TILLIARD & PINDAR
[2019] FamCAFC 122
•18 July 2019
FAMILY COURT OF AUSTRALIA
| TILLIARD & PINDAR | [2019] FamCAFC 122 |
| FAMILY LAW – APPEAL – PROPERTY – Where the parties reached consent orders to allow the appeal and vary the trial judge’s orders – Where the trial judge included, in respect of each party, the capitalised amount of their non-commutable pension payments in circumstances where neither party sought a splitting order and nor was a splitting order made – Where the Full Court is satisfied of an error of law – Where the proposed consent orders reflect a just and equitable outcome in all the circumstances of the case – Appeal allowed – Orders made in accordance with the consent orders – Costs certificates granted. |
| Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 57 Family Law Act 1975 (Cth) s 90MT(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10 Welch & Abney (2016) FLC 93-756; [2016] FamCAFC 271 |
| APPELLANT: | Ms Tilliard |
| RESPONDENT: | Mr Pindar |
| FILE NUMBER: | MLC | 2732 | of | 2018 |
| APPEAL NUMBER: | SOA | 77 | of | 2018 |
| DATE DELIVERED: | 18 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Austin JJ |
| HEARING DATE: | 18 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 October 2018 |
| LOWER COURT MNC: | [2018] FCCA 3224 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Swart |
| SOLICITOR FOR THE APPELLANT: | Kelly & McHale Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hutchings |
| SOLICITOR FOR THE RESPONDENT: | Barker & Associates |
IT IS ORDERED BY CONSENT:
The appeal from the orders made on 5 October 2018 be allowed.
That the orders made on 5 October 2018 be varied as follows:
(a) subparagraph 7(d)(i) be replaced with:
(i)to the Husband in accordance with the following calculation (0.45(R + O)) – H, WHERE
R = the net sale proceeds of the [Suburb T] property including interest accrued thereon;
O = the total of the other assets and accumulation superannuation held or received by the parties being $230,027;
H = the total of assets and accumulation superannuation held by the Husband being $34,537
(b) subparagraph 12(d)(i) be replaced with ‘45 per cent to the Husband’;
(c) subparagraph 12(d)(ii) be replaced with ‘55 per cent to the Wife’.
IT IS FURTHER ORDERED:
The application in an appeal to adduce further evidence filed on 1 July 2019 be dismissed.
There be no order as to costs between the parties.
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 the appellant in relation to the appeal.
The Court grants to the respondent a costs 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 costs incurred by the respondent in relation to the appeal
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 Tilliard & Pindar 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 MELBOURNE |
Appeal Number: SOA 77 of 2018
File Number: MLC 2732 of 2018
| Ms Tilliard |
Appellant
And
| Mr Pindar |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
This was to be the hearing of the appeal from final property settlement orders made by a trial judge in the Federal Circuit Court of Australia on 5 October 2018.
In short compass, the trial judge included, in respect of each party, the capitalised amount of their non-commutable pension payments in circumstances where neither party sought a splitting order with respect to those pension entitlements and nor did his Honour make a splitting order with respect to those entitlements.
Section 90MT(2)[1] of the Family Law Act 1975 (Cth) (“the Act”) only requires there to be an amount determined in accordance with the regulations if a splitting order is to be made.
[1] The applicable section at the time the trial judge made the relevant orders – see Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 57 – now renumbered as s 90XT(2) of the Act with effect from 22 November 2018.
Ground 1 of this appeal challenges the trial judge’s approach in this respect and I need say no more than observe that by reference to the discussion and explanation in cases such as Welch & Abney (2016) FLC 93-756 and Surridge & Surridge (2017) FLC 93-757, that his Honour made errors of law in adopting that approach and in failing to adequately explain, by reasons, his adoption of that approach in the circumstances.
The respondent has acknowledged the errors by the trial judge, and that the appeal must be allowed as a result. Fortunately, the parties have been able to negotiate some final orders by way of variation of the subject orders they propose be made by consent as a consequence of the appeal being allowed.
Those orders reflect the approach that both parties remove, from the assets to be adjusted, each party’s pension entitlement and otherwise effect a 55 per cent/45 per cent division of assets in the appellant’s favour.
By reference to the reasons of the trial judge that are not challenged on the appeal, and having reviewed the relevant evidence for the hearing of the appeal, it seems to me that the proposed consent orders reflect a just and equitable outcome in all the circumstances of the case.
For these reasons, I am satisfied that the appeal ought be allowed and orders in terms of the consent orders that have been negotiated by the parties, reduced to writing, signed by each of them and handed up to us ought be made. I would therefore make those orders and, in addition, because the appeal is being allowed by reason of errors of law, the parties are each entitled to costs certificates, as they seek, in the usual terms pursuant to the Federal Proceedings (Costs) Act1981 (Cth).
I would therefore make orders that the appeal be allowed, orders in terms of the consent orders and the usual orders for costs certificates for each party with respect to their costs of the appeal.
AUSTIN J
I agree with the orders proposed by his Honour and the reasons given for those orders.
AINSLIE-WALLACE J
I too agree with the orders proposed and the reasons given by Kent J and therefore the orders of the Court will be as follows:
(1)The appeal against the orders of the trial judge made in the Federal Circuit Court of Australia on 5 October 2018 be allowed.
(2) The Court makes by consent orders in terms of Order (1) of the Minute of Final Orders signed by the parties, initialled by me and placed with the papers in the Appeal file.
(3) There be no orders as to costs between the parties.
(4)There be a grant to each party of costs certificates in the usual terms pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal.
I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Austin JJ) delivered on 18 July 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 29 July 2019
0
0
3