Bevan & Bevan
[2014] FamCAFC 19
•19 February 2014
FAMILY COURT OF AUSTRALIA
| BEVAN & BEVAN | [2014] FamCAFC 19 |
| FAMILY LAW – APPEAL – RE-EXERCISE – Where the Full Court had previously found that the trial Judge had erred in the exercise of his discretion – where submissions were sought concerning the re-exercise of the discretion – where the husband had made repeated representations over many years that the wife could retain all of the property in Australia – where the husband had delayed commencing proceedings until almost the expiration of the limitation period – where all the property is held in the name of the wife – where it would not be just and equitable to make any order interfering with existing property interests – husband’s application for adjustment of property interests dismissed. |
| Family Law Act 1975 (Cth) s 75(2), s 79, s 93A(2), s 94(1) and (2) Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | Mrs Bevan |
| RESPONDENT: | Mr Bevan |
| FILE NUMBER: | PTW | 2469 | of | 2010 |
| APPEAL NUMBER: | WA | 2 | of | 2013 |
| DATE DELIVERED: | 19 February 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Finn and Thackray JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 7 December 2012 |
| LOWER COURT MNC: | [2012] FCWA 125 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hooper SC |
| SOLICITOR FOR THE APPELLANT: | DCH Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Paltos Briggs Family Lawyers |
Orders
The appeal be allowed.
The orders made by the Honourable Acting Judge Jordan on 7 December 2012 be set aside.
The application filed by the respondent on 20 July 2011, the response filed by the appellant on 14 September 2011 and the reply filed by the respondent on 2 December 2011 be dismissed.
There be no order for costs.
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 her in relation to the appeal.
The Court grants to 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 him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bevan & Bevan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 2 of 2013
File Number: PTW 2469 of 2010
| Mrs Bevan |
Appellant
And
| Mr Bevan |
Respondent
REASONS FOR JUDGMENT
bryant cj and thackray j
Introduction
On 8 August 2013, we delivered reasons for judgment in an appeal instituted by the wife against property orders made by Jordan AJ on 7 December 2012.
His Honour had found that the property should be divided in proportions 60:40 in favour of the wife. His orders required the wife to pay the husband $363,000, in default of which she was required to sell her home in M town.
We found error in his Honour’s approach, but decided not to make any orders disposing of the appeal until we received submissions concerning the way in which the matter should be re-determined.
Having considered the submissions now provided, we have concluded that the appeal should be allowed and that the husband’s application for property settlement should be dismissed.
Background
We do not propose to set out the background facts, since these can be found in our earlier reasons, which have now been published as Bevan & Bevan (2013) FLC 93-545.
Our earlier reasons record the trial Judge’s findings about repeated representations made by the husband to the wife about the future ownership of their property. They also detail the husband’s delay in bringing his application. We found that these were relevant matters in deciding whether it would be just and equitable to make any order altering property interests.
The relevant statutory provisions
Section 94(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that in hearing an appeal under s 94(1), the Full Court:
… may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance …
An appeal under s 94(1) proceeds by way of rehearing. Having found error at first instance, our task now is to re-exercise the discretion originally reposed in the trial Judge. In doing so, we must have regard to all the evidence given at trial and we may also draw inferences of fact. Additionally, we can receive further evidence. See s 93A(2) and Allesch v Maunz (2000) 203 CLR 172 at [20] to [24].
In CSR Ltd v Della Maddalena (2006) 224 ALR 1, Kirby J discussed the requirements and limitations of an appeal which proceeds by way of rehearing. His Honour said (heading and footnotes omitted):
[16] The form of rehearing so provided “shapes the requirements, and limitations, of such an appeal”. The relevant “requirements” are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of “weighing conflicting evidence and drawing … inferences and conclusions”.
[17] The “limitations” introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.
In the present matter, there is no issue concerning findings of fact made by the trial Judge, save for doubt about what findings were made on two significant issues. Importantly, there is no challenge to the findings made concerning the representations made by the husband over many years that the wife could retain all of the assets. While there is now a challenge to the approach adopted by his Honour to the composition of the “asset pool”, resolution of that contention does not involve any assessment of credibility. Neither party seeks to introduce further evidence.
Wife’s submissions in relation to the re-determination
The wife continues to maintain that it would not be just and equitable to make any order altering existing interests. She submits that this would be consistent with what we have said in our earlier reasons and what was said by the High Court in Stanford & Stanford (2012) 247 CLR 108 (see paragraph 73 of our earlier reasons).
In making these submissions, the wife repeated the proposition she had advanced at trial, namely that she had arranged her life “as an independent woman” in reliance on the husband’s representations over a 16 year period that he would not make a claim against the property they owned in Australia.
If her primary submission does not find favour, the wife submits the husband’s entitlement should be assessed at 15.5 per cent of the net assets. This would require her to pay $162,000 to the husband, on the basis she would retain all of the assets in Australia, which are already in her name or possession.
In advancing this alternative proposition, the wife effectively invited us to arrive at a different contribution assessment to that made by the trial Judge and also to make an adjustment in her favour on account of s 75(2) of the Act. In doing so, the wife drew attention to:
·comments in our earlier reasons about uncertainty relating to the way the trial Judge had treated a share portfolio and an inheritance when assessing the wife’s contributions at only 60 per cent of the total contributions;
·our finding that the trial Judge had erred in not taking into account, under s 75(2), the fact that the husband had accommodation available to him in England.
The wife’s brief submissions concluded by observing that she was able to raise the funds required to make the proposed payment of $162,000 (albeit on the basis that she anticipated being successful in her application for costs).
Husband’s submissions in relation to the re-determination
In his very comprehensive submissions, the husband proposes an equal division of the property. In so doing, he contends for a larger pool of assets than that found by the trial Judge. If all his contentions are accepted, the husband would receive a payment from the wife of $640,000.
In the alternative, the husband proposes that the orders of the trial Judge remain undisturbed (save for an adjustment designed to take account of some financial consequences arising from the delay caused by the wife’s appeal).
Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16.The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) 293 ALR 70 … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17.Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.
The existing legal and equitable interests in property
We must first identify the existing legal and equitable property interests of the parties (see Stanford at [37]).
The trial Judge found the net value of the assets and liabilities was $1,069,000. The table of assets and liabilities, as found by his Honour, was replicated in our earlier reasons.
Although the husband had not previously taken issue with the trial Judge’s findings in relation to the composition of the pool of assets, in his submissions on the re-determination, senior counsel for the husband contended that the net asset pool was worth $1,249,387. Counsel for the wife took issue with this approach, complaining that the husband was essentially seeking “to re-argue the case”.
We were not referred to any authority to support a proposition that, on the re-exercise of discretion, a respondent to an appeal who has not successfully cross-appealed is bound to accept all findings made by the trial Judge. The decision of the Full Court in Wall v Wall (2002) 167 FLR 461, although not precisely on point, would provide strong support for the proposition that the discretion of the Full Court is largely unfettered. See also the passages from Kirby J’s judgment in CSR Ltd v Della Maddalena which we have cited above and also paragraph 22 of that judgment. We are therefore prepared to proceed on the basis that it is open to the husband to advance his contention concerning the asset pool.
The difference between the pool contended for by the husband and that found by the trial Judge largely relates to assets and liabilities which the trial Judge deliberately excluded. His Honour explained, at [74]-[75], why he had elected to exclude these items from consideration. In our view, the approach adopted was appropriate. The authorities consistently recognise that the exercise of the wide discretion conferred by s 79 is not to be confused with an exercise in accounting. It is therefore unnecessary for every asset and liability to be brought to account, provided reasons are given for the approach adopted.
Subject to one proviso, nothing put to us in the husband’s submissions persuaded us that we should adopt a different approach to the asset pool to that adopted by the trial Judge. The proviso relates to two works of art which remain in the wife’s possession. We accept the husband’s submission that the Rover Thomas and Jack Britten paintings should have been included in the pool of assets, notwithstanding they are of sentimental value to the wife and notwithstanding she has told the parties’ adult sons they will each be given one of them in due course. The Rover Thomas painting was acquired prior to the husband’s departure overseas and the Jack Britten painting was acquired prior to the date on which the wife says the parties separated. Neither of them falls into the category of “post-separation acquisitions and debts” mentioned in paragraph 74 of the trial Judge’s reasons. The Jack Thomas is worth between $40,000 and $50,000 and the Jack Britten is worth between $15,000 and $18,000 – see Exhibit 4.
We therefore find that the value of the net assets is in the region of $1,125,000.
It is most important to record that, save for the artwork, all of these assets are held in the name of the wife. Although the trial Judge made no formal finding in relation to the legal title to the artwork, we find that the wife is the legal owner. In our view, the repeated representations made by the husband to the wife, combined with her longstanding uncontested possession, constituted a perfected gift by the husband of whatever interest he previously had in the art (Re Stoneham [1919] 1 Ch 149).
Is it just and equitable to make any order?
Having determined that the wife is the legal owner of all of the assets, the question arises whether it would be just and equitable to make any order altering her interest in those assets. Only if that question is answered in the affirmative would it be necessary for us to consider the extent to which her interest should be altered.
As the plurality said in Stanford at [42], the “just and equitable requirement” of s 79(2) will be readily satisfied in many cases because the parties, by choice, are no longer in a marital relationship. Their Honours went on to observe that orders for property settlement can properly be made in those cases:
42.… because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end …
In the present matter, the husband elected to leave the relationship in 1994, at which time the parties had been married for about 22 years. From time-to-time thereafter, the husband represented to the wife that she could retain their assets for herself and for their sons, on the basis he would build his own life and acquire property elsewhere. Acting on the representations, and believing the assets were hers, the wife dealt with the property as if it were her own. (Trial Judge’s Reasons at [40] to [43]).
On the other hand, the trial Judge found that, from time-to-time, the husband:
44.… continued to volunteer significant contributions to the benefit of the wife entirely inconsistent with the notion that he was leading a separate life and accumulating his own property and securing his own future. For example, I accept that, when he wound up his share portfolio in 2000 he chose to deposit the proceeds in the parties’ account. He also did so in relation to the final winding up of his share portfolio in 2003. I accept the husband also applied the proceeds of his inheritance from his mother to the benefit of the wife.
The trial Judge also found, at [45], that during the time the husband worked and lived in Australia in 2001 and 2004 he deposited his income into joint accounts and also “made not insignificant contributions” to renovations the wife undertook to her home in M town in 2004.
His Honour found, at [48], that, after 1994, “each of the parties appear to have shared some uncertainty about their relationship”. In particular he found that:
·the husband and wife continued to spend time together in Australia and during expensive overseas holidays, albeit funded largely by the wife from the Australian resources (Reasons [13] and [23]);
·they shared family events (Reasons [13]);
·they remained intimate until the year 2000 (Reasons [13]); and
·there continued to be some intermingling of finances (Reasons [17]).
Nevertheless, with the benefit of the power of attorney the husband gave her in 1995, the wife dealt with the property largely as she saw fit, to the point that she and the husband no longer held any property in common. The wife did so without reference to the husband, without accounting to him and without censure, although he knew of the transactions (Reasons [14], [17] and [42]).
Between 1997 and 1999 the husband was in a relationship with a woman in England, which was resumed in 2005, prior to them starting to live together in 2006. At the latest, the husband and wife were “separated” within the meaning of the Act by May 2006 (being the date inserted by the husband in the parties’ joint application for divorce). The wife now contends that the separation occurred before 2001. Although there is no need to make a formal finding, the evidence supports the trial Judge’s observation that “clearly, from 2000 and on, on any view, it was at best a marriage in name …” (Transcript, 4 December 2012, p 74).
Although the husband claimed in his oral evidence that he informed the wife in writing in 2009 and 2010 of his intention to seek a property settlement, our own examination of the record leads us to find that the first notice of his intention to pursue a claim was in his email to the wife of 1 January 2011. We accept that the husband gave notice of his desire to obtain a divorce in 2009, but our examination of the transcript and Exhibits 13 and 17 leads us to conclude that there was no mention at that time of making any financial claim.
The husband sought to explain his failure to pursue a claim for property settlement between May 2006 (when he says the parties separated) and July 2011 (when he commenced proceedings) by referring to his poor health and lack of funds to meet legal expenses. The husband’s health did not prevent him from working for most of this period, and when he ultimately asked the wife for a property settlement he did so without incurring legal costs.
Had the husband wanted to make a claim during these five years from May 2006 to July 2011, he had the capacity at least to give notice to the wife of his intention. He did not do so. On the contrary, our perusal of the record satisfies us that the trial Judge was entirely justified in accepting the evidence of the wife and her witnesses about his ongoing representations to the contrary, including some made as late as April 2009 (Wife’s affidavit of 12 October 2012 at [163]).
Although it is true, as the trial Judge found at [106], that the parties “had the capacity to formalise their informal arrangements at any time over the last 18 years” – and failed to do so – we consider it is significant that the husband not only gave the wife power of attorney over the property, but thereafter stood by, knowing she had disposed of all their jointly held property and had thereafter accumulated her entire fortune in her own name. Thus, apart from obtaining “finality”, there was nothing more for the wife to achieve as a result of seeking to formalise the parties’ mutual understanding by way of obtaining final property settlement orders or entering into a binding financial agreement.
In Stanford, the plurality touched on the issue of unwritten arrangements between parties to a marriage when discussing the three “fundamental propositions” which they identified as governing applications under s 79 of the Act. Their Honours said (footnote omitted, original emphasis):
41.… If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
In commenting on this passage in our earlier reasons, we said:
119.In our view, if the three “fundamental propositions” can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work whilst their relationship was intact.
120.This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made … But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests ...
We also expressed the view, at [84] of our earlier reasons, that, in determining whether it would be just and equitable to make any order altering existing property interests, it would be necessary to have some regard to the matters mentioned in s 79(4), since it was accepted that it may not be considered just and equitable for the husband to be denied any entitlement in circumstances where it is accepted he made a significant contribution to property that may be seen as having provided the base from which the wife built the assets she now holds. However, such a contribution is but one matter to be considered in the exercise of the discretion conferred by s 79.
Furthermore, the time at which such a contribution was made may have an impact on the weight to be afforded to it. Thus, in the unusual circumstances of the present matter, when we come to weigh up all matters relevant to the exercise of the discretion to make any order altering existing interests we consider that contributions made by the husband after he made the representations about future ownership of the property would assume greater significance than those made previously.
In recognising that contributions can be considered when determining whether it is just and equitable to make any order interfering with existing interests, and in saying that we would give different weight to contributions made at different times, we have in mind this observation made in Stanford (footnote omitted):
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds …
Their Honours there are describing the classic judicial discretion, where no one consideration, and no combination of considerations, is necessarily determinative of the result. Instead, the decision maker is allowed latitude as to the choice of decision to be made (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]).
It is common ground that both parties made extensive contributions to assets which may be seen as providing the base for the assets now in contention. The husband’s significant contributions prior to his departure in 1994 are not in doubt, but there is real controversy concerning those made after his departure, particularly the two said to be most valuable – namely an inheritance and a share portfolio.
The inheritance and the share portfolio require careful consideration, since they are collectively said to be worth $600,000 and were the two matters to which the trial Judge specifically referred, at [44], as being “entirely inconsistent with the notion that [the husband] was leading a separate life and accumulating his own property and securing his own future”. In our view, the extent and timing of these contributions have the potential to impact significantly on the question of whether it is just and equitable to make any order interfering with existing property interests.
The husband’s inheritance
In his only reference to the husband’s inheritance, the trial Judge said at [44], “I accept the husband also applied the proceeds of his inheritance from his mother to the benefit of the wife.”
The two difficulties with this proposition are that his Honour made no finding as to the value of the inheritance and gave no reasons for concluding that the funds had been applied to the wife’s benefit, even though both issues were contentious.
The husband had himself dealt with the inheritance only very briefly in his trial affidavit sworn 22 October 2012 in which he said:
74.In 2001 my mother … died and I received approximately $200,000 from my mother’s estate. The whole of these monies were deposited into the joint account in about 2001.
We would infer, given the lack of precision, that in making his assertion the husband was probably relying on his memory in stating the extent of the funds received more than a decade earlier. We note also that he produced no documents to substantiate the claim. Nor did he go on to say what became of the funds once they were deposited into the joint account.
The wife also gave evidence about the inheritance in her trial affidavit sworn 12 October 2012, but her testimony was more precise, and she provided a document to support her claim that the inheritance amounted to only $58,005:
96.[The husband] received $58,005 from his mother’s estate. Her estate was not distributed until 2002, despite her passing in 1997. I do not recall what [Mr Bevan] used his inheritance for. I do not know if the inheritance was deposited into our account or an account in [Mr Bevan’s] name only. Exhibited hereto and marked “2” is a copy of the trust statement dated 3 July 2002 from [a firm of solicitors] distributing the estate to the relevant beneficiaries.
Both parties repeated their assertions concerning the value of the inheritance in the chronologies in their Papers for the Judge filed shortly before the trial. However, when setting out their summary of financial contributions in the Papers for the Judge, neither made any reference to the inheritance.
In his submissions relating to the redetermination of the matter, senior counsel for the husband drew attention to the fact that one of the witnesses called in the mother’s case at trial, Ms L, was one of the executors of the estate of the husband’s late mother, but no evidence was sought to be adduced by the wife from her in contradiction to that given by the husband.
Although Ms L swore her affidavit at much the same time as the husband swore his affidavit setting out his evidence about the inheritance, it had been prepared at least some weeks beforehand (Transcript 4 December 2012, p 25). The affidavit dealt with a variety of issues, including Ms L’s shock at receiving advice from the husband that he proposed to make a claim against the wife in circumstances where he had previously often said to her words to the effect “[the wife] and the boys can have whatever is here in Australia” (Affidavit of Ms L sworn 24 October 2012).
Ms L’s affidavit did not deal with the husband’s inheritance, however when senior counsel for the wife called Ms L at trial, he sought leave from the trial Judge to ask one question of her. Counsel for the husband immediately objected, claiming that he had been given no notice. The exchange is important, and we therefore set it out in full:
RICHARDS, MR: Your Honour, I object at this stage. I don’t have any notice of that.
HIS HONOUR: Yes, very well. If you open the question then - - -
DOWDING, MR: I’m sorry, your Honour?
HIS HONOUR: If you inform the court of the question, you might - - -
DOWDING, MR: The question is whether she was the executor of the - or she managed the estate of [Mr Bevan’s] mother and if she can give us an indication of when she died. The relevance of the material, your Honour, relates to matters of credibility in the parties’ history.
HIS HONOUR: So the father’s - - -
DOWDING, MR: The mother; the husband’s mother.
HIS HONOUR: The husband’s mother. Sorry, yes.
RICHARDS, MR: There is evidence of that already.
HIS HONOUR: Yes. There is some difference between the parties about when money arrived, isn’t there?
DOWDING, MR: There is, your Honour. There is.
RICHARDS, MR: When she died?
DOWDING, MR: Yes.
RICHARDS, MR: I don’t think so.
DOWDING, MR: Yes, there is. 2001, according to [Mr Bevan]; 1997, [Mrs Bevan].
HIS HONOUR: Yes.
RICHARDS, MR: Your Honour, at this stage, it’s not an issue that I became aware of, your Honour.
HIS HONOUR: I’ll allow the question to be asked and the evidence to be given and I reserve arguments about whether it should be admitted into evidence in the proceedings subsequently.
RICHARDS, MR: Your Honour, I think the question, if I’m right, is whether she was the executor of the will. I’ve got no difficulty with that at this stage.
HIS HONOUR: Yes.
DOWDING, MR: Paragraph 74 of the husband’s affidavit is the point I’m dealing with, but if your Honour rules on it on that basis, I’m happy to proceed.
HIS HONOUR: Yes.
DOWDING, MR: [Ms L], are you able to assist with the information as to when [the husband’s mother] died?
RICHARDS, MR: Yes, I object, your Honour. That’s a different question. I thought the question was whether she was the executor. I’ve got no problem with that. That’s a different question and it might be - whether or not she’s the executor or unless she was with [Mrs Bevan] at the time, she’s not going to be able to give evidence of it admissibly.
DOWDING, MR: Sorry, your Honour. I thought you had confined the question to the date. I’m just dealing with the date. I mean, surely my friend knows whether it’s correct or not.
HIS HONOUR: Yes, I will allow the question.
DOWDING, MR: Are you able to assist with the - and could you explain how you know, if you do know, when [the husband’s mother] died?---Yes. [The husband’s mother died in 1997 and I was one of the executors of her will. I was a very good friend of [the husband’s mother].
It will be seen that senior counsel for the wife did not seek to adduce from Ms L any evidence concerning the value of the inheritance received by the husband, but on the other hand, in the questions that then followed from counsel for the husband, no attempt was made to adduce evidence supporting the husband’s version either.
Although it will be seen that reference was made at this point in the trial to discrepancies between the evidence of the husband and the wife relating to the inheritance, neither of them was cross-examined on the topic and no mention was made of it during closing addresses (albeit the transcript reveals the trial Judge was under significant time pressures throughout the trial and closing addresses were limited to 20 minutes (Transcript 5 December 2013, p 86)).
Senior counsel for the husband now submits that we should draw an adverse inference against the wife as a result of her failure to adduce evidence from Ms L supportive of her version of events. There are a number of reasons why we are not prepared to draw such an inference:
·The husband carried the onus of proving the facts on which he intended to rely.
·The wife produced a document which was said to show precisely how much the husband (and others) received from the estate and the date on which the funds were distributed. The husband provided nothing to support his assertion.
·There is no basis for us to conclude that at the time Ms L’s affidavit was prepared it was known to the wife that the husband would assert that he had received as much as $200,000 from the estate of his mother.
·The wife had not been cross-examined at the time Ms L was called to give oral evidence (and the husband’s cross-examination had also not been completed). There is therefore no basis on which we could conclude that senior counsel for the wife should have anticipated that the clear and precise evidence given by the wife in her affidavit would not be accepted by the husband – and, as it turned out, the wife was not cross-examined on this issue.
The husband, after hearing the evidence of Ms L, acknowledged his mother had indeed died in 1997, not 2001 as he had claimed in his affidavit. He also conceded that he did not have “a very good memory for dates” (Transcript 4 December 2012, p 57). Given this not insignificant discrepancy, and in light of all the other matters to which we have referred, we consider it would be unsafe to accept the entirely uncorroborated assertion of the husband that he received as much as $200,000 from his mother’s estate. We proceed on the basis that he received an inheritance of $58,005 in 2002.
The next issue we must determine is what became of the inheritance. It will be recalled that the husband baldly asserted that the funds were placed in the joint account. It will also be recalled that the wife said she did not know what the husband had used his inheritance for, and she also said she could not recall whether the funds were placed in a joint account or in the husband’s account. The brief finding made by the trial Judge would suggest that he was satisfied that the funds had been placed in the joint account, but with great respect to his Honour, we cannot see on what basis he concluded that those monies had been applied “to the benefit of the wife”.
His Honour had earlier found, at [23], that the husband and the wife had, up until 2004, continued to spend expensive overseas holidays together, which had been “funded largely by the wife from the Australian resources”. We would take the latter expression to include funds in the joint account. Included amongst these holidays were a cruise in April 2002 and six weeks spent in Italy, with the parties’ children, in December 2002 (Wife’s trial affidavit, paragraphs 135 and 137). There were also costs associated with the wedding of one of the children in May 2004 (Wife’s trial affidavit paragraph 142 and following). While the wife expressed some doubt about precisely how all of these expenses were funded, the fact significant funds were presumably expended on these purposes renders unsafe any suggestion that any money received by the wife from the husband’s inheritance was spent entirely for her benefit.
Furthermore, we consider it is significant that the husband’s assurances to the wife that “everything in Australia is yours” continued to be made after the receipt by the husband of his mother’s inheritance in March 2002 (Wife’s trial affidavit, paragraph 135).
The share portfolio
The trial Judge made two references to the proceeds of sale of a significant share portfolio. The first of these was where he said:
20.The husband had been share trading in Australia prior to and subsequent to 1994. At one stage it appears that the value of the share portfolio reached approximately $1 million. After a crash in the share market in or about the year 2000, the husband sold the shares, as he recalls, for approximately $400,000. Significantly, he deposited those funds into the parties’ accounts in Australia.
It will be recalled that his Honour later went on to say that the husband:
44.… continued to volunteer significant contributions to the benefit of the wife entirely inconsistent with the notion that he was leading a separate life and accumulating his own property and securing his own future. For example, I accept that, when he wound up his share portfolio in 2000 he chose to deposit the proceeds in the parties’ account. He also did so in relation to the final winding up of his share portfolio in 2003 … (our emphasis in this citation and the citation from paragraph 20 of the reasons).
In his trial affidavit the husband said:
67.From early in our marriage I commenced share trading on a small scale … Until 2000 I continued to build up a share portfolio.
…
72.In or about March 2000, primarily by way of investment, our share portfolio had a value of approximately $1,000,000. I recall I telephoned [the wife] from Brisbane airport on my way to Kiribali and said words to the effect, “[Mrs Bevan], do you realise our shares are now worth about $1,000,000”.
73.Almost immediately afterwards, the share market crashed and I sold our share portfolio for approximately $400,000 which was deposited into the joint account. A small residue of shares was sold in 2003 for approximately $20,000 which was also deposited into the joint account.
Notwithstanding the husband’s assertion that the portfolio had achieved a value of $1 million by March 2000, the case presented at trial on his behalf was that the shares had achieved this value by 1997 (Transcript 5 December 2012, pp 21 and 25).
Although the trial Judge did not mention the existence of any controversy in his reasons, the wife at trial did not accept the husband’s evidence concerning the share portfolio, as will be apparent from the following extract from the husband’s cross-examination:
[DOWDING, MR:] [Mr Bevan], in relation to your affidavit you say in paragraphs 72 and 73 that there was a period in which you had a share portfolio and you said to [the wife] in a telephone conversation, “It’s worth about $1 million.” Do you recall saying that in your affidavit?---Yes.
Almost immediately after you say, “The share market crashed and I sold our share portfolio for approximately 400,000, which was deposited into the joint account.” Are you able to produce a document which shows that deposit?---No.
Indeed, are you able to produce a document which shows the transaction in which you sold your shares?---No.
Can I put to you that you didn’t put $400,000 into the joint account?---You can put it. What - - -
Well, I put it to you that you didn’t do it. It’s not correct?---The proceeds went into - I only ever had the one account operating.
The proceeds may have gone into that account. I’m suggesting there’s no evidence that it was $400,000?---I’m not sure. 400,000 was an estimate.
(Transcript 4 December 2012, p 72)
Senior counsel for the wife then tendered correspondence from the wife’s solicitors to the husband’s solicitors complaining about the inadequacy of the husband’s disclosure of relevant documents (Transcript 4 December 2012, p 73). Much time was taken up at trial by the competing complaints of the parties about the disclosure provided by the other, and it is not possible for us to arrive at any definitive view about this aspect of the controversy. It is clear, however, that no documents were provided to support the assertion that there was $400,000 available from the sale of the shares.
In her cross-examination, the wife conceded that the proceeds of sale of the share portfolio ultimately made their way into a bank account to which she had access. She further conceded that she drew regularly on the account, although maintaining that the husband also occasionally drew on the account (Transcript 5 December 2012, p 28).
In his closing address, senior counsel for the wife reiterated that the wife did not concede that $400,000 had been received from the proceeds of sale of the share portfolio. Although counsel for the husband had said early in the trial that he would demonstrate what the portfolio was worth (Transcript 4 December 2012, p 12), no such evidence was ultimately provided.
Given the absence of any documentary evidence, it is not possible for us to arrive at any definitive finding concerning the value of the share portfolio when it was ultimately liquidated, although there is some basis for accepting it may have been a substantial amount. However, there is insufficient evidence to establish that the portfolio was built up to any extent by the husband following his departure from Australia in 1994. On the contrary, doing the best we can with the evidence, it would appear more likely that while the husband traded in shares after 1994, he did so with a portfolio that was largely put together while the parties were cohabiting. On this basis, the husband would have been right in describing the shares as “ours”, as he did in paragraph 72 of his affidavit.
Once again, it is significant, in our view, that the husband’s representations to the wife that she could keep all of the Australian assets continued to be made after the disposal of the share portfolio. Given that the base of the portfolio had been acquired while the parties were together, we are satisfied the wife would have understood that the husband was also allowing her to retain that asset.
Other contributions made by the husband after 1994
Although it would appear that the trial Judge placed most emphasis on the contributions said to have been made by the husband from his inheritance and the share portfolio, he also placed some weight on his finding that during the time the husband worked in Australia in 2001 and 2004 he deposited his income into joint accounts and also assisted with renovations the wife undertook to the property she owned in M town. For the sake of completeness, we consider we should make some brief observations on this topic.
It is common ground that the husband paid his income into the joint account on the couple of occasions when he was living in Australia, however the amounts in question appear not to have been substantial – probably about $20,000 on each occasion (Transcript 5 December 2012, pp 59 and 64). However, the husband and wife were living in the same residences during these times and the husband was drawing funds from the joint account. There is no basis for considering that the husband contributed any more to the account than he withdrew, as to which see, inter alia, paragraph 147 of the wife’s trial affidavit. Furthermore, as the wife submitted in her Papers for the Judge, the improvements the husband helped to make to the M town property in the five month period he stayed there with the wife in 2004 (in separate rooms) were designed to prepare the property for their son’s wedding.
In our view, there was nothing about these contributions that would carry weight in determining whether it would be just and equitable to interfere with the existing interests in property.
Discussion
Senior counsel for the husband submitted that:
46. … the issue to be addressed is whether, having regard to each of the representations and “established legal principles” (Stanford para.40) it is just and equitable to make an order” (original emphasis).
He then went on to observe that the wife’s submissions relating to the husband’s representations do not attempt to “seek to engage with any particular ‘species’ of estoppel nor to rely upon any statement of principle in that regard”. However, fearing that paragraph 120 of our earlier reasons portend a finding that the husband’s representations were sufficient to warrant application of the principles of equitable or promissory estoppel, senior counsel for the husband made detailed submissions as to why such principles were not engaged. Amongst other things, he submitted that we could not be satisfied that the wife acted, or refrained from acting, to her detriment in a way which the husband knew or ought to have known she would on the strength of his representations.
Senior counsel for the husband then submitted that rather than relying on established principles of law and equity, the wife is asking the Court not to make any order for property settlement “as a matter of discretion”. He argued that the difficulty with such an approach is that it seeks to give “determinative operation or weight” to the husband’s representations, without engaging established legal principles. Adopting such an approach, senior counsel argued, would give rise to a real danger of proceeding in an unprincipled fashion, which the High Court has warned against in Stanford at [39].
With respect to the argument of senior counsel, we do not consider there is any onus on the wife to establish some form of equitable defence to the husband’s claim for property settlement. The onus is on the husband to show some principled reason for the Court to interfere with the wife’s interest in property.
The fact the Court is given a wide discretion when deciding whether the husband has discharged the onus does not mean that the matter will be disposed of in an unprincipled fashion, since the manner in which the discretion is to be exercised is itself the subject of well-established principles – see Re Watson; Ex Parte Armstrong (1976) FLC 90-059 at 75,270.
The basis upon which it can be concluded in many cases that it is just and equitable to make orders interfering with existing interests in property following the breakdown of marriage is because it is no longer appropriate to proceed on the basis of the stated and unstated assumptions between the parties to the marriage in circumstances where they have not expressly considered whether, or to what extent, there should be some different arrangement of their property interests (Stanford at [41]). In the present matter, however, over a long period of time after the end of their marriage, the parties did give express consideration to what should become of their property. In such circumstances we consider the husband must do more than point to the end of the relationship in order to persuade us that there is some principled basis upon which we should interfere with an existing state of affairs created by the consent, or at the very least, acquiescence of the parties.
The present state of affairs between the parties did not arise as a result of any duress or even agitation by the wife, but rather by the voluntary act of the husband. We do not consider it useful to engage in any detailed speculation about why the husband considered it appropriate to allow the wife to retain all of the assets that had been built up over many years. It is the case, however, that the husband elected to leave Australia, initially travelling the world by boat, at a time of severe financial crisis in the family. Given the matters referred to in paragraphs 58 and 59 of the wife’s trial affidavit, there is at least some basis for the submission made by senior counsel for the wife at trial (Transcript 4 December 2012, p 9 and following) to the effect that it was the husband’s unilateral action which brought on, or at least exacerbated, the financial crisis. In the ensuing years, the wife was largely left to deal alone with what her evidence suggests was debilitating, protracted litigation involving financial dealings with the husband’s brother-in-law. The wife’s evidence also describes the responsibilities she took on, in the husband’s absence overseas, to provide assistance to the husband’s elderly mother prior to her death.
We accept that not all these matters would necessarily assume great significance in the event that the husband had not made any representations to the wife, and had instead endeavoured to obtain a settlement of property in a timely fashion. In our view, however, they do provide a cogent explanation for why the wife could reasonably arrange her affairs in the expectation that the husband would honour his repeated promise not to make any claim against her.
While we accept that the wife did not give evidence that she acted to her detriment on the basis of the husband’s representations, we consider any such assertion would have been dismissed as self-serving. Notwithstanding the absence of solid evidence, we find it impossible to resist the conclusion that the wife must have arranged her affairs feeling secure in the knowledge that she would retain the assets for her benefit and for the benefit of the children.
Although of lesser significance than the representations, we consider that the husband’s protracted delay in commencing proceedings until the eleventh hour prior to the expiration of the limitation period is also a matter to be taken into account. As we had earlier noted, there was significant complaint made by both parties relating to the inadequacy of the disclosure provided by the other. Although it is not possible to say that this was the by-product of the husband’s delay in issuing his claim, we accept that such delay would adversely impact on memory, witness availability and obtaining documents about significant issues, for example the husband’s inheritance and the disposal of the share portfolio.
Albeit in a different statutory environment, we note that Mrs Justice Parker said in T & T [2013] EWHC B3 (Fam), a decision from which leave to appeal was recently refused by the English Court of Appeal (Torrington v Torrington [2013] EWCA Civ 1631):
63.In the context of this particular case I consider that the delay is in itself, even absent the agreement, of very great importance. From Foster v Foster [1977] 7 FLR 112 through Chaterjee v Chaterjee [1976] 1All ER 719, Chambers v Chambers [1981] FLR 10, Fraser v Fraser [1992] 3FLR 98, S v S [1989] FCR 582 to Rossi v Rossi [2006] EWHC 1482 (Fam) the courts have repeatedly said, both at first instance and on appeal, that where there has been long delay in seeking a financial remedy so as to give the other party the reassurance that there will be no further claim against him or her, this entitles the court to dismiss the application for financial provision.
To be weighed in the balance in favour of the husband, is the fact that he made valuable contributions over a period of 22 years and continued to make some contributions even after he decided to leave the wife and make his own way elsewhere in the world. We accept that a decision not to make any order interfering with existing property interests will leave the husband with virtually no assets and significant liabilities relating to the costs he has incurred in this litigation.
We must also take into account that the husband is now 68 years of age and has experienced some health difficulties. Although at the time of trial the husband was continuing to earn a good income, we accept that he is probably nearing the end of his working career. On the other hand, the husband has the benefit of good quality accommodation with his de facto wife in a home to which he has made at least some modest contribution, albeit we accept that his future occupation of the home will be dependent upon his de facto wife’s goodwill.
Balanced against these matters, we must also take into account the fact that the wife is nearly 66 years of age and that her earning prospects are also likely to be limited. In the event that we were, for example, persuaded to make orders as sought by the husband, the wife would undoubtedly be required to sell her home in M town – and indeed a sale may well become inevitable in the event we were to make any order for payment of a sum greater than that now proposed by the wife in her alternative proposition. We should say, however, that the possible sale of the wife’s residence is not a matter that figures prominently in our consideration, given that it is a common outcome of matrimonial proceedings that a party is required to dispose of their home.
Having given most careful consideration to the factors on both sides of this argument, we have determined that the extent of the representations made by the husband, the circumstances in which they were made, and the husband’s substantial delay in instituting proceedings are such that it would not be just and equitable to make any order interfering with existing interests in property.
This decision should not be seen as supporting a similar outcome in cases where there is delay, even long delay, in instituting proceedings, particularly given that the Act has its own limitation period. Nor should it be seen as setting a precedent for all cases where a party makes a statement of future intention concerning ownership of property. As we have been at pains to stress, s 79(2) confers a wide discretion, and therefore each case will turn entirely on the view taken by the judicial officer of the facts and merits of that case.
Outcome and costs
For these reasons, we propose to allow the appeal, discharge the orders made by the trial Judge and order in lieu that the husband’s application for property settlement be dismissed.
Although the wife seeks an order for costs, and has strong justification for doing so given that the husband has been wholly unsuccessful, we do not propose to make any order for costs.
In arriving at this decision we take into account the fact that the wife will now retain all of the assets and the husband will be left in a difficult position seeking to discharge his own legal costs. Furthermore, it is important to recall that the issues raised in this appeal involved consideration of important issues arising out of a recent judgment in the High Court.
Given that the appeal has been allowed on a question of law, we would provide costs certificates to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
finn j
I agree with the orders proposed by the Chief Justice and Thackray J, and generally with their reasons.
I do, however, have reservations concerning their Honours’ view that in the context of this Court’s re-exercise of the discretion, it is open to the respondent husband to challenge the trial Judge’s findings as to the content and value of the parties’ property in circumstances where the husband did not cross-appeal the trial Judge’s orders. But I am also of the view that this is not a matter which it is necessary to decide in order to determine the present case.
While acknowledging that the decision of the Full Court in Wall v Wall (2002) FLC 93-110; (2002) 167 FLR 461 is not precisely on point, the Chief Justice and Thackray J consider that that decision provides strong support for the proposition that the discretion of the Full Court (when re-exercising the discretion of a trial Judge) is largely unfettered. They are therefore prepared to proceed on the basis that it is open to the husband to advance to us, for purposes of the re-exercise of the discretion in this case a contention on which he was unsuccessful before the trial Judge (being, that two paintings, which are in the wife’s possession, should be regarded as her property in the determination of the property settlement proceedings between her and the husband).
In Wall the Full Court had heard an appeal against property settlement orders. While the Full Court’s decision was reserved, the High Court delivered its judgment in Allesch v Maunz (2000) 203 CLR 172 (which, relevantly for present purposes, required that where this appeal Court proposes to exercise the trial Judge’s discretion, the parties should have the opportunity to seek to put updating evidence before this Court).
When it did deliver its judgment in Wall, the Full Court allowed that appeal and set aside certain of the trial Judge’s orders. It did not at that time either re-exercise the discretion or remit the matter for re-hearing, but rather gave directions for the filing of further submissions as to which course should be followed, and (in light of Allesch v Maunz) as to whether any party wished to adduce updating evidence, and if so, what evidence.
Having regard to the further submissions then received, the Full Court determined it would admit further evidence in relation to an inheritance received by the appellant husband after the trial Judge’s orders, and that it would re-exercise the discretion taking into account that further evidence. On its re-exercise of the discretion, the Full Court arrived at a result which would be more favourable to the respondent wife (who had not cross appealed) than she obtained under the trial Judge’s orders. The Full Court then sought further submissions from the parties in relation to its power to order such a result.
In support of the submission on behalf of the appellant husband that there was no power in the Court when re-exercising the discretion to order an award more favourable to a respondent who had not cross-appealed, reliance was placed on the judgment of the majority in Ruscoe and Walker (2002) FLC 93-093. In that case Lindenmayer and Joske JJ determined that it was open to the Full Court to remit the matter for re-hearing on a limited basis for the purpose of taking into account further updating evidence. In so deciding their Honours said:
24.In our view, it would be quite unjust to the wife to allow the husband now to have the opportunity to reopen the whole issue of property settlement and to seek a result more favourable to him than that arrived at by the trial Judge when he did not at any time cross- appeal from those orders, and when the wife's appeal has been so significantly successful.
In Wall the Full Court (Lindenmayer, Kay and Hannon JJ distinguished what had been said by Lindenmayer and Joske JJ in Ruscoe and Walker in the following way:
44.We think that the case of Ruscoe v Walker, above, is distinguishable from the present case because, in that case, there had been a full distribution of the property of the parties pursuant to the trial judge’s order, including the payment by the respondent husband to the appellant wife of the cash adjustment in her favour determined by the trial judge. In this case, there is nothing to suggest that the trial judge’s orders have been fully executed, including the sale of the boat and the payment by the wife to the husband of the amount fixed by the trial judge as the amount to be paid in exchange for his interest in the former matrimonial home. Moreover, the primary issue for the court in that case was not simply whether the unsuccessful respondent husband could, on the rehearing of the proceedings to be ordered by the Full Court, obtain a result more favourable than that embodied in the trial judge’s orders, but the wider issue of whether the whole s 79 proceedings, including the assessment of the value of the parties’ property, and of their contributions up to trial, the former settled by the Full Court’s decision, and the latter by the trial judge’s unchallenged determination, could be re-opened at the rehearing. By majority, the Full Court held that it could not.
45.Accordingly, we acknowledge that Ruscoe v Walker, above, is an example of an exercise of discretion in which the court, when ordering a rehearing of s 79 proceedings, held that it was inappropriate to allow the unsuccessful respondent to the appeal, who had not cross-appealed, to seek to obtain a result more favourable to him than the trial judge’s orders. However, we perceive no statement of principle by the court in that case that that course can never be appropriate, or which would bind this court to conclude that in the circumstances of this case it would be an inappropriate exercise of discretion to make such an order upon the re-exercise of the trial judge’s discretion.
Thus, it will be seen that the decision in Wall appears to establish that it is within the discretion of the Full Court when re-exercising the discretion of the trial Judge, whether the respondent to the appeal who has not cross-appealed, will be permitted to seek, and receive, an award more favourable than that obtained under the trial Judge’s orders.
In my view, it is significant that both Wall and Ruscoe and Walker were cases in which one or both parties sought, and were permitted, to adduce further updating evidence. As the facts in Wall demonstrate, the subject of the updating evidence (in that case, a substantial inheritance subsequently received by the appellant) may well require that, as a matter of justice and equity, there be a substantial variation of the trial Judge’s orders, including a variation which would provide a more favourable result than at trial for the party who did not appeal the orders.
I remain to be persuaded, however, that in a case such as the present, where neither party seeks to put updating evidence before the appeal Court, that a party who has not cross-appealed the trial Judge’s orders, can then seek a more favourable order from the appeal Court than that party received at trial. It is true that an appeal to this Full Court under s 94(1) of the Family Law Act 1975 (Cth) (“the Act”) is, because of the powers contained in s 93A(2) and s 94(2) of the Act, an appeal by way of re-hearing (as has been explained by the High Court in CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz). However, (and again as explained in Allesch v Maunz by Gaudron, McHugh, Gummow and Hayne JJ at [23]) the powers of a Court determining an appeal by way of re-hearing:
… are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … unless there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. …
There is no provision in the Act indicating that the appellate powers in s 94 may be exercised regardless of error. It is therefore necessary that before this Court can re-exercise the discretion of the trial Judge, some appealable error must be found on the part of the trial Judge (absent, of course, the receipt of further evidence which would demonstrate that the order under appeal is erroneous, as explained in CDJ v VAJ, particularly at [109] and [111]). It is thus necessary, (and leaving aside cases where further evidence is received pursuant to the principles in CDJ v VAJ rather than Allesch v Maunz), that before this Court can re-exercise the discretion of the trial Judge, one or more grounds of appeal (or of a cross appeal) must have succeeded.
It is my understanding that it has long been the practice of this appeal Court that when substance has been found in one or more of the grounds of appeal and a decision made to re-exercise the discretion, the Court will only interfere with the trial Judge’s findings and orders to the extent necessary to correct the error identified by the ground of appeal and to make any further variations to the trial judge’s conclusions which are necessary as a consequence of the correction of the error, or errors, which have been the subject of successful grounds of appeal.
The following example should illustrate the point which I have endeavoured to make. If there has been no challenge, or no successful challenge, by the appellant, or cross-appellant, to the trial Judge’s identification and valuation of the parties’ property, but there has been a successful challenge to the trial Judge’s assessment of the parties’ contributions, this Court will, if it decides to re-exercise the discretion, determine the contribution assessment which, in its opinion, the trial Judge should have made; such a re-determination of the contribution assessment may make necessary a re-determination also of any adjustment on account of the matters in s 79(4)(d) to (g) (whether or not such adjustment has been successfully appealed); but the parties’ entitlements based on contributions or other matters in s 79(4) as determined by the appeal Court, will be in their property and at the value of that property as found by the trial Judge (given that there has been no successful challenge to the trial Judge’s findings in relation to the property and its value).
For my part, I would not be prepared to depart from what, as I have said, I understand to be the traditional approach of this Full Court when it re-exercises the discretion of the trial Judge (as opposed to remitting the matter for a re-trial) without the benefit of much fuller argument than we have had in this case, or without some further elaboration by the High Court of this Court’s power when it re-exercises the discretion on the same evidence as was before the trial Judge (that is, in the absence of further evidence).
I do not consider that the observations of Kirby J in CSR Ltd v Della Maddalena (2006) 224 ALR 1 concerning the powers of a court in an appeal by way of re-hearing, and on which senior counsel for the husband relied in his written submissions to us, address the specific issue with which I am here concerned.
However, as I said at the outset, it is, in my view, unnecessary to reach a concluded view on this issue for purposes of this decision. This is because in the unusual circumstances of this case, the first question to be determined is whether there is to be any order made which would alter each party’s existing interests in his or her property.
In his reasons for judgment when identifying the parties’ property, the trial Judge listed in a schedule seven assets or groups of assets, although his Honour did not in that schedule of property, identify in every instance which party had the title to a particular asset or particular assets. It is clear from the schedule of assets and liabilities in the written submissions put to us on behalf of the husband for purposes of this re-exercise, that he accepts that title to all assets which were identified by the trial Judge, other than his own car, is with the wife. Those schedules of assets and liabilities contained in the husband’s written submissions do not identify in which party title to the two artworks in dispute rests, although it seems clear that the husband’s position is that those paintings should be regarded as being the wife’s property, and that the value of her assets, and thus the assets of the parties, should be adjusted to include the value of the two paintings.
However, as the decision of this Court is that there should be no order altering the interests of the parties in their property, the issue of whether or not the value of the two paintings in question should be added to the value of the parties’ property does not need to be determined.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 February 2014.
Associate:
Date: 19 February 2014
163
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