Anson & Meek - [2017] FamCAFC 257

FAMILY COURT OF AUSTRALIA

ANSON & MEEK

[2017] FamCAFC 257

FAMILY LAW – APPEAL – final property orders – short marriage – where the property distribution only related to the parties’ Australian assets – where the major asset was a farming property purchased prior to the marriage – where the husband contributed the whole of the purchase price – where the primary judge attributed the increase in value of the farming property to the equal contributions of the parties during the relationship – where the s 75(2) adjustment gave significant weight to the wife’s reduced earning capacity – where the primary judge erred – where the primary judge failed to take into account the effect of market forces on the increased value of the farming property – where the primary judge failed to take into account contributions made during the post-separation period – where the primary judge’s finding as to the wife’s future earning capacity had no evidentiary basis – discussion of comparable cases – appeal allowed.

Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) s 79(4)(e)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Amaca Pty Limited (Under New South Wales Administered Winding Up) v King (2011) 35 VR 280
Barbaro v The Queen (2014) 253 CLR 58
Blanks & Blanks [2006] FamCA 354
Bondelmonte v Bondelmonte (2017) 341 ALR 179
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
CDJ v VAJ (1998) 197 CLR 172
Coghlan and Coghlan (2005) FLC 93-220
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Douglas and Douglas (2006) FLC 93-300
G & G [2001] FamCA 1453
Hili v The Queen (2010) 242 CLR 520
Holland & Holland (2017) FLC 93-798
House v The King (1936) 55 CLR 499
Hsieh & Chow [2007] FamCA 470
Kennon v Kennon (1997) FLC 92-757
Lee v Hutton (2013) 50 Fam LR 322
Moran v McMahon (1985) 3 NSWLR 700
Norbis v Norbis (1986) 161 CLR 513
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Rodgers & Rodgers (No 2) (2016) FLC 93-712
Rogers v Nationwide News Pty Limited (2003) 216 CLR 327
Russo & Dorsey and Anor [2014] FamCA 467
Semperton v Semperton (2012) 47 Fam LR 626
Sharman v Evans (1977) 138 CLR 563
Shewring and Shewring (1988) FLC 91-926
Stanford v Stanford (2012) 247 CLR 108
State of New South Wales v McMaster (2015) 91 NSWLR 666
The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Van Gervan v Fenton (1992) 175 CLR 327
W & W (unreported, Full Court of the Family Court of Australia, Baker, Lindenmayer and Smithers JJ, 28 January 1997)
Wallis & Manning (2017) FLC 93-759

APPELLANT:

Mr Anson

RESPONDENT:

Ms Meek

FILE NUMBER:

CAC

680

2014

APPEAL NUMBER:

184

2016

DATE DELIVERED:

7 December 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Murphy, Aldridge & Cleary JJ

HEARING DATE:

18 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 September 2016

LOWER COURT MNC:

[2016] FCCA 2502

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Walsh & Blair Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Robinson + McGuinness Family Law

Orders

The appeal be allowed.
The orders of Judge Hughes made on 29 September 2016 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Hughes.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants both the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the appellant and the respondent in respect of the costs incurred by the appellant and the respondent in relation to the new trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anson & Meek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 184 of 2016
File Number: CAC 680 of 2014

Mr Anson

Appellant

And

Ms Meek

Respondent

REASONS FOR JUDGMENT

MURPHY J

Orders appealed by the husband were made by Judge Hughes on 29 September 2016.
Her Honour found that justice and equity required the making of an order adjusting the existing property rights of the parties to property situated in Australia.
The consequent adjustment ordered by her Honour required the husband to pay the wife an amount of $691,200 consequent upon the parties otherwise retaining their respective property interests. That adjustment reflected a finding that the husband should receive 60 per cent of property situated in Australia and the wife 40 per cent.

The Appeal

The husband’s appeal challenges both the primary judge’s assessment of contributions and her assessment pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”).
The central challenge is that each of those assessments is “outside an acceptable range particularly having regard to the short period of cohabitation and the overwhelming financial contribution made by the [husband]” (Grounds 1 and 3).
In addition, the husband contends that the primary judge erred in finding that “the increase in value of the farming property was because of the joint [and apparently] equal contributions made by the parties during a short period of cohabitation in circumstances where the property was an initial contribution of the [husband]” (Ground 2).
Additional challenges are to findings made by the primary judge that the wife’s earning capacity has diminished and she has lost income and income-earning opportunities as a result of the marriage (Grounds 4 and 5).

The Relationship

The parties married in April 2008 and separated in March 2013. Separately, her Honour found that the wife regarded “herself as being in a committed and exclusive relationship with the husband from late 2005” (at [6]).
The parties have no children together but evidence accepted by her Honour was to the effect that plans to do so were a central part of the parties’ relationship (and ultimate discord). Those plans involved IVF treatment and failed pregnancies which caused great distress. The first of those failed pregnancies occurred in mid-2007, prior to cohabitation and marriage.
In late 2006 the husband asked the wife to move with him to East Asia where he was due to take up employment and “[t]he wife agreed to do so provided they were committed to marry” (at [6]). Upon the parties agreement that this would occur they “began to plan their life together” (at [6]).
The husband moved to East Asia in early 2007 while the wife remained in Australia. The wife gave notice to her employer in mid-2007 and ceased working in late 2007 antecedent to marriage. She moved to East Asia subsequent to marriage where she commenced cohabitation with the husband.
In September 2009 the husband was transferred by his employer “on short notice to work in Melbourne” (at [10]). He left East Asia immediately while the wife remained to pack up the apartment and the like. The wife moved to Melbourne in late 2009 where the parties rented an apartment together.
As will shortly be seen, the primary asset subject to the s 79 proceedings was a farm property “Property A” purchased in mid-2007 (“the farm”). The farm was purchased for just over $1 million; with stamp duty and legal expenses the total expended was $1,121,168. The husband borrowed $745,000 and paid the balance of nearly $400,000 “from his savings” (at [8]). The property was, and is, registered in his sole name.
The parties continued to live in Melbourne but travelled to the farm “almost every weekend, which involved a ten hour round trip” (at [12]). The parties thereafter lived in Melbourne for approximately two years until late 2011 when the husband moved permanently to the farm.
Her Honour found that the wife travelled to the farm “on most weekends” (at [16]). In early 2012 the wife commenced working in Town F. She rented a small house in that town to use as an office. Nevertheless, her Honour found the wife “slept at the farm except for a total of five or six nights when she had an early flight to catch the next morning” ([at 18]).

The Property

At the time of trial the husband had interests in property in Country T comprising land and cash. It is uncontroversial that the husband had “always kept his assets in Australia and Country T completely separate” (at [9]). Further, “income or interest earned on assets in [Country T] is banked there and any costs associated with those assets are paid from funds held in [Country T]” (at [9]).
Her Honour accepted the submission made on behalf of the husband that she should adopt a “two pool” approach. That terminology was used to describe an approach whereby the husband’s interests in the Country T property would not be subject to alteration pursuant to s 79; that property would become “relevant when considering the section 75(2) factors … but not in relation to assessing the respective contributions of the parties” (at [60]).
In a similar vein, her Honour determined, again for reasons which her Honour gave, that the parties’ respective superannuation interests (which were in roughly equal amounts) should not be subject to splitting orders. Her Honour found that the parties’ superannuation interests would “make almost no difference to the outcome” and agreed with the submission made on behalf of the husband that those interests should be “disregarded” (at [62]).
Neither of those findings is the subject of any ground of appeal or notice of contention. However, I would nevertheless again seek to underscore the importance of the application of principle in reaching those conclusions.

Two “Pools”

The reference to “pools” recognises that the interests in property of the parties or either of them can be grouped by reference to the components of each being of a particular nature or having characteristics different from the components of another “pool”. The distinction between, on the one hand, interests in property and, on the other, superannuation interests (which are to be “treated as property”)[1] is a very common, but by no means exclusive, example.[2]
[1] See s 90MC of the Act.
[2] Coghlan and Coghlan (2005) FLC 93-220.
That distinction can be important in assessing differing contributions to different types of property. But it can also be very important in answering the essential question posed by s 79(2) which is, of course separate from the question posed by s 79(4) and its constituent elements including contributions.[3]
[3]Stanford v Stanford (2012) 247 CLR 108.
The latter is in fact the distinction sought to be made in the present case in respect of both the Country T property and the parties’ respective superannuation interests and I respectfully consider that it should be so referenced.

“Disregarding” Property

In addition, I consider it important to also repeat what has been said of the dangers of disregarding property of any type (or superannuation interests).
Most recently, the issue was referred to in Holland & Holland,[4] which in turn referred to what had been said in another recent decision of the Full Court:
[4] (2017) FLC 93-798.
29.In Zaruba & Zaruba [[2017] FamCAFC 91, [38]–[39]] the Full Court said:
In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. That is because [referring to Stanford] the “express and implicit assumptions that underpinned the existing property arrangements” can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.
However, the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship had taken on quite different characteristics during the period to which the s 79 inquiry is directed.
30.The considerations just discussed recognise that nothing said by the High Court in Stanford calls into question what was earlier said by that court in Norbis v Norbis. There, for example, Wilson and Dawson JJ said:
… Of course, it may be possible and appropriate in many cases to determine the proportions in which the property is to be divided without treating any of the assets separately, but where the interests of the parties differ, a different approach will be open. Section 79, in particular s. 79(4), refers to “any property of the parties to a marriage or either of them” and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. …
31.Thus, the nature of a particular interest or interests in property and when and how it was acquired, utilised, improved or preserved may be very relevant to each or all of three central questions: should a s 79 order be made at all; whether contributions should be assessed “globally” or “asset by asset” or by reference to two or more “pools”; and, what is the nature and extent of each party’s contributions. However, there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest.
(Footnotes omitted; original emphasis)
Her Honour’s s 79(2) finding that “[a]lthough the husband owns most of the [Australian] property … it would be just and equitable” (at [57]) to make an order adjusting those interests, was not challenged before this Court and was plainly open to her Honour.
The values of the Australian property, the Country T property and the parties’ superannuation interests were all uncontroversial.
The husband’s Australian assets were attributed a net value of $1,918,416. They comprised the farm valued at $1,860,000, together with cash, shares and chattels amounting to approximately $600,000 and mortgage liabilities totalling approximately $555,000. The wife’s assets totalled $126,941 and comprised an “interim property settlement” of $100,000, a share fund valued at $25,696; a car valued at $500, and an interest in a company valued at $745. The Australian assets had a total net value of $2,045,357 (at [56]).
The husband’s Country T assets had an agreed value of AUD$1,761,018. The parties’ superannuation interests had a total “value” of $428,948 (the husband’s being $223,468 and the wife’s $205,480) (at [56]).

The Contributions

As her Honour correctly apprehended, the assessment of contributions was to embrace the totality of contributions of all types made by each of the parties not only during their cohabitation but also, where relevant, before and after cohabitation.
Her Honour carefully considered the respective contributions of the parties during the course of their relationship in 20 separate paragraphs of the reasons (at [63]–[73], [76]–[84]). However, apart from four specific matters to which reference will shortly be made, those findings all inform an ultimate finding that during the course of the parties’ relationship, the assessment of their respective contributions of all types should see no disparity between them; that is, they should be assessed as equal. Through his counsel, the husband conceded before her Honour that such a finding should be made.[5]
[5] Transcript, 28 October 2015, p 329.
One of the constituent findings comprising the conclusion just referred to is her Honour’s acceptance, relying principally upon a decision of Watts J in Lee v Hutton,[6] that the (distressing and difficult) steps undertaken by the wife in seeking to become pregnant, and in particular the failure of those attempts, “ought to be taken into account as contributions” (at [81]). There is no challenge to that specific finding. One part of that contribution is not embraced by the ultimate finding of equality of contributions during the relationship because it falls within the pre-cohabitation period: the wife sought to become pregnant, but failed in mid-2007, some nine months before the parties married.
[6](2013) 50 Fam LR 322; His Honour’s decision (in particular at [199] and [202] referred to by the primary judge here) related to satisfaction of s 90SM(4)(c) in respect of a de facto relationship but the principle was held to be analogously applicable.
The second finding falling outside those comprising the finding of equality during the relationship also occurred pre-cohabitation. Her Honour found that the wife made a non-financial contribution to the acquisition of the farm by providing advice as to its purchase as “she had expertise in the area” and “made suggestions about boundary surveys, Occupational Health & Safety issues and insurance” (at [67]).
Thirdly, her Honour found that the wife’s “non-financial contributions … continued well after separation in March 2013 as she looked after the farm while the husband was overseas in May, July and October 2013” (at [75]).
The reference to that particular contribution is the only reference made by her Honour to the contributions of either party made during the post-separation period. The period between separation and trial was approximately two and a half years. That is, the post-separation period was almost half the length of the cohabitation and covered more than a third of the total period over which contributions were to be assessed. The husband occupied the property during the vast bulk of that time.
No ground of appeal relates specifically to contributions during the post‑separation period but, in my respectful view, the husband’s contributions during that time were a very relevant consideration but were not at all referred to by her Honour in the reasons.
The fourth finding falling outside the rubric of equal contributions made during cohabitation relates to the husband’s direct financial contribution to the farm. As has been seen, the husband contributed about $400,000 in cash to its purchase. Her Honour described the husband’s direct financial contribution as “overwhelming” (at [3]); and “significantly greater” than the wife (at [86]).

At the commencement of the parties’ cohabitation the wife had non‑superannuation assets totalling not more than $37,000 (shares, furnishings and a leased car) (at [63]). She owned no real property. The husband had non‑superannuation assets in Australia in excess of $1 million (equity in the farm; plant and equipment; shares; an “interest in Company A”, savings, a motorbike and household furnishings) (at [64]). Expressed in percentage terms, the husband held 96.5 per cent of “the property of the parties or either of them” at the commencement of cohabitation and the wife 3.5 per cent. The nature of the parties’ respective interests in property did not change during the parties’ five year cohabitation.

The Primary Judge’s Contributions Assessment

In seeking to draw her contributions findings to a conclusion expressed in percentage terms, her Honour said:
86.I accept that the weight to be accorded to the contributions made by the parties during the relationship should be equal. The husband did however make significantly greater initial contributions. In my view the appropriate allocation to take into account the contributions of both parties would be 80/20 per cent in the husband’s favour. This would translate as an allocation of property worth $1,636,286 to the husband and $409,071 to the wife.
In leading to that conclusion, her Honour said:
84.Counsel for the husband submitted that equal weight should be accorded to the parties’ respective contributions during the marriage but that the property division should be weighted very heavily in the husband’s favour taking into account his vastly superior initial contributions. He submitted the division of the Australian property on contributions should be 95/05 percent in favour of the husband. That in round terms would translate as the husband taking property to the value of $1,943,089 and the wife $102,268. In my view this would be a grossly inadequate recognition of the wife’s contributions. The value of [the farm] alone increased by $790,000 during the relationship while both parties were making contributions of equal weight. That increase represents approximately 39 percent of the non-superannuation Australian property.
The Court was taken to no evidence of the value of the husband’s Country T assets at the commencement of cohabitation, but they had a value at trial of over $1.7 million (at [56]).
The importance of the increase in value of the farm which was, of course, the single most valuable asset the subject of the proceedings, was flagged in an earlier finding made by her Honour:
74.During the marriage the value of the property increased from $1,070,000 to $1,860,000, an increase of $790,000. Both parties made financial contributions to the farm. The specific amounts were not specified but I accept the vast majority were from the husband.
Counsel for the wife submits that no challenge is made by the husband to any findings of fact; no challenge is made to the adequacy of her Honour’s reasons and no error is made in the identification of contributions. Therefore, it is said, the asserted error must be in the calculation of contributions and the calculation of contributions is a quintessentially discretionary task that has not been demonstrated to be erroneous.
It is submitted on behalf of the husband that we should infer that her Honour has arrived at her conclusion as to contributions merely by according to the wife a percentage representing half of the percentage increase in the value of the farm. Although not framed with precision in terms of discretionary error, I apprehend that the gravamen of the argument is that her Honour’s discretion was guided by irrelevant considerations or, alternatively, that the increase in value was the sole factor guiding her Honour’s discretion such that her Honour thereby failed to take account of other relevant considerations.
That inference urged upon us might be seen to gain some force, at least in my view, from the fact that, as will be seen, her Honour’s assessment of “the s 75(2) factors” is “cross‑checked” by means of a calculation of future income lost by the wife. A similar process is said to be the basis, inferentially, of a mathematical assessment of contributions. There is no doubt that her Honour’s contributions assessment aligns with a percentage representing one half of the value of the farm.
In the context of what I regard, with respect, as comprehensive and careful reasons, I am not prepared to draw the inference urged upon us.
However, as it seems to me, the increase in value of the major asset the subject of the proceedings and the importance her Honour explicitly attached to it (“while both parties were making contributions of equal weight”) cannot be gainsaid as a fundamental premise for her Honour’s conclusion as to the contributions of the parties.
Her Honour was, of course, entitled to take account of the increase in the value of the major asset the subject of the proceedings and to take account of the contributions of all types made by each of the parties (including, of course, indirect financial contributions and contributions, relevantly, as a homemaker) during the period in which the value increases. However, her Honour considers only one such matter: the equal contributions that each party made during their relationship; in my respectful view her Honour does not at all take account of other relevant considerations in that respect.
Joint expert evidence as to the valuation of the farm was as to its value very shortly before the trial. The farm was purchased by the husband about a year before cohabitation commenced. The increase in value embraced a period of about eight and a half years,[7] which included the period of cohabitation and the approximately two and a half year post-separation period (which represents about 30 per cent of the cohabitation period). Obviously, contributions made by the wife, equal to those made by the husband, during the period of cohabitation were also relevant to the increase in value over the whole of the eight and a half year period. However I am unable to see how the contributions made during nearly a third of that period, when the husband occupied the farm, could be assessed as anything other than favouring the husband.
[7]The husband purchased the property “before [he] moved to [East Asia]” (at [8]); the husband “moved to [East Asia]” in early 2007 (at [7]) and the property was valued about a month before trial in September 2015 (Affidavit of Joint Expert Valuer filed 20 October 2015).
The joint expert opined that almost all of the value of the farm was attributable to the per hectare value of the land and almost none to any improvements on the land, including the homestead. Market value was ascertained at the commencement of the relationship by the arms-length purchase of the property. Market value was the determinant of value as at trial. Market forces in respect of land which the expert said was regarded highly for its farming potential and “tightly held” were attributable to the increase in value. The husband’s capital permitted of entry into the market whose forces permitted of the increase in value. There was no evidence that any specific contribution or contributions by the parties impacted upon the increase in value of the farm. Her Honour does not at all refer to either of those considerations when considering that increase in value.
The increase in value of the farm and the finding which her Honour made in respect of it were central to her Honour’s ultimate percentage assessment of the respective contributions of the parties. Respectfully, those findings failed in my view to take account of the material relevant considerations to which I have referred.
I am also of the view that her Honour failed to take account more broadly of the contributions of all types made by each of the parties in the two and a half year post-separation period which, in the context of a marriage of this duration, were very relevant.
Despite the careful and cogent submissions of counsel for the wife, I am of the view that her Honour did in fact make an error “in the identification of contributions”. Equally, while it is true that the percentage or dollar assessment attributed to the contributions assessment is a quintessentially discretionary task, I consider respectfully that her Honour erred by failing to take account of the relevant considerations which I have just outlined.

The Section 75(2) Factors

Her Honour considered that reference to the matters relevant in respect of s 79(4)(e) should see an additional 20 per cent (about $400,000) added to the 20 per cent assessed as the wife’s contributions assessment.
In arriving at that assessment, her Honour carefully considered all of the matters relevant to s 75(2) in a series of findings at [87] – [100]. Her Honour’s findings included:
·At the time of trial the wife was aged 53 years; the husband 57 years.
·The wife is suffering from mixed anxiety and depression. The husband is in good health.
·The wife is employed part time three days a week earning $65,550 per year (employment with a full time equivalent salary of $100,000 a year). The husband was “unemployed apart from his work on the farm which he declared was generating a loss of $261 per week” but contended that he was actively seeking employment.
Although the parties’ superannuation interests at the date of trial were approximately equal her Honour found that:
94.The wife’s retirement savings have also been adversely affected by the marriage. She made no contributions to her superannuation from [late] 2007 when she resigned from [Company B] until she obtained her job at [Company C] in [late] 2010 and again from [early] 2013 until [early] 2014. When she did contribute to her superannuation it was at a lower level than previously because of her lower income.
…
96.… [The husband] was able to continue to make superannuation contributions throughout the marriage, albeit at a modest level. His capacity to continue to contribute to his retirement income is likely to continue unabated.
Her Honour also took account of the fact that the husband had “significant financial resources in the form of his [Country T] assets which at the time of trial had a value of AUD$1,761,018” (at [97]).
In addition, her Honour found that the husband had “a new partner and a young child to support” and that there was “no evidence about whether or when [the husband’s new partner] will return to paid employment and, if so, how much she will earn”. Ultimately her Honour found that the husband “has significant resources and is able to comfortably support himself and his dependents” (at [99]).
The husband, although having “periods of unemployment during and after the relationship” is, as her Honour found, an “experienced … consultant and commodity trader and has a history of well-paid employment” and each period of unemployment “came about as a result of his voluntary retirement” (at [96]). Her Honour also found that the “weight of the evidence suggests he is not likely to be unemployed for long” (at [96]).
None of those findings is the subject of appeal or a notice of contention.
By way of contrast, her Honour found that the marriage has had a dramatic impact on the wife’s capacity to earn income.
She gave up a “prestigious and well-paid position in order to move to [East Asia]” and “[h]er resignation in 2007 to move to [East Asia] with the husband marked the end of her fulltime employment and heralded years of intermittent and part‑time employment and at much lower remuneration” (at [88]). The wife “sacrificed her own employment opportunities to be with the husband” for the second time when she obtained a job in East Asia only to move back to Melbourne with the husband consequent upon his transfer to that city (at [89]).
The primary judge explicitly found that:
93.The adverse impact of the marriage on the wife’s income earning capacity is a particularly weighty consideration in this case as it will affect her for years to come and likely for the rest of her working life.
I am entirely unpersuaded by – and indeed, with respect, I have some difficulty in understanding – the argument on behalf of the husband based upon the assertion that error is revealed by evidence to the asserted effect that the wife had not provided evidence “of attempts to obtain employment for … a significant period of time” (Ground 5.3).
The reference is, apparently, to a period of about 15 months before trial[8] when the wife was working part-time and during which she was caring for her elderly mother who had suffered a stroke. In argument before her Honour, counsel for the husband submitted “that the wife was only working part time because of her obligations to care for her mother” (at [91]). Her Honour did not accept that submission and was satisfied that in fact, the wife lived with her mother “because she could not afford independent accommodation” and because “as she did not have a full-time job, she was in a position to care for her mother” (at [91]).
[8]Appellant’s Summary of Argument, paragraph 30.
There can be no doubt that the wife sacrificed her position as a CEO of an organisation with a salary package of $180,000 per year in order to marry the husband and be with him in East Asia (a situation that prevented him needing to sacrifice his employment to marry and cohabit with the wife). Indeed, the husband conceded that “the only way the parties were going to be able to live together was if the wife sacrificed her job at that time” (at [88]).
Equally, there can be no dispute on the evidence before her Honour that the wife “sacrificed her employment” for a second time – this time an employment opportunity in East Asia obtained after much searching. Again that sacrifice was made so that the husband did not sacrifice an employment opportunity offered to him.
The wife has not been able to obtain a job of equivalent “status” or salary as the job she sacrificed initially and that the reason for that was inextricably linked to the marriage and its duration. Equally, uncontroversial evidence established that the wife had, over an approximate five year period embracing periods both pre-separation and post-separation actively sought, and applied unsuccessfully for, a number of positions seeking to re‑establish her place in the remunerative employment market.[9]
[9] Affidavit of wife filed on 1 October 2015, “Annexure A”.
Her Honour was, with respect, entirely correct in taking account of the evidence that she did and according it significant weight.[10]
[10] s 75(2)(k).
A separate part of the husband’s argument contends that the finding that the wife’s reduced capacity to earn income is likely to continue “for years to come and likely for the rest of her working life” (at [93]) is without a sufficient evidentiary foundation (which, despite rather than because of, the terms of Ground 5, I take to be the argument advanced).
Of its nature within s 79 proceedings, s 75(2) requires predictions to be made about a variety of future possibilities.[11] The making of predictions with respect to specific relevant matters within s 75(2) also recognises that s 79(4)(e) involves a wide discretion and is but part of a further wide discretion inherent in s 79(4). Because s 75(2) contemplates and requires at least some predictions, it must consequently be open to a primary judge to make predictions as to the future based on evidence as to the past and the present and inferences drawn from it.
[11]For example: the future capacity for gainful employment: s 75(2)(b); future support of children: s 75(2)(c); the future support of other people: s 75(2)(e); future standard of living: s 75(2)(g); the extent of a marriage’s impact on future earnings: s 75(2)k); whether cohabitation with another person and any financial support associated with it will continue: s 75(2)(m).
Of course, those inferences and predictions must be seen to have an evidentiary basis in past and present facts. Specifically, it is open to a primary judge to make predictions as to a capacity to earn income and its likely nature and level, provided the evidence establishes past and present facts from which the prediction, based on inference, can be seen to have validity in the exercise of discretion.
Here, it is a fact that the nature and “level” or “status” of the wife’s pre‑marriage employment, and the salary, benefits and future prospects commensurate with it, had not been able to be re-established by the wife over a period of nearly eight years to the date of trial. The wife’s position exists despite (as her Honour correctly found) genuine and repeated attempts to re‑establish the same.
The wife was the CEO of an organisation pre-marriage. At the time of trial she was working part-time and her employment “was being extended on a month-to-month basis” (at [23]). The wife was aged approximately 44 years when she ceased her pre-marriage employment and 52 years[12] by the time of trial. Although not referenced specifically by her Honour, the state of the employment market generally and the difficulties confronting a 52-year-old woman suffering from anxiety and depression who has not held a full-time position for a number of years are, in my view, sufficiently notorious[13] so as to inform a general conclusion sufficient for a judge’s broad consideration of that factor as but one (albeit a very significant) factor within the broad discretion embraced by s 79(4)(e).
[12]Her Honour finds (at [87]) that the wife was “aged 53”, which she was when the judgment was delivered. However, according to her Application, the wife was born on 25 April 1963 and therefore aged 52 years at trial.
[13] Evidence Act1995 (Cth) s 144.
In addition, her Honour had opinion evidence from a psychologist (none of which was objected to) that the wife’s diagnosed “adjustment order with depression” was “primarily attributable to the end of the marriage, the circumstances in which it occurred and the loss of her career” (at [37]). The psychologist gave evidence that she expected “that when the court case has been finalised and [the wife] is able to focus on living without further threat to her future, she should recover” but that the wife’s “recovery may take longer than would typically be expected”.[14]
[14]See quote at [40] of her Honour’s reasons.
That evidence and those findings are, in my opinion, certainly sufficient to sustain her Honour’s ultimate finding that a limited capacity to earn future income is a “particularly weighty consideration in this case”.
However, the intervention of this Court is said to be required because that evidence and those findings are not sufficient to sustain a finding that the limited capacity will “affect [the wife] for years to come and likely for the rest of her working life” (at [93]) and, further, it is said that those specific findings are material to the exercise of her Honour’s discretion.
In my opinion, her Honour’s finding may not attract the intervention of this Court if it can be seen as merely descriptive of the weight attributed to that particular factor as a means of comparison with her Honour’s assessment of the weight attached to other factors within her Honour’s overall assessment.
I am, however, unable to persuade myself that her Honour’s finding can be seen as so limited.
The primary reason for my conclusion in that respect is that her Honour’s particular finding that the impact is likely to be for “the rest of [the wife’s] working life” is linked to a calculation undertaken later in the reasons. As will shortly be seen, that calculation was expressed to be as a “broad cross-check” by which her Honour attempted to quantify the impact of what her Honour specifically said was the “most significant of the section 75(2) factors, namely the diminution in the wife’s income earning capacity as a result of giving up her employment to marry the husband and move with him to [East Asia]” (at [105]).

The calculation was performed by reference to a period of years that moots the whole of the wife’s working life to age 65 years. Her Honour’s finding as to a diminution in income for the rest of the wife’s working life was not merely a descriptive device; it is “cross-checked” with a finding as to a specific time frame founding a dollar value of a factor which her Honour considered was of overwhelming importance.
For reasons I will now seek to explain, I consider her Honour’s calculation to be, with respect, fundamentally flawed. Irrespective of that conclusion, the finding that the wife’s employment capacity would be impeded for the totality of her working life can be seen to have a fundamental and specific purpose in arriving at a s 75(2) assessment rather than merely being a comparative description of a broad finding relevant to one factor within that process.
Seen in that light, I am unable to see an evidentiary basis upon which her Honour’s inference or prediction is based.

The Calculation

At [105], her Honour said this in respect of the calculation just referred to:
By way of broad cross-check I have attempted to quantify the impact of the most significant of the section 75(2) factors, namely, the diminution in the wife’s income earning capacity as a result of giving up her employment to marry the husband and move with him to [East Asia]. I compared the wife’s net income when she was CEO of [Company B] and her net income at the end of the trial. At [Company B] she was earning $180,000 per annum inclusive of superannuation. Assuming the superannuation component was approximately 10 percent, the salary component would have been $164,000 in round terms. According to the Australian Tax Office website, the tax and Medicare levy on that income would be $51,907 leaving net income of $112,093 plus superannuation of $16,400. On her income of $66,550 at the time of the trial, the salary component would be approximately $60,000. Tax and Medicare of $12,247 would be payable leaving $47,753 in net income plus superannuation of $6,500. The difference in net income is $64,340 a year. If the wife retires at 65 years of age that difference over twelve years would amount to $772,080. As a result of these orders she will take $46,063 more than that. However, this rough calculation relates to only one of the s75(2) factors (albeit the most significant one) and not to the rest of those factors or the wife’s contributions. I am satisfied that the result is just and equitable in all the circumstances despite it requiring a higher cash payment to the wife than sought by either party.
(Emphasis added)
As I apprehend at least some parts of the oral argument by counsel for the husband, it appears to be contended that her Honour had, contrary to principle, used a mathematical calculation of one factor in order to arrive at her s 75(2) assessment. That can be rejected readily; it is apparent from the reasons that her Honour arrived at a conclusion as to s 75(2) before conducting any calculation or “cross-check”.
A different aspect of the argument contends, again as I apprehend it, that the calculation speaks of an erroneous approach which equates a broad assessment of relevant s 75(2) factors, including the place of an assessed very weighty factor, with compensation to the wife for what has allegedly been lost. What was said in Douglas and Douglas[15] pertains:
[15] (2006) FLC 93-300 per Warnick J.
43.… In particular, I consider that the concept of compensation for income lost during a marriage (of itself) and compensation for a loss of living standard (of itself) are not factors which ought influence the outcome of a property settlement. In Beck and Beck (No2) (1983) FLC 91-318 the Full Court said:
“With respect to maintenance there is, we agree, no concept of compensation for loss of expectations in the Family Law Act. The underlying concepts in sec. 72, 73, 75 and 76 are first the appropriate needs and financial circumstances of the party or child whose claim for maintenance is under consideration and, secondly, the capacity of the respondent to the application.
…
In determining a maintenance claim, a Court having determined the needs of the person or persons on whose behalf the application has been made then looks at the capacity of the respondent to pay. There are no other relevant issues and certainly the question of compensation for past loss is not relevant to the determination.
Past conduct may be an issue in determining the mechanics of an order, how it is to be implemented, or whether or not there should be security but it is not an issue in determining quantum. Section 75(2) is directed to the factors to be considered in making an appropriate assessment under sec. 72 for the party whose maintenance is under consideration, an assessment just to both parties and to children, it is not in any way at all directed to compensation.
In considering a claim under sec. 79 of the Act, the Court is enjoined to look at contribution as therein defined. The Court is then directed to take into account such parts of sec. 75(2) as are relevant. Conduct, except for financial conduct, is not an issue and even as to financial conduct there is no element of compensation. The question is still the assessment of an appropriate amount which would result in financial justice between the parties taking into account all of the facts relevant to the particular case.” (at 78,166-78,167) …
(Emphasis in original)
I do not consider that her Honour applied erroneous principles similar to those of the primary judge in the case just referenced.
However, the specific calculation based on a calculation of what has been lost – albeit as a “cross-check” – risks that comparison. It will have been seen by reference to the emphasised passages from [105] of her Honour’s reasons quoted above that what commences as a cross-check of a specific s 75(2) factor becomes a calculation of that factor said to inform the justice and equity of the result of the entire s 79(4) exercise. The risk to which I have referred is increased concomitantly.
Even if the calculation was confined to its stated purpose of “quantify[ing] the impact of the most significant of the section 75(2) factors”, in my respectful view the calculation is flawed fundamentally in any event.
The calculation is of the present value of a sum mooted as being received, without variation, some twelve years into the future. Leaving aside any criticism of the figures used in the calculations, the sum arrived at needed to be discounted to take account of its present receipt. No discount was made.
Secondly, and no less importantly, that discounted figure needed to be further discounted for future contingencies that might impact on (the assumed constant) income figure or working period used in the calculation. Many such contingencies are familiar to calculations of future loss in other areas of the law and should impact here if the calculation is to have some validity. They include, but are not limited to: early death; the possibility that the wife might in fact receive more than is mooted; that economic or other factors might see her earning less, particularly as she gets older; that she might retire earlier than the assumed age 65 years; that she might suffer accident or injury that impacts on her future working life and the like.
Further, the wife’s working life embraced all of the period prior to the marriage which she entered when she was not quite 44 years. At that time, her working life (for whatever reason or reasons) saw her owning no real property and extremely modest assets otherwise. An inference or prediction of the impact of the marriage on the wife’s future working life post-marriage embraces the whole of the wife’s past working life, not merely that part of it which includes the approximately five years of marriage.
Counsel for the wife argues that the calculation undertaken by her Honour should not be seen as material in informing either her Honour’s s 75(2) assessment or the overall result arrived at by her Honour. Despite counsel’s persuasive submissions, they must in my view be rejected. As I have sought to demonstrate, her Honour’s calculation was central to her Honour’s decision in each such respect and, despite her Honour referring to it as a “cross-check”, her Honour’s reasons posit it clearly as material.
I am conscious that her Honour appears to have attempted to obtain a meaningful quantification of what is a broad discretion and which is frequently criticised as somewhat arbitrary. However, her Honour’s approach is in my respectful view flawed; her Honour attributes to that process a dollar value which in my respectful view it cannot have and, in turn, uses that flawed dollar value as a central part of her determination. If cogency is sought to be given to an assessment by means of a chosen calculation, serious deficiencies in the calculation must necessarily impact upon the cogency of the assessment it seeks to inform and renders it unsafe.

The Range

As has been seen, the central challenge mounted by the appellant in respect of both her Honour’s assessment of contributions and s 75(2) is that each falls “outside an acceptable range particularly having regard to the short period of cohabitation and the overwhelming financial contribution made by the [husband]”. The issue of what is, or is not, “an acceptable range” plainly arises for consideration on this appeal as indeed it did before her Honour.
In Rodgers & Rodgers (No.2)[16] the Full Court set out the principles emerging from a number of decisions of the High Court and said the following:
74.If we are to conclude that her Honour’s decision is “plainly wrong” or “falling beyond the bounds of a reasonable exercise of discretion” because of something other than a shared “second opinion”, we should be able to answer an additional question: “plainly wrong or unjust by reference to what?” …
[16] (2016) FLC 93-712 (“Rodgers”).
In a later decision of Wallis & Manning[17] the Full Court said:
41. The assertion of a “range”, without more, cannot (and indeed should not) assist a trial court in the exercise of the relevant discretion. In the context of an appeal, while “the area of immunity from appellate interference” is marked by that same “generous ambit of reasonable disagreement” inherent in a very wide discretion, a ground or argument which asserts that a result falls outside “the range reasonably available in the circumstances” or that a result is “plainly wrong” does not illuminate error; rather, it begs the question of how such an error is to be illuminated.
(Footnotes omitted) (Emphasis added)
[17](2017) FLC 93-759 (“Wallis”).
The Full Court in that case also said:
56.With respect to his Honour, we are unable to agree that anything said by the Full Court in Fields & Smith “decries” the use of comparable cases, although the Full Court there make it plain, and with respect we agree, that if comparable cases are used to inform the discretion, some analysis of those cases so as to ascertain their comparability should be undertaken. So much is also entirely consistent with what the High Court has said in Barbaro, above, in respect of a different wide discretion informed by statutory criteria.
57.We respectfully agree with the Full Court in Petruski that “[w]hat another judge may do in another case on the basis of the facts in that case can rarely if ever determine what is done in the case at hand” and what is also said to similar effect in Daymond, above, and Claughton, above. It is axiomatic that, in a guided but otherwise unfettered discretion the result in another case, or indeed in many other cases, cannot determine the result in the case under consideration. If it did, the discretion would be improperly fettered.
…
67.While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79.
68.The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”. Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases” – with consistency as its aim.
69.It is nevertheless also important to recognise, as Gibbs CJ did in Mallet that earlier decisions:
… do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.
(Footnotes omitted) (underlined emphasis added)
At [103], her Honour said:
Counsel for the husband submitted that the wife should only be allocated an additional 10 percent on account of the section 75(2) factors, resulting in an overall distribution to her (on his case) of 15 percent of the value of the Australian assets. On his figures the amount to be paid to the wife would be $177,252.20. He submitted this was in line with a range of “short marriage” cases. However in many of those cases the party who contributed significantly less to the combined property pool returned to employment with income roughly equivalent to what they were earning at the commencement of the relationship. The current case is clearly distinguishable on that basis.
(Emphasis added)
The point sought to be made in the two decisions of the Full Court from which I have earlier quoted is that “‘what has been done in other (more or less) comparable cases’ – with consistency as its aim” can be, and very frequently should be, a relevant consideration in the exercise of discretion, particularly in respect of contributions, because a consistency in the jurisprudence should be one of a number of factors relevant to what is just and equitable.
That was at the heart of the submission made to her Honour on behalf of the husband and it cannot be doubted that her Honour engaged with that submission. That submission on behalf of the husband both posited a “range” and submitted that cases to which her Honour referred were comparable and linked broadly via a descriptor (“short marriage cases”). There can be no doubt that the cases were submitted to her Honour as a centrally relevant matter in informing the justice and equity of her Honour’s determination.
It is not contended before us that her Honour erred in the only point of distinction referred to in that paragraph of the reasons, although counsel for the wife helpfully pointed to each of two cases referred to in the proceedings which did not meet that description. That notwithstanding, I accept that her Honour’s reference is to “many of”, and not all of, the cases cited to her Honour.
As her Honour said, she was referred to a number of cases by counsel for the husband and one of those cases (Russo & Dorsey and Anor[18]) itself referred to a number of cases that might fairly be described as “short marriage cases”. It should be reiterated immediately that there is no magic or particular significance in the nomenclature “short marriage cases”; it serves merely as a descriptor for seeking to group together and compare relatively alike with relatively alike.
[18] [2014] FamCA 467 (“Russo”).
Reference to the transcript reveals that counsel sought to advance those cases as a relevant consideration in the exercise of her Honour’s discretion in the manner to which I have just referred. A summary of the cases referred to during the proceedings before her Honour (including those referred to within Russo), is as follows.
Blanks & Blanks[19] involved a relationship of nearly six and a half years where the net assets at trial amounted to approximately $3.76 million. There were no children of the relationship, although each party had children from previous relationships. Nearly all of the assets were introduced by the husband; the wife’s initial financial contribution was limited to approximately $40,000. The husband was the primary income-earner during the relationship, although the wife (a nurse) earned income intermittently during the relationship and cared for the husband when he was injured on numerous occasions. At the commencement of the marriage, the wife had a $15,000 debt which the husband repaid. There were gaps in the evidence as to the increase in value of a professional practice (which was a significant asset at the date of marriage) and other properties and entities the subject of the proceedings. Contributions were assessed in the proportion 92.5 per cent to the husband and 7.5 per cent to the wife. Watts J assessed s 75(2) as 5 per cent to the wife. The wife therefore received 12.5 per cent of the property.
[19] [2006] FamCA 354.
In Douglas and Douglas[20] the Full Court considered a nearly five year marriage in which the net assets at trial amounted to approximately $3.5 million. There were no children of the relationship. The husband’s initial contribution of about $2.5 million significantly outweighed the wife’s comparatively smaller contribution of about $85,000 (which included equity in a house which, during the relationship, increased in value by about $100,000). The husband’s income during the relationship far outweighed that of the wife, who ceased employment upon marriage to the husband. Prior to the marriage, the wife had been working as “a bank teller for the previous 10 years, working an average 32 hour week for $22,000 gross per annum”.[21] The wife’s indirect contributions to the marriage included as homemaker, and assisting with “bookwork and general administrative functions”[22] in the husband’s business. In the re-exercise of discretion, the Full Court assessed the husband’s contributions at 95 per cent and the wife’s contributions at 5 per cent. A further 3.3 per cent adjustment was considered appropriate in accordance with s 75(2) factors such that the wife received an overall distribution of 8.3 per cent of the net assets.
[20](2006) FLC 93-300.
[21]At 81,069 [27].
[22]At 81,070 [35].
Hsieh & Chow[23] involved a five and a half year marriage with no children (although the husband had two daughters from his previous marriage). At trial, the net assets of the parties amounted to $465,000. Notably, this amount did not take into account substantial assets obtained by the wife in Korea prior to the marriage. The primary judge found that the husband “could not claim that he made any contribution to the acquisition, conservation or improvement”[24] of those Korean assets. The same approach was adopted in respect of certain assets held by the husband (though the value of those assets was marginal in comparison). The assets against which contributions were assessed largely comprised the former matrimonial home to which both parties had contributed financially, but where the wife’s contribution was almost double that of the husband. The primary judge found that an increase in the property’s value of about $157,000 was “simply a windfall”.[25] Contributions were assessed at 65 per cent to the wife and 35 per cent to the husband, with a further 5 per cent adjustment to the husband in respect of s 75(2) factors. The overall result saw the wife receiving 60 per cent of the property and the husband 40 per cent.
[23][2007] FamCA 470.
[24]At [69].
[25]At [76].
Kennon v Kennon[26]
involved a five year relationship where the husband’s financial contributions “overwhelmed” that of the wife. There were no children of the relationship, though the husband had four children from previous marriages. By the time of trial, the net assets of the parties amounted to $8.8 million of which $8.7 million was contributed by the husband at the commencement of the marriage. During the relationship, the wife worked on and off for the husband, contributed to his business “to a small extent” and cared for the husband’s children when they visited. The Full Court considered that it would be “better to award a monetary figure” as opposed to a percentage figure, and considered that “a figure of $400,000” adequately reflected the contributions of the wife.[27] A further $300,000 was considered appropriate pursuant to s 75(2) such that the wife received an overall adjustment of $700,000. In words that have resonance for the instant case, the Full Court observed that “[t]he wife made her contributions for five years. Now she is older, earning less and has little by way of assets”.[28] The Full

Court went on to say, also pertinent in the present case, “the wife’s income earning capacity at trial and for the future has deteriorated from what it was at the time cohabitation commenced and that this is, to a significant degree, attributable to the marriage and mutual decisions made by the parties during the marriage”.[29] Although eschewing assessments expressed in percentage terms, it can be observed that the re-exercise by the Full Court saw the wife receiving approximately 4.5 per cent by way of contributions and a further approximate 3.5 per cent pursuant to s 79(4)(e); an overall result of 8 per cent to the wife.
[26](1997) FLC 92-757.
[27]At 84,305.
[28] At 84,305.
[29] Ibid.

Russo involved an approximate three year relationship with net assets at the time of trial of $4.47 million. There were no children of the relationship, though both parties had adult children from previous marriages. The husband’s initial financial contribution amounted to “at least” $5 million and the wife contributed approximately $100,000. During the relationship, the husband made the far greater financial contribution, though the wife’s earnings from periods of employment were also contributed to the household. The primary judge also found that the wife was the primary homemaker and supported the husband’s children from previous marriages when they lived with the parties from time to time. Contributions were assessed at 95 per cent to the husband and 5 per cent to the wife. A further 3 per cent adjustment was made to the wife pursuant to s 75(2) such that the overall distribution was 92 per cent to the husband and 8 per cent to the wife.
In Shewring and Shewring[30] the wife, in a seven year relationship, “made all the major capital contributions”[31] that resulted in total assets at the time of trial of approximately $670,000. There were no children of the marriage, although the husband had two children from a previous marriage. The husband introduced no significant assets to the relationship though he contributed manual labour to various renovations. In the Court below, the primary judge found that although, during the marriage, the parties’ contributions in respect of “daily expenses of cohabitation and to the preservation and maintenance of the property”[32] was effectively equal, the wife expended considerable monies on improving the matrimonial home (though “there was no evidence as to the effect on the valuation of the expenditure of those moneys”[33]). The Full Court found that the primary judge “attached too much weight” to the husband’s contributions and re-exercised its discretion to order a payment of $12,500 to the husband with no further adjustment in respect of s 75(2).
[30](1988) FLC 91-926.
[31]At 76,695.
[32]At 76,695.
[33]At 76,694.
Finally, the Full Court in W & W[34] considered a five and a half year marriage involving assets at the time of trial of about $2 million. There were no children of the marriage. Both parties operated small businesses during the relationship, however, the wife’s income throughout the marriage was insufficient to cover her living expenses and outgoings (which were largely met by the husband). The Full Court concluded that the husband’s financial contributions during the marriage were overwhelming. Furthermore, the wife lost a considerable sum of money in a bad business venture pursued by her after separation and without the husband’s consent. The Full Court described the investment as “commercially dubious”. As a result, the Full Court in re‑exercising the discretion, assessed contributions at 95 per cent to the husband and 5 per cent to the wife with a further 2.5 per cent to the wife pursuant to a s 75(2) adjustment. It was noted that if the loss from the failed business venture was included, the overall result to the wife was 15 per cent of the parties’ assets.
[34]Unreported, Full Court of the Family Court of Australia, Baker, Lindenmayer and Smithers JJ, 28 January 1997.
In reiterating what was said by the Full Court in both Rodgers and in Wallis, I seek to emphasise that no error can be asserted by reason of her Honour failing to determine the case or its component assessments by reference to comparable cases cited to her. However, what has been decided in those earlier cases, in particular by Full Courts, is in my view a highly relevant matter which required consideration by her Honour. Her Honour plainly, and with respect correctly, considered them relevant.
The only factor informing her Honour’s consideration of the comparable cases as a factor relevant to the exercise of her discretion was that which is contained in [105] quoted above. While her Honour referred to that one matter in seeking to highlight a distinguishing characteristic of (“many of”) the cited cases rendering them, as her Honour found, dissimilar with the present case, a comparison of their similarities is, with respect, entirely lacking from her Honour’s consideration.
One of those cases, Hsieh, speaks of a result similar to that arrived at by her Honour. However, if that case or features of it were instrumental in informing her Honour’s assessment, it is not apparent from her Honour’s reasons. Nor do any reasons indicate the features of that case have been compared with the features of the other cases cited to her so as to inform a conclusion of dissimilarity with the present case. Her Honour’s reasons do not reveal any consideration at all of the factors within those cases which favoured comparability with the facts before her. I am unable to see where her Honour gave any explicit reasons for rejecting what was submitted to her as matters of genuine comparability.
Failure to undertake that analysis is, in my respectful view, a failure to take account of relevant considerations in the exercise of discretion and manifests an inadequacy in the reasons.

The Conclusion

For the reasons I have outlined, I am respectfully of the view that her Honour has erred in her assessment of contributions which can be summarised as failing to take account of relevant considerations, namely:
(a)the respective contributions of both parties in the post-separation period which such factor has significance because of the length of that period in the context of the length of the parties’ marriage and cohabitation;
(b)contributions made by the husband relevant to the increase in value of the single most valuable piece of property the subject of the proceedings, particularly where the increase in value was accorded particular importance by her Honour in the assessment of contributions; and
(c)the assessments of contributions in cases comparable with the present.
I am also respectfully of the view that her Honour has erred in the assessment of s 79(4)(e) by arriving at a material conclusion that the wife’s reduced capacity to earn income will “affect [the wife] for years to come and likely for the rest of her working life” without a sufficient evidentiary foundation and in so concluding by taking account of an irrelevant consideration, namely a flawed calculation of a projected loss of future income.
I also consider, with respect, that in exercising her discretion so as to arrive at a conclusion that the property of the parties or either of them should be divided in the proportion 60 per cent to the husband and 40 per cent to the wife, her Honour failed to take account of a relevant consideration, namely the assessments of just and equitable outcomes in cases comparable with the present.
In my view, the appeal should be allowed and the orders of Judge Hughes should be set aside.

Remitter or Re-exercise?

The husband contends that we are unable to re-exercise the relevant discretions without receiving additional evidence of the facts and circumstances pertaining as at the date of the hearing of the appeal, including what has occurred in the period between trial and the appeal.
He points to the fact that it is now over four and a half years since the parties separated in circumstances where the marriage subsisted for about five years. He asserts that, in those circumstances, evidence is required of post-separation contributions and, in particular, in respect of s 79(4)(e) and a fresh valuation may be required before this Court could safely exercise the relevant discretions.
Unfortunately for the parties, the principle which demands that any re-exercise by this Court be undertaken by reference to the facts and circumstances applicable as at the date of the hearing of the appeal,[35] lends considerable weight to those contentions. (Of course, there is nothing to prevent the parties from agreeing to an outcome that would prevent a further trial with its attendant stress and expense).
[35] Allesch v Maunz (2000) 203 CLR 172.

Costs

As is customary, for reasons of expedition and in order to save the parties further expense, the Court sought submissions in respect of costs in respect of each of its potential outcomes.
The appeal has succeeded. It has done so on a question of law. The circumstances are such that I am not persuaded of any “justifying circumstances” within the meaning of s 117(2) of the Act. The consequence is that, in my view, the parties should each bear their own costs of and incidental to the appeal.
In those circumstances, each of the parties asks for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). I consider it appropriate for those certificates to issue.

ALDRIDGE & CLEARY JJ

We have read the reasons of Murphy J and agree with his Honour’s reasons up to [93]. We also agree that, the appeal having been successful, the appropriate order is for the matter to be remitted to the Federal Circuit Court and for the parties to be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and rehearing. However, we respectfully disagree with the balance of his Honour’s reasons, including his Honour’s conclusion at [113] that the primary judge erred in her treatment of the comparable cases cited to her because “[h]er Honour’s reasons do not reveal any consideration at all of the factors within those cases which favoured comparability with the facts before her” (emphasis in original).
We do not consider that the existing authorities obliged the primary judge to consider the comparable cases at all, let alone obliged her to conduct an analysis of the comparable cases so as to identify both the factors that indicate a lack of comparability and those that do not.
It is necessary first to say something about Wallis & Manning (2017) FLC 93‑759 (“Wallis”), which is the most recent authority of this Court on the use of comparable cases. Wallis stands as authority for the following proposition, as stated by the Court in that matter (Thackray, Ainslie-Wallace and Murphy JJ):
63.To the extent that any or all of those cases stand for the propositions that comparable cases cannot or should not be used by trial judges in seeking to promote consistency in results in arriving at just and equitable assessments or suggest that the Full Court cannot or should not have reference to comparable cases in determining if a trial assessment is “plainly wrong” or are otherwise “unhelpful” within that process, we respectfully disagree and would hold to the contrary.
…
67.While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79.
68.The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”. Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases” – with consistency as its aim.
(Footnotes omitted)
It is important to note at this stage that the Court there did not suggest that comparable cases could or should be used to set a range or a norm by which cases should be determined. However, if the aim in the use of comparable cases is “to promote consistency in results” or for similar cases to be treated similarly, then we respectfully suggest that is, in fact, the identification of a norm of some kind.
This is significant because, as Kirby P (as his Honour then was) observed, a number of judges have indicated that they derive no help from comparable verdicts (although his Honour did comment that this “visceral” approach was preferred by many to “scientific analysis”). His Honour’s reasons make plain his preference for the latter: Moran v McMahon (1985) 3 NSWLR 700 at 708 (“Moran”). However, we confess to being among that number who feel that we do not derive assistance from cases said to be comparable.
In Wallis, the Court relied heavily on recent sentencing decisions of the High Court. The Court did not, however, refer to a number of High Court decisions which have eschewed the use of comparable verdicts in civil personal injuries cases to establish a norm or standard and which have, in the main, been consistently applied by intermediate appellate courts.
In Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 (“Planet Fisheries”) at 124–125, the Court said:
…In support of this submission we were referred to what our brother Windeyer said in Chulcough v. Holley, and to the following cases as establishing such a norm or standard of the amount to be awarded for general damages in the case of injuries and disabilities of the kind experienced by the plaintiff: Bresatz v. Przibilla; Teubner v. Humble; Watts v. Rake; Australian Iron and Steel Ltd. v. Greenwood; Purkess v. Crittenden; O'Leary v. Woods; Parente v. Bell.
We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v. Holley should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counse1 to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.
(Emphasis added) (Citations omitted)
In addition to rejecting the concept of establishing a norm or a range, the passages emphasised seem to us to speak directly against the express consideration of comparable judgments at all.
Planet Fisheries was followed or noted with approval by Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 at 572; Gaudron J in Van Gervan v Fenton (1992) 175 CLR 327 at [9]; by the Court in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at [23] and [29] (although there was a suggestion that a judge could offer a jury some guidance in the assessment of damages) and by Hayne J in Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 at [69].
That case has also been applied in the Court of Appeal of New South Wales,[36] Victoria,[37] South Australia,[38] and Western Australia.[39]
[36]See, for example, Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 (23 February 2007) [8], [78]–[80]; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323, 329 [22]; Amaca Pty Ltd v Tullipan [2014] NSWCA 269 (15 August 2014) [40].
[37]Amaca Pty Ltd (under NSW Administered Winding Up) v King (2011) 35 VR 280; Geelong Leather Pty Ltd v Delaney [2014] VSCA 98 (23 May 2014) [58]–[59].
[38]Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534, 558 [72]; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329, 354 [97].
[39]Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33 (12 February 2007) [39]; Houlahan v Pitchen [2009] WASCA 104 (26 June 2009) [107]; Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134 (6 August 2009) [192].
In Amaca Pty Limited(Under New South Wales Administered Winding Up) v King (2011) 35 VR 280 at 321–322, Nettle, Ashley and Redlich JJA said:
178.The problem with Lowes v Amaca Pty Ltd is that, as Corboy J observed, apart from statutory modifications, the determination of whether an award of general damages is manifestly excessive or inadequate “is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases”…
…
184.Given the considerations to which we have referred, and bearing in mind that judgments about damages are not to be overborne by what other minds have judged right and proper for other situations, we are not persuaded that the sum of $730,000 for pain and suffering and loss of enjoyment of life which the jury awarded in this case is beyond what a reasonable jury properly instructed and with all due attention to the evidence could arrive at.
(Footnotes omitted)
Most recently Planet Fisheries was applied in State of New South Wales v McMaster (2015) 91 NSWLR 666. At 724, Beazley P (McColl and Meagher JJA agreeing) said (noting that in that case the Crown was held to be entitled to compare the verdicts in these three cases which were heard together, arose out of the same facts and were addressed in the one judgment):
322.The State is correct that Planet Fisheries Pty Ltd v La Rosa related to comparisons made between wholly different cases and it does not apply in the present situation. Behind the principle in Planet Fisheries Pty Ltd v La Rosa lies the basic proposition that each case turns on its own facts, such that simple comparisons between awards in different cases are likely to mislead. As was noted in Planet Fisheries Pty Ltd v La Rosa at 125, the judicial task is to determine “that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused”.
There is thus a significant and well-established line of cases that point firmly away from the direct comparison of cases said to be alike in some way but that permit a Court to be “aware of and give weight to current general ideas of fairness and moderation” (Planet Fisheries at 125).
Planet Fisheries was the subject of a considerable attack in Moran. Kirby P was particularly dismissive of it saying at 712:
The courts could and should do better. I do not believe that, as a matter of law, this Court is restrained by the observations on methodology in Planet Fisheries or by any later decision from developing a better system along the lines proposed by Priestley JA in Bellingham v Dykes.
Priestley JA repeated his earlier statements that he felt the Court would be assisted by “figures used in allowing for damages for non-economic loss in recent and comparable cases” (at 724) but felt that Planet Fisheries remained a bar to such a course.
McHugh JA also considered that the Court was bound by Planet Fisheries but said at 726:
…nothing I have read or heard persuades me that the administration of justice would be better served by a system under which counsel “bring over the authorities” on awards of damages in supposedly similar cases.

As has been seen the criticism of Kirby P and Priestley JA has not been taken up subsequently at an appellate level. Thus Planet Fisheries must still be regarded as applicable and bars the use of comparable verdicts in the assessment of damages for personal injury.
We turn now to Barbaro v The Queen(2014) 253 CLR 58 (“Barbaro”), which concerned the refusal of a sentencing judge to receive “any submission from the prosecution about what range of sentences she could impose upon each applicant” (at [3]). Whilst that was the ratio of the case there was also discussion in it of comparable sentences.
We note at the outset that Barbaro applies only to criminal sentencing and not, for example, to the fixing of civil penalties. In the latter case it is permissible for either the prosecutor to suggest or the parties to propose what they submit is an appropriate penalty (accepting, of course, that the court is not bound to adopt it): see The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482. In that case, French CJ, Kiefel, Bell, Nettle and Gordon JJ indicated that whilst many civil actions, such as custody disputes, involve the public interest “it is wholly unexceptionable for a court to accept an agreed submission as to the nature and quantum of relief, provided the court is persuaded that it is an appropriate remedy” (at [59]). There was no reference to the use of comparable cases.
In Barbaro, French CJ, Hayne, Kiefel and Bell JJ said at 71:
28Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an “available range” of sentences, stating the bounds of an “available range” of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.
(Emphasis added)
Part of the rationale for that conclusion was:
29The practice countenanced by MacNeil-Brown assumes that the prosecution’s proffering a statement of the bounds of the available range of sentences will assist the sentencing judge to come to a fair and proper result. That assumption depends upon the prosecution determining the supposed range dispassionately. It depends upon the prosecution acting not only fairly (as it must) but in the role which Buchanan JA rightly described as that of “a surrogate judge”. That is not the role of the prosecution.
…
32In either of the cases described, the prosecution forms a view which (properly) reflects the interests that the prosecution is bound to advance. But that view is not, and cannot be, dispassionate.
(Footnotes omitted)
These passages again would seem to point away from the ready use of comparable judgments, to set a norm or a range, particularly those placed before the Court by the parties.
It is quite clear that the Court envisaged the use of sentencing statistics and the use of “(more or less) comparable cases” but that use was described in the following manner:
40The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
41As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.
(Emphasis added) (Footnotes omitted)
In Hili v The Queen (2010) 242 CLR 520 (“Hili”) at [18] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
The question of “norm” or starting point raises questions about consistency in sentencing federal offenders. It will therefore be necessary to examine what is meant by “consistency”, and to consider the means by which consistency is achieved. These reasons will show that the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence. Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of the intermediate courts of appeal.
(Emphasis added)
These passages indicate that the point of looking at comparable sentencing cases is to seek consistency in the proper application of principle and not to achieve some kind of numerical or mathematical equivalence.
Thus, if the point of Wallis was that comparable cases could be looked at so as to derive a consistency in the application of principle then we would agree. However, their Honours did not say so or identify how the use of comparable cases would lead to consistency. As we have already observed, if the aim of consistency is consistency of results, then we would suggest that this aim focuses on mathematical equivalence – in reality to set some kind of norm or range, which, of course, was expressly eschewed in Wallis and the authorities upon which it relies.
In Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 the Court considered the use of comparable cases where s 5(2)(b) of the Sentencing Act 1991 (Vic) required the sentencing court to have regard to, amongst other matters, “current sentencing practices”.
Kiefel CJ, Bell and Keane JJ said:
9.In this regard, it may be said at the outset that the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor.
Gageler and Gordon JJ said:
82.Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders, to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a “band” derived from current sentencing practices.
(Footnotes omitted)
This is consistent with Barbaro and reflects the view that comparable cases cannot be used to set a norm or a range and cannot control the exercise of discretion.
As Barbaro makes clear at 71–72, caution should be placed on the use of comparable cases provided by the parties as the selection of those cases is unlikely to be dispassionate. This is a significant concern. Whilst it is possible that a consideration of all of the cases considered to be comparable could possibly establish a norm, the same cannot be said of a handful of cases proffered by one or other of the parties. It cannot be known on what basis they were selected or why other cases were not placed before the court.
We turn then to the nature of the discretion to be exercised in parenting and property cases. It was described by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 518–519 in the following manner, immediately after quoting the well-known passage in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”):
The sense in which the terms “discretion” and “principle” are used in these remarks needs some explanation. “Discretion” signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard — what is “just and equitable” — which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
To similar effect are the following observations of Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 230–231:
186. A number of general propositions may be stated:
1.Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is "plainly wrong" will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to "plainly wrong" is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
(Emphasis added) (Citations omitted)
In our opinion, the fact that two different judges acting upon the same evidence may properly reach different conclusions greatly diminishes the value of comparable cases. This is especially so in this jurisdiction where there is almost an infinite variation in the rich factual detail that attend both parenting and property cases. The concern is amplified when the Court is proffered just a selection of cases said to be comparable as opposed to an analysis of all cases that could be said to be comparable.
This point was recognised by Thackray and Ryan JJ in Semperton v Semperton (2012) 47 Fam LR 626 (“Semperton”) at 661–662, in which their Honours observed that the benefit of comparable cases lay in the application of principle (as referred to in [147] above):
187.It is also important to bear in mind that approaches adopted at first instance are necessarily influenced by the facts of the particular matter. Furthermore, the decision of an appellate court that an outcome ordered by a trial judge was within the range of discretion does not mean the approach adopted by the trial judge was the preferred approach. An alternative approach may just as well have escaped appellate intervention.
188.Experience teaches that no case is the same as another. Each not only has its own facts, but also individual nuances that often defy description. By way of example, and subject to the proviso mentioned about tax, it would be surprising to see any complaint about the approach adopted by the Federal Magistrate here if both parties had more than ample assets and income to accommodate and support themselves without resort to social security. If that had been the position, the DFRDB would properly have been seen as no different from an annuity acquired as part of prudent retirement planning.
This focus on principle is entirely consistent with Barbaro and Hili.
We do not overlook what was said in G & G [2001] FamCA 1453 at [236] (where it was said that it was the duty of a Full Court to scrutinise the exercise of discretion by trial judges by, amongst other things “a process of careful analysis and comparison of like cases”). As is made clear by [237]–[238], the Court there had in mind the application of principles, as indicated by the reference to guideline judgments, and in that respect is consistent with Semperton. We would also note that whilst what was said by the Court (Thackray, Ainslie-Wallace and Murphy JJ) in Rodgers & Rodgers (No 2) (2016) FLC 93-712 at [74] might support the use of comparable cases, when their Honours came to re-exercise the discretion they did so without regard to any such cases.
It also needs to be asked why a decision already made in a similar case has a greater value than the decision of the judge hearing the current matter, unless it is said that consistency in outcome is of such importance that it fetters the exercise of discretion in subsequent matters.
The submissions before us did not challenge the manner in which Wallis should be approached but we have felt it necessary to express our views which, perhaps, may be of assistance at some stage in the future. As can be seen, we do not wholly embrace the reasoning in that case.
To the extent that Wallis permits a judge to have regard to comparable cases for a purpose other than to achieve consistency in the application of principle, we will simply repeat that this is merely the impermissible setting of a norm or range by another name.
The Court does not say how it is that having regard to the facts and results of earlier cases leads to consistency in approach. Presumably it will do so when the trial judge considers that the facts of the earlier case are sufficiently similar so that regard should be had to how the discretion was exercised – that is, to the result. We do not see how this is other than the court’s judgment being influenced or “overborne by what other minds have judged right and proper for other situations” or other than the setting of a norm, range or expected outcome for cases involving similar facts.
Thus we also see difficulties in the application of Wallis.
Turning now to the matter before us we note that the grounds of appeal are framed expressly in terms of the primary judge’s findings as to contributions and the adjustment under s 75(2) being “outside an acceptable range”. It is clear from what we have written that this is not the correct approach. In Barbaro French CJ, Hayne, Kiefel and Bell JJ said:
26Reference to an “available range” of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order “is unreasonable or plainly unjust” and the appellate court infers “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 the field of sentencing appeals, this kind of error is usually referred to as “manifest excess” or “manifest inadequacy”. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
27The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some “substantial wrong has in fact occurred” in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
28Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an “available range” of sentences, stating the bounds of an “available range” of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.
(Footnotes omitted)

Recently, the High Court in Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [31] reminded us that the approach to identifying error in parenting and property cases is through the prism of House v The King.
Wallis, of course, as we have said, eschews the identification of a range.
The grounds of appeal framed in this manner are therefore misconceived.
However, as pointed out by the High Court in the above passage from Barbaro, the phrase “outside the range” or similar is a common way of expressing the third limb of House v The King and is, in reality, a complaint that the result is unreasonable or plainly unjust.
Looked at in that light, and for those parts of the reasons of Murphy J with which we agree, we consider that the primary judge erred in principle by failing to take into account relevant matters – namely, the parties’ respective post‑separation contributions and the contributions made by the husband to the increase in the value of the farm – and by taking into account irrelevant matters, such as the “cross-check” and an erroneous calculation of the wife’s projected loss of income.
We do not, however, consider her Honour’s approach to the “comparable cases” to be one of these errors of principle.
The husband cited a number of cases to her Honour, designed either to indicate a norm or a range or for other assistance in determining a “short marriage case”. These cases have been summarised by Murphy J at [104]–[110] above. They were not referred to by the primary judge in her reasons but her Honour clearly indicated in the course of submissions that she considered that they were of no assistance because of significant factual differences.
Importantly, those cases were not relied on to identify principle. Rather, factual similarities and differences were pointed out, as well as the result. As we have observed, all the authorities to which we must have regard, including Wallis (to the extent it does), indicate that the search is for consistency in the application of principle and not for mere equivalence; yet the focus on the facts, undertaken in the pursuit of consistency, seems very much to us to be a search for some underlying norm or range. In other words, it seems to us that, respectfully, the search for consistency that Murphy J suggests that the primary judge erred by not undertaking was in reality just such a search for some underlying norm or range.
If the authorities, including Wallis, do not impose any obligation on a trial judge to consider comparable cases then it follows that a judge cannot be in error in finding that any such cases cited to them were not of assistance.
It follows that no error arises from the primary judge’s approach to the comparable cases.
Further, we consider that in expressing the view that there were significant factual differences between the cases placed before her and the matter before the court, her Honour was, in effect, doing no more than saying that despite some similarities the differences between them indicated that the proffered cases had little value as useful comparisons.
In any event, we do not accept that a trial judge, or indeed an appeals court, is obliged to trawl through a slew of cases cited to them as comparable cases so as to identify a list of factual similarities and differences and then weigh these against the facts in the immediate matter so as to determine whether they are, in fact, “comparable”. Such an approach is contrary to authority and an unjustifiable burden on trial judges.
Finally, for ourselves, we derived no assistance at all from the cases cited to her Honour in deciding this appeal.
If the point is that, where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties, then such a position is easily arrived at by the application of principle alone.
It remains then to consider the third limb of House, namely whether the result in this matter is so unreasonable or plainly unjust that the court can infer that there has been a failure properly to exercise the discretion. We shall not repeat those portions of the reasons of Murphy J with which we agree but the following is based on those passages.
Having regard to the general statement derived from the principles to which we have just referred, and being aware of and giving weight to current general ideas of fairness and moderation we cannot see how the facts before her Honour justified the orders that were made, even allowing for a generous adjustment to the wife pursuant to s 75(2). The equality of contributions other than the initial financial contributions made the latter of critical importance, in the circumstances of this case. They so favoured the husband that we do not see that the circumstances justified a result that the wife received 40 per cent of the Australian property even on the basis, as we have said, that there should be a generous adjustment in her favour. Quite simply, the result is disproportionate to the facts. This is even more so if, as indeed appears to have been the case, the post separation financial contributions in fact favoured the husband.
In other words, we consider that the award made was so unreasonable that we can infer that the discretion has miscarried and that there has been an error in the application of principle.
For these reasons we agree with the orders proposed by Murphy J.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Cleary JJ) delivered on 7 December 2017.

Associate:

Date: 7 December 2017