Mesnic & Boucher
[2025] FedCFamC1A 94
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mesnic & Boucher [2025] FedCFamC1A 94
Appeal from: Boucher & Mesnic [2024] FedCFamC2F 1840 Appeal number: NAA 12 of 2025 File number: SYC 6917 of 2023 Judgment of: ALDRIDGE J Date of judgment: 23 May 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge intended to divide the property 65/35 on contributions with a small adjustment under s 75(2) – Where the primary judge ordered the appellant to pay the respondent $115,000 resulting in a 55/45 split – Where the primary judge failed to take into account the property each party would retain in deriving the adjusting figure – Order for payment erroneous – Appeal allowed – Order for payment varied to reflect the primary judge’s reasons – Respondent to pay the appellant’s costs. Legislation: Family Law Act 1975 (Cth) s 75
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Number of paragraphs: 36 Date of hearing: 19 May 2025 Place: Sydney Counsel for the Appellant: Mr Havenstein Solicitor for the Appellant: JHP Lawyers Counsel for the Respondent: Mr Cohen Solicitor for the Respondent: Alex Yun & Partners ORDERS
NAA 12 of 2025
SYC 6917 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MESNIC
Appellant
AND: MR BOUCHER
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 of the orders made on 8 November 2024 is varied by substituting the figure of $115,000 with the figure of $62,763.
3.The respondent pay the appellant’s costs fixed in the sum of $16,931.37 within 28 days.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mesnic & Boucher has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 November 2024. The appellant was ordered to pay the respondent $115,000 within 90 days. In default, a property owned by the appellant was to be sold to raise the funds to make the payment. The parties were otherwise to retain the assets and superannuation held by them.
These reasons explain why the primary judge erred in his formulation of the orders.
THE APPEAL
His Honour intended to divide the property 65 per cent to the appellant and 35 per cent to the respondent, with a small adjustment under s 75(2) of the Family Law Act 1975 (Cth), but the orders result in the respondent receiving 45 per cent.
The primary asset to be divided was the matrimonial property valued at $720,000. It was subject to a mortgage in the sum of $494,815. Each of the parties held funds in bank accounts, owned a car and held superannuation entitlements.
Following [99], the primary judge sets out his findings as to the balance sheet which totals $495,093 of assets over liabilities. Earlier in the reasons, the primary judge “finds that the net property pool is approximately $326,000” (at [3]). It would appear the difference is the deduction of the superannuation entitlements of the parties. Neither party sought a superannuation splitting order.
The following contribution findings were made:
103…The Court finds that the [appellant] made the greater financial contributions to the acquisition of the [former matrimonial home], being the principal asset in the net pool. The Court finds that the [appellant] made the greater financial contributions throughout the relationship of the parties.
104In respect of this second step the Court also finds that the [appellant] made the greater non-financial contributions throughout the relationship, and that the [appellant] made a greater contribution in the capacity of homemaker and to the welfare of the parties during the relatively short matrimonial relationship of about 5 years. Assessing these contributions to the net property of the matrimonial relationship the Court finds the [appellant’s] greater contributions are reflected in an apportionment 65 % in favour of the [appellant] and 35% to the [respondent]. This would reflect an amount of $114,100 to the husband.
The difficulty that arises immediately is that the primary judge appears to have used the figure of $326,000 (being the total assets excluding superannuation) to derive the $114,100 that represents 35 per cent.
After discussion of the considerations raised by s 75(2), his Honour found that a “small adjustment just under 1% in the sum of $900 should be made in favour of the [respondent]” (at [119]).
This would see the respondent receive or retain the following (noting that the only liability of the parties was the mortgage in the sole name of the appellant):
Description Value Payment from the appellant $115,000 ANZ account $38,870 Country D Bank account $1,500 Motor vehicle $11,000 Super Fund 1 $28,836 Country D superannuation $26,858 TOTAL $222,064
This is approximately 45 per cent of the total property.
Similarly, the orders would leave the appellant in the following position:
Description Value Matrimonial home $720,000 Motor vehicle $11,000 Westpac account $70 ANZ account $470 Trust account $38,000 Superannuation $113,304 Sub-total $882,844 Less Mortgage ($494,815) Payment to the respondent ($115,000) TOTAL $273,029
This is 55 per cent of the property available for distribution.
The primary judge did not undertake this exercise. It demonstrates that the payment of $115,000 does not result in a 65/35 per cent division (or thereabouts) of the parties’ property.
His Honour refers to a two-pool approach, with superannuation dealt with separately, being pressed by the appellant at [81] and [83]. The reasons do no say that was the approach being taken. The fact that parties may not be seeking superannuation splitting orders does not preclude the superannuation being included in the pool of assets available for division.
Nonetheless, even if his Honour did intend to adopt a two-pool approach, repeating the above exercise without the superannuation amounts shows the respondent receiving $166,370 and the appellant $159,725. That would equate to the respondent receiving 51 per cent of the total assets excluding superannuation ($326,095). Again, this demonstrates the payment of $115,000 does not result in a 65/35 per cent division of the parties’ property.
It was entirely permissible for the primary judge to have made a lump sum order, but it is plain that is not the course that was followed. The quoted passages clearly identify the much more common percentage approach. The contributions identified were to the parties’ property overall, particularly the acquisition of the matrimonial home. If a lump sum approach was intended, there would be a fatal lack of reasons.
It is true that after identifying the contributions, his Honour then reflected them in a percentage division of the “net property” leading to the first figure of $114,100. The Court was not, however merely making orders as to the surplus of assets over liabilities but all of the parties’ property which, accordingly, needed to be taken into account by considering what each party would retain.
Again, it is possible that the primary judge did take into account all of the property and intended an overall split other than the 65/35 but, if that is so, his Honour again does not say so or explain why that course was being followed.
It follows that the derivation of the adjusting figure from the contributions and s 75(2) findings was erroneously calculated.
Issues raised by the respondent
The respondent raised many arguments opposing the appeal, most of which were criticisms of the primary judge’s factual findings, none of which was raised by a Notice of Cross-Appeal. There is no point in pursuing them.
The respondent submitted that if there was an error, it was a “slip” which could have been corrected by the primary judge under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I am not convinced that the error is a mere clerical “slip” but, even so, an appeal court is empowered to make such an order in the circumstances as it sees fit (see s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The primary argument of the respondent was that the actual outcome of the primary decision of a 55/45 per cent division was an appropriate outcome and the appeal should be dismissed. That, of course, is contrary to the clear findings of the primary judge as to the parties’ respective contributions. There is no suggestion anywhere in the reasons that an overall split of 55/45 was in contemplation, let alone intended.
DISPOSITION
It follows that appealable error has been established. The appeal will be allowed.
There are then three potential courses to follow: simply correcting the order, re-exercising the discretion or remitting the matter for rehearing.
The last is particularly unappealing because the parties have spent at least $40,000 on the appeal and will spend at least that much again on a rehearing. The property pool is not at all large.
Doing the best I can, I will use the primary judge’s findings to correct the order.
The primary judge seemingly excluded superannuation from his calculations. It was not suggested that the approach was erroneous, and it was one that was open to the primary judge. The better course is to follow it when making the new orders.
The key conclusion in the reasons is that the appropriate division of property is 65/35 per cent based on contributions to the property available for division. That percentage was an exercise of discretion available on the evidence. It was not the subject of a cross-appeal.
The error lies in the derivation of the figure for payment from those findings in that it fails to take into account the assets and liabilities being retained by each of the parties.
I am not going to add in the further $900 to this percentage calculation. It was said to be 1 per cent, which could be taken into account. However, $900 is not 1 per cent of the assets available (excluding superannuation) or even of the $114,000. It is less than 0.3 per cent of the first and, as such, is too small to be taken into account even in a pool of this size.
The assets being retained by the respondent have a total value of $51,370. Thirty-five per cent of the available assets (excluding superannuation) of $326,095 is $114,133. To reach that figure the respondent needs to be paid $62,763.
The appeal will be allowed and the order for payment by the appellant will be varied accordingly.
COSTS
The appeal has been successful. The assets being divided are not of great extent.
The respondent submitted that as the error was one made by the primary judge it is appropriate that there be no order as to costs and certificates be granted under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). It is relevant to point out that at the hearing before the primary judge, counsel for appellant attempted to alert the primary judge to the difficulty with the course his Honour said he was proposing to follow, but to no avail.
The appeal should have been conceded at the outset so as to avoid the costs of prosecuting it.
Taking these matters into account the appropriate order is that the respondent will pay the appellant’s costs fixed in the sum of $16,931.37.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 23 May 2025
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