Bidwell & Bidwell
[2022] FedCFamC1A 154
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bidwell & Bidwell [2022] FedCFamC1A 154
Appeal from: Bidwell & Bidwell [2022] FedCFamC1F 315 Appeal number(s): NAA 125 of 2022 File number(s): SYC 4814 of 2020 Judgment of: TREE, CAREW & HARTNETT JJ Date of judgment: 5 October 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant sought the final property order be set aside and the matter remitted for re-hearing – Where the grounds of appeal challenged the five per cent adjustment under s 75(2) factors and the finding of equality of contributions – Where parties are bound by decisions made in the conduct of their case at trial – Where findings were open on the evidence – No appealable error established – Where the appeal is dismissed – Where a costs order is awarded in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Collins and Collins (1990) FLC 92-149; [1990] FamCA 141
Horrigan & Horrigan [2020] FamCAFC 25
House v R (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101Number of paragraphs: 36 Date of hearing: 27 September 2022 Place: Sydney Counsel for Appellant: Mr N. Jackson Solicitor for Appellant: David H Cohen & Co Solicitors Counsel for Respondent: Ms K. Beck Solicitor for Respondent: Buckley Lawyers Pty Ltd ORDER
NAA 125 of 2022
SYC 4814 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
APPELLATE JURISDICTIONBETWEEN: MR BIDWELL
Appellant
AND: MS BIDWELL
Respondent
order made by:
TREE, CAREW & HARTNETT JJ
DATE OF ORDER:
5 October 2022
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 7 June 2022 is dismissed.
2.The appellant shall pay the costs of the respondent of and incidental to the appeal fixed in the sum of $12,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bidwell & Bidwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CAREW & HARTNETT JJ:
1 On 11 May 2022 (amended by Order made on 5 July 2022) a judge of this Court made a property adjustment order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), dividing the property of the parties or either of them in the proportion 55/45 in favour of the respondent.
2 The primary judge assessed the myriad of contributions made by each party over their relatively long marriage as equal, and then made a five per cent adjustment in the respondent’s favour pursuant to s 75(2) of the Act. On that basis, under the Order made by the primary judge, the appellant is to retain property to the value of $652,802 and the respondent is to retain property to the value of $797,869 i.e. a differential of $145,067.
3 The appellant challenges the judgment on two remaining grounds (the first two grounds of appeal are abandoned) and, if successful, seeks the setting aside of the property order and for the matter to be remitted for re-hearing by a judge other than the primary judge.
4 In the two remaining grounds of appeal, the appellant challenges the five per cent adjustment made in favour of the respondent pursuant to the s 75(2) matters and the finding of equality of contributions.
Appellate principles
5 As this is an appeal against a discretionary decision, the appellant must establish that the primary judge has made an error of the type explained by the High Court of Australia in House v R:[1]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] (1936) 55 CLR 499 at 504-505.
brief background
6 By way of brief background, at the time of trial, the appellant was 64 years of age and the respondent was 52 years of age. The parties were a married couple who cohabitated for approximately 17 years before separating in March 2016 and divorcing in 2020. The parties have one child who was 14 years of age at the time of judgment. The child lives with the mother and spends little time with the father, although both parties expressed a wish for that to change after the proceedings.
7 At the date of trial, both parties were in full time work, with the appellant earning about $140,000 per annum and the respondent earning about $105,000 per annum.
8 The property of the parties or either of them was found by the primary judge to be worth $1,450,671 including superannuation. As already noted, the primary judge divided the property in the proportion 55/45 in favour of the respondent, with the result that the respondent was to retain her superannuation of $292,505 and receive a cash payment from the appellant of $505,364, in default of which the former matrimonial home was to be sold.
Ground 3
The primary judge erred in concluding that the respondent ought receive an adjustment on account of s 75(2) factors of 5 per cent being 10 per cent of the net matrimonial pool in her favour
9 Counsel for the appellant concedes that the primary judge identified at [55]–[59] of the judgment “the various factors germane to section 75(2)”. Those factors are as follows:
(a)The twelve year age difference between the parties;
(b)The appellant has medical conditions;
(c)The appellant expects to retire in the “next 2 or so years”;
(d)The respondent is in good health;
(e)The respondent’s expectation, as submitted by the appellant, of “stable, well remunerated employment over the years to come”;
(f)The respondent’s primary care of the parties’ 14 year old child; and
(g)The appellant pays child support.
10 In addition, it was common ground that both parties were in full time employment. The primary judge made the following particular findings:
(a)The respondent’s “future needs are more likely to be greater than [the appellant]” (at [58]);
(b)The respondent will continue to “assume primary responsibility (including financial responsibility) for the child” (at [58]);
(c)The appellant “presently has a greater earning capacity” and “if he needs to work … he may have to delay his retirement” (at [59]); and
(d)There is “no evidence of an incapacity to work” and there is “no evidence that [the appellant] will be unable to continue working for any other reason” (at [59]).
11 In challenging the judgment, the appellant submits that the primary judge fell into error by:
(a)Failing to make a finding on what is described as an “unresolved issue” as to “how long” the appellant could continue to work;
(b)Failing to make a finding as to “how long [the respondent’s] earning capacity was”;
(c)Finding the respondent’s future needs were greater than the appellant’s due to her “primary financial responsivity [sic] of the parties’ only child”, which is described by the appellant as the “critical if not the only reason”, and in so doing failed to consider:
(i)The appellant was paying $358 per week in child support;
(ii)The absence of evidence provided by the respondent as to her financial commitment for the child;
(iii)The respondent’s earning capacity;
(iv)How long the child would be “otherwise financially depended [sic] on his parent’s [sic] financial support”; and
(v)Failed to balance “the financial commitments of both parties in relation to 14-year-old [child], with the Appellant[’s] … comparably significant limited working life ahead”.
12 In considering the particular challenges in relation to this ground, it is trite to observe that parties are bound by decisions made in the conduct of their case at trial and cannot generally raise something for the first time on appeal that could have been raised at trial. [2] There was no indication at trial that the primary judge was required to determine an “unresolved issue” as to how long each of the parties would continue employment. The case, at its highest, was stated in the appellant’s written submissions at paragraph 44:[3]
44.The [appellant] cannot expect as long a future working life as the [respondent] can expect as there is a significant 12 year age gap.
[2] Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
[3] Appellant’s written submissions filed 5 October 2021.
13 The supplementary written submissions at paragraph 12 filed by the appellant on 12 January 2022 do not mention any “unresolved issue” as claimed, and repeats the submission set out above. In addition, the following submissions were made in the supplementary written submissions at paragraphs 66 and 67:
66.The [respondent] presents as a senior and competent executive whose services are in demand. It is submitted that it is to be expected she will continue to be well remunerated and in stable employment for many years into the future.
67.It is submitted that the court would find that the [appellant] will retire within the next 1-2 years consistent with his evidence. …
14 The appellant made no mention in his trial affidavit of any impediment to his continuing ability to work. When cross-examined about his intentions regarding continuing to work, the following exchange occurred between the respondent’s counsel and the appellant:[4]
[COUNSEL FOR THE RESPONDENT]: What I’m putting to you, [the appellant], is that you have every intention of continuing to work while you can. That’s true, isn’t it?---
[THE APPELLANT:] Well, whilst I can. It may be – what are we now? October. It may be 12 months time. I don’t expect it would – there would be huge longevity in my working career, given that I have health items that I have to attend to. So I’ve got to look at balancing what I can do. I don’t see that there’s huge longevity in – in working.
[4] Transcript 18 October 2021, p.74 lines 1-6.
15 There was no medical evidence that the appellant’s medical conditions would prevent him from continuing in the work force, if he chose to do so. Indeed, both conditions were diagnosed in 2015 and were being managed with medication at the time of trial. Other than the appellant’s unqualified opinion expressed during cross-examination, that there would not be “huge longevity” in his working career given his “health items”, there was no evidence that he would necessarily leave the workforce at a particular time.
16 Ultimately, the primary judge found that the appellant may need to delay his retirement and that “there was no evidence of an incapacity to work” and “no evidence that he will be unable to continue working for any other reason” (at [59]).
17 In relation to the alleged failure by the primary judge to find how long the respondent would continue working; again, no such finding was sought by the appellant at trial. Indeed, as the primary judge noted, the appellant’s submission was only that the respondent has a “reasonable expectation of a stable, well remunerated employment over the years to come” (at [55]).
18 Section 75(2) of the Act requires numerous matters to be taken into account, where relevant, when deciding whether or not to make any adjustment in favour of a party. The shorthand identification of those matters continues to be referred to by some (including the primary judge) as ‘future needs’, but as the Full Court has said on a number of occasions,[5] such a descriptor is apt to mislead. In Collins and Collins,[6] the Full Court said:
In particular, we reject the submissions … that sec. 75(2) is referable only to a question of “financial need”. That confuses the exercise under sec. 79 (which includes sec. 75(2)) with proceedings for spousal maintenance under sec. 72-75. … [t]he sec. 75(2) factors within sec. 79 have an independent existence which is quite different from and separate from proceedings for spouse maintenance.
…
… sec. 75(2) factors within sec. 79 are not confined to issues of financial need. …
…
… The procreation and nurture of children is a fundamental aspect of marriage as understood in our society. When the parents separate the question of the responsibility for the nurture of those children until they reach adulthood is obviously of great importance, not only to the parties and their children, but to society generally. Paragraph (c) requires the Court to have regard to that circumstance. It would not be possible to attempt to do so in a mathematical way. Senior counsel conceded that para. (c) was concerned not only with the financial implications of the sole custody of children of the former marriage, but with the moral and social responsibilities which go with that and we consider that that concession was rightly made. …
… Those responsibilities include not merely the financial and day-to-day support of the child, but the myriad decisions which need to be made and responsibilities borne in respect of the health, education, socialisation and general well-being of the child. …
[5] See e.g. Collins and Collins (1990) FLC 92-149; Waters and Jurek (1995) FLC 92-635; Clauson and Clauson (1995) FLC 92-595.
[6] Collins and Collins (1990) FLC 92-149 at 78043-5–78043-8.
19 And in Clauson and Clauson,[7] the Full Court said:
If a shorthand term has to be used to describe the last of those steps [the evaluation of the matters referred to in s 75(2)], it is preferable and customary to refer to it simply as the "s. 75(2) factors". In the earlier years of the Court it was sometimes referred to as the "needs factors". That was misleading and has long since been discouraged. …
[7] (1995) FLC 92-595 at 81,907.
20 In the current case, that the primary judge identified a range of matters germane to s 75(2), including the ages of the parties and their respective states of health (s 75(2)(a)); the disparity in income between the parties with the appellant earning $140,000 per annum and the respondent $105,000 (s 75(2)(b)); the respondent having the primary care of a child under the age of 18 (s 75(2)(c)); commitments of each party to support the child (s 75(2)(d)(ii)); and that the appellant was paying child support (s 75(2)(na)).
21 Accordingly, it is not correct to submit, as the appellant does, that the primary judge took into account as the “critical if not the only reason” for the adjustment under s 75(2), the respondent’s necessary financial commitment to support the child. By way of summary, the primary judge said:
58.I find that the [respondent’s] future needs are more likely to be greater than the [appellant]. While it is hoped that once these proceeding are concluded the child might spend more time with …[the appellant] (and I note that both parents gave evidence that they wished it to happen), I think it is unlikely that the [appellant] will assume primary responsibility (including financial responsibility) for the child. The cost associated with caring for child combined with her lower earnings mean that her future needs will be greater.
59.The [appellant] presently has a greater earning capacity than the [respondent] and if he needs to work it he may have to delay his retirement. There is no evidence of an incapacity to work and there is no evidence that he will be unable to continue working for any other reason.
60.Taking all those matters into account I find that there should be an adjustment of 5% to allow for the [respondent’s] future needs.
(Emphasis added)
22 While the expression of the respondent’s “future needs” being more likely greater than the appellant’s, and the last sentence in [58] may have been infelicitous, when read in context, it is apparent that the primary judge took into account the range of matters earlier identified and, in particular, not only the financial cost associated with caring for the child and her lower earnings but also her primary care of the child. There is of course more to caring for a child than providing for their financial needs as acknowledged by the primary judge’s reference to “including financial responsibility”.
23 Further, and contrary to the submission made by the appellant, the primary judge did consider the fact that child support was being paid by the appellant (at [56]).
24 No submission was made that precise findings of fact were required as to the respondent’s financial commitment to the child. It was common ground that, at the time of trial, the child had spent very little time with the appellant since April 2020. It was also common ground that, apart from the child support paid by the appellant, the child’s day to day needs were met by the respondent. The precise costs of the child was not a fact requiring determination. The primary judge found, consistent with the evidence, that the respondent was likely to remain the primary carer for the child and that it was “unlikely that the appellant would assume primary responsibility (including financial responsibility) for the child” (at [58]).
25 Contrary to the appellant’s submission, the primary judge did consider the respondent’s earning capacity. It was common ground that the respondent earned considerably less than the appellant but has a longer working life remaining, given the 12 year age difference. Even if the appellant continued to work for only another two years, the income disparity alone would be $70,000.
26 The requirement imposed by s 75(2)(c) is to take into account whether either party has the care and control of a child under the age of 18 years and by s 75(2)(d) to take into account the commitments of each party necessary to enable that person to support a child that the party has a duty to maintain. There was no issue in the proceedings about any likely ongoing duty past the age of 18, a factor one might have thought worked in the appellant’s favour.
27 It is apparent, in our view, that by limiting the adjustment to five per cent, the primary judge did indeed balance the competing matters under s 75(2) that the parties identified as relevant matters.
28 The appellant has failed to establish appealable error by Ground 3.
Ground 4
The primary judge erred in concluding that the parties’ contributions were equal
29 It is common ground that:
(a)The respondent had few assets at the commencement of cohabitation;
(b)The appellant had an interest in a property with his first wife and received a sum of money two years after commencement of cohabitation, part of which was contributed towards the purchase of the former matrimonial home;
(c)The appellant had two young sons (11 and 5 years old) at the commencement of cohabitation who spent alternate weekends and half holidays with the parties at least for a number of years up until about 2006;
(d)The appellant paid child support and education expenses for his two sons;
(e)Both parties were employed full time throughout the marriage, save for the respondent taking five months maternity leave after the birth of their child;
(f)The appellant remained in the former matrimonial home after separation and met the outgoings;
(g)The respondent rented accommodation for herself and the child;
(h)The child ceased to spend time with the appellant in April 2020, although both parties expressed a wish for the relationship to recommence after the completion of proceedings (and it seems there may have been some thawing of the relationship between the appellant and the child leading up to the trial).
30 During oral submissions at trial, counsel for the appellant conceded that apart from the initial contribution by the appellant of the proceeds of sale of a home he owned with his first wife, “contributions were broadly speaking equal over the course of the relationship”.[8] The appellant further conceded that “contributions post-separation would favour the [respondent] to some degree” [9] and that the respondent would “certainly…get some credit on account of [her care of the child], and there would be some adjustment on account of that contribution”.[10]
[8] Transcript 18 October 2021, p.124 lines 23-24.
[9] Transcript 18 October 2021, p.124 line 25.
[10] Transcript 18 October 2021, p.124 lines 31-32.
31 In relation to the appellant’s greater contribution to the purchase of the former matrimonial home, the appellant contended at trial that he had received about $118,000 in 2001 (i.e. two years after the commencement of cohabitation), which he contributed to the purchase. The purchase price for the former matrimonial home was $335,000 and the parties jointly obtained a mortgage for $270,000, leaving a balance of $65,000. Even taking into account the payment by the appellant of the stamp duty and legal fees ($13,700 in total), the primary judge concluded that it was “not clear precisely how much was contributed [to the purchase]” (at [43]). Further, the primary judge noted that “the contribution was made over 20 years ago” (at [43]) and while it was accepted by the primary judge, that the appellant contributed more than the respondent to the initial purchase of the former matrimonial home, “that contribution cannot be viewed in isolation from the balance of contributions made by the parties through the course of the relationship” (at [44]). The primary judge was, with respect, correct in his statement of the applicable principles by reference to the authorities cited in the judgment.[11]
[11] Jabour & Jabour (2019) FLC 93-898; Horrigan & Horrigan [2020] FamCAFC 25; Benson & Drury (2020) FLC 93-998.
32 At trial, each party pointed to the myriad of contributions made by each of them respectively, which the primary judge referred to and made findings about. In summary, the primary judge found:
54.Considering all the evidence and the submissions, I find that the parties contributions to the matrimonial property to be equal. Both parents worked throughout the relationship. The [respondent] was the primary carer for the child and also provided care to the [appellant’s] children. The [appellant] made a significant contribution to the purchase of the matrimonial home.
33 The finding of equality was open on the evidence.
34 The appellant has failed to establish appealable error by Ground 4.
Outcome
35 As no ground of appeal succeeds, the appeal will be dismissed.
costs
36 The appellant has been wholly unsuccessful, and it is conceded by the appellant that if the appeal fails, costs should follow the event. In our view, an order for costs is justified. It is further conceded by the appellant that, in those circumstances, an appropriate costs award would be $12,000. We will so order, and the appellant will have 28 days to pay.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Carew & Hartnett. Associate:
Dated: 5 October 2022
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