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Husband Opposes Final Property Settlement Orders

Camons & Hume [2022] FedCFamC1A 52 (12 April 2022)

Final property settlement orders which provided for a superannuation split from the husband to the wife.  The husband opposes such orders and asserts that he was not afforded procedural fairness.  The Court, in determining whether or not to grant the appeal filed by the husband, assessed the adequacy of the primary judge's reasons. 

Facts:

Final property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 October 2021 provided for a split of the husband’s superannuation with X Super fund in favour of Ms Hume (“the wife”) using a base amount of $65,000, but otherwise dismissed all extant applications.  

By his Amended Notice of Appeal filed 4 February 2022, Mr Camons (“the husband”) appeals from such final property settlement orders.  At the commencement of the relationship, the husband owned three properties and the wife owned one.  As found by the primary judge, the parties kept their finances largely separate up until March 2015, after which they opened a joint bank account. 

The items in the property pool consisted of the four pieces of real estate, motor vehicles, cash in bank accounts, furniture and the parties’ superannuation.  The husband has two superannuation interests; one with X Super fund and the other in Y Super fund.  The wife’s superannuation is solely with X Super fund.  The liabilities of the parties primarily consisted of mortgages over the four properties; significantly, only one of the properties (owned by the husband) was worth more than the relevant mortgage debt.  The wife also had a personal loan.

The wife’s proposal for property settlement was a payment to her of $100,000 by the husband in installments over three years, and a superannuation splitting order in her favour of $150,000 of the husband’s superannuation.  Given that only one of the husband’s superannuation funds – X Super fund – had sufficient funds in it to pay such a sum, it must have been that account she had in mind. 

The husband’s position was that there should be no orders for the alternation of property interests or superannuation interests.  On 8 October 2021 the primary judge pronounced orders and delivered reasons for judgment ex tempore

On appeal, it was averred that the primary judge failed to give the husband the opportunity to argue that his Y Super fund, rather than his X Super fund, should have been the subject of the splitting order; that the trial judge failed to take into account and/or give adequate weight to the initial contributions of the appellant; that the trial judge failed to take into account relevant considerations, namely the respondent’s non-disclosure and her failure to provide a more current figure for her superannuation entitlements.

Issue:

Whether or not the appeal should be allowed.

Applicable law:

AMS v AIF (1999) 199 CLR 160[1999] HCA 26 - provides that an appellate court will avoid an overly critical, or pernickety analysis of the primary judge’s reasons. 

Coulton v Holcombe (1986) 162 CLR 1[1986] HCA 33 - provides that appeals are not the means to remedy inadvertence or poor forensic decisions at first instance, as otherwise a trial would become “little more than a preliminary skirmish”. 
 
House v The King (1936) 55 CLR 499[1936] HCA 40 - provides that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 
 
Metwally v University of Wollongong (1985) 60 ALR 68[1985] HCA 28 - provides that parties are bound by their conduct at trial. 
Perdicari & Perdicari (2019) FLC 93-914[2019] FamCAFC 147 - provides that “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked”, and thus regard may be had to the trial transcript.
 
Stanford v Stanford (2012) 247 CLR 108[2012] HCA 52 - relied upon by the husband in holding that justice and equity required no adjustment of the parties’ property or superannuation interests.
 
Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2[1989] VR 8 - held that 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.
Whisprun v Dixon (2003) 200 ALR 447[2003] HCA 48 - provides that in any event, a judge is not obliged to “mention every fact or argument relied on by the losing party as relevant to an issue”.

Analysis:

If the husband wanted an opportunity to make further submissions on alternative outcomes, he should have sought it at the trial, but he did not, and natural justice did not require the primary judge to offer it before pronouncing orders consequential upon the concluded trial.  The husband’s case was that an equalisation of the parties’ superannuation accumulation during cohabitation would require a split in favour of the wife of $12,500.  Whilst he contended that such a figure was de minimis, and hence a split should not be ordered, on his own case there was a live possibility of a split, yet he did not suggest that it should be from his Y Super fund.  Both of the husband’s superannuation accounts were explicitly raised in address by the husband’s solicitor, and plainly acknowledged and understood by the primary judge.  

There is simply no reason to think that the primary judge had forgotten both of those pieces of evidence in the 24 to 48 hours between their receipt and when he gave his ex tempore reasons.  Error is not established merely because an appellate court might have reached a different outcome, as the weight to be given to discretionary factors is quintessentially a matter for the primary judge.  In the balance sheet, the primary judge expressly noted that the wife’s superannuation of “$140,966+” was “(at 30.06.20, present balance unknown)”.  Furthermore, there was an absence of evidence or submissions before the primary judge as to the husband’s preferred superannuation fund to which any splitting order would attach. 

Conclusion:

The appellant’s Application in an Appeal filed 3 March 2022 is dismissed.  The appellant’s Amended Notice of Appeal filed 4 February 2022 is dismissed. 

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