Xin & Qinlang
[2024] FedCFamC1A 150
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Xin & Qinlang [2024] FedCFamC1A 150
Appeal from: Xin & Qinlang (No 6) [2024] FedCFamC1F 8 Appeal number: NAA 37 of 2024 File number: CAC 1782 of 2018 Judgment of: ALSTERGREN CJ, TREE & RIETHMULLER JJ Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – APPEAL – Property – Where the contributions of the spouses were equal – Where the net assets of the spouses be divided as to 60 per cent in the wife’s favour – Whether the primary judge erred in not considering the wife’s cohabitation with her partner – Where the husband was self-represented at trial – Where the husband is bound by his conduct at trial – Where there is no substantial injustice – Whether the primary judge failed to consider the effect of orders in monetary terms – Where adequate consideration was given – Appeal dismissed – Costs ordered Legislation: Family Law Act 1975 (Cth) ss 75, 102NA Cases cited: Barker & Barker [2007] FamCA 153
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Murray & Murray (2020) FLC 94-000; [2020] FamCAFC 293
Phipson & Phipson [2009] FamCAFC 28
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 31 Date of hearing: 29 May 2024 Place: Heard in Sydney, delivered in Melbourne Counsel for the Appellant: Mr Jones SC Solicitor for the Appellant: Longton Legal Counsel for the First Respondent: Mr Richardson Solicitor for the First Respondent: Dobson Davey Clifford Simpson Solicitor for the Second Respondent: Lander & Rogers (did not appear) – Submitting Notice filed 16 May 2024 Solicitor for the Third Respondent: Lander & Rogers (did not appear) - Submitting Notice filed 16 May 2024 The Fourth Respondent: Did not participate ORDERS
NAA 37 of 2024
CAC 1782 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR XIN
Appellant
AND: MS QINLANG
First Respondent
MR B XIN
Second Respondent
MS WANG
Third RespondentMR P
Fourth Respondent
ORDER MADE BY:
ALSTERGREN CJ, TREE & RIETHMULLER JJ
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in the sum of $18,703 within 28 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Xin & Qinlang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, TREE & RIETHMULLER JJ:
INTRODUCTION
The appellant appeals final property orders made on 25 January 2024 that divided the property of the parties 60 per cent to 40 per cent in favour of the first respondent. The second and third respondents filed a Submitting Notice, and the fourth respondent did not participate in the trial or appeal.
The appellant was represented for most of the proceeding, including at the time of filing affidavit evidence for the trial, however self-represented at the trial.
BACKGROUND
The primary judge determined the net total pool available for division between the appellant and first respondent was approximately $2,857,000, and the overall contributions of the parties to be equal, neither of which are challenged on appeal.
The primary judge then turned to the considerations contained in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), determining that:
(a)The first respondent has sole ongoing care of the two children of the marriage. Due to the history of the appellant’s contribution towards the children, there was “little scope for optimism that anyone other than [the first respondent]” will bear the financial burden of raising the children (at [296]). His Honour had earlier determined that post-separation, the appellant’s direct involvement with the care of the children had been “non-existent” and contributions to the “upkeep” of the children had been limited (at [292]).
(b)The first respondent is university educated and has business experience which provides a degree of confidence as to her future (at [296]). The appellant is also educated and has secured employment in the public service, but unlike the first respondent, he has his employment to “fall-back” on compared to the first respondent who faces a degree of uncertainty in relying on her business prospects (at [297]).
(c)The appellant was in a “significantly better position than [the first respondent] in respect of superannuation, a matter further emphasising a future differential between the parties” (at [298]). The parties’ superannuation had earlier been determined to be $9,394 for the first respondent, and $180,000 for the appellant (at [277]–[278]).
(d)The income of the appellant, whilst employed in the public service, was described as “significant” (at [297]). Comparatively, the first respondent’s post-separation income was earlier described as “minimal” (at [294]). As identified at the appeal hearing these findings were based upon the evidence that the appellant’s income, after payment of tax, is about $112,000–$120,000 (per annum) and the first respondent’s annual income (inclusive of government benefits) is about $25,000 (Appeal Transcript 29 May 2024, p.7 lines 35–42).
After considering the identified s 75(2) factors, the primary judge divided the property of the parties with 60 per cent in favour of the first respondent.
GROUND OF APPEAL
The appellant relied on one ground of appeal stating that:
The learned trial judge erred in making a section 75(2) adjustment of 10% in favour of the first respondent by:
(a)failing to take into account a relevant consideration, namely the financial circumstances of the first respondent’s cohabitation with her new partner pursuant to section 75(2)(m); and
(b)failing to consider and analyse the effect of the adjustment in monetary terms.
Whether the primary judge failed to take into account a relevant consideration (Ground (a))
The appellant argued that the primary judge fell into error by failing to take into account the financial circumstances of the first respondent’s cohabitation with her new partner (“Mr AK”) in accordance with s 75(2)(m), which provides that the matters to be taken into account includes “if either party is cohabiting with another person” and “the financial circumstances relating to the cohabitation”. The cohabitation was not expressly referred to in the reasons.
The first respondent set out in her Financial Statement filed 7 November 2023 that Mr AK contributes approximately $200 per week to “share of household expenses”. She has only been in a relationship with him since mid-2020 and there is no evidence from which to assess the relative stability of this relationship. Mr AK set out that he and the first respondent “share our bills. We don’t have strict rules for who is paying for what” (Affidavit of AK filed 6 November 2023, paragraph 8). Whilst the first respondent’s Financial Statement estimates that $200 per week is paid by Mr AK to household expenses, it is apparent from his affidavit that it is his contribution to the joint expenses. The evidence of the first respondent’s cohabitation with Mr AK is, at best, of only marginal financial benefit. Indeed, it may be of no net financial benefit to the first respondent once the additional costs to the household, as a result of Mr AK’s presence, are taken into account.
The trial ran for seven days and resulted in a detailed judgment of 315 paragraphs. Whilst the appellant self-represented, he had access to the Commonwealth Family Violence Cross Examination Scheme funding for legal representation, as a result of a final Family Violence Intervention Order and a consequent order pursuant to s 102NA of the Act (at [8]). However, it is apparent that he did not take up the option of being legally represented at the trial pursuant to the scheme.
Significantly, the appellant did not file an Outline of Case prior to trial, did not advance an argument before the primary judge to the effect that the first respondent’s cohabitation with Mr AK should be taken into account, nor articulate how any real weight could be placed upon this circumstance.
The omission of a specific reference by the primary judge to this factor does not demonstrate that his Honour overlooked the issue. It is clear that the primary judge had careful regard to the parties’ circumstances. The post-separation circumstances of the parties were discussed at [290]–[295]. Then at [296] the primary judge identified that there are matters pursuant to s 75(2) that “point to a further adjustment in favour of the [first respondent]”. We do not read this part of the judgment as intending to cover all the minutiae of the first respondent’s circumstances, rather, it was to identify the significant factors justifying an adjustment pursuant to s 75(2). It is not necessary for a judge to set out every fact and circumstance that may be relevant to a decision. Had the appellant raised this issue before the primary judge it may have been necessary to address the matter specifically in the reasons, however the issue was never raised at the trial.
In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (“Macedonian Orthodox Community Church”), the High Court said at [120]–[121]:
120.… when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
121.The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration "expressly", even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”), Gleeson CJ, McHugh and Gummow JJ explained the principle by saying:
51.… It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
(Footnotes omitted)
Whilst the appellant’s argument relies upon the unchallenged evidence in the first respondent’s case, this does not necessarily result in the argument being permitted to be raised for the first time on appeal. As the High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:
… It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The considerations identified in Macedonian Orthodox Community Church and Whisprun are apposite here. In this case the issue was not specifically raised at the trial, and on the appellant’s case at its highest, it is difficult to see how such a minor matter (in the context of the circumstances of the parties in this case) could result in a different outcome. Whilst the appellant self-represented at the trial, that is but one factor to be considered when applying the usual principles.
We are not persuaded that the primary judge failed to have regard to the contributions of Mr AK to the first respondent’s household, nor that the appellant should be permitted to raise this argument on the appeal when it was not raised before the primary judge.
Even if the appellant had persuaded us that there was an error of law by the primary judge, it would not result in appealable error if there has not been a miscarriage of justice. As was explained in Conway v The Queen (2002) 209 CLR 203:
3.…whether notwithstanding that the points thus raised might be decided in favour of the appellant, the appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred [citing Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 530–531].
…
29.… at common law a new trial would not be ordered in a civil cause if the error — whatever it was — could not reasonably be supposed to have affected the result of the trial could not reasonably be supposed to have affected the result of the trial.
(Footnotes omitted)
Given the minor nature of the benefit received by the first respondent from Mr AK (if any) and having regard to the considerations of the primary judge at [296]–[298], we are not persuaded that there was any substantial miscarriage of justice, even if the primary judge overlooked this particular fact.
We are not satisfied that appealable error has been established with respect to this part of the ground of appeal.
Whether the primary judge failed to consider and analyse the effect of the adjustment in monetary terms (Ground (b))
The appellant submitted that the primary judge erred by failing to consider and analyse the effect of the 10 per cent adjustment pursuant to s 75(2) in monetary terms.
The requirement for a primary judge to give adequate reasons is not in doubt (Barker & Barker [2007] FamCA 153). The test as to the adequacy of reasons was set out by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18, and adopted by the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
As the Full Court observed in Candle & Falkner [2021] FedCFamC1A 102, when considering s 75(2) adjustments:
102.… it is well established that the real impact or value of the adjustment in money terms is ultimately the critical issue, not its expression as a fraction or percentage of the overall assets: Clauson & Clauson (1995) FLC 92-595 at 81,911; Adair & Adair [2019] FamCAFC 70 at [66]; Simons & Simons [2020] FamCAFC 128 at [18].
Thus, as the Full Court explained in Phipson & Phipson [2009] FamCAFC 28 (“Phipson”):
39.It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928. In the present matter, the 12% adjustment led to a disparity in favour of the wife equivalent in value to 24% of the assets, or in “money terms” an amount of $226,947 out of a total asset pool of $945,614.
However, in Phipson, the Full Court did not consider that the failure of the trial judge “to have recorded in dollar terms the total impact of the proposed s 75(2) adjustment” constituted appealable error in the context of that case (at [40]).
Phipson can be contrasted with Lovine & Connor and Anor (2012) FLC 93-515 (“Lovine”), where the trial judge made a 15 per cent adjustment pursuant to s 75(2) which, in dollar terms, resulted in a difference between the parties of over $4,000,000. The difference was so great that the Full Court concluded that the trial judge in Lovine did not sufficiently analyse the effect of the adjustment, although the case turns upon its own facts. Importantly, as was said in Murray & Murray (2020) FLC 94-000:
73.… Translating the percentage adjustment into real money terms is thus one method which ensures the judge explains the effect of the decision to order a very substantial adjustment and illuminates the process of reasoning.
(Emphasis added)
The primary judge in the present proceedings identified that the effect of the adjustment resulted in a split of property of the parties 60 per cent in favour of the first respondent and 40 per cent in favour of the appellant (at [299]), not merely expressing the adjustment as 10 per cent in favour of the first respondent. His Honour then identified the monetary effect of the adjustment, saying:
300.On the pool of property as identified above, of a net value of approximately $2,857,000, the effect of the orders will be for the [first respondent] to receive a combination of assets and liabilities constituting a net value of approximately $1,714,000, whilst the [appellant] will be allocated a combination of assets and liabilities constituting a net value of approximately $1,143,000.
The primary judge then went on to consider how the split would be implemented, at [311] and [312], then concluding:
313.This will mean that the orders will provide for the [first respondent] to receive assets of a net value of $1,714,000, but of a gross value of $1,723,000 along with her credit card liability. The [appellant] will receive assets of a net value of $1,143,000, but of a gross value of $1,532,000 along with the outstanding mortgage liability for [a property] and the parties’ declared debt to the second and third respondents, together totalling $389,000.
314.Given that under the scheme of orders for the allocation of the assets, the [appellant] will receive combined assets to the value of approximately $1,690,000, this will necessitate a cash payment to the wife of $158,000.
It is apparent that the primary judge considered not only the total assets each party would receive as a result of his Honour’s findings pursuant to s 75(2), but also the details of how that would be effected and the amount of the adjustment payment that would be required.
We find no merit in this part of the appellant’s ground of appeal.
CONCLUSION
For these reasons we are not persuaded that the appellant has demonstrated an appealable error on the part of the primary judge and therefore the appeal must be dismissed.
COSTS
The first respondent sought costs in the event that the appeal was dismissed. The appellant has been entirely unsuccessful. It is appropriate that he pay the first respondent’s costs of the appeal. The first respondent filed two Schedules setting out her costs, which she says total $18,703 on a party-party basis. We accept that the costs in the Schedules represent her party-party costs and make orders accordingly.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Justices Tree & Riethmuller. Associate:
Dated: 10 September 2024
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