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Wife Appeals Property Settlement Orders

Newett & Newett (No 6) [2022] FedCFamC1A 70 (17 May 2022)

The wife filed an appeal from property settlement orders made by the primary judge.  The wife asserts that there was actual and apprehended bias.  The Court, in determining whether to grant the appeal, relied upon the Family Law Act 1975 (Cth). 

Facts:

The primary judge found that the parties had net assets available for division of $389,860 which consisted largely of a house at Suburb C (“the Suburb C property”) and the parties’ superannuation entitlements.  His Honour ordered that the husband’s superannuation entitlement of $156,826 be split by the allocation of a base amount of $50,000 to the wife pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”).  The effect was that the husband’s superannuation entitlements became $106,826 and the wife’s became $70,000.  As to the balance of the property, the primary judge ordered that the Suburb C property be sold with the net proceeds being divided so that the husband was to receive 60 percent of the net divisible property and the wife to receive 40 per cent. 

The order took such form because the wife asserted that the property was worth significantly more than the existing valuation, which was not recent, and because the house was in the process of being sold by the mortgagee, who was in possession of the property.  The division took into account the fact that the parties’ three children were in the care of the husband and had been since March 2019 (noting that the final parenting proceedings are yet to be determined).  The wife has appealed against these orders and proposes that instead the proceedings be reheard, and notwithstanding the remittal, there be orders with the immediate effect that she receive all of the net proceeds of sale of the Suburb C property and payment, by way of restitution, from the husband’s solicitors for an amount equal to one half of the net proceeds of sale.

The wife further seeks reimbursement of the costs of her vehicle rental, removalists, relocation costs, accommodation and storage expenses for 2020–2022, together with compound interest at 20 per cent and the full cost of relocating her remaining personal items and the purchase of a replacement vehicle; payment of all her costs in the family law proceedings and related cases in other jurisdictions, together with compound interest at 80 per cent; payment of a sum equivalent to all revenue received by the husband’s solicitors in each of those matters, together with compound interest at 80 per cent; and the trust account statement, itemised transaction record and all contracts between the husband and his solicitors. 

Issue:

Whether or not the primary judge followed the legislative pathway in determining the property matter. 

Applicable law:

Civil Law and Justice Legislation Amendment Act 2018 (Cth) - intended to ensure consistency with equivalent provisions relating to other federal courts.

Family Law Act 1975 (Cth) s 90XT - provides that a court, in accordance with section 90XS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest).
 
Family Law Act 1975 (Cth) s 102NA - applied to prevent each party from personally cross-examining the other. 

Bahonko v Sterjov (2008) 247 ALR 168[2008] FCAFC 30 - relied upon in holding that it is for the wife to identify error and not for us to follow the wife down every rabbit hole suggested by her on the chance such an error might present itself.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the critical point is to identify the link between the comments and the feared deviation from impartial decision making.
 
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - relied upon in holding that things said and done by the primary judge since 25 February 2021, by themselves or when seen in the light of the earlier behaviour or comments, might cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question to be decided.
 
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 relied upon in holding that to establish actual bias the wife must establish that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.
 
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 - provides that a finding is a grave matter, which should not be made lightly and requires cogent evidence. 
 
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 - provides that it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.  

Analysis:

Contrary to the submission of the wife, the primary judge did: make findings as to the identity and value of the property, liabilities and financial resources of the parties; Identify and assess the contributions of the parties; Identify and assess the relevant matters referred to in s 79(4) of the Act; and consider the effect of the findings and resolve what order was just and equitable in the circumstances.  The wife’s real complaint is that the primary judge did not make the findings she sought.  The wife’s submissions merely identify a number of equitable maxims, each of which is followed by a series of broadly stated assertions, some of which betray a misunderstanding of the relevant principle.  At no stage did the wife identify a relevant finding made by the primary judge in the property determination (as opposed to other proceedings) which was said to be wrong on the correct application of a maxim, let alone explain why it was said to be erroneous.

The transcript relied on by the wife is part of the transcript where counsel for the husband deals with the orders the husband sought, which were based on the findings made by his Honour in the reasons for judgment of 8 April 2021.  That is an entirely unremarkable course.  The Court is unable to see where new evidence was adduced.  His Honour did not give judgment immediately and the orders were not exactly as sought by the husband.  On 8 April 2021, his Honour declined to make the orders sought by either the husband or the wife and instead proposed a superannuation splitting order.  Further, there was no “upward adjustment” in favour of the husband, all that happened was that the primary judge made orders that an aspect of entitlement be taken by way of superannuation split.

The wife does not identify the adverse finding that she contends should have been made. She simply refers to VV and the husband’s failure  “to adduce evidence of ...detailed transactions per the Order 17 of 26 October 2020”.  Order 17 required the husband to produce “any management statements or MYOB reconciliation prepared for [VV] Pty Ltd from February 2018”.  It did not require the husband to adduce evidence.

Conclusion:

The appellant is granted leave to rely on the written submissions dated 31 January 2022, which the Court accepts in lieu of oral submissions.  The VV Pty Ltd trial balances from the period of February 2018 to October 2021 be added to the Appeal Book and form part of Exhibit 4.  The appellant’s application on 31 January 2022 to file and rely upon a second appeal book, along with the five affidavits attached to it, is dismissed.  The appellant’s application to file and rely upon an affidavit dated 27 January 2022 is dismissed.  The respondent’s application on 31 January 2022 to rely upon an aide memoire is dismissed.  The appeal is dismissed.  The appellant should pay the respondent’s costs fixed in the sum of $14,113.50 and these costs should be paid from the share of the funds being held by the Court in this matter, prior to the payment to the appellant of the balance.

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