Abair & Sarinen
[2021] FamCAFC 103
•25 June 2021
FAMILY COURT OF AUSTRALIA
Abair & Sarinen [2021] FamCAFC 103
Appeal from: Abair & Sarinen [2020] FCCA 1212 Appeal number(s): EAA 46 of 2020 File number(s): PAC 5998 of 2017 Judgment of: STRICKLAND, AUSTIN & TREE JJ Date of judgment: 25 June 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Undefended hearing – Where the appellant husband appeals from final property settlement orders following an undefended hearing – Challenges to the procedural nature of the undefended hearing – Where the appellant husband requested for the hearing to proceed on his written material – Whether findings open on the evidence – Whether evidence taken into account – Assessment of contributions – Adequacy of reasons – Where no error is made out – Appeal dismissed – Appellant husband to pay respondent wife’s costs of appeal in fixed sum. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79 Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Division: Appeal Division Number of paragraphs: 60 Date of hearing: 14 April 2021 Place: Heard in Sydney, delivered in Cairns The Appellant: Self-represented Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: King & York Lawyers ORDERS
EAA 46 of 2020
PAC 5998 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR ABAIR
Appellant
AND: MS SARINEN
Respondent
ORDER MADE BY:
STRICKLAND, AUSTIN & TREE JJ
DATE OF ORDER:
25 June 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant husband pay the respondent wife’s costs of and incidental to the appeal in the sum of $10,000.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abair & Sarinen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AUSTIN & TREE JJ:
INTRODUCTION
On 13 March 2020, the primary judge made final property settlement orders between Mr Abair (“the husband”) and Ms Sarinen (“the wife”) following an undefended hearing consequent upon the husband not appearing at that hearing. Those orders provide for the husband to transfer his interest in the former matrimonial home to the wife, or in the event the wife is unable to refinance the property into her sole name, it is to be sold and the net sale proceeds paid to the wife. Otherwise, the parties are to retain all other property in their respective names, including their superannuation.
From those orders, the husband has appealed. For the reasons which follow, the appeal fails.
BACKGROUND
The husband was born in 1967 and is currently 54 years old. The wife was born in 1970 and is currently 51 years old. Both parties were born in Country C, met there in 1997, and married later that year. For some time thereafter, they continued to live in Country C.
The husband travelled to Australia in October 2003, and the wife followed in February 2004.
There are three children of the marriage aged 22 years, 20 years and 13 years. The wife is the primary carer of the youngest child.
In 2005, a property in Country C was transferred to the husband by his father.
In April 2007, the parties purchased the former matrimonial home for $421,000, with the wife contributing $22,000 to the purchase price and the remaining funds being sourced from a mortgage in both parties’ names. The parties operated a joint bank account into which their respective incomes were paid, and from which their mortgage and general living expenses were met. As found by the primary judge, the wife’s contributions in this respect exceeded the husband’s, due to her higher income throughout the relationship (at [29]).
In 2016, a second property in Country C (“second Country C property”) was transferred to the husband by his father. Both Country C properties were transferred into the husband’s name without consideration and without any legal obligation to repay any monies to the husband’s father’s estate (at [28]).
In February 2017, the parties separated under one roof, and in March 2018 the husband vacated the former matrimonial home and returned to Country C. The husband has had “limited to no involvement with the children” since then (at [32]).
The husband’s father died on 17 December 2019.
THE PRIMARY JUDGE’S REASONS
At the commencement of the reasons for judgment, the primary judge outlined the undefended nature of the proceedings, and identified the material of each party relied upon. Notably, his Honour stated:
2.The wife appeared and legally represented; the husband failed to appear in person, however, he had filed and served trial-related documents. In his written argument document, the husband referred to the death of his parents, and stated that:
Due to that reason, the applicant is unable to travel overseas. I am submitting my written arguments under the review of honourable Court.
3.At page 6 of that written argument document, under the health [sic] "Plea", the husband states:
Please accept my application on merits and decide the documents already submitted to the honourable Court. The death certificates of my both parents are enclosed with my written arguments under the review of honourable Courts.
In the circumstances, and observing that these proceedings were set down for hearing on 7 January 2020, it is in the interests of justice that the Court proceed to determine on a final basis these property proceedings.
(As per the original)
In relation to the evidence, the primary judge made clear that where the parties’ factual assertions were in contest, his Honour preferred “the evidence of the wife by reason of the husband failing to attend in person the trial of the proceedings, and thereby having deprived the wife of cross-examining him through her counsel” (at [11]).
After referring to the relevant legal principles, his Honour then identified the assets of the parties to be the former matrimonial home, the two Country C properties, and the parties’ respective superannuation. The parties’ liabilities principally comprised the mortgage over the former matrimonial home. His Honour expressly excluded various items from the property pool as referenced in the wife’s submitted balance sheet, including motor vehicles, bank accounts, jewellery and loans/credit cards due to “there being no significant evidence indicating that such itemised assets [and liabilities] are matrimonial assets [and liabilities] of the parties” (at [19] and [21]).
The primary judge then discussed the contributions of the parties using a two-pool approach, the pools being the parties’ superannuation and their non-superannuation assets. In relation to the non-superannuation assets, his Honour concluded as follows:
35.From the above findings, it can be seen that during the parties’ relationship and post-separation, not only did the wife make superior financial contributions through her greater income and employment, compared to the husband, but she also was the primary homemaker and carer of the children. In relation to both Country C properties, the husband paid no sum of money to his late father for the transfers. And the Court observes, and takes into account, that the first Country C property was held by the husband over the course of the parties’ relationship of about 20 years.
36.Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation assets, as the [sic] present time, to be 60 per cent to the wife and 40 per cent to the husband. That results in a disparity of about $116,602 in favour of the wife in relation to non-superannuation assets.
The primary judge then addressed the relevant factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). Due to the wife being the primary caregiver of the youngest child, the wife’s health conditions, and the husband’s failure to make adequate financial disclosure during the proceedings, his Honour found “there should be an adjustment in favour of the wife of 10 per cent” (at [42]) resulting in the division of non-superannuation assets 70 per cent in favour of the wife and 30 per cent to the husband.
In relation to the superannuation pool, the primary judge held that neither party made any direct or indirect contributions to the other’s superannuation during the relationship or post-separation, and because of the “paucity of evidence relating to the history of the parties’ respective superannuation entitlements”, his Honour determined not to make any adjustment to each party’s superannuation, despite recognising a significant disparity between the wife and the husband’s super (at [43]–[50]).
In accordance with those findings, his Honour determined that the wife should receive 70 per cent of the non-superannuation assets amounting to $408,107, the husband receive 30 per cent of such assets amounting to $174,903, and each party retain their own superannuation.
Despite those findings, his Honour concluded as follows:
52.However, the wife took a pragmatic approach at the undefended hearing; she again sought final property orders resulting in her receiving the total net equity in the former matrimonial home, retaining her superannuation entitlements, with the husband to retain the two Country C properties and his superannuation entitlements. Summarising, this pragmatic approach of the wife results in the following:
– Wife receives:
– net equity in former matrimonial home: $340,670
– her superannuation entitlement: $194,235.
– Husband receives:
– two Country C properties: $242,341
– his superannuation entitlement: $80,000.
53.Accordingly, the wife would receive and/or retain the total sum of $534,905, representing about 62.40 per cent of the total asset pool. The husband would receive the total sum of $322,341, representing about 37.60 per cent of the total asset pool.
54.Despite the Court’s contribution findings, adjusted under section 75(2), the Court is of the view that this pragmatic approach will result in a just and equitable property settlement between the parties. The wife will be able to stay in the former matrimonial home with at least the youngest child, and continue to pay the mortgage loan. The husband will retain the two Country C properties and his superannuation entitlement, and again, he continues to have a work capacity in employment.
55.The Court makes orders accordingly.
It can therefore be seen that in fact the wife received some $67,437 less than her calculated entitlement; in percentage terms she received about 58 per cent of the non-superannuation pool, rather than the calculated 70 per cent.
THE APPEAL GENERALLY
At the outset it is useful to restate the well-known principles applicable to appeals from discretionary judgments such as that under consideration here as articulated in House v The King (1936) 55 CLR 499 (at 504–505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The Amended Notice of Appeal filed on 3 September 2020 agitates nine grounds of appeal (originally 10 grounds of appeal, with the first ground not being pressed) as follows:
…
2.The learned trial judge erred in the exercise of his discretion by proceeding by way of undefended hearing.
3.The learned trial judge erred in considering only some, but not all, of the husband’s filed evidence.
4.The learned trial judge erred in finding the value of the marital home was $720,000 in the absence of evidence.
5.The learned trial judge erred in the exercise of his discretion by failing to quarantine the husband’s property ([second Country C property]).
6.The learned trial judge erred in the assessment of the husband’s financial contributions, or in the alternative failed to consider adequately the effect of the husband’s financial contributions.
7.The learned trial judge erred in finding that the parties made no relevant contributions to the other’s superannuation entitlements.
8.The learned trial judge erred in failing to include items 5 – 14 on the balance sheet as assets of the parties.
9.The learned trial judge erred in finding that the husband had failed to make adequate financial disclosure.
10.The learned trial judge erred in failing to give adequate reasons.
(As per the original)
Ground 2
The husband asserts that the primary judge erred in his discretion by allowing the hearing to proceed as an undefended hearing. As was outlined above at [11], the husband alerted the Court to the fact that he was unable to travel to Australia for the hearing and asked the Court to “accept [his] application on merits and decide the documents already submitted to the…Court”.
In his Summary of Argument, although conceding that the primary judge could have proceeded by way of undefended hearing, the husband asserted that as an unrepresented litigant, he was not made aware by the primary judge that his non-attendance, and request for the Court to consider his written arguments, would result in him being deprived the opportunity to challenge the wife’s evidence in cross examination, and that put him at a special disadvantage. He submitted the circumstances of the death of his parents would have been sufficient grounds for an adjournment of the hearing, or to appear by electronic means.
As the wife’s counsel submitted, the husband did not seek an adjournment of the hearing before the primary judge, and his request was plainly for the matter to be dealt with on the material submitted to the Court. Further, counsel for the wife asserted that the husband was a “repeat offender” in not appearing before the Court, or complying with orders, which had resulted in various costs orders made against the husband and the hearing being delayed. The wife’s solicitor’s affidavit filed on 20 August 2019 outlines the various occasions where the husband failed to appear before the Court and/or did not comply with orders, and the multiple warnings which were given to the husband of the consequences of such. These occasions occurred from as early as April 2019, and thus the husband was well aware of the possibility of an undefended hearing of the trial being conducted. As such, and coupled with the husband’s request for the trial to proceed on his written material, there is no error in the way the primary judge heard the matter.
Ground 2 fails.
Ground 3
This ground asserts that the primary judge was in error to only have regard to certain material of the husband. At [7] of the reasons for judgment, his Honour expressed that he had regard to the husband’s material which comprised his written argument document, two of his affidavits filed 10 and 12 February 2020 and his Financial Statement filed 12 February 2020.
The husband submitted that his request in his written argument document for the Court to consider “the documents already submitted” meant that his Honour should have had regard to all previous affidavits and Financial Statements filed with the Court. His complaint asserts that there is no apparent reason for why the primary judge only had regard to the four documents already mentioned.
As submitted by the wife’s counsel, the hearing proceeded as an undefended hearing and in those circumstances, his Honour was not required to have regard to any of the husband’s material, let alone his most recently filed documents. It was further submitted that the husband has not identified any prejudice to him by the Court not having regard to previous affidavits and Financial Statements.
Notably, the primary judge made specific orders when the matter was set down for hearing on 7 January 2020, for each party to file any amended application or response, an updated Financial Statement, one consolidated trial affidavit of their evidence in chief, and one affidavit from each witness upon which they intend to rely. Self-evidently, those directions pertained to the filing of evidence which would be taken into account at the hearing before the primary judge. It cannot be said that the husband’s appearance at the trial would have altered the primary judge’s decision to rely upon only his recently filed trial affidavits and updated Financial Statement.
This ground fails.
Ground 4
Rather ironically, this ground is essentially a complaint that the primary judge accepted the husband’s evidence as to the estimated value of the former matrimonial home of $720,000, instead of the wife’s figure of $750,000.
No valuation of the matrimonial home was completed for the proceedings, and the only evidence as to its estimated value was contained in the husband’s trial affidavit filed 10 February 2020, in each of the parties’ Financial Statements, and in the balance sheet submitted by the wife at the hearing. Each party indicated an estimated value of the property at $750,000 in their Financial Statements (and in the wife’s balance sheet), however, at paragraph 60 of the husband’s trial affidavit, an amount of $720,000 was deposed to. At the hearing before the primary judge, his Honour queried the discrepancy in values and ultimately adopted the husband’s lower figure as follows:
HIS HONOUR: Just a moment please. He says [the former matrimonial home] is worth 720. Is there any – is there any evidence in the wife’s material about the value of [the former matrimonial home]?
[COUNSEL FOR THE WIFE]: Well, we accept that. Yes. No, that’s an agreed – I was under the impression, your Honour, it was an agreed figure.
HIS HONOUR: Agreed figure.
[COUNSEL FOR THE WIFE]: But if at one point he asserted 720, we will take it.
HIS HONOUR: Well, he says – that’s in paragraph 60 of his affidavit, but what’s the wife’s position. Does she assert 750?
[COUNSEL FOR THE WIFE]: Well, she says 750.
HIS HONOUR: What, as per her balance sheet?
[COUNSEL FOR THE WIFE]: Yes. That’s - - -
HIS HONOUR: Is there anything else in her – and there’s nothing else in her material specifically about the value of [the former matrimonial home]?
[COUNSEL FOR THE WIFE]: No, I must admit I thought that may have been an agreed figure because of the balance sheet that I had at one point which suggested that the applicant’s value was also 750, but if your Honour is content to put it at 720, well, then I’m in your Honour’s hands. But in the ultimate, I’m told that – because your Honour has a document – I think your Honour has the balance sheet and I’m told the current state of [the former matrimonial home] mortgage, that is, the mortgage secured against the Australian property, is just shy of $380,000, 379,330.
(Transcript 20 February 2020, p.10 line 29 to p.11 line 10)
The husband asserted that the primary judge should have adopted the higher valuation figure of $750,000 as asserted by him in his Financial Statement, instead of what he stated in his sworn trial affidavit, which figure counsel for the wife adopted. Plainly it was open to his Honour to adopt that latter figure and no error is made out in that regard. This ground also fails.
Ground 5
This ground asserts that the primary judge erred by failing to quarantine from the non-superannuation property pool the second Country C property he received from his father in 2016. As already outlined, the husband received this particular property in the year before the parties separated. Although he conceded that both Country C properties were amenable to orders under s 79 of the Act, the husband relied upon two authorities for the proposition that property received late in the relationship cannot be seen as being contributed to by the other non-receiving party, and as such he contended that it should have been excluded from the marital pool.
Counsel for the wife submitted that there is no error in the way the primary judge identified the property pool, particularly given that there was no application or submission by the husband to “quarantine” that particular property.
A party is generally bound by their conduct of their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68). Here, given that none of the husband’s material contended for the effective exclusion of the second Country C property from the pool of the parties’ property, no error is demonstrated by the primary judge failing to exclude it.
This ground is without merit.
Grounds 6 & 7
These grounds both complain of the primary judge’s assessment of the parties’ contributions to their property, and thus will be dealt with together. As previously outlined in these reasons, his Honour found that the wife contributed 60 per cent and the husband 40 per cent to the non-superannuation assets, and that neither party contributed to the other’s superannuation.
First, in relation to the non-superannuation assets, the husband contended that the primary judge failed to take into account or give weight to certain matters. He submitted that the two Country C properties, comprising 41.6 per cent of the non-superannuation assets, were financial contributions made directly by him, and therefore argued that any further contributions made by him throughout the marriage could have only added to that contribution assessment. The husband submitted that a further financial contribution not taken into account by the primary judge was a $20,000 cash payment from the husband’s father to him in around 2008, and which the wife referred to in her trial affidavit. Further matters said to be not taken into account are the husband’s parent’s housing of the parties in their first six years of marriage, the husband’s homemaker contributions, and the asserted equal financial contributions by the parties towards the mortgage and living expenses from 2013 to 2017.
As to the superannuation contributions, the husband contended that it was the wife’s evidence that neither party had any assets of significance at the commencement of the relationship, and therefore the parties’ superannuation could only have been accumulated during the relationship or post-separation. Further, it was submitted that the primary judge failed to take into account the disparity of the parties’ superannuation entitlements, and this should have warranted an adjustment in the husband’s favour.
In relation to these grounds, the wife submitted that due to the nature of the undefended hearing, there was no error in the primary judge preferring the evidence of the wife in respect of the parties’ contributions. The findings made by his Honour from [25]–[36] were findings open on the evidence, and the assessment of contributions was within the range of reasonable discretion, especially given the findings that “[f]rom 2007, the wife’s contributions always exceeded the husband’s contributions as a result of her greater income throughout the relationship” (at [29]) and her “significant contributions” arising from her role at all times as “primary homemaker and carer of the children” (at [31]). We accept those submissions.
In any event, it should be noted in relation to Ground 6 that, notwithstanding the husband’s challenges to his Honour’s contribution assessment of 70/30 per cent in favour of the wife, what his Honour ordered in the ultimate result was about a 58/42 per cent division of the non-superannuation property pool in favour of the wife. Thus before any error would assume materiality, it would need to surmount that circumstance.
As to the “significant disparity” in the parties’ respective superannuation entitlements, his Honour acknowledged that disparity (at [48]), but for the same s 75(2) factors discussed in relation to the non-superannuation pool, held that no adjustment under s 75(2) should be made.
Grounds 6 and 7 both fail.
Ground 8
This ground complains that the primary judge erred in failing to include certain items on the balance sheet as assets of the parties. Those assets included nominal cash in bank accounts, a motor vehicle, jewellery and other interests with a total value of $46,862. As previously mentioned in these reasons, the primary judge excluded these assets from the property pool at [19]:
19.The Court disregards the itemised assets on the wife’s balance sheet, exhibit A, being items 5 to 14, there being no significant evidence indicating that such itemised assets are matrimonial assets of the parties. Similarly, the court disregards the husband’s asserted assets, apart from his itemisation of the former matrimonial home, in paragraph 60 of his trial affidavit, in the sum of $720,000.
At the hearing, it was the wife’s counsel’s submission to the primary judge that these particular items be disregarded from the pool, as follows:
HIS HONOUR: Okay. But what do you want me to do with these items in the balance sheet, items 5 down to 14, all those other bits and pieces?
[COUNSEL FOR THE WIFE]: In – effectively, ignore them. My client, the wife, submits that those – the other assorted assets can be – I mean, they’re in effect not going to trouble your Honour because they’re - - -
HIS HONOUR: What, are they post-separation accumulations by the wife and - - -
[COUNSEL FOR THE WIFE]: Well, yes, and the liabilities are also such that they fall on either side. There’s - - -
HIS HONOUR: Okay. So you submit the liabilities in this balance sheet that you’ve handed up, they’re – effectively, they’re not matrimonial liabilities?
[COUNSEL FOR THE WIFE]: Well - - -
HIS HONOUR: I can ignore them?
[COUNSEL FOR THE WIFE]: And if I - - -
HIS HONOUR: Not – sorry, not matrimonial debts.
[COUNSEL FOR THE WIFE]: Yes, for the purposes of your Honour’s determination.
(Transcript 20 February 2020, p.12 lines 23–46)
In relation to the wife’s motor vehicle, the husband submitted that there was no evidence that it was acquired post-separation, and if anything the wife’s Financial Statement filed 29 December 2017 included that same motor vehicle thus demonstrating that it was acquired at least by 2017. However, the parties were separated by this time.
Counsel for the wife submitted that because of the husband’s failure to submit a balance sheet at the hearing (which he had been ordered to do), it was open to the primary judge not to include those items, given the wife’s counsel’s submissions to exclude them.
However the short answer to the complaint made by this ground is that, even if those items had been included at the values contended for, their retention by the wife would have been nonetheless justified – and indeed inevitable – given her calculated entitlement of 70 per cent of non-superannuation assets, yet her actual entitlement under the orders of 58 per cent of them. In other words, the wife’s pragmatic abandonment of an additional entitlement of $67,437 considerably exceeds the value of the assets which the husband says ought to have been taken into account. This ground therefore must fail.
Ground 9
The primary judge found that the husband had failed to make adequate financial disclosure to the wife in relation to bank withdrawals in the total sum of $10,440, and proceeded to take that into account under s 75(2)(o) of the Act when assessing contributions (at [9]–[10] and [42]). Specifically, his Honour said:
9.The wife asserts that the husband failed to make financial disclosure adequately to her in various respects, and, in this regard, the Court refers to paragraph 186 of the wife's trial affidavit, including annexure L to that affidavit. In annexure L, a letter dated 22 October 18 from the wife's solicitors to the then-husband's solicitors, the wife's solicitors refer to various bank transactions of the husband, which are unexplained by him; the total of the particularised withdrawals is some $10,440.
10.The Court finds that the husband has failed to make adequate financial disclosure to the wife in relation to this sum of $10,440. Such nondisclosure will be taken into account in favour of the wife under section 75(2)(o) of [the Act].
It is the husband’s argument under this ground of appeal that the letter referred to in Annexure L of the wife’s affidavit is hearsay evidence and should not have been admitted or given any weight in light of the matter being a property proceeding, with the rules of evidence applying. However the husband did not make, or even foreshadow any objection to any hearsay material, and indeed asked the Court to proceed in his absence. Further, the husband submitted that the bank transactions found to be unexplained by the husband were for small amounts spanned across five years, and as such it was inappropriate to take such purported non-disclosure into account. However it cannot be disputed that the sums indeed total $10,440 and no disclosure had been made pertaining to them.
In any event, counsel for the wife submitted that it was open for the primary judge to find the husband failed to make adequate disclosure, and no error is made out because the non-disclosure was taken into account under s 75(2)(o) in a holistic way, along with other relevant factors.
We accept the wife’s arguments are unanswerable. It therefore follows that this ground fails.
Ground 10
The last ground is a general challenge to the adequacy of the primary judge’s reasons. However, as argued, the challenge was directed at his Honour’s finding that the wife’s financial contributions during the relationship and post-separation were superior to the husband’s. He argues that it is not clear how much more superior her contributions were, and that the only evidence of this was self-serving assertions by the wife in her trial affidavit.
Counsel for the wife contended that her trial affidavit contained evidence of her greater income during the relationship, and thus the primary judge’s findings were open on the evidence. Counsel for the wife further contended that the primary judge set out at length his findings concerning the wife’s financial superior contributions, and hence there is no doubt as to the path of judicial reasoning (Bennett and Bennett (1991) FLC 92-191).
We are satisfied that the primary judge’s reasoning in this regard, and indeed generally, is adequately exposed. This ground fails.
OUTCOME
No ground of appeal is made out, and the appeal therefore must be dismissed.
COSTS
In the event the appeal failed, the wife sought an order for her costs. The amount claimed was $19,800, however we are not satisfied that properly reflects the wife’s party/party costs at scale. We assess her costs to be more likely in the sum of $10,000.
The husband asserted that his financial circumstances are poor, but even it that be so, it does not preclude an order for costs (Northern Territory v Sangare (2019) 265 CLR 164).
The significant factor relevant to costs in this case is that the appeal has wholly failed, and was without merit. The husband should pay the wife’s costs in the sum of $10,000.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Austin & Tree. Associate:
Dated: 25 June 2021
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