Shaw and Shaw (No.2)

[2017] FCCA 481

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAW & SHAW (No.2) [2017] FCCA 481

Catchwords:
FAMILY LAW – Application in a Case after matter remitted from Full Court for re-hearing – whether Court bound by findings of previous trial judge – whether power to make a contested order for division of property on an Application in a Case without a full hearing – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.94AAA(6)

Cases cited:

Shaw & Shaw and Anor [2016] FamCAFC 159

Applicant: MR SHAW

Respondent: MS SHAW

File Number: ADC 4867 of 2012

Judgment of: Judge Heffernan

Hearing date: 19 December 2016

Date of Last Submission: 22 December 2017

Delivered at: Adelaide

Delivered on: 29 March 2017

REPRESENTATION

Counsel for the Applicant: Mr J Dillon

Solicitors for the Applicant: Andrew Hill & Co.

Counsel for the Respondent: Ms C O'Connor SC

Solicitors for the Respondent: SE Lawyers

ORDERS

1. The respondent’s Application in a Case dated 17 November 2016 is dismissed.

2. The applicant husband’s costs of this application are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Shaw & Shaw (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4867 of 2012

MR SHAW

Applicant

And

MS SHAW

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case by the respondent wife for orders that the matrimonial assets be distributed between the parties on a 50:50 basis.  The wife also seeks orders that the husband pay the costs of the trial before Judge Simpson, formerly of this Court, the costs of the appeal from that trial before the Full Court, and the costs of this application.

2. This application comes before the Court in the following way:

   a)On 27 July 2015, his Honour Judge Simpson entered judgment following a trial, purporting to distribute the assets of the marriage in favour of the wife on a 65:35 basis.  The wife had only sought a distribution of 50:50.  His Honour did not seek submissions from the parties during the trial on whether it was appropriate for him to make a distribution of an amount in excess of that sought by the wife.

   b)The husband appealed that decision.  It is not necessary for me to summarise the grounds of appeal at this point.  On 9 May 2016, the matter was argued before the Full Court of the Family Court.

   c)On 18 August 2016, the Full Court allowed the appeal, dealing only with ground one of the husband’s Notice of Appeal.

   d)The matter was remitted to this Court for re-hearing before a different judge.

   e)This application was filed on 17 November 2016.[1]

   [1]     There was a cross-appeal by the second respondent, who is the son of the husband.  That appeal was dismissed.  For the purpose of these reasons, it will only be necessary to refer to that appeal in order to place the orders made on the husband’s appeal in their proper context.

3. The husband opposes the application and submits that this Court has no power to make the orders sought.

Submissions

1. Written outlines of submissions were filed by both parties.  The written outline for the wife, makes the following submissions in support of her application:

   a)With respect to the husband’s appeal, it is submitted, “the Full Court held that not to give the husband the opportunity to make submissions about the intended distribution, when the case that the husband was meeting at trial of the wife was 50%, was unfair and ordered the matter be remitted for rehearing on this one issue only”.

   b)If the Court makes orders for a 50:50 distribution as sought by the wife on this application it, “will give effect to the intent of the appellate court”.

   c)“The wife says that in doing so any unfairness identified to the husband at the appeal no longer applies and the Court can easily remedy the error of the trial judge by reverting to the wife’s former position.”

   d)The wife submits that the Full Court held, “that the Federal Circuit Court, in dealing with this remitted area, was bound by the findings of the trial judge”.

   e)“The wife rejects that in determining the 79(2) issues, this Court opens up all such issues, but, instead determines the distribution on the basis of what findings have already been made.  This much is plain in the Appeal Judgment.

   To do otherwise would be unfair to the wife and, in the circumstances where the pool is so low, the parties have already had one appeal and one trial ridiculous.  Although the Court has granted certificates for the appeal and this hearing, they each only amount to $4,000 per matter per party which will not meet the costs associated.”

2. The pragmatic thrust of the submissions made on behalf of the wife can be seen in the final paragraph, quoted above, from her written outline of submissions.  The pool is so small that in all of the circumstances a further trial will cause costs to the parties that will substantially diminish it.

3. In her oral submissions, Ms O’Connor SC submitted that the effect of the appeal court judgment was that this Court was required to take into account the findings made by Judge Simpson and that the only issue before the Court is the question of distribution.  The substantial issue of what the pool looked like has been determined by the appeal court and in counsel’s submission I am bound by that.

4. It was submitted for the wife that the trial judge erred in a number of ways, but not in every way.  He failed to seek submissions about whether to depart from the 50:50 distribution sought by the wife and he failed to properly consider contributions.  It was submitted that the judgment of the Full Court did not simply mean that the parties were required to come back to this Court to have a new trial.  In counsel’s submission, the appellate court judgment has indicated that the parties are bound by the findings that the previous trial judge made.  The wife does not dispute that there was procedural unfairness occasioned to the husband.  It was submitted that the simplest way forward was for the procedural unfairness to be remedied and this could occur if her client agreed to be bound by a 50:50 distribution.  This was, counsel submitted, an easy, fair and just way to finalise the matter.  In other words, to make the distribution that the trial judge should have made given his findings. 

5. Counsel emphasised that her client was socially isolated in this country and a part-time worker in employment in which she is poorly paid.  It would be unfair to require her to contest a trial again because of the costs implications.  For that reason, she seeks an order that the pool be divided on a 50:50 basis with new Financial Statements to be provided in order to finally determine the present size of the pool.  The wife’s secondary submission was that the parties should be ordered to present argument based on the findings of the previous trial judge, and then the Court could simply determine what the contributions were.  Counsel reiterated that this Court is bound by the trial judge’s position based on the ruling of the Full Court.

6. For the husband, Mr Dillon submitted that the respondent wife has not identified what power this Court has to make final orders without first proceeding to a hearing. He made the succinct submission that the Full Court set aside all of Judge Simpson’s orders with the exception of orders 4 and 5, which related to the second respondent, and that it remitted the matter to this Court for re-hearing. He submitted that it was conceded at the appeal that if the husband’s appeal succeeded and the orders of the trial judge were set aside then the matter should be remitted for re-hearing. He submitted that the Court of Appeal had power pursuant to s.94AAA(6) of the Family Law Act 1975 (Cth), (‘the Act’) which permitted it to affirm, reverse, or vary the decision appealed from and that it had power to make a decree or decision which in its opinion ought to have been made at first instance, or to order a re-hearing on any such terms and conditions it considers appropriate. Accordingly, counsel submits that had the appellate court thought it appropriate simply to vary the orders to a 50:50 distribution, as sought in this application by the wife, it had the power to do so.

7. Given the orders made by the Full Court, counsel for the husband submitted that the approach promoted by the wife on this application would not amount to a re-hearing.  He submitted that this Court could not simply adopt the reasons of a previous finder of fact, notwithstanding the fact that the Full Court had such power.  The effect of his submission was that in the absence of an agreement between the parties, this Court has no discretion to do anything other than re-hear this matter and make its own findings of fact.

8. Accordingly, he submitted that the wife’s application should be dismissed and costs should be awarded to the husband on an indemnity basis. 

Consideration

1. The relevant orders of the Full Court were as follows:

   “IT IS ORDERED:

   (1)The appeal against the orders of Judge Simpson made on 27 July 2015 is allowed and his Honour’s orders (other than Order 4 and Order 5) are set aside.

   (2)The matter be remitted to the Federal Circuit Court for rehearing.”

2. The other six orders made by the Full Court dealt with the dismissal of the cross appeal, costs, and costs certificates.

3. Pursuant to s.94AAA(6) it was open to the Full Court on remitting this matter for rehearing, to order a rehearing “on such terms and conditions, if any, as it considers appropriate”. The Full Court did not delineate any terms or conditions in the orders made as to the nature or the extent of the re-earing. It simply remitted the matter for rehearing. I can see nothing in the reasons of the Full Court which suggests that it remitted this matter for anything other than a rehearing in the ordinary sense of that term, or in other words, a hearing de novo. For that reason, unless there are matters of evidence which are agreed between the parties, the task for this Court is to conduct a hearing in the ordinary course, consider the evidence, apply the relevant provisions of the Act, and make findings of fact and any appropriate orders to Part VIII of the Act.

4. I reject the submission that the Full Court allowed the appeal because it found a denial of procedural fairness had been occasioned to the husband.  That aspect of ground one of the husband’s appeal was dismissed, the Full Court finding that neither party was deprived of an opportunity to put their case.[2]

   [2]     Full Court judgment, Shaw & Shaw and Anor (pseudonym) [2016] FamCAFC 159 at [74].

5. I reject the submission that the effect of the orders and judgment of the Full Court requires this Court to be bound by the findings of the previous trial judge.  To proceed, as I am urged to do by the wife, would not, in my view, give effect to the intent of the Full Court as submitted.  It would be to misread orders and the reasons of the Full Court.  In my view, the answer to the wife’s submission that I am bound by previous findings made by the trial judge is to be found in paragraph 128 of the judgment of the Full Court:

   “The husband’s appeal must be allowed, and the proceedings between the husband and the wife remitted for rehearing before another judge, since it is clearly not practicable for us to re-exercise the discretion.  It should go without saying that the rehearing must proceed on the basis that the issue between the husband and the wife and the cross appellant has been resolved by the findings already made by the trial judgment and by the dismissal of the cross appellant’s application.”

6. A plain reading of that paragraph suggests that when the Full Court referred to an issue being resolved by the findings already made by the trial judge, it was referring to issues with respect to the second respondent.  In other words, the issues between both the applicant and the first respondent and the second respondent have been resolved by the trial judge’s findings because the findings with respect to the second respondent were not overturned on appeal.  That passage does not support a contention that the issues between the husband and wife have resolved by findings already made by the trial judge.  The appeal was allowed and the orders of the trial judge were set aside.

7. Further, the Full Court made the following observation:

   “His Honour’s errors in assessing the contributions pursuant to s 79(4) are of such significance that the decision cannot stand.  It was accepted that if the appeal succeeded and his Honour’s orders are set aside, the matter should be remitted for rehearing.  We are mindful then of the undesirability of expressing views about the assessment of contributions or the nature and extent of his Honour’s consideration of the s 75(2) factors given that they will be considered afresh on a rehearing of the application.  We therefore do not propose to consider the further challenges brought by the husband.”

   (emphasis added)

8. In my mind, that paragraph also makes it clear that the rehearing envisaged by the Full Court was a re-trial in the commonly understood sense of that term.

9. In my view, to consider myself bound by the findings made by Judge Simpson would be contrary to the ruling of the Full Court and to generally accepted principles as to the nature of a rehearing after a matter has been remitted on appeal.

10. For that reason, I am not bound by the findings made by the trial judge.  It is not appropriate to make a contested order for the alteration of property interests on a 50:50 basis on an interlocutory application.  In the absence of agreement between the parties, it is necessary to give effect to the orders of the Full Court that this matter proceed to a hearing in the ordinary course.

11. I dismiss the Application in a Case filed by the wife on 17 November 2016.

12. For that reason, I do not order that the wife have her costs of this application.

13. As to the application that I make an order in favour of the wife for the costs of the appeal, I decline to do so.  No authority has been referred to me to suggest that I have any power to make an order in favour of the wife and against the husband for costs on an appeal before the Full Court, when the Full Court itself has not made such an order.  In any event, the husband was successful on that appeal.  It is not apparent to me, given that the husband was successful on the appeal, that I should at this stage of proceedings make an order in favour of the wife giving her her costs on the trial. 

14. I decline to make an order at this stage that the husband have his costs of this application.  I will reserve the question of costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date:  29 March 2017