FAMILY LAW – APPEAL – Appeal from final property orders – Where grounds of appeal allege the primary judge erred in law by failing to take account of the appellant’s updated liabilities after the evidence was reopened – Where the appellant alleged incompetence of his lawyers in failing to file evidence caused factual error – No denial of procedural fairness – No error of law – Where it is not established the trial miscarried because of the incompetence or failures of the appellant’s lawyers – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where some of the material could demonstrate the orders appealed from were erroneous – Where some of the material bears upon why the evidence was not adduced before the primary judge and the appellant’s arguments of incompetent legal representation and miscarriage of justice – Application granted.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MacCallion & MacCallion [2025] FedCFamC1A 144
Case
[2025] FedCFamC1A 144
Decision Date
CaseChat Overview and Summary
The appeal in MacCallion & MacCallion concerns the final property orders made in a family law matter between Mr MacCallion (the appellant) and Ms MacCallion (the respondent). The primary judge had been presented with updated evidence regarding the appellant's liabilities after the evidence was reopened, and the appellant contended that the primary judge had erred in law by not considering this updated information. The appellant also argued that his lawyers were incompetent for not filing the evidence, which he claimed led to a factual error and a miscarriage of justice. The case was heard in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction.
The court was required to determine whether the primary judge had erred in law by not considering the appellant's updated liabilities and whether there had been a denial of procedural fairness due to the alleged incompetence of the appellant’s legal representation. Additionally, the court had to assess whether the trial miscarried because of the appellant’s lawyers' failures and whether the appeal should be dismissed. The court also considered an application to adduce further evidence which could potentially demonstrate that the orders appealed from were erroneous, as well as evidence explaining why certain evidence had not been adduced before the primary judge.
The court found that there was no error of law on the part of the primary judge. The appellant's contentions regarding the incompetence of his legal representation did not establish that the trial miscarried due to such incompetence or failures. The court concluded that the appellant had not demonstrated any procedural unfairness or a miscarriage of justice. Consequently, the appeal was dismissed. The court also granted the appellant leave to rely on the further evidence sought in the application to adduce further evidence. The appellant was ordered to pay the respondent's costs of the appeal fixed in the amount of $15,000 within 28 days of the date of these orders.
This decision highlights the importance of timely and accurate disclosure in family law proceedings and the court's scrutiny of the procedural fairness and competence of legal representation. The court's decision also reaffirms the principle that errors in legal representation do not automatically lead to a miscarriage of justice unless there is a clear demonstration of such an impact.
Orders
Orders of the court
NAA 172 of 2025
PTW 1524 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR MACCALLION
Appellant
AND:
MS MACCALLION
Respondent
AND:
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, HARPER & SCHONELL JJ
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1. The appellant is granted leave to rely on the further evidence sought in Order 1 of the Amended Application in an Appeal filed in Court on 30 July 2025 in Appeal NAA 172 of 2025.
2. The appellant has leave to amend Ground 2 of his grounds of appeal as set out in these Reasons for Judgment.
3. The appellant is refused leave for any further amendment of his grounds of appeal.
4. Appeal NAA 172 of 2025 is dismissed.
5. Within 28 days of the date of these orders, the appellant pay the respondent’s costs of the appeal fixed in the amount of $15,000.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
For the reasons which follow the appeal will be dismissed.BACKGROUND The parties commenced cohabitation in 2007, married in 2010 and separated in 2017. There are two children of the relationship. The trial of both parenting and financial issues commenced on 17 July 2023 and ran for five days with judgment reserved on 21 July 2023. During the trial the appellant was represented by solicitor and counsel. The solicitor in question was Mr D. The significance of this will become apparent later in these reasons. No direct complaint is made about the conduct of the trial up to 21 July 2023. Rather, the focus of the appellant’s complaint relates to the period after the main part of the trial was completed. To understand the appellant’s contentions and dispose of the appeal it is necessary, therefore, to record in some detail the course of events after 21 July 2023. In October 2023, the appellant was arrested and remanded in police custody, charged with various offences. The parties appeared before the primary judge on 28 November 2023, when the implications of this criminal process were discussed. Mr D appeared for the appellant on this occasion. The proceedings returned before the primary judge on 28 December 2023. Again, Mr D appeared for the appellant. Mr D explained at some length the nature of the charges against the appellant to the primary judge. On 5 January 2024, the parties and the ICL were granted leave by the primary judge to reopen their cases limited to the consequences of the appellant’s criminal charges and “any substantive update to the property proceedings; arising since the conclusion of the Trial”. Leave was granted to the parties to file and serve one affidavit of themselves and up to two further witnesses, together with written submissions, and to apply to conduct further cross-examination. In June 2024, the appellant was sentenced to incarceration for 26 months (backdated to commence from October 2023). He is due to be released in September 2025. On 29 August 2024, leave was again granted to the parties to reopen their cases to adduce further evidence limited to the issues arising from the appellant’s criminal convictions and any further update to the property proceedings. According to the transcript, Mr D appeared at the hearing conducted by telephone on 29 August 2024. The appellant was also present by telephone. Mr D told the primary judge that the appellant’s grant of legal aid had expired and an extension had been sought. He described his presence as “acting as an amicus-type position” (Transcript 29 August 2024, p.3 lines 24–25). However, Mr D sought a short adjournment from the primary judge on the basis the appellant was due to be released from incarceration and would raise funds of $40,000 to discharge a liability to Company K (Transcript 29 August 2024, p.4 line 14 to p.5 line 4). The proceedings were adjourned to 1 October 2024. On 1 October 2024, Mr D again appeared by telephone and the appellant was present by telephone as well. Again, the issue of the appellant’s liability to Company K was discussed and the appellant was questioned directly by the primary judge about payment of that debt (Transcript 1 October 2024, p.5 lines 13–41). The proceedings were stood over to the next day, 2 October 2024. Mr D again appeared, in person on this occasion (Transcript 2 October 2024, p.479 lines 11–12). However, it does not appear that the appellant was present at the hearing. The lawyer for the respondent raised in open court the fact that Mr C “isn’t working and doesn’t have a practising certificate currently” (Transcript 2 October 2024, p.480 lines 8–10).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 12 June 2025, an order was made staying enforcement of the orders of the primary judge the subject of this appeal.PRIMARY JUDGMENT In light of the grounds relied upon, it is not necessary to describe the reasoning of the primary judge extensively. However, the following parts of the judgment below are relevant to the disposition of the appeal. The primary judge specifically addressed the appellant’s liabilities for rates, water use and land tax at [260] and [262]–[263]. At [263] he explained:263. By the end of the trial, I was not satisfied that any of the council rates, Water Corporation, credit card and personal loan liabilities listed in the [appellant’s] schedule were current or likely to be pursued. Even if I am wrong about this I do not consider that the [respondent] should be responsible for them. She justifiably complains about the [appellant’s] control of the family finances, and her lack of involvement in them particularly in managing the sale of the parties' properties and I have already made comment about the adequacy of the [appellant’s] disclosure. In the circumstances I do not intend to include lines 15 – 33 of the [appellant’s] assets and liabilities as detailed above as debts of the parties. The comment about the appellant’s disclosure to which the primary judge referred was made at [250] where he found: “Overall, the [appellant’s] level of disclosure was abysmal which obliged the [respondent’s] lawyers to have to work out things ‘on the fly’”. The primary judge otherwise relied on the Form 13 Financial Statements filed by the parties for the values of the parties’ assets, liabilities and superannuation interests (at [265]). The appellant’s Form 13 Financial Statement was dated 7 July 2023. In relation to mortgages in particular, the primary judge articulated his reasoning at [274]–[277]:274. Despite my order of 10 October 2024 requiring the [appellant] to file an affidavit about the current amounts of the mortgages over the [Suburb F] and [Suburb E] properties, he did not do so. 275. The [respondent] proposes that the three loans secured against the [Suburb F] and [Suburb E] properties be included in the sum of $679,543 comprising separate loans of $76,427.54, $331,906 and $271,209 which roughly correlate with the figures in the [appellant’s] credit report. 276. In his oral evidence the [appellant] confirmed the amounts owing on the loans totalled $685,000 comprising two loans of $210,000 and third loan of $265,000. As can be seen the difference between the parties is not large. 277. I intend to use the information contained in the [appellant’s] credit report which I consider to be the best available evidence which details loans of $77,032, $337,749 and $264,508 respectively for a total figure of $679,289. The primary judge determined the total net assets of the parties to be $1,430,303, including three properties owned by the appellant with the following values (at [279]):(a)H Street, Suburb F: $550,000(b)2 J Street, Suburb E: $625,000(c)1 J Street, Suburb E: $660,000