Scott & Danton
[2014] FamCAFC 203
•21 October 2014
FAMILY COURT OF AUSTRALIA
| SCOTT & DANTON | [2014] FamCAFC 203 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant husband contended that the Federal Magistrate erred in determining that an order should be made under s 79 of the Family Law Act 1975 (Cth) and failed to identify his analysis of why an order should be made – Where the Federal Magistrate did demonstrate in his reasons why an order should be made pursuant to s 79 – Where the Federal Magistrate did not err in determining, in all the circumstances, that an order under s 79 should be made – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent wife seeks an order for costs – Where the appellant husband does not oppose such an order being made – Costs ordered as sought by the respondent wife to be assessed on a party/party basis in default of agreement. |
| Family Law Act 1975 (Cth) |
| Bevan & Bevan (2013) FLC 93-545 Biltoft & Biltoft (1995) FLC 92-614 Chapman & Chapman [2014] FamCAFC 91 Gabel and Yardley (2008) FLC 93-386 Hickey & Hickey and the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 In the marriage of Prince, General Credits Australia Ltd (intervenor); A-G for the State of Queensland (intervening); A-G for the Commonwealth of Australia (intervening) (1984) FLC 91-501 Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 Prantage & Prantage [2012] FamCAFC 84 Stanford v Stanford (2012) 247 CLR 108 Water Board v Moustakas (1988) 180 CLR 491 |
| APPELLANT: | Mr Scott |
| RESPONDENT: | Ms Danton |
| FILE NUMBER: | SYC | 3252 | of | 2010 |
| APPEAL NUMBER: | EA | 134 | of | 2012 |
| DATE DELIVERED: | 21 October 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Watts JJ |
| HEARING DATE: | 28 April 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 919 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPELLANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
Orders
The appeal be dismissed.
The husband pay the wife’s costs of and incidental to the appeal on a party/party basis in a sum to be agreed or in default of agreement as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Danton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 134 of 2012
File Number: SYC 3252 of 2010
| Mr Scott |
Appellant
And
| Ms Danton |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed 14 May 2013 the husband appeals an order for property settlement made by Federal Magistrate Foster (as his Honour then was) on 13 September 2012. The husband’s contentions are that the Federal Magistrate erred in determining that an order should be made under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and failed to identify his analysis of why an order should be made.
At the time of the hearing, the wife, who is a medical specialist, was aged 59 years and the husband who is a medical professional was aged 54 years. The parties commenced cohabitation in about January 1991 and married in March 1991. There were four children of the marriage who were born between April 1992 and September 1995 and who at the time of the hearing were respectively aged between 20 and 17 years. The parties separated under the one roof in either late 2007 or early 2008. The parties ceased to live under the one roof in February 2011.
orders sought by the parties at trial
It is not necessary to set out in detail how each party framed and developed their competing proposals, but given the basis of the challenge to the order made by his Honour, it is important to note that each party sought an order for property settlement under s 79 of the Act.
The Federal Magistrate in his reasons, indicated that at trial the wife relied upon her Amended Initiating Application filed 14 January 2011 and the husband relied upon his Response filed 24 August 2010. Each party sought different orders altering interests in property in those documents.
At the commencement of the hearing, the husband in an outline of argument advanced a more complex proposal but one that continued to require the alteration of interests in property.
Whilst during final submissions, both the husband and wife amended their proposals, each party continued to seek an order under s 79 of the Act.
the federal magistrate’s approach
The Federal Magistrate, consistent with the invitation of both parties, adopted a four staged process based on what he called “well established authority”, including Hickey & Hickey and the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143. That is, his Honour firstly identified the property, liabilities and financial resources of the parties at the time of the hearing. He then considered the contributions the parties made as defined in s 79(4)(a) – (c) of the Act. Thirdly, he considered the relevant matters pursuant to s 79(4)(d) – (g) of the Act. Finally, he determined what order the court should make, satisfying himself in all the circumstances that it was just and equitable to make the order pursuant to s 79(2). At [64] the Federal Magistrate articulated the need to consider the justice and equity of the actual order.
In relation to the contentious issue in respect of the mortgage to the wife’s parents, the Federal Magistrate determined that issue in the husband’s favour and removed that liability from the balance sheet, relying upon statements made by the Full Court in In the marriage of Prince, General Credits Australia Ltd (intervenor); A-G for the State of Queensland (intervening); A-G for the Commonwealth of Australia (intervening) (1984) FLC 91-501 and Biltoft (1995) FLC 92-614. The Federal Magistrate concluded that having disregarded the debt between the wife and her parents when assessing the assets and liabilities of the parties, the court would have regard to the arrangement between the wife and her parents in relation to the mortgage and the duplex development with which it was associated when considering contributions made on the wife’s behalf.
Having examined the respective contributions of the parties, the Federal Magistrate was satisfied that “contributions must favour the wife as to 55 percent to her and 45 percent to the husband”. In considering further adjustments pursuant to s 79(4)(d) – (g) of the Act, the Federal Magistrate concluded that no further adjustment needed to be made.
At [97] and following, the Federal Magistrate under the heading “Just and Equitable” considered what adjustment would need to be made consistent with the findings in respect of matters pursuant to s 79(4) of the Act. His Honour concluded that on the basis the wife retained assets which she currently held including her superannuation, the husband would be required to pay the wife an adjustive payment of $118,276. The Federal Magistrate found it was appropriate for the husband to be required to indemnify the wife in relation to any liability which she had guaranteed or co-borrowed with the husband. The Federal Magistrate noted that the parties had reached agreement that firstly an amount be set aside in a joint fund for the purposes of making provision for the future tuition costs of the two younger children who were still at private boarding schools and secondly, in the event that there was any recovery, in whole or part, of a significant debt which a third party owed one of the companies, then the wife would be entitled to one half of any amount or amounts recovered. Finally, the Federal Magistrate did not consider it appropriate to make a superannuation splitting order from the husband’s superannuation interest.
At [106] the Federal Magistrate concluded that a property settlement order as outlined was just and equitable and then made orders consistent with the reasons for judgment.
orders
It is necessary to set out the terms of the order made on 13 September 2012:
THE COURT ORDERS THAT:
1. That within one month from the date of these orders the husband pay to the wife or as she may otherwise direct the husband in writing the sum of $118,276.
2. That within one month from this date the wife transfer to the husband her shareholding and any other interest that she may have in [MM] Pty Ltd and resign any office she holds in same and that hereinafter the husband indemnify the wife and save her harmless from any or all liability arising from her association, employment or shareholding with the said company including any liability to the Australian Taxation Office howsoever arising.
3. That otherwise the husband indemnify the wife from all or any liability in relation to any debt or guarantee entered into by the wife for the benefit of the husband or any entity associated with him.
THE COURT FURTHER ORDERS BY CONSENT THAT:
4. That as to the [A Group] account that the husband shall do all things and sign all documents necessary to as soon as possible access after maturity and thereafter utilise funds held by the [A Group] once paid to him by payment on behalf of the husband and wife in reduction of the total tuition costs (being either boarding school costs or university tuition costs) associated with the children [D] born [in] 1994 and [N] born [in] 1995 ("the children") and the court notes that the parties agree that after the payment provided for they will jointly be responsible for and will pay equally the tuition costs referable to the children outstanding following the payment of funds held with [A Group].
5. That as to the [Ms J] debt owing to [MM] Pty Ltd that within 7 days after receipt of funds by the husband he shall remit to the wife an amount equivalent to one half of all funds received by the husband or [MM] Pty Ltd from [Ms J] in reduction of monies owing by her, less tax paid by the husband or [MM] on the amounts received (if any) and reasonable costs of recovery (if any) and that the husband shall provide to the wife all documents and particulars relevant to the repayment of funds owing by [Ms J] including any documents relating to any criminal charges issued against [Ms J], within 7 days of those documents coming into the possession of the husband.
grounds of appeal
At the hearing of the appeal, an order was made granting leave to the husband to file and serve an amended Notice of Appeal containing the two additional grounds of appeal as set out in his further amended submissions dated 22 April 2014.
The husband then abandoned all previous grounds and relied only upon the two additional grounds for which leave had been given, namely;
1. That the learned Federal Magistrate (as he then was) failed to identify his analysis of why an order under Section 79 should be made having regard to the existing legal and equitable interests of the parties to the pool of assets as found to exist, particularly in circumstances where, a significant amount of that property pool existed at cohabitation, or came into existence, post-separation.
2. That apart from the obvious practicality of Order 2 of the Orders made the 13th September, 2012 the learned Federal Magistrate (as he then was) erred in determining that, in all of the circumstances, an order under Section 79 should be made.
The order which the husband sought was that order 1 of the orders made by the Federal Magistrate on 13 September 2012 be discharged.
The husband did not seek to disturb orders 2, 3, 4 and 5 made on 13 September 2012.
Following the hearing of this appeal a differently constituted Full Court delivered judgment in Chapman & Chapman [2014] FamCAFC 91.
On 22 July 2014 this Court made an order that the parties file and serve any submissions arising from the decision in Chapman. Those submissions have now been received and have been taken into account by us.
relevant principles
The High Court in Stanford v Stanford (2012) 247 CLR 108 determined (at [37]) that “[f]irst, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.” The High Court then held (at [37]) that the “question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.” Further, the High Court emphasised (at [40]) that,
whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4) … To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
In Bevan & Bevan (2013) FLC 93-545, the plurality said at [84],[85] and [89]:
84. Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
85. This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
…
89. In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. Ultimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues
(Emphasis in original).
In the same case, Finn J said:
166. The point in the decision making process at which the question of whether it is just and equitable to alter property interests of either party is to be addressed must depend on the circumstances of each particular case. There can be no hard and fast rule.
167. However, as a general rule, it will, in my view, be useful to identify at a very early point in a judgment what are the existing property interests of the parties and what are the orders that each party is seeking in relation to those interests.
The Full Court in Chapman considered the relevant principles emanating from Stanford and Bevan. In Chapman, Strickland J and Murphy J (with whom Bryant CJ agreed) said:
18. As to inference, the plurality in Bevan said (at [89]) “[u]ltimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues” (emphasis added). Similarly, the plurality firmly rejected (at [86]) the notion that s 79(2) forms a “threshold issue” – which their Honours described as a “misleading” description – or that error is demonstrated by a failure to deal with s 79’s separate requirements in a particular order.
19. Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s 79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s 79(2) issue will, “…in many cases … [be] … effectively answered in the affirmative by the way the parties present their cases.”
20. Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
21. First, it is “…not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “…stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “…just and equitable requirement is readily satisfied…” by the fact of separation: “[i]t will be just and equitable to make a property settlement order … because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
22. “Ready satisfaction” of the s 79(2) requirement “in many cases” by reference to separation and its consequences brings with it a necessary further consequence; in those “many cases” the parameters, breadth and depth of the s 79(2) inquiry will be curtailed accordingly. It is those who lived within the “stated and unstated assumptions” who understand them best. As a result, satisfaction of the s 79(2) requirement can be inferred, at least in part, from the issues joined and, importantly, not joined, between the parties.
…
24. In light of the broad sweep of the wife’s arguments on this issue, mention should also be made of what the plurality said in Bevan at [84] and [85]. The opening to the latter paragraph and its reference to a “…requirement to consider the s 79(4) matters…” (emphasis added) in answering the s 79(2) question suggests that those factors must mandatorily be considered. Their Honours support that conclusion in [84] by reference to the words used in s 79(4):
…it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, “..such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection.
25. If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree.
26. The judgment in Stanford points, in our view, to the opposite conclusion. In particular:
•The “…range of potentially competing considerations” and the consequent impossibility of charting the “metes and bounds” of what is just and equitable (at [36]);
•The ready satisfaction of the s 79(2) requirement in “many cases” by the fact of separation (at [42]);
•The statement that “it will be just and equitable” to make an order in “many cases” by reason of the “…choice made by one or both of the parties…” to end the marriage (at [42]);
•Equally, the statement that “it will be just and equitable” to make an order “in many cases” because “…there is not and will not thereafter be the common use of property by the husband and wife” (at [42], emphasis in original);
•The reiteration that: “…nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ‘just and equitable’ (at [46]); and,
•The further reiteration that nothing in their Honours’ reasons is “…intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable” (at [46]).
27. Further, and crucially, in “applying s 79 in this case” the Justices of the High Court did not themselves take into account the matters in s 79(4). Indeed [51] of the judgment suggests they eschewed those s 79(4) matters relating to contribution. If, as the plurality held in Bevan, it is a “…requirement to consider the s 79(4) matters…” (emphasis added) in determining if, pursuant to s 79(2), it is just and equitable to make any order it is, respectfully, inconceivable that their Honours in Stanford would not have done so.
(Bold emphasis in original)
In Chapman, Bryant CJ (in separate reasons) corrected any impression that there was a requirement to consider section 79(4) matters in determining whether it was just and equitable to make any order (referring to the words used by the plurality at [84] in Bevan as “infelicity of expression”). Bryant CJ said that the plurality’s reasons in Bevan, read as a whole, meant rather that it would be inappropriate to limit the wide discretion conferred by section 79(2) by requiring the court to ignore section 79(4) matters.
Importantly, [22] of Chapman echoes what Finn J said in Bevan:
168. As already suggested, where both parties are seeking alterations of interests in one or other’s property, the question as to whether or not it is just and equitable to make any order, will be more easily answered.
ground 1
The challenge here is that the Federal Magistrate failed to identify his analysis of why an order should be made pursuant to the provisions of s 79 of the Act.
The Federal Magistrate demonstrated in his reasons an understanding that as the result of a choice made by the parties, the husband and wife were no longer living in a marital relationship and certainly after the physical separation there was no longer the common use of the property in which the parties were living. The Federal Magistrate was cognisant of the fact that the parties could no longer proceed upon the assumption that any adjustment to interests could be effected consensually as needed or desired. Thus, there is sufficient analysis in the reasons for judgment to identify why the Federal Magistrate chose to make an order pursuant to s 79 of the Act. This is one of the “many cases” in which the s 79(2) requirement is easily met.
Additionally, as indicated in Bevan and Chapman, the reasoning required to explain why any s 79 order should be made, should be read in light of the way the parties, who understand their history best, join or do not join issues. In this case both parties sought a s 79 order be made.
Accordingly, we find no merit in Ground 1.
ground 2
Once Ground 1 fails this ground must also fail, but in the circumstances and in deference to the submissions of both parties we propose to still address this ground.
The husband asserted that the Federal Magistrate erred in determining that an order should be made under s 79 of the Act. This was explained in oral submissions by the husband’s senior counsel as a complaint that his Honour failed to properly apply s 79(2) and in particular by not adequately considering the respective contributions of the parties. There are three difficulties with the submissions made by the husband in support of this assertion. The first difficulty relates to how the parties presented their cases at trial and the suggestion by the husband that the Federal Magistrate was mandated to approach the case in a different manner. The second difficulty is that according to Stanford and Chapman, it is not a requirement that the matters in s 79(4) should be taken into account in determining whether an order is just and equitable. The third difficulty flows from the fact that there can be only one exercise of power under s 79.
In respect to the first difficulty, as can be seen from the above discussion, both parties at trial contended that there should be an adjustment of interests in property in their favour respectively.
The husband on his behalf contended that:
· The wife should pay to him a significant sum of money;
· The wife should transfer shares in three companies to him;
· He should provide an indemnity.
On the wife’s part, she contended that:
· The husband should pay her a significant sum of money;
· Part of the husband’s superannuation interests should be given to her;
· She should transfer her shareholding in three companies to the husband and he should indemnify her in relation to debts arising in respect of those companies.
Senior counsel for the husband conceded:
· That each party contended for an order to be made pursuant to
s 79 of the Act.· Implicitly each party must have conceded that the making of an order under s 79(2) was just and equitable (although the husband’s senior counsel considered that to be irrelevant given that it is for the Federal Magistrate to determine whether an order is just and equitable).
· That no submission had been made by the husband to the Federal Magistrate that s 79 orders could not be made in this case.
It also cannot be said that his Honour did not consider the justice and equity of making an order as s 79(2) requires; his Honour’s reasons (at [64] and [97-106]) make explicit that he did so. As in Chapman (at [30]), “the circumstances of this case, and the manner in which the parties conducted their respective cases before (his) Honour, made further exposition unnecessary.”
Senior counsel for the husband, in written submissions in reply, specifically complained that the Federal Magistrate “failed to adequately firstly look at the existing legal and equitable interests of the parties to the pool of assets as found to exist”. We do not understand that submission as it seems that is exactly what the Federal Magistrate did at [75] of his reasons for judgment, where he set out in the adjusted balance sheet the “ownership” of each asset and liability.
Senior counsel for the husband sought, in further submissions on this appeal, to trace the acquisition and conservation or disposition of individual assets and referred to the lack of findings of a contribution by one or other of the parties to specific assets. He then submitted :
As a consequence....there seems to be little justification, if any, for the finding of a disruption of the legal and beneficial ownership of the property held by the parties as at the date of trial.
This analysis was a re-crafting of the husband’s presentation of his case at trial.
At [65] the Federal Magistrate did what both parties invited him to do, namely, adopt “a one pool approach”. He found that there was insufficient disparity in the contributions to warrant anything other than a global approach. It was not suggested to the Federal Magistrate that he should analyse how each asset had been acquired and conserved.
It is generally not permissible for an appellant to raise on appeal matters of fact not raised below (see, for example, Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 and Prantage & Prantage [2012] FamCAFC 84 at [88]). However this does not apply if the argument agitated on appeal is a pure question of law (Water Board v Moustakas (1988) 180 CLR 491).
As referred to above, senior counsel for the husband argued that although each party sought that an order be made under s 79, the positions of the parties were irrelevant if in fact the process that the court adopted was contrary to law and the court erred in determining that an order under s 79 should be made.
We agree that a Federal Magistrate is not relieved from considering s 79(2) in circumstances where each party is urging him to make an order pursuant to s 79 of the Act; albeit the order that each party seeks the court to make is a different property settlement order. We accept that it is a matter for the court itself to decide whether it is just and equitable to make any order.
As set out above, Chapman, confirms what was said in Bevan where the Full Court rejected any contention that either there was one “reasoning pathway” or that it was an error to fail to consider whether or not an order will be made under s 79(2) at an early point in the reasoning process.
In this case the Federal Magistrate, at a very early stage in the reasons for judgment, identified the existing property of the parties. He knew what orders each party sought. In the final paragraph of his reasons for judgment, he concluded that a s 79 order should be made. The fact that the Federal Magistrate did this at the end of his reasoning process does not mean he made an error in law.
We need say no more about the second difficulty than to refer again to what was said by the Full Court in Chapman.
The third difficulty with the submissions by senior counsel for the husband is that he seeks to maintain paragraphs 2 through to 5 of the order made by the court on 13 September 2012. Paragraphs 2 and 3 require the wife to transfer her shareholding in the husband’s service company, MM Pty Ltd to the husband and to resign her office bearing positions in that company and for the husband to indemnify the wife from any liability in relation to any debt or guarantee entered into by the wife for the benefit of the husband or any entity associated with him. Paragraph 4 requires the husband to access certain funds in his name and to expend those funds on behalf of both he and the wife in reduction of tuition costs associated with two children of the marriage. Paragraph 5 gives the wife rights in relation to any monies recovered from a person said to have caused loss to the husband of an amount in the approximate sum of $239,000.
Senior counsel for the husband asserts that the part of the order contained in paragraphs 2 and 3 can be made as a matter of “obvious practicality” and observes that paragraphs 4 and 5 were made by consent.
The Full Court in Hickey & Hickey andAttorney-General for the Commonwealth of Australia (intervenor) (2003) FLC 93-143 at page 78,387 said this:
48. In our view, an order made pursuant to the provisions of s.79 was correctly described by Senior Counsel for the husband as a “once and for all” proposition. Although there may be partial or interim orders (s.79(6) of the Act) ultimately there is only one exercise of power under s.79 in respect of the property of the parties, even though that single exercise of power may be reflected in a complex order of many paragraphs or clauses, each dealing with a different item of property and some dealing with questions of implementation. It may be that some items of property are not dealt with in paragraphs or clauses of the order as it is not proposed that there be an alteration of interest in such property. However, the single exercise of power prevents a further application in relation to both specified and non specified items of property except pursuant to the provisions of s.79A.
(Emphasis added)
Senior counsel for the husband referred to Gabel and Yardley (2008) FLC 93-386 (without specifically naming the case) and suggested this allowed “partial” or “interim” orders to be made. However that authority is not relevant in this case. Paragraphs 2 to 5 of the order made on 13 September 2012 were not included by the Federal Magistrate as part of a “partial” or “interim” order. The Federal Magistrate is making one order under s 79 as a single and final exercise of power. The husband does not suggest that if he was successful in obtaining the outcome he seeks in this appeal, that the wife could bring a further application under s 79 of the Act on the basis that the power has not been fully exercised. The paragraphs that senior counsel for the husband seeks to retain are in fact part of an order being made pursuant to s 79 of the Act. It is in our view not possible for senior counsel for the husband to, on the one hand assert that the part of the s 79 order made by the Federal Magistrate, requiring the husband to pay to the wife the sum of $118,276, should be discharged on the basis no s 79 order should have been made, but at the same time seek to retain the other paragraphs of the s 79 order. There is only one exercise of power under s 79. By advocating the retention of paragraphs 2 to 5, senior counsel for the husband is conceding that the making of an order pursuant to s 79(1) is appropriate.
Ground 2 must also fail.
conclusion
The disposition of this appeal does not require us to consider the weight the Federal Magistrate gave to particular contributions, as any appeal based on such considerations was abandoned. Although the Full Court in Chapman have made clear that there is no requirement to consider the s 79(4) factors when making a determination as to whether or not any order is just and equitable, in this case, the Federal Magistrate had in fact considered s 79(4) matters prior to him finding an order should be made under s 79. As we have said, the fact that his reasons for judgment were set out in that sequence, demonstrated no appealable error.
The husband’s appeal should be dismissed.
costs
Senior counsel for the husband conceded that if the husband’s appeal was dismissed, the husband should pay the wife’s costs of the appeal and an order will be made that the husband pay the wife’s costs of the appeal, on a party/party basis, in a sum to be agreed or assessed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 October 2014.
Associate:
Date: 21 October 2014
143
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