FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
King & King (No 2) [2023] FedCFamC1A 100
Appeal from: King & King (No 2) [2023] FedCFamC1F 45 Appeal number: NAA 45 of 2023 File number: MLC 9554 of 2011 Judgment of: AUSTIN, WILLIAMS & MCNAB JJ Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal from orders made under Part VIII of the Family Law Act 1975 (Cth) – Where the primary judge ordered, inter alia, the appellant husband to pay to the respondent wife three years’ worth of arrears of spousal maintenance – Where there was no operative spousal maintenance order – Where interim orders were made in November 2011 for weekly payments of spousal maintenance – Where the financial cause between the parties was dismissed in March 2014 – Where the proceedings were re-commenced in July 2014 but the interim order for spousal maintenance was not revived – Where the primary judge was in error to assume the interim spousal maintenance order subsisted without interruption from November 2011 until the trial in February 2023 – Where the respondent conceded the erroneous calculation – Where the parties agreed the error could be rectified by variation of the appealed orders – Where the parties did not address the arithmetical error made by the primary judge in calculating the net value of the parties’ assets – Where the sum payable by the appellant to the respondent is corrected as permitted by s 36(1)(a) and s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the respondent submitted the re-calculated sum should be increased by adding accrued interest – Where that submission is rejected – Where there are no circumstances to justify departure from the ordinary rule that the parties should bear their own costs of the appeal – No order as to costs – Appeal allowed. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 75, 117, 117B
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: King & King [2023] FedCFamC1A 36
Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76
Tudor & Tudor (1992) FLC 92-273; [1991] FamCA 89
Number of paragraphs: 60 Date of hearing: 7 June 2023 Place: Melbourne The Appellant: Litigant in person Solicitor for the Respondent: Ian Robertson Legal ORDERS
NAA 45 of 2023
MLC 9554 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR M KING
Appellant
AND: MS KING
Respondent
order made by:
AUSTIN, WILLIAMS & MCNAB JJ
DATE OF ORDER:
28 june 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 2 and 8 made on 8 February 2023 are varied by substituting the figure of $469,105 for the figure of $436,000.
3.Orders 8(b), 9(b) and 10 made on 8 February 2023 are set aside.
4.The parties shall…
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- AGLC
- King & King (No 2) [2023] FedCFamC1A 100
- Case
- [2023] FedCFamC1A 100
- Decision Date
CaseChat Overview and Summary
The appeal before the court involved a dispute between the husband and wife concerning the property settlement following their second divorce. The husband sought to challenge the property settlement orders made by the primary judge, claiming there were arithmetical errors in the calculation of the net assets and the quantum of arrears under an interim spousal maintenance order. The wife, on the other hand, argued that the arithmetical errors did not affect the fairness of the settlement and sought to uphold the primary judge's orders.
The primary legal issue the court had to address was whether the arithmetical errors identified by the husband warranted a re-calculation of the property settlement. The court also had to consider whether the errors, if any, materially affected the fairness of the primary judge's orders. Another issue was whether the husband's proposal for a reduced payment to the wife was reasonable and whether the wife's entitlement to spousal maintenance and prior costs orders should be taken into account when calculating the cash sum payable to the wife.
The court found that there were indeed arithmetical errors in the primary judge's calculations. The net value of the parties' assets was $1,082,593, not $982,593 as the primary judge had calculated. The court also found that the husband's proposal for a reduced payment to the wife was not reasonable, given the wife's entitlement to spousal maintenance and prior costs orders. The court held that the wife was entitled to $436,000 from the husband to retain the Victorian property. The court allowed the appeal on the basis of the arithmetical errors but agreed with the parties that the error could be corrected by re-calculating the quantum of arrears under the interim spousal maintenance order. The court also corrected another arithmetical error in the process.
The court ordered that the husband pay the wife the sum of $436,000 within 90 days. In default, the Victorian property was to be sold, and the sale proceeds used to discharge the registered mortgage and the net balance then distributed in 60/40 shares in the wife's favour. The parties retained their own assets and bore responsibility for their own debts. The court's decision was based on the evidence already available in the appeal, and the parties agreed that the error could be corrected by re-calculation of the quantum of arrears.
The primary legal issue the court had to address was whether the arithmetical errors identified by the husband warranted a re-calculation of the property settlement. The court also had to consider whether the errors, if any, materially affected the fairness of the primary judge's orders. Another issue was whether the husband's proposal for a reduced payment to the wife was reasonable and whether the wife's entitlement to spousal maintenance and prior costs orders should be taken into account when calculating the cash sum payable to the wife.
The court found that there were indeed arithmetical errors in the primary judge's calculations. The net value of the parties' assets was $1,082,593, not $982,593 as the primary judge had calculated. The court also found that the husband's proposal for a reduced payment to the wife was not reasonable, given the wife's entitlement to spousal maintenance and prior costs orders. The court held that the wife was entitled to $436,000 from the husband to retain the Victorian property. The court allowed the appeal on the basis of the arithmetical errors but agreed with the parties that the error could be corrected by re-calculating the quantum of arrears under the interim spousal maintenance order. The court also corrected another arithmetical error in the process.
The court ordered that the husband pay the wife the sum of $436,000 within 90 days. In default, the Victorian property was to be sold, and the sale proceeds used to discharge the registered mortgage and the net balance then distributed in 60/40 shares in the wife's favour. The parties retained their own assets and bore responsibility for their own debts. The court's decision was based on the evidence already available in the appeal, and the parties agreed that the error could be corrected by re-calculation of the quantum of arrears.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, the appeal is allowed due to a narrow error, but the parties agreed the error could be corrected by the re-calculation of the quantum of arrears under an interim spousal maintenance order on the evidence already available in the appeal. The re-calculation then changes the sum properly payable by the husband to the wife to implement the property settlement orders. In the process, another arithmetical error is corrected.BACKGROUND The parties married in 1994 when they were young and without any assets of significant value. They separated in 1997 and divorced thereafter. They had one child at that time. The parties reconciled and remarried in 2003, then had two more children. They separated again in 2011 and divorced for a second time in 2019. The proceedings below were commenced in 2011, dismissed in March 2014, re-commenced in July 2014, and finally concluded by the appealed orders made in February 2023. The primary judge found the parties’ property interests comprised one real property located in Victoria (“the Victorian property”), two real properties located in Country GG, and a superannuation interest, with total net value of $982,593 (at [30]). The parties did not identify or address the mathematical error of $100,000 made by the primary judge, but we are obliged do so. The net value of their assets was in fact $1,082,593. The husband claimed two significant debts were owed to the parties’ eldest adult child (Ms C King) and to his sister (Ms DD King), which depreciated the net value of property available for division between the parties, but the primary judge rejected his claim (at [22b], [22c], [26b], [31e], [32] and [52]). The primary judge found the parties’ contributions up to the time of hearing were equal (at [37]), but an adjustment of 10 per cent in the wife’s favour was appropriate pursuant to the factors prescribed by s 75(2) of the Act (at [48]). The overall result was the wife’s entitlement to 60 per cent of the parties’ net assets and superannuation. It was the husband’s desire to retain the Victorian property and, to do so, he would need to pay a cash sum of $335,561 to the wife (at [49]). However, the primary judge adjusted the cash sum to take account of two other factors. First, it was calculated he still owed the wife $74,100 under an interim spousal maintenance order made in November 2011 (at [36d] and [50a]). Secondly, he still owed the wife $26,397.47 under prior costs orders (at [50b]). Accordingly, for the husband to retain the Victorian property, he had to pay the wife the rounded amount of $436,000 (at [51]). His Honour rejected the husband’s proposal for him to pay the wife only $120,000 (at [54]–[55]). The appealed orders gave the husband 90 days within which to pay the cash sum to the wife. In default, the Victorian property was to be sold and the sale proceeds used to discharge the registered mortgage and the net balance then distributed in 60/40 shares in the wife’s favour. Otherwise, the parties retained their own assets and bore responsibility for their own debts.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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