Whitmore & Whitmore (No 2)
[2022] FedCFamC1A 168
•11 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Whitmore & Whitmore (No 2) [2022] FedCFamC1A 168
Appeal from: Whitmore & Whitmore [2022] FedCFamC2F 489 Appeal number(s): NAA 122 of 2022 File number(s): NCC 657 of 2019 Judgment of: ALDRIDGE J Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that the primary judge erred by failing to make an order that he retain the home and pay the respondent a fixed sum by reference to the value of the home at the time of the hearing – Adequacy of reasons – Challenges to weight – No error established – Appeal dismissed – Appellant to pay costs of the respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 75, 79A Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677
Olsson & Olsson [2022] FedCFamC1A 129
Ravasini and Ravasini (1983) FLC 91-312
Number of paragraphs: 37 Date of hearing: 6 October 2022 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Windsor Solicitor for the Respondent: Koulouris & Associates ORDERS
NAA 122 of 2022
NCC 657 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WHITMORE
Appellant
AND: MS WHITMORE
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the respondent fixed in the sum of $12,500.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitmore & Whitmore (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
Mr Whitmore (“the appellant”) appeals against property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 2 March 2022 in proceedings between him and Ms Whitmore (“the respondent”).
Earlier on 23 November 2021, the primary judge made a suite of final parenting and property orders in the proceedings.
By means of an Application in a Proceeding filed on 31 January 2022, the respondent sought enforcement of the property orders because the appellant had failed to cooperate with the respondent in the sale of the former matrimonial home of which he had remained the occupant.
On 2 March 2022, the primary judge set aside the earlier orders for sale and replaced them with orders that the appellant vacate the property, that the respondent have sole occupation of it and restraining the appellant from re-entering the property.
The appellant contends that the primary judge erred by failing to make an order that he retain the home and pay the respondent a fixed sum determined by reference to the value of the home at the time of the hearing.
Procedural history
In order to understand the disposition of the appeal, it is necessary to delve more deeply into the procedural history of the matter.
The appellant did not appeal against the orders made on 23 November 2021 which provided for the home to be sold and the proceeds divided.
Being dissatisfied with the orders on 2 March 2022, however, the appellant filed an Application in an Appeal on 29 March 2022 seeking leave to appeal out of time from the original orders of 23 November 2021. The appeal judicial registrar dismissed that application on 12 April 2022. The appellant then filed an Application in an Appeal on 11 May 2022 seeking review of that decision.
The appellant’s application came before Austin J on 20 May 2022, where the application for review was dismissed. However, his Honour granted the appellant’s oral application for leave to appeal against the orders of 2 March 2022 on the following conditions:
2. The applicant’s oral application for leave to appeal out of time from the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 2 March 2022 is granted, subject to fulfilment of these conditions:
(a) the appeal must be confined to the substance of Grounds 4, 5 and 6 as contained in the draft Notice of Appeal annexed to the applicant’s affidavit filed on 29 March 2022;
(b) the Notice of Appeal must be filed and served within 14 days hereof; and
(c) the sum of $15,000 is preserved as security for the respondent’s costs of and incidental to the appeal which, in the event of dismissal of the appeal, shall be paid to the respondent from the applicant’s share of the net proceeds of sale realised on the sale of the real property pursuant to orders made by the primary judge on 2 March 2022.
3. The respondent’s application for costs of the review application is dismissed.
Thus the appellant can only appeal against the orders of 2 March 2022.
The primary judge’s reasons
It is helpful at this stage to look briefly at the primary judge’s reasons in relation to the property matter supporting the 23 November 2021 orders.
The primary judge found that the major asset of the parties’ was the former matrimonial home which had a net value of $174,861. The respondent had $51,658 by way of superannuation and the appellant $175,000. There were no other assets of significance.
The appellant contended that the property should be divided so that he would receive 65 per cent and the respondent 35 per cent, asserting that his contributions exceeded the respondent’s contributions. The respondent for her part, accepted that the appellant had made greater financial contributions than her and proposed that a finding be made that the contributions favour the appellant 60 per cent and to her 40 per cent.
The primary judge considered that the respondent’s figure was somewhat conservative at [242], but accepted it was appropriate. Having regard to the considerations in s 75(2) of the Family Law Act 1975 (Cth), his Honour found that a 10 per cent adjustment in her favour, as contended for by her should be made. Thus, his Honour found that an equal division of the property was just and equitable.
The particular contention of the appellant was that he should retain the former matrimonial home and should do so on the basis of its agreed value of $600,000. The appellant therefore proposed that he pay the respondent a lump sum based on that valuation. The primary judge did not accept this, saying:
258.However, the difficulty for [the appellant] is that his proposed payment to [the respondent] represents only a small fraction of her just and equitable entitlement, while at the same time being the upper limit of what he could afford.
259.Additional complications to [the appellant] retaining the home are that he says it has been water-damaged and that the repairs will be expensive; moreover since the time of the trial the home value may have changed either upwards or downwards as a result of such damage as well as the generally buoyant property market. The parties should share equally in any rise or fall.
260.In the circumstances I consider it unavoidable that the home is going to have to be sold.
Thus his Honour made orders for the sale of the property.
No doubt his Honour had in mind warnings that have been made against the making of fixed sum orders, as discussed at Noetel and Quealey (2005) FLC 93-230 at [143].
There is no appeal from the findings and the appellant is bound by them.
It is apparent from the reasons of 2 March 2022 that at the hearing, the appellant again sought the making of orders that he retain the former matrimonial home and pay the respondent a fixed sum based on the agreed valuation. This contention was again rejected by his Honour for the following reasons:
23.It is interesting that in the current context [the appellant] still seeks to fix [the respondent] with the exact dollar figure that would have represented her half share at trial in circumstances where inferentially one would think the value of the home must surely have gone upwards and where he could instead have perhaps taken a different decision. But I am not here to speculate about people’s motivations. The fact is that I do not consider that I have any jurisdiction to vary the orders in the manner in which [the appellant] seeks.
24.I was usefully taken to a decision of Kent J in Bebbington & Bebbington (2017) FLC 93-765 wherein his Honour, citing earlier authorities particularly Slapp & Slapp (1989) FLC 92-022, said this:
It is now well-settled that the power of a court to alter property interests is a once and for all proposition. No power lies to alter substantive provisions of a section 79 property settlement order. The Court may, however, vary consequential provisions made pursuant to section 79 of the Act.
25. [The appellant] is not seeking a consequential amendment, he is seeking a substantive rewriting of the order to give effect to what he considers to be my reasons. But I do not, respectfully, agree with that. My reasons were very clear that although the value may have been agreed at $600,000, for the reasons I gave I considered the property should be sold. I do not consider that I have any substantive jurisdiction to vary the orders in the way [the appellant] seeks.
(Emphasis in original)
Thus his Honour varied the orders for the mode of the sale of the former matrimonial home, but not to the division of the proceeds. He declined to make the orders sought by the appellant.
The Appeal
The appellant filed an Amended Notice of Appeal on 15 August 2022 which contains six grounds of appeal, notwithstanding the conditions imposed by Austin J.
Ground 1 challenges the reasons at [262] of the 23 November 2021 reasons and Order 1 made on that day. Ground 2 challenges what the appellant said was the inadequate weight given to his special contributions during the relationship. That evidently is a challenge to the contributions finding made in the 23 November 2021 reasons. Ground 3 challenges the reasoning at [247] of the 23 November 2021 reasons and the primary judge’s finding that the respondent received $12 per week in child support from the appellant. Ground 4 again refers to the special contributions and orders made for the superannuation splitting order which was made on 23 November 2021 and remained unchanged by the 2 March 2022 orders.
None of these grounds is an appeal against the 2 March 2022 reasons.
Ground 5 refers to the findings of assault and domestic violence made in the course of the parenting proceedings. Findings of violence played no part in the property division and accordingly Ground 5 can only be seen as an appeal against the parenting orders which were made on 23 November 2021.
Ground 6 is expressly an appeal against the parenting orders.
Given that the appellant’s application for an extension of time to appeal against the orders of 23 November 2021 was dismissed, none of the grounds contained in the Amended Notice of Appeal is a valid ground of appeal against the 22 March 2022 orders.
The first paragraphs of the appellant’s Summary of Argument filed on 16 August 2022 challenge the credibility of the respondent in general terms, which seem to be directed at the parenting orders but, in any event, can only be a challenge to the 23 November 2021 orders.
The appellant then refers to two specific grounds in the Summary of Argument as follows:
Ground 1
My relationship contributions pre (superannuation), during and post separation have not been given the weight it deserves especially given the duration of the relationship
…
Ground 2
We had an agreed valuation of [the former matrimonial home] that was never challenged until the latter stages of the final trial, to change that valuation in the latter part of the final trial and dismiss my “special contributions” is most definitely prejudicial to me
(Appellant’s Summary of Argument filed on 16 August 2022, p.2)
Again these are challenges to the reasons of 23 November 2021.
In his oral submissions, the appellant restated what he said was the unfairness of having his property removed from him, that the respondent had lied, that she should not get a share of his superannuation and that he should have been allowed to retain the former matrimonial home at the fixed lump sum.
Again, it is difficult to see how any of these submissions related to the 2 March 2022 orders.
It is for the appellant to identify the challenges he seeks to make to his Honour’s orders. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court said:
3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
I am quite unable to see any reasonable basis on which it could be asserted that the primary judge erred in the orders of 2 March 2022.
The appellant was particularly concerned with the primary judge’s failure on 2 March 2022 to make orders that he retain the former matrimonial home and pay the respondent a fixed sum. I have already set out his Honour’s reasons for refusing to do so. Respectfully, his Honour was entirely correct. See for example, the authorities collected in Olsson & Olsson [2022] FedCFamC1A 129 at [17]–[20]. In Ravasini and Ravasini (1983) FLC 91-312, the Court said at 78,127:
A Court in making a property order might do no more than order that the property be sold and the proceeds equally divided. That is the substantive order. If the Court at that time has before it sufficient evidence of the facts and circumstances it may go on and make appropriate “consequential” orders providing the machinery whereby the substantive order is to be carried out.
(Emphasis added)
As the authorities make clear, the substantive order cannot be varied, but the consequential orders may be subsequently altered without recourse to s 79A of the Act. That decision of the Full Court is on all fours with the present matter. The primary judge would have erred had he set aside the order for sale of the property and the subsequent division of its proceeds.
Again, at the risk of excessive repetition, these were matters settled by the 23 November 2021 orders.
I am not satisfied, having looked at the matter for myself, that there is any error in the primary judge’s approach and the appeal will be dismissed.
Costs
The respondent sought an order that the appellant pay her costs in the sum of $21,066.11, noting that $4,466 would need to be reimbursed to Legal Aid NSW. Included in that sum is an amount of $8,387.67 to “peruse and consider Transcript of Proceedings [of] 551 pages”. I do not see why that was necessary in relation to an appeal against the orders of 2 March 2022. Doing the best I can, I think the appropriate sum for costs is $12,500.
The appeal has been wholly unsuccessful and there is no reason why the appellant should not be ordered to pay the respondent’s costs in that sum.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 11 October 2022
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