X & X - [1999] FamCA 2254

[1999] FamCA 2254

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA

EA 71 of 1999
PA 3910 of 1978

BETWEEN:

“X”

(Appellant/Wife)

AND:

“X”
(Respondent/Husband)

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM: Nicholson CJ, Ellis and Watt JJ

DATE OF HEARING: 7^th day of December 1999.

DATE OF JUDGMENT: 7^th day of December 1999.

APPEARANCES; Mr. Shaw of Counsel with Mr. Wilson of Counsel, instructed by A R Walmsley & Co, Solicitors, DX 8602 Windsor, on behalf of the Applicant wife.

Mr. Trench of Counsel, instructed by Ross Selvaggio & Associates, Solicitors, DX 8484 Castle Hill, on behalf of the Respondent husband.

CATCHWORDS: EVIDENCE – Admissibility – Judicial Notice - inferences in relation to the significance or otherwise of the wife having genital herpes - Section 144 of the Evidence Act 1995 (Cth)

COSTS – Successful appeal on the basis of error of law – Orders of trial Judge not varied or disturbed in the re-exercise of discretion – Appellant ordered to pay respondent’s costs of and incidental to the appeal.

This was an appeal against orders for property settlement made by Coleman J. The trial was conducted upon the basis that contribution was equal and his Honour effected a division of property consisting of assets of $1,334,890 in the proportion 55 per cent to the wife and 45 per cent to the husband

The principal matter of contention was the proper allowance to be made for section 75(2) factors under the Family Law Act 1975. The wife asserted there should be an allowance of 10 per cent whereas the husband asserted that no adjustment should be made. Counsel for the applicant wife submitted before his Honour that there were four matters under the heading of section 75(2) factors which needed to be considered:

In respect of superannuation, his Honour determined that an adjustment was required favouring the wife in this regard. The second matter was long service leave, and his Honour did not take the husband's notional entitlement to long service leave into account. The third matter was disparity of earnings and in this regard his Honour found that the husband had a greater earning capacity than the wife and that this should be reflected in an adjustment in favour of the wife.

The fourth matter was the wife’s health. In this regard, his Honour found that on the balance of probabilities the husband was responsible for the wife contracting genital herpes and that the wife’s condition was relevant to the question of an adjustment pursuant to section 75(2)(o) of the Act. His Honour lamented the lack of medical evidence before him. He considered that the Court was placed in a position where it had to rely upon judicial notice in order to draw any inferences in relation to the significance or otherwise of the wife having genital herpes. His Honour proceeded on the basis that “the test is whether…

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: X & X [1999] FamCA 2254
Case: [1999] FamCA 2254
Decision Date: 7 December 1999

CaseChat Overview and Summary

This matter concerns an appeal by the husband against property settlement orders made by Coleman J. The trial judge directed that the proceedings be referred to as "X" versus "X" due to the sensitive nature of the issues. The orders divided a property pool of approximately $1,334,890, allocating 55 per cent to the wife and 45 per cent to the husband. The parties married in 1970 and separated in 1998, with two adult children. At the commencement of the marriage, neither party possessed significant assets, and both were employed. The trial proceeded on the basis of equal contributions from both parties.

The Full Court was required to determine whether the trial judge erred in his application of section 144 of the Evidence Act 1995 (Cth) regarding the acquisition and use of specialised knowledge. Specifically, the court considered whether the trial judge had improperly relied on his own knowledge without requiring proof, particularly in the area of specialised medical knowledge, and whether this prejudiced the appellant. The court also had to consider whether, despite any error, the trial judge's property settlement orders should be varied or disturbed, and how the costs of the appeal should be allocated.

The Full Court held that the trial judge had failed to apply the correct test under section 144 of the Evidence Act 1995 (Cth), which mandates that a judge should not accept specialised knowledge without proof and must provide parties with an opportunity to make submissions and refer to relevant information to avoid unfair prejudice. The court noted that even under traditional common law tests, the breadth of matters the trial judge considered, particularly in specialised medical fields, was inappropriate. Despite identifying this error of law, the Full Court found that the trial judge's orders were not to be disturbed or varied, concluding that the appellant had no substantive complaint about the outcome.

Consequently, the Full Court dismissed the appeal, upholding the trial judge's property settlement orders. The appellant was ordered to pay the wife's costs of and incidental to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 144 Evidence Act 1995 (Cth) is the only test to which the trial Judge should have made reference in this case, and he did not do so. Had his Honour applied the correct test, it is clear that he could not have accepted without proof the range of facts upon which he relied for the basis of his own knowledge. In any event, even applying tests that have been traditionally applied at common law, it would not have been open to his Honour to have had regard to the width of matters that he did, particularly having regard to the field of specialised medical knowledge within which they fall. The Court also drew attention to subsection 144(4) which provides:“The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." Even leaving aside the matter of the wife’s heath, the trial Judge’s orders should not be varied or disturbed. The disparity in earnings between the parties will also be reflected in the future in the disparity in superannuation, thus further advantaging the husband. The argument before the Full Court proceeded upon the basis of a ten year period of earnings by both parties, at or about their present level. The Full Court held that an adjustment of 5 per cent as made by the trial Judge for section 75(2) factors overall produced a just and equitable outcome in the circumstances. Even though the appellant had successfully identified an error of law, in circumstances where the trial Judge’s order had not been disturbed or varied, and it had been found that the appellant had nothing to complain about the result before the trial Judge, he should pay the wife’s costs of and incidental to the appeal. This is an appeal by the husband against orders for property settlement made by Coleman J on 6 August 1999. His Honour directed that the proceedings be referred to as "X" versus "X" in lieu of the surnames of each of the parties, having regard to the sensitive issues involved in the case. His Honour effected a division of property consisting of assets of $1,334,890 in the proportion 55 per cent to the wife and 45 per cent to the husband. I note that a different total figure appeared in the appeal book at page 22 that being a total pool of $1,347,890. I assume, although I will give counsel an opportunity to address the Court if necessary, that the correction was made as a result of some discussion and that what appears in the order is in fact the correct figure. The background facts are that the wife was born on 27 March 1951 and was thus aged 48 at the time of the hearing. The husband was born on 15 August 1951 and was thus aged nearly 48 at the time of hearing. The parties married in 1970 and finally separated in 1998. There were two children of the marriage born in 1971 and 1973. At the time of their marriage, neither party had any assets of any significance and each was in employment. It is unnecessary to deal with the history of the marriage in relation to contribution. The trial was conducted upon the basis that contribution was equal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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