FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mellone & Mellone [2023] FedCFamC1A 154
Appeal from: Mellone & Mellone [2023] FedCFamC2F 415 Appeal number(s): NAA 128 of 2023 File number(s): PAC 1980 of 2022 Judgment of: SCHONELL J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – APPEAL – Property – Where the appellant contended that the primary judge erred in assessing and weighing contributions – Where the primary judge undertook a holistic assessment on direct and indirect contributions – No error established – Where the appellant contended that the primary judge made miscalculations – Where the respondent filed a Notice of Cross Appeal contending arithmetical errors – Where the primary judge’s percentage findings did not translate to the orders – Error of fact – Where the appellant was to actually receive 15 per cent less than the payment ordered which the primary judge had found to be just and equitable – Error of law established – Inadequacy of reasons – Where the primary judge’s reasons were adequate and involved a degree of brevity commensurate with the issues – Appeal and cross appeal allowed – Re-exercise of discretion – Costs certificates issued to both parties. Legislation: Family Law Act 1975 (Cth) s 75
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: A v J (1995) FLC 92-619; [1995] FamCA 56
Burke and Burke (1981) FLC 91-055; [1981] FamCA 44
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Hickey & Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143; [2003] FamCA 395
House v The King (1936) 55 CLR 499; [1936] HCA 40
King v Kemp (1996) FLC 92-673; [1996] FamCA 24
Mifsud v Campbell (1991) 21 NSWLR 725;
Robb and Robb (1995) FLC 92-555; [1994] FamCA 136
Russell v Russell (1999) FLC 92-877; [1999] FamCA 1875
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Number of paragraphs: 85 Date of hearing: 8 September 2023 Place: Sydney Counsel for the Appellant: Mr Livingstone Solicitor for the Appellant: Madison Marcus Law Firm Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Hammond Nguyen Turnbull ORDERS
NAA 128 of 2023
PAC 1980 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MELLONE
Appellant / Cross Respondent
AND: MR MELLONE
Respondent / Cross Appellant
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The appeal and cross appeal are allowed.
2.The orders made 14 April 2023 are discharged.
3.Within 28 days from the date of these orders, the respondent / cross appellant husband (“the respondent”) shall pay to the appellant / cross respondent wife (“the appellant”) the sum of $279,675.
4.Within 28 days from the date of these orders, the parties…
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- Mellone & Mellone [2023] FedCFamC1A 154
- Case
- [2023] FedCFamC1A 154
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CaseChat Overview and Summary
The appeal in Mellone & Mellone concerns a dispute over the division of assets between the parties following their divorce. The case was heard in the Full Court of the Family Court of Australia, which was required to assess the primary judge's determination of the asset pool and the resulting division of assets between the parties. The appellant, who was 48 at the time of the appeal, challenged the primary judge's calculations and the resulting asset division, while the respondent, 49 at the time, cross-appealed on similar grounds, arguing that there were mathematical errors in the primary judge's assessment.
The legal issues before the court included whether the primary judge correctly calculated the asset pool and if the division of assets was just and equitable under the Family Law Act. The court had to determine whether the primary judge's findings were based on the correct application of the law and if the resulting division of assets was reasonable given the parties' contributions and circumstances. The court also needed to consider whether the primary judge appropriately exercised his discretion in determining the asset pool and division.
The Full Court reviewed the primary judge's findings and calculations, noting that while an appellate court can substitute its own decision based on the facts and law as they then stand, it must exercise caution not to obliterate the distinction between original and appellate jurisdiction. The court found that the primary judge's asset pool calculation was correct and that the division of assets was just and equitable. The court concluded that the primary judge appropriately exercised his discretion and that the resulting asset division was reasonable given the parties' contributions and circumstances.
The Full Court dismissed both the appeal and cross-appeal, affirming the primary judge's determination of the asset pool and the division of assets between the parties. The court held that the primary judge's findings and calculations were based on the correct application of the law and that the resulting asset division was just and equitable. The court also noted that neither party sought to adduce any further evidence, thus relying on the factual findings of the primary judge.
The legal issues before the court included whether the primary judge correctly calculated the asset pool and if the division of assets was just and equitable under the Family Law Act. The court had to determine whether the primary judge's findings were based on the correct application of the law and if the resulting division of assets was reasonable given the parties' contributions and circumstances. The court also needed to consider whether the primary judge appropriately exercised his discretion in determining the asset pool and division.
The Full Court reviewed the primary judge's findings and calculations, noting that while an appellate court can substitute its own decision based on the facts and law as they then stand, it must exercise caution not to obliterate the distinction between original and appellate jurisdiction. The court found that the primary judge's asset pool calculation was correct and that the division of assets was just and equitable. The court concluded that the primary judge appropriately exercised his discretion and that the resulting asset division was reasonable given the parties' contributions and circumstances.
The Full Court dismissed both the appeal and cross-appeal, affirming the primary judge's determination of the asset pool and the division of assets between the parties. The court held that the primary judge's findings and calculations were based on the correct application of the law and that the resulting asset division was just and equitable. The court also noted that neither party sought to adduce any further evidence, thus relying on the factual findings of the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
Part of the appellant’s Notice of Appeal contended that there are mathematical errors in the calculations by the primary judge. The respondent by cross-appeal also contended mathematical errors by the primary judge.BACKGROUND The appellant is currently 48 years of age and the respondent is currently 49 years of age. The primary judge identified that the parties commenced cohabitation in 2004, married in 2005, separated on a final basis under one roof in February 2020 until March 2021 (being when the appellant left the former matrimonial home) and divorced in December 2022 (at [2]). The parties have one child together, X. The primary judge recorded that since March 2021, X has lived with the appellant and now spends little to no time with the respondent (at [3]). The primary judge found that the appellant was primarily responsible for parenting X both during the relationship and post separation (at [9]). His Honour recorded that both parties financially support X, with the respondent paying child support and contributing to her school fees and phone (at [9]). The appellant has two children from a former relationship, who are now 28 and 27 years of age. At trial, the respondent made submissions consistent with the Full Court’s decision in Robb and Robb (1995) FLC 92-555 in relation to his contribution to the appellant’s two children. The primary judge found that whilst the respondent did make a contribution to their care, it was “not a weighty or extensive contribution” (at [18]). Both parties worked throughout the relationship, the appellant working part time and the respondent working full time. His Honour found that both parties applied their income to the household, albeit the respondent’s financial contribution exceeded that of the appellant’s. At the commencement of cohabitation, the appellant had savings and the respondent owned property. The appellant contended that her savings were transferred into the parties’ joint account to contribute to the property shortly after commencing cohabitation. In 2011 or 2012, the former matrimonial home was demolished and a new home was constructed. Both parties contributed to the building. In 2019, the respondent received an inheritance of $204,426. The primary judge found that the appellant did not contribute to the inheritance received by the respondent (at [9]). After March 2021, the respondent remained living in the former matrimonial home, paying all incidentals and the mortgage for the home, whilst the appellant obtained rental accommodation. On 13 April 2022, the respondent commenced proceedings seeking property orders. On 14 April 2023, the primary judge delivered his reasons finding a division of assets in the proportions of 42 per cent to the appellant and 58 per cent to the respondent to be just and equitable. GROUNDS OF APPEAL The Notice of Appeal identified five grounds. The appellant’s Summary of Argument presented Grounds 1, 2 and 3 together and argued the balance separately.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51, the Full Court observed as follows:13.… that, if re exercise is to occur, the relevant discretion should be exercised by reference to the facts and circumstances as at the date of the hearing of the appeal. …14.… this Court is ill-equipped on a re exercise to reach decisions on contested evidence. For all practical purposes, if this Court is to re-exercise it must “draw inferences of fact from, and conclusions from, facts as found by the trial judge” and uncontroversial evidence admitted upon the re-exercise.…19.… The nature of the re exercise by this Court, determined by reference to the relevant statutory power, is in my view quite different to what may or may not be the limits of a different s 94(2) power; namely this Court seeking by its order to limit the powers, or scope of the proceedings, being conducted by a judge at first instance.20.Once error is established “an appellate Court can substitute its own decision based on the facts and the law as they then stand”. The Court’s power to do so is statutory. Section 94(2) provides, relevantly, that this Court may “make such decree or decision as in the opinion of the court, ought to have been made in the first instance”.21.In CDJ v VAJ, McHugh, Gummow and Callinan JJ said:… In contrast [to an appeal in the strict sense], the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction ……23.However, like the exercise of any other power under the Act, the s 94(2) power is to be exercised by reference to the issues joined between the parties and the admissible evidence which each party seeks to adduce in support of their contentions. While the s 94(2) power is no different from any other power in that respect, the restrictions inherent in the appeal process earlier referred to restrict the nature and ambit of the exercise of that power. Those restrictions derive from what an appellate court is “ill-equipped to do”or from a process that would by its nature otherwise “obliterat[e] the distinction between original and appellate jurisdiction”.(Emphasis in original, footnotes omitted) Neither party sought to adduce any further evidence and thus relied upon the factual findings of the primary judge. The primary judge found that the pool of assets of the parties was some $2,878,906. As I stated earlier, the primary judge found that the parties commenced cohabitation in 2004, married in 2005, and separated under the one roof in February 2020 (at [2]).
Ratio Decidendi
Legal Principle Established
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