Naisby & Naisby

Case [2022] FedCFamC1A 207

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Naisby & Naisby [2022] FedCFamC1A 207  

Appeal from: Naisby & Naisby [2022] FedCFamC2F 924
Appeal number(s): NAA 156 of 2022
File number(s): BRC 4847 of 2016
Judgment of: ALDRIDGE J
Date of judgment: 8 December 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Procedural fairness – Adequacy of reasons – Where the appellant asserts the primary judge’s reasons do not disclose why the parties’ contributions should favour the appellant by only 2 per cent, where contributions up to separation were equal and the pool included a property comprising over 10 per cent of the value of the net assets – Where the reasons do not readily identify how the contributions finding was derived – Error established – Appeal allowed – Orders set aside –  Matter remitted for rehearing – Costs certificates granted.   
Legislation:

Evidence Act 1995 (NSW) s 131

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:

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

Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49

Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 77
Date of hearing: 1 November 2022
Place: Sydney (via video link)
The Appellant: Self-represented litigant
Counsel for the Respondent: Mr Jordan
Solicitor for the Respondent: Barry Nilsson Lawyers

ORDERS

NAA 156 of 2022
BRC 4847 of 2016

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

MR NAISBY

Appellant
AND:

MS NAISBY

Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

8 DECEMBER 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made on 14 July 2022 are set aside.

3.The matter is remitted for rehearing to the Federal Circuit and Family Court of Australia (Division 2) by a judge other than the primary judge.

4.The Court grants to the appellant 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.

5.The Court grants to the respondent a costs certificate pursuant to s 6 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.

6.The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs)…

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Naisby & Naisby [2022] FedCFamC1A 207
Case
[2022] FedCFamC1A 207
Decision Date

CaseChat Overview and Summary

In the case of Naisby & Naisby, the appellant contested a decision made by the primary judge, raising issues of procedural fairness and the adequacy of reasons provided. The appellant claimed that the primary judge failed to accept parts of his case outline and evidence, specifically regarding offers of settlement, which he believed were admissible under the Evidence Act 1995 (NSW). The primary judge ruled that offers of settlement were not relevant to the decision and directed the appellant to file an amended case outline omitting references to the offers. The appellant argued that this decision deprived him of procedural fairness, as he was not given the opportunity to present his case fully.

The court examined whether the primary judge's decision to exclude the offers of settlement constituted a denial of procedural fairness. It was noted that the appellant's submissions oscillated between claims of procedural unfairness and an error in the application of the Evidence Act. The court highlighted that procedural fairness is denied when a person is deprived of the opportunity to present their case. However, the court found that the primary judge had adequately explained his reasons for excluding the offers of settlement, and that the appellant's submissions did not sufficiently address the relevance of the offers to the decision at hand.

Regarding the adequacy of reasons, the appellant argued that the primary judge's reasons did not sufficiently explain why his post-separation contributions should only result in a 2% favourability in his favour. The court examined the primary judge's treatment of the parties' contributions and the inclusion of the Town KK property in the property pool. The court found that the primary judge correctly considered the Town KK property as a significant contribution by the appellant and provided a detailed explanation of how the division of contributions was arrived at. The court concluded that the primary judge's reasons were adequate in addressing the parties' contentions and the allocation of contributions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of appeal relied on by the appellant included a want of procedural fairness and inadequate reasons. The former should be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128) and it is convenient to deal with the latter next.Did the primary judge deny the appellant procedural fairness by refusing to accept parts of his Case Outline and evidence? (Ground 4) The appellant’s affidavit evidence included a discussion of and reference to a number of offers of settlement that he had made (Appellant’s affidavit filed on 16 February 2022, paragraphs 325–327). That evidence was picked up in his Case Outline filed on 7 March 2022. The appellant’s contention is that the offers of settlement were admissible under s 131(2)(a)–(c) and s 131(2)(g) of the Evidence Act 1995 (NSW) (“Evidence Act”). At the outset, it has to be said that in his submissions the appellant moved between assertions of a want of procedural fairness and an error in the application of the section. They are different errors and it seems clear that the appellant is relying on both. A person will be denied procedural fairness if they are deprived of the opportunity to present their case (Kioa v West (1985) 159 CLR 550 at 582). This, the appellant asserts, was the case here. Counsel for the respondent objected to the paragraphs in the Case Outline which referred to offers of settlement (Transcript 14 March 2022, p.8 line 21 to p.9 line 19). His Honour then said: HIS HONOUR: … [Addressing the appellant], there’s a prohibition for trial judges to understand or receive any offers of settlements made by the parties, save for in circumstances where at the end of a case a party might be making an application for costs, and it’s one of the section 117(2A) matters that I can then take into account. …HIS HONOUR: … In the circumstances, it is my ruling that those paragraphs that have been referred to by [counsel for the respondent] that relate to offers of settlement shouldn’t be included in your case outline. (Transcript 14 March 2022, p.9 lines 21–35) This led to the following:[THE APPELLANT]: May I speak to that, your Honour?HIS HONOUR: You may.(Transcript 14 March 2022, p.9 lines 36–38) The appellant then proceeded to make submissions, asserting that the respondent had consented to the admission of the relevant offers because she herself had referred to them in previous affidavits. He referred twice to the Evidence Act in general terms, but did not identify s 131 of that Act. He reiterated the point about consent and referred to waiver. His Honour then said:HIS HONOUR: … I’m of the view that those offers of settlement won’t assist me today in deciding the matter.(Transcript 14 March 2022, p.10 lines 46–47) The appellant was directed to file an Amended Case Outline omitting reference to the offers, which he did. For the same reasons, paragraphs 325–327 of the appellant’s affidavit filed on 16 February 2022 were also rejected.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I shall return to this materiality as well as the question of whether a simple alteration should be made to the outcome in due course. The parties’ post separation contributions In short, the appellant submitted that the reasons do not disclose why the parties’ contributions should favour the appellant by only 2 per cent, despite the contributions up to separation being agreed to be equal and where the property pool included the Town KK property, which comprised over 10 per cent of the value of the net assets. The appellant also submitted that the legal fees that were added back came from his TPD insurance payments and should also have been regarded as a further contribution by him. Before turning to his Honour’s reasons, it is useful to say something about the Town KK property, which was acquired after separation and was a contribution that the primary judge found was made almost entirely by the appellant. As was identified in Calvin & McTier (2017) FLC 93-785 at [49] and [50], after-acquired property can be included in the one pool of property to be divided and that:50.…Whilst the court did indicate that in the case before them it would have been simpler for the primary judge to have dealt with the inheritance separately from the other property, it expressly said that there was nothing wrong with a global approach (i.e. dividing just one group of assets, including the inheritance), provided there was an explanation as to how the division was arrived at (at [46]). See also Bishop & Bishop (2013) FLC 93-553 at 87,421.(Emphasis added) Here, it is plain that the primary judge, correctly, intended to give the contribution of the Town KK property considerable weight. The appellant’s complaint is that it is not clear how that weight resulted in a finding of only a 52 per cent contribution by the appellant. His Honour dealt with the question of contributions at [46]–[61] of his reasons. At [46], it was noted that the contributions throughout the marriage were equal and that there were no unequal initial contributions. His Honour set out the parties’ contentions as follows:47.Much of [the appellant’s] submission goes to his argument that he made substantially more contributions post separation than [the respondent]. He refers to his payments of joint debts continuing until approximately 2017 and his payment of child support and spousal maintenance.48.[The respondent] argues that she should be given an uplift for her contributions post separation due to her ability to secure a highly commercial price for the sale of the [business] … she argues that the contributions [the appellant] made post separation were nothing more than his obligations pursuant to relevant laws. I am quite unable to see where in the reasons these contentions were resolved. The primary judge did refer to the respondent’s management of the business post-separation at [34]. At [38] and [39], his Honour rejected the appellant’s submissions that the respondent received funds to which she was not entitled or that she mismanaged the business. Thus, no add backs were made to take account of those matters.