Tanev & Baumann
[2023] FedCFamC1A 182
•25 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Tanev & Baumann [2023] FedCFamC1A 182
Appeal from: Baumann & Tanev (No 2) [2023] FedCFamC1F 81 Appeal number: NAA 150 of 2023 File number: MLC 11841 of 2021 Judgment of: TREE, KARI & CAMPTON JJ Date of judgment: 25 October 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – PROPERTY – Appeal from final parenting and financial orders – Relocation – Where the primary judge made orders permitting the mother to relocate to Country B with the children – Where the parenting determination failed to follow the statutory requirements – Where the primary judge failed to identify the basis of the reasoning for the decision as to adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – No order providing for spousal maintenance despite express intention – Appeal allowed – Matter remitted for rehearing – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 65DAA, 75, 77A
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26
Cases cited: Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Doughty v Fairhall (2022) 65 Fam LR 537; [2022] FedCFamC1A 150
Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Panneton & Delauder (2021) FLC 94-029; [2021] FamCAFC 102
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Starr & Duggan [2009] FamCAFC 115
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Webb & Simpson [2023] FedCFamC1A 15
Number of paragraphs: 60 Date of hearing: 27 September 2023 Place: Heard in Melbourne, delivered in Cairns Counsel for the Appellant: Dr Smith Solicitor for the Appellant: Tyler Tipping and Woods Counsel for the Respondent: Ms Vohra SC and Mr Hannan Solicitor for the Respondent: Berry Family Law ORDERS
NAA 150 of 2023
MLC 11841 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TANEV
Appellant
AND: MS BAUMANN
Respondent
ORDER MADE BY:
TREE, KARI & CAMPTON JJ
DATE OF ORDER:
25 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the Federal Circuit and Family Court of Australia (Division 1) on 3 May 2023 are set aside.
3.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 costs incurred by her in the appeal.
6.The appellant and respondent are granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the re-hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Tanev & Baumann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, KARI & CAMPTON JJ:
INTRODUCTION
By his Amended Notice of Appeal filed 9 August 2023, the father (“the appellant”) appeals from final parenting and financial orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 3 May 2023. The mother (“the respondent”) opposes the appeal.
The parenting orders provide for the three children of the parties, aged eight, six and four years (“the children”), to relocate with the respondent from Australia to Country B (“Country B”) after 30 December 2024. The property orders provide for each party to retain real properties in specie, for the appellant to pay a cash adjusting sum to the respondent and for a superannuation splitting order in favour of the respondent. The reasons of the primary judge record an intention to make an order by way of spouse maintenance pursuant to s 77A of the Family Law Act 1975 (Cth) (“the Act”), in favour of the respondent. No such order was made pursuant to that section.
For the reasons that follow, the appeal will be allowed, and the parenting and financial matters will be remitted for rehearing.
BACKGROUND
The appellant was born in Australia, is a health professional and is aged 50. The respondent was born in Country B, has qualifications as a professional and is aged 35. The respondent travelled regularly to Australia since 2001 and came to Australia for university in 2008. Her family, including her parents, live in Country B.
The parties married in Australia in early 2013 and engaged in a religious marriage ceremony in Country B in mid-2013. The primary judge (at [2]) inferentially found that separation occurred on 4 July 2020 (on the appellant’s case separation occurred on 18 July 2021). The parties’ divorce came into effect in 2023. Their three children were born in 2014, 2017 and 2019.
The parties travelled to Country B twice during the relationship in 2013 and 2015. The respondent took the children on a planned three-month trip to Country B via Country N in late 2020. They remained in Country B until mid-2021. On the respondent’s case, that was by agreement due to the COVID-19 pandemic, so as to avoid subjecting the children to hotel quarantining and home-schooling. The appellant put this into issue, denying such agreement and contending that the respondent unilaterally decided to retain the children in Country B. The primary judge did not make a finding on this subject matter. The respondent, with the appellant’s agreement, enrolled their elder children in school in Country B. On their return to Australia the children spent 14 days in hotel quarantine.
The respondent commenced the proceedings on 28 October 2021.
At the commencement of the relationship the appellant directly contributed an unencumbered real property at K Town, an unencumbered property known as W Property together with two adjacent blocks, an interest by way of a discretionary trust holding another property opposite W Property and $180,000 in superannuation. The primary judge found (at [247]) that the appellant’s direct financial contributions at the commencement of the relationship “exceeded by a considerable extent the [respondent’s] initial direct contribution of $52,000.” A finding was made that the respondent’s contributions as a mother and homemaker, and her support of the appellant in his role as a health professional, were significant.
The appellant ceased work and commenced receiving income protection insurance in late 2021. A finding was made grounded from expert medical opinion (at [251]) that the appellant was currently fit to recommence work as a health professional.
The trial was conducted on 21 to 25 November 2022. The determination and orders under challenge were made almost six months later, on 3 May 2023. A Notice of Appeal was filed 31 May 2023. The Amended Notice of Appeal was filed on 9 August 2023.
THE ORDERS SUBJECT TO APPEAL
The parenting orders provide for the parties to have equal shared parental responsibility for the children pending their relocation with the respondent to Country B. From the time of that relocation, the respondent is to have sole parental responsibility in respect of all major long-term decisions in respect of the children, although she is to inform the appellant of any prospective decision and receive his written input as to such decisions. Pending their relocation to Country B, the children are to live with the respondent and spend time with the appellant on Wednesday nights and on alternate weekends during the school term, and for half of the school holidays. From the time the children live in Country B they are to spend time with the appellant in Australia once annually for not less than two weeks, with the respondent to meet her own costs of travel and the parents to share the costs of the children’s travel. Additionally, should the appellant elect to travel there, the orders provide for the children to spend time with him in Country B, during the school term and school holidays.
The orders for the adjustment of the property provide for the respondent to retain a property at Suburb D, for the appellant to retain two other properties at H Town and K Town and corporate interests, and for the appellant to pay to the respondent $927,666.02. A superannuation splitting order was made in favour of the respondent with a base amount of $199,710.
The appellant conceded in oral submissions that despite seemingly intending to do so, the primary judge did not in fact make an order as to spouse maintenance and hence his appeal as to that subject matter was incompetent.
THE APPEAL
The Amended Notice of Appeal contended nine separate grounds. The appellant’s summary of argument grouped them into three categories, being the challenges made as to the parenting orders, as to the property orders, and as to spousal maintenance.
The Parenting Grounds
The three grounds of appeal as to parenting are:
1.The learned trial judge failed to afford procedural fairness to [the appellant], in making final parenting orders allocating parental responsibility other than in equal shares.
2.The learned trial judge failed to consider the advantages and disadvantages of each party’s proposals concerning parenting matters.
3.The learned trial judge failed to consider the benefit of the children having a meaningful relationship with [the appellant].
As Ground 1 relates to lack of procedural fairness, in the usual course it would be dealt with first as it is a matter that goes to the integrity of the hearing process (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
However, independently of any such challenge, we are satisfied that the appeal as to parenting must succeed because the parenting determination failed to follow the statutory requirements mandated by s 60CC and s 65DAA of the Act. The appellant’s second and third grounds touch upon this failure in part, but do not directly engage with it. The Full Court confirmed in Doughty v Fairhall (2022) 65 Fam LR 537 that:
28. … It does not matter that the grounds of appeal did not raise the fundamental error. The law confers a right of appeal, which should be a reality rather than an illusion, so if the decision at first instance is wrong it should be corrected (Warren v Coombes (1978) 142 CLR 531 at 553; 23 ALR 405 at 424; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; 357 ALR 408; 163 ALD 1; [2018] HCA 30 at [30]–[32]).
Consequently, for the reasons that follow, it is unnecessary to consider Ground 1, nor specifically Grounds 2 and 3, as the parenting matter will need to be remitted for further hearing before a different judge in any event.
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC. That section is as follows:
60CC How a court determines what is in a child’s best interests
Determining the child’s best interest
(1) Subject to subsection (5), in determining what it is in the child’s best interests, the court must consider the matters set out in subsection (2) and (3).
…
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)…
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)…
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(m) any other fact or circumstance that the court thinks is relevant.
(Emphasis added)
Section 65DAA is as follows:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(2)Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must;
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The primary judge correctly set out the legislative pathway and the legal principles to be applied in making any parenting order and additionally when considering the question of relocation (at [112]–[125]). However, the structure of the reasons do not bear out the same. Rather, the primary judge determined that it was in the children’s best interest to relocate with the respondent to Country B after a consideration only of the s 60CC(2) primary considerations, and prior to any consideration of the statutory imperative in s 65DAA and the mandatory additional considerations in s 60CC(3), recording:
143.… I am of the view that it is in the best interests of the children that a relocation to Country B be delayed for a two year period from the date of hearing and that the [respondent] be permitted to relocate with the children after 29 December 2024.
…
152.In these circumstances, I think it is appropriate and in the best interests of the children for a relocation to Country B to be permitted to occur at the end of the school year in 2024, and in time for the children to commence school in Country B in early 2025…
The reasons then record:
155.For the reasons outlined above, in my view, a relocation to Country B with the [respondent] is in the best interests of these children.
(Emphasis added)
Having made that determination, the primary judge in the next paragraph records:
Section 65DAA
156.Given that I have made orders for there to be equal shared parental responsibility whilst the children remain living in Australia, I must consider whether the children spending equal time with each of the parents would be in the best interests of the children. The [respondent] has been the primary carer of the children. Given the level of difficulty that the parties have had in cooperating with one another in relation to parenting, the best interests of the children will be served by adopting the spend time arrangements recommended by the Family Report Writer and incorporated into the minute of orders proposed by the [respondent]. Trying to maintain shared care arrangements in the face of ongoing disputes is likely to expose the children to conflict. These orders include provision for extended times during school holidays. This represents substantial and significant time with each of the parents.
In Starr & Duggan [2009] FamCAFC 115, the Full Court observed:
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In MRR v GR (2010) 240 CLR 461 (“MRR v GR”), in the context of a relocation case the High Court identified the imperative terms of s 65DAA. Their Honours said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
The primary judge next in sequence considers and makes determinations in relation to one child’s attendance at a psychologist, the change of name issue, and the issue of Country N passports for the children (at [157]–[160]).
It is only after the determination that it is in the children’s best interests to relocate with the respondent to Country B is foreclosed that the primary judge considers the s 60CC(3) factors:
161.Section 60CC (3) of the Act sets out a number of additional considerations to which the court is required to have regard. I will deal with those below.
(Emphasis added)
In Sayer v Radcliffe (2012) 48 Fam LR 298 (“Sayer v Radcliffe”), the Full Court said:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer (No 2) at [76]; Morgan at [80]–[81]). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
In determining the question of relocation first, the primary judge inhibited any capacity to engage with the statutory imperative in s 65DAA of considering whether substantial and significant time with the appellant was in the children’s best interests, or to engage with the mandatory additional considerations in s 60CC(3).
The reality of the primary judge’s considerations of the s 60CC(3) factors involved scarce and deficient evaluation of the appellant’s proposal for the children to remain living in Australia. Indeed, the entire focus of the s 60CC considerations was viewed through the prism of relocation and the advantages that it posed for the children and the respondent, as well as the disadvantages to the respondent and the children of remaining in Australia. There was no material consideration by the primary judge of the appellant’s proposal for the children to remain in Australia and its advantages to the children.
The respondent’s suggestion that there was merely a “formatting” error in the structure of the reasons and that a reading of the reasons as a whole can, by inference, lead to the conclusion that both ss 65DAA and 60CC(3) have been considered in the terms prescribed by the Act, is not available. The construction of the reasons in this case prevents such a conclusion from being possible. The primary judge did not explicitly or implicitly take into account what the law required (see Panneton & Delauder (2021) FLC 94-029 at [33]–[35]).
We are not satisfied that the structure nor content of the reasons adequately demonstrate that justice is seen to have been done in the form of an adequate consideration of prescribed relevant matters being undertaken before determination of the children’s best interests were made.
For the above reasons, we are satisfied as to error on the part of the primary judge. In those circumstances, it is unnecessary to consider the remaining grounds of appeal as to parenting as the appeal must be allowed and that matter remitted for hearing before another judge.
The Property Grounds
The four grounds of appeal as to property are:
4. The learned trial judge failed to take into account (or failed to give adequate weight to) the [appellant’s] contributions made during and after the relationship
5. In assessing the contribution of the parties, the learned trial judge failed to consider (or gave insufficient weight to) the contribution by the [appellant] at the commencement of the relationship of three parcels of real estate and the importance of the [appellant’s] initial contributions to the overall asset pool.
6.In assessing the [appellant’s] future income earning capacity, the learned trial judge made findings not open on the evidence and/or gave insufficient weight to the effect of the relocation of the children on that capacity.
7.The learned trial judge gave in adequate reasons with respect to his Honour’s percentage conclusions made in the exercise of the discretion pursuant to s 79 of the Family Law Act.
(As per the original)
It is appropriate to deal with Ground 7 first. The adequacy of reasons will depend upon the circumstances of the case. The authorities make it plain that reasons will be inadequate if justice is not seen to be done, or if a party, or an appellate court, is unable to ascertain the process of reasoning undertaken by the primary judge (see Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18; cited by the Full Court in Webb & Simpson [2023] FedCFamC1A 15 at [77]).
The primary judge initially identified the property of the parties including non-superannuation interests and superannuation interests to be $3,242,117 (at [201]) comprised as:
Asset Ownership Value C Street, Suburb D, VIC Wife $910,000 G Street, H Town, VIC and land north of the road Husband; T Family Trust $1,150,000 Land south of the road Husband; T Family Trust $590,000 J Street, K Town VIC Husband $260,000 Motor Vehicle 2 Wife $65,000 Motor Vehicle 1 Husband $24,000 Motor Vehicle 3 Husband $95,000 Joint Bank accounts Joint NIL Wife’s bank accounts Wife $45,000 Husband’s bank accounts Husband $28,035 Total Non-Superannuation Assets $3,167,035 Liabilities Owner Value CBA Home Loan Joint $447,000 Husband’s credit cards Husband $7,443.12 M Pty Ltd Loan Wife $9,000 Tax Liability Husband $63,474 Total Liabilities $526,917.12 Superannuation Owner Value (Husband) Superannuation Fund 1 Wife $14,000 Superannuation Fund 2 Husband $588,000 Total Superannuation $602,000 Total Assets including Superannuation $3,769,035 Total Assets less liabilities $3,242,117.88 (Footnote omitted)
The primary judge at [245] under the heading “consideration of property” later finds “the total asset pool is $3,317,519”. Implicitly, this is a finding as to the gross value of the non-superannuation and superannuation interests of the parties less the value of liabilities. No specific finding is made as to the value of the superannuation property of the parties. The value of the superannuation interests (recorded at [201]) appears to be that as asserted by the appellant.
The primary judge recorded (at [202]–[204]) that the appellant sought orders adjusting “non superannuation assets” as to 61:39 in his favour, for he “to retain 64.5% of the superannuation assets” and that the respondent “seeks a 60:40 division in her favour”.
The primary judge records (absent reference to, or reconciliation with, [202]–[204] or [245]):
235. The [appellant] argues that consequently contributions should be assessed 70:30 in his favour. The [respondent] argues they should be assessed 55:45 in the [appellant’s] favour.
Section 75(2) Factors
236.The [appellant] seeks there be no adjustment to either party in terms of future needs. The [respondent] seeks a 15% adjustment in her favour.
…
Contributions
246.The court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
As to the assessment as to contributions, the bare finding by way of determination was:
248. In my view, I assess the contributions to the family assets (as assessed at the time of trial) as 55:45 in favour of the [appellant].
(Emphasis added)
The use of the term “family assets” is not clear. The reasons provided no assistance in understanding those assets which are caught by the term, nor is the term one for which there is any definition in the Act. Doing the best we can, the assessment of contributions to “family assets” might be assumed to be a reference to the non-superannuation property of the parties identified by the primary judge in the balance sheet. If this assumption is correct, the primary judge applied what is commonly known as a two-pool approach to the adjustment of the non-superannuation property and the superannuation property of the parties. That is, consistent with well-established authority, treating the parties’ superannuation interests as separate from their non-superannuation interests for the purpose of determining the proportions in which the parties’ superannuation interests on the one hand, and the non-superannuation assets on the other, are to be divided (see Norbis v Norbis (1986) 161 CLR 513; Coghlan and Coghlan (2005) FLC 93-220).
If the reasons infer that the contribution findings were assessed using a two-pool approach and adopt a global approach to the assessment of the parties’ contributions to “the family assets”, they are deficient in that there is no contribution finding as to the superannuation property of the parties. This in and of itself, having regard to the approach taken by the primary judge to the adjustment of the property of the parties in this case, establishes error (see Fitzmaurice & Woolridge (2020) FLC 93-951).
As to the assessment of the adjustments to the contribution findings (considering the matters identified in s 75(2) of the Act) the bare finding by way of determination is:
264.For these reasons there should be an allowance in the [respondent’s] favour of 10% to allow for her on going needs and having regard to the factors referred to in section 75(2) of the Act.
The primary judge failed to provide clear or plain reasons as to whether the adjustments to contributions were made on the basis of a single pool or a two-pool approach. In so far as any potential pathway of reasoning may be capable of being distilled from projecting the final percentages, and speculation can achieve a conclusion that the 10 per cent adjustment applied only to the contribution finding made by the respondent to “the family assets”, that conclusion would achieve an adjustment of “the family assets” in the ratio of 55 per cent to the respondent and 45 per cent to the appellant, not the determination as made of 56.5 per cent and 43.5 per cent respectively.
At best, the primary judge appears to have applied the adjustment to the contribution findings to only one pool (non-superannuation property) and not the other (superannuation property). There is an absence of reasoning as to how, if at all, the finding at [264] is applied to the superannuation pool of property so as to conclude the adjustment of superannuation to be by the way of 64.5:35.5 in favour of the appellant.
The reasons do not permit a conclusion that the finding as to the adjustment as to contributions ought to be inferred as applying to both the non-superannuation and the superannuation interests of the parties. There is no reasoning or explanation why the primary judge took a different approach to the parties’ superannuation interests to that which was determined to be appropriate in respect of their non-superannuation interests.
In determining the issue of the adjustment of the property of the parties, the primary judge failed to discharge the obligation to enable the parties or this court to identify the basis of the reasoning for the decision and the extent to which the parties’ arguments had been understood and accepted. Justice cannot be seen to be done. The ground is established.
It is unnecessary to determine the other grounds in relation to the property appeal in circumstances where we have found appealable error in respect of Ground 7. It is inappropriate for this court to re-exercise discretion in the circumstances where the parenting matter will be remitted for rehearing.
The Spouse Maintenance Grounds
The gravamen of reasoning of the primary judge as to spouse maintenance is:
267. … the [respondent] seeks pursuant to s 77A of the Act for an order that there be an allowance of 2.5% of the net non-superannuation assets as provision in her favour of spousal maintenance. Alternatively, the [respondent] seeks that the [appellant] pay her $1,650 per week for 12 months as spousal maintenance.
The reasons continue, stating:
268.… it is appropriate that the [appellant] make a contribution of $1,500 per week for 12 months of spousal maintenance… I make that order as a lump sum payment based on an adjustment of the non-superannuation assets so as to avoid ongoing administrative arrangements around weekly repayments.
(Emphasis added)
The two grounds of appeal as to spouse maintenance are:
8. When making orders for spousal maintenance the learned trial judge erroneously took into account the expenses of the children of the marriage when assessing the [respondent’s] need.
9. When making orders for spousal maintenance the learned trial judge gave inadequate reasons.
The grounds of appeal again did not engage with the fundamental deficiency in the determination of the primary judge in that, notwithstanding the express intention to make an order for spousal maintenance at [268], no such order was in fact made. The parties may have assumed that the cash sum to be paid by the appellant to the respondent included the lump sum calculated (from [268]) of $78,000. However no order made by the primary judge identified spouse maintenance or s 77A of the Act as required.
Section 77A of the Act provides:
77A Specification in orders of payments etc. for spouse maintenance purposes
(1)Where:
(a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a marriage, is made by consent or varies an earlier order), and the order has the effect of requiring:
(i) payment of a lump sum, whether in one amount or by instalments; or
(ii)the transfer or settlement of property; and
(b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a marriage;
the court shall:
(c) express the order to be an order to which this section applies; and
(d) specify the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the party.
(2)Where:
(a) a court makes an order of a kind referred to in paragraph (1)(a); and
(b) the order:
(i) is not expressed to be an order to which this section applies; or
(ii)is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d);
any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, shall be taken not to make provision for the maintenance of a party to the relevant marriage.
(Emphasis added)
Pursuant to s 26 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), this court has jurisdiction in respect of appeals “from a judgment”. Section 7 of the FCFCOA Act provides that:
judgment means a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.
Section 4(1) of the Act provides that a decree is a “decree, judgment or order and includes”:
(a)an order dismissing an application; or
(b)a refusal to make a decree or order.
In Oswald & Karrington (2016) FLC 93-726 at 81,687 the Full Court said that “it is well settled that reasons for judgment are not of themselves a “judgment” in this connection. A judgment is the formal order by which a Court disposes of the matter before it”.
The primary judge did not make a formal order as to spouse maintenance. An appeal cannot be grounded from that which does not exist. By operation of s 77A(2) of the Act, notwithstanding the recorded intention of the primary judge (at [268]), the failure to specify by order the portion of the cash payment attributable to the provision of maintenance of the respondent, as distinguished from the portion applicable to property, directs that the order for the appellant to pay a cash sum is not an order by way of spouse maintenance at all.
CONCLUSION
The appeal from all the orders of the primary judge should be allowed and the matter remitted for hearing.
COSTS
In circumstances where the appellant has been successful on points of law, it is appropriate that a costs certificate be granted to each of the appellant and the respondent for both the appeal and the rehearing.
We will make orders accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree, Kari & Campton. Associate:
Dated: 25 October 2023
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