Felip & Biovin [2025] FedCFamC1A 87 (16 May 2025)

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

1. By way of a Notice of Appeal filed on 20 December 2024, Mr Felip ("the husband") appeals from orders made on 29 November 2024 in the Federal Circuit and Family Court of Australia (Division 2) as to the adjustment of property between he and Ms Biovin ("the wife") pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act").
2. The orders under challenge provide for the husband to pay to the wife $259,559, for, in default of payment, the sale of a real property in Sydney, and for he and the wife to otherwise retain, to the exclusion of the other, items of property in their respective possession or control.
3. By way of a Notice of Cross-Appeal filed on 27 December 2024, as amended on 9 April 2025, the wife challenges the orders made on 29 November 2024 as to the value of the adjusting sum payable by the husband and the declaration as to retention by the husband of property in his possession or control.
4. The wife at the trial, in addition to seeking orders adjusting property, sought an order in the alternative that the husband pay her lump sum spouse maintenance of $259,000. The husband opposed any order that he pay spouse maintenance. No order was made by the primary judge determining the wife's alternative spouse maintenance claim. The making of such an order was necessary to the disposition of the case.
5. The parties agreed at the hearing of the appeal that the reasons (at [125]-[129]) implicitly concluded that the primary judge refused the wife's claim for lump sum spouse maintenance. Neither the husband nor the wife identified this failure in any of the material filed for the appeal or prior to the hearing of the appeal. This may explain why no application was made by either party to the primary judge in Division 2 to amend the orders by way of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") prior to the hearing of the appeal.
6. The wife filed an Application in an Appeal seeking orders for the updating of ch 7 single expert evidence as to the value of the husband's three real properties and as to this Court determining her existing applications for costs pending before the primary judge in Division 2. During the hearing of the appeal the wife sought leave to withdraw her Application in an Appeal. It will be dismissed.
7. For the reasons that follow, the appeal is allowed. The matter is remitted for rehearing to a judge of Division 2 other than the primary judge. A determination of the Amended Notice of Cross-Appeal is otiose. It will be dismissed.

1. Each of the husband and the wife were born in Country C, the husband in 1976, currently 48 years old, and the wife in 1982, currently 42 years old. They commenced a relationship in or around mid-2019 (at [5]) and married in Country C in early 2020 (at [6]).
2. They did not commence to live in the same household until the wife obtained a visa, migrating to Australia in mid-2021 (at [16(f)]). Between early to mid-2022, the wife was in Country C (at [16(h)]). The parties separated on a final basis in mid to late 2022 (at [7] and [16(i)]). They occupied the same residence for approximately 11 months of their 20-month marriage. There are no children of the marriage.
3. On 24 April 2023 the wife filed an application for adjustment of the property and for spouse maintenance in Division 2.
4. On 3 August 2023 interlocutory orders were made providing for the husband to pay periodic spousal maintenance to the wife in the sum of $580 each week for a period of 12 months. On 13 November 2023 the husband ceased making the weekly periodic spousal maintenance payments. On 24 December 2023 he filed an Application in a Proceeding seeking to discharge the order made on 3 August 2023. That application was dismissed on 4 April 2024. On 17 May 2024 the wife filed an Enforcement Application to recover the arrears of spousal maintenance. On 13 June 2024 the husband paid the arrears of the spouse maintenance order in a lump sum prior to the enforcement application being determined. At the time of trial, there was no order for the husband to pay maintenance to the wife.
5. Immediately prior to the commencement of oral submissions, the parties adduced a collaboratively constructed joint balance sheet (Exhibit J1) (Transcript 23 October 2024, p.176 line 41 to p.177 line 11). Exhibit J1 records:

[Country C] Bank Accounts - not accessible on wife's case

Transfer of property in [Country C] to her parents for no consideration

Safety security box with [funds] and jewellery removed and now empty

documents/licenses and associated bank accounts are undisclosed

1. The primary judge made findings as to the specie and value of the property of the parties considered for adjustment. The reasons record that "[b]y the time of submissions, the parties were in agreement about both the items to be included in the matrimonial property pool and values to be attributed to those items" (at [25]). The primary judge then "reproduced" the joint balance sheet in the reasons as follows:

[Country C] Bank Accounts - not accessible on wife's case

1. The husband contended at trial that there was no warrant for adjustment of the property of the parties. The wife contended that the property ought to be adjusted 30 per cent in her favour and 70 per cent to the husband. The primary judge determined a contribution finding 97.5 per cent in favour of the husband and 2.5 per cent in favour of the wife (at [119]). The adjustment to the contribution finding pursuant to s 75(2) was determined to be 7.5 per cent in favour of the wife (at [130]). Accordingly, the primary judge determined it was just and equitable for the wife to receive 10 per cent of the property of the parties (at [137]). The husband was ordered to pay to the wife $259,559 within 90 days.

1. The husband's Notice of Appeal filed on 20 December 2024 raised six grounds of appeal. At the hearing of the appeal, he prosecuted Ground 1 only.

1. In the Amended Notice of Cross Appeal filed on 9 April 2025 the wife raised four grounds of appeal as follows:
   1. [...] That having regard to His Honour's assessment that the wife was only entitled to an adjustment of 10% for her s79 claim, His Honour erred in failing to additionally make an order for the payment to her by the husband of lump sum spouse maintenance.
   2. That the learned trial judge made an error in finding that the Wife's contributions prompted an adjustment of only 2.5%.
   3. That the learned trial judge made an error in finding that the Wife's future needs prompted an adjustment of only 7.5%.
   4. That the learned trial judge erred in the exercise of his discretion by not giving adequate weight to the non-disclosure by the Husband of his business interests, as was revealed in cross-examination.

Ground 1 of the Notice of Appeal - "In finding erroneously that the [husband] held a balance of $1,225,000 in ANZ [...] Account [...]48] in lieu of the actual balance of $27,305 was a fundamental error and vitiated the discretion of the Trial Judge."

1. The ground contends an error of fact in the primary judge's finding as to the value of the husband's ANZ account #48.
2. Exhibit J1 records the agreement of the parties that Item 4 in the balance sheet (ANZ account #48) was $27,305. The value of Item 4 as found by the primary judge (at [25]) is $1,225,000.
3. Notwithstanding the charity of the husband's submission describing the error as typographical, the finding as to the value of the husband's ANZ account #48 as made by the primary judge was not reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296).
4. Notwithstanding that the wife conceded the factual error raised by Ground 1, she submitted "[t]he error does not affect the final result, or it's [sic] effect is negligible, or in any case the conclusion reached was correct, notwithstanding the error." She directed attention to [38] of the primary reasons, which records:
   1. The relevant pool in this case includes a [property] in Sydney that the Husband purchased prior to the relationship commencing. It includes two investment properties in Tasmania, and some debt secured by mortgages against those three properties. There are then miscellaneous assets such as bank accounts, a motor vehicle etc each of which has a relatively modest value.

1. The wife contended that this demonstrated that the primary judge "had this in mind when arriving at the figure for the cash payment" to the wife. She submitted this contention was supported by paragraphs [126]-[129] which record:
   1. The Wife makes an alternative claim for a lump sum payment sufficient to pay for tuition fees for a [professional education course] in Australia. Coincidentally, the quantum of that claim is very similar to the lump sum that she seeks by way of property adjustment.
   2. There is no evidence to suggest that the parties contemplated the Wife undertaking a [professional education course] in Australia during their relationship with each other.
   3. It is common fact that the Wife completed [professional] qualifications in [Country C]. There is no evidence about the recognition or otherwise of those qualifications in Australia.
   4. I am not persuaded that it would be just or equitable to order the Husband to pay for that study. Due to the adjustment that I have decided is appropriate in this matter, the Wife will receive a comparable sum of cash in any event.

1. The heart of the wife's submission is anchored in that as identified by the High Court in De Winter and De Winter (1979) FLC 90-605, being that as the error was immaterial it did not impact upon the ultimate exercise of discretion so as to impugn the result of the case. The contentions of the wife are not accepted. The primary judge was in error in finding that the property of the parties was $2,752,153, when it ought to have been $1,554,458, a difference of $1,197,695. The error, having the effect of increasing the value of the property of the parties by 77 per cent, permeated each intermediate and conclusory determination in the adjustment of the property of the parties. It impugned:

(a) The assessment as to whether it was just and equitable to make any orders adjusting the property of the parties emerging from the identification and valuation of the items of the property of the parties:

1. There is no doubt that the parties find themselves now in strikingly different financial circumstances.

(b) The assessment of the contributions of the parties:

1. In my view, a holistic assessment of the myriad of the parties' contributions, having regard to:

(1) The short duration of their marriage;

(2) The overwhelmingly greater financial contributions of the Husband;

(3) The physical support by the Wife of the Husband during the period that they lived together;

(4) The financial support of the Wife by the Husband both during the relationship and post separation; and

e) All of the other matters referred to above;

leads to a conclusion that there should be an assessment of the parties' contributions as having been made 2.5 per cent by the Wife and 97.5 per cent by the Husband.

The primary judge implicitly considered the value of the ANZ account of the husband in determining the assessment of each of the parties' contributions.

(c) The adjustments to the contributions of the parties:

1. Having regard to all of the considerations outlined above, I conclude that an adjustment of 7.5 per cent in favour of the Wife on account of section 75(2) factors would be just and equitable.

131 7.5 per cent of the pool equates to an adjustment of $206,411.

(Emphasis added)

7.5 per cent of the property of the parties absent error was $116,584, not $206,411.

(d) The fourth step in the property adjustment enquiry, achieving satisfaction as to the order to be made being just and equitable, not just the underlying percentage division of the property (Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877). The error corrupted the effect of the findings as to contributions, adjustments thereto, and the determination as to the order that was just and equitable in the circumstances of the case (Hickey and Hickey and the A-G for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143):

1. I am not persuaded that it would be just or equitable to order the Husband to pay for that study. Due to the adjustment that I have decided is appropriate in this matter, the Wife will receive a comparable sum of cash in any event.

...

1. I find that given the history of this matter, the size of the pool and the superior financial circumstances of the Husband which will allow him to continue on in life in a relatively unchanged fashion, as opposed to the Wife who has limited opportunities, it is just and equitable for the Wife to receive 10 per cent of the matrimonial pool.

...

1. A 10 per cent adjustment in favour of the Wife requires the Wife to receive assets totalling $275,215.

2. That leaves the Wife with a short fall of $259,559.

3. That shortfall will be payable by the Husband to the Wife. I note that, according to the balance sheet, the Husband has over $1,200,000 in a bank account. I am satisfied that he has the means with which to meet such an order.

4. This will result in the husband retaining 90 per cent of the matrimonial pool, with a net value of $2,476,937 made up of three real properties, the debt associated with those properties, but importantly the income from both self-employment and rent with which to comfortably service those debts and support himself.

(Emphasis added)

1. The error of fact was fundamentally material having a direct bearing on the reality of the ultimate result and generating a miscarriage of the exercise of the s 79 discretion.
2. Ground 1 is established. The success of Ground 1 leads to the primary judge's conclusion as to the overall justice and equity of all the orders being impugned. The error in determining the adjusting property payment to be made by the husband to the wife was material to, and determined, the wife's alternate application for lump sum spouse maintenance (at [126]-[129]). The appeal must succeed.

1. There is no utility in dealing with or considering the Amended Notice of Cross-Appeal (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [8]). It will not be addressed and will be dismissed. The setting aside of the orders under challenge will enable the wife to prosecute her alternate application for spouse maintenance.

1. Initially, in the event the appeal was allowed, both parties sought for a re-exercise of discretion. By the conclusion of the appeal, they agreed that in the event the appeal was allowed, the matter be remitted for rehearing before a judge of Division 2 other than the primary judge. Such an order will be made.

1. In the event the appeal was allowed, the husband sought that the wife pay his costs fixed in the sum of $18,333. In the alternative, he sought an order for a costs certificate for the appeal and for the re-hearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The wife opposed an order that she pay the husband's costs. She did not put the quantum of cost sought into issue. She sought for costs certificates to be issued for both the appeal and the re-hearing.
2. The starting position established by s 117(1) of the Act is that each party pays their own costs. An order for costs requires the Court to be satisfied, in all of the circumstances, that such an order is just (s 117(2)). In considering that, the Court must take into account the matters set out in s 117(2A) of the Act.
3. The husband submitted that the wife was wholly unsuccessful in opposing the appeal and implicitly, properly advised, she ought to have conceded the appeal. The undertone of his submission was that the hearing of the appeal was unnecessary. The wife identified that the husband was not wholly successful in prosecuting the appeal, because until during the hearing of the appeal, he sought that this Court re-exercise discretion in the event the appeal was allowed, and that his position changed during the appeal to seek for the remittal of the proceeding. She further identified her comparative modest financial circumstances, being in receipt of workers compensation benefits and having limited other property interests, militated against justifying the exercise of a costs discretion in favour of the husband.
4. Notwithstanding the merit of the husband's submission that the wife ought to have conceded the appeal, the submissions of the wife as to her financial circumstances tip the balance to restore the s 117(1) position. The circumstances do not justify an order for the wife to pay the husband's costs.
5. As the appeal has succeeded due to errors on the part of the primary judge, it is appropriate to grant each of the parties' costs certificates for both the appeal and the re-hearing. Such orders will be made.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.