Matos & Matos

Case [2024] FedCFamC1A 230

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Matos & Matos [2024] FedCFamC1A 230

Appeal from: Matos & Matos [2024] FCWAM 135
Appeal number(s): NAA 230 of 2024
File number(s): 8515 of 2023
Judgment of: RIETHMULLER J
Date of judgment: 11 December 2024
Catchwords:

FAMILY LAW – APPEAL – Procedural fairness – Where magistrate highlighted deficiencies in evidence and allowed appellant time to file further evidence – Whether appellant entitled to expect orders she sought if she filed further evidence – Whether appellant entitled to be told of magistrate’s mental processes prior to judgment – No error on part of magistrate.

FAMILY LAW – APPEAL – PROPERTY – Valuation evidence – Bare assertions of value – Adoption of figure less than bare assertion with evidentiary basis – No error on behalf of magistrate – Where valuation cannot be obtained property should be sold.

FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement of 54/46 in favour of the appellant – Where contributions assessment in favour of appellant – Where appellant demonstrated greater future needs – Reasons alleged to be inadequate simply because ultimate exercise of discretion disputed – Reasons found to be adequate – Error in exercise of discretion – Grounds of appeal established – Appeal allowed – Orders set aside.

Legislation:

Family Law Act 1975 (Cth) ss 75(2), 79(4)

Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9
Cases cited:

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

Bergman & Bergman (2009) FLC 93-395; [2009] FamCAFC 27

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

Chief Commissioner of Police v IHF [2021] VSCA 147

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

House v The King (1936) 55 CLR 499; [936] HCA 40

Raymond & Raymond (2024) FLC 94-180; [2024] FedCFamC1A 45

Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

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

F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

Division: Division 1 First Instance
Number of paragraphs: 42
Date of hearing: 29 November 2024
Place: Sydney
Counsel for the Appellant: Mr Hannan
Solicitor for the Appellant: Rattigan Kearney Bochat
The Respondent: Litigant in person

ORDERS

NAA 230 of 2024
8515 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MATOS

Appellant
AND:

MR MATOS

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1.Appeal NAA 230 of 2024 be allowed.

2.The orders of 21 August 2024 be set aside.

3.The matter be remitted for rehearing.

4.The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion…

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AGLC
Matos & Matos [2024] FedCFamC1A 230
Case
[2024] FedCFamC1A 230
Decision Date

CaseChat Overview and Summary

In the matter of MS Matos v MR Matos, the appellant, Ms Matos, sought to appeal the decision of a magistrate in relation to a property settlement following the separation of the parties. The respondent, Mr Matos, did not participate in the hearing before the magistrate or in the hearing of the appeal, though he did appear seeking orders that the magistrate's judgment be set aside and the matter remitted for rehearing. The primary legal issues before the court were whether the magistrate's process was procedurally fair, if the magistrate erred in assessing the valuation evidence, and whether there was an error in the exercise of discretion in the property settlement. The court found that the magistrate did not err in his procedural fairness, as he had allowed the appellant time to file further evidence after highlighting deficiencies in the evidence. However, the court found that the magistrate did not adequately consider the appellant's present needs and care responsibilities for the youngest child when framing the orders, which led to an error in the exercise of discretion. As a result, the appeal was allowed, the orders of the magistrate were set aside, and the matter was remitted for rehearing. The court also ordered that the appellant be granted a costs certificate for the costs incurred in relation to the appeal.

Orders

Orders of the court

NAA 230 of 2024

8515 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MATOS

Appellant

AND:

MR MATOS

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 230 of 2024 be allowed.

2. The orders of 21 August 2024 be set aside.

3. The matter be remitted for rehearing.

4. The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

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

The respondent did not participate in the hearing, nor did he participate prior to the hearing of the appeal where he appeared and sought orders that the magistrate’s judgment be set aside and the matter remitted for rehearing. BACKGROUND The appellant and respondent commenced a relationship in 1997, married in 1998, and separated in 2018. The parties remained living in the same home, while separated, until May 2023. It was not suggested that there were any significant assets brought to the relationship by either party nor were any significant lump sums received by either party during the relationship ([25]). The appellant is 48 years of age and works in administration and as a cleaner. The respondent is 52 years of age and is a qualified tradesperson ([8]). The parties have three children: two of the children are over 18 and the youngest child is aged 16. The youngest child, who remained in the care of the appellant, has been diagnosed with Global Developmental Delay and Autism Spectrum Disorder and that “it is likely that [the child] will require on-going support from the [appellant] given that the latter condition has been assessed as being ‘lifelong and pervasive’” ([29(c)]). The appellant has been without child support payments to assist with the expenses of the child. Whilst she receives National Disability Insurance Scheme support, that support is to assist in meeting expenses associated with the child’s special needs and not the day-to-day care of the child. The appellant also receives modest social security support by way of a Carers Allowance, Rent Assistance, and Family Tax Benefit. The magistrate did not make specific findings as to the appellant’s earning capacity ([29(a)]) but found that she would be able to maintain gainful employment ([30(a)]). The appellant had set out in her financial statement that she earns around $1,152 per week from employment, around $60,000 per annum. The magistrate found that the respondent, a qualified tradesperson, has an earning capacity of $170,000, based upon his earnings prior to COVID-19. However, the magistrate said that he was unsure whether the respondent was exercising this earning capacity at present ([29(e)]), due to the respondent’s conspiratorial beliefs and the associated financial consequences, and thus that the respondent may have significant future needs ([30(b)]). However, there was no evidence as to the respondent’s income or earnings in recent years, nor any evidence as to any future needs of the respondent. The magistrate set out his findings as to the assets and superannuation of the parties ([20]), to the following effect:Jointly owned matrimonial home $490,000.00The [appellant’s] car $1,000.00The [respondent’s] car $3,000.00The contents of the home [in the respondent’s possession] $7,000.00 The mortgage on the home ($223,443.93)Outstanding Council Rates ($3,513.44)Outstanding Water Rates ($2,694.91)Total of non-superannuation assets $271,347.72[Superannuation fund 1] (W) $15,000.00[Superannuation fund 2] (H) $64,061.04[Superannuation fund 3] (H) $241,091.94Total Superannuation $320,152.98Total Assets and Superannuation $591,500.70

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are no reasons addressing this issue, despite the appellant seeking an order that she receive the entirety of the proceeds of the sale of the home. As the appellant argues, it appears that the magistrate did not have regard to the appellant’s present needs (demonstrated by her lower income and care of the child) when framing the orders as to the division of the assets and superannuation of the parties. This was a significant factor relevant to the form of the orders effecting the property settlement which it appears the magistrate failed to take into account (see House v The King at 505). The appellant has made out this ground of appeal.CONCLUSION The respondent asks that the matter be remitted for a further hearing as he challenges a number of the factual matters in the magistrate’s judgment. He also alleges that the child now lives with him and not the appellant, which is a significant factor in the exercise of the discretion to make property settlement orders in this case. The appellant accepted that the appropriate course is to remit the matter for a rehearing. The appeal will be allowed, the orders of the magistrate set aside, and the matter remitted for a rehearing.COSTS The appellant has succeeded on points of law. The appellant seeks a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the appeal. The appellant also seeks a certificate pursuant to s 8 of the Federal Proceedings (Costs) Act for the costs of the rehearing. The rehearing will not be another undefended hearing as the respondent is now participating in the litigation. Even without the appeal the undefended judgment was likely to be set aside under the rules (as a judgment made in the absence of the respondent who now seeks different orders on the basis of substantially different facts). The costs of the undefended hearing are more appropriately dealt with in the litigation between the parties, just as they would have been had the magistrate’s court set aside the orders. The respondent is unrepresented and incurred no costs in the appeal and did not participate in the undefended hearing before the magistrate. He seeks no orders with respect to costs. In the circumstances of this case it is appropriate to order that a certificate be issued to the appellant under s 9 pursuant to the Federal Proceedings (Costs) Act with respect to the costs of the appeal. The circumstances do not warrant a certificate under s 8 of the Federal Proceedings (Costs) Act.

Ratio Decidendi

Legal Principle Established

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