for the Final Hearing in early November 2023. They were contained in the respective Case Outlines of each party. For useful and important context and much else, set out below are extracts from the Transcript from the Final Hearing, which began on 1st November 2023, regarding the limited issues raised with the Court at that time regarding “the balance sheet.” Ultimately, there was no agreement regarding it. Nor were any Orders sought, or made, to provide the Court, post-hearing, with some other (agreed or not) balance sheet(s).
Background & context: The “balance sheet” at trial: Counsels’ comments
On the first morning of the trial, there was the following exchange with Counsel for the Husband (emphasis added):[4]
MR HOWARD: … So those are two [parenting] concessions that my client has made. Otherwise, he continues to press for an equal-time arrangement with equal shared parental responsibility. In relation to property, we only had the opportunity for a brief discussion, because the majority of our time was spent talking about the parenting. In relation to the property, it might be helpful to your Honour just to go through some of the – what seemed to be just a few balance sheet issues, and workout – we haven’t yet had a conversation about which ones are in and which ones are out, but I can perhaps assist you with most of it, because also in my friends’ hands. I didn’t mean to take the centre stage, but no one else is standing, so ‑ ‑ ‑
HIS HONOUR: Could I suggest that maybe rather than go through those now, that perhaps there can be some further discussions ‑ ‑ ‑
MR HOWARD: Certainly, that’s ‑ ‑ ‑
MS ABDELRAHEEM: Yes.
HIS HONOUR: ‑ ‑ ‑ over lunch ‑ ‑ ‑
MR HOWARD: I’m content with that as well.
HIS HONOUR: ‑ ‑ ‑ regarding property.
MR HOWARD: I’m content with that as well, but can I just say that there are two proposed add-backs by the wife that, to my surprise, I read about for the first time in a case outline, because there’s no evidence on either side about the proposed add-backs. So that’s an unusual, at the very least, circumstance, and will mean that there will need to be oral evidence about that if it has been pressed…
[4] T 10-11
On day two of the trial (2nd November 2023), there were the following discussions regarding the state of the balance sheet (emphasis added):[5]
HIS HONOUR: I’m just wondering: should – would it be best to have a slightly earlier break now so that any discussions between the mother and her lawyers can take place, and then anything further that needs to be said or questions, or clarifications, that they can occur before the father goes in the witness box.
MS ABDELRAHEEM: I would appreciate that, your Honour. I would – and we’re – there’s also – my learned friend and I have had – started to have discussions about a balance sheet. I haven’t had the opportunity to review a draft that my friend prepared. I just need to have a look at it and obtain instructions. So we may need quite some time. Not quite some time as in all day, but as in probably an hour to deal with those issues.
MR HOWARD: The differences in the pool, the – as I understand it, are only an $800 difference in the value of a car and a $5000 difference in relation to an – the balance of the wife’s bank accounts and add-backs which are not agreed. So I certainly don’t think we need very long in relation to the balance sheet.
HIS HONOUR: I think what we will ‑ ‑ ‑
MS ABDELRAHEEM: Well, I haven’t had a chance to look at it.
HIS HONOUR: No.
MS ABDELRAHEEM: Yes.
HIS HONOUR: I know. You’ve told me. What we will do is that we will aim to resume at 11.15. Any discussions regarding the balance sheet can be done over the lunch break.
[5] T 114. The Husband was shown a copy of the balance sheet from his Case Outline (see T 120), which related to him having purchased, and disclosed, a car for his Mother, thus not directly relevant to matters here.
Finally, on day three of the hearing (3rd November 2023), there was the following, ongoing discussion (emphasis added):[6]
[6] T 187
HIS HONOUR: So, the throng keeps growing on one side in the back, but anyway, are there any advances on the balance sheet, like where are we there?
MR HOWARD: I think other than – sorry, my understanding was there’s only two items that are not agreed and they are so close as to be not worth having a debate about. One is a car where we’re $800 apart onto the value and the other is the wife’s bank statements – and I admit I haven’t seen the updated bank statements that might show that the amount that we’ve got, which is about $5000 apart, on the two parties’ balance sheets.
So, they’re the only issues that I’m able to identify as being differences in the balance sheet, unless my friend tells me otherwise, and obviously there’s agreement about the family law value of the [Super Fund 1], but there’s not agreement about it being included in the balance sheet, so that’s a different issue though. So, other than that, I’m not aware of any, unless my friend tells me to the contrary, in which case providing – all I need is some updated statements to show the balances as per – and that will be – as per their numbers and that should be easily resolved.
HIS HONOUR: But there’s still a contest over the add-backs?
MR HOWARD: Sorry. There’s also a contest about the add-backs, of course, yes. Sorry.
HIS HONOUR: Right. But, again, they’re not monumental sums.
MR HOWARD: No.
HIS HONOUR: Ms Abdelraheem, what’s the story?
MS ABDELRAHEEM: My learned friend is correct. There’s only a couple of items that are in dispute.
HIS HONOUR: They were in dispute yesterday, I thought I was going to be told about after lunch and we’re, you know, day 3.
MS ABDELRAHEEM: It’s really just the wife’s bank accounts, but I’m instructed that we have provided the up-to-date bank statements.
MR HOWARD: I will look at them before lunch, your Honour.
HIS HONOUR: Excellent. Okay. So, any other issues on the balance sheet?
MS ABDELRAHEEM: No, your Honour.
HIS HONOUR: Right. Well, hopefully that that will then be just simply a matter of submissions.
Before and after lunch on day three of the trial, there was the following “update” (emphasis added):[7]
[7] T 240-241
HIS HONOUR: So we will deal with tenders, responses, hopefully, to my questions earlier today, if there’s anything else about the balance sheet to try to tie things up.
MR HOWARD: Thank you, your Honour.
HIS HONOUR: Thank you.
ADJOURNED [1.16 pm]
RESUMED [2.34 pm]
HIS HONOUR: Mr Howard.
MR HOWARD: Your Honour, I have received instructions not to read my client’s mother’s affidavit. And therefore, not call on my client’s mother. My friends have been told that. As a result, from my perspective, the evidence is closed. And we have had a further preliminary discussion in relation to parenting matters. We haven’t discussed the property matters, really, yet. And as a result of those discussions, we haven’t still finalised the balance sheet, but there is only the two things. So I understand – but even with a small amount of time, we should be able to finalise that, as soon as are out of here. We were dealing with other matters during the lunchbreak, as well as having lunch…
It will be immediately clear, and for my part, without criticism, that in none of the discussions set out here was there any particularity regarding which balance sheet was being used as the principal document, and the point of reference, for the discussions between Counsel. And to speak generally, the remainder of day three was taken up with further cross examination of the Father, the external family consultant expert, and various other matters relating to (a) tenders, (b) further matters relating to the Wife’s very late-breaking news (during the trial in the course of her re-examination) of her employer-benefactor and his ongoing but until then undisclosed payment of her legal fees and some details relating thereto. A general time-table was fixed regarding the filing of submissions. There was no further discussion about “the balance sheet” – plainly an oversight by everyone, including the Court. No one, including Judges, is exempt from human frailty or fallibility.
It can and should be observed, however, in the light of the extracted sections from the Final Hearing transcript that, apart from issues relating to “add-backs”, few, if any, other issues – with either Case Outline – were raised in the course of the trial. Nor were any issues raised in the final written submissions of the parties. More particularly, neither the Wife’s Counsel at trial, nor her experienced lawyers during or after the trial, prior to the Directions Hearing on 23rd April 2024, raised any of the matters that were raised by the Wife’s solicitor at that hearing that are set out below.
From the balance sheets set out in the respective Case Outlines, the balances were as follows:
Wife’s Balance Sheet (Case Outline: 30th October 2023)
Wife: Husband:
Assets $1,816,821 Assets: E$1,816,426
Liabilities: $382,587 $382, 587
Super: $2,000,439 $337,547
Total
(non-super) $1,434,234 $1,433, 839
(with super) $3,434,673 $1,771,386
Husband’s Balance Sheet (Case Outline: 31st October 2023)
Wife: Husband:
Assets: $54,326 + NK Assets: E$1,794,526
Liabilities: $350,546 + NK E$573,513
Super: $211,855 $125,692
Total
(non-super) $-296,219 + NK E$1,121,013
(with super) $-84,364 + NK E$1,246,705
Three observations should be made here. First, at trial, the Wife’s balance sheet included the family law or capitalised value of the Husband’s disability pension, in the sum of $1,662,892. This figure, and its inclusion in the balance sheet, was the subject of a formal ruling set out in the principal judgment (at [191] – [194]), in accordance with Full Court authority (Surridge & Surridge (2017) FLC 93-757), which (a) treated it as a financial resource, and (b) in consequence, excluded it from the balance sheet. When the Husband’s capitalised superannuation is taken out of the Wife’s balance sheet, the net asset pool (on the Wife’s figures) becomes $1,771,781.
Secondly, the arithmetic in the Husband’s Balance Sheet was faulty, as was only recently pointed out by the Wife’s lawyers, albeit incompletely and inaccurately. The total, taken from the asset value minus liabilities, actually is $1,221,013, and not, as set out in the balance sheet, $1,121,013. The Husband’s balance sheet then added only his very modest superannuation of $125,692 (just under half of the Wife’s current balance), which brought the net balance to $1,346,705. The Husband’s Balance Sheet also did not add the Wife’s superannuation of $211,855 to the combined asset pool, a matter noted by the Husband’s lawyers in discussion at the Directions Hearing. When that sum is added to the balance sheet, the asset pool becomes $1,558,560. Further, when the Wife’s “known assets” of $54,326 are added, the net balance becomes $1,612,886.
Thirdly, as noted below, and notwithstanding its consideration in the principal judgment, the parties agreed after the trial (without any reasons or explanation given to the Court) that the Husband’s loan from his Mother in the sum of $180,000 to cover his legal fees, would now not be included in the balance sheet. If that sum was added back into the originally calculated pool, the asset pool on the Husband’s figures would total $1,792,886.
On any of these figures, the Wife’s contention at the Directions Hearing on 23rd April 2024 that the Husband’s asset pool balance sheet was short by some $600,000 or thereabouts does not withstand scrutiny.
Issue 1: Were the accumulated superannuation funds of the parties intended to be in the asset pool?
Answer: yes. The reasons for this answer are multiple and, in my view, self-evident. Respectfully, this was (and is) a question in search of a proper foundation. I say this for the following reasons.
On 15th April 2024, the lawyers for the Husband advised Chambers that the parties had been unable to reach agreement regarding a Consent Minute (pursuant to Order 3) that reflected the Court’s findings and reasons. In those circumstances, and with no indication from either party regarding the reason(s) for the disagreement, or any other issues, the matter was re-listed for 23rd April. At the hearing, the lawyers for both parties essentially agreed that, if the Court could indicate whether the accumulated superannuation was intended to be included in the asset pool, the parties could likely, if not readily, agree on the form of Orders that the Court could make to satisfy Order 3. One part of the discussion at the Directions Hearing on this matter proceeded as follows (emphasis added):[8]
MR ROUTH: Essentially, though, the asset list that your Honour was relying upon, and I appreciate this is probably for another location, but the asset pool that your Honour was relying upon was about just under $600,000 short from what the actual agreed pool was that was provided to your Honour on 10 November ‑ ‑ ‑
HIS HONOUR: Right.
MR ROUTH: ‑ ‑ ‑ that my friend was just referring to.
HIS HONOUR: Right.
MR ROUTH: Then assuming we’ve got a correct asset list, it then comes down to whether the percentage applies to the two accumulation superannuation funds, or whether it was your Honour’s intention, or whether it was the competing applications, that it would just deal with the non-superannuation pool …
[8] T 9. This same issue was raised multiple times, e.g. T 14, 18 and 19.
To pause here for a moment. At the Directions Hearing, no one referred to any authority regarding the construction of Orders and any ambiguity relating to them. In a recent judgment in the New South Wales Supreme Court, Racing New South Wales v Racing Victoria Ltd, at [5] – [10], Rees J set out relevant principle in this regard as follows:[9]
[9] Racing New South Wales v Racing Victoria Ltd [2024] NSWSC 147.
[5] The first task is to construe the discovery orders made by Ball J. Court orders are interpreted according to the ordinary rules of construction, without delving into the subjective intention of the judge who made the order: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503 (Windeyer J); Repatriation Commission v Nation (1995) 57 FCR 25 at 33 (per Beaumont J, Black CJ and Jenkinson J agreeing). Extrinsic materials may be consulted where ambiguity exists on the face of the orders: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at [60] (Basten JA). Less settled is whether extrinsic materials may be taken into account absent ambiguity: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, LawBook Co) at [36.90].
[6] The ordinary rules of construction, in the context of commercial contracts, were recently restated in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 407 ALR 613 at [27]:
“It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.”
[7] As to when extrinsic material may be considered in the contractual context, Leeming JA (Gleeson and White JJA agreeing) explained in Cherry v Steele-Park (2017) 96 NSWLR 548 that the ambiguity of a contract may only be revealed once the surrounding circumstances are considered: at [68]-[86]. That is, ambiguity is a “conclusion, rather than a precondition to the admissibility of evidence of surrounding circumstances”: at [79]. As such, commercial context may be considered from the outset, for example, in Laundy at [36]. However, if after considering the contract as a whole and the surrounding circumstances, the Court concludes that the language of a contract is unambiguous, then the Court must give effect to that language unless to do so would give the contract an “absurd” operation: Cherry v Steele-Park at [73]-[75].
[8] Returning to how the issue of ambiguity and reference to extrinsic materials has been considered in the context of construing orders, Drummond J (Sundberg and Finkelstein JJ agreeing) observed in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 at 78:
“It is impermissible, in my view, as well as being quite unrealistic to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Queensland Supreme Court, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.”
[9] In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA explained at [129], [130] and [137] (emphasis in original):
“The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment ... The order must therefore conform to the judgment, with only such latitude as the judgment allows. ...
... It is the judgment which controls the scope of any consequential orders, setting the parameters for what conformance requires. ...
Orders when delivered have a continuing life of their own, once the umbilical cord has been thereby severed from the originating judgment. But it does not follow that orders so launched are to be treated thereafter as completely self-contained when it comes to their interpretation. Convenience and clarity, especially for the party bound, dictate that the orders should so far as reasonably practicable, be self-standing...”
[10] In Lim v Comcare (2019) 165 ALD 217, the Full Federal Court considered that regard may be had to the reasons for the court order “whether the orders are ambiguous or not”: at [40] (per McKerracher, Markovic and Snaden JJ). See likewise Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385; John Tarrant, “Construing Undertakings and Court Orders” (2008) 82 ALJ 82 at 84-85.
These basic principles, in my view, make the simple but crucial point that the reasons of the Court are the first point of reference. The primary judgment, at [190] – [215], deal with property matters. Apart from brief comment by the Husband’s lawyer referring to the reasons of the Court, there was otherwise little reference to the reasons of the Court in addressing this issue (and others recorded below) newly raised with the Court at the Directions Hearing.[10] In my view, [202] of the reasons are plain and very straight-forward. That paragraph begins:
In the light of the Court’s rulings regarding add-backs, the property pool should relevantly be taken to be as set out in the Husband’s Case Outline …
[10] The Husband’s references to the reasons is at T 19.
The balance sheet then set out included the accumulated superannuation of the parties. It did so without referring to it as a “separate pool.” The Wife’s balance sheet in her Case Outline did likewise. That is to say, like the Husband, the Wife simply included the accumulated superannuation of the parties in the balance sheet, with no suggestion anywhere (e.g. not in her Case Outline) that it be treated as a separate pool, or that it receive a different treatment in the division of property, separate from the rest of the property pool.
Further, accepting that in her final submissions, the Wife sought a 40% division of the net non-superannuation assets and a 50% division of the superannuation assets, more particularly, in the written submissions filed by both parties after the hearing, there was no suggestion (or even a hint) of any separate treatment, as a separate “pool”, that should be given to the accumulated superannuation.
Further still, in both versions by each party in the November (i.e. post-trial) balance sheets (discussed further below), the accumulated superannuation of the parties is likewise included in the combined asset pool, without separation or distinction, in each. Nor does the covering email from the Wife’s lawyers of 10th November 2023 enclosing the later balance sheets suggest anywhere that the accumulated superannuation of the parties not be included in the balance sheet.
In short: the contention that the parties could not agree on the relevant property Orders, because it was “not known” if the accumulated superannuation should be included, seems, respectfully, to be somewhat contrived or confected. The reasons do not remotely suggest that it should be treated separately. There were no submissions that it be treated separately. Nothing during the trial suggested that it (or the separate accumulation funds) be treated separately. Any and all versions of the [now four] balance sheets include those funds in the asset pool, with no indication (express or implied) that they be treated separately. Not only was it the Court’s plain intention and expressed directly because of the inclusion of the Husband’s balance sheet in the reasons at [202], to include those funds in the asset pool, no reason was ever articulated – orally or in writing – including at the Directions Hearing on 23rd April, that they should not be so treated.
Having confirmed at the Directions Hearing on 23rd April that the accumulated superannuation of both parties was intended to be part of the balance sheet, the parties provided the Court with an agreed set of Orders, which the Court duly made on 24th April 2024.
Issue 2: Were there arithmetic errors in the “balance sheet” used by the Court?
Answer: yes.
Mr Routh (very newly arrived in the matter but highly experienced lawyer for the Wife, and still from her specially-selected-by-her-employer-benefactor-preferred firm) contended that there was an arithmetic error regarding the total asset pool as recorded in the balance sheet used by the Court at [202] of the March judgment. The Court used that balance sheet as set out in the Husband’s Case Outline, filed 31st October 2023. Mr Routh contended that the total asset pool should total $1.221 million, as opposed to $1.121 million set out in it. These figures exclude superannuation. The figure propounded by Mr Routh regarding the net asset pool, excluding superannuation, of $1.221 million is correct, and therefore, there is a mathematical error in the balance sheet that was used by the Court in the principal reasons. However, then arises an error in his calculations when superannuation is considered. This is in circumstances where one of his primary contentions was that the Court had erred by using an asset pool that was “short” by some $600,000.[11] Respectfully, he “over-egged the custard” here for the following reasons, in addition to those set out above, which I need not repeat.
[11] This contention was repeated four times: see T 9, 12, 13 & 23.
Fairly, the lawyer for the Husband (Mr Robinson) then pointed out that this figure did not include the Wife’s accumulated superannuation of $211,855 which, when added to the pool, brought the net asset pool to $1,558,560. On this basis alone, the contention by the Wife’s lawyer of a $600,000 shortfall, was significantly eroded.
Mr Robinson further submitted that this figure (of $1.558 million), together with the addition of the Wife’s assets of $54,326, in fact brought the net asset pool to $1,612,886 (total assets – liabilities + superannuation). These matters were set out in detail earlier in these reasons.
A next issue raised by the Wife was that a mortgage to U Bank appeared in the balance sheets of both parties and, therefore, it was contended that it had been “double counted”. There was no evidence provided to support this contention. It was a simple assertion. It was also erroneous for the simple reason that this figure of $350,545 regarding the mortgage over the Suburb P property was only counted using the figures as set out in the Husband’s balance sheet, as the figures above show. The fact that it appeared on the Wife’s side of the ledger as well as the Husband’s is of no moment and does not establish any “double counting” for the reason already given, namely, it was only counted on the Husband side of the ledger as his liability. There was no “double-counting” to arrive at the sum of $1.2 million.
Further, this “complaint” is inapposite also because the exact same situation was set out in the balance sheet in Wife’s Case Outline, namely, the U Bank mortgage figure complained about as being listed twice, in each “column” of the Husband’s balance sheet, is likewise “double-listed” in the Wife’s Case Outline, in each column of that balance sheet. If Mr Routh criticises the Husband’s Case Outline, in fairness he should level the same criticism at the Wife’s exact same figure(s) in her documents prepared by his firm.
To be even more repetitious than usual, in both balance sheets, in the Case Outline for each party, the U Bank Home Loan account totals $350,545 and is listed as a “joint liability” by both parties. How it follows that it was somehow “double counted” was never explained.
Subject to what follows, these matters are sufficient to explain and show how the contention(s) of the Wife that allegedly resulted in a “$600,000 shortfall” in the balance sheet, was incorrect. It is true that there was an arithmetic error in the calculations in the Husband’s balance sheet of $100,000 as set out in his Case Outline, and which was transposed into the reasons at [202]. The above calculations correct that error. The same figures expose also the errors in the Wife’s newly propounded calculations and arguments. Subject to what is said later in these reasons, there is no reason why the Court’s findings in relation to percentage contributions and future needs, and the ultimate just and equitable Orders, need to be changed at all. Those findings stand and calculations regarding the payment to the Wife can simply be re-done on the basis of the corrected figures.
Issue 3: Did the Court use the “wrong” balance sheet in its reasons?
Answer: yes and no.
The Court accepts that on 10th November 2023, approximately one week after the Final Hearing concluded, the lawyers for the Wife sent an email to Chambers (copied to all others involved in the matter) which said, in part:
We attach for His Honour’s consideration:
1.The parties’ joint balance sheet;
2.The Applicant’s tender bundle which has been filed on the Commonwealth Courts Portal today.
If you require any further information or be of any further assistance, please do not hesitate to contact us.
It was obviously not explained in this courteous email how the Court was meant to “consider” the material sent to the Court, especially when it had not been admitted into evidence (and no one sought Orders that it be so admitted) and therefore it was not, formally, before the Court.
Most unfortunately, it is as mysterious and inexplicable as it is unfortunate that I was unaware of the two further balance sheets sent under cover of the 10th November email when preparing the principal reasons of the Court, including when they were checked after the first draft was completed. Although unknown to me until recently, somewhat akin to one of the infamous “Rumsfeld matrix” of categories that include “unknown knowns”, I obviously regret this oversight. I am now aware that there are, in fact, four different balance sheets prepared by the parties: (a) the two from the Case Outlines of each party in October and before the Court at the trial in early November, and (b) the two that were provided approximately one week after the trial finished. The email under cover of which the latter balance sheets were provided, as is plain from the text of it, never sought that either balance sheet be admitted, and no less curiously, described them as “the parties’ joint balance sheet”, when it was, in fact, two balance sheets, one for each party. How these documents could be described as “joint” was not explained at the time, or at the Directions Hearing on 23rd April 2024.
The two balance sheets forwarded to the Court on 10th November 2023 (“the November balance sheets”; the balance sheets set out in the Case Outlines of the parties will otherwise be referred to as “the October balance sheets”) are not, and never have been, formally put into evidence. Although the “slip-rule” was briefly discussed with the lawyers for both parties at the Directions Hearing on 23rd April 2024, in an email after it concluded, I proposed to the parties to re-open the matter for the sole purpose of admitting into evidence the November balance sheets and asked for their brief written submissions on why this course should not be undertaken.[12]
[12] Regarding the “slip-rule”, see r.10.13 FCFCOA Rules. There are multiple authorities that guide the operation of this Rule and its antecedents. See, among other decisions, L. Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1983) 151 CLR 590 especially at 597; DJL v Central Authority (2000) 201 CLR 226.
Regarding the “slip-rule”, by reference to the authorities listed (and many others besides), I need only note that (a) there is a distinction between correcting a judgment where an error has been brought to the attention of the Court, and setting it aside; (b) a judgment may be reconsidered only if something important was overlooked; but (c) reviewing an unperfected (un-entered) judgment does not extend to reconsidering matters determined at the trial.[13] Crucially, the character of the “review”, such as under the slip-rule or otherwise (discussed further below), depends on the nature of the error. Put another way, the error to be corrected determines the Order required.[14]
[13] Burrell v The Queen (2008) 238 CLR 218 at [19] – [21].
[14] See generally, Smith v NSW Bar Association (1992) 176 CLR 256 at 265 – 267 (Brennan, Dawson, Toohey Gaudron JJ).
Issue 4: to re-open or not to admit the November balance sheets?
Answer: yes.
As already noted, by email dated 2nd May 2024, the Court asked the parties to provide brief written submissions on the subject of “re-opening” and why such a course should not be taken here, for the singular purpose of admitting the November balance sheets of the parties. Having brought the mathematical errors to the attention of the Court only at the Direction Hearing on 23rd April, in their slightly longer than prescribed submissions, the Wife’s lawyers submitted that the proceeding should not be re-opened for the purpose stated. Rather more briefly, the Husband’s lawyers argued that it should. The written submissions of the parties were as follows (both dated 8th May 2024):[15]
[15] There were a couple of errors of citation in the Wife’s submissions. They are of no moment, doubtless inadvertent, and need no further comment.
Written Submissions on behalf of the Applicant Wife
1.In circumstances where:
a. Orders have been formally entered;
b. There is a right of appeal from the Federal Circuit and Family Court of Australia (Division 2); and
c. An appeal has been made;
the matter should not be reopened, even for a limited purpose.
2.Judgment was delivered in this matter on 14 March 2024 and Final Property Orders were perfected on 24 April 2024. It is submitted, therefore, that the matter cannot be reopened for any purpose as the Court is functus officio (see Burrell v R (2008) 238 CLR 218 at [21] and [28] ("Burrell") and Sangara v Hamwood (2009) 39 Fam LR 237 at [42]-[56] ("Sangara")).
3.Relevantly, in Sangara, Her Honour Judge Boland:
a. At paragraph [42], outlined the definition of the term "functus officio" as referred to in Halsbury's Laws of England, 4th ed, vol 29, para 766;
b. At paragraph [56], contended that "I accept that, subject to the availability of r 16, a Federal Magistrate is “functus officio” when a matter has been regularly determined, and orders are perfected. The Federal Magistrates Court, like the Family Court and the Federal Court, is a court created by statute and does not have power to re-open its orders regularly entered (see DJL v Central Authority (2000) 201 CLR 226 at 248)" ("DJL").
4.In the later decision of Vance & Vance (2011) FLC 93-461 ("Vance"), Boland J considered the High Court's comments in Burrell. At paragraph [47] of the judgment, Boland J held "…I am satisfied I am functus officio and have been since the making of my orders on 20 December 2011".
5.In light of the High Court decision in DJL, this Court only has such jurisdiction and power as is conferred by statute (also see NH v DPP; Jakaj v DPP; Zefi v DPP; Stakaj v DPP at [67]– [71]). The Federal Circuit and Family Court of Australia does not have the power to vary or to set aside a final judgment or Order once that Order has been perfected.
6.The Court would seem to have power to re-open to make supplemental orders. However, supplemental orders (such as cost orders and orders aiding the interpretation and enforcement of orders) are ones that are necessary to supplement the final orders made so as to fully resolve the whole of the controversy before the Court: see, for example, Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235 and Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 at 521 and 525-526. It is submitted that, in this case, there is no longer any controversy before the Court requiring a resolution. All outstanding matters were resolved upon the making of the Final Property Orders.
7.In relation to the cases referenced in His Honour’s Associate’s email:
a. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, the High Court held that a Court has jurisdiction to recall a final judgment but that jurisdiction is to be used with great caution, and the Court's decision turned on the important and unusual facts of that case;
b. The case of De L v Director-General (1997) 190 CLR 207 was a consideration by the High Court, being "a final court of appeal" at [20] and, whilst the orders had been pronounced, they had not been entered in the record [24] and accordingly it is submitted does not apply to these circumstances.
Written Submissions on behalf of the Respondent Husband
1.These submissions are prepared in response to the request made on 2 May 2024, from the chambers of his Honour Judge Neville seeking written submissions setting out why the matter should not be re-opened for the purpose of admitting into evidence the two balance sheets provided under cover of email on 10 November 2023.
2.At the conclusion the final hearing on 3 November 2023, directions were made for the parties to provide a joint balance sheet. On 10 November 2023, joint correspondence was sent to the Court enclosing a joint Balance Sheet, identifying the areas of contention.
3.Following the delivery of judgment on 14 March 2024, the parties were directed to bring in orders giving effect to that judgement. On 22 April 2024, the parties emailed their proposed Minute of Order to Chambers. Both of those sets of orders were predicated on the joint Balance Sheet sent to the Court on 10 November 2023. It was clearly contemplated by both parties and the Court that the Balance Sheet would form part of the evidence before the Court.
4.Those items in contention were subject to determination in his Honour's judgment dated 14 March 2024, and reflected in the minutes submitted by the parties. It therefore follows that to the extent necessary to give effect to the intention of the Court, the matter should be reopened to formally admit the Balance Sheet.
5.In Autodesk v Dyason (No 2) (1993) 176 CLR 300. As per Mason CJ" ... the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law."
Principles regarding the re-opening of a matter are well-settled and well-known. Summarised, the relevant principles are as follows. For example, in Smith v NSW Bar Association (“Smith”), the plurality (Brennan, Dawson, Toohey and Gaudron JJ) said (at 265, 266 and 267; emphasis added):[16]
… once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.
… What must be considered is the question to which the error was relevant and the significance of that question to the decision reached…
…
Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.
[16] Smith v NSW Bar Association (1992) 176 CLR 256.
The decision of the High Court in Smith, which was not cited by either party in the brief submissions filed, was relied upon in the subsequent decision in Autodesk v Dyason (No.2) (“Autodesk (No.2)”) where Brennan and Gaudron JJ, each writing separately but as part of the majority that included Dawson J (also writing separately), said (emphasis added):[17]
Brennan J: This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced ((20) State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. (1982) 150 CLR 29; Wentworth v. Woollahra Municipal Council (1982) 149 CLR672, at p 684). The jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court ((21) The approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal: see, for example, In re Harrison's Share under a Settlement (1955) Ch 260, at pp 282-284). Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgment were not vacated.
2. It is desirable to add in the context of the present case a further observation about the opportunity to be heard. A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue ((22) Pantorno v. The Queen (1989) 166 CLR466). However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends ((23) University of Wollongong v. Metwally (No.2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71). Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms different from the terms of a submission by counsel but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be relisted for further argument and without inviting supplementary submissions to be made.
[17] Autodesk v Dyason (No.2) (1993) 176 CLR 300. Brennan J’s remarks are at 308. Gaudron J’s comments, which are broadly similar to those of Brennan J, are at 322, where her Honour confirmed that a case may be re-opened “if the interests of justice so require”, accepting that such a course would be taken cautiously and usually rarely. Accepting also that the High Court has plenary power and jurisdiction, and this Court does not, as set out presently, the basal principles generally still apply.
Similar statements of principle are readily found in later cases, such as De L v Director-General, NSW Department of Community Services (No.2), and DJL v The Central Authority. which rely upon, among other authorities, the comments of the High Court in both Smith and in Autodesk (No.2).[18]
[18] De L v Director-General, NSW Department of Community Services (No.2) (1997) 190 CLR 207, and DJL v The Central Authority (2000) 201 CLR 226.
More generally still, there is ample authority which confirms that the following matters guide, and are general categories regarding, any Application to re-open:[19]
(a)The overriding principle is the interests of the administration of justice having regard to all the circumstances of the case;
(b)fresh evidence;
(c)inadvertent error;
(d)mistaken apprehension of the facts; and
(e)mistaken apprehension of the law.
[19] The summary here is taken from White J’s decision in FDY Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [30] – [33]. The same basic grounds set out in Promptair were almost identical to those set out by the Victorian Supreme Court of Appeal in Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355 at [45] – [47]. The Court of Appeal’s detailed discussion, which follows its outline of principle, refers to multiple other authorities as well. In the result, the Court of Appeal held a County Court decision to refuse an Application to re-open was erroneous on multiple grounds, which included (a) mistaken facts, and (b) the exercise of discretion.
As is seen from the brief submissions, and without being unduly critical, none of the matters noted here from authority were addressed in them, save for the Husband’s reference to comments by Mason CJ (who was in dissent in the result) in Autodesk (No.2) regarding a Court proceeding on a “misapprehension as to the facts or the law.”
On the facts canvassed in these reasons already, it is clear that there has been, at least, an inadvertent error (e.g. as noted in Smith, and just so here, there were a number of mathematical errors in the Husband’s balance sheet that was used by the Court; equally, there were calculation errors in the Wife’s submissions regarding the same document at the Directions Hearing on 23rd April 2024).[20]
[20] The same general facts could also give rise here to “mistaken apprehension of the facts” on the basis that, at the time the reasons were drafted and issued, as matters of fact, the Court was only aware of the two balance sheets of the parties set out in their respective Case Outlines, and conversely, was not aware (a misapprehension of fact) of the later emailed (but never formally filed) “joint” balance sheets, again of each party.
Further, to recall the words of Gaudron J in Autodesk (No.2), and many other similar statements elsewhere (including Brennan J in the same case), in my view, especially in circumstances where the “inadvertent error” rests primarily with the Court and not with the parties (accepting that the Husband’s balance sheet in his Case Outline contained what might be described as some of the primary mathematical errors) the “justice of the case” warrants that, pursuant to Rule 10.14 of this Court’s Rules (which refers to the Court, in the exercise of its discretion, “at any time”, being able to vary or set aside reasons for judgment) it be re-opened to address the mathematical errors from the original balance sheet used by the Court from the Husband’s Case Outline.
Further still, and as confirmed by Austin J in his Honour’s reasons on 7th May 2024 at [9], the Orders of the Court of 14th March 2024 were plainly “machinery”, and on their face, conditional because they required the parties to provide a consent Minute to reflect the Court’s reasons. As such, the Orders were not, and could not relevantly be, “perfected”. By email dated 15th April 2024, the Wife’s lawyers confirmed that the parties had been unable to reach the agreement required to complete the Court’s directions. This lack of agreement and the notification to the Court on 15th April necessarily meant that the Orders made on 14th March were incomplete and unfulfilled, which in turn led to the matter being re-listed for further Directions. This occurred, as repeatedly set out in these reasons, on 23rd April at which hearing the Court was advised of a range of mathematical errors arising from the use of the Husband’s Final Hearing balance sheet.
In my view, these matters plainly give rise to inadvertent error in the reasons of 14th March 2024. As such, the case, in my view, plainly falls into a category referred to by the High Court in Smith and in Autodesk (No.2), and the other authorities noted above, including the Federal Court of Australia decision in Promptair and that of the Victorian Supreme Court of Appeal in Ezra Abrahams v Milburn. Inadvertent error, in a number of respects, having been confirmed in the course of the Wife’s oral submissions at the hearing on 23rd April, on a limited basis, the evidence should be re-opened, and, in consequence, the November balance sheets should be admitted into evidence and substituted for the balance sheet set out at [202] of the principal reasons. The Court so Orders. They will be assigned Exhibit numbers, respectively, AW1 (the Wife’s November 2023 balance sheet), and RH1 (the Husband’s November balance sheet). For ease of reference, copies of all four balance sheets are annexed to these reasons.
Issue 5: What, if anything, flows from the matter being re-opened?
Answer: not very much other than, and importantly, greater accuracy of figures.
First, the admission of the November balance sheets, nor any other matter raised by the Applicant Wife regarding the balance sheet used by the Court in the principal reasons, alters in any way the substantive findings of the Court set out in that judgment relevantly regarding contributions, future needs of the parties, and the ultimate “just and equitable” Orders.
Secondly, in the principal reasons I dealt with two particular matters that appeared in the Husband’s October balance sheet, and on which there was some limited cross examination on the basis of material set out in his trial Affidavit, namely (a) a loan from his Mother to cover his legal fees in the sum of $180,000 (see [74] and [234]), and (b) some jewellery, said to be worth about $30,000, which the Wife said she did not want. Without rehearsing the evidence set out in the principal judgment, the Husband’s family loan regarding legal fees was disclosed in his trial Affidavit. I included it in the balance sheet. For reasons not explained, it now appears that the parties have agreed that it will no longer be in the Husband’s balance sheet.
Likewise, in the course of the principal reasons (at [195]) I noted that there was no valuation for the jewellery, as well as the Wife not wanting it, and would exclude it from the balance sheet. Again, for reasons not explained, the parties have now agreed to include it in the balance sheets of each party.
Also now included in the Wife’s November balance sheet is a credit card debt of $6,689. Curiously, this debt never appeared in the Wife’s October balance sheet that was set out in her Case Outline. Nor was it canvassed in her evidence (or Case Outline), thus taking, in my view, a rather flexible approach to matters of evidence, especially post trial. There has been no Application to seek to include it in the Wife’s balance sheet.
The three items mentioned (i.e. Husband’s loan from his Mother for his legal fees, the jewellery, and the Wife’s newly claimed credit card debt), as already mentioned, have apparently now been agreed between the parties but without any explanation to the Court. Thus, there is a further hurdle (if not three hurdles), of sorts, to finalise an already needlessly contorted series of “mathematical errors”. It is a less than satisfactory course simply for the Court to accept the agreement between the parties, yet absent any explanation from either side, the only options available to the Court are: (a) simply accept the agreed balance sheets, and then “choose” between them as to which one most accurately conforms with the Court’s findings (accepting that there will likely remain some internal inconsistency between the principal reasons and the “agreed balance sheet”), or (b) reject one or all of the items noted and make adjustments accordingly based on the principal reasons.
Simply because the parties have now agreed upon, and the Court is now aware of, all of the respective balance sheets of the parties, and because the “arithmetic” now tallies, I propose to accept the November balance sheet of the Husband. This is primarily because it accords more accurately with the Court’s findings in excluding (a) the Wife’s claimed “add-backs” (see primary reasons at [196] – [201]), and (b) the Husband’s capitalised disability pension (see primary reasons at [191] – [195]). As already noted, that balance sheet will be substituted for the inaccurate one that currently appears at [202] of the principal judgment. A third area of agreement between the parties, which is reflected in the “corrected” balance sheet of the Husband that is to be substituted into [202] of the principal reasons, relates to the agreement between the parties for the inclusion of the contentious jewellery of $30,000, which the Wife said that she does not want, and for which there was no valuation at trial.
It follows from the Court’s determination to re-open and to correct the erroneous balance sheet used in the reasons, and to substitute the corrected version of it, that the two discrete issues relating to (a) the Husband’s loan from his Mother for legal fees (now agreed to be excluded from the balance sheet), and (b) the jewellery of $30,000 (now agreed to be included in the balance sheet) recorded here are to be read as “qualify” the principal reasons regarding these items. This is also to say that the principal reasons are to be read subject to these supplementary reasons regarding these items, in addition to the other matters addressed in these reasons.
According to the November balance sheets of the parties, the Husband’s net asset pool totals $1,790,548. The Wife’s net asset pool, excluding the claimed but rejected add-backs (which total $112,711) and the capitalised disability pension of the Husband (of $1,662,892), the net asset pool of the Wife totals $1,784,166. This figure includes the Wife’s claim for the previously un-claimed credit card debt of $6,689. There is also a $307 difference in the amounts claimed for the Husband’s bank accounts. On these figures, the difference between the two balance sheets is $6,382, which is accounted for by the difference in the Husband’s bank account figure, and the Wife’s claim for the $6,689 credit card debt.
Thirdly, the only other “mathematical” issue arises out of (a) the Court’s assessment regarding “contributions”, (b) future needs, and ultimately (c) the final just and equitable Order. The contribution assessment was at [207] of the principal judgment, which I summarise thus.
The Wife proposed an adjustment regarding contributions in the Husband’s favour of 10%. The Husband’s submissions noted that his capital contributions alone exceeded those of the Wife by some $600,000 and, accordingly, he sought an adjustment under this heading of 75% to him and 25% to the Wife. The Court determined that the percentage assessment regarding contributions, viewed in accordance with the authorities referred to, such as Dickons v Dickons, to be 65% in the Husband’s favour and 35% in the Wife’s.[21]
[21] Dickons v Dickons (2014) 50 Fam LR 244 especially at [21].
Next, the Court considered the issue of “future needs”, the summary details of which were set out at [209] – [211]. The Wife sought an adjustment in her favour in this regard of 15%. I considered this to be unsustainable in circumstances where she has at least 11 years of work available to her on a reasonable salary plus superannuation, while the Husband has only his disability pension (with no superannuation accumulation). The Court determined that there should be an adjustment in her favour of 2%.
The mathematical issue arises, at [213], where the Court’s final “just and equitable” percentage figure remained at 65% for the Husband and 35% to the Wife. In the principal reasons, I noted (again) the egregious non-disclosure by the Wife and her lawyers throughout the litigation and said that the percentages reflected the non-disclosure issue. However, at the directions Hearing on 23rd April, the lawyer for the Wife (and somewhat sotto voce the lawyer for the Husband) submitted that, on its face, the judgment could (or should) be read so as to take account of the 2% assessment regarding future needs. When that sum is added to the just and equitable award, the final percentage figures are 63% for the Husband and 37% for the Wife. I accede to this submission.
The above matters are also all in the context where the ongoing, acknowledged non-disclosure by the Wife and her lawyers of her hitherto secret, special “open-costs” deal between her employer and her lawyers, was (a) considered at length by the Court in the principal judgment, but (b) never addressed or raised by the Wife in either of her Notices of Appeal or at the Directions Hearing on 23rd April 2024.
Fourthly, for the detailed reasons set out in the principal judgment, none of the Court’s findings need be (or should be) disturbed as a result of the re-opening and the substitution of the Husband’s November balance sheet for that which was used in the principal judgment at [202]. The parties can (and should) simply make their relevant calculations based on that balance sheet, and in accordance with the Court’s determination(s). Formally, as already noted, I make an Order that the Husband’s November balance sheet (Exhibit RH1) be taken as substituted for the balance sheet of the Husband replicated at [202] of the principal judgment.
In this regard, and importantly regarding the exercise of the Court’s discretion, there needs to be some consideration of matters going to its exercise, notably regarding any possible prejudice to one or other party.
In my view, there is no prejudice to either party, and perhaps notably the Appellant Wife, arising from the re-opening and substitution of the balance sheet. Indeed, the net balance, and correction of the final percentage adjustment, works in her favour. Moreover, the following brief references to some of her Grounds of Appeal (at least as they initially were, but then summarily dismissed by Austin J, and not by reference to any subsequent iterations of them which I naturally do not mention not least because I do not know what they are), as examples only, make plain that the re-opening and substitution of the balance sheet causes no prejudice to either party but the Appellant Wife in particular. Further, it is difficult to see how the Wife’s lawyers, as an Appellant in their own right, are prejudiced in any way by the Court re-opening the matter on the limited basis indicated regarding the substitution of the erroneous balance sheet with a corrected one at [202] of the principal reasons.
The substitution of the balance sheet does not affect any of the Court’s findings in the principal judgment. The calculations set out earlier in these reasons (under heading “Issue 2”) show that, the contention by the Wife at the Directions Hearing on 23rd April that the balance sheet used by the Court in the principal reasons was “short” by some $600,000, was, itself, erroneous and without foundation. Accepting that there were arithmetical errors in it, which no one at the trial or later, raised with the Court, and which did not occur in any detail until at the Directions Hearing on 23rd April 2024, when properly read, the balance sheet that was originally used by the Court showed only modest discrepancy between the asset pools of each party as set out above under the heading “Issue 2”.
Further, in the context of the exercise of the Court’s discretion, significantly in my view, the substitution of the balance sheet does not impact upon any of the grounds of the Wife’s appeal, whatever they now are. For example, the [then extant] contention by the Wife as “primary carer”, which was based on the single day difference between the parties in the care of the only child of the relationship, X, is unaffected by the change in balance sheet. This was in circumstances where the Wife was seeking that the child’s time with the Father should be each alternate weekend, a proposal that was not endorsed by the expert, nor “sought” by X, who wanted the shared-care arrangement to continue.
The [then extant] contention by the Wife of her alleged inadequacy of her financial resources for her retirement (a then separate ground of appeal), in circumstances where she remains employed and earning superannuation (all matters set out in the principal reasons), is unaffected by the substitution of the balance sheet. This is also in circumstances where there was no argument run by the Wife at trial as to what she needed for retirement because there was no suggestion or indication that she was contemplating retirement, and if so, when that might occur.
The duplicated [then extant] Grounds of Appeal in 1.d and 4.a challenged the Court’s assessment regarding contributions, neither of which are affected by the substitution of the balance sheet. Nor is the alleged failure of the Court to award the Wife a 2% future needs adjustment, in circumstances (as stated in the [then extant] Ground of Appeal – 4.b) where the Husband proposed an adjustment of between 2.5 and 5%.
There is an unparticularised [then extant] ground (Ground 5) alleging that the Court gave “weight to irrelevant factors.” Whatever these unknown factors were (or are), they are not, and cannot be, affected by the substitution of the balance sheet. Similarly, having outlined earlier in these reasons why the Court did not set up a separate asset pool, including because the Court was never asked to do so, and because all versions of the balance sheets included the accumulation superannuation of the parties, such is not affected by the substitution of the balance sheet.
For completeness only, I recall (not for the first time) the prolonged non-disclosure of a legal fee-paying special arrangement between the Wife, her employer and the Wife’s lawyers, and the consequent filing of two erroneous (by omission) sworn Financial Statements by the Wife (and no disclosure in her trial Affidavit either), and four incomplete (by omission) and therefore erroneous Costs Notices filed by her lawyers. In consequence of this, Order 5 of the March Orders directed that the Wife’s lawyers pay 70% of the Husband’s costs, either as agreed or taxed.[22] There was a notation of what 70% of the Husband’s stated costs amounted to (i.e. $126,000) and that the Court could make Orders in Chambers if agreement was reached regarding the sum payable.
[22] Although noted in various parts of the principal judgment, the issues of non-disclosure and costs are set out at [216] – [250]. Among other things, those reasons note the Wife’s Counsel’s acknowledgment during the trial of the on-going non-disclosure by the Wife and her lawyers. She said that she had no instructions how this occurred.
In one of the original Grounds of Appeal (Ground 12; like any others following Austin J’s recent decision, I do not know if such matters are still being run), the Wife contended that such a sum is “manifestly excessive.” This is in circumstances where the Wife’s lawyers have charged her employer fees then totalling $342,237.95 (as of 31st October 2023; part of Exhibit C 1), but presumably continuing to mount. Perhaps like “beauty”, what is “excessive” (manifestly or not) is in the eye of the beholder – or at least the trust account of the lawyers involved. In any event, the Wife’s lawyers have charged her benefactor/employer almost three times what the Court Ordered be paid to the Husband’s lawyers for the reasons detailed at length in the principal judgment. The hermeneutics of what constitutes “excessive” will doubtless be a fruitful exercise for someone if such matters are run. The Court assumes that, given the Wife’s plea or post-hearing contention of relative financial difficulty into the unspecified and unparticularised future of her “retirement”, together with her somewhat modest income which would be unlikely to stretch sufficiently to cover the substantial fees of her lawyers, the carte-blanche largesse of her employer continues to the benefit of the Wife and her lawyers. Now, or into the future, nothing turns on such matters that are now revealed. During the trial, upon the hitherto undisclosed costs deal for her being revealed, she acknowledged that she was, indeed, fortunate.[23]
[23] See Transcript of 1st November 2023 at 87.
In any event, issues of “costs”, manifestly excessive or otherwise, paid by only recently disclosed benefactors or borrowed from family members, are not affected by the substitution of the balance sheet.
The above matters, briefly considered, in my view show that there is no prejudice to either of the parties but especially the Wife, or her lawyers.
Accepting a degree of repetition, by way of summary:
(a)The plurality judgment in Smith (at 265) confirmed that “very little will be required [to re-open] in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss …”. In the present matter, “mathematical error” was plainly involved;
(b)In Autodesk (No.2), Brennan J said (at 322): “The approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal.” The Orders of the Court of 14th March required the parties to provide the Court with an agreed Minute. Such Orders, properly construed, were procedural and machinery, and not thereby “perfected” precisely because they required more to be done by the parties (and the Court) before the Court could issue final Orders.[24] Further, the fact that the matter was re-listed because the parties notified the Court that they could not reach agreement as to the Orders to be made, necessarily confirmed that there was more to be done by the Court to bring finality to the proceeding. Accordingly, the factually erroneous and unperfected judgment, as specified by Brennan J, has now been re-opened to correct the inadvertent errors identified. Further, precisely because the Orders were machinery and required the parties and the Court to take further action to finalise the matter, contrary to the Wife’s submission, the Court was not, and could not relevantly be, functus officio. Further, and in accordance with the instruction of Brennan J set out above, it is a more expeditious course for this Court to correct the mathematical error(s) identified rather than allow it to stand until it is quashed on appeal;
(c)There is an identified range of areas or grounds where cases are typically re-opened, accepting that this should be done (i) only where the justice of the case dictates and (ii) is done rarely (Gaudron J in Autodesk (No.2)). Relevantly, two of those categories, per Promptair and Ezra Abrahams, are “inadvertent error” and “mistaken apprehension of the facts.” The mathematical errors identified were (and are) clearly “inadvertent errors”, and the use of the Husband’s original balance sheet was, equally clearly, both an inadvertent error and a misapprehension of fact in the light of the later balance sheets provided to the Court, although not filed;
(d)The Wife identified a range of mathematical errors, some correctly, some incorrectly. Yet, having done so, she refused to undertake the easiest course to remedy them as sanctioned by the High Court. She still has available to her, unimpeded by the substitution of the balance sheet, (a) all of her discretionary grounds of appeal, (b) notwithstanding having filed written submissions, the Wife’s lawyers still have their procedural costs ground of appeal, as well as (c) their “discretionary” “manifestly excessive costs” ground. Added to all this, the Wife is in a “win/win or no lose” situation because, whether successful or not in her appeal, she (nor her lawyers), is not at any financial “risk”, assuming her benefactor continues to pay her costs. Every litigant should be so fortunate.
[24] As noted earlier in these reasons, the “procedural” nature and reality of the Orders has recently been confirmed by Austin J in the first procedural hearing regarding the original appeal. See Janzen & Naish [2024] FedCFamC1A 75. Of course, again assuming that the Wife continues to be funded by her employer, she has suffered no adverse costs Order, but the Husband continues to bear the financial burden of her litigious actions.
In my view, for the reasons given, the matter should be re-opened in accordance with the authorities mentioned. This rare course should be taken solely to correct the inadvertent, mathematical errors identified by the Wife, not all of which (as set out above) are accurate, as alleged.
Finally, and simply as an observation: if the Court is correct in assuming that the Wife’s legal fees continue to be paid by her employer/benefactor, which include the now filed appeal (and presumably any re-trial of whatever dimension if the appeal is successful), the Husband continues to incur significant out-of-pocket expenses and legal fees but the Wife, herself, does not. The largesse for the Wife, especially if it be the case of it continuing to be, as it was during the trial, carte-blanche, is indeed double-sided: ongoing benefit for her, but ongoing financial burden for the Husband. “Imbalance” and “pressure” are but two words that readily come to mind. As well, rather dispiritingly, and more so for some than for others, such matters also regularly give rise to the observation by many judges that, at the end of almost every day in family law litigation as the chariot drags everyone along, the lawyers win, some rather more so than others…
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 16 May 2024
ANNEXURE 1
Wife’s Balance Sheet (Case Outline of 30th October 2023)
Property interests, superannuation and financial resources
Description
Ownership
Applicant’s value
Respondent’s value
ASSETS
1.
O Street, Suburb P
Respondent
$1,100,000
$1,100,000
2.
V Street, Suburb W
Respondent
$670,000
$670,000
3.
NAB Classic Banking Account (…13)
Applicant
$3,136
$3,136
4.
ANZ Access Advantage Account (…63)
Applicant
$0
$0
5.
ANZ Access Advantage (Overdraft) Account (…36)
Applicant
$247
$247
6.
NAB Account (…30)
Applicant
$4,795
$4,795
7.
U Bank Complete Offset Account (…81)
Joint
$29
$29
8.
U Bank Portfolio (…65)
Respondent
$2,395
$250
9.
Commonwealth Bank Everyday Account (…14)
Respondent
$150
$150
10.
Z Bank Investment Fund
Respondent
$19,698
$19,698
11.
AA Company Shares
Respondent
$1,693
$1,693
12.
BB Company Shares
Respondent
$1,580
$1,580
13.
CC Company Shares
Respondent
$126
$126
14.
Motor Vehicle 1
Applicant
$12,972
$14,722
Assets subtotal
$1,816,821
$1,816,426
LIABILITIES
1.
U Bank Home Loan for Suburb P property
Joint
$350,545
$350,545
2.
NAB Low Rate credit card
Applicant
$6,689
$6,689
3.
Rates and levies (Suburb P)
Joint
$25,353
$25,353
Liabilities subtotal
$382,587
$382,587
SUPERANNUATION
Name of Fund
Type of Interest
Member
Applicant’s Value
Respondent’s Value
4.
Super Fund 3
Accumulation interest
Applicant
$211,855
$211,855
5.
Super Fund 1
Defined benefit interest
Respondent
$1,662,892
NIL
6.
Super Fund 2
Accumulation interest
Respondent
$125,692
$125,692
Superannuation subtotal
$2,000,439
$337,547
TOTAL (assets – liabilities)
$1,434,234
$1,433,839
TOTAL (assets – liabilities + superannuation)
$3,434,673
$1,771,386
FINANCIAL RESOURCES
Description
Applicant’s value
Respondent’s value
Financial resources subtotal
OTHER
Description
Ownership
Applicant’s value
Respondent’s value
7.
Addback – Withdrawal of funds from Suburb P property home loan to pay Husband's legal fees
Respondent
$9,500
$9,500
8.
Addback – Husband's withdrawal of funds from Z Bank Investment Fund
Respondent
$26,918
NK
9.
Addback – Husband's payout from his employer
Respondent
$66,293
NK
10.
Addback – Net sale proceeds of the Motor Vehicle 2 the Husband disposed of after separation
Respondent
$10,000
NIL
Other subtotal
$112,711
$9,500
TOTAL (assets – liabilities + superannuation + financial resources + other)
$3,547,384
$1,790,886 + NK
ANNEXURE 2
Husband’s Balance Sheet (Case Outline of 30th October 2023)
Property interests, superannuation and financial resources
Description
Ownership
Applicant’s value
Respondent’s value
ASSETS
1
V Street, Suburb W
Husband
$670,000
2
O Street, Suburb P
Husband
$1,100,000
3
Z Bank Investment account ending #...33
Husband
$19,698
4
BB Company Shares
Husband
$1,580
5
AA Company Shares
Husband
$1,693
6
CC Company Shares
Husband
$126
7
Husband’s bank accounts
Husband
$429
8
Wife’s bank accounts
Wife
$9,604
9
Household contents
Husband
E$1000
10
Household contents
Wife
Not known
11
Motor Vehicle 1
Wife
$14,722
12
Jewellery
Wife
$30,000
Assets subtotal
$54,326 + NK
E$1,794,526
LIABILITIES
13
Z Bank Home Loan account (for the Suburb P Property) ending #...00
Joint
$350,545
$350,545
14
NAB Low-Rate account ending #...34
Wife
Not known
15
Rates and levies arrears for the Suburb W property
Husband
$17,615
16
Rates and levies arrears for the Suburb P property
Husband
$25,353
17
Loan payable to Ms RR
Husband
$180,000
Liabilities subtotal
$350,545 + NK
E$573,513
SUPERANNUATION
Name of fund
Type of interest
Member
Applicant’s value
Respondent’s value
18
Super Fund 2
Accumulation
Husband
$125,692
19
Super Fund 3
Accumulation
Wife
$211,855
Superannuation subtotal
$211,855
$125,692
TOTAL (assets – liabilities)
$-296,219 + NK
E$1,121,013
TOTAL (assets – liabilities + superannuation)
$-84,364 + NK
E$1,246,705
ANNEXURE 3
Exhibits AW1 and RH1 - November Balance Sheets
ASSET
Owner
Wife's Value
Husband's Value
Notes
V Street, Suburb W
H
$670,000
$670,000
O Street, Suburb P
H
$1,100,000
$1,100,000
Z Bank investment
H
$19,698
$19,698
BB Company Shares
H
$1,580
$1,580
AA Company Shares
H
$1,693
$1,693
CC Company Shares
H
$126
$126
Necklace and Ring
H
$30,000
$30,000
The Wife agrees to this value on the basis that the Husband retains the jewellery
Husband's bank accounts
H
$2,545
$2,238
The Wife's figure is based off the most recent disclosure provided to her solicitors
Wife's bank accounts
W
$8,178
$8,178
Joint bank accounts
Jt
$29
$29
Motor Vehicle 1
W
$12,972
$12,972
Addback - withdrawal Suburb P mortgage
H
$9,500
$0
Addback - withdrawal Z Bank
H
$26,918
$0
Addback - payout from employer
H
$66,293
$0
Addback - sale proceeds of Motor Vehicle 2
H
$10,000
$0
SUBTOTAL OF ASSETS
$1,959,532
$1,846,514
LIABILITIES
Mortgage to U Bank secured over Suburb P
Jt
$350,545
$350,545
Rates & Levies arrears for Suburb W
H
$17,615
$17,615
Rates & Levies arrears for Suburb P
H
$25,353
$25,353
Credit Card
W
$6,689
$0
SUBTOTAL OF LIABILITIES
$400,202
$393,513
NET TOTAL OF ASSETS AND LIABLITIES
$1,559,330
$1,453,001
SUPERANNUATION
Super Fund 3
W
$211,855
$211,855
Super Fund 1
H
$1,662,892
$0
Super Fund 2
H
$125,692
$125,692
NET TOTAL OF SUPERANNUATION
$2,000,439
$337,547
TOTAL NET ASSETS INCLUDING SUPER
$3,559,769
$1,790,548
0
23
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