Mayhew & Fairweather

Case [2022] FedCFamC1A 53

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Mayhew & Fairweather [2022] FedCFamC1A 53

Appeal from: Fairweather & Mayhew [2021] FamCA 614
Appeal number(s): NAA 15 of 2021
File number(s): SYC 13 of 2017
Judgment of: AUSTIN, TREE & GILL JJ
Date of judgment: 12 April 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders – Whether the primary judge erred in taking into account the husband’s defective disclosure when assessing contributions – Inadequacy of reasons – Whether the primary judge erred in “double counting” the value of a notional asset under s 79(4) and under s 75(2) of the Family Law Act 1975 (Cth) – Appeal allowed – Matter remitted for rehearing – Costs ordered in a fixed sum in favour of the appellant.
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Cases cited:

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

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

Semperton v Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132

Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Number of paragraphs: 27
Date of hearing: 30 March 2022
Place: Heard in Sydney, delivered in Cairns
Counsel for the Appellant: Ms Gillies SC
Solicitor for the Appellant: De Saxe O’Neill
Counsel for the Respondent: Mr Longworth
Solicitor for the Respondent: Broun Abrahams Burreket

ORDERS

NAA 15 of 2021
SYC 13 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MAYHEW

Appellant
AND:

MS FAIRWEATHER

Respondent

ORDER MADE BY:

AUSTIN, TREE & GILL JJ

DATE OF ORDER:

12 APRIL 2022

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Family Court of Australia made 20 August 2021 be set aside.

3.The proceedings be remitted for hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

4.Within 28 days, the respondent pay the appellant’s costs in the sum of $20,000.

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).

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 Mayhew & Fairweather has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN, TREE & GILL JJ:

INTRODUCTION

  1. By his Amended Notice of Appeal, Mr Mayhew (“the husband”) appeals from final property settlement orders made in the…

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Mayhew & Fairweather [2022] FedCFamC1A 53
Case
[2022] FedCFamC1A 53
Decision Date

CaseChat Overview and Summary

In the case of Mayhew & Fairweather, the Federal Circuit and Family Court of Australia reviewed an appeal from final property settlement orders. The husband, Mr. Mayhew, appealed the decision on several grounds, including the primary judge's consideration of his defective disclosure, the adequacy of reasons provided, and alleged errors in the valuation of assets. The wife, Ms. Fairweather, opposed the appeal. The court found that the primary judge had made several errors in the exercise of his discretion, particularly in assessing the husband’s contributions and in calculating the value of a notional asset.

The legal issues before the court involved whether the primary judge erred in taking into account the husband’s defective disclosure, whether the reasons provided were adequate, and whether there was an error in the double counting of the value of a notional asset. The court examined these issues within the framework of established principles for reviewing discretionary judgments. It was found that the primary judge had indeed erred in these respects, leading to a substantial wrong in the exercise of discretion.

The court allowed the appeal, finding that the primary judge’s errors warranted a remitter for a rehearing before a different judge. The court also ordered that costs in a fixed sum of $20,000 be paid by the wife within 28 days. The appeal’s success and the financial positions of the parties justified an order for costs, though not in the full amount sought by the husband. The court set aside the original orders and remitted the matter for further hearing.

Orders

Orders of the court

NAA 15 of 2021

SYC 13 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MAYHEW

Appellant

AND:

MS FAIRWEATHER

Respondent

ORDER MADE BY:

AUSTIN, TREE & GILL JJ

DATE OF ORDER:

12 APRIL 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Family Court of Australia made 20 August 2021 be set aside.

3. The proceedings be remitted for hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

4. Within 28 days, the respondent pay the appellant’s costs in the sum of $20,000.

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).

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

The wife opposes the appeal, however for the reasons that follow, the appeal succeeds.BACKGROUND At the time of the primary judge’s reasons for judgment, the husband was 71 years of age and the wife 63. The husband is a health professional, albeit had a different career for a period during the relationship. The wife is a health professional. The parties commenced cohabitation in 1990, married in May 1992, and separated at some point between February 2014 and October 2016. Whatever was the date of separation, plainly the relationship was lengthy. One now adult child was born to the relationship. At trial, the parties were able to agree on the items and values of their property, and the joint balance sheet appears at [11] of the primary judge’s reasons for judgment. What the parties could not agree upon was the extent of their respective contributions to the property pool and any adjustment to their entitlements pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).THE APPEAL At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 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 of appeal were as follows:1.That His Honour erred in weighing each of the parties’ introduced capital on a mathematical basis, without any regard for when it was contributed, nor how the parties used those capital sums and in doing so he was wrong in law.2.That the primary Judge failed to weigh (or properly weigh) the Husband’s significantly greater contributions and in failing to do so fell into error.3.That His Honour erred in failing to give adequate Reasons for his finding that is was “just and equitable” that there be orders for a 60% division of the assets in favour of the Wife.4.That His Honour erred in the manner in which he approached and determined an adjustment in favour of the Wife should be made.5.That His Honour erred in the manner in which he approached the treatment of the capitalised value of the husband’s pension and in addition erred in assessing the wife’s Section 75(2) adjustment arising from the husband’s pension.6.That His Honour erred in failing to make orders that were just and equitable by making orders that occasioned a 20% differential between the percentage figure that the husband was to receive as compared to the wife.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given that the monetary adjustment referrable to s 75(2) factors is more than 28 per cent of the agreed notional capital value of the pension, the error is likely material.Conclusion Given the errors which we have identified, the appeal must be allowed and, as counsel for both parties reluctantly but entirely properly conceded, in that event the matter would need to be remitted. Given the remitter, it is not appropriate for us to consider the remaining grounds, which largely comprise weight challenges, and an assertion that the overall outcome was manifestly unjust. Also, given the frank errors we have identified, it is not productive to further consider the challenge to the adequacy of the primary judge’s reasons.COSTS In the event that the appeal succeeded, the husband sought an order for costs in a sum slightly in excess of $33,000. Whilst opposed by the wife, we are satisfied that the husband’s success, and the parties’ financial positions, justifies an order for costs here. However we are not persuaded that, in all the circumstances, it ought be in the sum sought, but rather we fix the husband’s costs at $20,000. The wife should pay them within 28 days.

Ratio Decidendi

Legal Principle Established

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