FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against property settlement orders – Where there was no error in the primary judge’s assessment of contributions – No error of fact or law established – No merit in any grounds of appeal – Appeal dismissed – Indemnity costs ordered in the sum sought by the respondent.
Legislation:
Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4), 81, 117(2A)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Alston & Alston [2021] FedCFamC1A 96
Case
[2021] FedCFamC1A 96
Decision Date
CaseChat Overview and Summary
The appeal arises from a property settlement dispute between the parties following their separation after a 36-year relationship. The primary judge determined the division of the parties' property, assessing the contributions of each party and making adjustments pursuant to the relevant sections of the Family Law Act 1975 (Cth). The appellant challenges several aspects of the primary judge's decision, including the calculation of the property pool, the assessment of contributions, and the adjustment made in favour of the respondent based on her care of the appellant's children from a previous relationship.
The court examined whether the primary judge erred in his calculation of the property pool by not adding back certain funds accessed by the respondent post-separation. The court found that the primary judge correctly treated the respondent's drawings as reasonable expenditures. Additionally, the court considered whether the primary judge erred in assessing the contributions of the parties, particularly the respondent's contributions to the family business and her care of the appellant's children. The court held that the primary judge appropriately considered the evidence and legal principles in making these assessments.
The court also reviewed the primary judge's decision to make a 2.5 per cent adjustment in favour of the respondent based on her care for the appellant's children. The court found that this adjustment was consistent with relevant authorities and did not constitute an error. Furthermore, the court examined the appellant's claims regarding procedural fairness and the primary judge's interpretation of certain sections of the Act, concluding that the primary judge's decisions were reasonable and consistent with the law.
The appeal was dismissed, and the decision of the primary judge was upheld. The court found no merit in the appellant's grounds of appeal and confirmed the primary judge's assessment of the property settlement.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The appellant appeals on the basis that he contends the primary judge failed to afford procedural fairness to him in his capacity as a litigant in person. He further appeals the primary judge’s calculation of the parties’ property, asserting that his Honour failed to notionally add back to the property pool, monies accessed by the respondent in the period subsequent to the parties’ separation. The appellant also challenges the primary judge’s assessment of the parties’ contributions under s 79(4)(a), (b) and (c) of the Family Law Act 1975 (Cth) (“the Act”) as 52.5 per cent to the appellant and 47.5 per cent to the respondent. The appellant further challenges the decision of the primary judge in making a 2.5 per cent adjustment in favour of the respondent pursuant to s 75(2) considerations, which was primarily based on his Honour’s assessment of the respondent’s contributions in caring for the appellant’s three children from his former relationship.BACKGROUND The parties began living together in January 1980, were married in January 1981 and had two children together, who are now adults. As noted, the appellant has three adult sons from a previous marriage. After around 36 years together, the parties separated sometime between 2016 and 2017. The primary judge found that the differing recollections of the parties in that respect was not material to his Honour’s decision (at [29]). Prior to cohabitation, the appellant was a professional involved in the computer industry. When the parties began to cohabitate, the respondent had no significant assets whilst the appellant had a sum of $40,000 from his previous marriage settlement (at [38]). The appellant was then employed by a company and shortly thereafter conducted business through a corporation with two other people. After leaving this corporation in 1981, the appellant set up L Pty Ltd. The appellant and the respondent were directors and shareholders of that company (at [31]).During the relationship The appellant was the principal of L Pty Ltd from its beginnings in 1982 up until his retirement in 2009, with ‘wind down’ business being conducted through the company until its deregistration in 2016. The primary judge accepted the evidence of the appellant that he worked 12 to 14 hours daily, seven days a week, at L Pty Ltd for around 25 years (at [109]). The primary judge found that the respondent participated in the day-to-day running of L Pty Ltd from inception until the appellant’s retirement in 2009 – the respondent’s initial clerical work at home later included meeting with customers, installing hardware and software, and undertaking maintenance calls. There was some dispute as to the value of the contributions made by the respondent to L Pty Ltd. The primary judge found that the appellant sought to minimise the respondent’s contributions, claiming they were “limited and low-value”, and set out his own assertions regarding the respondent’s duties in his evidence (at [37]). The primary judge found that his Honour did not need to resolve these differences but accepted that the respondent’s contributions to the company were “significantly less” than that of the appellant (at [37]).
Evidence
Evidence Before The Court
The appellant has failed to establish that the primary judge erred in treating the respondent’s drawings from her H Bank account as being applied to meet reasonably incurred expenditures and, therefore, not appropriate to be added back to the matrimonial property pool.(c) His Honour erred in application of Robb & Robb and in evaluating such contribution, without evidence, to advantage the [respondent] by $70,000 to $100,000. As previously noted, the primary judge determined that, in accordance with the principles adumbrated in Robb and Robb, there should be an adjustment of 2.5 per cent to the respondent as a result of the fact that she provided care to the appellant’s three children from his earlier relationship when they spent time with the parties during the earlier years of their marriage (at [127]–[128]). It is the appellant’s case that the respondent did not, in submissions to the primary judge, refer to Robb and Robb. However, that case had been the subject of discussion between the primary judge and the solicitor-advocate for the respondent during the course of the proceedings. This was in circumstances where it was clear that the respondent claimed, as a recognition of contribution on her part, that she cared for the three children. As noted in the respondent’s Summary of Argument filed on 1 November 2021 at paragraphs 40 to 41, the respondent was not challenged on her evidence as set out at the trial. The manner in which the primary judge recognised the respondent’s contribution in providing care for the appellant’s children from his previous relationship was consistent with the authorities. The authorities are quite clear that such a contribution, in assisting in the care of a non-biological child, should be assessed as a factor of potential relevance under s 75(2)(o) of the Act, rather than as contributions made pursuant to s 79(4)(e).[11] [11] See Zaruba & Zaruba (2017) FLC 93-776 at 77,312. Accordingly this ground of appeal also fails.(d) His Honour erred in rejecting the [appellant’s] claim to remain in his home on misinterpretation of s 81 of the Family Law Act 1975 (Cth) and the body of authority on its reading. We have previously dealt with this ground of appeal. The appellant has failed to establish that the primary judge made an error within the principles of House v the King, or that the manner in which he exercised his discretion was “unreasonable or plainly unjust.” To the contrary, it was reasonably open to the primary judge to find that deferring, for an indefinite period, funds equivalent to the respondent’s share of the adjusted property would result in unfairness to the respondent, such that the outcome was not one which was just and equitable as required by s 79(2) of the Act. Accordingly this ground of appeal also fails.(e) His Honour erred in respect to a number of statements set out in his judgment which are contended to be wrong. The primary judge’s “statements” which the appellant contends are “wrong”, were set out by the appellant by way of his Amended Summary of Argument filed on 25 October 2021, from pages 14 to 15, as follows:a) Judgement: Appeal Book pp34 [21](4):“…no ([appellant’s]) list could be found in any place”.The [respondent’s] personal property list was in Annexure 1 to hersubmission see Appeal Book pp355[4].The [appellant’s] personal property list was Attachment 4 to hissubmission see Appeal Book pp539 & pp546.b) Judgement: Appeal Book pp35 [26]:“…[respondent’s] objections…Tender Bundle…dealt with in the reasons”This is neither recalled nor found in the transcript.Trial Transcript pp 199-200 refers[Appellant’s] Aide Memoir of 24 February 2019 refers.c) Judgement: Appeal Book pp36 [30]“…[appellant] concedes was of high quality”There is no evidence to that effect.d) Judgement: Appeal Book pp40 [49]:“…In relation thereto, the [respondent] deposes in her financial statementthat she does not pay any rent…is accommodated therepursuant to an arrangement whereby she purchases food…”.There is no such deposition.Parts E & F are not completed.[Respondent’s] Financial Statement Appeal Book pp279 refers.e) Judgement: Appeal Book pp50 [92] :“The [appellant] submits that “the [respondent] did not offer oral evidence”.Simply listed in Summary of Proceedings.[Appellant’s] Submission Appeal Book pp369 [4] refers.f) Judgement: Appeal Book pp50 [92] :“The [appellant] also criticises the [respondent] in paragraph 43 of hissubmissions for not filing an Amended Initiating Application”.Simply listed in Summary of Process.[Appellant’s] Submission Appeal Book pp374 [43] refers.g) Judgement: Appeal Book pp50 [93] :“Such an outcome would patently not make “proper provision for[the [respondent’s]] needs”.”The outcome may not satisfy the [respondent’s] wants but her needs aresatisfied in exactly the same way as the [appellant’s].h) Judgement: Appeal Book pp54 [114]:“…attempts to assert that the [respondent] has made some form of“negative contribution”…”.[Respondent’s] Trial Affidavit Appeal Book pp274 [41][Appellant’s] Trial Affidavit Appeal Book pp88 [11(viii)][Appellant’s] Submission Appeal Book pp428 [157]i) Judgement: Appeal Book pp56 [125]“…whilst the [respondent] would be in significantly reducedcircumstances from that standard.”There is no evidence to that effect.There is contrary evidence.(As per the original)
Decision
Reasons for decision
Again, no criticism can be made of the conduct of the primary judge in providing that advice to the appellant and, therefore, this ground of appeal must also be dismissed. Ground 3 – As to the judgment (a) His Honour manifestly erred in determining a contribution ratio of “52.5 per cent by the [appellant] and 47.5 per cent by the [respondent].” The primary judge correctly stated the law in respect to the steps usually followed by trial judges in determining whether there should be an adjustment of matrimonial property following the separation of parties and, if so, what that adjustment should be, having regard to the matters set out in ss 79(2) and 79(4) of the Act. A significant fact underpinning the primary judge’s decision regarding contributions was the length of the parties’ marriage. Additional to the authorities referred to by the learned primary judge, we note that in Wallis & Manning (2017) FLC 93-759, the Full Court said at 77,043:The length of the marriage can be seen to be of considerable importance in the assessment of contributions. In Waters and Jurek Fogarty J, in the context of s 79(4)(e) of the Act, said:When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. (Citations omitted) In terms of the practical application of those principles, in Jabour & Jabour (2019) FLC 93-898 the Full Court, at [136], found that the evidence in that case established that:Whatever was the value of the property at the commencement of the relationship its significance has been largely lost given the myriad of the contributions by each of the parties to their various business ventures, through their employment and care of the family over a long relationship, including the contributions made to the retention of the property which we have discussed above. There is no doubt that they both worked hard and over many years they both contributed to the full extent of their capacity within the roles each took within the marriage... In considering the manner in which the primary judge exercised his discretion, it is to be observed that his Honour recognised the superior initial contribution by the appellant to the marital property, insofar as he contributed what his Honour found to be $40,000 to the purchase of the former matrimonial home, together with stamp duty and transaction costs (at [106]). His Honour carefully and methodically set out his findings not only in respect to the parties’ initial contributions, but also in respect to the contributions that the parties made during the course of and subsequent to their relationship. By way of summary:(a)His Honour found that the appellant worked very hard in his business and was the primary income earner for the family;(b)His Honour also referred to other contributions made by the appellant in respect to assisting with the care of the children and general maintenance and improvement of the parties’ property (at [110]–[111]);(c)His Honour also set out the role of the respondent as the primary homemaker who principally cared for the parties’ children;(d)Further, his Honour noted that the respondent also assisted the appellant in his business and made some financial contributions that were applied to the parties’ joint purposes;(e)His Honour noted the circumstances of each of the parties in respect of the period subsequent to the termination of their relationship, including the fact that the appellant has been living rent-free in the parties’ former matrimonial home since 2017 (at [113]).
Ratio Decidendi
Legal Principle Established
The respondent attested that she applied the monies from both her and the appellant’s H Bank accounts to their daughters’ weddings and paying bills, accounts and outgoings where other funds were insufficient. The appellant gave evidence that he had never drawn down against either account but that the respondent was authorised to pay for their daughters’ weddings with these funds, and apply the interest earned toward living expenses. The primary judge found that there was a sum of about $101,000 remaining in each account at the time of separation (at [46]). After separation In early 2017, after separation but whilst still cohabitating, the appellant purchased a vehicle in his sole name using $9,800 from his H Bank account. Sometime after, the respondent purchased a vehicle for an undisclosed purchase price, using the funds in her H Bank account. When the respondent left the former matrimonial home in 2017, each account had a sum of about $88,000. At the time of hearing, the appellant’s H Bank account had $86,608 while the respondent’s H Bank account had $56,112. It was the respondent’s evidence that, substantially, she applied funds from this account towards her day-to-day living expenses after leaving the former matrimonial home (at [48]). That evidence was accepted by the primary judge (at [65]). Since 2017, the appellant has remained at the former matrimonial home (which was unencumbered by any mortgage) while the respondent arranged her own accommodation in one of their daughter’s family home. The respondent states that she does not pay rent or board, but has an arrangement whereby she purchases food and other consumables for the household (at [49]). At trial, the primary judge found that the appellant included considerable amounts of evidence regarding his efforts to restore the amenities and water views of the former matrimonial home including interactions with the local council and neighbours (at [50]). The appellant asserted that the respondent frustrated or otherwise hampered him in these efforts. However, the primary judge noted that the appellant did not present any evidence to establish these contentions or that the value of the former matrimonial home had been adversely impacted by any conduct on the part of the respondent (at [51]–[52]). Accordingly, the primary judge found that any loss or restoration of “amenities and water views” was not relevant in the proceedings and would not form any part of his Honour’s consideration as to what was an appropriate, just and equitable adjustment of the parties’ property pursuant to s 79 of the Act (at [53]). The parties agreed on a valuation of $1,200,000 for the former matrimonial home for the purpose of the trial. However, that valuation was relevant only for the purpose of preparing a trial balance sheet as it was the position of both parties that the property should be sold either immediately (as per the respondent’s case) or once the appellant vacated the property for one of his proposed reasons (as per the appellant’s case) (at [52]). In other words, the value of the property was to ultimately be determined by the market.