PADBURY & WENDON
[2019] FamCAFC 41
•6 March 2019
FAMILY COURT OF AUSTRALIA
| PADBURY & WENDON | [2019] FamCAFC 41 |
| FAMILY LAW – APPEAL – PROPERTY – Appeal against property settlement orders including orders splitting the appellant’s hurt on duty pension – Where the primary judge failed to consider the special features of the pension or the parties’ contributions to it – Errors of fact – Appealable error established and appeal conceded – Orders made by consent in lieu of those under appeal. FAMILY LAW – APPEAL – COSTS – No orders for costs made – Where both parties applied for costs certificates – Where the conduct of the trial contributed to errors – Applications for costs certificates refused. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) |
| APPELLANT: | Mr Padbury |
| RESPONDENT: | Ms Wendon |
| FILE NUMBER: | PAC | 3789 | of | 2016 |
| APPEAL NUMBER: | EA | 108 | of | 2018 |
| EA | 122 | of | 2018 |
| DATE DELIVERED: | 6 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Austin JJ |
| HEARING DATE: | 4 March 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 July 2018 11 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 1748 [2018] FCCA 3116 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Coleman SC |
| SOLICITOR FOR THE APPELLANT: | Camden Solicitors & Conveyancers |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Dignan and Hanrahan Solicitors and Attorneys |
Orders dated 4 March 2019
That appeals EA 108 of 2018 and EA 122 of 2018 be allowed.
Orders by consent:
That the orders of 9 July 2018 and 11 September 2018 be set aside.
That in lieu of the orders of 9 July 2018, it is ordered:
a. That within sixty (60) days, the appellant pay to the solicitors for the respondent, Dignan and Hanrahan, the sum of $100,000 by way of settlement of property.
b. That within ninety (90) days, the appellant cause the whole of his right, title and interest in the property known as and situated at Property E, being the property comprised in Folio Identifier … (“Property E”) to be transferred to the respondent free of encumbrance.
c. That upon the transfer of Property E to the respondent, the respondent indemnify the appellant with respect to all outgoings and charges with respect to the property.
d. That within sixty (60) days, the respondent do all acts and things and execute all documents necessary to cause the interest conferred on her pursuant to Orders 6 to 12 inclusive of the orders of the 9 July 2018 to be re-vested in or assigned to the appellant’s entitlement in the Superannuation Scheme, to the intent that the appellant’s entitlement in the Scheme will be his full and undiminished entitlement prior to the orders of 9 July 2018.
e. That the interest of the respondent in Property E be charged with the payment of such sum as shall be necessary to be repaid to the appellant in order to restore his entitlement in the Superannuation Scheme in accordance Order 3(d) hereof (“the charged sum”).
f. In the event that the charged sum has not been paid to the appellant within three (3) months of the date of the transfer of Property E, such sum shall accrue interest pursuant to the Family Law Rules 2004 (Cth) from that date until paid in full.
g. In the event that the charged sum, together with interest thereon, has not been paid in full within six (6) months of the transfer of Property E to the respondent, the appellant shall be entitled to require the sale of Property E in accordance with the provisions of Annexure A to these orders.
h. That the appellant forthwith assign and transfer to the respondent the Motor Vehicle 1 currently in her possession being motor vehicle registration number ...
i. That liberty be reserved to file such further or amended minutes of orders as shall be necessary to give effect to Order 3(d) hereof.
j. That simultaneously with the transfer of Property E to the respondent pursuant to Order 3(b) hereof, the appellant give notice of such transfer to the tenant of the property of such transfer, and, by notice in writing, authorise and direct the tenant to make future payments of rent with respect to the property to the respondent, and deliver up a copy of the notice to the respondent.
That it be noted that:
a.Order 3 hereof is in full satisfaction and discharge of the liability of the appellant to the respondent pursuant to an order for costs made against him on 5 July 2017 in the sum of $17,415.
b. Subsequent to the orders of the court of 9 July 2018 the respondent drew down, or otherwise obtained, approximately $120,000 from her superannuation entitlement compliance with the orders of 9 July 2018.
c. The respondent retains approximately $290,000 of the interest in the appellant’s superannuation entitlement conferred on her by the orders of 9 July 2018.
d. The intention of these orders is that the interest of the respondent pursuant to the 9 July 2018 orders be re-vested in the appellant, by such orders as the trustee of the Superannuation Scheme requires to give effect to such intention.
e. The charged sum pursuant to Orders 3(d) and 3(e) hereof is anticipated to be, but is not limited to, the sum of $72,890.
f. The trustee of the Superannuation Scheme has not been served with these minutes of order.
g. The trustee of the Superannuation Scheme will be provided with sealed copies of these orders within seven (7) days of such orders issuing.
That there be no order as to costs of the appeal.
order dated 6 March 2019:
The parties’ application for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be refused.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Padbury & Wendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 108 of 2018; EA 122 of 2018
File Number: PAC 3789 of 2016
| Mr Padbury |
Appellant
And
| Ms Wendon |
Respondent
REASONS FOR JUDGMENT
By Notices of Appeal filed on 27 July 2018 and 21 September 2018, Mr Padbury (“the appellant”) appeals from orders for the settlement of property made on 9 July 2018 and orders of 11 September 2018 dismissing his application for a stay plus costs.
At the commencement of the appeal we received amended grounds of appeal, which contained the essence of the challenges made to these orders. By Ground 2 it was asserted that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made with respect to the appellant’s hurt on duty pension”. Furthermore, that there was no “active intellectual … evaluation of the merits of the competing claims”. Counsel for Ms Wendon (“the respondent”) conceded that error in the manner alleged was made out.
The parties commenced cohabitation in May 2005 and separated in January 2016. The appellant, who was a public servant, commenced making contributions to his super fund in May 1987. He ceased employment in 2014 as he was hurt on duty. His application for a hurt on duty pension was successful. Having determined that a global approach to the assessment of contributions was appropriate, the primary judge observed that the “value” of the fund was a separate issue to how the fund “might be treated”, or “contributions towards it assessed” [97].
His Honour accepted that the correct approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth), which produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, which meant that of a total net property pool of some $3.5 million, a very sizeable portion comprised the appellant’s hurt on duty pension.
The respondent properly concedes that having determined the value of the parties’ property in this fashion, the primary judge did not give further consideration to how the special features of the hurt on duty pension “might be treated” or “contributions towards it assessed.” In other words, those further matters which the primary judge correctly said required consideration did not receive it. The effect of this is that there was a failure to attend to important relevant considerations and we were satisfied that the basis for appellate intervention was made out.
The parties were then able to agree on the orders to be made in lieu of those made by the court below. Relevantly, these included an order that there be no order as to costs. With that order made, the parties applied for costs certificates for the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
In response to our preliminary observation that a number of issues raised on appeal with respect to superannuation were not raised at trial, senior counsel for the appellant pointed to factual errors of the primary judge concerning the period during which the appellant contributed to his super fund prior to the commencement of the relationship. The point being that it was unambiguously established that the appellant contributed to that fund for 18 years prior to cohabitation, which the trial reasons wrongly stated to be a period of “some six to seven years” [194]. Be that as it may, our review of the trial record readily established that the arguments advanced in relation to the approach to the hurt on duty pension were at best cursory and misguided. Although this did not lessen the obligation on the primary judge to address relevant considerations, the reality is he ought to have received greater assistance with that task than was proffered and there can be little doubt that the manner in which the trial was undertaken contributed to the deficiencies evident in the trial reasons. This weighs heavily against the issuance of costs certificates.
Furthermore, the parties are far from impecunious.
Whilst we accept the ingenious argument that by compromising the appeal, including orders in lieu of those made by the primary judge, the taxpayer has been spared the costs of a remitted re-hearing, we are not persuaded that this fact should see the taxpayer requested to contribute to the parties’ costs of the appeal.
The application for costs certificates is thus refused.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 6 March 2019.
Associate:
Date: 6 March 2018
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