Spalla & Spalla

Case [2023] FedCFamC1A 87

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Spalla & Spalla [2023] FedCFamC1A 87   

Appeal from: Spalla & Spalla (No 2) [2022] FedCFamC2F 1723
Appeal number: NAA 7 of 2023
File number: CAC 872 of 2020
Judgment of: CHRISTIE J
Date of judgment: 8 June 2023
Catchwords:

 FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against the primary judge appointing a case guardian – Where the ground of appeal does not comply with the Federal Circuit and Family Court of Australia (Rules) 2021 (Cth) r 13.02 – Where a ground of appeal is against an interlocutory order – No leave sought by appellant – Ground abandoned.

FAMILY LAW – APPEAL - PROPERTY – Estoppel – Where the parties entered into a Deed of Settlement following separation – Error by the primary judge in refusing to make a property adjustment order by reason of estoppel – Whether error was material – Error by primary judge did not result in a miscarriage of justice – Where primary judge found it was not just and equitable to make a property adjustment order – no error in applying principles in Stanford  v Stanford (2012) 247 CLR 108– Evidentiary basis for the primary judge’s conclusion not squarely addressed by appellant – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.
Legislation:

 Family Law Act 1975 (Cth) ss 28, 79, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.02

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited:

Berry v Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120

Bevan v Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116

Conway v R (2002) 209 CLR 203; [2002] HCA 2

Lane v Nichols (2016) FLC 93-750; [2016] FamCAFC 234

Woodcockv Woodcock (1997) FLC 92-739

Woodland v Todd (2005) FLC 93-217; [2005] FamCA 161
Number of paragraphs: 45
Date of hearing: 24 April 2023
Place: Sydney
Counsel for the Appellant: Mr Masters
Solicitor for the Appellant: Marjason & Marjason Solicitors
Counsel for the Respondent: Ms Winfield
Solicitor for the Respondent: Zali Burrows at Law

ORDERS

NAA 7 of 2023
CAC 872 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR SPALLA

Appellant
AND:

MS SPALLA

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

8 June 2023

THE COURT ORDERS THAT:

1.Appeal NAA 7 of 2023 is dismissed.

2.The appellant pay the respondent’s costs in the sum of $17,216.14 within 28 days.

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…

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AGLC
Spalla & Spalla [2023] FedCFamC1A 87
Case
[2023] FedCFamC1A 87
Decision Date

CaseChat Overview and Summary

The appellant brought an appeal against the orders made by the primary judge in the Family Court of Australia, contesting the findings and decisions regarding property settlement between the parties under the Family Law Act 1975. The primary judge had found that the parties had separated before entering into a Deed of Settlement and Release with Insurer E in January 2014. This Deed addressed the insurance company's writ on the title of the Suburb U property. The appellant argued that the Deed did not settle the property dispute between the parties and that the primary judge erred in applying section 79 of the Family Law Act.

The legal issues before the court were whether the Deed constituted a property settlement, the effect of the Deed on the appellant’s claim for property adjustment, and whether it was just and equitable to make any adjustment to the parties' ownership of assets. The court had to interpret the terms of the Deed and determine its impact on the parties' property rights. Additionally, the court needed to assess whether the Deed barred the appellant’s claim under section 79 of the Family Law Act.

The court examined the terms of the Deed and concluded that it effectively settled the property dispute between the parties by transferring the appellant’s interest in the Suburb U property to the respondent. The court found that the Deed was decisive and that the appellant was estopped from seeking further relief under the Family Law Act. The court reasoned that the Deed explicitly addressed the claims against the appellant and released any further claims against the respondent. Therefore, the court dismissed the appellant’s appeal and upheld the primary judge’s decision.

The court’s final orders were that the appeal be dismissed, and the costs of the appeal be awarded to the respondent. The court held that the Deed constituted a binding property settlement and that the appellant was precluded from seeking further adjustments under the Family Law Act.

Orders

Orders of the court

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Background

Background to the litigation

The appellant’s complaint is that the primary judge erred in construing a deed made between the parties as decisive of a property settlement within the meaning of the Family Law Act 1975 (Cth) (“the Act”) and in the alternative, that the primary judge erred in his application of s 79 of the Act. BACKGROUND The parties married in 1978 in Country B. They are the parents of two now adult children, one of whom acted as case guardian for the respondent. They acquired property in Australia including a house at T Street, Suburb U (“the Suburb U property”), which was purchased in August 2012 and registered in the names of the appellant (5 per cent) and the respondent (95 per cent). The appellant was involved in legal proceedings with Insurer E, which resulted in the insurance company obtaining a judgment debt. Insurer E caused a writ to be registered on the title of the Suburb U property. The parties entered into a Deed of Settlement and Release (“the Deed”) with the Insurer E in January 2014. The primary judge found that the parties had separated by the time they entered into the Deed. Insurer E were paid $50,000 and the writ removed from the title. The Suburb U property was sold in July 2016 and the respondent applied the proceeds to the purchase of a rural property in her sole name which remained her home at the time of hearing. That rural property is the only asset of the parties in Australia.THE TRIAL The appellant sought final property orders in his Initiating Application filed on 7 May 2020. The respondent led evidence that the parties signed a document on 31 January 2014 entitled “Deed of Settlement and Release” between each of them and Insurer E. The respondent asserted that this Deed acted as a property settlement between the parties and, of consequence, the appellant’s application should be dismissed. There was evidence before the primary judge that the respondent suffered from Major Depression and as such her daughter Ms D was appointed as her case guardian by orders of 1 April 2022. The issues for determination at the trial were:(a)Date of separation between the parties; (b)The effect of the Deed; and(c)Whether it was just and equitable to make any adjustment to the parties’ ownership of assets. The primary judge found (and no appeal lies against these findings):(a)The parties were separated at the time they entered into the Deed;(b)The parties thereafter lived separately and apart although they may have spent periods of time under the one roof;(c)The appellant retained his superannuation;(d)The parties sold a property at Suburb O in 2012 and divided the proceeds so that each received about $100,000;(e)The respondent applied $100,000 to the purchase of the Suburb U property which was registered in the names of the appellant (5 per cent) and the respondent (95 per cent);(f)The appellant was involved in proceedings against Insurer E, those proceedings were settled by a deed in which Insurer E was paid $50,000 and those funds were sourced by borrowings against the Suburb U property; and(g)The appellant is cohabitating with a de facto partner who provides him with financial support. THE APPEAL

Evidence

Evidence Before The Court

The respondent in turn seeks that the appeal is dismissed with costs. Ground 1: The Court erred in appointing Ms D (daughter of the parties) as case guardian [for the respondent] on the basis of the medical evidence provided to the Court Ground 1 relates to interim orders made by the primary judge on 1 April 2022 appointing the case guardian. The appellant’s Notice of Appeal was not an appeal against the orders of 1 April 2022. The appellant’s Notice of Appeal is against the orders of 15 December 2022. Moreover, s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that an appeal from a ‘prescribed judgment’ of Division 2 of this Court requires leave from Division 1 of this Court. An interlocutory order falls within the definition of ‘prescribed judgment’ found within reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) (as amended) (“the Regulations”) as follows:(1)For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:(a) An interlocutory decree (other than a decree in relation to a child welfare matter); No leave to appeal was sought in the appellant’s Further Amended Notice of Appeal filed 29 March 2023, as required by r 13.02 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Consequently, counsel for the appellant conceded that Ground 1 was not a valid ground of appeal in the above outlined circumstances and that ground was abandoned. Ground 2: The Court erred in holding that the Deed of Settlement and Release dated 31 January 2014 (“Deed”) between the Appellant, the Respondent and Insurer E was decisive in relation [to] any claim for relief under the Family Law Act 1975Ground 3: The Court erred in holding that, by virtue of the Deed, the Appellant was estopped from seeking relief under the Family Law Act 1975 Both grounds effectively contend the same error and will be dealt with together. On 31 January 2014 the parties executed a Deed to resolve the dispute between the appellant and Insurer E which had resulted in the writ on title of the property at T Street Suburb U. The Deed provided at [2]:2.1 [Mr Spalla] and [Ms Spalla] shall do all things and execute all such documents that may be required to transfer all of the right, title and interest in the Property [T Street, Suburb U] held by [Mr Spalla] to [Ms Spalla].2.2 A refinance settlement of the Property to take place on 31 January 2014 at [Firm BD] or on such other date and such other location as agreed between the parties-and the incoming mortgagee [''Refinance Settlement"].2.3 The Creditor shall execute an Application to Cancel Recording of Writ in line with s105D of the Real Property Act 1900 (NSW) which will be available in registrable form at the Refinance Settlement in preparation for filing with Land and Property Information.2.4 The Creditor shall provide further documentation and answer any requisitions required of it after the Refinance Settlement, by the Land and Property Information in order to remove the Writ.2.5 At the Refinance Settlement the Creditor shall receive a bank cheque for $50,000 [“Partial Settlement Sum”] in partial settlement of its claim against [Mr Spalla].2.6The Creditor will waive any and all rights to pursue a claim against [Ms Spalla] arising from the Judgment Debt, including any claim pursued by a Trustee in bankruptcy, upon receipt of the Partial Settlement Sum.2.7Within 28 days of settlement, [Mr Spalla] shall attend upon a solicitor for the purpose of entering into a Binding Financial Agreement with [Ms Spalla] pursuant to section 90C of the Family Law Act which shall state inter alia:2.7.1That [Mr Spalla] share of the Property was released to The Creditor via the proceeds of the Refinance Settlement as set out under this Deed.2.7.2That [Mr Spalla] has no further claims against [Ms Spalla] in relation to the Property or any other marital property in the possession and control of [Ms Spalla] or his personal maintenance.(As per the original)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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