This decision arises due to a fundamental typographical error of a trial judge in their recreation of a balance sheet in their written reasons for judgment.
What appeared to be a simple typographical error, had a significant impact on the calculation of the parties' property pool, which ultimately caused the appeal judge to overturn the trial judge's decision at first instance and list the matter for a re-hearing.
The case
This case was about the division of property between a married couple pursuant to section 79 of the Family Law Act 1975 (Cth).
The husband's case was that no adjustment to the property of the parties should be made at all. The wife's case was that the parties' property interests ought to be adjusted to achieve an overall division of the property pool 30% in her favour and 70% to the husband.
The net pool was between $1-1.1million, and the parties provided the primary judge with a copy of a jointly prepared balance sheet setting out the value of their assets and liabilities.
In their written reasons for judgment, the primary judge relied upon a recreated version of the jointly prepared balance sheet tendered by the parties. The recreated pool erroneously recorded the value of one of the husband's bank accounts as $1,225,000 – where the parties had agreed that the balance was actually $27,305.
As a result, the primary judge formed the view that the net property pool was approximately $2.7M and awarded the wife 10% of the overall property pool, namely in the form of a cash payment from the husband in the amount of $259,559.
The appeal
The husband appealed the decision on the basis that the finding as to the value of his bank account was a fundamental error which vitiated the discretion of the trial judge.
The appeal judge determined that the recreation in the balance sheet was plainly an error. It was submitted by the wife that, the final result of the Orders made were not affected by the error in calculation. This submission was rejected by the appeal judge and the husband's appeal was upheld.
At first instance, the wife had also sought an order for the husband pay her lump sum spouse maintenance of $259,000. The appeal judge found that the trial judge had failed to consider the wife's spouse maintenance application, and that the erroneous findings as to the value of the property pool available for division between the parties had been material to the determination of that application.
The parties were awarded cost-certificates with respect to their costs of the appeal and also the rehearing.
Key takeaways
Practitioners and professionals should bear this case in mind in preparing for a financial hearing. What appears to be a simple typographical error can vitiate a judicial decision as a whole if such error is found to have a material impact upon the ultimate result, regardless of if the final determination was otherwise reasonable and within the range of judicial discretion.
It is not necessarily the case that the error will simply be corrected on appeal, and as such practitioners should take care to ensure that their evidence is presented clearly and in a fashion that is easily referenced by the decision-maker – including by providing such documents in word or excel format. These simple steps could prevent potential error and the delay and costs incurred for an appeal or rehearing of proceedings.
Felip & Biovin [2025] FedCFamC1A 87
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