Tobias & Tobias

[2021] FamCAFC 69

FAMILY COURT OF AUSTRALIA

Tobias & Tobias [2021] FamCAFC 69

Appeal from:

Tobias & Tobias [2020] FCCA 1657

Appeal number(s):

NOA 66 of 2020

File number(s):

BRC 9218 of 2016

Judgment of:

STRICKLAND, AUSTIN & TREE JJ

Date of judgment:

19 May 2021

Catchwords:

FAMILY LAW – APPEAL – Where the parties have reached agreement in relation to the appeal and seek that consent orders be made – Where the authorities are such that an appellate court must still be satisfied of error and give reasons accordingly when an appeal is sought to be allowed by consent – Where the issue is the failure by the primary judge to make findings as to the interests of the parties and the values of the same in their property – Where those findings were essential in order for the primary judge to be able to determine whether it was just and equitable to make an order altering the interests of the parties in their property – Where the failure to make the necessary findings permeated the entire adjudicative process – Appealable error demonstrated – Appeal allowed – Order made on 23 June 2020 set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

Legislation:

Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4)

Cases cited:

Bhatnagar & Riju [2018] FamCAFC 144

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7

Division:

Appeal Division

Number of paragraphs:

11

Date of hearing:

In Chambers via joint written submission

Place:

Brisbane (Delivered in Adelaide)

Counsel for the Appellant:

Michael Kearney SC

Solicitor for the Appellant:

Shakenovsky & Associates Pty Ltd

Counsel for the Respondent:

Simon Priestley

Solicitor for the Respondent:

Conroy Stewart Spagnolo

ORDERS

NOA 66 of 2020
BRC 9218 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

Mr Tobias

Appellant

AND:

Ms Tobias

Respondent

ORDER MADE BY:	STRICKLAND, AUSTIN & TREE JJ
DATE OF ORDER:	19 MAY 2021

BY CONSENT THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The Orders made on 23 June 2020 be set aside.

3.The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

4.There be no order as to costs such that each party bear their own costs of and incidental to this appeal.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

STRICKLAND, AUSTIN & TREE JJ:

INTRODUCTION

1. On 25 March 2021, Mr Tobias filed an Amended Notice of Appeal appealing from a final property settlement order made by a judge of the Federal Circuit Court of Australia.

2. The parties have now reached an agreement in relation to the appeal and seek that consent orders be made providing for the appeal to be allowed, for the orders made by the primary judge to be set aside (including the order that there be no order as to costs), for the proceedings to be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge, and that there be no order as to costs in the appeal.

3. The authorities are such that an appellate court must still be satisfied of error and give reasons accordingly when an appeal is sought to be allowed by consent (see Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 and Bhatnagar & Riju [2018] FamCAFC 144).

4. In support of the application to have the proposed orders made by consent, the parties provided a joint statement to this Court on 28 April 2021.

5. Having considered that statement, this Court is of the view that appealable error by the primary judge has been demonstrated, and the orders sought should be made.

   THE APPEAL

6. In the Amended Notice of Appeal, there are seven grounds of appeal raised, and of them, Grounds 1, 4.1, 6 and 7 are conceded by Ms Tobias. Those grounds are as follows:

   1.That Her Honour erred in:

   1.1failing to determine the interests of the parties for the purpose of the determination pursuant to section 79 of the Family Law Act 1975 … – being the interests of each of them in property and the liabilities of each of them; and

   1.2finding that the Court was unable to identify the property in which the parties had interests.

   …

   4.That Her Honour erred in the assessment of the contributions of the parties, including:

   4.1in proceeding to undertake such assessment without regard to the context in which such assessment was to occur, including without having made findings as to the interests of the parties;

   …

   6.That Her Honour erred in finding that the Court was unable to conclude it to be just and equitable to make an order altering the interests of the parties in property.

   7.That Her Honour erred in failing to provide adequate or sufficient reasons for the determination, including but not limited to the particular findings the subject of the preceding grounds of appeal.

7. Ground 1 encapsulates the primary concern with the reasons for judgment of the primary judge. The other grounds are consequential to Ground 1.

8. The issue is the failure by her Honour to make findings as to the interests of the parties (and the values of the same) in their property. Her Honour needed to make those findings in order to be able to determine whether it was just and equitable pursuant to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) to make an order altering the interests of the parties in their property (Stanford v Stanford (2012) 247 CLR 108). Thus, her Honour’s conclusion that it was not just and equitable to make such an order cannot be supported.

9. The failure to make the necessary findings then permeated the entire adjudicative process undertaken by her Honour. For example, without those findings her Honour was unable to give any proper consideration to the respective contributions of the parties pursuant to s 79(4) of the Act, and to the relevant matters arising pursuant to s 75(2) of the Act.

10. There is also a clear issue as to the adequacy of the reasons provided by her Honour, but it is unnecessary to explore that here, given the obvious success of Ground 1.

11. To repeat, appealable error has been demonstrated in making the order that her Honour did, and it is appropriate for this Court to make the orders sought by the parties.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Austin & Tree.

Associate:

Dated:       19 May 2021