Poirier & Poirier (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Poirier & Poirier (No 2) [2024] FedCFamC1A 231

Appeal from: Poirier & Poirier [2024] FedCFamC2F 559
Appeal number: NAA 132 of 2024
File number: BRC 8438 of 2021
Judgment of: CAMPTON J
Date of judgment: 13 December 2024
Catchwords: FAMILY LAW – APPEAL – Where the wife appeals from final property orders – Where the wife alleges errors of fact – Where the primary judge assigned the same liability to each of the husband and the wife in the balance sheet – Where the husband concedes the error – Where further errors of fact as to value of a motor vehicle and furniture are made out but are de minimis – Where the wife contended other errors as to failure to take into account relevant considerations, errors as to weight, and as to the overall outcome being unreasonable or plainly unjust – Where those grounds are not made out – Appeal allowed – Final property orders confirmed with variations pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to correct the discrete and confined error without varying the percentage division of the property of the parties or changing the specie of property achieved by way of the primary judge’s orders, the correction finalising the litigation as quickly, inexpensively, and efficiently as possible – No order made as to costs.
Legislation:

Family Law Act 1975 (Cth) ss 79, 95, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 36

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Sch 3, rr 1.04, 5.01, 10.13, 13.53
Cases cited:

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bahonko & Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9

De Winter and De Winter (1979) FLC 90-605

Gronow v Gronow (1979) 144 CLR 513; [1976] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

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

King & King (No 2) (2023) 67 Fam LR 274; [2023] FedCFamC1A 100

Lorde & Chu [2014] FamCAFC 228

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Metwally v University of Wollongong (1985) 60 ALR 68

Neil v Nott and Another (1994) 121 ALR 148; [1985] HCA 28

Nellie & Nellie [2024] FedCFamC1A 171

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Re Darley(No 2) (2023) 379 FLR 234; [2023] FedCFamC1A 112

Saha &…

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Details
Case
[2024] FedCFamC1A 231
Decision Date

CaseChat Overview and Summary

In the matter of Poirier & Poirier (No 2), the wife appeals against the final property orders made by the primary judge, arguing that there were errors of fact and law in the judgment. The court was required to determine whether the primary judge's findings and conclusions were correct, and if not, what amendments were necessary to the final property orders. The wife's appeal hinged on several grounds, including alleged errors in the allocation of liabilities, the valuation of a motor vehicle and furniture, and the overall outcome being unreasonable or plainly unjust. The husband conceded certain errors, while other alleged errors were deemed de minimis or did not substantiate the wife's claims.

The court found that while there were errors in the allocation of liabilities and some inaccuracies in the valuation of assets, these were discrete and confined. The husband had conceded to the liability error and had taken steps to rectify it in the lower court. The court confirmed the final property orders but made specific variations to correct the identified errors without altering the overall percentage division of the property or the specie of property achieved by the primary judge's orders. The court aimed to finalise the litigation as quickly, inexpensively, and efficiently as possible. The wife's application to adduce further evidence was dismissed as it did not demonstrate an error by the primary judge or substantiate the grounds of appeal. No order was made as to costs.

The appeal was allowed, and the final property orders were confirmed with specific variations to correct the identified errors. The wife was required to refinance the Westpac mortgage secured on the Suburb C property, and the husband, through the Poirier Family Trust, was not responsible for relieving the wife from any liability regarding that mortgage. The court's decision ensured that the litigation was finalised efficiently while correcting the discrete errors identified.

Orders

Orders of the court

NAA 132 of 2024

BRC 8438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS POIRIER

Appellant

AND:

MR POIRIER

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

13 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 8 November 2024 is dismissed.

2. The appeal is allowed.

3. The orders made on 3 May 2024 are confirmed save for variations by way of these orders.

4. Order 7 made on 3 May 2024 is varied to:

(a) Delete the value “$87,931” and insert the value “$152,005”; and

(b) Delete the date “31 October 2024” and insert the date “10 January 2025”.

5. It be noted that the appellant has the responsibility to refinance the Westpac mortgage #...99 secured on the property at B Street, Suburb C pursuant to Order 5 made on 3 May 2024. The respondent, by way of the Poirier Family Trust, is not responsible for that loan pursuant to Order 14 made on 3 May 2024, or to relieve the appellant from any liability about it.

6. Order 5 made on 3 May 2024 is varied to delete the date “31 July 2024” and insert the date “28 February 2025”.

7. There be no order as to costs.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the appeal is allowed. Pursuant to s 36(1)(a) and 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). Order 7 made on 3 May 2024 is amended to delete the value “$87,931” and insert the value “$152,005”, and to delete the date “31 October 2024” and insert the date “10 January 2025”. Order 5 made on 3 May 2024 is varied to delete the date “31 July 2024” and insert the date “28 February 2025”.BACKGROUND The wife was born in 1975 and is 49 years old. The husband was born in 1976 and is 47 years old. They married in 2006, and separated on a final basis in late 2020. There are two children of the marriage, X born in 2009, currently 15 years old, and Y born in 2011, currently 13 years old. The parties entered consent orders regulating the parenting of the children on 17 August 2021 broadly providing for the children to live with the mother and spend alternate weekends, graduating to five nights per fortnight, and half of the holidays with the father. At trial X continues to spend time with the husband in accordance with the ordered regime. Y does not spend as much time with the husband as prescribed by the orders. In late 2000 the wife purchased a property at B Street, Suburb C (“the Suburb C property”) for $267,500 sourced from $90,000 of the wife’s savings, a Westpac loan of $170,000, a small loan from the wife’s parents, and a first homeowner’s grant of $7,000 (at [313]). In mid-2001 the husband registered Poirier Group trading technology accessories. In late 2001 the husband took on a business partner, Mr E. In mid-2004 F company was incorporated. It then conducted the Poirier Group trading operations. In mid-2004 the Poirier Family Trust (“the Trust”) was established by way of deed. The husband is the appointor of the Trust. It was uncontroversial that the Trust was the property of the parties amenable to orders pursuant to s 79 of the Act. The Trust is a passive investment structure. It acquired three real properties:(a)In September 2004, a property at 1 H Street, Suburb J;(b)In mid-2008 (on the husband’s case) or late 2007 (on the wife’s case), a property at K Street, Suburb L; and(c)In mid-2009 (on the husband’s case) or mid- 2007 (on the wife’s case), a property at 2 H Street, Suburb J. In late 2006 to early 2007 the parties undertook renovations to the Suburb C property. The husband said that the renovations cost approximately $400,000. F company leased the Suburb L property from the Trust. The husband contended that additional payments were made by F company from time to time to reduce the joint Westpac mortgage account #...99 secured on the Suburb C property. In mid-2011 the parties purchased N Street, Suburb O (“the N Street property”) in the wife’s name. In mid-2013 the parties incorporated P Pty Ltd. The enterprise initially traded selling technology accessories, and later shifted its operations to security devices.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As identified by the Full Court of the Federal Court in Bahonko & Sterjov (2008) 166 FCR 415 adopted in by the Full Court of this Court in Newett & Newett (No 2) (2021) FLC 94-051:3. …it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. 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. (Emphasis added) The wife directed her submissions towards rerunning her case before the primary judge, rarely touching upon her appeal grounds. The purpose of a Notice of Appeal is to identify with precision the errors that an appellant asserts the primary judge made. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). No application was made to further amend the Amended Notice of Appeal. To the extent that the wife’s Summary of Argument and oral submissions extend beyond the grounds as contained in the Amended Notice of Appeal, they are outside the ambit of the appeal.APPLICATIONS IN AN APPEAL The husband’s Applications in an Appeal filed on 15 November 2024 and 29 November were withdrawn and dismissed at the hearing of the appeal. The wife filed an Application in an Appeal on 8 November 2024 seeking to adduce further evidence on appeal supported by a 202-page affidavit inclusive of annexures filed the same day. There is a broad discretion to admit further evidence on appeal (s 35 of the FCFCOA Act) the purpose of which was described by the majority in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [104] as being “to ensure that the proceedings do not miscarry”. They further described the power as being remedial in nature, such that its principal purpose:109.…is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures… The majority further considered that:111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. … The observations of the Full Court point to the necessity of considering the substantive impact of the proposed further evidence, and, in particular, its capacity to show that the original decision was in error. The wife’s proposed further evidence to be adduced is as to: (a)An alleged contravention after judgment was reserved and prior to it being delivered by the husband of an interlocutory order made 28 March 2022 regulating the use and application of rental income from the properties of the Trust. The wife contends that sums of $9,000 on 17 November 2023 and a further $4,000 paid in November for air conditioning maintenance ought not have been paid, being a responsibility of the tenant and not the Trust. She filed an Application – Contravention on 21 March 2024. That application was not determined prior to the s 79 judgement being delivered. The 28 March 2022 orders were discharged on the making of the final orders subject to challenge (r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). During mid-2024 the wife received default notices from the mortgagee of the Suburb C property as to arrears of the Westpac loan #...99. On 31 October 2024 the Application – Contravention was withdrawn. The wife did not articulate how this material demonstrated an error by the primary judge or bolster the reasons under attack on appeal. Implicitly her reason for not paying the mortgage (Westpac loan #...99) secured on her home was based on her intention to challenge the primary orders under appeal.(b)Documents said to go to Ground 1(c), being relevant to Westpac loan #...99. Some of the material seeking to be adduced on appeal is in the Appeal Book. It formed part of the evidence at trial and was considered by the primary judge. The wife sought to adduce by way of further evidence in the appeal the 2020 taxation return and financial statements of the Trust. This was part of the material relied upon by the ch 7 financial expert, Mr DD. It was available at trial. The expert was not cross-examined on it. A forensic decision was made not to adduce it. It should not be readily admitted on appeal. Emails in early 2024 between the parties as to the collection of keys for a Trust property are irrelevant.

Ratio Decidendi

Legal Principle Established

The application of the wife to adduce further evidence in the appeal has no merit and is dismissed.CONSIDERATIONGround 1(a) – “The Trial Judge erred in assigning the entirety of the Westpac loan ([…]27) to each party” To give context to this ground:(a)The wife is the sole registered owner of the Suburb C and the N Street properties.(b)The wife was the sole borrower of a Westpac business loan #...27 valued at $108,373 secured on the N Street property (at [283] and [342]).(c)The parties were the joint borrowers of Westpac loan #...99 valued at $421,674 secured on the Suburb C property. The finding of the primary judge was that the Suburb C property valued of $1.4 million, and after deducting the value of the Westpac loan, had an equity of $978,326 (at [315]). In effecting the conclusion adjusting property between the parties, the primary judge recorded a table of assets and liabilities (at [341]). A column has been added to provide item numbers for each asset: Items 2 and 22 in bold and underline are relevant to this sub-ground. Items 1 and 20 in bold are relevant to sub-ground 1(c). Items 4, 5, and 6 in bold and italics are relevant to sub-ground 1(b). Each party sought to retain the N Street property in specie at trial. Each sought that if they achieved the property, they would also be required to assume the mortgage debt (Westpac loan #...27) secured on it. The primary judge determined that the wife would retain the N Street property and would be responsible for the Westpac loan #...27 (at [341]). The wife does not challenge this determination on appeal. This is consistent with that prescribed by Order 1(b), in that the wife retain the N Street property, and Order 19(c), that she assumes responsibility for the mortgage debt secured upon it. The wife’s contended error by way of the sub-ground is that in [341] the primary judge allocated the value of the liability by way of Westpac loan #...27 to both the wife and the husband, by way of Item 2 to the wife and Item 22 to the husband. The respondent conceded the error. He advised at an earlier hearing of an Application in an Appeal on 6 November 2024 that he had filed an Application in a Proceeding in Division 2 seeking to rectify the error by way of the “slip rule” (r 10.13(e) of the Rules). He had not done so. The husband said during the hearing of the appeal that the application in a proceeding for rectification had now been filed in the lower court and was awaiting a listing before the primary judge. It had not been filed as asserted. Rule 10.13 of the Rules provides as follows:(1) The court may at any time vary or set aside an order, if:…(e) it does not reflect the intention of the court; or If his application to the primary judge in the lower court was made and successful, it would render this ground nugatory. The wife said that if the husband had filed an application before the original court she would have opposed it. While this appellate Court has jurisdiction to entertain an appeal from the orders under challenge, that jurisdiction ought not to be too readily exercised in these circumstances where the proper course, being to exhaust remedies available in the original court, is open (see Cooke & Morton (2018) FLC 93-820 at [13] citing Lorde & Chu [2014] FamCAFC 228, endorsed by the Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158). Significant public policy reasons are self-evident requiring parties to take a course which is “more appropriate, and far less expensive” (Re Darley(No 2) (2023) 379 FLR 234 at [55] as confirmed in Nellie & Nellie [2024] FedCFamC1A 171 at [58]).