Loude and Loude (Re-determination)
[2010] FamCAFC 19
•19 February 2010
FAMILY COURT OF AUSTRALIA
| LOUDE & LOUDE (RE-DETERMINATION) | [2010] FamCAFC 19 |
| FAMILY LAW - APPEAL – RE-DETERMINATION – Where the husband appealed the orders of the Federal Magistrate – Where the appeal was allowed and orders provided for the parties to make submission in relation to the re-determination of the matter – Where the parties were unable to agree a statement of relevant facts and a number of matters were in dispute – It is impractical for the Court to undertake the required fact-finding exercise – It is appropriate for the whole of the matter to be remitted for rehearing. |
| Brett-Hall & Brett-Hall (2006) FLC 93-276 G & G [2001] FamCA 1453 R v W (unreported, Steele J, 2 July 2002) |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Loude |
| RESPONDENT: | Ms Loude |
| FILE NUMBER: | BRC | 2429 | of | 2007 |
| APPEAL NUMBER: | NA | 58 | of | 2008 |
DATE DELIVERED: | 19 February 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | May, Boland & Murphy JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 May 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 518 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kent SC with Mr Waterman |
| SOLICITOR FOR THE APPELLANT: | Nick Procter & Associates |
| SOLICITOR FOR THE RESPONDENT: | Peter J Sheehy |
Orders
The matter is remitted for rehearing before a Federal Magistrate other than Federal Magistrate Wilson.
IT IS NOTED to facilitate the preparation of the matter for rehearing, including the obtaining of appropriate valuation evidence and a timetable for filing further material, the matter should be listed before a Federal Magistrate for the purpose of making suitable orders and directions.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a)on behalf of the appellant within 21 days of the date hereof;
(b)on behalf of the respondent in response thereto within 21 days thereafter;
(c)on behalf of the appellant in reply thereto within seven days thereafter; and
(d)that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Loude & Loude (Re-Determination) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 58 of 2008
File Number: BRC 2429 of 2007
| Mr Loude |
Appellant
And
| Ms Loude |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 April 2009 after hearing an appeal from orders made by Federal Magistrate Wilson we made the following orders:
1.The appeal is allowed.
2.The orders of Federal Magistrate Wilson made 30 May 2008 be set aside.
3.Within one month from the making of these orders the parties provide to the Regional Appeal Registrar an agreed statement of the relevant facts which have occurred since the hearing before Federal Magistrate Wilson to be taken into account by the Full Court to enable it to re-exercise the discretion.
4.In the event that the parties are unable to agree on an agreed statement of relevant facts as provided in Order 3 then:
(i)the husband shall in 7 days after the expiration of the time provided in Order 3 file and serve any material on which he seeks to rely for the purposes of the Full Court considering whether or not it can re-exercise the discretion, or whether the matter must be remitted for rehearing before another Federal Magistrate other than Federal Magistrate Wilson.
(ii)the wife shall in 14 days after the expiration of the time provided in Order 3 file and serve any material on which she seeks to rely for the purpose of the Full Court considering whether or not it can re-exercise the discretion, or whether the matter must be remitted for re-hearing.
At the conclusion of our reasons we recorded that we had determined the appeal should be allowed, and had done so without the necessity to consider the further evidence sought to be adduced by the husband. We further said:
…We do, however, appreciate that consistent with the principles enunciated in Allesch & Maunz (2000) 203 CLR 172 the parties should be afforded the opportunity to put evidence relevant to the re-exercise of discretion to the Court. We see much merit in the submissions made both orally and in writing on behalf of the wife that the further evidence be dealt with in a manner similar to the orders made in [AM & MM [2005] FamCA 443]. (paragraph 93)
Later, at paragraph 95, we recorded the following:
In this case the wife’s counsel specifically submitted that we should follow the procedure adopted in [AM & MM] at paragraphs 45 to 48. In [AM & MM], at paragraph 49, the Full Court explained it would express its view as to the appropriate contribution based assessment and s 75(2) adjustment on the evidence at trial (The wife’s counsel did not however refer to paragraph 49). There is no dispute that Lindenmeyer, Finn and Guest JJ in G & G (2001) FamCA 1453 considered it was appropriate to indicate to the parties the appropriate adjustment on the evidence before the trial Judge in respect of an adjusted pool and then to make orders (in paragraphs 349 to 353) in respect of the course the proceedings should then take.
At paragraph 96 we indicated we proposed to follow the course adopted in G & G [2001] FamCA 1453 and recorded that no complaint was raised before us about the parties’ net assets as found by the Federal Magistrate. We also noted that in conducting our assessment we would treat the parties’ superannuation entitlements and property in a single pool.
In conducting our assessment of the parties’ contribution based entitlements on the pool as found by the Federal Magistrate we found, save and except for the husband’s initial contribution, the parties’ contributions throughout the course of cohabitation and until separation should be regarded as equal. We determined that post-separation the husband’s contributions exceeded those of the wife. We concluded a proper assessment of the parties’ contribution based entitlements to be 60 per cent to the wife and 40 per cent to the husband. We calculated such an assessment would result in the wife receiving a contribution based assessment of 60 per cent or $1,338,388.00 and the husband receiving an entitlement of $929,259.00.
We then turned to consider relevant factors under s 75(2) of the Family Law Act 1975 (Cth) and determined no adjustment should be made in either party’s favour.
Thereafter we assessed whether the wife retaining 60 per cent of the parties’ net assets and liabilities was just and equitable. At paragraph 108 of our reasons we concluded:
Overall, we are satisfied that if applied to the assets and liabilities as at the date of trial, orders which provided for the sale of the matrimonial home as agreed to by the parties, with the wife receiving the net proceeds of sale and further cash adjustment would, in the circumstances of the case, be just and equitable. The wife would have cash and realisable assets of approximately $864,000.00 to rehouse herself, and a substantial superannuation entitlement for her retirement. The husband would retain the business interests ([F Enterprises] and [the CM business]), together with loans to associated persons, as well as his insurance policy and modest superannuation entitlements. His retention of the business assets would afford him the opportunity to derive earnings, together with benefits, exceeding those of the wife.
We went on to explain that, given the uncertainties as to the outcome of the appeal, at the hearing before us senior counsel for the husband and counsel for the wife requested the opportunity to file written submissions on the question of costs, such costs to be determined after we decided whether we could re-determine the parties’ entitlements or whether it would necessary for us to remit the matter for rehearing.
We also explained we proposed to provide in our orders an opportunity for the parties to supply to us relevant factual matters which had taken place since 2007 in order that we could consider whether or not we could re-determine the matter.
We subsequently received an affidavit from the wife which was filed in the Northern Region Appeal Registry on 4 August 2009 and an affidavit of the husband also filed in the Northern Region Appeal Registry on 17 August 2009. We also received written submissions from the husband’s senior counsel filed on 2 September 2009 and submissions on behalf of the wife filed 7 September 2009.
The husband’s position
(a) the husband’s affidavit filed 17 August 2009 and written submissions
In paragraph 2 of his affidavit, the husband deposed that he and the wife had been unable to reach complete agreement on a statement of relevant facts, notwithstanding extensions of time in which to do so being granted by us.
At paragraph 3 of his written submissions he said:
3.1The parties are fundamentally in agreement as to the relevant facts or events which have occurred post-trial.
3.2The areas of disagreement primarily relate to issues of re-valuation, or changes in value of the “the pool” since the pool considered at trial and on appeal.
3.3The parties are in agreement in relation to obtaining updated valuations of the following assets:-
a)[F Enterprises Pty Ltd] including [CM Pty Ltd];
b)[F Enterprises Superannuation Fund] including historical contributions and loans to related parties;
c)[The commercial property] owned by [F Enterprises Pty Ltd];
d)The balance in the Bartercard Accounts in [F Enterprises Pty Ltd] and [F Enterprises Superannuation Fund] ([“F Enterprises”]);
e)The Appellant’s Defined Benefit Superannuation Fund … and two Accumulation Fund Accounts…
3.4The parties are in agreement in respect of the single expert … updating his valuation from trial and the Appellant has agreed to the costs of that being met, in the first instance, by [F Enterprises Pty Ltd].
3.5The Appellant also proposes that the Respondent’s shareholding in listed companies be re-valued contemporaneously with the assets referred to in paragraph 3.3 hereof. (footnotes omitted)
A footnote in paragraph 3.5 of the husband’s written submissions referred to a number of affidavits which did not comprise part of the material in the appeal book, but were the affidavits relied on by the husband in his application to adduce further evidence in the appeal, which application was rejected by us.
The husband deposed that the parties had been able to agree to the following matters:
(i)the value of the matrimonial home as at the date of trial (30 and 31 May 2007) was $950,000.00;
(ii)the matrimonial home was sold for a sale price of $1,060,000.00 with completion of the sale occurring on 30 March 2009;
(iii)the net proceeds of sale of the matrimonial home were $394,103.22 and were retained in an interest bearing account on trust for the parties;
(iv)the sum of $1,009,691.31 represented the balance of proceeds after deduction of release fees, rates and deposits;
(v)the husband received $5,096.74 and the wife received $7,011.59 in reimbursement of funds paid by each of them to prepare the matrimonial home for sale;
Post Separation:
(vi)the wife made mortgage payments in respect of the matrimonial home totalling $14,091.00;
(vii)the sum required to discharge borrowings from Citigroup Pty Ltd paid from the proceeds of sale of the matrimonial home was $621,065.28;
(viii)the husband made payments to Citigroup from the date of separation until the date of settlement, the total amount of the payments being $199,851.38 (of which the wife paid $14,091.00);
(ix)of the sum repaid to Citigroup $509,065.28 was attributable to borrowings in respect of the matrimonial home and the balance of $112,000.00 was attributable to borrowings from F Enterprises Pty Ltd (“F Enterprises”); and
(x)post separation the wife had exclusive occupation of the matrimonial home for a period of four years six months, during which period she received rent from boarders.
The matters in dispute between the parties were asserted by the husband to be:
(i)the amount of rent received by the wife from the matrimonial home during her exclusive occupation of it;
(ii)how the sum repaid to Citigroup ($112,000.00) in respect of borrowings by F Enterprises should be dealt with; and
(iii)how arrears of rates of $1,834.34 should be treated. The arrears of rates were deducted and paid on settlement of the sale of the matrimonial home. (It was noted that the wife had asserted she had paid all rates on the property since January 2005).
In respect of parenting matters it was noted:
(i)that the parties’ son had returned to live with the husband on 15 July 2009 and was employed on a part-time casual basis;
(ii)that the parties’ daughter was living predominantly with the wife and spending each alternate weekend with the husband; and
(iii)the husband has not had a child support liability for the parties’ daughter since 17 July 2009 and the wife was responsible for the payment of her private school fees.
In paragraphs 24 to 27 of the husband’s affidavit he listed matters in dispute in relation to the parties’ children. The only significant factor was the husband’s assertion that the parties’ daughter had expressed a wish to him to live with him on a shared care basis, and that he was proposing to file an application seeking orders that the child live with him on an alternate fortnightly block basis unless the parties agreed to such an arrangement.
The husband also noted the wife had admitted a number of matters deposed to by him in his affidavit in support of his application to adduce further evidence, including:
·that he had been residing in Australia on a full-time basis since 16 June 2008;
·the dates on which the parties’ daughter lived with him;
·child support paid by the him to the wife from 1 June 2007 to 1 June 2008; and
·that the he had applied for a change of assessment.
As a result of the child support application a senior case officer’s decision was made on 22 September 2008 setting the child support at nil for the period 1 July 2008 to 31 March 2009.
At paragraph 30 of his affidavit the husband referred to the wife’s affidavit filed pursuant to our orders (and which we will shortly discuss) and deposed that he agreed with current valuations being obtained for F Enterprises, including the CM business, the F Enterprises Superannuation Fund (“the Superannuation Fund”), the commercial property, Bartercard accounts in F Enterprises and the Superannuation Fund, the wife’s Superannuation Funds and the wife’s shareholdings.
the wife’s position
In order to understand the matters which remain in dispute, and to determine whether they are matters of substance, it is necessary we refer to the wife’s affidavit and the husband’s response to that affidavit. We do not propose to refer to the paragraphs of the wife’s affidavit which are admitted by the husband unless they are relevant to the re-determination of this matter.
In her affidavit the wife noted the parties had not been able to provide an agreed statement of relevant facts to us within the extended timeframe provided in our orders.
The wife deposed she had paid $6,000.00 with respect to arrears of the mortgage in about February 2008 and a further sum of $4,000.00 in July 2008 and $4,091.00 in August 2008 (the husband acknowledged payment of these amounts but did not accept the wife’s assertion about payment by her of rates in respect of the matrimonial home).
The wife deposed that all mortgage payments had been made by F Enterprises.
At paragraph 14 of her affidavit, the wife deposed:
Because of the security held by Citigroup Pty Ltd by way of mortgage over the [matrimonial home], the debt of $621,065.28 owing to Citigroup Pty Ltd by the company, [F Enterprises] was paid from sale proceeds at settlement. A debt of $112,000 is included in the $621,065.28. This is a debt from which I received no benefit. The debt was raised against the house for the benefit of [F Enterprises]. The company [F Enterprises] has had the benefit of the payment of that debt in reduction of its indebtedness to Citigroup Pty Ltd since 30 March 2009 to the exclusion of me.
While acknowledging that the sums were paid to Citigroup the husband effectively asserted that there would be no prejudice to the wife as the debt would be taken up in the updating valuation of F Enterprises.
The wife deposed the husband had, in the past, alleged he paid for additions to the former matrimonial home subsequent to the hearing before the Federal Magistrate. This statement was disputed by the husband in his affidavit who asserted he had not asserted post trial payments as alleged.
The wife deposed the husband sold a property at G Street. The facts relating to this sale at first blush appear to us to be irrelevant, as we note settlement of the sale of this property was 3 April 2006 and thus should not form part of any updating evidence. However, as we will shortly explain, there is an outstanding dispute in respect of this property.
The wife deposed, at paragraph 28 of her affidavit:
The Husband has recently opened a new Bank account into which the rent payments for [the commercial property] owned by [F Enterprises] are being paid. As a director and shareholder of the company, I did not authorise this and I am not receiving any accounting from the Husband of the income, expenses and disbursements, if any, paid from this account. The Husband and/or the company receives the benefit of the rent. I have not received Financial Statements for the company since the hearing.
The husband does not admit or deny this assertion but rather states “I propose that [F Enterprises ] be revalued”.
Both parties agree that the values of F Enterprises, the Superannuation Fund, the commercial property owned by F Enterprises and the balance in the Bartercard Accounts in F Enterprises and the Superannuation Fund have changed since the hearing and require revaluation. The husband does not accept the wife’s superannuation entitlements are as deposed to by her and seeks that those funds be revalued. This is likely to lead to delays before we could re-determine an updated list of assets and liabilities.
In his submissions, the husband’s senior counsel submits that on completion of the revaluation exercise “the Full Court can, with updated valuations and, at most, a limited hearing of discrete issues, re-exercise the discretion applying the 60%/40% apportionment to the pool as determined”. The husband’s senior counsel further submits that if we consider we cannot re-determine the matter and that the matter should be remitted for rehearing, that the only matter to be remitted should be the identification and value of the parties’ assets or either of them to which the 60/40 per cent apportionment is to be applied to make just and equitable orders.
In his submissions, the husband’s senior counsel referred to the property at G Street and said that this property was acquired post-separation, and as it did not form part of the wife’s case at trial, that this property did not form part of the asset pool. It was noted that the wife contends that the balance of proceeds of the sale of this property were approximately $70,000.00. We note the husband contended after an asserted expenditure of $29,935.00 was used on improvements and expenses in respect of the G Street property that the balance was used on improvements and expenses in respect of the commercial property. The husband’s senior counsel, in paragraph 6.8 of his submissions, notes the dispute between the parties, namely that the wife asserts the sum of $70,000.00 should be “added-back” to the pool of assets and liabilities, and on the husband’s case it should be disregarded.
In her submissions, at paragraph 4, the solicitor for the wife referred to options available to this Court. The wife’s primary position was that the Court should not “re-exercise its discretion and that the matter should be remitted for hearing” (paragraph 5.1). The wife’s solicitor pointed out as a result of the affidavits filed by the parties there are a number of matters in respect of which there will need to be necessary findings by a primary fact-finding tribunal.
In paragraph 1.1 of her submissions, the wife’s solicitor notes the matters in dispute between the parties as follows:
1.1From the Affidavit of the Wife filed 4th August, 2009 and the Affidavit of the Husband filed 17th August, 2009 certain facts are not agreed and they fall into the following categories:-
(a)The amount of Rent receive [sic] by the Wife from the [matrimonial home];
(b)How the reduction of indebtedness in the sum of $112,000 of [F Enterprises] is to be dealt with;
(c)The payment of Rates by the Wife on the [the matrimonial home] since January, 2005;
(d)The living arrangements for [B] with his Father and the support requirements of [B];
(e)The future care arrangements of [S] and whether she will live predominately with the Husband or the Wife or on a shared care basis and the financial impact thereof.
We would add to that list the dispute as to how the net proceeds of the G Street property should be treated.
The wife’s submissions also referred to matters requiring determination by appropriate evidence and other matters arising from the husband’s affidavit filed 17 August 2008 which are in dispute.
Re-determination
It is clear to us that a number of issues raised require a fact-finding exercise and it is impracticable for this Court to undertake that task. Having carefully considered the matters in dispute, together with the lack of presently available updating evidence, we are satisfied that it is not practical for us to re-determine the matter.
That determination leads us to a consideration of whether the matter should be remitted for a full rehearing or if the rehearing should be limited in scope. In Brett-Hall & Brett-Hall (2006) FLC 93-276 the Full Court (Finn, Coleman & May JJ) explained that a Full Court undoubtedly has the power to limit the scope of proceedings which are remitted for determination by a single judge. At paragraph 20 of their reasons the Full Court noted a caveat on the broad proposition that a matter can be remitted for a limited redetermination. The Full Court said:
It must not be overlooked however that the overarching obligation created by s 79(2) continues to require of the single Judge who re-hears the proceedings that his or her decision be ‘just and equitable’. Moreover, the trial Judge’s decision on the re-hearing remains discretionary and entailing the exercise of a broad discretion (see Brennan J in Norbis v Norbis (1986) 161 CLR 513).
The Full Court went on to point out the difficulties which had occurred following a limited remission of a matter to a single judge in a case of Re v W (unreported, Steele J, 2 July 2002), and how the Full Court’s objectives had not been able to be readily achieved. At paragraphs 22 and 23 of their reasons, the Full Court said:
In the circumstances of this case, to allow contribution issues to be revisited, at least to the date of completion of the hearing of the proceedings before the trial Judge, would in our view be unthinkable, largely for the reasons advanced by Senior Counsel for the wife to which we have earlier referred.
Contribution matters subsequent to the completion of the hearing before the trial Judge fall into a different category, particularly as the orders to be made by a single judge upon the proceedings being remitted by this Court must satisfy the just and equitable requirement on the day that such judge delivers judgment re-exercising the trial Judge’s discretion.
The comments of the Full Court in Brett-Hall & Brett-Hall which would support a limited remitter superficially have attraction in this matter. However, as pointed out by counsel for the wife, the error detected by the Full Court was the Federal Magistrate’s error in assessing contribution, including post-separation contributions.
It is submitted on behalf of the wife that as some two and a half years have elapsed since the hearing before the Federal Magistrate both parties should be able to adduce evidence of post-separation contributions from May 2007 to the present date. Additionally, and separate from the question of post-separation contributions, it is asserted the parties should be able to adduce evidence of relevant s 75(2) matters since May 2007, to enable the Federal Magistrate rehearing the matter the ability to determine the matter on a just and equitable basis.
We note in our substantive judgment we found error by the Federal Magistrate in his contribution assessment by reason of double counting to some degree in his assessment of the wife’s contribution by way of her contribution to the acquisition of the commercial property, which contribution included funds already taken into account by the Federal Magistrate in his assessment of the wife’s initial contributions.
Having regard to the errors that we detected in the Federal Magistrate’s overall contribution assessment, we have reluctantly determined that the whole of the matter should be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Wilson.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 19 February 2010
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