Schirmer & Schirmer
[2025] FedCFamC1A 95
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Schirmer & Schirmer [2025] FedCFamC1A 95
Appeal from: Schirmer & Schirmer [2025] FedCFamC2F 45 Appeal number: NAA 52 of 2025 File number: SYC 2420 of 2023 Judgment of: CHRISTIE J Date of judgment: 26 May 2025 Catchwords: FAMILY LAW – APPEAL – Property – Challenge to contributions assessment of the trial judge – Where Appellant alleges a lack of procedural fairness – Where the orders made by the primary judge were sought by the other party and were therefore known to be within contemplation – Where Appellant contends that the primary judge failed to give adequate reasons – Where Appellant contends that sufficient weight was not given to her post-separation contributions – No ground of appeal established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Adcock & Sealy [2024] FedCFamC1A 137
Bennett and Bennett (1991) FLC 92-191; FLC 92-191; [1990] FamCA 148
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 114
Metwally v University of Wollongong (1985) 158 CLR 447; [1985] HCA 28
Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robertson & Sento [2009] FamCAFC 49
Sun Alliance Ltd v Massoud [1989] VR 8
Number of paragraphs: 30 Date of hearing: 15 May 2025 Place: Sydney Counsel for the Appellant: Mr Ford with Ms Wallace Solicitor for the Appellant: Doolan Callaghan Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Sharon Moss Legal ORDERS
NAA 52 of 2025
SYC 2420 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SCHIRMER
Appellant
AND: MR SCHIRMER
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal in the sum of $13,500.
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 Schirmer & Schirmer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) delivered on 21 January 2025 concerning property matters.
THE TRIAL
The primary judge summarised the dispute between the parties in her reasons for judgment as follows:
[2] There are two children of the relationship who have both attained the age of majority. They remain living with the wife and spend time with the husband between two and four nights a fortnight.
[3] By the conclusion of the trial the parties agreed that their contributions up to the date of separation should be found to be equal. At issue is the value of some of the property of the parties, what weight is to be accorded to each parties’ post separation contributions and what adjustment, if any, should be made to the contribution finding pursuant to ss 79(4)(d) – (g) and s 75(2) of the Act.
The primary judge concluded that the contributions of the parties assessed holistically and with reference to the post-separation period were 52.5% to the wife and 47.5% to the husband. A further adjustment of 5% to the husband was made in recognition of matters under s75(2) of the Act.
The primary judge ordered that the parties’ net property be divided such that the husband receive 52.5% and the wife 47.5%. The wife was to retain the parties’ former home (“the Suburb B property”) and pay a sum of money to the husband. In default of payment the Suburb B property was to be sold and the husband paid a sum certain plus interest.
THE APPEAL
Ground 1. Her Honour denied the parties procedural fairness in failing to raise with Counsel during submissions the nature and form of the default property sale orders she ultimately made.
In Noetel and Quealey (2005) FLC 93-230 the Full Court cited the decision in S & S at [108]:
A long line of authority in this Court (Waters and Waters (1981) FLC 91-019 at 76,208; Williams and Williams (1988) FLC 91-959 at 76,940; Docters van Leeuwen and Docters van Leeuwen (1990) FLC 92-148 at 78,024; Little and Little (1990) FLC 92-147 at 78,020; Smith and Smith (1991) FLC 92-261 at 78,759; and Bell and Bell (1993) FLC 92-347 at 79,683) establishes as a clear guideline for the exercise of discretion under s79 of the Act, that, absent some special consideration (such as a desire by one spouse to retain a particular piece of property, in specie), and particularly where the value of an asset is contentious, or even where it is not but the market for the property is volatile, or there is likely to be a significant time lapse between judgment and sale, and where the value of the asset is to be divided between the parties, the Court should order its sale and the apportionment of the proceeds between the parties rather than order one party to pay to the other a fixed sum representing a notional proportion of its assessed value.
There is no suggestion in the evidence in this case that the value of the Suburb B property was in issue or that the evidence established market volatility. This was not the case of a delayed sale. The Suburb B property had an agreed figure in the Balance Sheet [35] and no party made submissions to suggest there was controversy about the value.
The appellant’s application was framed as follows:
1. That within 42 days of the date of these Orders, the parties shall do all acts and sign all documents necessary so as to transfer the Husband's interest in the [Suburb B] property to the Wife and the Wife shall refinance all borrowings into her sole name.
2. That simultaneously with Order 1, the Wife shall pay to the Husband such sum so as to effect a division of the overall net matrimonial assets (taking into account the assets and liabilities the parties are to receive and retain pursuant to these Orders, but excluding superannuation) as to 40% to the Husband and 60% to the Wife.
The appellant did not seek any orders in the event of her failure to comply with the payment referred to in Order 2.
The respondent sought orders as attached to his Case Outline Document filed a week prior to the trial, framed as orders for transfer of the Suburb B property into the sole name of the appellant contemporaneously with payment of the sum of $1,098,15. In default of payment the orders sought sale of the Suburb B property and payment of the outstanding sum plus interest.
In the absence of submissions which raised an issue about the default orders proposed by the respondent, the primary judge cannot be in error in adopting the course proposed in the application of one of the parties. The primary judge noted that the appellant was represented. No further reasons, in these circumstances were required. The basis upon which the primary judge reached her conclusion is clear.
The ground is framed as a denial of procedural fairness. In order to establish that there has been a denial of procedural fairness, it is for the appellant to demonstrate that she did not have an adequate opportunity to be heard and present her case. The appellant knew what orders the respondent was seeking with sufficient time to address them. The appellant made no submissions about what was in effect the respondent’s default clause. The judge is not obliged to canvas with the parties the possibility of making the orders which are sought by a party. It will only amount to error by way of denial of procedural fairness if the primary judge represents to a party that a certain course is not in contemplation – and then proceeds to embark on that course or in the alternative that a certain course will be adopted and then (without further notice) adopts a different course: Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138])
No error has been established.
Ground 2. Her Honour failed to provide adequate reasons as to why:
a. The Wife’s post-separation contributions were assessed at 2.5%; and
b. Her Honour departed from the principle in Noetel and Quealey (2005) FLC 93 – 230 by expressing a lump sum figure rather than a percentage entitlement.
The dicta of Gray J in Sun Alliance Ltd v Massoud [1989] VR 8 at 18, adopted by the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266, outline the circumstances in which failure to provide adequate reasons will constitute error:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The primary judge gave comprehensive reasons for her assessment of contributions in the post-separation period at paragraphs [81] – [93].
The appellant, while properly acknowledging that the primary judge was not conducting a mathematical exercise in evaluating contributions after separation or throughout the period from the commencement of the parties’ relationship until the date of trial, nonetheless submitted that the primary judge was in error by reference to the size of the net pool ($2,658,830) and the quantum of the appellant’s post-separation contributions to the mortgage and superannuation, said to be $282,731 and $326,380 – a total of $609,111. There is no dispute that the appellant made home loan repayments in the sum of $282,731, nor was it controversial that the appellant’s superannuation increased by $326,380 in the period after separation. To the extent that the primary judge found at [91] that the increase in the appellant’s superannuation over and above $106,164 was “comprised of voluntary contributions made by her” the primary judge was, both parties agree, in error.
The difficulty with isolating the mortgage repayments and increase in value of the superannuation is that it fails to acknowledge the other matters which the primary judge was obliged to, and did, weigh in paragraphs [83], [84], [85], [86], [87], [88] and [90].
The complaint in Ground 2(b) has been addressed above as regards procedural fairness.
The primary judge’s reasons for making the default clause as sought were contained at [130] – [131]. They are adequate on the facts of this case. The provision was only to apply if a sale was triggered by default. There was no evidence about delayed sale. There was no dispute about the value of the Suburb B property. At trial, no submissions were made on behalf of the wife about this proposed course.
No error has been demonstrated.
Ground 3. Her Honour failed to have regard to three material considerations, namely:
a. The Wife’s post-separation contributions of $282,731 in mortgage instalments;
b. The Wife’s post-separation superannuation contributions of $326,714; and
c. The Wife’s insufficient liquidity to meet the lump sum payment without triggering the Default Sale order.
It is beyond question that the primary judge took into consideration:
(a)The mortgage payments at [82];
(b)The post-separation superannuation contributions at [91] and [94].
(c)As to the “insufficient liquidity” if this were a material consideration then no submissions were made about it at trial. And it is not open for the appellant to then raise it on appeal: Metwally v University of Wollongong (1985) 158 CLR 447.
When an appeal ground asserts that a judge has failed to have regard to a matter, it would ordinarily be the case that a review of the reasons for judgment revealed no analysis of the material consideration. That is not the position here. The ground lacks merit.
Ground 4. Her Honour failed to give adequate weight to the Wife’s post-separation contributions of $282,731 in mortgage instalments and post-separation superannuation contributions of $326,714.
It is vexing to deal with consecutive appeal grounds which argue that a primary judge failed to have regard to a matter followed by an appeal ground which contends that the primary judge failed to afford adequate weight to the same matter. They cannot both be available.
As indicated above I rejected the submission that the primary judge failed to consider the appellant’s post-separation mortgage payments and superannuation contributions. The primary judge placed them in the context of both parties’ post-separation contributions and further in terms of the contributions of the parties over the entirety of the relationship (including the post separation period).
The weight to be afforded to relevant considerations is a matter for the exercise of the primary’s judge’s discretion and no error will be demonstrated where the result is plainly within the exercise of that broad ambit.
Ground 5. Her Honour’s orders are not just and equitable and are plainly unjust so as to suggest errors must have been committed even though the error may not be apparent.
In adjusting the parties’ assets 47.5% to the appellant and 52.5% to the respondent at the conclusion of a long relationship, the primary judge was exercising a broad albeit not unlimited discretion.
In Gronow & Gronow (1979) 144 CLR 513, Stephen J observed at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
The appellant has not demonstrated that the primary judge’s determination was plainly wrong. As Brennan J wrote in Norbis v Norbis (1986) 161 CLR 513: The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
And finally as this court observed in Adcock & Sealy [2024] FedCFamC1A 137, where an appellant, such as the appellant in this case, alleges the primary judge’s orders were plainly wrong, this is the type of error which can be characterised as:
[29] … only capable of being implied by reason of an appellant being unable to identify any other form of frank legal, factual or discretionary error which vitiates the discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505). Such an error is commonly contended as a last resort and it seldom succeeds because of the generous ambit of discretion afforded by the statute (Gronow v Gronow (1979) 144 CLR 513 at 519–520; Norbis v Norbis (1986) 161 CLR 513 (“Norbis”). Relevantly, such an error may be inferred from the incongruence between the result and the underlying evidence, as synthesised with applicable legal principles. In the upshot, it can be contended the decision really amounts to a failure to properly exercise the discretion entrusted to the Court (Lovell & Lovell (1950) 81 CLR 513 at 519).
There is no apparent incongruence between the reasons and the result and accordingly this ground must fail.
COSTS
In circumstances where the appeal was dismissed the respondent sought costs of the appeal. The respondent has filed a costs notice in which it is noted that the party/party costs at scale totalled $18,688.72. The appellant’s costs schedule claimed $16,802.83. The appellant properly acknowledged that were the appeal to be dismissed, it would be appropriate that the appellant meet the respondent’s costs. The appellant noted that having regard to the appellant’s own costs a more reasonable quantum for respondent’s costs would be in the vicinity of $12,000 - $15,000. I agree. In order to ensure that the parties are not obliged to have the costs assessed and in accordance with the Rules, I agree it is appropriate to fix the costs at the mid-point in the appellant’s submission, namely $13,500.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 26 May 2025
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