FAMILY LAW - APPEAL - Consent final property orders - Where the appellant contends jurisdictional error, inadequate reasons and factual error - Consideration of Harris & Caladine [1991] HCA 9; (1991) 172 CLR 84 and Maxwell v Miltiadis

Harris & Caladine (1991) 172 CLR 84; [1991] HCA 9

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395

Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68

Maxwell v Miltiadis (2015) FLC 93-644; [2015] FamCAFC 40

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Robinson & Willis (1982) FLC 91-215; [1982] FamCA 16

Rollings & Rollings [2009] FamCAFC 87

Vrabec & Vrabec [2024] FedCFamC1A 177

Yarrow & Yarrow [2022] FedCFamC1A 135

1. The appeal is dismissed.
2. Within 28 days of the date of these orders, the appellant pay the respondent's costs fixed in the sum of $9,424.

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

1. By way of an Amended Notice of Appeal filed on 6 June 2025, Mr Couldrey ("the appellant") appeals from consent property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 February 2025. The orders were made at the conclusion of the first allocated day of a four-day trial. Each of the appellant and Ms Sedgwick ("the respondent") were legally represented at the trial by solicitors and counsel.
2. The respondent opposes the appeal.
3. For the reasons that follow the appeal is dismissed.

1. The appellant is 70 years old. He practiced as a professional from 1997 to 2019 and as a further qualified professional from 2019 until late 2024. He says, although the respondent does not accept, that he has retired. The respondent is 57 years old. She has practiced as a professional for 25 years and remains employed as a professional.
2. The parties married in 1992. There are six children of the marriage, all of whom are now adults. There is dispute as to the date of separation, being in late 2020 as asserted by the appellant or mid 2022 on the version of the respondent. The date is not material to the appeal. An order for divorce was made in late 2023.
3. On 29 November 2023 the respondent filed an Initiating Application seeking orders as to the adjustment of property between she and the appellant pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act"). On 20 February 2024 the appellant filed a Response to an Initiating Application seeking different orders adjusting their property.
4. On 24 January 2024 prescriptive consent orders were made for the sale of a real property at Town B, Queensland ("the Town B property") and on completion of the sale, after the discharge of the mortgage, payment of rates and agent's commission, legal costs and other outgoings, the balance of the proceeds of sale were to be paid, pending further order, into the appellant's solicitors' trust account. Further orders were made for disclosure pursuant to ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") and the appointment of ch 7 single experts to opine as to the value of two other real properties in Town C, Queensland ("the Town C property") and in City D, Northern Territory ("the City D property").
5. On 2 September 2024 directions were made listing the s 79 dispute for trial over four days commencing on 24 February 2025. Each party filed affidavit evidence supported by large volumes of exhibits. The sale of the Town B property had not progressed by the date of the trial. Each party lay fault as to the failure to list and sell the Town B property with the other.
6. The matter was called over by the primary judge at 10.34 am on the first listed day of the trial. Counsel for the respondent identified that in addition to the s 79 matter listed for trial, also before the primary judge was a contempt application filed by the appellant alleging failure of the respondent to comply with the orders made on 24 January 2024 as to the disposal of the Town B property; an Application in a Proceeding of the appellant for substituted service as to a witness; and an application of the respondent to set aside a Notice to Admit.
7. The respondent provided to the primary judge, absent input from the appellant, a contended balance sheet (AB p.1,417). Counsel for the respondent confirmed the contention advanced by his client that the Town B property was held on trust for the parties' children and hence not an item in the balance sheet identifying the property of the parties. Counsel for the appellant identified his client's contention that the Town B property interests were property of the parties amenable for adjustment pursuant to s 79 of the Act.
8. It was uncontroversial on appeal that the registered owner of the Town B property was E Pty Ltd ("E Pty Ltd"). The parties at all times have been the sole shareholders of E Pty Ltd. The appellant and the respondent were both directors of E Pty Ltd from 2004 to 2020. The respondent was the sole director from 2020 until the date of the trial. No expert evidence was adduced at the trial as to the value of the Town B property or the interests of the parties in E Pty Ltd.
9. The transcript then records:

[COUNSEL FOR THE APPELLANT]: .... Fundamentally a messy matter, but nevertheless, that's probably an advanced position on where we think that we are presently at. We would love to enter into some sort of meaningful discussion with respect to the balance sheet, but unfortunately, we can't because not everything is in the balance sheet that we know exists, your Honour. There is a considerable amount of assets that are missing from the balance sheet.

(Transcript 24 February 2025, p.5 lines 22-27)

1. After further exchanges, the transcript records:

[THE PRIMARY JUDGE]: And - well, appreciate, the fact is I don't. So we have a company, we have a application regarding one of the children's partners; is that right? I don't know why they're supposed to be giving any evidence that's going to assist the court in respect to the company. And then we have a submission by the [appellant] that that company has assets that are relevant to these proceedings, but not included. We have problems, don't we?

[COUNSEL FOR THE APPELLANT]: Indeed we do, your Honour.

[THE PRIMARY JUDGE]: So I don't - are we ready to go today?

[COUNSEL FOR THE APPELLANT]: I would say, based on what your Honour has just addressed us, probably not.

(Transcript 24 February 2025, p.11 lines 23-35)

1. Later, the following exchange occurred, directed to counsel for the appellant:

[THE PRIMARY JUDGE]: And can I just say this, it causes me great concern that the first person you're hearing about by the questions I'm asking is your client and not your instructor, when your instructor should have prepared this matter properly. And where I'm already identifying - without going into the ridiculous applications that have been made on behalf of the [appellant] - I'm already identifying huge red flags because in reality, the property pool - according to your client, and I'm not holding it to the figure - but approximately is worth - - -

[COUNSEL FOR THE RESPONDENT]: $700,000, excluding - roughly - excluding the [Town B] property.

[THE PRIMARY JUDGE]: Right. Where I imagine - if that ends up being the extent of the property, there's nothing left because of costs, and your client could be facing a huge whack of costs.

[COUNSEL FOR THE APPELLANT]: I appreciate that, your Honour - - -

[THE PRIMARY JUDGE]: So this is what I'm going to do. I'm going to stand the matter down, so you and your instructor can give advices to your client about his - precarious position he's in at the moment, (1). (2) What applications he intends to try and push for today, putting aside that this is the trial date, (3) whether he's going to persist on this issue of this company and assets being part of the pool, when there is no evidence before this court on any level, and (4) whether this might be a good time to talk about settlement. And (5) what your applications will be in respect to whether this matter is ready to run because I suspect from looking at the list of objections, and given the voluminous amount of material that your client has put in, that a lot of that's not relevant, and therefore we're going to take a day - probably getting rid of all of that, leave us three days.

But if you're making an application to adjourn, I don't know what basis will be because there are things being raised which are just taking everyone by surprise, with no evidence to support it. So you've got your job cut out for you, [counsel for the appellant], and so is your instructor. Now, can I say this in respect to when this matter will start. I have a parenting matter which I have to deal with on an undefended basis, that will take me a little time, but otherwise we will be starting today. I have a matter which is due to start later in the week, so there's nothing imposing on your [sic] today, and tomorrow - if the matter is running, and running tomorrow - it will have the full four days.

(Transcript 24 February 2025, p.13 line 33 to p.14 line 22)

1. The matter was stood in the list at 10.58 am. The parties negotiated over the course of the day. It resumed at 4.53 pm. In a somewhat unorthodox fashion, the primary judge was provided with two documents said to embody a final agreement between the parties to compromise the s 79 dispute, the first document being typed and signed by each party (AB p.1,433), and the second document, being handwritten, signed by the respondent only (AB p.1,438). The primary judge was told:

(a) The typed document signed by each party was agreed as to paragraphs 1-12, 14, 15 and 17-29 to be the subject of consent orders. In summary it provided for the sale of the City D property, discharge of a G Bank security on the Town C property and for the balance of the sale proceeds to be divided equally between the parties; for the appellant to remove a caveat from the title of the Town C property; for each party to retain property in their respective possession, and to dismiss all other applications.

(b) The parties were not in agreement as to the terms of paragraph 13 of the typed signed document. That paragraph, together with the second handwritten document, each dealt with E Pty Ltd and its asset, the Town B property, in different ways.

[COUNSEL FOR THE RESPONDENT]: Thank your Honour. I'm hoping your Honour has before you, a proposed order. There is one point of contention that we do ask for your Honour's assistance in respect of. If I can take you to order 13 - and I believe your Honour's associate may have already raised this with us.

[THE PRIMARY JUDGE]: Yes.

[COUNSEL FOR THE RESPONDENT]: I will just give you the background, and then I will give you the order that we say, and I will tell you why we say it. Order 13, currently [E Pty Ltd] owns the property at [Town B]. You will have read from the material that my client says [Town B] was owned by - should have been owned by the trust, and so it's the children's property, not the parties'. The [appellant] says, "no, it should be the parties' property". In order to resolve this proceeding, what's proposed is that the [Town C] property - that has been in my client's family for 50 years - goes to her, and the [Town B] property goes to the [appellant]. Now, as I said, the [Town B] property is held by [E Pty Ltd] - that is, a company. In respect of [E Pty Ltd], you will have noted that from the material, the books for [E Pty Ltd] - and the financials - have not been done for a period of time.

[THE PRIMARY JUDGE]: Yes.

[COUNSEL FOR THE RESPONDENT]: My client says - effectively, in respect of any - that the books be done properly by an accountant, that any debts that arise as a result of winding up [E Pty Ltd] - which is what my client proposed - be beared by the parties equally. Seems fair. Because at the time, my client says the [appellant] was the one that did all the books for [E Pty Ltd]. What he's saying is, "Well, no, I was not a director from December 2020, so I'm concerned that you might have incurred liabilities for [E Pty Ltd]." We say that's not the case, and she deposes to it. What we say in respect of the order, and perhaps I will hand it up so I can show you, is that - and I won't have a copy of this when I hand it up to you - an accountant will prepare the financials for [E Pty Ltd]. That's paragraph 1(a).

Paragraph 2, "That any liabilities or debts as a result of those books being prepared be met equally." That the moneys to pay any debts. And there might not be any, but if there is - and or penalties because tax returns haven't been lodged for a number of years - get paid for from the proceeds of [the H Property]. What the [appellant] has sought in the order that's now crossed out, and if I can take you to order 13 of the orders before you, that has been crossed out now from the start of order 13 to the end of order 13(f). So it starts with, "Contemporaneously" and finishes with "or the parties personally". So that whole part there will be crossed out.

[THE PRIMARY JUDGE]: Hold on. That's not what I've got. I'm sorry, I'm being confused.

[COUNSEL FOR THE APPELLANT]: Yes.

[THE PRIMARY JUDGE]: The document I have in front of me, 13(a), (b), (c), (d), (f) in part, (g) are all here. So I'm not sure how this, that is, 13(a), (b), and (c), fits in with 13 that I've just read out to you.

[COUNSEL FOR THE APPELLANT]: It is complicated, I will try and help you. If your Honour, on my client's case, crosses out order 13(a), (b), (c), (d), (e), (f) and substitute it with the handwritten document your Honour has in your hand. What that means is, on the page in order number 13, it deals with [E Pty Ltd] being transferred to the [appellant]. The [appellant] was happy with that, but quite strategically took out 13(d) that says he wouldn't be liable for any tax incurred. Which we say, why would we ever be liable for the tax solely? It was a joint enterprise, they would be jointly liable. And secondly, he took out the aspect in respect of not transferring us or distributing any of the profits of the company. And so my point is you don't need to trouble yourself, on my case, with orders 13(a) through to (f). All you would trouble yourself with is the handwritten document. The handwritten document says that an accountant be appointed in respect of [E Pty Ltd] to do the books and the financials, that any debts arising from the accountant doing the books and financials be met equally between the parties, and that the [E Pty Ltd] be wound up. [Town B] would then go to the [appellant].

[THE PRIMARY JUDGE]: Right. But that's not reflected in any of the documents, because the one that has been signed and initialled is giving [E Pty Ltd] to the [appellant].

[COUNSEL FOR THE APPELLANT]: Yes. That's right.

[THE PRIMARY JUDGE]: But that's very different to winding up the company.

[COUNSEL FOR THE APPELLANT]: That's right. I will tell you why. Because the [appellant] took out, without pointing it to our attention, 13(d), where it says he would be liable for the tax. What he's trying to do, and it's very convenient, is to make my client liable for the tax and liabilities that have happened during the parties' relationship in respect of [E Pty Ltd]. My client says she's prepared to do it equally. She's prepared, if there are any tax or liabilities, it be paid equally.

[THE PRIMARY JUDGE]: I understand all that, but what I don't get is this.

[COUNSEL FOR THE APPELLANT]: Yes.

[THE PRIMARY JUDGE]: Really, I shouldn't be looking at a document that's not all by consent anyway, it's very confusing.

[COUNSEL FOR THE APPELLANT]: Yes, yes.

[THE PRIMARY JUDGE]: But where is it in this document that that property goes to the [appellant]?

(Transcript 24 February 2025, p.15 line 2 to p.16 line 45) (Emphasis added)

1. The transcript thereafter records the primary judge identifying the import of paragraph 13 of the typed document executed by each party and the handwritten document signed only by the respondent, the substitute paragraph 13 she proposed, being "out of whack" (Transcript 24 February 2025, p.17 line 32, emphasis added), such that either the appellant is to receive "the company" (by way of transfer of the respondent's interests in it, with no reference to the Town B property) (Transcript 24 February 2025, p.17 lines 40-43) or "get the company wound up, and after all that has happened, then the property goes to [the appellant]" (Transcript 24 February 2025, p.18 lines 12-13).
2. After further exchanges, the primary judge concluded that the parties were not in agreement to compromise the s 79 dispute, saying:

[THE PRIMARY JUDGE]: ...I can't do much with this today. Are you saying there's no agreement to what's being suggested by [counsel for the respondent]?

[COUNSEL FOR THE APPELLANT]: No. At the present time, there is no agreement, your Honour.

(Transcript 24 February 2025, p.20 lines 7-10)

1. Notwithstanding, exchanges between counsel and the primary judge continued:

[THE PRIMARY JUDGE]: Well, first of all, I need to know exactly what it is the [appellant] - because - - -

[COUNSEL FOR THE RESPONDENT]: And - - -

[THE PRIMARY JUDGE]: - - - what is reflected in this document by things being crossed out is not what has been reflected to me and what has been - - -

[COUNSEL FOR THE RESPONDENT]: That's right.

[THE PRIMARY JUDGE]: - - - said from the bar table.

[COUNSEL FOR THE APPELLANT]: Yes.

[COUNSEL FOR THE RESPONDENT]: He said he .....

[COUNSEL FOR THE APPELLANT]: You will probably accept that there's a level of confusion, perhaps, on my behalf, considering the state of the document in its present form, your Honour.

[COUNSEL FOR THE RESPONDENT]: Well, what was said, though, is that the [appellant] would be prepared to pay half of the cost. That's what was said. So it's either he does or he doesn't.

[COUNSEL FOR THE APPELLANT]: I might just have a moment with my friend if that's okay, your Honour.

[THE PRIMARY JUDGE]: Sure.

[COUNSEL FOR THE RESPONDENT]: May I leave the bar table, your Honour?

[THE PRIMARY JUDGE]: I would rather insert you, um, tell [Ms J] to go out and show us what's up, don't you? I might tell her to go out while you pick on

[COUNSEL FOR THE RESPONDENT]: I understand, your Honour, the [appellant's] position is he agrees with that handwritten note, which is the property get wound up - that the company get wound up, and the parties pay the costs equally of any debts that arise, but I will let my learned friend say.

[COUNSEL FOR THE APPELLANT]: Those are my instructions, your Honour.

[THE PRIMARY JUDGE]: Right. So 13(a), (b) and (c), as handwritten, is agreed to?

[COUNSEL FOR THE APPELLANT]: Yes, your Honour.

[THE PRIMARY JUDGE]: Yes. Okay. I will just make a note. Consented to. And that is to be inserted instead of what is in this document of 13(a) to (f)?

[COUNSEL FOR THE RESPONDENT]: Yes, that's so.

[THE PRIMARY JUDGE]: So 13(a) to (f) is to go out?

[COUNSEL FOR THE RESPONDENT]: Yes. It - - -

[THE PRIMARY JUDGE]: I will just confirm that with you, Mr - - -

[COUNSEL FOR THE APPELLANT]: Yes, your Honour.

[THE PRIMARY JUDGE]: Yes. Thank you. And 13(a) to (c) is to go in?

[COUNSEL FOR THE RESPONDENT]: 13 - sorry. 13(g) - 13(a) - sorry. 13(a) to (f) - - -

[THE PRIMARY JUDGE]: (c) of the handwritten note takes - - -

[COUNSEL FOR THE RESPONDENT]: Yes. Sorry. Yes, that's so.

[THE PRIMARY JUDGE]: - - - takes over 13(a) to (f) - - -

[COUNSEL FOR THE RESPONDENT]: That's so.

[THE PRIMARY JUDGE]: - - - of the typed note.

[COUNSEL FOR THE RESPONDENT]: That's so. And in (g), it would need to say "contemporaneously". Obviously, we wouldn't transfer [the Town B property] until [the H Property] sells, and it all would happen at one time. So the company can be wound up, and then when the company is being wound up, the property would be transferred from [Town B], being the [E Pty Ltd] property, to the [appellant] personally at the same time as everything else happens with respect to [the H Property]. So it would be contemporaneously.

[THE PRIMARY JUDGE]: Okay. So there will be a slightl [sic] rewording of (g).

[COUNSEL FOR THE RESPONDENT]: Yes. We will reword (g) and send it through, but it all happen contemporaneously.

[THE PRIMARY JUDGE]: I will just make a note of that. You agree with that as well?

[COUNSEL FOR THE APPELLANT]: Excuse me, your Honour. I had instructions ..... will you give me a moment?

[THE PRIMARY JUDGE]: Of course.

[COUNSEL FOR THE APPELLANT]: Yes, your Honour. That's how it is.

[THE PRIMARY JUDGE]: Okay. So can I now say that we have full agreement?

[COUNSEL FOR THE APPELLANT]: Yes, your Honour.

(Transcript 24 February 2025, p.22 line 5 to p.24 line 5) (Emphasis added)

1. The appellant's focus on appeal is on Order 13 as made, being that contained in the second handwritten document not signed by the appellant:
   1. That contemporaneously with the [H Property] Settlement Date, the parties shall do all acts and things necessary to wind up the [E Pty Ltd] and for that purpose the following shall apply:
      1. The parties appoint [Ms K] of [L Company] to prepare and lodge all outstanding financials and tax returns at the equal expense of the parties.
      2. Any liabilities, penalties or other debt which may arise from the finalisation of financials and income tax returns in respect of the winding up of the company be shared equally between the parties.
      3. For the purpose of meeting any liability pursuant to the preceding orders, such funds be deducted from sale proceeds of the [H Property] and for any surplus, the parties equally pay.
      4. The Applicant shall do all acts and things necessary to transfer to the Respondent any right, title and interest held by her in her capacity as Director of [E Pty Ltd] (formally known as [F Pty Ltd]) in and to the real property situated at [the Town B property], more particularly described as..., title reference... and any associated lease holdings, easements, encumbrances and permits.

1. It was accepted by the parties in the preparation of the appeal that the transcript of the proceedings dated 24 February 2025 recorded the reasons for judgment of the primary judge.

CHALLENGING CONSENT ORDERS ON APPEAL - RELEVANT PRINCIPLE

1. It is no objection to an appeal that the orders subject to challenge were made by consent (Robinson & Willis [1982] FamCA 16; (1982) FLC 91-215; Harris & Caladine [1991] HCA 9; (1991) 172 CLR 84 ("Harris & Caladine"). An order derives its force from the circumstance that it is a valid order made by the court, not from the agreement of the parties.
2. Consent orders cannot be challenged on the basis of their correctness (or their merits), nor will a court enquire whether the orders reflect the intention of the parties as per Langford & Coleman [1992] FamCA 68; (1993) FLC 92-346 where Nygh J (with whom the rest of the Full Court agreed), said:

...the proposition that at least [i]n matrimonial causes once any financial agreement reached between the parties is embodied in consent orders, it is to these orders alone that the Court must look. The Court cannot take [i]nto account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders....

1. The appellant raised five grounds of appeal, being:

(a) Ground 1: "The primary Judge failed to comply with the statutory requirement under section 79(2) and 90AE(3)(a)(e) of the Family Law Act 1975 (Cth) to be satisfied that the making of the orders was "just and equitable" and therefor [sic] lacked legal authority to make the order."

(b) Ground 2: "The primary Judge failed to comply with the statutory requirement under section 90AE(3)(a) & (e) and 90AE(4)(a), and therefor [sic] falling into jurisdictional error."

(c) Ground 3: "The primary Judge failed to provide adequate reasons for making the orders".

(d) Ground 4: "The primary Judge failed to fully identify the property pool before assessing "justice and equity" in accordance with s 79(2) and 90AE(3)(a)(e)."

(e) Ground 5: "The primary Judge fell into error as no formal agreement was ever reached".

1. It is not contended by the appellant that the orders were made without jurisdictional power.
2. The appellant has three essential complaints on appeal, two of which are related. The first of the related complaints is a contention as to "jurisdictional error" because the primary judge could not be satisfied that the orders were just and equitable as required by s 79 of the Act. The second related complaint is that the reasons are inadequate to explain the conclusion as to why the orders were just and equitable. The third complaint is that at no time did the appellant agree to the orders as made by the primary judge.
3. The purpose of a Notice of Appeal is to identify with precision the errors the appellant asserts were made by the primary judge. Notwithstanding, it sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). No application was made to further amend the Amended Notice of Appeal. To the extent that the appellant's Summary of Argument and oral submissions extend beyond the grounds as contained in the Amended Notice of Appeal, these reasons will seek to engage with those underlying grievances.
4. During the hearing of the appeal the appellant repeated more than once that his challenge to the consent orders was "not on the basis of the merits of the orders" but was directed to what the appellant described as "jurisdictional error".

1. The appellant made an oral application to adduce further evidence at the hearing of the appeal, being an income tax ruling dated 30 July 2014 titled 'Taxation Ruling 2014/15' ("the 2014 document") as to the revenue impacts of a corporation distributing property to a party pursuant to a s 79 order. The respondent opposed the application. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives an unfettered discretion to admit further evidence on appeal.
2. The appellant conceded that the 2014 document had been available in the public domain since that time and hence was available to him at trial. The appellant identified in his Summary of Argument that he proposed to rely on the document at the hearing of the appeal and served a copy of it on the respondent at that time. The respondent said that the relevance of the document on appeal remained unclear, but did not assert any prejudice if the evidence was adduced. The content of the 2014 document was not disputed. The appellant submitted that it would be relevant to "illustrate" the "jurisdictional error" asserted in Ground 2. Although it was not further explained how the evidence would help establish any appealable error by the primary judge, or how it would likely produce a different result, the document was received into evidence on appeal because this Court is able to evaluate it and take it into account when considering the appeal (CDJ v VAJ (No 1) (1998) 197 CLR 172).

Ground 1 - "The primary Judge failed to comply with the statutory requirement under section 79(2) and 90AE(3)(a)(e) of the Family Law Act 1975 (Cth) to be satisfied that the making of the orders was "just and equitable" and therefor [sic] lacked legal authority to make the order."

1. The appellant cited in his Summary of Argument a purported passage from Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 ("Bevan") that "the just and equitable requirement is not to be assumed or glossed over [m]erely because both parties propose or consent to the order". The cited passage does not form part of the reasons in Bevan. The appellant also cited purported passages from Harris & Caladine that are best described as his conclusions as to an amalgam of the High Court's judgments in that matter.
2. The import of his complaint was that there "must be evidence and analysis that the order is just and equitable." The ground was developed by the appellant asserting two sub-complaints being that:

(a) There was "no judicial scrutiny" because the primary judge "made no enquiry" themselves as to the justice and equity of the proposed orders; and

(b) The submissions made by counsel for the respondent as to the justice and equity of the proposed orders were "inaccurate and misleading".

1. The Full Court in Maxwell v Miltiadis [2015] FamCAFC 40; (2015) FLC 93-644 ("Maxwell") observed what was said by the High Court in Harris & Caladine, concluding:
   1. Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply "rubber stamp" the parties' agreement and that the process is "no mere formality" (Brennan J in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter.
   2. Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at 124:

... The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins v Livesey [1984] UKHL 3; [1985] AC 424 at 437-444.

1. To similar effect, Mason CJ and Deane J said that "comparatively little" was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order "is not automatic":

The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions "with respect to financial matters" proposed for incorporation into the consent order will be seen to be "proper" ...

1. The transcript illustrates the absence of merit to each sub-complaint in the ground. It records:

[THE PRIMARY JUDGE]: Right. Who would like to very, very briefly walk me through why this is just and equitable?

[COUNSEL FOR THE RESPONDENT]: I will do that, your Honour.

[THE PRIMARY JUDGE]: Thank you.

[COUNSEL FOR THE RESPONDENT]: In terms of, just as an overall position, so that it's clear, the orders provide for my client receiving [the Town C property]; for the [appellant] to receive [the Town B property]. I should, at that stage, put on the record now, because your Honour will have seen it in the material, and I've raised it a couple of times, my client says [the Town B property] was owned by the trust; the [appellant] said personally. The children were put on notice that if they had an issue with the trust - I'm sorry - with [the Town B property] not being owned by the trust, they could come to court today to have that out with the court, to say, "No. Effectively, either I want to be joined, or I want to be heard in respect to it." No one has attended.

[THE PRIMARY JUDGE]: Okay.

[COUNSEL FOR THE RESPONDENT]: Why I say that is this. If any of the children then bring a claim against either of the parties, no doubt, estoppel would be raised in either Supreme or District Court on the basis that they had their opportunity to raise it now, and they chose not to. I - - -

[THE PRIMARY JUDGE]: And that's on the court record.

[COUNSEL FOR THE RESPONDENT]: That's on the court record. I say that in case one of the parties, and I would submit not my client, puts pressure on one of the children to bring some claim against one of the other parties. In terms of the remainder of the orders, they are self-explanatory. [The H Property] is getting sold. The proceeds used to pay out the debt on the property, which I note is cross-collateralised with the [Town C] property, and also the body corporate fee debts. The debt in respect of the debt to the [City D] Council. The body corporate debt which is 12,000.

And then any other marketing expenses in respect of [the H Property] will come out of the sale of [the H Property]. In any event, the parties are joint and liable in respect of that debt. In relation to, then, the company, [E Pty Ltd], as you now have been pointed out to, or it has been pointed out to your Honour, that company be wound up. An independent accountant, being [Ms K], wind the company up. That any debts that arise from the - or penalties from winding up the company and/or doing the financials be met equally by the parties.

What's proposed in that order is that that that money comes from the sale of [the H Property], but if there's any leftover amount that they're each liable for, or jointly liable for, that comes out of each of their pocket equally. So they will have to put into their pocket to deal with that. You will note that there's no - and it has been crossed out - closing - my words - or winding up of the family trust. The reason for that, as I understand it, is that the trust will expire - my words - when [the parties' child] turns 25. [The parties' child] is currently 19.

[THE PRIMARY JUDGE]: Right.

[COUNSEL FOR THE RESPONDENT]: The concern, as I understand it, would be, if that is wound up as well, there may well be debts that arise from the winding up of that entity. That is, the trust. Certainly from my client's perspective, there's no difficulty, and it may well be that the [appellant] is agreeable to having that entity wound up. But certainly, from my client, there is no difficulty with that, but that's not what is sought in the order. I'm just telling you that because if there is a ..... issue in the future in respect of the non-winding up of the trust, it's on the record my client wanted to wind it up, the [appellant] didn't want to wind it up, and so it's not being wound up for the time being, and it expires anyway when [the parties' child] turns 25.

[THE PRIMAY JUDGE]: Okay.

[COUNSEL FOR THE RESPONDENT]: And I would anticipate that if there was any debts that ever arose from the trust, that each of them would be jointly liable for that. Which essentially doesn't make any difference whether they do it now or later. That is, it might be that there might be penalties, for example, later on if it wasn't wound up now, but the [appellant's] position is that shouldn't happen.

There is then the provision in the orders for both parties to keep certain assets, including my client, at paragraph 19, keeping bank accounts, her super, the... truck and the [Town C] property, and the [appellant] keeping any tax liabilities in his name, ...debts, etcetera. That's spelt out at paragraph 20. There is a general provision in respect of joint accounts, and then the standard provision in respect of section 106A. There is also provision 30, which might be difficult to read, but the [respondent], being my client, will transfer the registration of a dog [...] to the [appellant]. That's what that says.

[THE PRIMARY JUDGE]: Okay.

[COUNSEL FOR THE RESPONDENT]: There's a dog [...]. That will be transferred to the [appellant]. It's currently in the [appellant's] care. The [appellant] has taken out the notation. It's not needed, though, because I've put it on the record in respect of what the parties' position was. In terms of why it's just and equitable, it actually ends up, when one does the numbers on the property pool, as presently is - and why I say that as it presently is, is you will see in the property pool, the [appellant] puts a valuation on bigger than that 650,000. It has never been valued.

My client is happy to accept, for the purposes of today, it's 650,000. If the orders are then made that my client seeks, and the [appellant] seeks today, it's somewhere around a 51 per cent to the [appellant], 49 per cent to the [respondent], the [respondent] is content with that and has made a commercial decision in circumstances where [the Town B property] is not valued, and we're accepting the value the [appellant] says, which one might infer might be higher, given he wanted it incurred in the property pool.

[THE PRIMARY JUDGE]: Yes.

[COUNSEL FOR THE RESPONDENT]: In relation to the relationship, it's somewhere between 30 and 34-year relationship. It's long. My client's case, which you will have taken from the material, is that there are a number of contributions by her family, including the [Town B] property, including the [Town C] property. The [Town C] property, in the historical valuation before your Honour, was valued at 700,000 when it was taken in. The property pool, excluding [the Town B property] for the moment, was around the $700,000. So it's almost entirely from her position. Why I say it's a commercial decision is she's accepting that [the Town B property] go in and that the [appellant] can keep [the Town B property] at the price he says. And so it's a commercial decision for her in terms of saying, "Well, 51/49 is if you value it at 650. If it's not worth 650, and it was worth significantly less, it would change the - - -

[THE PRIMARY JUDGE]: Of course.

[COUNSEL FOR THE RESPONDENT]: - - - percentages to her in her favour.

[THE PRIMARY JUDGE]: I understand.

[COUNSEL FOR THE RESPONDENT]: In relation to future needs, the [appellant] is currently not working. He raises in his material issues in respect of his capacity to work. They are not accepted. I accept, however, that he is 70, and so at the later years of his potential working. Why I say they're not accepted is it's all hearsay. No doctor has come and give [sic] evidence or tell the court as to what the [appellant's] medical conditions are. My client is presently earning. She's on an income of about..., thereabouts. She's working as a [professional].

You will have seen in the material that she has had a number of months off work since the conclusion of the relationship. She says that's because of her mental health, and she refers in the material to the PTSD that she says she suffered. Now, putting aside how that occurred, putting aside my client's position in respect of her ability to work, at present, she is working, but your Honour would be cautioned about how long she can continue to do that, given what she says about the evidence in respect of her mental health, but secondly, her age being 56. There are six children of the relationship.

What perhaps is unsurprising, in my submission, in terms of what the [appellant] says, given the way this case has been run, is that he says, effectively, my client did very little in the relationship, despite having six kids, and that he was both equal primary carer and income earner. That's clearly not right. My client's position is she was primary carer; [appellant] was the primary income earner. It's that simple. Why, then, I say that to you is that there's no adjustment, in my submission, for any contributions during the relationship, but for the inheritance that my client received.

And that's why I say to you, in terms of why it's just and equitable for your Honour to make this order, it's a commercial decision, having regard for the risks in respect of [the Town B property] and the point that we don't have [the Town B property] valued and the risks that this matter may well have been adjourned off in the event that [the Town B property] needed to be valued. So given all of those matters, my submission is that the orders are just and equitable, and that the court ought to make them. Unless I can assist you further.

[THE PRIMARY JUDGE]: Thank you. Can I just ask, there was a strange notation after the crossed out notation. Something to do about - - -

[COUNSEL FOR THE RESPONDENT]: No.

[THE PRIMARY JUDGE]: - - - this weekend.

[COUNSEL FOR THE RESPONDENT]: That should be removed.

[THE PRIMARY JUDGE]: Yes. Thank you. I will just pass that out.

[COUNSEL FOR THE RESPONDENT]: Yes.

[THE PRIMARY JUDGE]: Thank you. Thank you for that**. Is there anything you wish to add? [Counsel for the appellant]?**

[COUNSEL FOR THE APPELLANT]: Is your Honour content to make the orders?

[THE PRIMARY JUDGE]: I am.

[COUNSEL FOR THE APPELLANT]: Okay. I have nothing further to add, your Honour.

[THE PRIMARY JUDGE]: Thank you. Then the orders are made today on a final basis by consent. Who will provide a clean copy?

(Transcript 24 February 2025, p.24 line 7 to p.27 line 37) (Emphasis added)

(a) The first sub-complaint, as to any failure of the primary judge to give proper consideration to s 79 of the Act when making the property orders. The complaint cannot be sustained on the face of both parties being legally represented at the time of the making of the orders, both being present in court when the orders were made and the primary judge implicitly recording satisfaction with the appropriateness of the orders after receiving the invitation to make them; and

(b) The second sub-complaint, that focused on the percentage adjustment submitted on behalf of the respondent from the appellant's perspective being inaccurate; the failure of the respondent's submissions to identify the respondent's superannuation and the drawing on the City D mortgage; and any taxation impost that may be generated on the execution of the orders. The variables at play between the parties as to their existing property interests were subsumed by and merged into their agreement to enter into the consent orders (Rollings & Rollings [2009] FamCAFC 87 at [54]). The circumstances in Maxwell are apposite to those in this case, where the Full Court recorded:

1. Here, the legal practitioners for each of the parties confirmed to her Honour that the orders as submitted were sought by each of the parties and the parties were each in court so as to hear those respective statements made on their respective behalf and it is not suggested that there was any demur from those statements.

There was cogent evidence before the primary judge that each of the parties were adequately informed as identified by the High Court in Harris & Caladine. The parties' agreement and the subsequent consent orders were borne from a process of negotiation between legal practitioners. As the Full Court said in Maxwell.

1. ...In the absence of evidence or cogent inference to the contrary, the parties should be taken to have consented "... by reference to the advice respectively ..." available to them and the legal practitioners, as officers of the court, should be presumed to have rendered appropriate advice to their respective client.

The sub-complaint ignores the well-established principles identified by the High Court in Harris & Caladine (at [12]-[14]). Additionally, the appellant had every opportunity by way of counsel to identify any challenge to the submissions made by the respondent and failed to do so. The appellant is bound by his conduct before the primary judge and cannot now complain that an error was made (Metwally v University of Wollongong (1985) 60 ALR 68).

1. The appellant's contention as to jurisdictional error because of a failure of the primary judge to comply with the preconditions necessary to validly exercise power pursuant to s 79 in making consent orders was always forlorn and fails.
2. Ground 1 was at all times misconceived and is meritless.

Ground 2 - "The primary Judge failed to comply with the statutory requirement under section 90AE(3)(a) & (e) and 90AE(4)(a), and therefor [sic] falling into jurisdictional error."

1. In so far as the ground contends a failure by the primary judge to comply with s 90AE of the Act, it is apposite to identify that:

(a) Neither party contended before the primary judge that the source of power relied upon for making the consent orders was grounded from s 90AE of the Act as an adjunct to the s 79 orders; and

(b) The orders did not direct a third party, here E Pty Ltd, to do "a thing" in the implementation of a property order as envisaged by s 90AE.

1. The orders are constructed and directed to the parties themselves, and not to E Pty Ltd. The corporation was not a party to the proceedings. The contention as to the requirement for the primary judge to be satisfied as to each limb of s 90AE(4) is misconceived. Ground 2 is a post litigation construction by the appellant. It fails.

Ground 3 - "The primary Judge failed to provide adequate reasons for making the orders"

1. Reasons will be inadequate if the appellate court is unable to ascertain those reasons for the decision and if justice is not seen to be done (Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]).
2. In the context of consent orders made pursuant to s 79 of the Act, the Full Court in Maxwell said:
   1. The requirement to give reasons is "... a normal but not a universal incident" of judicial decisions (Public Service Board of NSW v Osmond (1986) 159 CLR 656 per Gibbs CJ at 667). Reasons are not required "for every decision made by a judicial tribunal" (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 per McHugh JA (as his Honour then was) at 279). The circumstances of the particular case dictate not only the extent of reasons which need to be given, but whether reasons need to be given at all:

... The duty of the judge [to give reasons] will vary according to the way in which the case is being conducted and according to the reasoning which he has followed. ... In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for reasoned consideration of them ...

In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons.

(Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSW LR 378 per Mahoney JA at 386).

1. Further, the Full Court in Maxwell said:
   1. ...There is no necessity for the parties to see the extent to which their arguments have been understood because any such arguments as they might have had have been subsumed by and merged into the consent. There is no issue of judicial accountability, because the court is being asked to do no more than what the parties ask of it. Equally, a consent order which, by definition says nothing about the manner in which a court has decided what may have been conflictual issues between the parties, can say nothing about "predicting how like cases might be decided".
2. The Full Court confirmed that when property orders are made by consent, in a case where both parties are represented by experienced counsel, a significant truncation of reasons is justified. This was plainly the case in this matter. Once the nature and extent of the Court's duty is recognised, by application of the principles in Harris & Caladine, it is obvious that it was unnecessary in the circumstances of this matter for the primary judge to provide any further explanation for the making of the consent orders than had occurred (Maxwell at [27]).
3. It cannot be said that the reasons for making the consent orders are inadequate. The matters put to the primary judge through counsel do justice to the issues posed by the parties in their s 79 dispute. The primary judge's acceptance of those submissions discharges any obligation to enable the parties to identify the basis of the decision to make the consent orders. Ground 3 fails.

Ground 4 - "The primary Judge failed to fully identify the property pool before assessing "justice and equity" in accordance with s 79(2) and 90AE(3)(a)(e)."

1. The appellant asserted that the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395; (2003) FLC 93-143 and Bevan mandated that it was fundamental for "findings to be made fully identifying the totality of the property of the parties and valuing it" such that a failure to do so resulted in an "unlawfully exercised... power by s 79". The complaint was distilled to an error not to "fully identify the property pool before assessing 'justice and equity'". Again, the appellant has attributed his own interpretation of existing authority in preference to citing the relevant passage of each Full Court judgment.
2. The appellant in reality challenges the correctness of the orders cloaked as a jurisdictional complaint. The principles emanating from Harris & Caladine and Maxwell identify the nature and extent of the obligations of the primary judge to be satisfied as to justice and equity in making the consent orders pursuant to s 79 of the Act. Ground 4 fails for the same reasons as identified by way of Grounds 1 and 3.

Ground 5 - "The primary Judge fell into error as no formal agreement was ever reached"

1. The appellant submitted that the primary judge fell into error because "no formal agreement was ever reached". He highlighted that he at no time signed the handwritten document.
2. It is somewhat unorthodox for a primary judge to be implicitly told of an agreement for the purpose of making consent orders and then to be provided with two documents with differing content as to the same subject matter that are not agreed. That said, the appellant was represented by counsel when the orders subject to challenge were made. His legal representatives were his agents, and he is bound by the acts of his agents as long as they were within the agents' actual or ostensible authority (Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235; Vrabec & Vrabec [2024] FedCFamC1A 177 ("Vrabec")). As recorded in the transcript, the appellant's counsel ostensibly represented to the primary judge that there was "full agreement" between the parties as to the fact and terms of the proposed consent orders (Transcript 24 February 2025 p.24 lines 3-5). The orders were then made. They were the product of the consent of the parties.
3. The reality of the ground as prosecuted is that it seeks to impeach the underlying or anterior agreement itself between the parties (Vrabec at [5]), extending to a complaint that the primary judge made a mistake in accepting the representation of the appellant's counsel as to the fact and terms of the agreement to enter into the consent orders.
4. This ground is confronted by significant difficulty in demonstrating error on the part of the primary judge, who had done no more than make the orders requested to be made by consent (Anderson & Anderson [1982] FamCA 36; (1982) FLC 91-251).
5. The appellant could not identify during the hearing of the appeal the mistake made by the primary judge. He did not identify any evidence as to his counsel agreeing to the fact and terms of the proposed orders without instructions to do so, or by deliberately misrepresenting instructions. No ground of appeal contends the incompetence of his counsel. The only available conclusion by way of the material on appeal is that the appellant agreed to the making of the consent orders. Any factual error is not made out.
6. The appellant's contention that the consent orders were made without full agreement by mistake because "no updated instructions" were given to his solicitor or counsel to agree to the terms of paragraph 13 of the final orders is, without more, nothing but a bare assertion. If there was a mistake, it was not made by the primary judge but was a matter as between the appellant and his legal representatives.
7. An order takes effect from the time it is pronounced by the primary judge (r 10.19(1)(a) of the Rules). The formal entry of the order into the records of the court is a different matter. The appellant's submission that the terms of correspondence passing between the parties and the primary judge's chambers as to the issuing of the sealed orders in the weeks after the orders were made "confirms no agreement was finalised" is nonsense. It is rejected.
8. Ground 5 is wholly unmeritorious and fails.

1. No ground of appeal was successful. The appeal fails. It will be dismissed.

1. In the event the appeal was dismissed the respondent sought costs at scale on a party/party basis in the terms of the schedule of costs filed on 7 July 2025 in a fixed sum at of $9,424. The appellant opposed the order for costs, submitting that each party should pay their own costs.
2. The relevant principles as to costs are well settled. While the starting position established by s 114UB(1) of the Act is that each party pays their own costs, s 114UB(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 114UB(3) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
3. The respondent identified that the appellant has been wholly unsuccessful in the appeal. The appellant said that he is in receipt of an aged pension, has no superannuation or savings, is homeless and has no assets. The last contention is inaccurate. He has the benefit of the E Pty Ltd property. On his version, even after payment of any taxation impost, he has property of not insignificant value. His submission that a consideration of his financial circumstances militate against the making of a costs order is not accepted as sufficient reasons for depriving the respondent of costs. The circumstances justify an order for costs in the sum sought. It is just to fix the respondent's costs at $9,424. An order will be made for the applicant to pay the respondent's costs fixed at $9,424 within 28 days.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.