Oxley & Oxley
[2021] FedCFamC1A 98
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oxley & Oxley [2021] FedCFamC1A 98
Appeal from: Oxley & Oxley [2021] FCCA 1158 Appeal number(s): NOA 34 of 2021 File number(s): BRC 10038 of 2020 Judgment of: TREE, REES & CAMPTON JJ Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal against dismissal of s 79A(1)(a) and s 79A(1A) application to set aside consent orders – Where the parties complied with the consent orders and later reconciled three years later for a period of two years – Where the appellant alleges bias but did not specify as to apprehended or actual bias in the grounds of appeal or Summary of Argument – Contentions of bias are serious and ought not be made lightly – Where complaints as to the primary judge’s findings of fact are masked as allegations of bias – Whether the primary judge had erred by failing to find suppression of evidence or non-disclosure – No relevant ground under s 79A(1)(a) established – Where the primary judge found there was no implied consent to vary previous orders subsequent to reconciliation pursuant to s 79A(1A) – Primary judge did not err in the exercise of his discretion – Whether the primary judge erred in failing to consider a material fact that was not put to him by the appellant at trial – Where the Court’s s 79 jurisdiction has been exhausted – Where none of the grounds of appeal have merit – Orders for the appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Property Law Act 1974 (Qld)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Waterman & Waterman [2017] FamCAFC 23
Number of paragraphs: 65 Date of hearing: 7 December 2021 Place: Brisbane (via video link) Solicitor for the Appellant: Towns-Wilson Lawyers Counsel for the Respondent: Mr Wilson QC Solicitor for the Respondent: Journey Family Lawyers - North Lakes ORDERS
NOA 34 of 2021
BRC 10038 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS OXLEY
Appellant
AND: MR OXLEY
Respondent
ORDER MADE BY:
TREE, REES & CAMPTON JJ
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,260.78 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).
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 Oxley & Oxley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, REES & CAMPTON JJ:
INTRODUCTION
By Amended Notice of Appeal filed on 29 July 2021, the appellant appeals from orders made on 28 May 2021 by a judge of the Federal Circuit Court (as it was then known) dismissing her Initiating Application filed 29 July 2020 and reserving costs. That application sought to set aside consent orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on
1 May 2014 (“the 2014 Orders”) and if that relief was achieved, for alternate orders under Part VIII of the Act. The respondent resists the appeal.
For the reasons which follow, the appeal should be dismissed with costs.
BACKGROUND
The parties commenced cohabitation in 2008, married in August 2011 and separated in August 2013.
There are no children of the marriage.
The s 79 consent orders were made by a registrar on 1 May 2014. In summary the orders provided for the appellant to transfer to the respondent all of her interest in a property at Suburb B (“the Suburb B Property”), for the respondent to thereafter be responsible for the loan secured over the property, for him to pay to the appellant the sum of $97,500 and to transfer to her his interest in a motor vehicle, for the respondent to be removed from the directorship of Company C Pty Ltd (“Company C”) and for the parties to otherwise retain all assets and items in their name and possession at the time of the orders. The parties implemented the orders.
The parties reconciled their relationship and commenced to live together in January 2017.
The respondent won the “Set for Life” lottery on 7 February 2018. He receives $20,000 each month for 20 years.
A property was acquired by the parties in joint names at Suburb D (“the Suburb D Property”) for $960,000 by way of a mortgage advance of $1,100,000 in August 2018.
The parties separated on 11 February 2019 when the appellant vacated the Suburb D Property.
An order for divorce was made on 5 September 2020.
These proceedings were commenced by the appellant on 29 July 2020. The trial was heard over one day on 24 February 2021.
THE APPEAL
The orders made by the primary judge were the result of the exercise of a discretion. The limits upon appellate interference with such orders is well known and longstanding. In House v The King (1936) 55 CLR 499 at 504–505, 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 appellant’s Summary of Argument and grounds of appeal
The appellant prosecuted five grounds in her Amended Notice of Appeal. Her Summary of Argument did not clearly or chronologically set out the complaints she made in support of each ground.
Ground 4 – The judge was biased
Ground 4 of the Amended Notice of Appeal did not identify as to the contended bias being actual or apprehended bias. Each such serious contention is established from different principles and factual environments. The appellant’s Summary of Argument did not illuminate the issue. The failure of the appellant to identify applicable authority in her list of authorities increased the fog on this important matter.
The ground as to bias must be distinctly made and clearly proved. Cogent evidence of bias is required. A ground contending a finding of bias on appeal ought not to be made lightly. If the ground were established, whether it be as to actual bias or apprehended bias, the proceedings should be referred to another judge for retrial. This ground of appeal should be dealt with first, as the challenge is to the integrity of the administration of justice (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
The solicitor advocate for the appellant was asked upon hearing of the appeal as to whether the asserted bias was actual or apprehended. He demonstrated confusion in his response, stating “I don’t myself don’t know, it’s just from the transcript your Honour”. When cautioned as to the gravity of raising allegations of bias, the solicitor advocate for the appellant said “personally I did not want to press that… I put it in my outline your Honour”. When further pressed he identified the ground was as to apprehended bias. Notwithstanding these exchanges the appellant elected to press the ground.
A finding of apprehended bias entails two distinct steps, as was explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]:
… First, it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The assertion of apprehended bias remains a bare and unfounded allegation until the connection between the primary judge’s conduct and the possibility of departure from the judicial duty of impartiality is clearly articulated.
The appellant identified in her Summary of Argument four foundations to support the challenge by way of this ground, being:
(a)The refusal by the primary judge to permit the appellant at trial to put to the respondent in cross-examination a screen-shot on a mobile device of a document that had not been disclosed and had not formed part of the appellant’s case; and
(b)The silence in the reasons for judgment as to any finding as to the credibility of the respondent; and
(c)The finding that it was the respondent who put the appellant’s name on the title of the property purchased; and
(d)Misinterpreting the appellant’s case.
Reasons for the decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons.
The mere fact of adverse findings at the end of this matter gives rise to no inference as to the state of mind of the primary judge before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for his decision.
The matters identified to underscore the ground are, in reality, complaints as to findings of fact made by the primary judge masked as bias. They are not matters that might cause a fair-minded and informed lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case.
The appellant’s complaints that some of the adverse findings made by the primary judge are contrary to the evidence or unreasonable without more, does not demonstrate that the primary judge had embarked on the resolution of the matter such that he was not open to persuasion. Additionally, the appellant did not attempt to demonstrate any logical connection between the identified matters in the ground and the possibility of the primary judge’s deviation from judicial impartiality.
The appellant’s prosecution of this ground was at all times incompetent and embarrassing. Properly advised, it ought never to have been raised or pressed on appeal.
The ground fails.
Ground 1 – The judge failed to properly consider the evidence; Ground 2 – The judge made a decision that was plainly wrong
Ground 1 as drafted in the Amended Notice of Appeal is incorrectly recorded as Ground 2 in the Summary of Argument.
Ground 1 as recorded in the Amended Notice of Appeal was consolidated with Ground 2 in the oral submissions made on behalf of the appellant. Having regard to the manner in which the appeal was conducted and in the context of the appellant’s framing of her case, it is appropriate to deal with Grounds 1 and 2 together.
The construction of these grounds are directed to complaints that the primary judge failed to give weight or sufficient weight to relevant considerations. A less generous stripping back of the ground is that the primary judge was in error in failing to make the findings of fact promoted by the appellant.
The grounds directs consideration of “the evidence” such that the respondent “did not disclose the full extent of his assets to the appellant…and to the court at the time when the 2014 [O]rders were negotiated and made; alternatively, the respondent…suppressed evidence” (appellant’s Summary of Argument filed 27 August 2021, paragraph 16).
The appellant’s Summary of Argument also complained that the primary judge did not find implied consent to set aside the 2014 Orders pursuant to s 79A(1A), although the oral submissions on behalf of the appellant did not touch upon this part of the ground.
The primary judge correctly identified that the appellant bears the onus of establishing each of the prescribed elements of s 79A(1)(a) and of s 79A(1A).
The first disclosure failure or suppression of evidence in the s 79A(1)(a) claim is that the respondent held additional property at the time of the making of the 2014 Orders in that he did not disclose a holding of a share in the corporate entity, E Pty Ltd (“E Pty Ltd”), and that the respondent’s interest produced funds for the respondent. The gravamen of this contention was that his income and other resources were insufficient to pay $97,500 to the appellant pursuant to the 2014 Orders, and to reduce his mortgage by $157,476 over the next three years after the orders were made.
The appellant recorded at paragraph 22 of her Summary of Argument that:
The only logical conclusion is that not all the [respondent’s] financial resources were disclosed at the time when the 2014 Orders were made. What all of the [respondent’s] resources were remains a mystery. It was clearly not disclosed in 2014.
(Footnote omitted)
The primary judge identified that the case of the appellant as to E Pty Ltd changed during the trial from the respondent holding the issued shares in the entity to the respondent exercising control over it. The primary judge accepted the uncontradicted evidence of the respondent that he was a director of the entity, and only drew wages from E Pty Ltd.
The primary judge carefully considered the six “facts” from which the appellant sought a finding of fact that the respondent had failed in his disclosure obligations at the time of making the 2014 Orders. The reasons record:
60.What then seems to be the first “fact” from which I am to draw an inferential finding that the [respondent] controlled E Pty Ltd at the time the consent orders were made, without proper or any disclosure, is the [respondent’s] continued directorship until 4 July 2018 and some interest he had in his son’s company Mr H Pty Ltd, which was not registered as an entity until 4 July 2018, well after the final orders were made in 2014.
61.What seems to be the second “fact” from which I am to draw an inferential finding is that the [respondent] transferred his ownership in Company C to his son Mr H on 4 July 2018. As a finding I will state that the company was his to do with as he liked, and at the time of the property settlement in 2014, it was worth only $5,000, as the [appellant] admitted under cross-examination, and it is not an independent fact relevant or even connected to the [appellant’s] claim.
62.What seems to be the third “fact” from which I am to draw an inferential finding is that the [respondent] transferred his shares in Mr H Pty Ltd to his son Mr H and resigned as a director on
22 April 2020 (see paragraph 12 of the [appellant’s] Outline of Argument document).
63.And in cross-examination, which seemed to be a fourth “fact” from which I am to draw an inferential finding, a new angle arose when the [respondent] was questioned about his ability to pay out the [appellant’s] $97,500 she received in the settlement of 2014, and his reduction of his mortgage by about $155,000. He was questioned about his wages and it was revealed he earnt at the time about $70,000.
…
66.However, as to the [respondent’s] ability to pay the [appellant’s] amount under the final orders and reduce his mortgage, he did answer a question as to earning money, being that he fixed and sold motorcycles and caravans – at which point no further questions were asked. It was obvious that either:
(a)The [appellant’s] solicitor was not expecting such an answer and could not put any other circumstance as to how the [respondent] earnt money to pay the [appellant] out, or
(b) The [appellant] knew the answer to be true.
67.Her case was left with answers damaging her claims.
68.A new tack was then tried. On instructions, the [respondent] was questioned about claims on the internet that he owned E Pty Ltd and it was connected with Company C, which seemed to be a fifth “fact” from which I was to draw an inferential finding.
69.The claims appear on the internet site of Company C.
70.The questions were obviously asked on oral instructions, because no reference was made to these claims in the [appellant’s] sworn material.
71.The answer was not what was expected – the [respondent] stated that the web site was old, which is a fact because he is no longer associated with either company, and, it was the [appellant] who prepared the web site and posted to it, including the posted claims of the [respondent] owning E Pty Ltd.
72.Such answers caused the questioning to cease immediately. The [appellant’s] solicitor then did not know what further answers were about to be given had he continued. None of this method in running the [appellant’s] case elicited any evidence or independent facts to show the [respondent] secretly controlled E Pty Ltd.
73.The sixth “fact” in contention, the [appellant’s] legal advice, was that the [respondent] organised the solicitor for the [appellant] before she signed the document which became the consent orders.…
76.There was no evidence of any connection otherwise between the [respondent] and the solicitor.
77.The [appellant] claimed that the [respondent] was going to pay the solicitor and that she only saw the solicitor once to sign orders presented to her.
78.As to payment, I am satisfied that the [respondent] agreed to pay $500 towards the solicitor’s fee and paid that.
79.In fact the solicitor’s total fee came to $2,124.03, according to correspondence attached to the [respondent’s] affidavit, such correspondence confirming the contact the [appellant] had with the solicitors. There was no evidence as to who paid the full amount but it is irrelevant to this decision.
80.No positive allegation of impropriety was made against the [respondent] or the solicitor, but the overall thrust of the [appellant’s] case was that something untoward had occurred with regard to her legal advice.
81.There is no evidence that the [respondent’s] arrangement for the solicitor or part payment for the [appellant’s] legal costs in any way taints the orders made by consent, and it is not unusual for costs to be borne by one party in such proceedings.
82.The [appellant] claimed, categorically, that she only saw the solicitor to sign the consent orders and the effect of the orders were not explained to her.
83.Under cross-examination she had to retract that claim, as it was obvious from documents, available to the [appellant], that there were numerous contacts between the [appellant] and the solicitor, including personal visits, telephone calls and written correspondence.
84.She said she forgot this contact.
85.It is a funny thing to forget since her claims that the [respondent] denied her opportunity to know about the E Pty Ltd business was tied up with her legal advice, and became the focus of important cross-examination – in that she knew the E Pty Ltd business existed, she admitted to telling her solicitor it existed, but expressed surprise at this trial, not at any time beforehand, that it was not in the proposed settlement. She admitted that she made no enquiries why her solicitor had not included the E Pty Ltd company or why he had made no proper enquiry as to its value.
86.As I heard her case, I concluded that the [appellant’s] original statements were calculated to lead the court to the position that the [respondent] was controlling the solicitor, even though she would not state that as an outright allegation.
87.The solicitor was not called by the [appellant], or his documents relating to the advice he gave, or his file notes subpoenaed to support her claims.
88.So the six “facts” identified above can be assessed.
89.On alleged “facts” one and two – there is no admissible evidence that the [respondent’s] connection with either E Pty Ltd or Company C is such so as to show a secret control over E Pty Ltd. Share ownership and the transfer of shares, well after the 2014 consent orders, cannot be connected with the alleged failure to disclose which the [appellant] is basing her case on from those two “facts”. As a finding I will state that cross-examination did not identify that the [respondent’s] continued directorship of Company C until 2018 and an interest in the son’s company was a fact relevant to the [appellant’s] claim. As a further finding I will state that the company was the [respondent’s] to do with as he liked, and at the time of the property settlement in 2014, it was worth only $5,000, as the [appellant] admitted under cross-examination, and it is not an independent fact relevant or even connected to the [appellant’s] claim.
90.On alleged “fact” three, there was no cross-examination as to interests of the [respondent] in Mr H Pty Ltd, such as to lead to a conclusion that in 2014 the [appellant] had been denied access to financial information. As a finding, there was no comprehendible case that this “fact” was relevant to the [appellant’s] case.
91.On alleged “fact” four, the case for the [appellant] as to the [respondent’s] ability to pay her out was opportunistic and not prepared, and simply went nowhere. The questioning did not pin down a figure which would be useful to the determination of the fact-finding process which has to be performed, and the suggestion that the [respondent] accessed company money to pay the [appellant], and thus exercised secretly a control of E Pty Ltd, has no basis in fact.
92.On alleged “fact” five, questions were embarked upon without knowing any background as to the construction of the web site, information within the [appellant’s] knowledge.
93.On alleged “fact” six, evidence generated by the solicitor who gave advice to the [appellant], simply his business correspondence to her, show no connection to the [respondent], other than he paid some of the legal fees, but that there was far more contact between the [appellant] and the solicitor than she swore to in her affidavit.
94.In all of these claims, there is simply no case made out by the [appellant] that financial disclosure relevant to the 2014 settlement was not made available to her.
The findings were available on the evidence to the primary judge. Given these findings, the challenge is misconceived.
The second disclosure failure or suppression of evidence in the s 79A(1)(a) claim is as to a sum of $40,000 alleged to have been held by the respondent at the date of the 2014 Orders. This complaint is identified by the appellant in Ground 3, and is considered later in these reasons by reference to that ground.
As to the s 79A(1A) claim, the appellant did not contend an express agreement to set aside the 2014 Orders. Her claim was that the conduct of the parties ought to ground a finding of fact as to the consent of the parties being implied to set aside the said orders.
The consent required by s 79A(1A) need not be explicit. However the Full Court in
Waterman & Waterman [2017] FamCAFC 23 (“Waterman”) at [66] said that:Reconciliation is not, of itself, sufficient for a finding that the parties had impliedly consented to the setting aside of a s 79 consent order. Rather, any such finding is made by reference to the miscellany of circumstances pertaining to the parties’ relationship by which the relevant intention is to be inferred.
(Footnote omitted)
The primary judge made findings as to the absence of integrity of the appellant’s evidence, including:
166.… I find the [appellant] lied about the contact she had with her solicitor, that the solicitor acted for her alone and was not under any influence of the [respondent]. I find she lacked credit in her claim that she paid a $10,000 deposit for the Suburb D property and she lacked all credit in her claims that she knew nothing about the ownership of both Company C and E Pty Ltd.
The primary judge carefully weighed the findings of fact grounding implied consent to set aside the 2014 Orders against those militating against such consent being implied.
The primary findings of fact made supporting the implied setting aside of the orders identified by the appellant were the fact of the reconciliation of the relationship between the parties for some two years, the acquisition of the Suburb D Property in the joint names of the parties, the opening of a joint bank account in February 2018, and the fact of their joint retirement and subsequent travels together. Other findings sought by the appellant to establish an implied consent that were not accepted by the primary judge were that she contributed a sum of $10,000 towards the purchase of the Suburb D Property and that there had been an oral agreement between the parties to share in the respondent’s lotto winnings subsequent to separation.
The primary findings of fact made weighing against a finding of such implied consent to set aside the 2014 Orders identified in the reasons included that the respondent consistently refused to re-transfer the Suburb B Property into the parties’ joint names, that the appellant did not contribute to the parties’ joint account but expended monies held in that account on living expenses, that she did not contribute to the purchase of the Suburb D Property, and that the instructions given by the appellant to her solicitor after the separation in February 2019 did not record any contended or implicit agreement between the parties to set aside the 2014 Orders.
The primary judge’s findings of fact were based on a wide range of circumstances as set out in the reasons for judgment. His Honour made those findings having seen the parties give evidence and be cross-examined.
The matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable (Lee v Lee (2019) 266 CLR 129; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550). The findings made were clearly open on the evidence (Edwards v Noble (1971) 125 CLR 296 at 304).
The weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J). He was not. No error has been demonstrated.
Ground 1 and Ground 2 each fail.
Ground 3 – The judge failed to mention the $40,000 that the [respondent] said he had in his decision
The particulars of this ground identified in the appellant’s Summary of Argument record that the evidence revealed that the respondent held $40,000 in an account, that it was in the 2014 Orders (such sum plainly was not) and that these funds were used to pay the appellant.
The ground recorded in the Summary of Argument takes the form of an error in failing to make a finding as to a material fact.
The appellant did not take us to anywhere in the proceedings before the primary judge where his Honour was asked to take this consideration into account. This much was conceded by the solicitor advocate for the appellant at the hearing of the appeal. As such proposition could have been the subject of the appellant’s case at trial, it is now too late to raise the issue
(Metwally v University of Wollongong (1985) 60 ALR 68 at 71).Additionally, the appellant is in error as to her recording of the evidence in her Summary of Argument. The transcript as to this evidence was as follows:
[Solicitor for the appellant]: Plus you were able to pay another $100,000?
[Respondent]: Yes. I think if you have a look in the joint bank account at the time of the separation, there was probably $40,000 that was on the consent orders, thereabouts, that was the initial payments. That was done in instalments of 5000, 10,000, so forth and so onwards, over a period of time.
(Transcript 24 February 2021, p.48 lines 39–42)
The less than clear answer of the respondent in cross-examination was not the subject of further enquiry by the appellant at trial. The evidence refers to funds in an account at the date of separation. The parties separated in August 2013. The orders were not made until May 2014. The respondent in his answer appeared to conflate the time of separation with the time of making the 2014 Orders. The solicitor advocate for the appellant conceded that it was open to clarify the respondent’s evidence and that he did not do so. No attempt was made to rectify any ambiguity. The evidence does not establish that the respondent had $40,000 in a bank account that was not disclosed at the date of the 2014 Orders.
The ground fails.
Ground 5 – The judge made a decision outside the scope and purpose of the hearing on 24 February 2021 by dismissing the Initiating Application filed 29 July 2020 when the matter was only listed for a discrete hearing for the setting aside of the 1 May 2014 Orders
It is uncontroversial that in the event the appellant’s s 79A challenges to the 2014 Orders were unsuccessful, the jurisdiction of this Court to make any further s 79 orders was exhausted.
The appellant’s application to set aside the 2014 Orders was unsuccessful. No further s 79 application could have been brought or adjustive property orders made.
The appellant conceded that she has remedies as to the joint holding of the Suburb D Property by way of the Property Law Act 1974 (Qld) in the Supreme Court of Queensland, should she be so minded.
The ground fails.
CONCLUSION AND COSTS
The judgment must be considered in the context of the way in which the trial was conducted. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. The appellant conducted this appeal absent any material consideration as to these longstanding principles.
The appeal will be dismissed for lack of merit.
In that event, the respondent sought an order that the appellant pay his costs of and incidental to the appeal. In accordance with procedural orders made by the regional appeals registrar, the respondent filed a schedule of his costs on 17 September 2021. The schedule itemised the respondent’s scale costs at $21,257.10. He sought an order for costs on a party and party basis.
In the event of the appeal being unsuccessful the appellant conceded that an order for costs in favour of the respondent ought to be made. The appeal was wholly unsuccessful. The grounds of appeal did not correlate easily with the appellant’s Summary of Argument, or with the solicitor advocate’s oral submissions. Many of the contentions made either were a simple repeat of the case conducted at first instance, lacked an evidentiary premise, or were plainly wrong.
We are satisfied the application of s 117 of the Act warrants a costs order in the respondent’s favour.
It is well settled that the purpose of r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which enables the Court to order costs in a specific amount, is to avoid the expense, delay and aggravation involved in protracted litigation arising out of an assessment of costs (Graham & Squibb (2019) FLC 93-892 at [92]).
The appellant achieved concessions from the respondent by way of abandoning items number 39, 43, and 47 of the respondent’s costs schedule filed on 17 September 2021, and a $503 reduction from the charge at item 51.
To avoid any further contest between the parties over the quantification of costs at an assessment before the registrar, we shall order the appellant to pay the respondent’s costs in the fixed sum of $19,260.78 which is a reduction of $1,996.32 from the respondent’s claim, applying the concessions set out in paragraph 65 above.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Rees & Campton JJ. Associate:
Dated: 22 December 2021
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