Martell & Martell

[2023] FedCFamC1A 71

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Martell & Martell [2023] FedCFamC1A 71

Appeal from:

Martell & Martell [2022] FedCFamC2F 1575

Appeal number(s):

NAA 280 of 2022

File number(s):

BRC 9054 of 2019

Judgment of:

ALDRIDGE J

Date of judgment:

15 May 2023

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Assessment in overall property division – Family violence – Consideration of Kennon v Kennon (1997) FLC 92-757 – Where the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous – Add backs – Error in failing to add back the wife’s legal fees – Appeal allowed – Discretion to be re-exercised – Orders made for further written submissions and updating evidence.

Legislation:

Family Law Act 1975 (Cth) ss 4AB, 75, 79

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Bapodra & Acharya (No 2) [2023] FedCFamC1A 42

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Candle & Falkner [2021] FedCFamC1A 102

Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633

Clauson and Clauson (1995) FLC 92-595

Conway v The Queen (2002) 209 CLR 203; [2009] HCA 2

De Winter and De Winter (1979) FLC 90-605

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64

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

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

Russell v Russell (1999) FLC 92-877; [1999] FamCA 1875

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Number of paragraphs:

76

Date of hearing:

19 April 2023

Place:

Sydney

Counsel for the Appellant:

Mr Looney KC

Solicitor for the Appellant:

Cooper Family Law

The Respondent:

Self-represented litigant

ORDERS

NAA 280 O 2022
BRC 9054 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MARTELL  

Appellant

AND:

MS MARTELL

Respondent

order made by:	ALDRIDGE J
DATE OF ORDER:	15 may 2023

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made by the primary judge on 24 November 2022 are set aside.

3.In respect of the re-exercise of discretion:

(a)Within 14 days, the husband is to file written submissions and any supporting evidence as to the matters that have occurred since the trial and current circumstances relevant to the property proceedings;

(b)Within a further 14 days, the wife is to file written submissions and any supporting evidence as to the matters that have occurred since the trial and current circumstances relevant to the property proceedings;

(c)Within a further 7 days, the husband is to file any further written submissions in reply.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martell & Martell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

INTRODUCTION

1. This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 November 2022 in proceedings between Ms Martell (“the wife”) and Mr Martell (“the husband”).

2. The primary judge found that the parties had property with a net value of $1,975,570 which was to be divided so that the wife was to receive 60 per cent of that property and the husband 40 per cent. It is not necessary for the purposes of this appeal to detail how that division was to be effected.

   THE APPEAL

3. The Notice of Appeal contains 13 grounds of which only Grounds 1, 2, 3, 4, 6, 7 and 9 were pressed. It is to be remembered that this is an appeal from a discretionary decision so that the following principles apply:

   …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…

   Did her Honour err in the assessment of the overall property division by her approach to family violence? (Grounds 1, 2, 3 and 4)

4. It is convenient to deal with these grounds together.

5. After resolving a number of factual disputes between the parties, her Honour identified their assets, liabilities and financial resources at [115] and superannuation interests at [134].

6. Her Honour’s conclusions as to the various contributions of the parties were as follows:

   126.I am satisfied that during the relationship the parties financial and non - financial contributions were equal save for the wife being subjected to family violence by the husband as determined by me. The marriage was a relatively long marriage and each contributed during the marriage to the welfare of the family, the children and worked hard to acquire assets. Without diminishing the seriousness of the assaults on the wife and the impact on her of family violence I accept that made her contributions to the family more arduous. I find that from the date of cohabitation to the date of separation the wife’s contributions were greater than the husband’s contributions.

   (Emphasis added)

7. I will return to the emphasised sentence shortly.

8. A consideration of the matters raised by s 75(2) of the Family Law Act 1975 (Cth) was undertaken at [136]–[143].

9. These matter were brought together in the following manner:

   145.Having regard to the parties respective contributions both financial and non – financial, the wife’s greater contributions, the husband’s contribution with respect to the compensation payment, the husband’s occupation of the former matrimonial home for the last 4 years, the disparity in the parties income earning capacity with the husband’s income earning capacity greater than the wife’s capacity, the fact that the husband has re-partnered and his partner contributes income to the household, the wife’s […] pensions, the fact that the husband makes no financial contribution to the children nor is he likely to in the future and the fact that the wife will be responsible for the children both financially and non - financially until each child is 18 and for [one of the children] that is another 4 years I am satisfied it is just and equitable to alter the parties interests in both superannuation and non- superannuation assets. Neither party is at an age where they can access their respective superannuation entitlements. I am satisfied that it is just and equitable to distribute the parties’ property as to 60% to the wife and the 40% to the husband.

10. Thus, her Honour did not separately quantify the contributions or the matters taken into account under s 75(2) but dealt with them together. That approach is the subject of Ground 6.

11. The present grounds deal with the findings as to contributions and particularly, the manner in which family violence was taken into account. Two errors are asserted, which are:

    ·The primary judge applied the wrong test and

    ·The primary judge failed to consider the materiality of the family violence found to have taken place.

12. These grounds are, however, related because the second asserted error is said to establish or, at least confirm the first.

13. The parties commenced cohabitation between 2001 and 2002. They separated on 14 September 2018.

14. The following was found to have occurred:

    ·In November 2002, the husband hit the wife over the head with a pillow several times and poured a bottle of soft drink over her;

    ·In December 2002, the husband pushed the wife hard and her head hit the window of the car. The husband shouted at the wife angrily about her parents;

    ·In 2009, the husband punched the wife in the face, striking her upper lip and nose which started bleeding;

    ·The August or September 2017, in the course of an argument, the husband pushed the wife on the shoulder with his hands and

    ·On 19 October 2018, in the course of an argument, the husband grabbed the wife’s face with both hands. The wife started to cry and he let go.

15. In addition, the primary judge accepted the wife’s evidence that during the relationship the husband was aggressive and controlling. Unfortunately, that was the extent of the evidence on that aspect of the matter and it is therefore difficult to understand the weight that could be attributed to such baldly stated evidence.

16. This led to the following conclusions, which appeared under the heading “Application of Kennon principles”:

    46.I accept the incidents occurred as described by the wife and reject the husband’s version of events. I take into account the assaults the wife was subjected to and am satisfied that the husband was controlling and aggressive during the relationship. He continued to assert himself in the witness box in a controlling and aggressive manner arguing with the [wife’s] lawyer, refusing to directly answer questions, obfuscating and attempting to justify his past conduct. I formed the view that many of his responses were deliberately untruthful and when confronted with a proposition that he had lied or failed to disclose or failed to respond he blamed his accountant or previous lawyer. I place weight on the fact that as a result of the conduct perpetrated by the husband the wife’s non - financial contributions were impacted and made more difficult and distressing and take that into account when assessing contributions.

17. I have already referred to [126] where her Honour took into account that the impact of the violence “made her contributions to the family more arduous”.

18. In Kennon v Kennon (1997) FLC 92-757 (“Kennon”), Fogarty and Lindenmayer JJ outlined principles to be taken into account when assessing findings of the occurrence of family violence in property settlement proceedings. As their Honours identified, they did so because the “pervasiveness and destructiveness of domestic violence” had in recent times become to be acknowledged and that there had “been a marked and long overdue change in those attitudes” so that ‘the law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences” (at 84, 290–84,291).

19. It is safe to say that such awareness and disapproval has continued to increase since then. Importantly, this increase in understanding directly led to changes in the Act. A new definition of family violence, which is in probably broader terms than would have been envisaged in 1997, was inserted into the Act in 2011 in the form of s 4AB.

20. Although widely quoted and followed, the principle stated in Kennon cannot be treated as if they were those of a statute – immutable and unvarying. At the least, those words must be read in the light of the Act as it speaks now.

21. Justices Fogarty and Lindenmayer were concerned about the opening of “floodgates” saying at 84,294–84,295:

    That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition there is the risk of substantial additional time and cost.

    …

    It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…

22. It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.

23. In Kennon, the principle was identified as follows:

    Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.

24. For the reasons given, the words “significantly” and “more arduous” are not to be read as

    
    

    coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.

25. The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.

26. That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.

27. More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine & Maine (2016) 56 Fam LR 500 at [47]–[52] (“Maine”); Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 (“Benson & Drury”) at [47]–[50]).

28. It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour (2019) FLC 93-898).

29. The primary judge did not use those words. Rather, her Honour said “the wife’s non-financial contributions were impacted and made more difficult and distressing” (at [46]) and “more arduous” (at [126]). They were found to be of such a nature so as to require consideration.

30. I would not take that to be an incorrect application of the principles set out in Kennon.

31. The difficulty that arises in this matter is, however, that the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous. The reasons are silent on the issue.

32. In Maine, the Court held that the application of the principle in Kennon “required of his Honour findings in respect of evidence that addressed specifically… the impact that the violence had upon the wife’s contributions” (at [52]).

33. The requisite finding could, as discussed, be inferred as explained in Benson & Drury at [50].

34. The husband submits that the absence of this discussion indicates that her Honour did not understand and did not correctly apply the principles set out in Kennon (Ground 2(a)). Alternatively, it is said that the failure itself is an error (Ground 1(c), Ground 2(b) and

    
    

    Ground 3).

35. I incline to the latter view, but either way, error has been demonstrated. Whilst the events described by the wife were no doubt distressing, the evidence and the findings did not deal with the magnitude and extent of its effect. Whilst matters can certainly be inferred, that inference must be properly based on the evidence before the court.

36. A question then arises as to whether the error is material to the outcome. If it is not, the appeal may still be dismissed (Conway v The Queen (2002) 209 CLR 203; Benson & Drury at [70]–[72]; Bapodra & Acharya(No 2) [2023] FedCFamC1A 42 at [18]).

37. Here, it must be said, that the violence is at a lower end of the spectrum. The wife did not give any evidence of the effect of it on her other than to say she was scared at the time, could not eat for a few days after being punched in the face and once stayed the night away from the matrimonial home. The description of the events themselves can only give rise to an inference that the adverse impact on contributions was also at a lower end of the spectrum.

38. It could be said that the matters set out at [145], quoted earlier, leaving aside the impact of the violence, amply justify the 60/40 division, especially having regard to the post separation and future support and care of the children (see also [46]).

39. In response, the husband submits that it cannot be assumed that the primary judge considered that the impact of family violence was minimal and had little or no effect.

1. Whilst there is force in that proposition, the question of materiality is still relevant.

2. The husband submits that this error is compounded by the failure of the primary judge to quantify the contributions of the parties. That is covered by Ground 6.

3. I shall return to the question of materiality after dealing with the remaining grounds.

   Did the primary judge err by conflating the determination of contributions and s 75(2) factors or fail to adequately explain the overall assessment of contributions or the adjustment for s 75(2) factors? (Ground 6)

4. In this matter the primary judge did not make any separate assessment of the parties’ overall contributions or identify, either as a percentage or by reference to the financial effect of what adjustment was appropriate for the s 75(2) considerations.

5. The husband submitted that her Honour erred in following that course.

6. The point is sufficiently answered by the following passage in Fitzmaurice & Woolridge (2020) FLC 93-951 (“Fitzmaurice”):

   17.Before the primary judge, both parties each sought orders for property settlement against the other, thus it is implicit that his Honour concluded that it was just and equitable to make an order pursuant to s 90SM(3) of the Family Law Act 1975 (Cth) (“the Act”) (Stanford v Stanford (2012) 247 CLR 108 (“Stanford”)).

   18.The argument of the appellant addressed this contention by reference to a number of aspects that form part of his Honour’s ultimate conclusion.  Those aspects are:

   •the value of the property of the parties or each of them at the time of the hearing;

   •the assessment of the contributions of the parties pursuant to s 90SM(4)(a)–(c) of the Act; and

   •whether there should be an adjustment to that assessment having regard to the matters to which s 90SM(4)(d)–(g) of the Act speaks, and in particular s 90SF(3).

   19.These three aspects echo three of the four steps or stages developed in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”).  Adherence to those four steps is not mandatory, and the approach “merely illuminates the path to the ultimate result” (see Norman & Norman [2010] FamCAFC 66 at [60]). Indeed in Martin & Newton (2011) FLC 93-490 at 86,127, it was said of the four step calculus:

   305.… [T]hat approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach.  This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant s 75(2) matters.

   (Emphasis in the original)

   20.The short point however is, whether a staged or another approach is adopted by a judge engaged in determining the parties’ entitlement to property settlement orders, the fundamental responsibility imposed by s 90SM is to:

   a)identify the assets and liabilities of the parties available for consideration;

   b)consider and assess the parties contributions under s 90SM(4)(a)–(c); and

   c)consider and asses the matters relevant in s 90SM(4)(d)–(g), including referral to matters in s 90SF(3).

   21.In undertaking this responsibility, the primary judge is required to give reasons sufficient to be able to follow the primary judge’s line of reasoning upon which the decision is based.

7. Thus, the approach of her Honour, whilst not commonly taken, is not erroneous.

8. The husband relied upon Clauson and Clauson (1995) FLC 92-595 at 81,911; Russell v Russell (1999) FLC 92-877 at [80] and Fitzmaurice at [28]. In the first two cases, the Court emphasised that it is the orders themselves that must be just and equitable not merely the percentage division and that a separate consideration of that and the monetary effect of the orders is desirable. The last case merely makes the point that the decision under appeal did not make any assessment of the impact of the contributions at all. That is not the case here.

9. These cases do not assist on the present point.

10. The ground continues to assert that, in the alternative, the primary judge did not adequately explain the overall assessment of contributions or the assessment of the s 75(2) factors.

11. In Fitzmaurice, the Full Court said:

    27.While it is desirable and indeed can be a useful foil against a charge of insufficiency of reasons to express the quantification of the assessed contributions in percentage terms, it is however, imperative to quantify the assessed contributions in some way, whether expressed in percentage or other terms so as to provide a basis against which any adjustment derived from a consideration of the matters referred to in s 90SM(4)(d)–(g) can be made. Here, his Honour made no attempt to quantify the contributions and the parties and the Full Court are in the dark as to what assessment of those contributions his Honour made (see Keskin & Keskin and Anor (2019) FLC 93-932 at 79,371).

12. Here the primary judge found that the contributions made during the marriage were equal, save for the impact of the violence but overall, from cohabitation to separation the contributions favoured the wife (at [126]). In making that finding, her Honour clearly took into account the matters listed at [127].

13. Similarly, at [145] her Honour listed the s 75(2) factors, which, as expressed, clearly favoured the wife, which taken into account with the contribution findings justified the 60/40 division.

14. Those reasons when taken with the earlier paragraphs, which explain how each factor was evaluated, was a sufficient quantification of them. The reasoning process and the attribution of weight is apparent.

15. The husband submitted that it was necessary that a contributions based entitlement should be expressed so that the s 75(2) adjustment could be evaluated against that finding. In other words, any such “adjustment” must be based on the contribution based entitlements.

16. Whilst it is common parlance to speak of the approach to s 75(2) matters as an “adjustment” that is a misnomer. That is not the language of s 79(4) which similarly identifies the matters referred to in s 75(2) as matters which the court shall take into account.

17. This ground does not succeed.

    Did the primary judge err by failing to add back legal fees? (Grounds 7 and 9)

18. It is well established that the use of “add backs” (that is the inclusion in the list of property to be divided of assets that the parties have disposed of or spent) is exceptional – the preferred course is to deal with the matters under s 75(2)(o). See for example, Trevi & Trevi (2018) FLC 93-858 at [28]–[30]. Their use, however remains discretionary. Importantly, where relevant, the issues that give rise to the claimed add backs, if established, must be dealt with one way or another.

19. The Court explained the position in Candle & Falkner [2021] FedCFamC1A 102, which was quoted by her Honour:

    58.In our view, these authorities establish four relevant propositions. First, adding back property which has been distributed and spent is discretionary, and reflects an exceptional exercise of the discretion as an “accounting” or “balance sheet” exercise for the purposes of ss 79(2) and (4) to achieve justice and equity between the parties. Secondly, the nature of the expenditure reflected in add backs is relevant, and reasonably incurred expenditure does not usually come within accepted categories of addback. Thirdly, the decision in Stanford, followed by Bevan, does not necessarily require the conclusion that adding back notional property is per se an error, but proper consideration must be given to existing interests in property. Fourthly, in cases which are not exceptional, expended interim distributions can be taken up under s 75(2) rather than as part of the balance sheet exercise.

    (Emphasis in original)

20. A recognised category of common add backs (although the matter could also be approached under s 75(2)(o)) is the payment of legal fees from assets that would otherwise have been available for distribution (Chorn and Hopkins (2004) FLC 93-204).

21. The wife received a partial property settlement of $162,000 of which she spent $86,000 on legal fees and the rest on living expenses. Her Honour said:

    119.I accept the wife’s evidence that a substantial proportion of the funds she received were used for living expenses including resettlement of the wife and children after they left the former matrimonial home, rent and living expenses in circumstances where the husband was living in the [Suburb B] property which was unencumbered. I find that she was required to spend substantial funds in legal fees due the husband’s conduct of the proceedings, his failure to disclose information, failure to respond to numerous requests for information and his deliberate conduct in hiding assets and income. As add backs are exceptional I decline to add back the moneys distributed to the wife post separation. She did not commence earning an income until late August 2020 not having worked for about 16 years.

    120.I decline to add back legal fees paid by each of the parties. The wife has a current liability $51,455 regarding a loan to pay legal fees which she will be required to discharge.

22. There could be, and was, no challenge to the first sentence. Funds so used are regarded as proper expenditure which does not need to be taken into account.

23. In her written submissions filed on 13 October 2022, given to the primary judge, the wife conceded that $86,000 should be added back to the lists of assets.

24. On the appeal, the husband submitted that the appropriate figure was $180,000 which is derived from a consideration of the wife’s evidence of the amount of the fees and the funds available to meet them. This was not the way in which the hearing was conducted. In his written submissions filed on 6 October 2022 to the primary judge, the husband contended that all of the partial property settlement should be added back because even if all of it was not spent on legal fees, it freed up other funds to do so. The husband is bound by the manner in which he conducted the hearing.

25. Having regard to her Honour’s findings at [118] as to the fate of the $162,000, the appropriate fee for add backs for legal fees paid by the wife is $86,000.

26. It follows that the primary judge erred by failing to add that sum back.

27. However, on any re-exercise of discretion, I would take into account the appropriate add back for the husband’s legal fees (even though not sought at the hearing, the discretion is a fresh one to be exercised anew). It appears from the husband’s affidavit filed on 15 September 2022 that the appropriate figure is $50,000. Counsel for the husband said it should be less because of the source of the funds. It is however, difficult to quantify.

28. On that basis, the difference is $36,000 of which 40 per cent is $14,400 or 0.73 per cent of the total property to be divided. If the appeal is allowed only on that ground and the discretion re-exercised on the above basis, then this would be the change in outcome. Again, issues of materiality and de minimis arise.

    MATERIALITY

29. In De Winter and De Winter (1979) FLC 90-605 at 78,092, Gibbs J, with Aiken J agreed, said:

    There are many other authorities, from Young v Thomas (1892) 2 Ch 134 at p 137, to Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at p. 621, that recognise that a mistake of fact is a ground for overruling a decision involving a discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake if fact should be upheld simply because the order was well within the range of discretion of the primary judge.

    His Honour added:

    But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of its foundations.

30. Justice Mason, with whom Barwick CJ agreed and who along with Murphy J formed the majority as to the outcome, said at 78,099:

    The discretionary judgment made by Emery J, though it was based on some misapprehensions as to fact, was confirmed by the Full Court after the more important apprehensions were corrected. True it is that Watson SP said no more than that the order made by the judge was “well within the range of his discretion, having regard to the totality of the facts presented to him in this case”. However, Evatt CJ specifically stated that “not only was his Honour’s order well within that margin, but it was an order which, on my understanding of the facts of this case, is one which is eminently just and equitable as between the parties”.

31. Although there was a difference on the outcome reached, there was not a disagreement as to the principles to be applied (Mallet v Mallet (1984) 156 CLR 605 at [13]).

32. In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, in the course of discussing the nature of appeals from discretionary judgments, the Full Court of the Federal Court pithily said:

    53.In all cases of specific error, the error must have either caused or materially contributed to the result.  An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.

33. I have identified two errors on the part of the primary judge. The materiality of it is now to be determined.

34. The error as to legal fees can be easily remedied by re-working the figures found by her Honour. The husband agreed that if this was the only error this was an appropriate course.

35. The issue of the violence and its impact is more difficult. Had this been the only error in the reasons, as discussed earlier, consideration would need to be given to its materiality given the other matters taken into consideration. It is not, however, and it is possible that the proper approach to legal fees could affect, in some way, the exercise of the overall discretion.

    CONCLUSION

36. It follows that the appeal will be allowed and the orders set aside.

37. In the circumstances of this case, I do not see any basis for remittal but as explained in Allesch v Maunz (2000) 203 CLR 172 at [31] the discretion to re-exercise the power under s 79 must be based on the circumstances that exist at the time of the re-exercise. Therefore, there will be directions as to the provision of updating evidence as to matters that have occurred since the hearing and as to current circumstances and submissions in writing. Subject to objection from the parties, the matter will be finalised on those papers.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       15 May 2023