Abbott & Vastano
[2022] FedCFamC1A 222
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Abbott & Vastano [2022] FedCFamC1A 222
Appeal from: Abbott & Vastano [2022] FedCFamC2F 1284 Appeal number(s): NAA 212 of 2022 File number(s): NCC 1968 of 2020 Judgment of: TREE J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders providing 58/42 per cent of the property pool in favour of the wife – Procedural fairness – Adequacy of reasons – Where the primary judge is not bound to accept the proposals of the parties – Where the assessment of contributions remained at large for the Court – Whether the primary judge erred in assessing the parties’ contributions by starting from an assumption of equality – Where the primary judge was not obliged to refer to all the evidence – Whether the primary judge failed to weigh or evaluate the respective contributions over the periods of the relationship against each other – Where the assessment of contributions is an holistic one and the piecemeal attribution of quantified differences to various stages of a relationship is ill-advised, albeit not necessarily erroneous – Where the husband has failed to show the outcome was outside the generous ambit within which reasonable disagreement is possible – Appeal dismissed – Timetable for costs submissions ordered. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 114
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robertson & Sento [2009] FamCAFC 49
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) 211 CLR 238; [2002] HCA 36
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 62 Date of hearing: 16 December 2022 Place: Cairns (via video link) Counsel for the Appellant: Mr Gallimore Solicitor for the Appellant: Turnbull Hill Lawyers Counsel for the Respondent: Mr Rugendyke Solicitor for the Respondent: East Coast Law ORDERS
NAA 212 of 2022
NCC 1968 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ABBOTT
Appellant
AND: MS VASTANO
Respondent
order made by:
TREE J
DATE OF ORDER:
21 december 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.No later than 4.00 pm on 11 January 2023, the appellant is to make file and serve any further material and submissions relevant to the question of costs.
3.No later than 4.00 pm on 18 January 2023, the respondent is to make file and serve any further material and submissions relevant to the question of costs.
4.No later than 4.00 pm on 25 January 2023, the appellant may make file and serve any further submissions strictly in reply to any submissions filed by the respondent under Order 3.
5.Upon the filing of the last document under the above timetable, the decision in relation to costs stands reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Abbott & Vastano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
Mr Abbott (“the husband”) appeals from final property settlement orders made on 29 August 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2), in proceedings which he brought against Ms Vastano (“the wife”). The primary judge’s reasons show that those orders, although perhaps imperfectly crafted, were intended to provide for an adjustment of the parties’ interests in their property, such that the wife receives 58 per cent, and the husband receives 42 per cent, of the net pool of assets, including superannuation.
In practical terms, that adjustment provided for the former family home to be sold and the net sale proceeds divided 58/42 per cent in the wife’s favour, a superannuation split from the husband’s fund to the wife, but for the parties to otherwise retain the property in their possession. That may have led to an overall adjustment that did not perfectly reflect a 58/42 division, but no ground of appeal challenges that, which if correct, can nonetheless be addressed by an application under the slip rule.
The wife opposes the appeal. For the short reasons that follow (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), the appeal will be dismissed.
background
At the time of the 29 August 2022 orders, the husband was 34 and the wife 32. They commenced their relationship in 2014, started living together in 2015 and finally separated in January 2020, thereby concluding a de facto relationship of about five and half years duration. They had one child together who was born in 2015 and is currently seven years of age. Since separation, the child has lived primarily with the wife and spends four nights per fortnight with the husband. Both parties have re-partnered.
The value of the property pool was not in dispute before the primary judge; it mainly comprised the former family home and the parties’ superannuation. What was in dispute before her Honour was the parties’ contribution based entitlements and any adjustment under s 90SM(4)(e) of the Family Law Act 1975 (Cth). As noted by the primary judge, both parties contended for a 60/40 per cent split in their favour.
The trial was heard by the primary judge on 8 August 2022, after which on 29 August 2022 she delivered reasons for judgment and pronounced the orders subject of the appeal.
the appeal
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
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.
Grounds 3 and 4
These grounds were argued together. They provide as follows:
3.The Primary Judge erred in assessing post separation contributions favouring the Respondent in the range of 2% to 4%, namely 3%, in that she:-
(a) failed to give adequate and proper reasons;
(b) failed to take into account relevant evidence;
(c)failed to have regard to the concession made by the Respondent’s counsel at trial in his Case Outline document and in his oral submissions that the Respondent’s post separation contribution made as main caregiver to the child of the relationship equalled the post separation contributions made by the Appellant.
4.The Appellant was denied procedural fairness in that the Primary Judge assessed post separation contributions to favour the Respondent in the range 2% to 4% in circumstances where the Respondent’s case was presented on the basis that the Respondent’s post separation contributions as homemaker and parent equalled the Appellant’s financial contributions to the mortgage and no submission was made to the contrary of that position at trial.
Ground 4 alleges a want of procedural fairness, which is a challenge to the integrity of the administration of justice, and thus should be dealt with first before other discrete grounds of appeal (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10]). Given that Grounds 3 and 4 were argued jointly, it is convenient for me to therefore address them both at the outset.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it.
A trial judge is not bound by the proposals of the parties or by the evidence of a witness (U v U (2002) 211 CLR 238 at [80]). However, it is an error for a trial judge to represent to the parties that a certain order is not in contemplation but then make that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).
Whilst it is true that at page 6 of the wife’s Case Outline filed 5 August 2022 she contended that her post separation caregiving of the child “equals” the husband’s post separation contribution of 19 months of mortgage payments, it is difficult to align that with her acknowledgment in the very same document that the husband’s initial contributions exceeded hers, her concession that contributions during the relationship were equal, and yet her ultimate contention that the overall contribution based entitlements were equal. Something must have evened up the husband’s initially greater contributions, and it could only be post separation contributions. Therefore an informed reader of the Case Outline would realise it contained an inconsistency. The only alternative interpretation, namely because the wife asserted that the superiority of the husband’s initial contribution was unquantifiable, that she therefore contended that they must be assessed as equal, is so utterly contrary to the law, that a reasonable reader of the document would dismiss it out of hand.
Interestingly, whilst the claim for equal overall contributions was maintained by the wife in her counsel’s oral submissions at trial, no mention was made by him either of equality or disparity of post separation contributions.
For his part, the husband argued that his post separation contributions exceeded the wife’s; his trial submissions made no mention of the wife’s asserted concession of equality.
As I have noted, the primary judge was not bound by any concession of equality of post separation contributions by the wife, nor during the hearing did her Honour represent that she regarded herself as so bound. The assessment of contributions remained at large for the Court.
Counsel for the husband referred me to Jabour & Jabour (2019) FLC 93-898 (“Jabour”) where the Full Court said:
Did the primary judge err in law in her findings about and the weight she attributed to the husband’s post-separation contributions? (Ground 2)
89.Although Ground 2 appears to be a challenge to the weight that was given to a number of matters, the thrust of the submissions was that the relevant findings were not available because they were not supported by any evidence. If that is so, error is established because the primary judge has then mistaken the facts or allowed an extraneous or irrelevant matter to guide her (House at [505]).
90.There is, however, an antecedent issue that must be addressed. In her oral submissions, senior counsel for the wife submitted that, in making these findings and taking post-separation contributions into account, the primary judge did not afford the wife procedural fairness because the husband did not seek such matters to be taken into account and the primary judge did not raise the issue with the wife.
91. There is merit in this submission.
92.The husband did not raise the issue of post-separation contributions in either his case outline or his oral submissions to the primary judge. In response, counsel for the wife said:
… Post-separation, I don’t think my learned friend was – well, I don’t think my learned friend’s case is premised on any loading to the husband on the basis of his post-separation contributions.
(Transcript 6 February 2018, p.103 line 47 to p.104 line 4)
93.Counsel for the husband did not cavil with that statement in his submissions in reply.
94.Senior counsel for the husband, who appeared before us, accepted that no submissions were made in support of a claim for post-separation contributions.
95.This did not, off course, preclude the primary judge from undertaking such a consideration but, if that course was to be taken, that possibility must have been squarely raised with the wife and her submissions sought on each aspect of the proposed consideration. Her Honour did not do so. We consider that the primary judge erred by not affording procedural fairness to the wife: Kioa v West (1985) 159 CLR 550; Stead v State Government Insurance Commission (1986) 161 CLR 141. Having regard to the above exchange, the wife would have properly considered that no claim for post-separation contributions was in contemplation.
(Emphasis added)
In that case, it can be seen that the parties were ad idem that post separation contributions were equal. However here they were not, as the husband was seeking a substantial differential in his favour attributable to them.
Moreover, it is not said – nor is it apparent – what additional evidence or submissions could have been advanced by the husband had the primary judge indicated some assessment of post separation contributions favouring the wife was on the cards. Before me, the best counsel for the husband could contend was that his predecessor could have argued against any adjustment in favour of the wife, but that was necessarily implicit in his submission that there should be a substantial differential in his favour in respect of that very matter. In that sense it appears inevitable that, even if there was some lack of procedural fairness, the primary judge’s decision would have been the same (Stead v State Government Insurance Commission (1986) 161 CLR 141). Plainly, because it referred to that authority in the passage recited above, the Full Court in Jabour thought differently on the facts of that case.
There was no denial of procedural fairness as Ground 4 contends.
As to Ground 3, the obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
At [41]–[44] the primary judge said this:
41.So post-final separation, what I have in terms of the contributions by the parties is a continuing contribution by the [husband] towards the matrimonial property’s mortgage, but in a way which is really less than commendable. He paid for a period of time but then simply ceased paying over 12 months ago and even whilst he was paying, he would from time to time use the redraw facility on the mortgage for his own purposes and would sometimes pay the money back but not always. That seems to me to be him doing certainly no more than might be considered proper and may be really barely that.
42.On the other hand, the [wife] has been the primary parent for [the child]; has continued to do that in circumstances where she has tried to find work. The most remunerative work that she could achieve was at $85,000, which is still significantly less than what the husband earns in his income and when feeling as though she has been threatened by the husband about her primacy in childcare for [the child], she has ceased to do that work and has started doing work which is much less remunerative to her. Even if she was to earn $980 per week, that would still be an income of only around the $50,000 mark, compared to the about $250, $260,000 that the husband has as his earning capacity.
43.So it seems to me since final separation, I make no complaint of the wife not contributing to the property save for that one occasion. It seems to me she has made a significant contribution by way of being the primary parent for [the child] and remembering that [the child], having been born in May 2015, at final separation was aged four and a half or thereabouts.
44.So in terms of the parties’ contributions post-separation, it seems to me they fall in favour of the wife and that a weighting in her favour in the order of about two to four per cent is warranted. I will therefore say three per cent.
Her Honour’s reasoning for assessing a 3 per cent disparity in post separation contributions is plainly laid out in those paragraphs. Particularly her Honour was of the view that the wife’s parenting of the child outweighed the husband’s contributions during the relevant period.
The challenge that there was a failure to take into account relevant evidence incorrectly confuses that notion with the suggestion that a court is obliged to refer to all the evidence, a contention which is clearly incorrect (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132). Moreover, contrary to the argument advanced by the husband under this ground, the primary judge did not say she was ignoring the evidence of the wife’s earnings post separation, nor indeed was her post separation expenditure ultimately contended by the husband to comprise waste (at [59]). If it was not waste, then it should not nonetheless be treated as if it were.
I have sufficiently dealt with Ground 3(c) in considering Ground 4.
Both Grounds 3 and 4 fail.
Ground 1
This ground asserts:
1.The Primary Judge erred when assessing the parties’ contributions by starting from an assumption of equality rather than by comparatively weighing the parties’ respective contributions without preconception.
In her Summary of Argument filed 9 December 2022, the wife correctly identified that at [5], the primary judge recorded the parties’ agreement that their contributions during the relationship were equal, but then claimed that although the wife conceded that, the husband did not.
As counsel for the husband candidly conceded without prompting, even the most cursory examination of the transcript reveals that not to be correct (see Transcript 8 August 2022, p.74 line 44 to p.75 line 10).
Nonetheless he persisted with this ground. His argument was that because the primary judge assessed differentials for both pre and post cohabitation contributions as percentages of the property pool, therefore her Honour started from a position of equality. However, whilst her Honour’s reasons would not serve as a model of clarity, upon balance, that is not what her Honour did, although precisely what it was that her Honour did do is a little harder to discern.
That is because whilst at [27] her Honour concluded that “the husband’s contribution at the commencement was greater than the wife’s”, thereafter at [28]–[33] she appears to have, in effect, telescoped forward to investigate how that disparity was reflected in the current asset pool, a matter I will return to in considering Ground 2. Thus at [33] the primary judge said:
33.So looking at the husband’s initial contributions, it seems to me there does need to be a weighting to him for the bringing in at the commencement of a relationship which then persisted for five years of cohabitation with a relationship of about five and a half years overall. Doing the best I can, I would say that that contribution, bearing in mind that neither of them can be responsible for or take credit for the increase in the market and market forces which have happened just in this particular time period. So my assessment of the initial contributions is something in the order of five per cent.
Whatever legitimate criticism may be made of that paragraph, it does not include an assumption of equality, as her Honour is attributing a differential in initial contributions, by reference to the pool available for division, of 10 per cent.
Ground 1 fails.
Ground 2
This ground provides:
2.The Primary Judge erred in assessing contributions at separation as to 55% to the Appellant and not 65-70% as contended for by the Appellant at trial in that she failed:-
(a) to give proper and adequate reasons;
(b) to take into account relevant evidence.
The relevant principles dealing with adequacy of reasons have been discussed above.
The primary judge concluded that the husband’s initial contributions exceeded the wife’s (at [27]). I have already set out her Honour’s subsequent reasons at [33] as to why initial contributions should be assessed as favouring the husband to the extent of 5 per cent.
Although those reasons are brief, and as I have said, not beyond criticism, the primary judge has nonetheless adequately explained why she has selected that percentage; whilst the husband’s initial contributions (primarily in the form of equity in real estate) exceeded the wife’s, the parties’ current equity in property was mostly the result of market increases.
Contributions during the relationship were otherwise equal, as the parties agreed (at [34]) and post separation contributions were found, as I have earlier discussed, to favour the wife. Her Honour’s reasoning is thus sufficiently clear, particularly bearing in mind that moving from a qualitative to a quantitative expression involves a “leap” (Steinbrenner & Steinbrenner [2008] FamCAFC 193).
To the extent the challenge made under this ground was that the primary judge failed to take into account particular evidence, it again incorrectly assumes that her Honour was obliged to refer to all relevant evidence, when she was not.
During oral argument, this ground was sought to be developed in a quite different way to how it is cast. Particularly it was said that, whilst the primary judge assessed a 10 per cent differential in relation to initial contributions, determined that contributions during the relationship were equal, but found that post separation contributions favoured the wife to the extent of 3 per cent, her Honour failed to then homogenize those three periods, but rather, in a raw mathematical way, simply added the percentage differences together. By doing so, it was said that she failed to weigh or evaluate the respective contributions over those periods against each other. As but a simple example of that argument, a 2 per cent differential to a small initial contribution, if added to a 10 per cent differential to a much larger contribution, would not properly result in a 12 per cent differential overall, as the 2 per cent would thereby be over represented.
An initial question is whether this argument was advanced under Ground 2 in the wife’s Summary of Argument, because, if it were not, leave to do so would be needed (r 13.23(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
Counsel for the husband said it was already advanced by paragraphs 18 and 21 of his Summary of Argument. They provide:
18.Whilst the Primary Judge records that at the time of sale of the Property B in 2018 the mortgage was $200,000 approximately, having risen from $177,000 at the commencement of cohabitation, the Primary Judge does not analyse how the initial contribution of the Appellant together with the borrowings secured against the property and discharged on its sale were contributed to the relationship.
…
21.In a short relationship there is no explanation as for why an amount which represented in cash terms approximately $150,000 when weighed with all other contributions made by the parties would only result in a finding of contributions of 55% at the date of separation in a tangible asset pool of approximately $600,000.
If he was wrong about that, no application for leave to advance the new argument was made.
In the event, it is unnecessary to determine whether those paragraphs encompassed the argument orally advanced, because even if they did, and leave were not required, it is without merit.
I have already remarked on the way in which the primary judge proceeded to assess the disparity of initial contribution by reference to how that disparity, in effect, played out during the relationship. It seems to me that therefore she was thereby not expressing a raw differential percentage as at the commencement of cohabitation, but rather trying to gauge how the unspecified greater contribution of the husband at cohabitation should find expression at the time of trial. In doing so she was specifically trying to give the initial disparity relativity to subsequent events and contributions, the very thing which this argument contends was required.
Whatever the failings of that approach, they do not include the raw addition of percentage differentials for different periods without some attempt to weigh them against each other.
That said, however, I should reinforce – if further reinforcement of the long line of authorities is still needed – that the assessment of contributions is an holistic one (Jabour) and the piecemeal attribution of quantified differences to various stages of a relationship fraught, and therefore ill-advised, albeit not necessarily erroneous.
Ground 2 fails.
Ground 5
This ground provides:
5.The Primary Judge erred in finding an overall division of the parties’ superannuation interests in the proportion 58% to the Respondent and 42% to the Appellant in that she:-
(a) failed to make findings as to contribution to the superannuation assets;
(b) failed to give adequate or proper reasons.
It is true that, in her reasons, the primary judge discusses the parties’ superannuation and their other assets by referring to them as “pools” but then applied an identical division to both.
However before the primary judge neither party argued for superannuation to be treated as a separate pool, and both differentiated between assets and superannuation in their respective balance sheets, although neither contended for anything other than for an identical percentage division of them. Hence her Honour’s comments should be read as being simply an infelicity of language, perhaps the result of how the trial before her was conducted. Reasons should not be analysed in an overly critical or pernickety way (AMS v AIF (1999) 199 CLR 160 at 211 per Kirby J).
This ground therefore works from an incorrect premise, and accordingly fails.
Ground 6
This ground provides:
6.The Primary Judge erred in finding that the Respondent should receive a further 10% of the nett superannuation and non-superannuation assets having regard to the matters in s. 90SF of the Family Law Act in that she:-
(a)failed to evaluate the evidence of the Appellant’s continuing support for the child of the relationship;
(b)failed to evaluate the Appellant’s ongoing need to support his new partner and child;
(c)failed to give adequate reasons.
At the outset, it should be noted that at trial, the husband himself conceded an adjustment of 10 per cent for s 90SF(3) factors was within range (husband’s Case Outline filed 5 August 2022, paragraph 28 and Transcript 8 August 2022, p.79 lines 10-13).
Whilst on appeal, counsel for the husband argued that concession was premised upon his predecessor’s contended contribution based entitlement being accepted, even if that may have been intended, it plainly was not articulated, as the concession was wholly unqualified. Parties are bound by the conduct of their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
However putting that to one side for a moment, there is no reason to think that the primary judge failed in any of the contended respects. She was plainly aware of the husband’s ongoing child support payments (at [38]). Further, her Honour was conscious of the husband’s need to support his new partner and their child (at [50]) although the evidence as to that was rather scant (for example, in part H of the husband’s financial statement filed 26 July 2022, he did not disclose any personal expenses he paid for the benefit of others, nor did he detail any such expenses in his contemporaneously filed affidavit, or advance them in his Case Outline filed 5 August 2022).
As to the reasons challenge, [46]–[53] more than adequately exposes why her Honour selected the upper limit of the range conceded by the husband.
Ground 6 is without merit and fails.
Ground 7
This ground provides:
7.The ultimate division of the superannuation and non-superannuation assets are 58% to the Respondent and 42% to the Appellant is plainly wrong.
To succeed on this ground, the husband would need to persuade me that the outcome was outside the generous ambit within which reasonable disagreement is possible (Norbis v Norbis (1986) 161 CLR 513 at 539 per Brennan J; CDJ v VAJ (1998) 197 CLR 172). This he has failed to do. Particularly, when one considers the findings of the primary judge that, whilst initial contributions favoured the husband, and contributions during the relationship were equal, nonetheless post separation contributions and s 90SF factors both favoured the wife, the outcome plainly was within the range of reasonable disagreement. None of those assessments have been disturbed by this appeal, and therefore as a stand-alone challenge, this ground is forlorn.
Ground 7 fails.
outcome
No ground of appeal succeeds, and therefore the appeal will be dismissed.
costs
In the event the appeal failed, the wife sought that her costs in the sum of $10,345.97 be paid by the husband. However the husband sought the opportunity to put on further evidence of offers made between the parties before the Court. I will order a timetable in terms agreed between the parties at the hearing before me, and otherwise reserve my decision as to costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 21 December 2022
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