Poirier & Poirier (No 2)
[2024] FedCFamC1A 231
•13 December 2024
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 & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Zan & Wen (No 2) (2023) FLC 94-153; [2023] FedCFamC1A 130
Number of paragraphs: 128 Date of hearing: 4 December 2024 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Finch (by direct brief) ORDERS
NAA 132 of 2024
BRC 8438 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Poirier & Poirier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of Notice of Appeal filed on 30 May 2024, as amended on 8 November 2024, Ms Poirier (“the wife”) appeals from orders made on 3 May 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) adjusting property between she and Mr Poirier (“the husband”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband resists the appeal.
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.
Sometime in 2012 the parties undertook further renovations to the Suburb C property. The husband gave evidence that these renovations cost approximately $300,000 which was met from a joint Westpac mortgage account #...99 secured on the Suburb C property, and that F company paid for some of the renovations directly.
In mid-2012 F company was sold for $550,000. The husband said that the sale proceeds of $230,000 was deposited into the joint Westpac mortgage account #...99 that in turn then funded further renovations to the Suburb C property.
In late 2015, Q Pty Ltd was incorporated. In 2019 the company became an unlisted public company and changed its name to Q Ltd. The husband is one of three directors of Q Ltd. It is a holding company for P Pty Ltd.
The husband gave evidence that in 2018 and 2019 additional renovations were undertaken to the Suburb C property at a cost of $150,000, funded from the Westpac mortgage account #...99, and a property loan account #...38 (Husband’s affidavit sworn/affirmed on 15 May 2023, paragraph 75).
In early 2021 the wife was dismissed from her employment with P Pty Ltd.
In late 2021 the Fair Work Commission delivered a decision that the wife’s termination from P Pty Ltd was an unfair dismissal and awarded her a compensation payment in the sum of approximately $27,000 and a superannuation contribution of approximately $2,500.
In mid-2021 the husband re-partnered.
The husband was employed and carried out consulting work for CC Pty Ltd (at [87]). And undertook consulting work for R Pty Ltd (at [90]). The primary judge found that the work he had undertaken for R Pty Ltd was indicative of a level of involvement, management, and responsibilities (at [91]).
In late 2021 the husband was engaged in the review of a draft shareholders agreement as to the issue of further shares in R Pty Ltd. The primary judge found that the husband’s evidence as to him being “not connected in any way to [R Pty Ltd]” was not credible (at [122]).
In early 2022 the husband’s father, Mr T, applied for, and received, 247,500 shares in R Pty Ltd for $2,500.
By way of a loan agreement dated early 2022 the Poirier Investment Trust by way of its trustee, the husband’s father, Mr T, provided a loan to the V Trust for $400,000. Variations of the loan agreement extended the time for repayment of the loan to early 2023.
It was the wife’s case at trial that the husband’s father did not have the financial capacity to provide funds to the Poirier Investment Trust to lend to the V Trust, and that there was a connection between the husband’s father selling his shares 250,000 shares in R Pty Ltd and the repayment of the $400,000 loan. It was her case that there was never any loan, it not being genuine, and that the husband was in reality the holder of the R Pty Ltd shares, they being notionally acquired by his father for his benefit. The husband and his father denied such assertions. The findings of the primary judge as to these matters are comprehensive at [124]–[171].
The primary judge concluded:
333 I cannot see how and do not believe, that [Mr T] had access to $400,000 to lend to [V Trust]. As set out in the part of this judgment headed ‘Evidence of Husband's Father’, the loan agreement with an initial amount to be repaid almost immediately, raises real concerns about its genuineness.
334 ….. I am left with the clear impression that an amount of up to $400,000 has been paid to [Mr T] in circumstances where this has been arranged by the Husband and is in reality money for the Husband.
335 To the extent that the Wife complains of separate substantial payments to [Mr T] being the sale proceeds of shares in [R Pty Ltd] and repayments under the loan agreement and variation deed to the loan agreement, I am not able to find that there are two separate tranches of substantial payments.
…
337 I have considered at some length how to deal with the above finding. In my view, the best approach including that I take into account that [Mr T] is not a party to the proceedings, is to adjust the matrimonial property pool [in favour of] the Wife.
In April 2022 motor vehicle 1 driven by the wife and owned by P Pty Ltd, was repossessed while the wife and the children were at the children’s sport. The primary judge found that the husband benefited to the extent of $41,500 when the motor vehicle was sold (at [291]).
In late 2022 P Pty Ltd was placed into voluntary liquidation by creditors. Dispute existed as to whether the husband’s directors’ loan was repaid prior to the liquidation (at [104]–[108]). The primary judge found the husband’s evidence on this subject-matter to be contradictory. After considering those inconsistencies and then the evidence of the ch 7 single forensic accounting expert, a finding was made that the husband had received repayment of this loan. The primary judge added back against the husband the value of the loan account at $108,143 (at [295]). The wife was a priority creditor of the corporation. The primary judge accepted contents of the liquidators statutory report, including that the liquidator did not have sufficient funds to conduct an investigation to determine the exact date of insolvency of the company, that the investigations were indicative of the corporation becoming insolvent around mid-2020, and that the maximum value (to the extent the liquidator could investigate) of a claim against the husband as a director would be approximately $470,000. It was not expected that the liquidation would produce sufficient funds to pay a dividend to priority or to unsecured creditors (at [38]). The primary judge found, unchallenged on appeal, that given the contents of the statutory report of the liquidator, the husband had no available financial resource in the liquidation of P Pty Ltd.
The litigation history
On 28 June 2021 the husband commenced proceedings as to both parenting and property in what was then the Federal Circuit Court of Australia.
On 17 August 2021, the same day the final consent parenting orders were made, interim consent orders were made restraining the husband and the wife from selling, converting, or otherwise disposing of any asset or financial resource which formed part of the pool of property of the parties.
On 28 March 2022 consent orders were made:
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
1. That [AA property managers] be immediately appointed as the property manager for [the three Family Trust properties]:
[the “properties”]
2. That within 7 days the parties authorise the tenants of [K Street, Suburb L] and [1 H Street, Suburb J] to pay the outstanding rental owed by them to [Poirier Family Trust], into the parties’ joint property account (BSB […]01 ACCT […]38) and that both parties be restrained from drawing any funds from such account save for the following, to be paid in the following priority …[specified expenses of the [Poirier Family Trust] and its real properties]
3. That the Applicant and Respondent by this Order direct and irrevocably authorise:
(a) the payment of all rental for the said properties be paid by the tenants to [AA property managers]; and
(b) [AA property managers] to pay from the rental in (a):
(i) all and any expenses in relation to the properties including property rates, insurance, maintenance as advised by the agent, water, land tax and any other taxation or other agreed property expenditure identified in writing [“property expenses”];
(ii)the balance of rental once property expenses in (i) have been paid, into the parties’ joint property account (BSB […]01 ACCT […]38) and that both parties be restrained from drawing any funds from such account save for and paid in the following priority:
a. The mortgage/loan repayments for the Trust Property Mortgage, being Westpac account BSB: […]38 Acc No: […]99;
b. To pay the balance, if any, still owing in relation to the expenses outlined in paragraph 2;
c. The rates, utilities and insurance for [B Street, Suburb C], from the date of the order until mediation;
d. The payment of school fees for the party’s children, as invoiced by the school. Any differential amounts paid towards each party’s school fees, to be repaid at settlement;
e. The payment of all children’s related expenses as agreed by both parties in writing;
f. The payment of real property valuation fees;
g. The payment of business valuation fees;
h. Any other expense as agreed by the parties in writing.
…
NOTATION:
A. Each party asserts the other has taken matrimonial funds to the exclusion of the other. Accordingly, these matters will be addressed at the hearing.
On 5 October 2022 the following orders were made on the wife’s application:
2. That within seven (7) days the respondent to all acts and things to transfer and/or sell the following assets and deposit the proceeds of sale into BSB […]01 ACCT […]38:
Description Amount I. Westpac […] account in the name of [the wife] ATF [Y], account number […]33 $38,806.61 II. Westpac [account] the name of [the wife] ATF [X], account number […]25 $34,637.90 III. Term deposit in the name of [the wife] ATF [X], account number […]25 $25,388.08 IV. Term deposit in the name of [the wife] ATF [Y], account number […]33 $25,388.08 Total $124,220.67
3. That within seven (7) days the respondent do all acts and things to pay the following:
(a) The sum of $20,468.82; or such other amount that is the present arrears for Westpac account Westpac account BSB: […]38 Acc No: […]99; and
(b) The sum of $20.764.75 to [BB School] in relation to the outstanding accounts for terms 2, 3, and 4.
4. That following the payments in paragraph 3, paragraph 3 of the orders dated 28 March 2022 will be amended to provide that the mortgage/loan repayments for the Trust Property Mortgage, being Westpac account BSB[…]38 Acc No: […]99, will be the first priority bill each month.
The first trial was listed to commence on 31 January 2023. It was vacated. The listing of the second trial on 12 June 2023 was also vacated. The third listing of the final trial commenced on 6 November 2023. Judgment was reserved on 8 November 2023.
The task confronting the primary judge
The primary reasons at [7], [8], and [17]–[22] record the tortious history of the litigation and the volume of evidence filed over the three sequential listings for final trial. The volume of affidavit evidence and other material adduced by the parties was disproportionate, focusing on minutia akin to an audit of their financial circumstances. The Case Outlines of the parties identified that there were 14 witnesses for the trial, including the husband and the wife. The husband relied on six of his own affidavits, the wife on three of her own. Much of the evidence was not the subject of cross-examination or touched upon by the parties in submissions. The Appeal Book is 3275 pages in length and the transcript 316 pages.
The primary judge found:
240 The parties have failed consistently to comply with court orders, have unnecessarily extended the time these proceedings have taken and have incurred very significant costs, by failing to comply or to comply within any reasonable amount of time, with disclosure / valuation requirements.
At the start of the trial, the primary judge received a balance sheet identifying the contended property of the parties and the value of each item, comprising three A4 closely typed pages with multiple colourings. This was properly identified as “simply unacceptable” (at [25]). The prior trial opportunities afforded ample capacity over eleven months of vacated trials for the parties to identify with precision factual issues in the proceeding. Observations as to the asinine disputes included the number of publicly listed shares held by the parties and their value and as to the value of multiple bank accounts. The primary judge recorded:
28…Despite the long delays, large amount of documents and high costs involved, the matter has not been prepared for trial properly.
29 It is unfortunate that the parties were not able to approach this matter including the creation of the balance sheet in particular, in a more sensible and commercially minded manner.
The primary judge distilled from the unwieldy balance sheet adduced at the commencement of the trial the items of agreed property and values and other schedules as to property, liabilities and add backs in dispute. There were 21 assets or liabilities that were agreed, 38 assets or liabilities that were in dispute, and 15 add backs were sought of property that no longer existed, the value of those add backs being $1,323,720.
The determination under challenge
The wife sought a contribution finding of 60 per cent, with an adjustment to the contribution finding of 15 per cent in her favour, to receive 75 per cent of the property of the parties and the husband 25 per cent. The husband sought a contribution finding in his favour of 55 per cent and 45 per cent to the wife, with no adjustment to the contribution finding.
The primary judge found:
345 The total available equity on a one pool approach is thus $4,226,581 after liabilities.
346 On a 60% / 40% division of the matrimonial property, 40% of $4,226,581 which I have found to be the percentage entitlement of the Husband, is $1,690,632.
347 With the Husband receiving property worth $1,878,563, this is $187,931 more than his 40% entitlement. As a result, the Husband owes the Wife $187,931 to achieve the 60% / 40% division referred to above.
The orders broadly provided for the wife to retain the Suburb C and N Street properties, for the husband to retain the Trust (including its three real properties) and his other corporate interests, for a $100,000 superannuation splitting order in favour of the wife from the husband’s member entitlement and for the husband to pay the wife $87,931 on or before 31 October 2024. He has not done so. An order was made for the wife to refinance the Suburb C property Westpac mortgage #[…]99 on or before 31 July 2024. At the time of the appeal hearing, she had not done so.
On 1 November 2024 an order was made to stay the primary orders.
As will be seen, the primary judge double counted a liability and transposed the value of minor items in determining the value of the property of the parties.
THE APPEAL
There is a presumption at law that a primary judge’s decision is correct, the onus resting on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The relevant principles which govern appeals from discretionary judgments are well known. Error of the type identified in House v The King (1936) 55 CLR 499 (“House”) must be established. There, the majority of the High Court said at 504–505:
…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…
As the wife was reminded throughout the hearing of the appeal, the weight given to evidence in the exercise of discretion pursuant to s 79 of the Act is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
While the wife is self-represented in this appeal, she remains bound by the same legal principles as any other litigant. The observations of the High Court in Neil v Nott and Another (1994) 121 ALR 148 are applicable to this appeal, where it was observed at 150:
…A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy…
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.
The application of the wife to adduce further evidence in the appeal has no merit and is dismissed.
CONSIDERATION
Ground 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:
Item Number Assets held by Wife Value Assets held by Husband Value 1 [Suburb C property] $1,400,000 minus Westpac loan 0399 of $421,674 gives equity of $978,326 2 [N Street property] $840,000 minus Westpac business loan 5427 of $110,647 gives equity of $729,353 3 [EE City, Country FF] property $45,916 4 [Motor vehicle 2] $26,000 5 Home contents $6,185 6 Home contents $7,810 7 Westpac account […]38 $3,503 8 Westpac accounts […]99 & […]39 $1,083 9 Westpac accounts […]9, […]53, […]79 and […]46 $15,255 10 Westpac account […]41 $151 11 Australian Equities and Global Equities portfolio
$75,864 12 Shares in [HH Group] $2,141 13 [CC Pty Ltd] Nil (claimed by Husband’s father?) 14 Engagement and wedding rings Nil 15 CBA shares $109,402 16 [JJ company] shares $7,317 17 [KK Bank] shares $4,517 18 [LL Bank] shares $26,885 19 [MM Group] $100 20 [Poirier Family Trust] $1,318,963 21 [Poirier Investments Pty Ltd] $344,815 22 Westpac business loan […]27 (-$108,373) 23 [Motor vehicle 1] sale proceeds $41,500 24 Loan repayment, [P Pty Ltd] $108,143 25 [Poirier Family Trust] 2021/22 tax liability (-$16,785) 26 [Poirier Family Trust] 2022 GST liability (-$8,105) 27 [OO company] shares $12,962 28 Superannuation entitlements $152,075 29 Superannuation entitlements $341,678 Total $2,348,018 Total 1,878,563
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]).
The conclusion by way of this ground being established will be considered later in these reasons.
Ground 1(b) – “The Trial Judge erred in ascribing incorrect valuations of: (i) the wife’s household contents (ii) husband’s contents (iii) husband’s [motor vehicle 2]”
The agreed values of the household contents of the wife were $6,815, and of the husband, $7,810. The primary judge recorded the household contents of the husband to be $6,815 and of the wife to be $7,810. The agreed value of the husband’s motor vehicle 2 was $26,500. the primary judge recorded its value at $26,000.
The husband conceded these factual errors. The focus by this ground on appeal then shifts to whether the error impacts the result of the case (De Winter and De Winter (1979) FLC 90-605). The materiality of the error and whether it is to impugn the result becomes the heart of the sub-ground.
The difference in value between the respective household items of the husband and the wife is $995. The error in the value of motor vehicle 2 is $500. The sum value of the error is $1,945. It is de minimis in the shadow of the value of the property of the parties as found at in excess of $4 million. The error is so negligible as to not affect the integrity of the final result. This sub-ground fails.
Ground 1(c) – “The Trial Judge erred in Order 5 ordering the wife refinance Westpac loan ([…]99) contrary to order 14 which relieved the wife of all loans and liabilities relating to the [Poirier Family Trust]”
The orders relevant to this sub-ground are:
1. The Wife retain and be declared the sole owner of:
(a) The property at [B Street, Suburb C] being lot […], held by the Wife under the name [Ms Poirer].
(b) The property at [N Street, Suburb O] being lot […].
…
5. On or before 31 July 2024, the Wife shall obtain finance to enable her to discharge any joint loan obligation secured by mortgage over the properties referred to in subparagraphs 1(a) and 1(b) and refinance those loans in her sole name. The Wife shall indemnify and keep indemnified the Husband against all liability for payment of principal and interest under the said loan/s and personal covenants therein, pending and until such discharge.
…
14. The Husband assume sole liability for and indemnify and keep indemnified the Wife with respect to the payment of all monies and liabilities due and owing or which may become due and owing from time to time relating to the trusts, including but not limited to:
…
(d) All loans, guarantees and debts of any nature for which the Wife has liability whether solely or jointly, in connection with the operation of the trusts.
…
The wife agrees that:
(a)By way of Order 5 she was required to discharge the joint Westpac mortgage loan #...99 secured on the Suburb C property; and
(b)By way of Orders 2, 11, 12, and 14 the husband would retain the Poirier Family Trust and assume responsibility for the liabilities of the Trust.
The wife contends that the joint Westpac mortgage loan #...99 was a loan of the trust, not of the husband and wife personally. She asserted that the primary judge erred in finding that the Westpac mortgage loan #...99 was a loan of the parties and not a liability of the Poirier Family Trust because:
(a)It was said to be uncontentious between the parties that whoever received the Trust and its real properties would be responsible for the loans secured over the respective properties and receive the income on them. The wife did not seek that order at trial. It is otherwise difficult to distil this submission in circumstances where Westpac loan #...99 is not secured by way of mortgage of property of the Trust.
(b)The Westpac loan #...99 was identified in the March 2022 orders “specifically stating” “The Trust Property Mortgage, being Westpac account (BSB […]01 ACC No […]99)”. The wife did not explain how this identification precluded the primary judge from making a finding of fact based on all the relevant evidence.
(c)The husband’s evidence at trial that the loan was “taken for the trust properties” and that the loan was “serviced by income” from property held by the Trust. The wife identified that the husband had conceded that Trust had claimed an expense against income for the interest payable on the loan (Husband’s affidavit sworn/affirmed on 15 May 2023, paragraphs 89 and 97). This evidence went to the purpose of the loan rather than the identity of the persons or entity who entered the loan and how it was secured.
If I understand it correctly, the wife’s contention then develops to the conclusion that although the Westpac loan #...99 is secured on her Suburb C property, because the above factors establish that it is a “[Poirier Family Trust]” loan and liability, the husband is required by Order 14 to be responsible for its payment and discharge – hence the “contradiction” between Order 5 and Order 14.
The husband submitted that the reasons establish that Order 5 and Order 14 are not inconsistent.
The wife’s complaint, and the sub-ground, fails at multiple levels.
Firstly, the primary judge found, absent challenge on appeal, that the value of the Poirier Family Trust was $1,318,963 (at [283]), adopting the unchallenged evidence (at [250] and [255]) as to the value opined by the ch 7 single expert forensic accounting expert (Appeal Book p.2416) of the Trust on a net asset backing basis. The Westpac mortgage loan #...99, valued at $421,674, is not included as a liability of the Trust in that valuation The wife’s complaint by way of the sub-ground fails to engage with these findings that were not only open on the evidence but were the only logical findings available.
Secondly, bank statements for the Westpac mortgage loan record the parties as the borrowers of loan #...99 (Appeal Book p.1159–1177, p.1181–1204), not the Poirier Family Trust. Again, the wife’s complaints do not engage with this evidence.
Thirdly, the wife does not challenge on appeal the conclusion that the Suburb C property valued of $1.4 million, and after deducting the value of the Westpac loan #...99 mortgage, had an equity of $978,326 (at [315]). If the wife was correct that, notwithstanding that Westpac loan #...99 is secured by mortgage on the Suburb C property and is in the names of both of the parties, loan #...99 was a loan of the Trust, then the value the husband would receive from the Poirier Family Trust would be $1,318,963 less the value of Westpac loan #...99, having a net value for s 79 adjustment purposes of $897,289. Conversely, the value attributable to the wife from retaining the Suburb C property would be $1.4 million (being its unencumbered value), not $978,326 (being its value less its mortgage of $421,674). The net effect remains constant. The wife does not engage with this fundamental logic.
In so far as the wife complained by this sub-ground that the primary judge was in error in finding that the Westpac loan #...99 was not a liability of the Trust, such challenge as to factual error fails. The sub-ground fails.
Orders 5 and 14 are not inconsistent. So that it is clear, the wife has the responsibility to refinance the Westpac mortgage #...99 pursuant to Order 5. The Trust is not responsible for that loan pursuant to Order 14, or to relieve the wife from any liability about it.
Ground 1(d) – “The Trial Judge erred in [n]ot addressing (i) the Husband recovering the wife’s motor vehicle (ii) the differential of school fees (iv) repayment of children’s funds removed by the husband”
The construction of the ground identifies a failure to “address” specified matters. The wife’s Summary of Argument clouded the ground, morphing between contended errors as to the primary judge failing to take into account relevant considerations, as to factual errors, and challenges as to weight.
Motor vehicle 1
As to this complaint by way of the sub-ground, the reasons commence with:
57In relation to [motor vehicle 1] which the Wife complains that the Husband removed from her day-to-day use in April 2022, [counsel for the wife] put to the Husband that he did not refer to that vehicle in an affidavit and financial statement filed in 2021 when proceedings were commenced. The Husband said this was correct as [motor vehicle 1] was company owned. [Counsel for the wife] put to the Husband that the “company owned” position was simply his reliance on a technical position, given he was director and shareholder of the relevant company. The Husband said:
We had investors who came on board, not sure when.
58 In my view, the Husband taking possession of [motor vehicle 1] in April 2022 when the Wife was at [sport] with the children, was hardly an important company decision. It was more likely to be a petty move to inconvenience the Wife as part of the dispute following separation.
At [59], the reasons record that the statutory report of the liquidator of P Pty Ltd confirmed it to be the registered owner of motor vehicle 1. The husband sold motor vehicle 1 for $41,500 (at [101]), the liquidator concluding that the sale proceeds “can be regarded as being in the hands of the husband and used by him” (at [102]). The primary judge, in the exercise of discretion, determined to add back against the husband the sum of $41,500, being the proceeds of sale of motor vehicle 1 that he retained.
Upon appraising the wife as to this content of the reasons at the hearing of the appeal, she shifted saying that her complaint was that the primary judge did not consider matters relevant to motor vehicle 1 “enough”. The sub-ground had no merit at any time and fails.
The differential of school fees
On 28 March 2022, amongst other orders, the following order was made:
3.That the Applicant and Respondent by this Order direct and irrevocably authorise:
(a)the payment of all rental for the said properties be paid by the tenants to [AA property managers]; and
(b) [AA property managers] to pay from the rental in (a):
…
(ii)the balance of rental once property expenses in (i) have been paid, into the parties’ joint property account (BSB […]01 ACCT […]38) and that both parties be restrained from drawing any funds from such account save for and paid in the following priority:
…
d.The payment of school fees for the party’s children, as invoiced by the school. Any differential amounts paid towards each party’s school fees, to be repaid at settlement;
(Emphasis added)
The wife submitted that the primary judge erred in not considering a differential in the payment of school fees between her and the husband of $8,740 pursuant to Order 3(a)(b)(ii)(d) made on 28 March 2022 because “this evidence was before the Court”.
The wife could not identify in the transcript any cross-examination of the husband on this topic, or where there was submission directed to it. She said that this was an “oversight” at trial. A party is bound by the conduct of their matter in the court below. It is contrary to principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, was not put during the hearing when opportunity to do so existed (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”)). The sub-ground fails.
Repayment of children’s funds removed by the husband
Order 11 made on 17 August 2021 provided for the funds in the joint account of the parties to be used to satisfy mortgages, insurance, water, land tax, and any other purposes. The focus of this sub-ground is an order made on 5 October 2022 requiring the wife to transfer to the joint account of the parties the balance of the bank accounts held in trust for the children, totalling $124,221.
The wife said she sought by way of an order in her Case Outline filed on 2 November 2023 for the husband to return “the children’s funds”, being $60,026 to X, and $64,195 to Y. The wife submitted in her Summary of Argument that the husband “had substantial financial resources available to him, notwithstanding obtaining an order to use the children’s funds [in October 2022]. [The primary judge] failed to address nor even mention this Order”.
As recorded earlier, the October 2022 orders directed that $20,469 of these transferred funds from the children’s accounts be immediately applied towards paying mortgage arrears and $20,765 to BB School in relation to outstanding school fees. The husband said that:
(a)The evidence at trial was that the remaining $82,987 was applied for the benefit of the children and the parties in compliance with the order made on 5 October 2022; and
(b)During the trial the wife did not agitate any complaint as to the use and application of those funds and did not agitate an add back against him for those funds. He said that “the wife is attempting to relitigate an issue that [by her conduct at trial] had little or no [relevance] at the hearing”.
The wife could not identify in the transcript any cross-examination of the husband on this topic. The wife’s submissions at trial did not identify that this order sought was still pressed or identify evidence to support the order if still sought. It was incumbent on the wife to demonstrate that the primary judge’s attention was drawn to this subject matter. The dicta of the High Court in 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, is apposite to the approach taken by the wife by way of this ground on appeal:
120.In these circumstances a measure of benevolence should be employed in reading Palmer J's reasons for judgment, both in relation to this first error detected by the Court of Appeal in relation to the adversarial character of the proceedings, and the second error it detected in relation to the "balancing exercise". Counsel for the plaintiffs did not demur from the proposition that when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
121.The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration "expressly", even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.
(Footnote omitted) (Emphasis added)
The wife did not draw the primary judge’s attention to the subject matter of this sub-ground from the significant volume of evidence at trial. Having regard to the way in which she conducted the trial, it could not be said that a failure to make the order sought was fundamental and obvious. The wife could not demonstrate on appeal why the determination of this claim for relief was necessary for the disposition of the proceeding. This sub-ground fails.
Ground 2 – “The trial judge erred in not adding back to the pool the Husband’s paid legal fees, noting the Wife had not received such benefit of marital resources.”
The wife’s paid legal fees were $501,889, sourced in part from a loan from her father of $325,000. The husband’s paid legal fees were $530,981 said to be sourced from a loan from his father of $337,098 (in turn sourced by his father from the repayment of the V Trust $400,000 loan repayment).
At trial both parties agitated for the add back of paid legal fees. The wife sought for the loan from her father for legal fees be included as a liability, and for the loan from the husband’s father be excluded as a liability from the balance sheet (Trancript 8 November 2023, p.282 line 8 to p.284 line 36). The husband sought for each of the loans to be excluded from the balance sheet (Transcript 8 November 2023, p.284 lines 13–26, p.299 lines 7–39).
During submissions, the primary judge raised with the parties that an approach may be taken in the exercise of discretion not to add back paid legal fees to the balance sheet and to exclude the familial loans associated with them.
During the hearing of the appeal the wife conceded that the primary judge identified the relevant principle as to matters to be considered in the exercise of discretion in adding back paid legal fees. Her complaint was that the primary judge erred in the exercise of that discretion. The high hurdle in establishing error in discretionary assessments of weight are well known.
The wife identified the well-known passages of the Full Court in Chorn & Hopkins (2004) FLC 93-204 that, in the exercise of discretion, it is necessary to “consider when and how the funds used to pay the fees have been accumulated” (at [49]) and “in determining how to exercise that discretion, regard should be had to the source of the funds” (at [53]).
When legal fees were paid, and the source of the funds used to pay them, was the subject of extensive consideration in the reasons at [263]–[270]. The findings as to loans made by family members are the subject of consideration at [271]–[281]. The wife’s father’s evidence as to him paying funds directly to the wife’s solicitors was unchallenged. As an adjunct to the exercise of discretion, the primary judge found that both parties had failed in their disclosure obligations as to relevant financial conduct impacting on the subject matters of paid legal fees and the familial loans associated with them, the reasons recording:
(a)At [122] as to the husband’s disclosure failures as to his relevant financial conduct as identified earlier herein and at [209] as to “less than full disclosure about the amount and use of” by the wife of rental income from the N Street property and other properties post separation (at [215]);
(b)At [333] and [334] that while $400,000 said to originate from the husband’s father could not be found to be “the husband’s money”, the husband was going to receive the reality of the benefit of it. The funds said to be advanced by the husband’s father could be considered (as they were) in the adjustments to the contribution findings; and
(c)The uncompromising approach that each party had taken to the litigation and its consequential generation of substantial costs. The reasons record:
235 …It seems to me that the parties could have saved a very large amount of legal costs if they had:
(a) Given financial disclosure promptly and in accordance with their legal obligations.
(b) Co-operated with respect to valuations.
(c) Prepared for trial properly prior to the two earlier trial listings on 31 January 2023 and 12 June 2023 and for this trial.
The wife implicitly challenged on appeal the primary judge’s conclusion that the wife had failed in her disclosure obligations as to the value and application of rental income that she received from the N Street property, submitting it was “unjust and misconceived”. She submitted that, in her view, error in the primary judge’s conclusion would be established by an analysis of bank statements and other documents tendered in evidence. The primary judge was not obliged to trawl through hundreds of pages of source documents to conduct the wife’s case. The wife acknowledged that a 50-page schedule summarising those source documents was prepared by her lawyers during the trial but was not adduced into evidence. Again, the wife is bound by her conduct at trial (Metwally).
The disclosure failures of each of the husband and the wife clouded the evidence so that it was not complete as to the receipt and application of income from matrimonial assets, whilst it was accepted that most of the borrowed funds were applied to legal fees (at [288] and [290]).
The concept of adding back monies that no longer exist ought to be the exception rather than the rule (Trevi & Trevi (2018) FLC 93-858). The principle in adding back legal fees originated in circumstances where funds existed at separation and both parties, by way of contributions, could be seen to have had an interest in them. The concept of the add back as a notional asset was directed to ensure justice was occasioned between the parties recognising the spouse who had the benefit of the funds that existed at separation.
The primary judge was under no obligation to add back paid legal fees or to include all liabilities of the parties in determining the joint asset pool. It is a matter of discretion.
The considerations informing the reasons for the approach taken in not adding back paid legal fees, and the liabilities that related to them were clear and cogent. The approach taken to consider, or as recorded in the reasons, “to balance” the value of paid legal fees and the familial loans in the adjustments to the contribution finding, does not indicate appellate error. That approach, by way of well-established principle, was open and available. The wife was unable to show the converse. The ground fails.
Ground 3 – “The trial judge erred by failing to appropriately account for items on the Balance sheet.”
This ground, as constructed, was difficult to interpret. The wife’s Summary of Argument elucidated the ground as to a failure to accept seven of her contentions as to the inclusion of items in the balance sheet, either by way of an add back against the husband or a liability of the wife. The wife did not specify a category of error contended of the primary judge as explained in House or supported the ground that way. The wife’s oral submissions were directed to explaining what course she believed should have been taken in the process of fact finding and in the exercise of discretion. Appellate error is not demonstrated by the primary judge coming to a different conclusion than that agitated by the wife.
Loan from the wife’s father for living expenses
The reasons for findings as to the wife’s disclosure failures and the discretion not to include her father’s loan for legal fees and living expenses have been identified and further explained earlier herein. The primary judge’s conclusion, open on the evidence (at [236]), was that the wife had access to income at the relevant time and her disclosure failures did not permit a finding that the funds received from her father were used for living expenses, and that legal fees must be a significant proportion of her expenses. The sub-ground fails.
“[CC Pty Ltd] monies (from [R Pty Ltd])”
The wife’s contention on appeal was that the evidence established that the husband received income of $200,000 from CC Pty Ltd and that the primary judge was in error in not “adding back against the husband” this value. The cross-examination of the husband identified by the wife in her Summary of Argument did not ground the finding she contended. In submissions, her counsel said that there was “a difference between the turnover and profit that was received [as to [CC Pty Ltd]]” and that the primary judge “may consider” that [this difference] is the husband’s income. The wife in the appeal referred to “previously uncovered bank statements”. They were not identified Appeal Book.
The primary judge found at [290] that the evidence was insufficiently clear to make any finding as to the value of a specific sum sought by way of the add back. The wife did not identify any aspect of Appeal Book or transcript to permit the primary judge to make the contended determination. The primary judge found that any monies that would have flowed to the husband from CC Pty Ltd were somewhat countered from wife’s income from the N Street property. This course was open to the primary judge in the exercise of discretion. This sub-ground fails.
“Miscarriage of [R Pty Ltd] asset determined by the Courts to be an asset of the parties but not included in the pool”
The wife was unable to identify any finding of the primary judge that the husband’s father’s R Pty Ltd shareholding was an asset of the husband. This is unremarkable in circumstances where the wife’s counsel expressly abandoned at trial any contention as to the husband having the beneficial ownership of the R Pty Ltd shares acquired by his father (Transcript 7 November 2023, p.115 line 40 to p.116 line 35). This sub-ground has not merit.
Rental income received by the husband
The wife sought an add back of $69,010. The wife did not identify on appeal any part of the Appeal Book or transcript said to establish the value of the contended add back. The primary judge, having regard to the findings as to disclosure, concluded the evidence to be insufficiently clear, declining the add back, exercising discretion to instead consider the matter in the overall adjustment of the property interests. The sub-ground fails.
Money from [SS company]
The primary judge made a finding at [290] that the funds received by the husband from SS company were more likely than not used for living costs and legal costs, and therefore they no longer existed as property. This finding was open to the primary judge, and in the exercise of discretion, the primary judge did not add this income item back as the property of the parties. The sub-ground fails.
Frequent flyer points
The wife could not identify on appeal any evidence as to the value of either parties’ frequent flyer points or that they could be transferred. The subject matter was not the subject of cross-examination or submission.
Ground 3 fails.
Ground 4 – “The trial judge erred in determining the 10% property adjustment (with only 2.5% of this adjustment relating to non-disclosure equating to approx. $100,000) was towards the top end of what is available within the discretion of the trial judge, whilst not properly taking into account significant factors such as the Husband’s wilful non-disclosure, which critically reduced the pool of assets.”
The wife at the hearing of the appeal confirmed that this ground is that as identified by the High Court in House in that, although the nature of the error may not be discoverable, the primary judge’s outcome on the facts is unreasonable or plainly unjust such that a substantial wrong has in fact occurred.
In her Summary of Argument, the wife reproduced large portions of Full Court authority as to the consequences of disclosure failures that did not appear to engage the ground. Her submission was dependant on acceptance that insufficient weight was attributed by the primary judge to the husband’s disclosure failures. For the reasons discussed earlier, that submission cannot be maintained. The differential in the adjusted property of the parties from the contribution finding in favour of the wife is broadly $850,000. The primary judge additionally added back as against the husband property in the range of $150,000 that no longer existed. In any event, the wife did not elucidate a sufficient evidentiary foundation to establish the husband held property or resources not identified in the balance sheet other than as determined by the primary judge.
The primary judge’s findings and consideration of the relevant statutory criteria was an exercise of the discretion afforded by s 79 of the Act. The breadth of that discretion has been the subject of considerable High Court and Full Court authority. It is accepted that the mere fact that a different judge may have reached a different conclusion will not demonstrate error.
Nothing in the written or oral submissions of the wife establishes that the primary judge’s determination was unjust or inequitable and/or plainly wrong. Her complaints and submissions in support of the ground fall well short of demonstrating that the property adjustment judgment was manifestly unjust or unreasonable (Hedlund & Hedlund (2021) FLC 94-065 at [12] and [36]–[37]). There having been no proper basis established to question the exercise of the primary judge’s discretion, this ground does not have any objective merit and fails.
CONCLUSION
Ground 1(a) was established. The error in the finding of the value of the superannuation and non-superannuation property of the parties was sourced from and confined to allocating the Westpac loan #...47 in the value of $108,373 to the husband and $110,647 to the wife. The finding at [283] as to its value being $108,737 is not challenged on appeal. The finding of the property of the parties at $4,226,581 (at [345]), absent the double counting of Westpac loan #...47, ought to have been $4,337,328, illustrated as:
Ownership Description Amount ASSETS 1 Wife Suburb C property] 1,400,000 2 Wife N Street property 840,000 3 Wife EE City, Country FF property 45,916 4 Husband Motor vehicle 2 26,000 5 Husband Home contents 6,185 6 Wife Home contents 7,810 7 Wife Westpac account #…38 3,503 8 Husband Westpac accounts #…99 & …39 1,083 9 Wife Westpac accounts #…49, #...53, #...79 and #...46 15,255 10 Wife Westpac account #...41 151 11 Wife Australian Equities and Global Equities portfolio 75,864 12 Wife Shares in HH Group 2,141 15 Wife CBA shares 109,402 16 Wife JJ company shares 7,317 17 Wife KK Bank shares 4,517 18 Wife LL Bank shares 26,885 19 Husband MM Group 100 20 Husband Poirier Family Trust 1,318,963 21 Husband Poirier Investments Pty Ltd 344,815 22 Husband Motor vehicle 1 sale proceeds 41,500 23 Husband Loan repayment, P Pty Ltd 108,143 26 Husband OO company shares 12,962 Total 4,398,512 LIABILITIES 24 Husband Poirier Family Trust 2021/22 tax liability 16,785 25 Husband Poirier Family Trust 2022 GST liability 8,105 31 Wife Westpac loan #...99 421,674 32 Wife Westpac loan #...27 108,373 Total 554,937 TOTAL ASSETS – LIABILITIES 3,843,575 SUPERANNUATION Member Description 27 Husband Member entitlement 152,075 28 Wife Member entitlement 341,678 Total 493,753 TOTAL NET SUPERANNUATION + NON-SUPERANNUATION 4,337,328
Notwithstanding the failures of the parties to exhaust the remedies available at first instance, as identified at the hearing of the appeal, this Court can amend the orders of the primary judge by way of the slip rule pursuant to r 10.13(1)(e) of the Rules (Zan & Wen (No 2) (2023) FLC 94-153 at [74]–[77]). The husband proposed this Court apply r 10.13(1)(e) to correct the error identified in Ground 1(a), contending that the value of the sum to the wife pursuant to Order 7 be increased from $87,931 by $65,024, to make that adjusting payment to be $152,955. The wife opposed that approach, saying that any application by way of the rule required immediate application to, and determination by, the primary judge. The construction of r 10.13 does not incorporate any temporal limitation on its exercise. The wife said the delay would prejudice her because she had been making repayments in the interim.
Section 36(1)(a) or 36(1)(b) permits this Court to vary the relevant appealed orders to correct the sum payable to the wife by the husband (King & King (No 2) (2023) 67 Fam LR 274). The error established by Ground 1(a) is discrete and confined. An order for the re-hearing of the dispute has been described as an order of last resort (CDJ v VAJ at [103]). To correct the value of the adjusting sum pursuant to Order 7 payable by the husband to the wife would reflect, absent distortion, the clear intention in the reasons.
The parties have been vigorously litigating and expending substantial financial and emotional resources by way of the listings for three trial events for over three years. The costs they have incurred have consumed in the range of 25 per cent of their property. It is appropriate, considering s 95 of the Act, as reinforced by r 1.04 of the Rules, that this litigation is brought to finality as quickly, inexpensively, and efficiently as possible in this forum.
To achieve 60 per cent of $4,337,328, the wife by way of the orders made by the primary judge, needs to receive $2,602,397 as follows:
Ownership Description Amount ASSETS 1 Wife Suburb C property 1,400,000 2 Wife N Street property 840,000 3 Wife EE City, Country FF property 45,916 6 Wife Home contents 7,810 7 Wife Westpac account #...38 3,503 9 Wife Westpac accounts #...49, #...53, #...79 and #...46 15,255 10 Wife Westpac account #...41 151 11 Wife Australian Equities and Global Equities portfolio 75,864 12 Wife Shares in HH Group 2,141 15 Wife CBA shares 109,402 16 Wife JJ company shares 7,317 17 Wife KK Bank shares 4,517 18 Wife LL Bank shares 26,885 33 Wife Cash adjusting sum from husband pursuant to Order 7 152,005 Total 2,690,766 LIABILITIES 31 Wife Westpac loan #...99 421,674 32 Wife Westpac loan #...27 108,373 Total 530,047 TOTAL ASSETS – LIABILITIES 2,160,710 SUPERANNUATION Member Description 28 Wife Member entitlement 341,678 29 Wife Superannuation splitting order pursuant to Order 9 100,000 Total 441,678 TOTAL NET SUPERANNUATION + NON-SUPERANNUATION 2,602,397
To achieve 40 per cent of $4,337,328, the husband by way of the orders made by the primary judge, needs to receive $1,734,931, as follows:
Ownership Description Amount ASSETS 4 Husband Motor vehicle 2 26,000 5 Husband Home contents 6,185 8 Husband Westpac accounts #...99 & #...39 1,083 19 Husband MM Group 100 20 Husband Poirier Family Trust 1,318,963 21 Husband Poirier Investments Pty Ltd 344,815 22 Husband Motor vehicle 1 sale proceeds 41,500 23 Husband Loan repayment, P Pty Ltd 108,143 26 Husband OO company shares 12,962 Total 1,859,751 LIABILITIES 24 Husband Poirier Family Trust 2021/22 tax liability 16,785 25 Husband Poirier Family Trust 2022 GST liability 8,105 34 Husband Cash adjusting payment to the wife pursuant to Order 7 152,005 Total 176,895 TOTAL ASSETS – LIABILITIES 1,682,856 SUPERANNUATION Member Description 27 Husband Member entitlement 152,075 30 Husband Superannuation splitting pursuant to Order 9 -100,000 Total 52,075 TOTAL NET SUPERANNUATION + NON-SUPERANNUATION 1,734,931
As can be seen, this requires the deletion of the value $87,931 in Order 7 and the inclusion of the value $152,005. There is no change to the percentage division of the property of the parties, nor any change to the specie of property achieved by way of the primary judge’s orders. The correction does not undermine the fundamental equity of the wife receiving 60 per cent of the property of the parties and the husband receiving 40 per cent.
Pursuant to Order 5 made on 3 May 2024 the wife was required to refinance the joint Westpac loan #...99 secured upon the Suburb C property by 31 July 2024. Pursuant to Order 7 the husband was to pay the adjusting sum to the wife on or before 31 October 2024. Neither have complied with those orders.
To avoid further disputes, litigation, and costs, and to achieve further efficiency, Order 7 ought to be varied to extend the prescribed the time for the husband to pay the varied adjusting sum of $152,005. The husband at the hearing of the appeal could not specify “any valid reason” as a further period of 21 days would be insufficient to enable him to make that payment. Having regard to the forthcoming Christmas period, a time frame of 28 days will be adopted. The time for the husband to comply with Order 7 as varied pursuant to these reasons will be extended to 10 January 2025.
The time for the wife to comply with Order 5 as to refinance the joint Westpac loan #...99 secured upon the Suburb C property ought to also be extended for the same reasoning. The wife is responsible for any arrears that have accumulated on the mortgage to date or any arrears that may accumulate pending the refinance, being the position since the primary orders were made. Hence, the variation does not occasion prejudice to the wife. There is significant equity in the property so as to not occasion material prejudice, if any, to the husband by such variation. The time for the wife to comply with Order 5, again taking into account the forthcoming Christmas period, will be extended to 28 February 2025.
The appeal will be allowed, the orders of the primary judge confirmed with variations being made to Orders 5 and 7 in the terms identified.
For an abundance of caution, and to address the complaint of the wife by way of Ground 1(c), consistent with the intention of the primary judge, a notation will be made as to the wife being required to refinance Westpac loan #...99 secured on the Suburb C property pursuant to Order 5 and that the husband, by way of the Trust, is not liable for such loan.
COSTS
In the event the appeal was allowed, the husband sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). His costs notice indicated that he had incurred costs in the appeal of $18,142 on an indemnity basis, albeit that the notice did not comply with r 13.53 of the Rules. The wife did not file a costs notice, saying that she incurred costs in obtaining legal advice for the appeal, but was uncertain as to the value of those costs.
The husband knew that the wife would establish Ground 1(a). He took no steps to file of an application to correct that error. His contentions on two occasions that he had pursued amendment pursuant to the slip rule in the original court were reckless and inaccurate. His conduct was imprudent in the circumstances and his role in the appeal did little to assist in its determination.
In the exercise of discretion and in the above circumstances I am not persuaded that it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to the husband in respect of the costs he has incurred in relation to the appeal. The husband’s application for a costs certificate will be refused. There will be no order as to costs of the appeal.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 13 December 2024
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