Macauley & Rattray

Case [2024] FedCFamC1A 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Macauley & Rattray [2024] FedCFamC1A 4

Appeal from: Rattray & Macauley [2023] FedCFamC2F 1011
Appeal number: NAA 242 of 2023
File number: PAC 2013 of 2019
Judgment of: CAMPTON J
Date of judgment: 6 February 2024
Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was as to events that post-date the hearing – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant raises grounds as to a failure to afford procedural fairness, error of principle, and discretionary errors – Whether the primary judge erred in excluding items of property of the parties from the balance sheet without making findings as to the value of such items – Whether the primary judge erred in providing adequate reasons – Where, in reality, the appellant was complaining that her contentions were not given decisive weight – Appeal dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 75, 79 and 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26 and 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

De Winter v De Winter (1979) 23 ALR 211

Franklyn & Franklyn (2021) FLC 94-031; [2021] FamCAFC 112

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hamish & MacPherson [2023] FedCFamC1A 74

Hickey & Hickey & the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Jess & Jess (No 4) [2023] FedCFamC1A 189

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 96
Date of hearing: 31 January 2024
Place: Sydney
Counsel for the Appellant: Mr Schonell
Solicitor for the Appellant: Gannon Family Law
Counsel for…

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AGLC
Macauley & Rattray [2024] FedCFamC1A 4
Case
[2024] FedCFamC1A 4
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Macauley, the appellant, appealed against the decision of the primary judge in relation to the division of property and other orders made in the context of the parties' separation and divorce. The dispute centred on the valuation and division of the parties' property, including residential properties and superannuation entitlements, as well as the primary judge's reasons for the decision. The central legal issues in the appeal were whether the primary judge erred in excluding certain property items from the balance sheet without determining their value, whether there were errors of principle or discretionary errors in the decision, and whether the primary judge provided adequate reasons for the decision.

The court found that the appeal did not succeed on the grounds presented. The court held that the primary judge's assessment of the relevance of the Town F property was correctly made and that there were no errors in the rulings on the admissibility of the medico-legal reports. The court also found that the primary judge did not err in excluding certain items from the balance sheet or in determining the value of those items. The court held that the primary judge's reasons were adequate and that the appellant was essentially arguing that her contentions were not given decisive weight, which did not constitute a valid ground for appeal. The court dismissed the appeal and ordered that the appellant pay the respondent's costs in the fixed sum of $11,379.

The court further ordered that the appellant's application to adduce further evidence was refused and dismissed. The Notice of Appeal filed by the appellant was also dismissed. The form of the order is subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

NAA 242 of 2023

PAC 2013 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MACAULEY

Appellant

AND:

MR RATTRAY

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

6 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The appellant’s Application in an Appeal filed 21 December 2023 to adduce further evidence is refused and dismissed.

2. The Notice of Appeal filed 7 September 2023 is dismissed.

3. The appellant pay the respondent’s costs fixed in the sum of $11,379 within 28 days.

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 is dismissed.BACKGROUND The wife is 54 years of age and husband 45 years of age. They commenced cohabitation in 2006, married in 2008 and separated in April 2013. There were no children of the marriage. An order for divorce was made in 2023. At cohabitation the husband contributed an encumbered property in City U purchased in 2004 for $170,000. He had paid a deposit of $8,500 and borrowed about $162,000 from the ANZ. The primary judge found at [34] that at the commencement of cohabitation the mortgage balance was approximately $160,000. The property was sold in late 2014 for $225,000. The husband received $18,271 from the sale and applied these funds to reducing the liabilities of the parties, including a roof repair liability of approximately $15,000 (at [56]). The primary judge found that during the relationship both parties contributed to the mortgage loan repayments for the City U property “approximately equally” (at [73]), they applied the balance of their incomes to their living expenses “approximately equally” (at [38]) and contributed approximately equally to homemaking and to their respective welfares (at [39]). In about 2008 the parties jointly purchased the Suburb C property for $557,000. They borrowed $529,000 from Westpac. The balance of the acquisition was funded as to $27,850 from the wife’s savings and a loan of $13,000 from the wife’s mother. This property was tenanted until early 2010, with the rent payments being put towards the mortgage loan repayments. The parties then occupied the property. The husband vacated the property upon separation. The wife continued to live in the property for the ten-year period from separation until trial. The primary judge found at [37] that during the relationship the parties contributed equally to the mortgage loan repayments for the Suburb C property. Both parties continued to contribute towards the loan repayments after separation. The husband ceased making contributions to the repayments in about November 2014 (at [41]). The mortgage balance at separation was $528,000 and at trial $455,000. From November 2014 the wife made the mortgage loan repayments, mostly being interest only (at [41]). The wife suffered a workplace injury in 2018 and was thereafter without income for approximately 12 months until her workers compensation claim was accepted (at [41]). In 2019 the wife received $65,616 by way of a permanent impairment finding. The wife receives workers compensation in the sum of $2,341 per week subject to a work capacity assessment at least once every two years. The husband commenced a relationship with Ms D in 2013. They have a seven-year-old child. The husband, Ms D and their child have lived in rental accommodation for ten years from separation until 2023. In early 2023, they commenced to occupy a property purchased by Ms D at Town F, NSW. At the commencement of cohabitation with the wife, the husband had superannuation with Super Fund 2 in the sum of $27,850 (at [43]). He did not contribute to this scheme during the parties’ relationship or after separation. At cohabitation he had other superannuation entitlements of an unknown value. His total superannuation entitlements at separation were approximately $80,000 (at [43]). At trial his entitlement in Super Fund 2 was $51,345 and his entitlement with Super Fund 1 was $311,505. At the commencement of cohabitation, the wife’s superannuation was approximately $17,431 (at [44]). The wife’s superannuation entitlement at separation was not known. She made withdrawals from her superannuation entitlements in or around January 2019 of approximately $62,000 and applied those funds towards mortgage loan arrears ($55,961) and repairs to the Suburb C property ($6,000) (at [44]). As at the date of the hearing her entitlement with Super Fund 3 was $193,000.

Evidence

Evidence Before The Court

The reasons are clear as to identifying the basis of the decision, and the extent to which the parties’ submissions were understood. The reasons do justice to the issues posed by the parties in this proceeding (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). This ground fails.Ground 10 – His Honour erred by making findings of fact that were unsupported by the evidence.Ground 11 – The cumulative effect of each of His Honour’s errors was to produce a judgment that was manifestly unjust and plainly wrong. This ground alleges errors of both fact and law. The wife submits that these errors include:a. His Honour’s assessment that the [Town F] Property would only be relevant to the proceeding if the appellant could establish that he “had utilised matrimonial property to acquire such interest”;b. His Honour’s ruling that the medico-legal reports were inadmissible because of non-compliance with r 7.21 of the Federal Circuit and Family court of Australia Rules 2021 (Cth), when the Rules have no bearing on the admissibility of evidence;c. His Honour’s determination that the items that were to be excluded from the balance sheet were “relatively quite modest in nature” when he had not determined the value of those items and the pool itself was modest, such that even minor items assumed significance;d. His Honour’s determination that the respondent’s [V Company] shares should be excluded because they “were purchased post separation and to which the wife made no relevant contribution”;e. His Honour’s finding of fact that “both parties contributed approximately equally to the welfare of the family” when there was no evidence of the respondent’s relevant contributions upon which such a finding could be made;f. His Honour’s determination that the respondent’s drawdown’s on bank accounts in the aggregate sum of $62,704.00 represented “premature distribution of matrimonial property to himself”, without treating those sums as add-backs; and g. His Honour’s failure to consider and determine the appellant’s argument that it would be just and equitable for her to retain the [Suburb C] Property because of her unique personal circumstances and perilous psychological condition.(As per the original) (Footnotes omitted) During the hearing of the appeal, the wife abandoned the particulars identified at subparagraphs d and f. She conceded that it was a proper exercise of discretion not to add-back those items and to take them into account in the adjustment to the contribution finding by way of s 75(2) as undertaken by the primary judge at [28], [57], [58] and [59]. Each of the remaining particulars are addressed in the order as set out by the wife in her Summary of Argument.His Honour’s assessment that the [Town F] Property would only be relevant to the proceeding if the appellant could establish that he “had utilised matrimonial property to acquire such interest” This particular of the ground is not reflective of the determinations of the primary judge on the subject matter. It fails for the reasons identified as to Grounds 1, 2 and 4.His Honour’s rulings that the medico-legal reports were inadmissible because of non-compliance with r 7.21 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth), when the Rules have no bearing on the admissibility of evidence

Decision

Reasons for decision

Grounds 10 and 11 fail.CONCLUSION AND COSTS The appeal will be dismissed. In the event that the appeal was unsuccessful, the husband sought costs in the fixed sum of $11,379. The wife did not dispute the reasonableness of quantum of the husband’s costs sought. The wife submitted that each party should bear their own costs, identifying her contended inferior financial circumstances compared to those of the husband. She submitted that the appeal had proper basis and had been conducted efficiently. The starting position, as set out at s 117 of the Act, is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A). I do not accept that the wife’s financial circumstances militate against the making of a costs order. By the dismissal of this appeal the wife has been wholly unsuccessful. The circumstances justify the making of an order in the fixed sum as sought by the husband.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.