FAMILY COURT OF AUSTRALIA
Perras & Perras [2021] FamCAFC 109
Appeal from: Perras & Perras [2020] FCCA 3109 Appeal number(s): EAA 167 of 2020 File number(s): CAC 1281 of 2016 Judgment of: ALDRIDGE J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Whether the primary judge erred in findings of fact – No submissions made by the appellant as to why the primary judge was not entitled to act on the basis of unchallenged evidence available – Findings were open on the evidence – No error identified on part of the primary judge – Where the appellant contends the primary judge erred by giving no weight to the ‘short marriage principle’ and the appellant’s initial contributions – Primary judge expressly took the parties’ short marriage into account – The respondent’s care and support of the children also a significant consideration – No error established – Appeal dismissed – Appellant to pay respondent’s costs of the appeal in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the appellant seeks to adduce evidence that was available at the time of the hearing before the primary judge – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 93A(2)
Family Law Rules 2004 (Cth) Sch 3
Cases cited: Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Division: Appeal Division Number of paragraphs: 61 Date of hearing: 17 June 2021 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Stagg ORDERS
EAA 167 of 2020
CAC 1281 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR PERRAS
Appellant
AND: MS PERRAS
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $14,042.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perras & Perras has been approved by the Chief Justice pursuant to s…
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CaseChat Overview and Summary
The legal issues the court had to address included whether the primary judge erred in her findings concerning the withdrawals from the joint bank accounts, whether she failed to consider a redeposit by the appellant, and whether she erred in her consideration of the 'short marriage principle' and the appellant's initial contributions. The appellant argued that the primary judge had made mathematical errors in her findings and did not adequately consider the short marriage principle. The respondent argued that the appellant had not provided any valid reasons for why the primary judge should not have relied on the evidence presented.
The court found that the primary judge's findings concerning the withdrawals from the joint bank accounts were consistent with the evidence presented and that no error was established in her consideration of the short marriage principle and the appellant's initial contributions. The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal in a fixed sum of $14,042.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal in the sum of $14,042, subject to entry in the Court's records and any minor corrections pursuant to the Family Law Rules 2004 (Cth).
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs fixed in the sum of $14,042.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perras & Perras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
This ground does not succeed.Did the primary judge err in finding that the appellant withdrew $76,000 from the parties’ joint bank accounts after separation? (Ground 3) The appellant submits that finding that he withdrew $76,000 from the parties’ bank accounts is a mathematical error and, at best, the primary judge could only have found that the sum of $64,000 had been withdrawn by him. He points to the respondent’s written submissions in the primary proceedings, where the respondent identified withdrawals totalling $64,000 as having been removed from the parties’ bank accounts. It must be said that this was not the only reference to withdrawals in those submissions. Importantly, the primary judge relied upon the evidence and not the submissions. Her Honour recorded that the sum of $68,000 was withdrawn from the appellant’s personal accounts between 7 May 2016 and 6 April 2017 (at [323]). Her Honour found that at some time prior to 30 August 2016, the appellant had withdrawn approximately $7,000 from the parties’ joint account (at [325]). That is a total of $75,000. In addition, her Honour also referred to $48,000 being withdrawn from the appellant’s Goal Saver account and $20,000 from his Smart Access account (at [323]). These findings of fact are consistent with the respondent’s evidence which referred to withdrawals of $68,0000, $4,000 and $7,000 (Respondent’s affidavit filed on 20 March 2018, paragraphs 298, 304–305). Save for the issue of the $7,000 which was the subject of a separate ground of appeal, the appellant did not make any submissions as to why the primary judge was not entitled to act on the basis of that evidence. This ground does not succeed.Did the primary judge fail to consider the appellant’s redeposit of $4,960 on 14 November 2017? (Ground 4) The appellant asserts that this deposit was established by the relevant pages of his NetBank account being tendered as part of Exhibit M7. However, that exhibit appears not to be a bundle of bank records but rather documents in relation to financial disclosure, according to the List of Exhibits dated 14 January 2020. The transcript of the proceedings before the primary judge does not record these documents being tendered. The fact that the bank account may have been subpoenaed and the documents may have been available to be tendered does not mean that that in fact occurred. There was accordingly no evidence before her Honour on this point. This ground does not succeed.Did the primary judge err by finding that the appellant withdrew $7,000 from the parties’ joint bank account? (Ground 5) I have already largely dealt with this issue in relation to the application to adduce further evidence. As explained there, the appellant sought to put into evidence a bank statement which he asserted demonstrated that he had not withdrawn the sum of $7,000, notwithstanding that he had not challenged the respondent’s evidence on this point or sought to rely on the bank statement at the hearing.