BOSWORTH & FIRKINS
[2014] FamCAFC 202
•21 October 2014
FAMILY COURT OF AUSTRALIA
| BOSWORTH & FIRKINS | [2014] FamCAFC 202 |
| FAMILY LAW – APPEAL – PROPERTY – DE FACTO CROSS-VESTED PROCEEDINGS – Where the proceedings were brought pursuant to the Domestic Relationships Act 1994 (ACT) – Where the appellant submitted that the trial judge erred in the weight given to the parties’ respective contributions – Where it was not demonstrated that the trial judge’s findings were plainly wrong being no proper exercise of his judicial discretion – Where the trial judge identified and assessed each parties’ contributions with precision – Where the trial judge did not take into account any irrelevant considerations or fail to take into account relevant considerations – No merit in these grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Where the appellant submitted that the trial judge failed to provide any or any adequate reasons for his assessment of the various percentage entitlements of the parties – Where it was claimed that there is an unexplained internal inconsistency between the assessment of the contributions of the parties and between the assessment of the contributions of the parties and the assessment of the relevant s 19(2) factors – Where it was unnecessary for the trial judge to explain the differences between the percentage findings – Where there was a clear difference in the exercise of assessing contributions and the s 19(2) factors – Where the reasons are otherwise adequate – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where there are circumstances that justify an order for costs – Appellant to pay respondent’s costs of and incidental to the appeal. |
| Domestic Relationships Act 1994 (ACT) Bennett & Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Bosworth |
| RESPONDENT: | Ms Firkins |
| FILE NUMBER: | CAC | 1468 | of | 2009 |
| APPEAL NUMBER: | EA | 151 | of | 2012 |
| DATE DELIVERED: | 21 October 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
| HEARING DATE: | 5 December 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 October 2012 |
| LOWER COURT MNC: | [2012] FamCA 874 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Godtschalk |
| SOLICITOR FOR THE APPELLANT: | Phelps Reid Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini & Dunn |
Orders
The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bosworth & Firkins 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 SYDNEY |
Appeal Number: EA 151 of 2012
File Number: CAC 1468 of 2009
Mr Bosworth
Appellant
And
| Ms Firkins |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 26 April 2013 Mr Bosworth (“the appellant”) appeals against a property settlement order made by Faulks DCJ on 19 October 2012. The appeal is opposed by Ms Firkins (“the respondent”).
In summary, the order appealed against provided that the respondent pay to the appellant the sum of $106,240 within 60 days of the orders being made.
The proceedings were commenced in the ACT Supreme Court under the
Domestic Relationships Act 1994(ACT) (“the Domestic Relationships Act”).
On 21 March 2012 the Master of the Supreme Court transferred the matter to the Family Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT).
Background
At the time of the trial, the appellant was aged 51 years and the respondent was aged 49 years.
It was agreed that the parties began cohabitation in December 1993, however there was a dispute between the parties as to the date the relationship ceased; the appellant contending the relationship ceased in February 2009 and the respondent in December 2007.
There are two children of the relationship, S born
in 2000, and L born in 2003. At the time of the trial it seems that the parties were equally sharing the care of the children.
The parties spent most of their relationship overseas, as both work for a government department. During the course of the relationship the respondent was assigned a number of international postings and the appellant accompanied her on such postings.
The matter was heard by Faulks DCJ from 31 July 2012 to 2 August 2012, and his Honour made final orders and delivered his reasons for judgment on
19 October 2012.
Orders made on 19 October 2012
His Honour made the following relevant orders:
(1) The respondent, [Ms Firkins], pay to the applicant, [Mr Bosworth], the sum of $106,240 within 60 days of the date of these Orders.
(2) Otherwise, each party is the sole owner of any property currently in their name or possession and each party is solely liable for any liability currently in his or her name, or secured over any item of property currently in his or her possession.
…
The appellant appeals Order 1 of these Orders.
Relevant legislation – the Domestic Relationships Act
Sections 15 and 19(2) of the Domestic Relationships Act provide as follows:
15 Property orders
(1)On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to—
(a)the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19 (2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
(2)A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.
…
19 Maintenance orders
…
(2)In exercising a power under subsection (1), a court must have regard to—
(a)the income, property and financial resources of each party; and
(b)the physical and mental capacity of each party for appropriate gainful employment; and
(c)the financial needs and obligations of each party; and
(d)the responsibilities of either party to support any other person; and
(e)the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and
(f)any payments made to the applicant, under an order of a court or otherwise, in respect of the maintenance of a child or children.
…
Reasons for judgment delivered 19 October 2012
His Honour commenced his reasons for judgment by finding that because the relationship ended prior to 1 March 2009 the legislation that applies is the Domestic Relationships Act and not the Family Law Act 1975 (Cth) (“the Act”).
His Honour then found that the domestic relationship between the parties terminated in February 2009 (and not December 2007), and thus the appellant did not require leave to commence the proceedings (as he would have done if the relationship terminated in December 2007).
His Honour went on to indicate that even if he had found that the domestic relationship had terminated in December 2007, he would have granted leave for the application to be brought out of time.
His Honour then recorded the orders sought by the parties; in summary, the appellant sought that their assets be divided equally and the respondent sought that each party keep those assets in his or her name.
It was asserted by the respondent that an agreement was in place between the parties at around the time of the relationship commencing “that neither would make any claim on any property acquired by the other during the course of the relationship and that each would keep what he or she had if the relationship came to an end …” (at [57]). The appellant denied there was any such agreement reached.
His Honour found though that there was no evidence that any of the factors required to be satisfied under s 33 of the Domestic Relationships Act were satisfied, and thus “the alleged agreement would not interfere with the operation of [his] determination as to the rights of the parties under Part 3 of the Domestic Relationships Act.”
His Honour recorded that the parties spent the majority of their relationship overseas, summarised as follows:
a)The parties commenced to live together in December 1993 when the appellant moved into the respondent’s house in Suburb N, ACT. From this time until December 1994 the parties resided in Canberra.
b)In December 1994 the parties went on an overseas holiday before the respondent accepted a posting in Country D, with the appellant accompanying her as her de facto spouse. Whilst the parties were overseas the Suburb N property was rented out.
c)The parties lived in Country D from January 1995 to July 1996.
d)From July 1996 to August 1999, the parties lived in Country E, again due to an international posting for the respondent. The appellant accompanied her as her de facto spouse.
e)From August 1999 to January 2001, the parties lived in Canberra noting that the eldest child was born in 2000. In October 2000 the Suburb N property was sold and the proceeds were used to help purchase a property in Suburb M, ACT, registered solely in the name of the respondent.
f)From January 2001 to July 2003, the parties lived in Country F, with both of them being posted there.
g)From July 2003 to November 2005, the parties returned to live in Canberra noting that the parties’ second child was born in 2003.
h)In November 2005, the respondent was posted to Country B with the appellant accompanying her as her de facto spouse. The appellant obtained his own employment whilst in Country B.
i)In November 2008, the parties returned to Canberra and resided at the Suburb M property.
j)In April 2009, the appellant moved out of the Suburb M property and into a property purchased at Suburb O from his savings.
None of these findings and conclusions was the subject of complaint on appeal.
The property pool
His Honour then set out the assets and liabilities of the parties at [72].
His Honour found that the “value” of the respondent’s superannuation at the time of hearing was $482,209, and the appellant’s $315,351.
His Honour observed that no superannuation splitting orders could be made as no power exists under the Domestic Relationships Act to do so. However, it was accepted that superannuation entitlements may be a factor to be taken into account under s 19(2) of the Domestic Relationships Act.
His Honour then considered the liabilities of the parties including various loans from the respondent’s sister to her, and from the appellant’s sister and friend to him.
a)His Honour found that there was no evidence that would justify the loan from the respondent’s sister being deducted from the value of the joint assets of the parties. Accordingly his Honour indicated he would only take the loan into account as a liability of the respondent.
b)
In relation to the loans advanced by the appellant’s college friend,
Ms T, and his sister of $45,000 and $10,000 respectively, it was noted that these loans were, on the appellant’s evidence, used to reduce the mortgage on the Suburb O property. Thus his Honour determined to treat these amounts as post-separation contributions by the appellant, and not as liabilities reducing the joint assets available for distribution between the parties.
After traversing the case law in relation to add-backs, his Honour found that the amount of $95,500 drawn down by the respondent from the mortgage over the Suburb M property after separation, and the amount of $38,588 paid by the appellant to meet his legal costs should be notionally added-back to the asset pool.
Thus, his Honour determined the total net assets at $965,516.
Contributions
His Honour then considered the contributions of the parties under s 15 of the Domestic Relationships Act.
His Honour addressed whether the “oral agreement” as asserted by the respondent “about keeping their assets, liabilities and income, in effect, separate from each other reflected on the nature of the relationship” (at [102]). His Honour rejected the claim that the “purported oral agreement” affects “the nature of the relationship such as to cause a division of property based almost exclusively on legal title holding”. His Honour found that the relationship was one akin to marriage at least until December 2007, and thereafter there was a domestic relationship until February 2009.
Initial contributions
It was agreed that there were very few initial contributions by the appellant, but the respondent had introduced the house in Suburb N. The equity in that house at the time was disputed by the parties, the appellant asserting $20,000 and the respondent asserting $41,000. The property was sold some seven years into the relationship for $157,500 and his Honour rejected the submission that that represented the value of the initial contribution of the respondent.
For the period December 1993 (the commencement of the relationship) to October 2000 (the sale of the Suburb N property), and as previously observed, the parties were overseas. The Suburb N property was rented out during some of this time, and his Honour found that the respondent’s contribution to the property was accordingly less significant.
Since the initial contribution of the Suburb N property in 1993 by the respondent, his Honour found that other factors had intervened, such as both parties making non-financial contributions to the property. His Honour rejected the submission that he “take $157,500 [the sale price] as a numerator and $965,516 [the net asset pool] as a denominator and thereby ascribe a particular percentage contribution to the respondent”. Instead, his Honour found that the introduction of this property by the respondent should be given “significant weight” as it formed an “important foundation for whatever wealth the parties had either individually or collectively accumulated subsequently” (at [110]).
Contributions during the relationship
His Honour then considered the contributions of the parties during the relationship, and in particular identified their respective contributions during each period of overseas employment. His Honour concluded as follows (at [141]):
Taking into account all of the factors discussed above, the contributions made by the parties during the course of their relationship (reserving the issue of the initial contribution of the respondent) should be regarded as having been made 55 per cent by the respondent and 45 per cent by the applicant for the following reasons:
a)The respondent was the primary income earner during the parties’ time overseas. However, there were periods when the applicant was employed as well. For most of the parties’ time overseas, the applicant did not earn significant amounts. But during the parties’ time in [Country F], the applicant was also an engaged person and transferred $900 a week to the respondent (whether for payment of the mortgage or household expenses is irrelevant). The applicant was also employed in [Country B] but his income was not used to pay for household expenses. Instead, his income was paid into an Australian account which he was not able to access while in [Country B]. During postings in [Country D] and [Country E], the applicant earned some income from casual employment and used at least some of this income for his own purposes.
b)The applicant attended to household chores such as cooking and cleaning, and looked after the children when the parties did not have a housekeeper/cook/nanny. However, the respondent also attended to these tasks as well as working full-time.
c)The respondent paid the mortgage and contributed to household expenses as well.
(Original emphasis)
His Honour then said this at [143]:
Before taking into account the initial contribution by the respondent, I regard the contributions of the parties during the relationship to have been 55/45 in favour of the respondent. Taking into account the initial contribution by the respondent, however, I regard the overall contributions by the parties to be 65 per cent by the respondent and 35 per cent by the applicant.
Post-separation contributions
His Honour considered that the respondent was at an advantage in occupying the Suburb M property without having to make mortgage repayments until recently, and thus his Honour found it reasonable to say that the appellant made a greater contribution to the Suburb O property both by making mortgage repayments and reducing the loan, and in the application of the monies he had acquired from his sister and Ms T.
His Honour found that the parties equally shared the care of the children post-separation, but the respondent had paid for the children’s dance classes and private school fees. In relation to the latter, his Honour noted that the appellant acquiesced in their daughter attending a private school. However, his Honour found as follows (at [147]):
… In this matter I have no evidence that is satisfactory about whether the attendance at a private school is a joint enterprise or whether it represents the unilateral decision by the respondent to send the child to that school and absent such evidence, I am not prepared to infer that the applicant’s failure to contribute represents a default in his parental obligations, nor is it a factor which should properly be taken into account in considering post-separation contributions.
In taking into account the appellant’s post-separation contributions to the Suburb O property, his Honour assessed the respondent’s contributions overall at 63 per cent and the appellant’s at 37 per cent, reflecting a 2 per cent adjustment on account of their post-separation contributions.
The section 19(2) factors
His Honour then considered the relevant factors under s 19(2) of the Domestic Relationships Act:
a) His Honour found that the respondent had more superannuation than the appellant, and that justified an adjustment in the appellant’s favour.
b) In relation to the parties’ respective capacity for ongoing gainful employment, his Honour noted that it was difficult to find unequivocally that either party had a higher earning capacity. Thus, his Honour did not consider that this factor was properly a matter for any adjustment between the parties.
c) His Honour found that given that the care of the children was shared equally, this was also not a factor that should result in any adjustment.
His Honour concluded that the only matters requiring an adjustment were the fact that the appellant had a greater mortgage than the respondent, and the discrepancy in their respective superannuation entitlements. As a result, his Honour made an adjustment in favour of the appellant of 3 per cent which translated into the respondent being entitled to 60 per cent of the net asset pool and the appellant 40 per cent overall.
His Honour then found that “[t]aking into account each party’s contributions …, their respective earning capacity, superannuation entitlements and care of the children”, the orders proposed were “just and equitable” (at [162]).
Grounds of appeal
The grounds of appeal as contained in the Amended Notice of Appeal filed by the appellant on 26 April 2013 are as follows:
1. The learned Judge erred in the exercise of his discretion in relation to his treatment of the Respondent’s initial contributions. The 10% adjustment (a differential of 20%) to the Respondent was beyond the bounds of a reasonable ambit of discretion particularly having regard to the adjustment made to the Appellant of 3% for superannuation discrepancy.
2. The learned Judge erred in the exercise of his discretion in relation to his treatment of the Respondent’s contributions during the relationship. The 5% adjustment (a differential of 10% to the Respondent) was beyond the bounds of a reasonable ambit of discretion.
3. The learned Judge erred in the exercise of his discretion in relation to the post separation contributions of the Appellant. The resultant 2% adjustment to the Appellant was insufficient within the bounds of reasonable ambit of discretion.
4. The learned Judge erred in the exercise of his discretion in relation to his treatment of the discrepancy in superannuation entitlements of the parties, and the greater ongoing mortgage obligation of the Appellant. The 3% adjustment to the Appellant was insufficient within the reasonable ambit of discretion.
5. In relation to grounds 1, 3 and 4 above, His Honour failed to give adequate, or in some cases any, reasons for the exercise of his discretion in making those particular apportionments or the rationale for the differences between them.
Orders Sought
On appeal, the appellant seeks the following orders:
1. The appeal be allowed.
2. The Full Court re-exercise the discretion and substitute the sum of $222,000 instead of the sum of $106,240 in Order 1.
3. That the Respondent pay the Appellant’s costs of and incidental to the appeal.
Discussion
Grounds 1 to 4 can be described as weight challenges. Both the basis of, and the hurdles that the appellant needs to overcome in succeeding in such challenges arise from familiar passages in the High Court decisions of House v The King (1936) 55 CLR 499 and Gronow & Gronow (1979) 144 CLR 513. In House the plurality of the High Court expressed it in this way (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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…
In Gronow, Stephen J said this at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
Ground 5 then complains that his Honour failed to provide any or any adequate reasons for his assessments of the various percentage entitlements of the parties (as challenged in Grounds 1, 3 and 4).
The principles applicable to a challenge to the adequacy of reasons for an exercise of discretion are well established and need not be restated here. Suffice to say it is axiomatic that the pathway to the conclusion reached by the trial judge must be able to be discerned from the reasons for judgment (Bennett & Bennett (1991) FLC 92-191 at 78,267).
An overview of the complaints comprised in the grounds of appeal emerges in the opening paragraph of the appellant’s written summary of argument:
1.It is submitted that his Honour’s apportionment of percentages as between the Appellant and Respondent results in an error of principle of such magnitude to place it outside the proper ambit of discretion, in that it is so internally inconsistent or unexplained so as to amount to an error of law in the exercise of his judicial discretion.
We also observe that in her oral submissions, counsel for the appellant expanded on one aspect of this overview, namely that it is not possible to discern from his Honour’s reasons why his Honour fixed on the individual percentage entitlements of the parties when compared with each other. For example, how is it that his Honour arrived at a 10 per cent adjustment for the respondent’s initial contributions, and only a 3 per cent adjustment for the appellant’s lesser superannuation interest and higher mortgage balance?
Plainly, the questions surrounding his Honour’s conclusions as to the percentage entitlements of the parties, and the reasons for those conclusions, are intertwined, and thus it is appropriate to address them together.
Ground 1 (and Ground 5 insofar as it relates to Ground 1)
The issue here is his Honour’s treatment of the respondent’s introduction of the Suburb N property at the commencement of the relationship.
There was no valuation of that property as at that date and as referred to above the parties were in dispute as to the equity in that property. It was common ground though that it sold for $157,500 seven years later.
His Honour addressed the evidence and the submissions of the parties in relation to this issue at [106] to [110] of his reasons for judgment. Relevantly, as we have referred to above, his Honour rejected the respondent’s attempts to utilise the actual sale price of the property, including in a mathematical calculation, to arrive at the appropriate adjustment in favour of the respondent.
His Honour then concluded as follows at [110]:
At the same time, it is entirely reasonable to regard the introduction by the respondent of this property at the commencement of the relationship as being an important foundation for whatever wealth the parties had either individually or collectively accumulated subsequently. Without it, the subsequent purchase in [Suburb M] and, ultimately, the purchase of [the Suburb O property] might not have been capable of being accomplished. The initial contribution by the respondent therefore has to be given significant weight.
It has long been recognised that to identify the respective contributions of the parties can be relatively straightforward, but it becomes a difficult task to translate that identification into figures. For example, in Steinbrenner & Steinbrenner [2008] FamCAFC 193, Coleman J in exercising appellate jurisdiction said this at [234]:
Given that 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. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. …
Here it is claimed that the finding of a 10 per cent adjustment in the respondent’s favour is “a ‘leap’ from words to figures” that is too great. That leads of course into the question of the adequacy of the reasons.
For us, the issue becomes what more could or should his Honour constructively have added to his reasons for judgment to render them adequate (if, as submitted by the appellant, they are inadequate). Coleman J, again in exercising appellate jurisdiction, observed in Wen & Thom [2010] FamCAFC 81 at [57]:
As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
Relevant to the issues raised here, there is the insight provided by Finn J in Farmer & Bramley (2000) FLC 93-060 at [49]:
… Given that awards under s 79 are virtually never calculated with mathematical precision, no amount of enumeration of, or indeed of evaluation of, contributions, or of the s 75(2) matters, or indeed of any of the matters listed in s 79(4), can ever explain exactly why a particular figure, or more usually a percentage, is eventually arrived at (other than that it is within the recognised “range”). Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s 79.
His Honour’s explanation for finding as he did is set out at [110] of his reasons for judgment. The discretion that his Honour has is a broad one, and although another judge may not have been as generous to the respondent as his Honour was, that is not the test (CDJ v VAJ (1998) 197 CLR 172 per Kirby J at [186]). It is not suggested that his Honour exercised his discretion by reference to erroneous facts, or that he had regard to extraneous or irrelevant facts or circumstances, or failed to have regard to relevant facts or circumstances. No error of principle has been demonstrated, and nor has it been shown that, despite the absence of demonstrable error, his Honour’s challenged finding was outside the range and plainly wrong. At [110] his Honour has done all that he needed to do in providing transparency in the pathway to his decision.
The only rider to this outcome is whether there is any “internal inconsistency” between his Honour’s individual findings as to the appropriate adjustments to be made. These findings are themselves challenged in Grounds 2, 3 and 4 and we will address this issue once we have considered each of these grounds, but for the moment there is no merit in this ground.
Ground 2
His Honour’s finding that is under challenge here is a quintessential example of the exercise of a broad discretion reposed in a trial judge.
As is required (for example see Pierce & Pierce (1999) FLC 92-844, at 85,881), his Honour painstakingly identified and assessed the respective contributions of the parties during cohabitation and concluded that the percentage division should be 55 per cent / 45 per cent in favour of the respondent.
There is no complaint that his Honour took into account irrelevant considerations or failed to take into account relevant considerations, or that he acted on any wrong principle (save and except as can be inferred from the result). There is also no suggestion of inadequate reasons here.
Stripped of all embellishments, we agree with the respondent’s counsel that this is nothing more than a claim that his Honour should have come to a different view. That though cannot be a basis for appellate interference; it is not enough that another judge may arrive at a different result. As was said by Kirby J in CDJ v VAJ at [186]:
… Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. … those who decide appeals … need to recognise that it is of the very nature of [the difficult and evaluative decisions which the Family Court of Australia often has to make] … that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
(Footnotes omitted)
There is no merit in this ground of appeal
Ground 3 (and Ground 5 insofar as it relates to Ground 3)
As was explained in the appellant counsel’s oral submissions, there is no complaint here as to the findings of his Honour, and the challenge is that a
2 per cent adjustment in favour of the appellant was not enough.
We do not propose to repeat what we have said previously as to the hurdles that face an appellant in raising a weight challenge such as this, or in complaining of a lack of reasons, but we are no more persuaded that this challenge overcomes those hurdles than any of the other challenges mounted in this appeal.
We are also attracted to the submission of the respondent’s counsel that his Honour was not necessarily focussing on an adjustment of 2 per cent in the appellant’s favour, but rather arriving at an overall assessment of the respective contributions of the parties. Indeed, that submission is supported by how his Honour expressed his reasons at [148], namely:
Taking into account the applicant’s post-separation contributions by way of mortgage repayments to the [Suburb O] property, in my opinion, the contributions made by the respondent should be regarded overall as 63 per cent and those of the applicant as 37 per cent.
(Our emphasis)
We observe that that is a submission which can also apply to his Honour’s treatment of the initial contribution of the respondent challenged in Ground 1, given how his Honour expressed his conclusion as to the contributions of the parties up to the time of separation.
There is also no merit in this ground of appeal.
Ground 4 (and Ground 5 insofar as it relates to Ground 4)
This time the challenge relates to his Honour’s treatment of the s 19(2) factors, but it is still a weight challenge nevertheless. Again, there is no dispute as to the findings of his Honour, but it is put that the 3 per cent adjustment in favour of the appellant was not enough. There is also a challenge here based on lack of adequate reasons (Ground 5).
The arguments put by the appellant’s counsel are first, that the size of the adjustment “effectively penalise[s] the Appellant in relation to the acknowledged ‘deal’ between the parties that he would, in effect, accompany the Respondent on postings as her spouse in order to further her career.” Secondly, the amount of the adjustment “fails to make proper allowance for the Appellant’s future needs…”.
As to the first issue, this argument overlooks two important considerations. First, the “deal” so-called was taken into account by his Honour in assessing the respective contributions of the parties during cohabitation (see, for example at [117]), and secondly, because the agreed “values” of the parties’ superannuation entitlements were not calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) and because “each of the parties may have made some pre-relationship contributions to their superannuation” (at [150]), his Honour found it was not possible to make an adjustment which was mathematically precise.
As to the second issue, the rationale of any adjustment made under s 19(2) is not necessarily to meet “the future needs” of a party, but it is to take account of their needs in particular circumstances.
In our view the adjustment made was within the broad range of outcomes open to his Honour, and we are not persuaded that it was plainly wrong such as to be no proper exercise of his Honour’s discretion.
Turning to the complaint of lack of adequate reasons, again it has not been demonstrated what more his Honour could have said to provide any greater transparency in the pathway to his decision, and given the constraints of explaining the “leap from words to figures” identified above, we are comfortably satisfied that his Honour has not erred.
Thus, there is no merit in this ground of appeal.
The alleged “internal inconsistency” between his Honour’s findings
The complaint is twofold, first that there is internal inconsistency between the individual percentage findings of his Honour, and secondly, that his Honour has not explained why there are differences between them.
As to the first issue, it is plain that his Honour found that the initial contribution of the respondent warranted a 10 per cent adjustment in her favour, that an assessment of the respective contributions of the parties during their relationship warranted a 5 per cent adjustment in the respondent’s favour, that an assessment of the post-separation contributions of the parties resulted in a
2 per cent adjustment in favour of the appellant (subject to the comment we made in paragraph 65), and finally that an assessment of the relevant s 19(2) factors warranted a 3 per cent adjustment in favour of the appellant.
The simple answer to the major aspect of this challenge is that there is a clear difference between an assessment of the contributions of the parties and an assessment of the relevant s 19(2) factors. As should be obvious from a plain reading of the legislation, there is a different focus when assessing contributions as compared to assessing the s 19(2) factors; for a start, the former is looking at the past, and the latter is primarily looking to the future. Thus, we are not persuaded that there is any inconsistency that sounds in appellate error in his Honour’s findings as to the contributions of the parties compared with the relevant s 19(2) factors.
As to the differences between his Honour’s findings on contributions, again there are clear bases for that; different periods are involved, and the nature of the contributions are disparate. Thus, again we are not persuaded that
his Honour has erred because his contribution findings result in different percentage entitlements.
Turning to the alleged lack of reasons, it is not required of his Honour to explain absolutely and explicitly every finding that he makes. The extent of a trial judge’s duty will vary according to the way in which a case is being conducted and according to the reasoning which he has followed. As was said by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, at 386:
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear …
There are also the pertinent observations by Coleman J in Wen and Thom at [57], and which we have set out above at paragraph 54.
Here we do not consider that it was necessary for his Honour to “explain” why there are differences between his percentage findings. It can be “appropriately” inferred from those findings themselves why there are differences. Thus, there is no merit in this complaint.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions from both counsel as to the question of costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, counsel for the respondent sought an order that the appellant pay the costs of and incidental to the appeal. That application was opposed by counsel for the appellant, who submitted that in the event the appeal was unsuccessful each party should bear their own costs.
The appeal having been dismissed there are circumstances that justify an order for costs being made and accordingly we will make the order sought by the respondent’s counsel.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 October 2014.
Associate:
Date: 21 October 2014
0
6
0