FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lubbert & Lubbert [2024] FedCFamC1A 18
Appeal from: Lubbert & Lubbert [2023] FedCFamC2F 1194 Appeal number: NAA 287 of 2023 File number: WOC 739 of 2019 Judgment of: CAMPTON J Date of judgment: 26 February 2024 Catchwords: FAMILY LAW – APPEAL – Where the appellant appeals from a discretionary judgment – Whether the primary judge erred in making a finding not available on the evidence – Where the error is established but is not material – Orders of the primary judge not manifestly unjust – Where none of the grounds have merit – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 75 and 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter v De Winter (1979) 29 ALR 211
Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 39 Date of hearing: 21 February 2024 Place: Sydney Counsel for the Appellant: Ms Rusiti of counsel Solicitor for the Appellant: Williams Family Law Solicitor for the Respondent: Litigant in person ORDERS
NAA 287 of 2023
WOC 739 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LUBBERT
Appellant
AND: MS LUBBERT
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 6 November 2023 is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Lubbert & Lubbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By Notice of Appeal filed on 6 November 2023, Mr Lubbert (“the husband”) appeals from orders made on 30 October 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 2) adjusting property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Ms Lubbert (“the wife”) opposes the appeal.
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- AGLC
- Lubbert & Lubbert [2024] FedCFamC1A 18
- Case
- [2024] FedCFamC1A 18
- Decision Date
CaseChat Overview and Summary
The appeal before the Court concerns the decision of the primary judge in Lubbert & Lubbert, which determined the division of property between the parties following their separation. The husband, who is 46 years old, and the wife, who is 59 years old, married in 2012 and separated in late 2017. The dispute primarily revolves around the primary property of the parties, which includes a jointly owned property and superannuation contributions, and the wife's property sold prior to their cohabitation. The husband's primary contention on appeal is that the primary judge erred in applying a global approach to the assessment of contributions, rather than a multiple pool approach, and that this error led to a manifestly unjust outcome.
The legal issues before the Court were whether the primary judge miscarried in his discretion by applying a global approach instead of a multiple pool approach, and if the outcome was just and equitable. The husband argued that the global approach led to a different result compared to what would have been achieved by a two-pool approach, potentially awarding him a greater adjustment due to his contributions to superannuation. However, the Court found that the husband's evidence did not substantiate his claims of significant post-separation contributions to superannuation, and thus, his argument was insufficient to ground a different exercise of discretion by the primary judge.
The Court dismissed the husband's appeal, noting that the permissible grounds of appeal under House v The King were not met. The husband could not demonstrate that the primary judge's decision was manifestly unjust or that any other specific errors were made. The husband's complaints on appeal were constrained by his own evidentiary failures at trial, and the Court found no basis to interfere with the primary judge's orders. The appeal was therefore dismissed, and the orders of the primary judge were upheld.
ORDERS:
The Court orders that the Notice of Appeal filed on 6 November 2023 is dismissed.
The legal issues before the Court were whether the primary judge miscarried in his discretion by applying a global approach instead of a multiple pool approach, and if the outcome was just and equitable. The husband argued that the global approach led to a different result compared to what would have been achieved by a two-pool approach, potentially awarding him a greater adjustment due to his contributions to superannuation. However, the Court found that the husband's evidence did not substantiate his claims of significant post-separation contributions to superannuation, and thus, his argument was insufficient to ground a different exercise of discretion by the primary judge.
The Court dismissed the husband's appeal, noting that the permissible grounds of appeal under House v The King were not met. The husband could not demonstrate that the primary judge's decision was manifestly unjust or that any other specific errors were made. The husband's complaints on appeal were constrained by his own evidentiary failures at trial, and the Court found no basis to interfere with the primary judge's orders. The appeal was therefore dismissed, and the orders of the primary judge were upheld.
ORDERS:
The Court orders that the Notice of Appeal filed on 6 November 2023 is dismissed.
Orders
Orders of the court
NAA 287 of 2023
WOC 739 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR LUBBERT
Appellant
AND:
MS LUBBERT
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The Notice of Appeal filed on 6 November 2023 is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
For the reasons that follow, the appeal will be dismissed.BACKGROUND The husband is 46 years old and the wife 59 years old. They commenced cohabitation in 2012, married in 2012 and separated in late 2017. There are no children of the marriage. The primary property of the parties comprises a jointly owned property at B Street, Town C, Queensland (“the Town C property”) having an equity of $183,013 and superannuation valued at $190,818, the husband’s entitlement being $171,702 and the wife’s being $19,116. At cohabitation the wife contributed her encumbered property at D Street, Suburb E (“the Suburb E property”) occupied by the parties. The wife received $154,038 when that property was sold in 2015. The primary judge found (at [15] and [16]) that the proceeds of sale were applied in part to purchase and renovate the jointly acquired real property at Town C, to purchase furniture and to reduce a debt on a car, with the wife failing to account for $40,000 – $46,000 of the proceeds of sale. The primary judge found (at [97]) that at cohabitation the husband contributed superannuation valued at $44,240. The primary judge applied a global approach to the assessment of contributions to a single pool of non-superannuation and superannuation property, making a finding as to equality. No adjustment was made to that finding on consideration of factors identified in s 79(4)(e) – (g) of the Act, including those in s 75(2). The orders subject to appeal provide for the wife to pay the husband the sum of $30,659, for her to simultaneously refinance the joint mortgage secured on the Town C property, and for the husband to then transfer to the wife his interest in that property. Each party was to retain their personal property and superannuation.THE APPEAL The Notice of Appeal identified five grounds of appeal. Those grounds were:1.The learned judge’s discretion miscarried in applying a global approach to the adjustment of property rights of the parties and not a multiple pool approach in circumstances where the multiple pool approach should have been applied.2.The learned judge’s discretion miscarried in ordering that in adjusting property rights that the [husband] retain his superannuation interest and that the [wife] make a payment to the [husband] and for the [wife] to retain her interest in the [Town C] property and the [husband] to transfer his interest to the [wife].3.The learned judge’s discretion miscarried in finding the difference between the global approach and the multiple pool approach was “merely arithmetic” in circumstances where the practical outcome was not just and equitable.4.The learned judge’s discretion miscarried as his Honour did not take into account the practical effect of making the order on the [husband] and [wife], thereby leading to an outcome that was not just and equitable.5.The learned judge erred in taking into account an irrelevant consideration, that being the [wife’s] age and ability to obtain a loan and where no evidence was led, in adjusting the property rights of the parties, in circumstances where it was not permissible to do so.
Evidence
Evidence Before The Court
In considering the husband’s proposition that a two-pool approach be utilised, the primary judge said:53The husband’s argument in support of the two pool approach is, essentially, that such an approach is necessary in order to adequately account for his post separation contributions which, he says, led to a substantial increase in his superannuation entitlements from the date of separation to the date of hearing. He also points to the superior value of his superannuation entitlements at the date of commencement of cohabitation, and initially appeared to suggest that the court would deal with parties’ superannuation entitlements in a fashion similar to that adopted by the court in West & Green (1993) FLC ¶92-395 – although that approach appears to have been abandoned in the husband’s final submissions.54 The main difficulty with the husband’s argument in support of the two pools approach, is that the evidence does not support the husband’s submission that he made substantial contributions to his superannuation following separation. I discuss that in more detail below when considering the husband’s contribution. While I accept that the evidence shows the value of his superannuation increased from a little over $107,000 at separation to almost $172,000 at hearing, there is no evidence to help me understand what caused that increase and, in particular, no direct evidence of any contribution to it by the husband. (Emphasis added) The husband submitted that the “while it was open to the judge in his discretion to apply the global approach… the choice of methodology led to an unjust outcome”. He contended there would be a discrepancy in the outcomes dependent upon which approach was taken. In his Summary of Argument, he said:6. The difference in outcome can be defined this way: if the two-pool approach was used then the Husband would have been potentially awarded more in an adjustment given his greater contributions to the superannuation pool. If the Court used a two pool approach, and assessed the husband’s contribution as being greater, then the use of the global approach has come to a different result. (Emphasis added) The language “potentially awarded”, underscoring this submission, is instructive. The evidentiary lacuna in the husband’s case of contributions to superannuation is not challenged. The reasons disclose that the primary judge carefully addressed all relevant factors and considerations. As to the husband’s complaint that the primary judge did not adopt his contention to apply a two-pool approach to the s 79 enquiry, his evidence at trial was insufficient to ground an exercise of discretion he sought. An appellant is required to identify or explain in written or oral submissions the finding which instead ought to have been made, identifying the material at trial pertinent to the dispute to ground the purported correct conclusion. The husband did not do so. His complaint is barren (see House). This ground also fails.CONCLUSION
Decision
Reasons for decision
As summarised by the Full Court in Hedlund & Hedlund (2021) 64 Fam LR 458 (at [12]):… the permissible grounds of appeal are those set out in House v The King (1936) 55 CLR 499 (“House”), which allow the challenge of such a judgment on a number of bases only. Those challenges may be brought due to an error of law affecting the judgment, the taking into account of an irrelevant consideration, the failure to take into account a relevant consideration, the mistaking of the material facts, and finally, the making of a decision that is manifestly unjust. The significance of the final of these grounds is that it does not require the identification of one of the other specific errors, but rather, error is inferred from the result. It must be remembered that this last ground is not made out by an appeal court coming to a different conclusion to the trial judge as to the way in which it would exercise the discretion. Rather, it requires the father to establish that the result could be no proper exercise of the discretion.(Emphasis added). In oral submissions the husband attempted to depart from that articulated in his Summary of Argument, being a complaint as to the percentage division of non-superannuation property, to focus on a contention that the overall determination by way of property adjustment was not just and equitable. It was submitted that the primary judge “has only done half the job that was required of him” in considering what was just and equitable for the wife, but failing to consider what was just and equitable for the husband. The submission highlighted that 85 per cent of the adjusted property as determined by the primary judge was his superannuation property, being funds that he could not access for another 14 years. The husband did not seek a superannuation splitting order in his Amended Initiating Application filed 28 January 2022 or in his minute of order tendered during submissions. He opposed the wife’s relief for a splitting order in her favour from his superannuation entitlement, seeking for each party to retain their respective superannuation entitlements. In so far as Ground 2 makes complaint as to the primary judge’s discretion miscarrying in refusing to make a superannuation splitting order, he cannot complain upon appeal that the primary judge made the very determination he asked of the Court (see Metwally v University of Wollongong (1985) 60 ALR 68). The husband also submitted at the hearing of the appeal that another basis of this ground was that “it was not just in the sense of being even handed as the economic impact of the two parties was unfair.” He contended that the primary judge ought to have considered his need to obtain his own accommodation as part of the orders made adjusting property. Notwithstanding this complaint was not articulated as a ground of appeal, he conceded during the hearing of the appeal that there was no evidence adduced in his case to underscore this complaint. The husband is constrained in this appeal by the way in which his case was conducted before the primary judge. He cannot complain on appeal as to matters arising from his own evidentiary failures at trial.
Ratio Decidendi
Legal Principle Established
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