SIELAFF & STAATZ - [2018] FamCAFC 213

FAMILY COURT OF AUSTRALIA

SIELAFF & STAATZ

[2018] FamCAFC 213

FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable errors are amply demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Each party bear their own costs – Costs certificates issued as sought by the parties.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9

Bhatnagar & Riju [2018] FamCAFC 144

Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Sielaff

RESPONDENT:

Ms Staatz

FILE NUMBER:

SYC

3390

2015

APPEAL NUMBER:

EAA

2018

DATE DELIVERED:

2 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Watts & McClelland JJ

HEARING DATE:

2 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 February 2018

LOWER COURT MNC:

[2018] FCCA 298

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Flintoff

SOLICITOR FOR THE APPELLANT:

Lindeman Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Dribbus Kovacevic Lawyers

Orders

The appeal against the orders made by Judge Boyle on 9 February 2018 be allowed.
The said orders be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Boyle.
Each party bear their own costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a cost certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.
The Court grants to each party a cost certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sielaff & Staatz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 36 of 2018
File Number: SYC 3390 of 2015

MR SIELAFF

Appellant

And

MS STAATZ

Respondent

REASONS FOR JUDGMENT

Strickland J

Before the court is an appeal from orders made in the Federal Circuit Court of Australia by Judge Boyle on 9 February 2018.
The Notice of Appeal was filed on 8 March 2018.
The parties have reached an agreement in relation to the appeal and seek that consent orders be made providing, first, that the appeal be allowed, secondly, that the orders made by Judge Boyle on 9 February 2018 be set aside, and thirdly, that the proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Boyle.
The order also seeks that cost certificates be granted pursuant to the provisions of ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth).
There are two issues raised by these orders.
First, should the appeal be allowed by consent, and secondly, should the parties have cost certificates.
In relation to the first issue, I refer to and quote from a decision of the Full Court of this Court in Bhatnagar & Riju [2018] FamCAFC 144, and specifically from the reasons for judgment delivered by Murphy J, which reasons were agreed to by Ainslie-Wallace J and myself as follows:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 128, the Full Court of the Federal Court of Australia said in relation to a provision similar to the relevant provision of the Family Law Act 1976 (Cth) (“the Act”):
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
4. The Full Court of the Federal Court of Australia concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
5.A subsequent Full Court of the Federal Court of Australia in Citigroup Pty Ltd v Mason (2008) 250 ALR 7 said, “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong” (at [8]), albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment” (at [7]).
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann (2009) FLC 93-403. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
I agree that that is the correct position, and I am of the view that here, appealable errors are amply demonstrated, and the appeal should succeed.
Those appealable errors are revealed in Grounds 4 and 5 of the Notice of Appeal and they are as follows:
4.The learned trial Judge erred in finding that the value of the business operated by the Respondent, [P Pty Ltd] was $35,820.00.
5.The learned trial Judge erred in finding that the Appellant had not accounted for about $240,000.00 of the funds from the sale of the real property situate at [E Street, Suburb G].
The issue in relation to Ground 5 arises from [80] of the reasons for judgment, where her Honour said the applicant had not accounted for about $240,000 of the funds from the sale of the Suburb G property, and that leads her Honour to say this at [81]:
The Respondent argues that in assessing the Applicant’s initial contribution through the [Suburb G] property, a significant percentage of the funds realised were not ultimately used for the benefit of the parties, but solely for the Applicant. This diminishes the weight to be given to his initial contribution. I accept this argument.
Then at [104] her Honour said this:
The Applicant’s lack of disclosure has made it difficult to assess his contributions. The property at [Suburb G] provided a home for the parties prior to their residing at [Suburb T], and was able to be utilised as security. I accept that the contributions of the parties should be assessed as equal.
Now, the difficulty highlighted in the appeal is that her Honour failed to explain where that figure of $240,000 came from. Thus, it is said that there is a lack of adequate reasons, and in any event, the appellant has demonstrated, in my view, that on the evidence, that finding was not open. In that regard I note that the parties have provided to the Court a statement of agreed facts, and the issue in relation to the accuracy or otherwise of that finding by her Honour, is amply explained in those agreed facts as follows:
19.The learned trial Judge made findings to the effect that the sum of $240,000.00 from the sale of [Suburb G] was unaccounted for. These findings were:
19.1“The Applicant has not accounted for about $240,000 of the funds from the sale of the [Suburb G] Property.” (AB 1 page 043); and
19.2“The Applicant failed to properly account for $240,000 from the sale of [Suburb G]. The Applicant has had the benefit of those finances” (AB 1 page 049).
20.The Appellant deposed that the net proceeds of sale of [Suburb G] were spent on every day expenses, to reduce the mortgage on [Suburb H], purchasing items (some of which were retained by the Respondent, being a [4WD] at a cost of $72,000.00, a vehicle for his son, renovations on his parents’ home and granny flat (AB 1 pages 0114 – 0116 paragraphs 103 – 105).
21.The Appellant deposed to expenditure of $117,650.00 broken down as follows:
21.1.1Paragraph 103 totals $103,700.00 in general expenditure, including a [4WD] for $72,000.00, (item 18 on the final balance sheet) (AB 2 page 0500).
21.1.2Paragraph 104 – renovations to the granny flat – totals $10,950.00 (AB 2 page 0115).
21.1.3Paragraph 105 – renovations to the Appellant’s parents’ home – totals $3,000.00 (AB 2, page 0115).
22.There was general cross examination on the topic of expenditure (see transcript pages 55 line 13 to page 56 line 3) however, the Appellant’s affidavit was not challenged in cross examination as being incorrect.
…
24.Her Honour in the Judgment (AB 1 page 043 paragraph 80), refers to the Appellant’s expenditure totalling $52,000.00, comprised of the following:
24.1.1 $16,000.00 to the Appellant’s son,
24.1.2 $16,000.00 to the Appellant’s parents, and
24.1.3 $20,000.00 to Ms N.
25.Her Honour refers to two lots of paid legal fees - $88,104.00 in paid legal fees and $18,480.00 funds in trust. These total $106,584.00 and are included as an add back in the balance sheet (AB 1 page 038, paragraph 67).
26.The total that Her Honour has accepted as explained expenditure is $158,584.00 (calculation $52,000.00 plus $106,584.00).
27.However, these figures do not take into account the following expenditure totalling $81,000.00:
27.1.1The $25,000.00 withdrawal on 26 November 2015. The evidence of the Appellant is that these funds were applied $16,000.00 to his son (to purchase a vehicle) and the balance on reasonable living expenses. This evidence was not challenged and therefore the sum of $9,000.00 should be deducted from the funds unaccounted for.
27.1.2The $72,000.00 purchase of the [4WD]. This evidence was not challenged and the figure should be deducted from the funds unaccounted for.
To repeat, I am satisfied that there is a lack of adequate reasons provided by her Honour, and that in any event, the finding that I have referred to above, was not open on the evidence, and that clearly has impacted upon her Honour’s ultimate finding in relation to the respective contributions of the parties.
In relation to Ground 4 the issue arises from her Honour’s finding at [61], where her Honour refers to there being a dispute about the value of a business, P Pty Ltd, and her Honour records that the respondent asserts that the value of the entity is the value of its assets as listed on the balance sheet, and they have a value of $35,820, and at the conclusion of that paragraph her Honour says, “I accept the respondent’s value of [P Pty Ltd] as comprised by the assets of the business”. However, as is again amply demonstrated from the statement of agreed facts presented to the court, that figure of $35,820 is not correct when one considers the assets and liabilities set out in the balance sheet that her Honour accepted, and which her Honour set out at [75]. Again, the error is best explained by setting out the relevant paragraphs of the agreed statement of facts as follows:
28.The learned Trial Judge noted that there was a dispute about the value of [P Pty Ltd]. Her Honour dismissed the value asserted by the Appellant of $72,000.00 due to his inability to explain how this figure was arrived at (AB 1 page 037, paragraph 61).
29.The learned Trial Judge accepts what she refers to as “the Respondent’s value of [P Pty Ltd] as comprised by the assets of the business” (AB 1 page 037, paragraph 61). The transcript records the discussion of item 5 in the balance sheet which is the value of [P Pty Ltd]. This is set out at pages 249, line number 14 – 43 where the equipment was represented as being worth $85,820.00.
30.The amended financial statement filed by the Respondent on 24 July 2017 referred to the value of the assets of [P Pty Ltd] being approximately $93,300.00 (AB 3 page 0425).
31.The final balance sheet at trial (AB 3 page 0500 – 0501) has assets of [P Pty Ltd] totalling $85,820.00 (see item 5) on the Respondent’s figures and liabilities and items 45 – 46 on page 0501 totalling $37,806.00. The net figure is therefore $48,014.00
Thus, for those reasons, I am satisfied of appealable error in this case. Accordingly, it seems to me to be entirely proper that the parties should consent to the appeal being allowed, the orders of her Honour being set aside, and the proceedings being remitted for rehearing.
Turning then to the second question, namely the applications by the parties for cost certificates to be granted, which applications are made pursuant to ss 9, 6 and 8 respectively of the Federal Proceedings (Costs) Act 1981 (Cth). Common to those three sections, and specifically in subsections (1) of each, it can be seen that there are three conditions that must be satisfied before the discretion to grant cost certificates is enlivened, namely the existence of a Federal appeal, the success of the appeal on a question of law and the fact that the court granting the certificate has heard the appeal.
Plainly, the first two of those requirements are satisfied here. The appeal is properly characterised as a Federal appeal, and as I have explained in addressing Grounds 4 and 5, the appeal will succeed on a question of law.
In relation to the third condition, that has in the past proved to be more problematic, but the law is now settled, and the question of whether there can be a hearing of the appeal for the purposes of those subsections to which I have referred, where the orders disposing of the appeal are made by consent and without full argument, was considered by the High Court in Cramer v Davies (1997) 72 ALJR 146. There, Kirby J held that a broad construction should be given to that expression and “a hearing” means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way. Here, the appeal has been listed in a public and formal way, and in my view, that requirement is satisfied.
The granting of cost certificates though is clearly a discretionary exercise of power, and it is relevant here that the parties have been put to unnecessary expense in pursuing this appeal, given the errors by the primary judge that have been demonstrated, and it will be necessary for the matter to be re-litigated. Thus, in the circumstances, I am satisfied that the issuing of cost certificates as sought, is appropriate.

Watts J

I agree appealable error has been amply demonstrated and the appeal should be allowed.
I also agree that the error is an error of law and cost certificates should be granted pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth).
I agree with the reasons given by the presiding judge, and I agree with the orders that are proposed.

McClelland J

Yes, I similarly agree with the reasons for judgment of Justice Strickland and agree that the appeal should be allowed, and the costs certificates should be granted.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Watts & McClelland JJ) delivered on 2 November 2018.

Associate:

Date: 21 November 2018