PADBURY & WENDON - [2019] FamCAFC 41

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PADBURY & WENDON [2019] FamCAFC 41
Case: [2019] FamCAFC 41
Decision Date: 6 March 2019

CaseChat Overview and Summary

In the matter of Padbury & Wendo, the appellant sought to appeal against property settlement orders made by the Family Court, which included the division of a military pension. The pension in question was the appellant's duty pension, which was a critical consideration in the property settlement. The primary judge's decision failed to account for the unique features of the pension, nor did it consider the contributions made by both parties towards it. This oversight was considered significant enough to constitute errors of fact.

The legal issues before the court were whether the primary judge's failure to consider the special features of the pension and the contributions of both parties constituted an appealable error, and if so, whether the appeal should be allowed. The court found that the primary judge's errors amounted to appealable errors, and as a result, the appeal was conceded. The parties subsequently agreed on new orders to replace those under appeal.

The court refused both parties' applications for costs certificates, noting that the conduct of the trial had contributed to the errors made by the primary judge. Given the circumstances, the court deemed it appropriate not to make any orders for costs. The final orders reflected the resolution reached by the parties, effectively replacing the contested property settlement orders.

Orders