Norris & Matthews

Case [2022] FedCFamC1A 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Norris & Matthews [2022] FedCFamC1A 30

Appeal from: Matthews & Norris [2020] FamCA 547
Appeal number(s): EAA 98 of 2020
File number(s): NCC 2226 of 2015
Judgment of: ALDRIDGE, HOGAN & HANNAM JJ
Date of judgment: 3 March 2022
Catchwords: FAMILY LAW – APPEAL – FINAL PROPERTY – Majority decision – Appeal by the wife from final orders providing for an equal distribution of the parties’ property interests – Adequacy of reasons – Where primary judge did not provide adequate reasons as to her assessment of the wife’s contributions and an assessment of contributions generally – Where primary judge did not also provide adequate reasons regarding the s 75(2) matters and her conclusion as to a just and equitable distribution – Appeal allowed – Orders set aside – Matter remitted for rehearing – Costs certificates granted to the parties.
Legislation:

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

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Cases cited:

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

Black and Kellner (1992) FLC 92-287; [1992] FamCA 2

Chang v Su S 104/2002 [2002] HCATrans 549

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

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

Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166

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

Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

Willis & Willis [2007] FamCA 819
Number of paragraphs: 161
Date of hearing: 29 September 2021
Place: Sydney (via video link)
Counsel for the Appellant Dr Smith
Solicitor for the Appellant Barry Nilsson Lawyers
Counsel for the Respondent  Ms Carty
Solicitor for the Respondent Oliver Campbell Heslop Solicitors

ORDERS

EAA 98 of 2020
NCC 2226 of 2015

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

MS NORRIS
Appellant
AND:

MR MATTHEWS
Respondent

DATE OF ORDER:

3 MARCH 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 1 to 18, 20 and 21 made on 9 July 2020 are set aside.

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

4.The appellant be granted a costs certificate pursuant to the provisions of 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 her in relation to the appeal.

5.The respondent be granted…

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AGLC
Norris & Matthews [2022] FedCFamC1A 30
Case
[2022] FedCFamC1A 30
Decision Date

CaseChat Overview and Summary

This case concerns an appeal from the final orders of a family law property settlement, heard in the Federal Circuit and Family Court of Australia. The appellant, the wife, challenged the adequacy of reasons provided by the primary judge regarding the assessment of her contributions, contributions generally, and the factors considered under section 75(2) of the Family Law Act 1975 (Cth). The wife argued that the primary judge's reasons were insufficient to understand how the decision for an equal distribution of the parties' property interests was reached. The court agreed that the primary judge's reasons were inadequate, leading to an unclear path to the conclusion of an equal distribution. Consequently, the wife's appeal was allowed, and the final orders were set aside.

The legal issues before the court were whether the primary judge provided adequate reasons for the assessment of the wife's contributions, the general assessment of contributions, the consideration of section 75(2) matters, and the conclusion regarding a just and equitable distribution of the parties' property. The court found that the primary judge's reasoning was insufficient to allow the court to discern the path taken to the final decision on property distribution. The reasoning did not sufficiently explain how the primary judge assessed the wife's contributions, contributions generally, or how the s 75(2) matters factored into the decision, resulting in an unclear justification for the equal division of the parties' property interests.

In allowing the appeal, the court highlighted the importance of providing detailed reasons for property settlement decisions to ensure transparency and to allow for proper judicial review. The court concluded that the primary judge's reasoning was inadequate to justify the equal distribution of property. As a result, the appeal was allowed, and the matter was remitted for rehearing before a different judge. Additionally, the court granted costs certificates to both parties for the appeal and the rehearing, indicating that it would be appropriate for the Attorney-General to authorise payment of the parties' costs under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

EAA 98 of 2020

NCC 2226 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS NORRIS

Appellant

AND:

MR MATTHEWS

Respondent

DATE OF ORDER:

3 MARCH 2022

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 1 to 18, 20 and 21 made on 9 July 2020 are set aside.

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

4. The appellant be granted a costs certificate pursuant to the provisions of 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 her in relation to the appeal.

5. The respondent be granted a costs certificate pursuant to the provisions of 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 her in relation to the appeal.

6. The appellant and the respondent be granted a costs certificate pursuant to the provisions of s 8 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 each party in respect of the costs incurred by her in relation to the rehearing of these proceedings.

AND THE COURT NOTES THAT:

A. The parties through their counsel advised the Court at the hearing that they were agreed that, if the appeal was allowed and the matter remitted for rehearing, they would seek to have the subsequent costs order, made in reliance on the now set aside 9 July 2020 orders, set aside by consent.

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).

Background

Background to the litigation

In our view, for the reasons which follow, this contention is correct and the appeal should be allowed.BACKGROUND The following background and context is set out in order to understand the appeal. The appellant (“the wife”) who is 48 and the respondent (“the husband”) who is 54 met in 2008 shortly after the wife moved to Australia from New Zealand where she was born. Prior to moving to Australia the wife had incorporated two companies in New Zealand, Company W Limited (“Company W NZ”) and Company AA Ltd (“Company AA NZ”) (collectively “the wife’s two New Zealand companies”). In March 2006 Company W NZ purchased a property in New Zealand for NZD350,000 and in June 2007 Company AA (NZ) purchased a property in New Zealand for approximately NZD900,000. The parties began living together in late 2008 and married in August 2009. The primary judge found that when the parties began living together the husband had superannuation interests of $132,483, shares worth $35,462 and shared assets with his former wife including a property. The primary judge found at this time the wife held approximately $20,000 in cash, shares estimated to be worth $30,000 and was the sole director of the two New Zealand companies which owned the two parcels of real property in that country. These findings are not challenged in this appeal. In September 2008 the wife incorporated a company in Australia (“the wife’s Australian company”) of which she was the sole director and shareholder. In 2009 the parties purchased a property in a suburb of Newcastle (“the Newcastle property”) which was registered in the wife’s sole name. There is no dispute between the parties that the husband transferred $485,000 to the wife in the month preceding this purchase being largely funds he had received in a property settlement with his former wife. Most of this sum was used to reduce the loan secured on the Newcastle property. In the same year, the wife received a payment of approximately $110,000 as a result of litigation in relation to her former employment. In 2009 the wife’s Australian company purchased a business asset (“Business Asset 1”) for $5,000. The company also purchased a specialised vehicle (“the vehicle”) for $52,000 which the parties’ subsequently had customised to their particular needs at a cost of $94,000. The whereabouts of Business Asset 1 and the vehicle were the subject of considerable dispute throughout the proceedings before the primary judge who found that the wife made numerous false and misleading statements to the husband and the Court concerning her dealings with these two assets. In February 2010 the parties registered an Australian company which became the corporate trustee of the parties’ self-managed superannuation fund (“the SMSF”). Both parties were directors and the husband was also the secretary and each party held one ordinary share of this company. In September 2010 a property was purchased by the parties in P Town (“the P Town property”) utilising monies re-drawn from the loan advanced on the Newcastle property as well as a further loan. The P Town property was registered in the husband’s sole name.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In our view, it is not possible to discern from the primary judge’s reasons and in particular her Honour’s analysis from [338]–[355] how her Honour comes to the conclusion that an outcome considered just and equitable (approximating an equal division of net assets), is arrived at. In short, accepting that her Honour assessed that the husband’s contributions were greater than those of the wife and some adjustment may have been made thereafter, it is not possible to discern either expressly or by implication the path by which the primary judge reached the conclusion that a roughly equal distribution of the parties’ property interests represented a just and equitable resolution of the parties’ dispute.CONCLUSION Given our acceptance of each of the wife’s arguments with respect to the inadequacy of reasons in relation to the wife’s contributions, an assessment of contributions generally, the s 75(2) matters and ultimately the conclusion as to a just and equitable distribution, the wife’s appeal must be allowed. COSTS The wife did not seek an order for costs. Each party sought that, in the event the appeal succeeded, the Court grant them appropriate certificates under the Federal Proceedings (Costs) Act 1981 (Cth). Given that we are satisfied that the preconditions for the grant of certificates under the applicable sections of this Act are satisfied, we are satisfied that the parties should be granted certificates in respect of the appeal and the new trial.

Ratio Decidendi

Legal Principle Established

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