Dumont & Cabrara [2025] FedCFamC1A 82 (9 May 2025)

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Preston & Preston [2022] FedCFamC1A 157; (2022) 66 Fam LR 285; (2022) 66 Fam LR 285

Quen & Chen [2025] FedCFamC1A 39

Rolfe and Rolfe (1979) FLC 90-629; [1977] FamCA 106

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Wardman and Hudson (1978) FLC 90-466; [1978] FamCA 68

Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71

1. Appeal NAA 370 of 2024 be allowed.
2. The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 27 November 2024 be set aside.
3. The matter be remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge, for rehearing.

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 the pseudonym Dumont & Cabrara has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The appellant wife appeals against property settlement orders made by the primary judge on 27 November 2024.

1. The parties were married for 19 years, finally separating in 2013. However, the property settlement proceedings were not commenced until 2022 (the parties consented to orders to bring the property settlement proceedings out of time).
2. The value of the assets and superannuation of the parties (less their liabilities) was around $2.25 million. In substance, this consisted of three properties, one in the UK and two in Australia, and their respective superannuation entitlements.
3. The primary judge concluded that their property should be split 58 per cent to the appellant and 42 per cent to the respondent. As the appellant was living in the City N property in the UK and the respondent was in Australia, the primary judge ordered that the appellant retain the City N property, the respondent retain one of the Australian properties and that the third property be sold.

APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE

1. The appellant filed an Application in an Appeal on 10 April 2025 seeking leave to lead further evidence with respect to her place of residence in support of ground 5 of the appeal.
2. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) affords the Court a discretion to admit further evidence on appeal. The power "exists to serve the demands of justice" (Hsiao v Fazarri [2020] HCA 35; (2020) 270 CLR 588 at [43], footnote omitted) and is remedial in nature. The High Court, in CDJ v VAJ (1998) 197 CLR 172 noted that "its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous" (at [109]). Although there is no fixed rule with respect to applications to adduce further evidence on appeal, the High Court in CDJ v VAJ said that "where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion" (at [116]). Other relevant considerations include whether the evidence could have been obtained with reasonable diligence, the weight of the further evidence and whether it would have been likely to affect the outcome of the trial. Generally speaking, material that was available to be used at the hearing should not be readily admitted on appeal; however, the whole of the circumstances of the particular case must be considered. The need for finality of litigation must also be borne in mind as an important consideration, as the High Court identified in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, saying (at 7):

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

1. In essence, the appellant seeks to lead evidence that the appellant has, or intends to, relocate to Australia. This proposition was not put to the primary judge at the hearing, nor the subject of evidence. The appellant says that the evidence was not led as a result of a failure by her legal advisors. On 17 April 2025, the respondent filed an affidavit in opposition to the appellant's application in an appeal, disputing the appellant's claims. The ultimate purpose of the evidence is to support an argument that the primary judge ought to have allowed the appellant to retain one of the properties in Australia.
2. Having regard to the relevant considerations and the circumstances of this case, I refused the appellant leave to lead the further evidence on the appeal.

1. The learned primary judge failed to afford procedural fairness to the wife by rejecting the wife's evidence about the value of her equity in the [Suburb W] property as at the date of purchase and as at the date of marriage, in circumstances where:

(a) The husband had not disputed that evidence, neither in his own evidence nor in his submissions; and > > (b) The judge did not give any indication to the wife that her evidence in that regard might be rejected so as to enable the wife to respond to that possibility.

2. At the hearing of the appeal, it became apparent that two underlying issues led to the specific complaint by the appellant: first, whether there was procedural fairness generally in the way the trial proceeded, and secondly whether the primary judge's approach to assessing the parties' contributions led the primary judge into error with respect to the specific finding the subject of ground 1.
3. On the first day of the final hearing, the primary judge recorded (at [5]-[6]) that:

The husband is self-represented despite an order having been made under section 102NA for the husband to have the benefit of legal representation for the purposes of cross-examination at the final hearing.

The wife requested that the matter be determined on the basis of written submissions, an approach which was agreed to by the husband.

1. The primary judge was mistaken in concluding that an order had been made under s 102NA because no such order was ever made.
2. At the hearing, the appellant's counsel made an application for a s 102NA order, relying upon the discretionary criteria in s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth).
3. The s 102NA application, however, was not determined. The primary judge and the respondent had the following exchange:

HER HONOUR: Well, I have a party in the court who has raised concerns about domestic violence, and where there has been a court expert who has also touched on that issue, and where that party does not feel comfortable about being cross-examined directly by you.

[RESPONDENT]: Yes, but can I ask, your Honour - [another judge] says that if there was a problem, he would give me a lawyer who could represent me.

...

[RESPONDENT: But [they] didn't do that.

...

HER HONOUR: - - - ... I can make a section 102NA order, but that's going to mean a couple of things. The first thing is it will take them three months to get on board, because that's how long it takes. ... And it means that today will have to be delayed. The trial can't proceed today. And it will mean, given that we are in May, that more than likely a 45 final hearing isn't going to occur until next year.

(Transcript 27 May 2024, p.4 lines 26-40)

1. The respondent was resistant to the matter being adjourned, stating that there were factual issues about which he wished to cross-examine the appellant (Transcript, p.4 lines 17-24) and that he was content to be cross-examined (Transcript p.5 line 1).
2. The primary judge then proceeded as if it were the respondent and not the appellant who was seeking an order under s 102NA before pressing the respondent to agree to the matter being determined by way of written submissions, saying:

HER HONOUR: - - - that's being raised today. So you asking for a section 102NA order and me imposing such an order will mean that the matter cannot proceed today and there will be a further delay, and I will also be reserving the costs of today, because you were given notification in the order made in September that you could apply under section 102NA. You haven't done so, and therefore I will be reserving costs in favour of the wife, because we've lost today as an event. That's the first option. The option that has been proposed by [counsel for the appellant] is given that factually you're not that far apart, although you're saying that there is some discrepancies, that it could done by way of submission. And where I have a self-represented litigant, I always ask for written submissions, because that gives the self-represented litigant an opportunity to read through those submissions, take their time and respond in writing to those submissions. And that's the proposal being put forward by [counsel for the appellant] today - that the matter proceed by written submissions, that he has a right of reply, that I then have all the material before me, and based on what is filed and what the submissions are, I can then make a decision based on that.

(Transcript 27 May 2024, p.5 lines 8-22)

1. It is difficult to understand why an application by the appellant for a s 102NA order, which was not made until the morning of the final hearing, would be successful (save in quite unusual circumstances), as it would almost inevitably cause an adjournment of the trial. If such an application were successful in the circumstances of this case, it is difficult to see why the respondent rather than the appellant would bear the costs of the adjournment. Given the circumstances in which the respondent's agreement to the matter proceeding upon submission was obtained, it cannot be suggested that the respondent led the primary judge into error - rather, the respondent was pressured into agreeing to the course argued for by counsel for the appellant.
2. The result of proceeding on written submissions alone was, as the primary judge identified, that the "[c]redibility of the parties could not be determined as cross-examination did not occur" (at [12]). The importance of the respondent's desire to cross-examine the appellant (set out above) was borne out by the primary judge's finding that:

1. However, the evidence supports that at times the wife has acted in a less than desirable manner such as:

(a) Attempting to transfer the [City N] property into her name without the knowledge of the husband. > > (b) Seeking a dismissal of the husband's application and not participating in court directed mediations. > > (c) Commencing property proceedings in the United Kingdom (UK) without providing that court with full details as to the property pool. > > (d) Not agreeing until the last moment for leave to be given for the matter to proceed out of time.

3. Whilst the listed matters would ordinarily bear upon the appellant's credibility generally, the primary judge stated that "[w]hilst this behaviour does not impact on the property division it may be relevant in any costs application" (at [14).
4. When the primary judge turned to consider what property each of the parties held at the commencement of the relationship her Honour said:

1. The parties when married brought into the relationship the following by way of initial contribution:

(a) The husband had £15,000 although no independent evidence has been provided to support this claim. > > (b) The wife had equity in the [Suburb W] property, although the amount of equity is unknown as there is no independent evidence to support that the wife had paid $60,000 towards the purchase of the [Suburb W] property.

1. As to the initial contributions in the absence of any independent evidence and given the length of the marriage I find that there is to be no adjustment in favour of either party as to their initial contributions.

...

1. I therefore find that there is to be no adjustment in favour of either party in respect to initial contributions.

1. The reasons of the primary judge indicate that her Honour thought that evidence of the parties as to property holdings required corroboration before it could be accepted, however, it seems unlikely that the primary judge would have made such a fundamental error. Rather, it appears to be the product of confronting a factual issue without a hearing, combined with approaching the assessment of contributions erroneously.

1. The evidence of what was brought to the relationship in this case was not so incredible that there would be a basis for rejecting it in the absence of any challenge to the claim by the other party. However, the numerous issues relating to the appellant's credibility may have led the primary judge to be particularly cautious. As Full Court recently explained in Quen & Chen [2025] FedCFamC1A 39 (per Austin, Baumann and Schonell JJ):
   1. ... properly understood, a determination "on the papers" is a process where the court for sound and expedient reasons saves the parties and the court the time and imposition of an oral hearing. It is a practice to be encouraged where the circumstances warrant. It is not, nor ever should be, appropriate in circumstances where the determination requires the making of findings against disputed facts particularly where the findings reflect upon the conduct of a party.
2. If it were concluded that the question of fact required consideration of the oral evidence of a party, it could not be determined on submissions alone. As the Full Court explained in Quen & Chen:
   1. If having embarked upon a determination "on the papers" it became apparent that the application could only be determined by making factual findings, then the appropriate course was to either defer the determination to the conclusion of the proceedings or relist the matter and conduct an oral hearing involving cross examination.
3. The primary judge erred in rejecting the unchallenged evidence in the circumstances of this case.

1. The second difficulty that emerges from the approach of the primary judge was assessing contributions by determining whether an "adjustment" ought to be made in favour of or against a party. This was done three times (with respect to the property of the parties at the commencement of the relationship, their contributions during the relationship and their contributions after separation). The primary judge ultimately concluded "that an overall 5% adjustment is to be made in favour of the wife" (at [66]).
2. The language of adjustment requires an assumption of a starting point (presumably of equal contributions), otherwise there would be nothing to be adjusted. The High Court has clearly stated that there is no presumption of equality of contributions: see Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 610, 613, 625, 639-640 and 647; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 537. This aspect of legal doctrine flows from the fact that Australia does not have a community property system (Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231-232 and 247-248; Stanford at [37]-[39], [50]): parties to marriages have individual property rights (at least since the passage of the Married Women's Property Acts in the 19th century). The question s 79 poses is whether the rights and the individual interests of the parties ought to be altered: Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 at [39].
3. Although there may be a finding of equality of contributions in many cases, this does not justify departing from established legal doctrine in favour of a heuristic that commences with an assumption of equality.
4. The Full Court has consistently required (as it must in accordance with the doctrine of precedent) that the principles in Mallett be followed: see, for example, the recent decisions in Preston & Preston [2022] FedCFamC1A 157; (2022) 66 Fam LR 285 at [24]-[29] per Alstergren CJ, McClelland DCJ and Austin J; Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592 at [100]-[101]; and Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244 at [23]-[25].
5. Adopting a presumption of equality as the starting point appears to have led the primary judge to an approach whereby a persuasive or evidentiary burden was placed upon the appellant to displace the presumption of equality. This error also contributed to the error in fact-finding. This case is an example of why approaching a case on erroneous principle (implicitly assuming a starting point of equality of contributions) can lead to other errors in the reasoning process.
6. The primary judge has therefore erred in principle. The orders must be set aside (House v The King (1936) 55 CLR 499 at 504-505).

1. As the appellant has been successful with respect to ground 1 and the orders must be set aside, it is unnecessary to determine the remaining grounds.

1. Even if there were no issues as to the findings of fact, it is not appropriate to re-exercise the discretion in this case as the determination must be made on the facts at the time of the re-exercise of the discretion (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172). In this matter the appellant alleges that different circumstances prevail (that she is returning to live in Australia and thus wishes to retain the Suburb W property and not the one in City N), which claims are disputed by the respondent. The matter requires a rehearing. Whether the appellant receives a better or worse outcome is for the judge on the rehearing.
2. None of the property settlement orders have yet been carried out. Whilst the respondent had provided documents to facilitate the transfer of the City N property, the transfer has not been effected and the appellant gave an undertaking to the court not to take any steps to effect the transfer until the outcome of the appeal, and if the appeal was allowed, the re-hearing. It is therefore appropriate to set aside all of the orders made by the primary judge.
3. I will therefore order that the appeal be allowed, primary judge's orders set aside and for the matter to be remitted for rehearing.

1. The appellant seeks a certificate for costs of the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Federal Proceedings (Costs) Act"). The appellant's conduct of the matter, in making the late application for the s 102NA order, and pressing for a hearing on submissions alone despite the clear position of the respondent that there were factual issues that required cross-examination, was a significant contribution to the primary judge's error. In these circumstances, it is not appropriate that the appellant receive a certificate pursuant to the Federal Proceedings (Costs) Act. There is no basis on which the respondent should be ordered to pay any part of the appellant's costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.