Lubbert & Lubbert
[2024] FedCFamC1A 18
•26 February 2024
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
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
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.
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.
The husband’s Summary of Argument filed 19 January 2024 recorded differing content and numbering to the grounds contained in the Notice of Appeal. At the hearing of the appeal the husband confirmed that he relied on the grounds contained in the Notice of Appeal, not as contained in his Summary of Argument. Ground 3 in the Notice of Appeal was abandoned. Ground 9, as contained in his Summary of Argument, making a complaint as to inadequate reasons, was not prosecuted as a ground of appeal.
At the commencement of the hearing of the appeal the husband made an oral application seeking leave to amend Ground 5:
(a)By omitting the words “taking into account an irrelevant consideration” and inserting the words “in making a finding not available on the evidence”; and
(b)To include a complaint as to a failure to afford procedural fairness in terms as recorded in paragraph 26 of his Summary of Argument as follows:
If the matters were of relevance then the Court should have given the parties the opportunity to address the Court on these issues. The primary judge, it is submitted, denied the parties the opportunity to do so and thus denied the Husband procedural fairness.
The wife opposed the oral application for leave to amend Ground 5.
Rule 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing the Summary of Argument by the appellant. Both complaints for which leave to amend was sought were forecast in the husband’s Summary of Argument. Notwithstanding that the wife engaged in the appeal without legal representation, she had adequate notice of the fact and substance of the proposed amendments to Ground 5 and opportunity to respond to them in her Summary of Argument. The husband was granted leave during the hearing of the appeal to amend Ground 5 in the terms of his oral application.
The relevant principles which govern appeals from discretionary judgments are well settled. Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The grounds will be addressed as the husband grouped them in oral submissions.
Ground 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].
Ground 4 – The learned judges 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.
These grounds morphed into a single complaint at the hearing of the appeal, challenging the decision of the primary judge as being manifestly unjust in concluding to adjust the equity in the Town C property as to $152,354 to the wife and $30,659 to the husband, while not adjusting the husband superannuation valued at $171,702 and the wife’s valued at $19,116.
A complaint that the result was “unreasonable or plainly unjust” (House) or “plainly wrong” (Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) at 539–540) is a viable ground of appeal which lies from a discretionary decision, though difficult to establish (CDJ v VAJ (1998) 197 CLR 172 at 231–232).
In Norbis Brennan J stated:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
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.
These grounds are no more than bare complaints that the husband received less of the equity in the Town C property than he viewed as just and equitable. The reasons establish that the property division ostensibly falls comfortably within the discretionary range and is not a manifestly unjust outcome.
The grounds fail.
Ground 5 – The learned judge erred
in taking into account an irrelevant consideration[in making a finding not available on the evidence], 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, [and failed to afford the husband procedural fairness in denying the parties opportunity to address the Court on these matters].The finding under challenge is:
233Given her significantly greater age and, presumably more limited capacity to obtain a home loan and repay the same, I consider it to be just and equitable that as far as possible the wife have the opportunity to keep as much of the equity in the [Town C] property as possible.
The husband submitted that there were two “issues of concern” with this finding, being:
(a)The assumption that a person’s age had an impact on the working life of the wife; and
(b)The presumption that the wife would have difficulty financing a loan, in the absence of any evidence.
It is an error of law to make a finding of fact where there is no evidence to support that finding.
The wife could not identify any oral or affidavit evidence grounding this finding. Her counsel conceded during submissions at trial that there was no evidence as to these subject matters (Transcript 19 September 2022, p.112 line 7). The finding made by the primary judge was not available.
The focus on appeal then shifts to whether the error impacted the result of the case (De Winter v De Winter (1979) 29 ALR 211). The materiality of the error and whether it is to impugn the result becomes the heart of this ground. On enquiry at the hearing of the appeal the husband could not identify any material consequence that flowed from this error of fact. This particular of the ground fails.
As to the particular of a failure to afford procedural fairness, the husband sought orders for the property to be sold and the proceeds of sale divided between he and the wife. The wife sought to retain the property in specie. The primary judge was clearly cognisant of the scope of the dispute between the parties, recognising that a central issue was how the equity in the Town C property was to be divided. As to the sale of the property, the following exchange occurred between the primary judge and counsel for the husband:
[COUNSEL FOR THE HUSBAND]: … He has been forced to move in with his stepfather and, luckily for him, he is only paying a nominal board which your Honour will see in his financial statement, but it is a sad state of affairs for a man of his age and his position. He jointly owns a property and he is liable on a mortgage. He needs an outcome whereby he can – this property can be – I say it has to be sold. He needs to get off the mortgage, and your Honour would award him a percentage of the sale proceeds in accordance with what is just and equitable.
HIS HONOUR: Well, I can get him off the mortgage by making an order, in the first instance, that the wife do all things, sign all documents that may be necessary to cause that loan to be renegotiated and the husband’s obligations under it to be discharged. And if that doesn’t happen, I can order the sale then.
(Emphasis added) (Transcript 19 September 2022, p.108 lines 27 to 38)
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). The controversy, as to whether the Town C property was to be sold, or whether the husband was to transfer his interest in it to the wife with the wife to refinance the joint mortgage, was ventilated throughout the trial. In so far as the failure to afford procedural fairness is framed as denying the husband the opportunity to address the Court on this issue, the husband engaged directly with the primary judge on the matters that are the subject of complaint. It was squarely raised.
How the opportunity to further address the Court on this subject matter effected of any injustice of any kind, whether by procedural unfairness or otherwise, is wholly unclear. Orders are not vitiated merely because they do not match the orders devised by the husband. The particular of the ground as to a failure to afford procedural fairness is not made out.
The ground, as amended, fails.
Ground 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.
The High Court has made it clear that the Court has a discretion as to which approach to take pursuant to s 79 of the Act (see Norbis).
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
The appeal is dismissed.
The wife was self-represented. No question of costs arises.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 26 February 2024
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