Blandford & Esmore
[2022] FedCFamC1A 67
•31 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Blandford & Esmore [2022] FedCFamC1A 67
Appeal from: Esmore & Blandford [2021] FedCFamC1F 195 Appeal number(s): NAA 69 of 2021 File number(s): ADC 1455 of 2016 Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Property and maintenance of parties – Alteration of property interests – Assessing contributions of the parties – Matters for court’s consideration – Appeal against percentage outcome reached by the primary judge – Whether the primary judge provided inadequate reasons as to the percentage outcome reached – Whether the outcome determined by the primary judge was unreasonable or plainly unjust – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 90SF(3)(r), 90SM(4)(a)–(c) Cases cited: Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bolger & Headon (2014) FLC 93-575; [2014] FamCAFC 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cobb & Simons [2011] FamCAFC 78
Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Field & Basson [2013] FamCAFC 32
Gorman & Huffman [2016] FamCAFC 174
Horrigan & Horrigan [2020] FamCAFC 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Layton & Layton [2014] FamCAFC 126
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Roverati & Roverati (2021) FLC 94-027; [2021] FamCAFC 89
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 45 Date of hearing: 4 May 2022 Place: Adelaide (via video link), delivered in Melbourne Counsel for the Appellant: Mr Tredrea Solicitor for the Appellant: Carmen Wood & Associates Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Adelaide Family Law ORDERS
NAA 69 of 2021
ADC 1455 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BLANDFORD
Appellant
AND: MR ESMORE
Respondent
ORDER MADE BY:
ALDRIDGE, HARPER & RIETHMULLER JJ
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $2,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blandford & Esmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & RIETHMULLER JJ:
INTRODUCTION
On 15 November 2021, property settlement orders were made dividing the property and superannuation of the parties 70 per cent to the wife, Ms Blandford (“the appellant”), and 30 per cent to the husband, Mr Esmore (“the respondent”). The appellant appeals on two grounds: first, that the primary judge failed to give adequate reasons, and secondly, that the primary judge erred in assessing the contributions of the parties. The third ground set out in the Notice of Appeal filed 26 November 2021, was not pursued by the appellant.
BACKGROUND
The parties cohabited for over 18 years from early 1997 (when the appellant was 19 years old and the respondent 24 years old) until January 2016. During their relationship, they had four children, the eldest two of which are now adults. The youngest two children (twins) are now 15 years of age, live with the appellant, and spend time with the respondent each alternate week for a period of five nights and on special occasions in accordance with their wishes.
At the time of the trial, the parties had assets of $284,502.83 (nearly $256,000 of which was the proceeds of sale from the home where they had been living together). The parties also had superannuation of $340,523.78 (the appellant $247,613.78 and the respondent $92,910). The total combined value of their assets and superannuation was around $625,000.
The appellant brought $118,000 to the relationship (from a personal injuries compensation payment), which was used in 2000 to purchase the home where the parties lived and raised their children. The home was purchased by the appellant’s father (“the grandfather”), partly with the funds from the appellant’s compensation payment, partly with funds of the grandfather, and partly with funds borrowed by the grandfather. The parties made no repayments to the grandfather, nor did they meet the outgoings with respect to the property. When the home was sold, the parties reached a settlement with the grandfather, which the primary judge found “recompensed” the grandfather “to his satisfaction” with respect to his assistance (at [260]).
Both parties were homemakers and earned income during the relationship. The primary judge found that the parties earned modest incomes and lived “fortnight to fortnight” (at [72]), although at the time of trial, the appellant had a greater earning capacity than the respondent.
The parties confronted many difficulties during their relationship. The appellant suffered mental health issues, including spending four weeks in CC Hospital in 2005 following a psychotic episode when she was diagnosed with schizophrenia, and towards the end of the relationship, she was diagnosed with borderline personality disorder. During the relationship, the parties spent considerable funds on alcohol despite their straightened financial circumstances. Their relationship involved arguments and abuse. The primary judge concluded that:
257.There is little doubt that both parties made it difficult for the other of them to function well individually and as parents in an atmosphere of:
• regular heavy drinking;
• regular heated arguments, and on occasions verbal abuse and violent arguments; and
• serious levels of dysfunction overall,
impacted, on occasion, by the [appellant’s] serious mental health challenges.
258. There is little doubt that on many occasions the [appellant] felt overwhelmed by her parenting responsibilities in particular, coupled with what I am satisfied was less than optimal support by the [respondent] in that regard. Likewise the [appellant’s] mental health issues would have, from my observations of him in the witness box, stretched the coping capacities of the [respondent]. Unfortunately both parties used alcohol to excess which would have exacerbated the situation overall.
Significantly, the primary judge also found that the respondent was “frequently verbally abusive to the [appellant] during arguments and that on occasions he was physically violent towards her” (at [239]).
Following separation in 2016, there were orders for shared care of the children on a week-about basis, which continued (save for a brief period in 2018 due to the appellant’s mental health issues) until January 2019, when the children commenced living with the appellant and spending time with the respondent.
The primary judge summarised the matters which her Honour took into account when striking the percentage assessment with respect to contributions at 70/30 per cent in the appellant’s favour, saying:
271. I am satisfied that the parties’ contributions should be assessed as 70 per cent in favour of the [appellant] and 30 per cent in favour of the [respondent] for the following reasons:
• The [appellant’s] overwhelming financial contribution to the acquisition of the parties only substantial asset;
• The [appellant’s] superior contribution with respect to homemaking and parenting including by her contribution of her wages towards the support of the family generally;
• The [respondent’s] contribution by way of homemaking and parenting including by his contribution of his wages towards the support of the family generally;
• The contribution made on behalf of the [appellant] by her parents both during the period of cohabitation and post-separation with respect to the physical care of all of the parties’ children and the meeting of expenses for the children;
• The [appellant’s] contributions being made more arduous than necessary as a result of verbal and physical abuse directed towards her on a regular basis throughout the period of the relationship.
Neither party contended that the facts and circumstances should result in any further adjustment to the percentages assessed with respect to contributions.
GROUND 1
The appellant’s first ground of appeal argues that “[i]n assessing the contributions of the parties, the learned primary Judge erred in failing to give adequate reasons”.
A judge must provide adequate reasons for a decision (see Bennett & Bennett (1991) FLC 92-191; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Roverati & Roverati (2021) FLC 94-027 (“Roverati”)). The often quoted test, as set out in Roverati at [31], asks whether the appeal court is able to “ascertain the reasoning upon which [a] decision is based”, or whether justice is “seen to have been done”, however it is the application of the test that is difficult. There is no closed list of examples. However, the test will be satisfied where there is a failure of a primary judge to provide reasons for a particular finding (for example, see Gorman & Huffman [2016] FamCAFC 174 at [301] where the primary judge did not address why a supervision order was for an unlimited period), or there is a logical inconsistency in the reasons (such as an acceptance of evidence that is contrary to the outcome: for example see Cobb & Simons [2011] FamCAFC 78 at [35]–[36]), or it is unclear how the primary judge’s reasons operated (for example, in Layton & Layton [2014] FamCAFC 126 at [67]–[70], where it was unclear which asset pool the primary judge was discussing).
The appellant argues that in this case, the reasons are inadequate with respect to explaining how the various relevant considerations identified by the primary judge were converted to the percentage assessment of 70 per cent to the appellant. As was explained by Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] (and approved in Roverati at [38]), as “the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a ‘leap’ from words to figures”.
It is not possible to minimise the “leap” from the qualitative to the quantitative by scoring each factor and then somehow calculating the total, as to do so would result in a process that is not a holistic assessment of the relevant matters (see Dickons & Dickons (2012) 50 Fam LR 244 at [21]). Such an “accounting” or “scoring” approach is necessarily flawed as it would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) and s 90SM(4)(c) of the Family Law Act 1975 (Cth) (“the Act”) to a quantitative value. As a result, such an “accounting” approach has been consistently disapproved (see Bolger & Headon (2014) FLC 93-575 at [23]–[28]; Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48]; Benson & Drury (2020) FLC 93-998 (“Benson”) at [35]).
There is no room for complaint as to adequacy of reasons in cases where the primary judge has appropriately identified and understood the considerations relevant to contributions in a particular case, and then struck a percentage assessment, as there is simply no more that can be said (beyond unnecessarily fulsome qualitative descriptions, which would not address the appellant’s complaint in any event).
Many of the points articulated by the appellant are based upon the argument that “[i]t is not possible to see how the Judge treated” each of the initial financial contributions, the appellant’s greater income, and the arduousness of the appellant’s contributions due to family violence (Appellant’s Summary of Argument filed 11 March 2022, paragraph 17). The appellant’s arguments in this regard cannot be sustained in the context of the reasons given in this case. The primary judge identified and discussed each of these factors before expressly taking them into account in determining the contributions assessment; the summary of the factors (set out in [271] and quoted above) follows extensive consideration of the underlying facts and circumstances. For the reasons discussed above, there is nothing more that the primary judge could be expected to say, so as to better explain the percentage assessment of contributions that flowed from this mixture of qualitative and quantitative factors. Thus, the arguments in this respect cannot succeed.
Secondly, the appellant argues in her Summary of Argument at paragraph 14 that “there is no explication at all as to how the Respondent’s negative contribution … informed the final outcome”. Such a submission misconceives the nature of the contributions assessment required under the Act. The relevant provisions in ss 90SM(4)(a), 90SM(4)(b) and 90SM(4)(c) of the Act only provide for account to be taken of a “contribution”. A “negative contribution” would be illogical, in that a negative or a loss is not a “contribution” but a taking or wasting. This has long been recognised as the law pursuant to the equivalent provision in s 79 of the Act (see Antmann and Antmann (1980) FLC 90-908 at 75,744, cited with approval in Field & Basson [2013] FamCAFC 32 at [68]). It was not alleged that the respondent had engaged in conduct causing financial loss or waste (which would be taken up pursuant to s 90SF(3)(r) of the Act), but rather, that the appellant’s contributions were more arduous as a result of the respondent’s domestic violence directed at her, as discussed in Kennon & Kennon (1997) FLC 92-757 at 84,290–84,295 and 84,329. Such a finding results in greater weight being given to the appellant’s positive contributions, not taking up a “negative contribution” by the respondent. The primary judge identified the greater contribution of the appellant in this regard and expressly took it into account.
Thirdly, the appellant argues that the reasons are inadequate to explain why the contributions percentage determined by the primary judge would also be applied to the parties’ superannuation.
The nature of superannuation differs from more usual forms of property in that it is usually accumulated over a person’s whole working life, and access to superannuation is severely restricted until retirement. Thus, in some cases, it is important to consider superannuation separately from other assets (see Coghlan and Coghlan (2005) FLC 93-220). In this case, there was no evidence of any significant disparity in the superannuation of the parties when entering into the relationship, nor was that likely given their ages at the time, and both parties engaged in homemaking and employment at different times. Arguments that the primary judge should treat superannuation separately from the other assets were not raised at trial (the appellant’s balance sheet tendered at trial contained no reference to superannuation, simply arguing that neither party had contributed financially to the other’s property or superannuation, and therefore there should be no settlement of such interests).
The gravamen of the appellant’s complaint appears to be that her superannuation ought to have been quarantined in some way, as it was said to be accumulated as a consequence of her greater earnings during the relationship. It is not the case where one party to a lengthy relationship earns more or accumulates more superannuation that it should in some way be quarantined. To adopt such an approach would leave homemakers, who have not accumulated significant superannuation, with no share of the superannuation of the party who engaged in employment throughout the relationship. It would also operate unfairly against those who are self-employed or in casual and contracting roles, and may not have accumulated superannuation but instead applied their income to day to day needs of their family.
The earnings of the parties in this case were expressly taken into account by the primary judge. In the circumstances, we are not persuaded that the primary judge was required to specifically address any particular fact or circumstance relating to superannuation beyond identifying all of the factors that bore upon the exercise of the discretion with respect to the property of the parties. In the present case, the primary judge considered the issue of superannuation in the context of the circumstances of the case as a whole at [272]–[276]. We see no appealable error arising from the primary judge’s approach of treating superannuation globally with the other property of the parties in the circumstances of this case.
Fourthly, the appellant argued that the “indirect financial contribution of the Appellant by way of [the grandfather] making all mortgage payments and rates, taxes and utilities payments upon the … home during the relationship has … been neglected” (Appellant’s Summary of Argument filed 11 March 2022, paragraph 20). However, the primary judge found (at [260]) that the grandfather had been recompensed to his satisfaction for the financial assistance provided, as he received a greater proportion of the sale price of the property than the proportion of his initial contribution.
On the hearing of the appeal, this argument was developed on a different basis (not the subject of a ground of appeal) to allege that the primary judge had fallen into error in her findings, and that the grandfather had been “recompensed to his satisfaction” for all of the outgoings on the property in which the parties lived.
The home was purchased using $118,000 from the appellant with the balance of the purchase price provided by the grandfather. Whilst the registered proprietor of the home was the grandfather, there was clearly a resulting trust (with respect to a proportionate share of the property) that arose as a result of the money contributed to the purchase by the appellant. The amount contributed by the grandfather, as alleged by the respondent, was identified by the primary judge (at [47]) as $61,951.13. The primary judge later noted that it was “common ground” that the amount was $62,000 (at [182], see also Transcript 2 November 2021, p.52 lines 9–10, where no dispute is identified, although counsel for the appellant erred with respect to the precise figure). On these figures, the grandfather would have contributed around 31.5 per cent to the purchase price. This was in accord with the appellant’s trial affidavit, which described the grandfather’s contribution to the purchase of the home as “his capital investment into the property being approximately 32% of the total purchase price” (Appellant’s affidavit filed 21 August 2021, paragraph 70).
The claim with respect to the appellant’s interest in the home was settled on terms that resulted in the grandfather receiving around 41.5 per cent of the sale proceeds of the home (at [117]). The amount included the sum of $38,225, described as “reimbursement for the household outgoings he paid in respect of the property” (Appellant’s affidavit filed 21 August 2021, paragraph 68(b)). The grandfather gave oral evidence that he had “claimed back” the outgoings he had paid for in respect of the property for the appellant and respondent (see Transcript 2 November 2021, p.46 lines 8–9). Unsurprisingly, on this material, the primary judge formed the view that the grandfather had been “recompensed to his satisfaction” (at [260]).
At the appeal hearing, it was argued that one can deduce from the evidence that the grandfather actually contributed around 41.5 per cent to the purchase of the home, and therefore did not receive any recompense for the outgoings he had paid. This proposition is inconsistent with the appellant’s trial affidavit and the oral evidence of the grandfather at trial. The proposition was not put to witnesses in cross-examination, nor was it made to the primary judge (see the final address at Transcript 2 November 2021, p.52 lines 7–13).
No criticism can be made that the primary judge failed to make findings on this argument and take it into account, nor that the primary judge’s reasons were inadequate, because this was not an issue that was raised before the primary judge for determination. As the High Court made clear in Metwally v University of Wollongong (1985) 60 ALR 68 at 71, “[i]t is elementary that a party is bound by the conduct of his case” except in “the most exceptional circumstances”. The appellant did not argue that she had established exceptional circumstances that warrant permitting her to raise this argument for the first time on appeal.
At the hearing of the appeal, counsel for the appellant raised a number of further arguments with respect to the claim that the primary judge gave inadequate reasons. The first argument was that the use of the word “overwhelming” (at [271]) was insufficient to describe the appellant’s initial contribution to the purchase of the home, when it was apparent that the appellant’s financial contribution to the purchase was the only financial contribution made by the parties to the purchase. We are not persuaded that such a reading of the word should be adopted, as it is apparent from the judgment that the primary judge was well aware that only the appellant’s funds were applied to the purchase of the home. It appears that the primary judge was referring to the contribution to the home as being overwhelming in the context of financial contributions overall. Even on the appellant’s literal reading of the phrase, once viewed in the context of the reasons as a whole, it is no more than an infelicitous expression. It was also argued that the primary judge ought to have expressed the appellant’s contribution to the purchase of the home as a percentage in order to demonstrate that her Honour understood the full nature of the contribution. We are not persuaded that such a course is required where it is apparent from the reasons that the primary judge was well aware of the amount and context of that contribution.
The second argument was that there was no specific finding as to whether the respondent had provided the appellant with $200 per week during the relationship from his earnings. Whilst this was an issue and the subject of cross-examination at trial (see Transcript 1 November 2021 p.15 lines 8–12 and p.26 lines 9–28), it does not appear to be a matter that necessarily required determination, as the primary judge was satisfied that both parties applied their income to the benefit of the family (at [253]). The relevance of the issue went to whether the parties made payments to the grandfather (a proposition rejected by the primary judge and not challenged on appeal). We are not persuaded that the primary judge was required to resolve that issue in the context of this case, as was acknowledged by the appellant’s counsel in his final address at the trial (see Transcript 2 November 2021, p.53 lines 15–30).
The third argument put orally under this ground was that the primary judge ought to have identified a particular percentage adjustment to reflect the arduousness of the appellant’s contributions as a result of violence by the respondent. For the reasons set out above, it is not appropriate to strike a specific percentage for each item that is relevant to contributions. Whilst such a practice may have existed in the past with respect to so called “Kennon claims”, it is no longer appropriate (see Benson at [35]).
Finally, a further argument outside the grounds of appeal was raised: that the primary judge failed to take into account the benefit that the grandfather provided to the parties by enabling the purchase of the home, and allowing the free use of his share of the home (the grandfather only being recompensed for his payment of outgoings).
This factor was not specifically identified in submissions, nor was the primary judge specifically asked to take it into account. In his final address at the trial, counsel for the appellant only touched upon this issue, identifying it simply as a missed opportunity by the parties, saying:
[COUNSEL FOR THE APPELLANT]: … as a matter of logic, in principle, had these two parties paid off all the mortgage … over the years and [the grandfather] not [been] burdened by it – [the grandfather] wouldn’t have any money payout at the end … of the matter. What would have been there was – would have been some 400 thousand-odd dollars, sitting in a solicitor’s trust account, to be distributed between the parties.
(Transcript 2 November 2021, p.53 lines 8–13)
The appellant’s Case Outline filed 14 October 2021 for the trial expressed no specific reliance upon contributions in this respect, identifying only the claim that the maintenance and upkeep of the home was substantially undertaken by the grandfather (Appellant’s Case Outline filed 14 October 2021, paragraph 20), and an argument that the respondent’s claim for property settlement orders was not assisted by the length of the relationship on the basis that “it in fact diminishes it, by emphasising the length of time the [respondent] has already enjoyed the benefit of the use of the [appellant’s] property and financial resources” (Appellant’s Case Outline filed 14 October 2021, paragraph 21) (emphasis in original).
As with the previously discussed argument, we are not persuaded that the appellant had raised this argument before the primary judge, nor are we persuaded that the appellant should be able to raise it on appeal for the purpose of arguing that the primary judge failed to take a relevant consideration into account, nor to support an argument that the reasons were inadequate. In any event, it was an integral incident of the contribution by the appellant in accumulating the interest in the home that was discussed by the primary judge. Having regard to [89], [104], [105], and [117] of the reasons, it can be inferred that the primary judge took account of the benefit received by the parties through the grandfather providing free accommodation for them over many years. In the absence of specific submissions directed to this point being put to the primary judge, we are not persuaded that, in the context of the facts of this case, it was necessary for the primary judge to expressly identify this incident of the contribution of the share of the home, particularly given the primary judge’s findings about the importance of that contribution, and that it flowed from the appellant’s personal injury award and the support of the grandfather.
As a result, the appellant has not established appealable error with respect to this ground, or the additional arguments raised orally on the hearing of the appeal.
GROUND 2
The second ground of appeal is framed as follows:
2. The learned primary Judge erred in assessing the contributions of the parties:
2.1 In giving insufficient weight to the contribution of the Appellant, and the significance of that contribution, to the purchase of the [home] in the State of South Australia;
2.2 In giving no weight, or insufficient weight, to the superior direct financial contributions of the Appellant by way of her significantly greater wage income over the duration of the relationship;
2.3 In giving no weight, or insufficient weight, to the superior non-financial contributions of the Appellant in the role of homemaker and parent over the duration of the relationship;
2.4 In giving no weight, or insufficient weight, to the post-separation contribution of the Appellant to the superannuation entitlements standing to her account;
2.5 In giving insufficient weight to the negative contribution of the Respondent during the course of the relationship (“Kennon claim”), as found by the learned primary Judge to have arisen in the case; and
2.6 In giving undue and excessive weight to the post-separation contribution of the Respondent in respect to his parenting role.
Each of the particulars provided in support of this ground is to the effect that “insufficient weight”, “no weight” or “excessive weight” was given to each of the factors that the primary judge considered in determining the contributions of the parties.
The appellant has not pointed to any passages in the judgment where it could be said that the qualitative descriptions of the various factors were inconsistent with their true nature (for example, the primary judge did not describe the appellant’s obviously significant initial contribution as modest or minimal, instead noting that it was an “overwhelming financial contribution” (at [271])). As a result, the claim that the primary judge gave various factors “no weight” cannot be sustained as her Honour clearly identified each of these matters and took them into account.
The appellant argues that there was a significant difference in the financial contributions of the parties during the relationship due to their different earnings. The primary judge concluded, on the very limited evidence, that the parties earned “very modest income” amounts during the relationship (at [184]). Despite the appellant’s detailed analysis of the respondent’s earnings (including a schedule setting out his earnings for each year of the relationship to show that his earnings averaged around $25,000 per annum), the appellant did not provide evidence of her earnings throughout the relationship.
The appellant argues that a significant difference in earnings should be inferred as a result of the differences in the superannuation balances held by each party at the time of trial. The difference in the superannuation entitlements of the parties is not necessarily reflective of their differences in earnings over the relationship. For example, the appellant gave evidence that the respondent undertook “casual job agency work” for a considerable period, yet there is no evidence as to the amount of superannuation entitlements, if any, that would have been paid on such casual work. Similarly, there is no evidence as to whether one or the other party received more than the minimum superannuation guarantee amounts, nor whether additional superannuation contributions were made, nor whether either of the superannuation funds had significantly different earnings or returns.
The evidence of the parties’ overall financial position during the relationship was to the effect that the parties were unable to meet their day to day expenses without support from the appellant’s parents. On the evidence before the primary judge, there is no compelling inference as to the difference, if any, in the earnings of the parties. Thus, it was open to the primary judge to accept the submissions of the respondent’s counsel that the parties both earned a “very modest income” during the relationship.
The substance of this ground appears to be a complaint as to the reasonableness of the exercise of the discretion by the primary judge in reaching the overall property settlement amount. As the appellant has been unable to point to any specific error by the primary judge (such as acting upon wrong principle, taking irrelevant matters into account, failing to take relevant factors into account, or mistaking the facts), the appellant is left to argue that the outcome is “unreasonable or plainly unjust” in order to show that “although the nature of the error may not be discoverable … a substantial wrong has in fact occurred” (House v The King (1936) 55 CLR 499 (“House v The King”) at 505) or, put another way, that the outcome was “plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at [186]). Importantly, such an argument requires more than simply persuading the judges of the appellate court that they may have “taken a different course” if they had been in the position of the primary judge (see House v The King at 504).
We have considered all of the matters identified and discussed by the primary judge and the detailed arguments of counsel for the appellant on the appeal. The appellant received 70 per cent of the property and superannuation of the parties, compared to 30 per cent received by the respondent. The primary judge assessed the appellant’s contributions at well over double those of the respondent. The assessment of contributions reflected the significant differences between the contributions of the parties. We are not persuaded that the outcome reached by the primary judge was either unreasonable or plainly unjust.
CONCLUSION
As the appellant has not succeeded on either of the grounds argued, the appeal must be dismissed.
It was agreed at the hearing of the appeal that if the appellant was unsuccessful, the respondent should have his costs fixed at $2,000. We therefore order that the appeal be dismissed, and that the appellant pay the respondent’s costs fixed in the sum of $2,000.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Riethmuller. Associate:
Dated: 31 May 2022
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