TILLIARD & PINDAR - [2019] FamCAFC 122

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

2018

APPEAL NUMBER:

SOA

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TILLIARD & PINDAR [2019] FamCAFC 122
Case: [2019] FamCAFC 122
Decision Date: 18 July 2019

CaseChat Overview and Summary

The appeal in the case of Tilliard & Pindar was heard by the Full Court of the Family Court of Australia, which consisted of Ainslie-Wallace, Kent, and Austin JJ. The appellant, Ms Tilliard, appealed against the property settlement orders made by a trial judge in the Federal Circuit Court of Australia on 5 October 2018. The respondent, Mr Pindar, acknowledged the errors made by the trial judge in his approach to the case. The primary issue in the appeal was whether the trial judge had erred in law by including the capitalised amount of the parties' non-commutable pension payments in the asset pool, despite neither party seeking a splitting order for those pension entitlements, and the trial judge not making a splitting order.

The Full Court found that the trial judge had indeed erred in law, as the applicable section of the Family Law Act 1975 (Cth) only requires there to be an amount determined in accordance with the regulations if a splitting order is to be made. The Full Court noted that the discussion and explanation in cases such as Welch & Abney and Surridge & Surridge supported the view that the trial judge had made errors in law in adopting the approach in question and in failing to adequately explain his adoption of that approach in the circumstances. As a result, the appeal was allowed.

Fortunately, the parties were able to negotiate some final orders by way of variation of the subject orders, which they proposed be made by consent as a consequence of the appeal being allowed. The proposed consent orders reflected a 55 per cent/45 per cent division of assets in the appellant's favour, with each party's pension entitlement removed from the assets to be adjusted. The Full Court found that the proposed consent orders reflected a just and equitable outcome in all the circumstances of the case.

Accordingly, the appeal was 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 the Court were made. In addition, because the appeal was being allowed by reason of errors of law, the parties were each entitled to costs certificates, as they sought, in the usual terms pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders