TREBIANO & TREBIANO - [2018] FamCAFC 110

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO

[2018] FamCAFC 110

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks expedition of his notice of appeal against final property orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 94(2D)(j)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Trebiano

RESPONDENT:

Ms Trebiano

FILE NUMBER:

PAC

1251

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15 June 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2018

LOWER COURT MNC:

[2018] FamCA 344

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnson

SOLICITOR FOR THE APPLICANT:

Brander Smith McKnight

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

IT IS ORDERED

That the Application in an Appeal filed on 8 June 2018 be dismissed.
That the Appeal Registrar conduct a procedural hearing in the appeal as soon as is reasonably practicable.
Each party pay their own costs in relation to the application for expedition
IT IS NOTED
That the parties agree the appeal may be called on short notice.

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 Trebiano & Trebiano 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 76 of 2018
File Number: PAC 1251 of 2017

Mr Trebiano

Applicant

And

Ms Trebiano

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed 8 June 2018, Mr Trebiano (“the husband”) seeks an order for an expedited hearing of his appeal (EA 76 of 2018). The appeal was filed on 8 June 2018 against final property orders made by Foster J on 18 May 2018.
The husband and Ms Trebiano (“the wife”) were married for 25 years. The parties were 70 years of age at the time of trial. There are no children of the relationship.
In broad terms, the orders under appeal provide for:
·The sale of real property jointly owned by the parties at B Street, Suburb C (“the Suburb C property”) and the distribution of the proceeds of sale as to 55 per cent plus $32,981 to the wife and the balance to the husband (Order 1);
·Pending sale, payment by the husband of all outgoings, insurances and services (Order 2);
·A splitting order as to the parties’ entitlements in the Trebiano Pension Fund, being 80 per cent to the wife and 20 per cent to the husband. The husband is required to roll out his entitlement to a fund of his own choosing and the wife will control the fund for her own benefit (Order 4);
·The husband do all things necessary to transfer to the wife his interest and shareholding in D Pty Ltd and resign from any office held by him (Order 6); and
·Liberty to the wife to apply as to the implementation or enforcement of Orders 2 and 4 (Orders 3 and 5).
The wife supports the application for expedition.

Relevant background

So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed in support of this application.
The parties commenced cohabitation in early 1992 and married that same year. At this time the parties were both 45 years of age.
The parties were separated for various lengths of time “under the one roof” from late 2010 to May 2017 when they finally separated and the wife moved out of the Suburb C property. The husband has had sole occupation of the Suburb C property ever since.
At the commencement of cohabitation the wife had the following assets:
·Property at 1 J Street, Suburb K, unencumbered. This property was tenanted at $400 per week;
·Property at 2 J Street, Suburb K, purchased by the wife in 1987 for $80,000 and later refinanced with a borrowing of $200,000. This property was tenanted at $400 per week;
·Property at M Street, L Town, purchased by the wife in 1988 for $100,000;
·Two businesses “P” and “Q”;
·A german motor vehicle; and
·Some savings.
At the commencement of cohabitation the husband had the following assets:
·Property at R Street, Suburb S encumbered (“the Suburb S property”);
·One half interest in a commercial property at T Street, Suburb U subject to mortgage (“the Suburb U property”);
·50 per cent interest in a business V Pty Ltd;
·A motor vehicle, various items of personalty and plant and machinery subject to a loan; and
·Superannuation of about $8,000.
In 1992 the wife subleased her P business for $500 per week but she continued to own and operate the Q business. His Honour found that the husband made little contribution to the conduct of her business.
In the early years of the parties’ cohabitation, the wife continued to work in and derive income from her businesses which continued until 1998. In addition she received rental income from the J Street, Suburb K properties.
The parties acquired the Suburb C property in early 1992 for $238,000. The purchase was funded by way of mortgage to the Commonwealth Bank of Australia. Mortgage payments were about $960 per fortnight which was serviced from the parties’ respective incomes.
In December 1997 the wife sold the property at 2 J Street, Suburb K for $192,000 and the small balance remaining after sale costs and discharge of the mortgage was retained by her.
In May 1998 the wife sold the property at M Street, L Town for $510,000. The wife received net proceeds of sale of about $492,000. The wife applied some of the proceeds of sale in reduction of the mortgage secured over the Suburb C property. The remaining funds were paid into the parties’ self-managed superannuation fund to purchase a commercial property at N Street, Suburb O (“the Suburb O property”) for a total purchase cost of about $425,000.
In June 1998 the wife sold the property at 1 J Street, Suburb K for $175,000 from which she received the net proceeds of about $171,000 together with Bartercard credits of $10,000 relating to the sale of the contents of the property.
In June 1998 the wife sold the Q business from which she received $165,000 in addition to $50,000 of Bartercard credits. The wife applied the cash proceeds from the sale of the business to the parties’ self-managed superannuation fund.
The husband sold the Suburb S property in 1998 with the husband receiving net proceeds of sale of about $100,000.
Following the sale of the wife’s property at 1 J Street, Suburb K and the sale of the husband’s Suburb S property, the funds received were applied to discharge the mortgage secured over the Suburb C property and to commence renovations. The renovations took place over a period of almost seven years from 1997 to 2005. The wife applied her $50,000 of Bartercard credits in part payment of the initial builder engaged.
In 1999 the husband’s partner in V Pty Ltd acquired the husband’s half interest in the business. The husband received $60,000 plus outstanding debtors of about $35,000 as they were paid. It is not clear how the husband applied these funds but it appears likely they were applied to the ongoing costs of renovation of the Suburb C property.
In early 1999 the husband and wife established a self-managed superannuation fund; The Trebiano Pension Fund. They incorporated D Pty Ltd to act as trustee of the fund. The fund purchased the Suburb O property, a property at W Street, Suburb K for $190,000 and the Suburb U property from the husband and his partner for $355,000. The husband’s one half share of the purchase price was applied to discharge his loan relating to the Suburb U property in the sum of $81,437 with the balance of $95,531 being paid by him into the self-managed super fund. The husband’s business continued to trade from the premises and paid rent to the fund. The primary judge determined the wife’s capital contributions to the fund at $1,140,000 and the husband’s at $95,531. Notwithstanding this, the parties’ member benefits in the fund have been treated as equal since its inception.
From 1999 the parties lived on their superannuation fund income paid to them as a tax free pension. For the following years, each party had an income stream of over $50,000 per annum tax free with funds used for living expenses and ongoing renovations to the Suburb C property.
In July 2004 the wife received a compensation payment arising from injuries received by her in a motor vehicle accident earlier that year. She received $17,227 and applied those funds towards the ongoing cost of renovations.
In September 2005 the wife’s mother passed away. There was an issue as to the total sum received by the wife, but it is accepted that the sum was significant and that the wife applied $250,000 of the total sum to the parties’ self-managed superannuation fund, the sum of $200,000 to the same on term deposit and about $33,000 towards the cost of ongoing renovations of the Suburb C property.
In 2008, the husband was diagnosed with a neurodegenerative disorder. As at February 2017 he was assessed as highly disabled, needing assistance in the activities of daily living and as having great difficulty mobilising. The wife received a Centrelink carers pension relating to him, up until separation, attended to the running of the household and providing care to him as necessary.
As at trial the fund had an agreed value of about $2,853,000 and comprised the rental properties at Suburb O, Suburb K and Suburb U together with funds at bank.
On 22 March 2017 the wife commenced property proceedings.
The primary judge adopted a two pools approach, with the non-superannuation assets being one pool, and the superannuation assets being the other. In terms of the non-superannuation pool, the parties’ contributions were assessed 60/40 in the wife’s favour, with a 5 per cent adjustment to the husband due to his greater health needs, resulting in an overall 55/45 split in the wife’s favour. The superannuation pool contributions were assessed at 90/10 in the wife’s favour, with a 10 per cent adjustment in the husband’s favour bringing an overall adjustment of 80/20.

Discussion

Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the court may take into account and which are relevant to appeals will be discussed. This discussion will take place against a background of the appeal division having made significant inroads into the number of appeals awaiting hearing. At present, the position is that appeals lodged in 2018 are now being listed for hearing. On this basis, without an order for expedition, it can be expected that this appeal would be brought on for hearing this year or by February 2019 at the latest. The question then becomes, does this case warrant expedition to bring it on for hearing sooner than the timeframe indicated.
Subparagraph (a) is concerned with whether the applicant, in this case the husband, has acted reasonably and without delay. Both the notice of appeal and the application were filed on 8 June 2018. There can be no doubt that the husband has acted promptly, indeed expeditiously. So much so that this application for expedition is being determined before the husband’s application for a stay which is listed before the primary judge at the end of the month.
Subparagraph (c) concerns prejudice to the respondent, in this case the wife. There can be no concern as to prejudice provided there is no undue hardship caused to her in preparing her case for appeal within a truncated timeframe. However, as counsel for the wife said this morning, should the stay be granted, it is accepted that there is some potential for prejudice to the wife if the appeal is listed for hearing in the ordinary course. The point being, that the wife has secured orders which give her a sizeable share of the sale proceeds of the Suburb C property and that order would not be given immediate effect. Helpfully, her counsel informed the court today that the wife is in a position to present her case on appeal within a truncated timeframe. The wife’s support for the application for expedition and the lack of prejudice in her favour if an order for expedition is made weighs heavily in favour of the order sought.
Subparagraph (d) requires consideration of circumstances which justify this case being given priority to the possible detriment of other cases. When I say the detriment of other cases I mean to other appeals that have been filed earlier and which would be called on for hearing in the ordinary course but not if this appeal was expedited.
Examples of what constitute a relevant circumstance are set out in r 12.10A(4)(a) – (g). Of these, the only example which is relevant in this case is (a), which relates to the age, physical or mental health of a party or witness.
The husband’s health was a significant matter in the hearing, indeed the main reason for an adjustment in his favour pursuant to s 75(2) of the Act. This morning counsel for the husband gave particular attention to [14] of the trial reasons where a description is contained of the manner in which the neurodegenerative disorder impacts on the husband. Difficult as it is for him, there is no suggestion that the disease has affected his cognitive ability or gives rise to a significantly shorter life expectancy. The significance of this is that if the appeal is brought on for hearing in the ordinary course, there is no reason to think that the disease will somehow impede his capacity to continue to instruct his lawyers or that he may succumb before the appeal is heard and determined. Although these matters, nonetheless, provide some support for expedition, they are not sufficient justifications to displace other appeals waiting a hearing date.
Further, the husband’s evidence in support of his application for expedition is that if his appeal is unsuccessful, he will be an aged pensioner without a home. That is true but as he points out he will receive $1.4 million. He also says that for the wife $3.2 million and for him to not be able to retain his home is plainly wrong and manifestly unjust after such a long marriage. Whether that ultimately withstands scrutiny will be a matter for the Full Court but it is not sufficiently persuasive of a need to expedite this appeal.
Therefore, notwithstanding the matters that weigh in favour of expedition the case for this appeal to be given priority over all other appeals awaiting hearing has not been made out. Consequently, the application for expedition should be dismissed.
As I indicated earlier, counsel for both parties indicated this morning that the appeal could be prepared quickly and both parties are willing to have the appeal called on for hearing on short notice. From time to time, appeals do settle fairly close to when they are listed for hearing, and the opportunity may well arise for the parties to be given short notice of an earlier appeal hearing. With this in mind, I agree it is appropriate that a procedural hearing is arranged by the Appeals Registrar as soon as reasonably practical and that the parties are directed to file their respective summaries of argument in a somewhat abbreviated timeframe. Orders and directions will be made accordingly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 June 2018.

Associate:

Date: 21 June 2018