B & B

[2005] FamCA 1034

[2005] FamCA 1034

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT BRISBANE  Appeal No. NA1 of 2004

File No. BRF1057 of 2002

IN THE MATTER OF:  B

Appellant Wife

AND:  B

Respondent Husband

CORAM:  FINN, HOLDEN, WARNICK JJ

DATE OF HEARING:  1 OCTOBER 2004

DATE OF JUDGMENT:  28 OCTOBER 2005

JUDGMENT OF THE COURT

Appearances:              Mr C J O’Neill of Counsel, instructed by McCallum Mylne Lawyers, Level 2, Corporate Offices, 3240 Surfers Paradise Boulevard, Surfers Paradise, Queensland, 4217 appeared for the appellant wife

Mr R M Galloway of Counsel, instructed by Tubaro Lawyers, 38 Hudson Road, Albion, Queensland, 4010 appeared for the respondent husband

Name of Appeal	B & B
Appeal Number	NA 1 OF 2004
Date of Appeal Hearing	1 OCTOBER 2004
Date of Judgment	28 OCTOBER 2005
Coram	FINN, HOLDEN & WARNICK JJ

Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – APPLICATION TO ADDUCE FURTHER EVIDENCE – Value of the matrimonial home – At trial the agreed value of the former matrimonial home was $260 000 – Further evidence suggested that it was subsequently sold for $341 000 – Of itself, a sale of property post trial, even if as here, very shortly after trial for a sum greater than evidence of value given at trial, will not necessarily lead to a successful appeal on that basis – The prospects of the sale had been raised at trial – Application refused.

EXERCISE OF DISCRETION – Property pool of $180,000 – The trial Judge assessed the wife’s contributions as 15% – That assessment was not challenged on appeal – Discrete challenge to the inclusion of debt in asset pool – The trial Judge accepted the husband’s liability of $7,000 to his mother – Records of transcript relating to the debt not complete in the appeal books – It was not shown that the husband’s evidence relating to the debt was challenged in such a way that the trial Judge could not have accepted it.

Section 75(2) factors – The trial judge addressed each of the paragraphs of s75(2) from (a) to (d) inclusive and concluded that the wife’s entitlement should be increased from 15% to 20%f – This assessment was not manifestly inadequate or beyond the broad range within which reasonable disagreement is possible – Nor did the trail Judge take account of irrelevant factors or fail to take account of relevant factors.

GH & CTH [2005] FamCA 734

Gronow v Gronow (1979) FLC 90-716

Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 434

Norbis v Norbis (1986) FLC 91-712

Appeal dismissed.  Wife to pay the husband’s costs as agreed or failing agreement, as assessed.

On 5 December 2003, for reasons delivered ex tempore, Bell J made orders for property settlement in proceedings between the parties.  The husband and wife had commenced a relationship in late 1998 and married in November 1999 but separated two years later.  Prior to the relationship of the parties, the husband had received approximately $237,500.00 as a result of a personal injuries award, with which he had purchased a home and furniture.  The trial Judge found that the wife brought “virtually nothing” by way of assets into the relationship.  The wife had a child by a previous relationship, T, born in June 1997.  T’s father had died.  Between them, the husband and wife had 2 children, C born in May 1999 and J, born in November 2000.

1. Bell J assessed the wife’s contributions to a net pool of approximately $180,000.00, at 15%. He adjusted by 5% in the wife’s favour, for factors relevant under s 75(2) of the Family Law Act 1975, as amended. Effectively, the result of his Honour’s conclusions was an order that the wife receive $30,000.00 from the husband, the wife having already received $6,000.00. The wife appealed the “Orders Relating to Property” and these are our reasons in respect of that appeal.

2. At the outset of the hearing of the appeal, counsel for the wife informed us that he would only argue 3 “bases”.  The first of these was in fact an application that the Court receive further evidence relating to the value of the former matrimonial home.  We refused that application, indicating that we would give our reasons for that refusal as part of these reasons.  We made it clear that our refusal related to the attempted use of the further evidence to support the appeal and not to any question of the use of that evidence in any re-exercise of discretion if merit was found in any ground.

3. The second basis of appeal was a challenge to the trial Judge’s acceptance of the husband’s liability of $7,000.00 to his mother. The third basis was an assertion that the trial Judge had given insufficient weight to section 75(2) factors. These two complaints found expression as paragraphs or grounds 2(b) and 5(a)-(g) of the wife’s Notice of Appeal (filed 5 January). By informing us that he only proposed to argue these two matters (apart of course from the further evidence concerning the value of the home), Counsel thereby abandoned a number of other complaints contained in the original grounds of appeal. As we will later mention, on the second day of the hearing of the appeal, Counsel sought to rely on amended grounds of appeal which, apart from alleging a failure on the part of the trial Judge to consider if the overall effect of the orders were just and equitable, did not take the appellant’s complaints beyond the three bases referred to on the first day of the hearing of the appeal. In fact, the scope of the complaint concerning his Honour’s s75(2) adjustment was narrowed in the amended grounds.

4. We will return to the grounds of appeal that were ultimately pursued after a discussion of the judgment of the trial Judge, including a short factual background derived from the trial Judge’s reasons and after a statement of our reasons for refusing the application to adduce further evidence.

The reasons of the trial Judge, including background facts

1. The husband was about 39 years of age at trial, the wife 24 years.

2. As indicated above, the trial Judge noted that the wife brought “virtually nothing” into the marriage and the husband “everything”, primarily a house and furniture.

3. At the commencement of cohabitation, the husband was in full-time employment.  The wife received some “comparatively small amount” as a pension and family allowance during the cohabitation.

4. In about June 2001, after a period of struggling to work with his injuries, the husband gave up employment.  The wife had commenced employment in about April 2001.

5. His Honour found that, during the cohabitation, the husband “looked upon” T “as his son”.

6. The parties separated at about the end of November 2001.

7. After making some short further comment about contributions made by each party during cohabitation and referring to the submissions of each counsel relating to the assessment of contributions, his Honour found the wife:

   “…entitled to 15% as and by way of the section 79(4) factor.”

8. There was no issue that when his Honour referred to the “section 79(4) factor” he was referring only to the parties’ contributions (that being the matters mentioned in para 79(4) (a), (b) and (c). There was also no challenge to the trial Judge’s assessment of contributions at 15% to the wife.

9. His Honour then turned to section 75(2) factors.

10. Subsequent to separation, the wife had entered into cohabitation with a man who also suffered from the results of injuries.  He was hopeful of gainful employment in the future, but at the time of trial was a pensioner.  The wife received a part pension.  After referring to these circumstances, his Honour said:

    “…her future is more secure in a financial way than that of the respondent”.

11. The trial Judge then noted that the wife had “some experience as an apprentice hairdresser and is doing some part time work”.  The trial Judge said of the wife:

    “Naturally of course she is precluded from, I would have thought, full-time work by necessity of her looking after the children who are still quite young.…

    She has many years ahead of her.  Her health is good.  She will, I expect, be able to seek some form of employment in the future.  On the other hand, the respondent husband’s injuries are such that it looks like it would be virtually impossible for anybody to hope that he will seek gainful employment of any substantial nature whatsoever.  Equally of course that would tend to show as was quite properly was (sic) pointed out by [counsel for the wife] that there is little likelihood of his making any substantial contribution to the maintenance of the children either by way of child support assessment or otherwise.”

12. However, his Honour then noted that the husband had made some contributions to clothing, and the expenses of kindergarten and schooling.

13. The trial Judge then moved to his assessment of section 75(2) factors and said:

    “28.  [Counsel for the wife] has submitted that the role of a mother or the role of a person who has possession of children has been said by the High Court to be diminished and not recognised as important as it is and it should sound more under Section 75(2) factors than has done on occasions before.  I quite agree with him notwithstanding there is a maintenance component in it I think that because of the physical, moral and emotional responsibility of the possessory parent it necessarily must sound more than it has done on some other occasions but in this case as a result of the quite proper consent order whilst the mother does have the children with her for the majority of the time the husband/father does have the children with him for a considerable period and taking that into consideration and the other factors that I have already mentioned in relation to Section 75(2) I do not believe I could increase her entitlement to any more than five per cent therefore making 20 per cent.”

14. The trial Judge then dealt with disputes about the asset table, none of which, (apart from the question of the value of the former matrimonial home to which the further evidence related) was in issue before us.  His Honour assessed a net pool of $180,337.00 and calculated that 20% thereof would be $36,067.00.  Having found that the wife had already received $6,000.00 by way of partial property settlement and furniture, he then proceeded to structure orders requiring the husband to pay the wife $30,000.00.

The application to adduce further evidence

1. The hearing before Bell J (which originally included children’s issues) took place on 3, 4 and 5 December 2003.

2. For the purposes of trial, the parties had agreed the value of the former matrimonial home, based upon a valuation obtained by the husband, at $260,000.00.

3. The further evidence established that, on 22 December 2003 the former matrimonial home had been sold for $341,000.00.

4. Of itself a sale of property post trial, even if as here, very shortly after trial for a sum greater than evidence of value given at trial, will not necessarily permit an appeal on that basis.  However, we do not say a given context may not form a basis for appeal.  Here however the prospect of sale had been raised at the trial.  The husband had been asked about his intentions with regard to the home and he said that real estate agents had been around and he would list the property for sale immediately once the trial concluded.  He was not asked at what price.  He could have been.  The wife could also have asked that her entitlement be expressed as a percentage of sale price of the house.  It is not the purpose of the power to receive further evidence to allow argument on appeal of a case different to that conducted at trial.

5. Insofar as the further evidence related to dealings by the husband with real estate agents prior to the trial, we are, contrary to the contentions of counsel for the wife, satisfied that that material either shows no more than what the husband said at the trial as to his dealings with real estate agents or, insofar as it might indicate that the husband had proposed to the agents that the listing instructions would be that he would consider offers over $360,000.00, the further evidence is contentious.  Counsel for the husband indicated that if we received the affidavit material in support of the application to adduce further evidence, he would seek to file an affidavit by his client in response.

6. Finally, though less importantly, as previously indicated, at the outset of argument in the appeal, and when we ruled upon the application that we receive further evidence, there was no ground of appeal in the notice filed 5 January 2004 to which the further evidence might relate, although counsel indicated that if the further evidence was allowed he would seek to draw a further ground of appeal.

7. For all the aforegoing reasons, we refused the application.

8. On the second day of argument on the appeal, counsel for the wife handed up amended grounds of appeal, the fourth “ground” of which read:

   “It is respectfully submitted that in the light of the immediate post-trial sale of the former matrimonial home at a value substantially in excess of the valuation used at the trial this is a proper case for the exercise of the Court’s power to revisit the Judge’s discretion and alter the available pool for distribution by the inclusion of the net proceeds of the sale of the former matrimonial home in lieu of the valuation agreed at trial.”

9. The proposed amendment was too late to assist the wife in relation to her application to adduce further evidence.

Grounds of appeal

1. The amended grounds of appeal contained a challenge to the trial Judge’s treatment of an alleged debt of the husband to his mother of $7,000.00, and a challenge to the trial Judge’s consideration of section 75(2) factors, both of which, as earlier outlined, had been foreshadowed as bases of appeal by counsel at the outset of the appeal. However, the document handed up on the second day also included a ground alleging that the trial Judge had failed to consider if the overall effect of the orders was just and equitable. No difficulty arose in this respect because this was also originally a ground.

2. There was no objection to the amended grounds of appeal and we gave leave in respect of them. 

The $7,000.00 debt

1. The amended grounds of appeal in relation to this issue were expressed as follows:

   “(a)   The Honourable Judge erred in calculating the net value of the property of the marriage by including the claimed debt of $7000 to the Respondent’s mother.  There was evidence before the Court of the mother’s attempt to falsely claim a further $40,500 as a matrimonial debt and this should have alerted His Honour to the unsoundness of the claim.

   (b)     The claimed debt was also on the evidence a post-separation debt and should not therefore have been included.

   (c)     The evidence of the debt was introduced after the appellant had completed her evidence and should therefore also been accorded less weight by His Honour.”

2. During the course of argument about this ground, it became apparent that the appeal book was not complete.  Only the transcript of the final day, solely concerned with property issues, was before us.  However, it was also apparent from the early pages of that transcript that some matters relevant to property settlement had arisen earlier in the hearing.  One such matter was that a schedule of assets and liabilities had been tendered on behalf of the husband (exhibit 2).  On that exhibit (which is in the Appeal Book, p283) was an entry:

   “12.         Debt to H mother ($7,000.00).”

3. There is also evidence about the debt in the husband’s affidavit of evidence in chief filed 28 May 2003.  The liability was referred to as “debt to my mother for paying other dents (sic) of marriage”.  The evidence of the husband’s mother was that the debt, although claimed post-separation, related to monies paid out before separation.  It was not shown to us that this evidence was challenged in such a way that his Honour could not have accepted it.  Therefore, the contention in paragraph (b) of the ground is not made out.

4. Furthermore, the wife was not in a position to satisfy us that, as contended in paragraph (c) of the grounds, the evidence of the debt was only introduced after the wife had completed her evidence.  Insofar as it is suggested that the sequence in which evidence about this debt was furnished to the court caused an injustice, at no time during the trial did counsel for the wife object to evidence being given in respect of the debt or seek to recall his client.

5. Paragraph (a) of the ground suggests that the trial Judge might have treated the claim differently, a contention insufficient of itself to support an argument that the trial Judge was in error.

6. There is therefore no merit in this ground.

Consideration of section 75(2) factors

1. The amended ground of appeal with regard to this issue read as follows:

   “(a)   The Honourable Judge gave undue weight to the alleged poor health of the husband in that there was evidence before the Court that the husband was not on any form of disability pension but rather on an unemployment benefit and had undergone a “New Start” program.

   (b)     The Honourable Judge gave undue weight to the potential of the wife to earn income given that she had no formal training or qualifications.

   (c)     The Honourable Judge gave insufficient weight to the fact that the appellant has the added responsibilities of the primary care of three children under the age of seven years.

   (d)     The Honourable Judge appeared to double count in favour of the husband in that he gave undue weight to the alleged lack of earning potential of the husband and then gave insufficient weight to the consequent fact that the husband would not be in a position to financially support the children because of his alleged inability to be gainfully employed.

   (e)     The Honourable Judge gave insufficient weight to the fact that the wife had to assist in the care of her disabled partner and also care for the two children of his former relationship during access times.”

2. The assertion in paragraph (e) was, appropriately in our view, not pressed in submissions.

3. In our view, it is also appropriate to consider the ground asserting that the trial Judge failed to consider whether the overall effect of the orders was just and equitable, with this ground.

4. The trial Judge’s consideration of section 75(2) factors occupied 5 paragraphs, the most significant portions of which were set out earlier. It is clear that his Honour identified factors favouring weight to each party. In particular, his Honour addressed the topics of the health of the husband, the wife’s income earning capacity, her responsibilities to look after her children and the degree of likelihood that the husband would make any substantial contribution to the maintenance of the children. In short, his Honour addressed each of the topics dealt with in each of paragraphs (a) to (d) inclusive, of this ground.

5. Though in two of the paragraphs ((a) and (b)) particular parts of the evidence relevant to a topic eg. the husband’s receipt of unemployment benefit, were referred to, there was no challenge to the trial Judge’s findings of fact, whether in relation to the husband’s health or otherwise.

6. His Honour concluded that the wife’s future was more secure financially than that of the husband.  He referred to the circumstances of her cohabitation and her hope to obtain gainful employment in the future, and to the expectation that the wife could seek some form of employment in the future, though probably precluded from full-time work by the necessity of looking after the children who were “still quite young”.

7. Against that, his Honour considered that the husband was unlikely to seek gainful employment of any substantial nature.  His Honour recognised that, consequently, the husband was unlikely to make substantial contribution to the maintenance of the children.

8. Finally, his Honour recognised that the ongoing role of the wife deserved weight, though against that, the husband had the children with him pursuant to the consent orders for a “considerable period”.

1. As earlier seen, his Honour’s assessment of the interplay of all of these factors was that the wife’s entitlement of 15% should be increased to 20%.

2. A 5% adjustment in this case represents $9,000.00, a small sum.  However, as the Full Court (Finn, Warnick and Boland JJ) said in the unreported judgment of GH & CTH [2005] FamCA 734:

   “67.  The primary argument about the assessment of s 75(2) factors was simply that an adjustment of 10% in the wife’s favour, particularly having regard to the young age of the child [A] (5 at trial), was manifestly insufficient.

   68.    It is well-established that in addressing the sufficiency of an order or adjustment, regard must be had to the monetary consequence, not just the percentage assessment underlying it.

   69.    A great difficulty when dealing with a small pool is that the monetary result of adjustment under s 75(2) will often remain hopelessly inadequate to make any real difference to the capacity of the recipient to address the very aspects leading to adjustment.

   70.    Nonetheless, this deficiency is a result of the insufficient estate and must not be allowed to unfairly overwhelm any factors to be measured against those favouring adjustment to the ultimate recipient.”

3. When regard is had to these observations, and to the width of the discretion of the trial Judge, as discussed in Gronow v Gronow (1979) FLC 90-716 at 78,848-9, in Bellenden (formerly Satterthwaite  v Satterthwaite) (1948) 1 All ER 343 at 345, and Norbis v Norbis (1986) FLC 91‑712 at 75,178 per Brennan J we are not satisfied that the allowance of 5% to the wife by the trial Judge for s75(2) factors, while certainly not generous to her, was manifestly inadequate or beyond the broad range within which reasonable disagreement is possible.

4. Nor, to the extent that it was alleged, are we satisfied that the trial Judge took account of any irrelevant factors or failed to take account of any relevant factor.

Conclusion

1. As we have not found merit in any ground of appeal, it follows that the appeal must be dismissed.

Costs

1. Counsel for the wife conceded that costs would follow the event, if the appeal failed.

ORDERS

1. That the appeal filed 5 January 2004 (as amended) be dismissed.

2. That the appellant wife pay the respondent husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

I certify that the 50 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:
 

Associate