Boulton & Boulton
[2024] FedCFamC1A 132
•9 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Boulton & Boulton [2024] FedCFamC1A 132
Appeal from: Boulton & Boulton (No 3) [2024] FedCFamC1F 269 Appeal number: NAA 121 of 2024 File number: SYC 1491 of 2021 Judgment of: AUSTIN, JARRETT & CAMPTON JJ Date of judgment: 9 August 2024 Catchwords: FAMILY LAW – APPEAL – Where the husband cross appeals from a single order adjusting property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Alleged errors as to inadequate reasons, errors of subsidiary facts underscoring findings as to contributions, and errors in failing to consider s 79(4)(e) factors as identified by s 75(2) – Errors of fact not established – Failure to consider relevant s 75(2) factors not established – Error not established by way of “double counting” family violence in contributions up to trial and its prospective impact, in combination with other factors, as relevant to future income earning capacity – Where the reasons are not inadequate by failing to assess contributions and any adjustment thereto by way of a percentage of the property of the parties or a specified sum – Discussion of the requirement of a disciplined and structured process of reasoning for a property adjustment determination engaging with the sequential tasks identified in s 79 of the Act – Recognition that preferred and orthodox approaches to property adjustment reasons have the benefit of a uniformity so as to avoid capricious and arbitrary decision making and ensuring hazards and errors are avoided to secure an absence of controversy from reasons to achieve justice – Cross appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 75 and 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61
De Winter and De Winter (1979) FLC 90-605
Ferraro& Ferraro (1993) FLC 92-335; [1992] FamCA 64
Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64
Fowles & Fowles (No 2) [2024] FedCFamC1A 115
G v H (1994) 181 CLR 387; [1994] HCA 48
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hickey and Hickey and Attorney-General (Cth)
(Intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
JEL & DDF (2001) FLC 93-075; [2000] FamCA 1353
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Lee Steere & Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Loncar & Loncar (2021) FLC 94-054; [2021] FedCFamC1A 14
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Mead v Mead (2007) FLC 93-327; [2007] HCA 25
Norbis& Norbis (1986) 161 CLR 513; [1986] HCA 17
Oriolo and Oriolo (1985) FLC 95-653; [1985] FamCA 54
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Scriven & Scriven (2020) FLC 93-988; [2020] FamCAFC 236
Stanford v Standford (2012) 247 CLR 108; [2012] HCA 52
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Townsend& Townsend (1995) FLC 92-569; [1994] FamCA 144
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 111 Date of hearing: 31 July 2024 Place: Sydney Counsel for the Appellant: Mr Bartfeld KC with Mr Ryan Solicitor for the Appellant: Lander & Rogers Counsel for the Respondent: Mr Drysdale KC Solicitor for the Respondent: Pearson Emerson ORDERS
NAA 121 of 2024
SYC 1491 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BOULTON
Cross Appellant
AND: MS BOULTON
Cross Respondent
ORDER MADE BY:
AUSTIN, CAMPTON & JARRETT JJ
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Cross Appeal is dismissed.
2.The cross appellant pay the cross respondent’s costs fixed in the sum of $48,612 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Boulton & Boulton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, JARRETT & CAMPTON JJ:
By Notice of Appeal filed 22 May 2024, Ms Boulton (“the wife”) appealed from orders made on 24 April 2024 as to periodic and non-periodic child support departure by a judge of the Federal Circuit and Family Court of Australia (Division 1). By Notice of Cross Appeal filed 22 May 2024, as amended 8 July 2024, Mr Boulton (“the husband”) appealed from other orders made on the same day as to parenting and property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife filed a Notice of Discontinuance and discontinued her appeal on 13 June 2023. On 8 July 2024 in his Amended Notice of Cross Appeal the husband abandoned his appeal from the parenting orders.
The property cross appeal challenges Order 12 made on 24 April 2024, as to the adjustment between the parties of funds held in a controlled monies account, being:
PROPERTY
12.Within 42 days of the date of these orders, the parties do all acts and things and execute all documents necessary to transfer the funds held in the controlled monies account as follows:
(a)$45,000 to the [husband] representing the [wife’s] share of the costs of the single expert;
(b) $3,310,904 to the [wife];
(c) $559,334 to the [husband]; and
(d)In the event of any surplus, the surplus is to be divided so that the [wife] receives 62.5 per cent and the [husband] 37.5 per cent.
The wife resists the husband’s property cross appeal.
For the reasons that follow, the Notice of Cross Appeal is dismissed.
Background
The parties commenced cohabitation in mid-2005. They entered a binding financial agreement (“the BFA”) in late 2006 and married two days later, in late 2006. They separated and recommenced their relationship on multiple occasions. The final separation occurred on 16 February 2021, and the husband left the home approximately one month later.
The parties have three children, the eldest aged 14, and twins aged eight. Since separation, the children have lived with the wife. Interim orders made on 6 May 2022 (as modified on 10 March 2023) provided for the children to spend four hours on two days each week with the husband. That time did not occur (at [145] and [250]).
At the commencement of the relationship the husband was a medical professional and the wife worked in media. In late 2009, prior to the birth of the eldest child, the wife ceased paid employment. She has not worked since that time.
On 8 June 2022 the parties entered consent orders setting aside the BFA.
The husband is currently a medical professional. His income earning capacity is at least $1 million per annum. The primary judge found at [663] that the wife will not be able to return to her prior employment, however she may move into real estate after some time and training.
The parenting orders made on 24 April 2024 provide for the wife to have sole parental responsibility for the children and for them to live with her. No orders were made specifying the time the children are to spend with the husband. The child support departure orders require the husband to pay to the wife periodic child support in the sum of $450 per child per week and non-periodic child support for the children’s school fees and incidental school expenses, private health insurance premiums, and gap medical costs.
At the conclusion of the trial the husband sought an adjustment of property as to 55 per cent in his favour. The wife sought an adjustment 70 per cent in her favour.
The primary reasons record:
519 At the hearing the parties agreed on the property to be divided and its value ($7,258,904), and their superannuation entitlements ($556,281). There was a small dispute as to whether the [husband’s] 2023 tax liability for $26,194 should be included. The liabilities were otherwise agreed as being $94,809.
520 The main dispute centred on the “add backs” proposed by the [wife] in the sum of $6,840,607. The [husband] agreed that $2,966,593 should be added back as the total of the parties’ legal fees paid to date. It was agreed that this was the appropriate way to deal with the earlier distribution of proceeds of sale and that they need not be considered further.
521 The use of addbacks is not now encouraged with the preferred course being to deal with these issues under s 75(2)(o) of the Act (Trevi & Trevi (2018) FLC 93–858).
522 One of the reasons for this is that the property “added back” now no longer exists and is being taken into account as notional property only. Thus, extensive use of add backs has the potential to skew the distribution of the actual property in an unfair manner, unless great care is taken.
523 In this case, the add backs proposed by the [wife], if accepted, would constitute 47 per cent of the total net property to be divided.
The primary judge found, unchallenged by way of the cross appeal, the property of the parties to be $10,634,144 (at [598]).
As to the add backs sought by the wife, the primary judge determined (at [578], [579], [592] and [593]) that the following would not be notionally added back but would be considered by way of s 75(2)(o) of the Act:
(a)$60,200 paid by the husband to a company owned and controlled by his brother on the issue of an invoice that was likely to be a fiction (at [557] and [559]);
(b)$600,000 withdrawn by the husband from an offset account in mid 2010; and
(c)$596,200, being part of the proceeds of sale from real properties sold in 2017.
The total value of these three items is $1,256,400.
The balance of the add backs as sought by the wife, being $35,000 paid for the husband’s criminal lawyers’ costs, $1,990,000 paid to the paternal grandmother, $248,562 of accrued interest on the mortgages on the Suburb B and Suburb F properties, $60,600 of cash withdrawals made by the husband, and $243,000 being funds transferred from the husband’s bank account, were rejected (at [529], [546], [552], [563], and [568]). The value of these rejected items is $2,577,162.
Contributions were assessed to be slightly favouring the husband (at [659]). After adjustment to the contributions were considered, the primary judge determined that the wife ought to receive 62.5 per cent of the property as found and the husband would receive 37.5 per cent (at [666]).
The Amended Cross Appeal
In summary, the grounds of appeal are as follows:
(1)Inadequate reasons;
(2)Errors of fact in the assessment of contributions;
(3)Errors in the assessment of adjustments to the contribution findings by way of the considerations of s 75(2) factors; and
(4)The outcome was outside the reasonable range of discretion.
Ground 1 contained three particulars, being Grounds 1(a), (b), and (c). Grounds 2 and 3 contained five and three particulars respectively, labelled in the same format as those contained in Ground 1. Ground 2(e) was abandoned on the day prior to the appeal. Grounds 2(b) and 4 were abandoned during the hearing of the appeal.
A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The limits upon appellate interference with a discretionary order are well known and longstanding (House v The King (1936) 55 CLR 499 at 504–505). The weight given to evidence in the exercise of discretion pursuant to s 79 of the Act is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
By way of Ground 1, the husband complains that the primary judge’s reasons are inadequate because the primary judge did not ascribe a percentage of the property of the parties, or a specified sum to the assessment of contributions. The construction and presentation of the husband’s cross appeal identifies that his submissions as to Ground 1 are informed by those made as to Grounds 2 and 3. Hence, Grounds 2 and 3 will be considered prior to Ground 1.
Ground 2 – errors of fact
As confirmed by the Full Court in Koyroyshs & Koyroyshs [2021] FedCFamC1A 54:
121.Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129).
In this case, the primary judge did not make the challenged findings exclusively by acceptance of the wife’s evidence, which was found to be credible. Rather, the primary judge also relied upon express and implied admissions made by the husband and the contents of documents adduced in evidence by both parties. Consequently, the findings were open and therefore withstand attack from the fallacious allegation that they are mistaken.
Ground 2(a) – Finding the wife initially contributed $640,000
The Summary of Argument of the husband records:
12.The reasons find that the Wife contributed some $640,000 at the commencement of the parties’ relationship, or, roughly, two thirds of that bought in by the [husband] (R614; AB131). It is respectfully submitted that this finding was not supported by the evidence.
As to this finding, the primary judge recorded:
612 The [wife] had lent her former partner approximately $550,000 from the equity and subsequent proceeds of a property sold by her. After the legal dispute relating to that loan, the [wife] received $850,000 on 24 November 2009.
613 The [husband] concedes that the [wife] otherwise had $90,000 in net assets.
614 Allowing for the difficulties in using the figures in the schedule to the financial agreement, the [wife] contributed some $640,000 at the commencement of the relationship, or, roughly, two thirds of that brought in by the [husband].
The Summary of Argument thereafter recites the evidence as to the expenditure of income on legal fees over a four-year period after the commencement of cohabitation pursuing a claim made against a legal practitioner grounded in conduct impacting on the recovery of the loan payable to the wife. The litigation was compromised by a payment to the wife of $850,000. The costs expended in recovery of the loan were recognised and considered by the primary judge:
615 The parties spent some $614,483 from income on legal fees to pursue the litigation relating to the debt owed by the [wife’s] former partner. As has been seen already, $800,000 of the proceeds were received by the [husband] who subsequently withdrew $600,000 from his account and did not explain what happened to it.
The ground is idle because there is no doubt the wife enjoyed a chose in action valued at $550,000 at the commencement of the relationship, aside from her other assets worth $90,000. The primary judge’s finding as to the nature and value of the direct financial contributions of the wife at cohabitation was uncontroversial, being the only logical finding open on the evidence. No avenue exists for the husband to contend otherwise.
The evidence of the husband was that the amount spent on legal fees recovering the loan was $745,558. The evidence of the wife was that it was $614,483. The husband’s evidence as to quantum was inconsistent with his affidavit evidence. It was open to the primary judge to prefer and accept the wife’s evidence. No reason was promoted on appeal to the contrary.
This particular of the ground is a weight complaint as to the use made of, or the product of, the direct initial contribution, having regard to the cost of its recovery. Such complaint fails. The cost of recovery was evaluated by the primary judge in weighing contributions over the course of the relationship.
The particular of the ground at 2(a) was always misconceived, having no merit.
Ground 2(c) – Finding the husband had retained the benefit of $600,000 from 2010
It was uncontroversial that $800,000 from the $850,000 recovered from the loan litigation received by the wife was transferred to the husband’s offset account, and in turn that in mid-2010 the husband withdrew $600,000 from that offset account (at [573] and [615]). The wife unsuccessfully sought to have the $600,000 withdrawal notionally added back as the property of the parties.
The husband’s complaint by way of this ground is that there was insufficient evidence for the primary judge to conclude:
578 The lack of explanation by the [husband], or indeed reference to the funds at all, therefore, is telling. If it had been placed in a bank account and spent it would have been easy enough to say so. No explanation was offered for not referring to it at all. The overwhelming inference here is that the $600,000 has been retained in some form for the benefit of the [husband].
The husband submitted that it is “unfair and unduly onerous” to require him to “undertake a tracing exercise” to explain the withdrawal in circumstances where:
(a)It occurred 11 years prior to separation and 13 years prior to trial;
(b)It occurred in the context of a “relatively high net wealth case” in which the husband was found to have an income earning capacity of at least $1 million annually;
(c)Significant sums of money were “routinely being dealt with” by the parties;
(d)It “does not fall within a recognised addback criteria”; and
(e)There is no evidence of any history of substantial misappropriation of funds which would justify the inference that was drawn, and that such inference “has the effect of reversing the onus of proof”.
The submission that the husband was required to undertake a tracing exercise is a distortion of the reasoning of the primary judge. The conclusion under challenge at [571] is that “no explanation has been given [by the husband] as to what happened to this money” and the inference then drawn. No suggestion was made that the husband was required to undertake a “tracing exercise”.
On 5 April 2023 the wife, by letter from her solicitors, requested information from the husband as to where the $600,000 was transferred or how it was applied. No response was received. In cross-examination of the husband, the following exchange occurred:
[SENIOUR COUNSEL FOR THE WIFE]: Yes. The proceeds of that case were $850,000?---
[THE HUSBAND]: Yes.
[SENIOUR COUNSEL FOR THE WIFE]: And $800,000 of that was paid to you in 2009, wasn’t it?---
[THE HUSBAND]: Yes.
[SENIOUR COUNSEL FOR THE WIFE]: And you’ve seen the evidence that suggests that on the – I’m sorry, I withdraw that –and you paid that money into an offset account that you had?---
[THE HUSBAND]: That’s correct.
[SENIOUR COUNSEL FOR THE WIFE]: And [i]n [...] April 2010, you withdrew $600,000 from that offset account?---
[THE HUSBAND]: Yes.
[SENIOUR COUNSEL FOR THE WIFE]: And you have been asked subsequently what happened to that money, haven’t you?---
[THE HUSBAND]: Yes.
[SENIOUR COUNSEL FOR THE WIFE]: And you have not been able to provide any explanation as to where that money went, have you?---
[THE HUSBAND]: Not until a couple of weeks ago or about a week ago.
…
[SENIOUR COUNSEL FOR THE WIFE]: Well, I’m – you will have to help me. You say that you provided an explanation. In what form was the explanation provided?---
[THE HUSBAND]: Sorry. If I said that, I misspoke. I did not have an explanation until a week or two ago.
[SENIOUR COUNSEL FOR THE WIFE]: And you know, don’t you, that [the wife’s] solicitors have been corresponding with your solicitors, seeking an explanation about this, haven’t they?---
[THE HUSBAND]: Yes.
[SENIOUR COUNSEL FOR THE WIFE]: And indeed, those requests have been – I withdraw that. The request was initially made in correspondence on 5 April 2023?---
[THE HUSBAND]: I don’t know off the top of my head.
[SENIOUR COUNSEL FOR THE WIFE]: All right. And it’s the case, isn’t it, that to date no response has been made to that inquiry?---
[THE HUSBAND]: I don’t believe we’ve written a response. No.
…
[SENIOUR COUNSEL FOR THE WIFE]: … I’m asking whether it occurred to you that a response should be made?---
[THE HUSBAND]: I thought I could happily – I thought I could talk you through the documents that you have and I could explain where the money has gone and where it came back in. The bank statements.
[SENIOUR COUNSEL FOR THE WIFE]: Are these documents that have not otherwise been provided?---
[THE HUSBAND]: No. They’re part of my financial disclosure.
…
[SENIOUR COUNSEL FOR THE WIFE]: I’m mindful of dealing with the time as efficiently as possible, your Honour.
[THE PRIMARY JUDGE]: yes.
[SENIOUR COUNSEL FOR THE WIFE]: And that could be a lengthy exercise. I’m wondering if we could do it this way and ask that that matter be addressed and if there’s issues that arise – otherwise, I might be caught by the answers and it might take [Mr Boulton] a long time to explain. Maybe that’s a matter that could be addressed.
[THE PRIMARY JUDGE]: Well, what do you want to do, [Kings counsel for the husband]? Do you want to follow that course or do you just want me to draw an inference that there’s an unanswered withdrawal of $600,000 with no explanation given?
[KINGS COUNSEL FOR THE HUSBAND]: Well - - -
[THE PRIMARY JUDGE]: Because there’s no evidence-in-chief about it.
[KINGS COUNSEL FOR THE HUSBAND]: Then we need to adopt the approach [senior counsel for the wife] contends for, your Honour.
[THE PRIMARY JUDGE]: I think you should. Well, it might be in your client’s interest.
[KINGS COUNSEL FOR THE HUSBAND]: I was trying to think of another way to do it, your Honour, but I can’t.
[SENIOUR COUNSEL FOR THE WIFE]: I can think of another way to do it. Re-examine and then I’m stuck.
[THE PRIMARY JUDGE]: Yes. All right. We will do it that way.
(Emphasis added) (Transcript 18 August 2023, p.432 line 11 to p.434 line 1)
The issue was not revisited by the husband. After recording at [571] that “[n]o explanation has been given as to what happened to this money” the primary judge observed (at [574]) that the husband had the opportunity to explain the transaction in his affidavit evidence, oral evidence-in-chief, or in re-examination, but did not do so.
The submission that the finding subject to complaint operates as a “reversing of the onus of proof” is reckless. The obligations of disclosure of relevant financial conduct, as codified in ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the consequences of a failure to discharge that obligation (see Oriolo and Oriolo (1985) FLC 95-653; Weir and Weir (1993) FLC 92-338) are longstanding.
The primary judge found that the affidavit evidence of each of the parties was “replete with minutiae” (at [576]), and that every possible allegation was made and was refuted. Cast against that background, the husband was requested to disclose an explanation as to the use and application of significant funds in his control. He did not do so. All evidence must be weighed and assessed in light of a party’s capacity to produce it. The process of drawing inferences from established facts simply involves logical deduction (G v H (1994) 181 CLR 387 at [4]; Mead v Mead (2007) FLC 93-327 at [13]). It was open to the primary judge to find that such lack of explanation permitted an inference that the husband retained the benefit of those funds.
This particular of the ground at 2(c) fails.
Ground 2(d) – Finding that the husband had retained the Suburb AE proceeds of sale
The husband challenges the inferential finding that:
(a)He retained the benefit of $596,200 from the sale proceeds of the “Suburb AE property” in 2017 (at [580]–[593]). The ground’s description is not accurate. The retention of benefit was from the proceeds of the sale completed in 2017 of two properties, being at Suburb AE and Suburb YY, each being paid into his NAB bank account (#...72); and
(b)The finding that his payments to ZZ Pty Ltd (“the ZZ Trust”), being an investment fund, totalled $2,482,035 (at [585]).
He submits that the former finding was not available and constitutes an error “in the sense referred to in [De Winter and De Winter (1979) FLC 90-605 at 78,091]”.
These findings require some background as recorded by the primary judge:
581 The [husband’s] evidence is that the [Suburb AE] property was sold in 2017. On 21 and 22 August 2017 the net proceeds of sale ($1,463,976.86) were deposited into his NAB Account (#[…]72) ([husband’s] affidavit filed 18 July 2023, paragraph 807.3).
582 [I]n [...] September 2017, the [husband] withdrew $264,343 to pay tax.
583 The [husband] paid $1,552,000 into the [ZZ Trust] between September and December 2017. The [husband] noted that this sum increased to $1,730,587.48 over time and was used in 2019 to pay for the redevelopment of the [Suburb B] property ([husband’s] affidavit filed 18 July 2023, paragraph 807.9).
584 The [Suburb YY] property was sold [in late] 2017 and the [husband] deposited the net proceeds of sale ($918,567.92) into his NAB Account (#[…]72) [i]n [early] December 2017. The [husband] said he transferred $930,035 to [ZZ Trust] [i]n [late] December 2017. The deposit and withdrawal are confirmed by the NAB account statement (Exhibit 41).
585 Thus, in 2017, the [ZZ Trust] received $1,552,000 and $930,035, a total of $2,482,035.
(Emphasis added)
As to the second finding, both parties accept that $930,035 was counted twice, and that the sum invested in the ZZ Trust was $1,522,000 (not $2,482,035). The husband expressly conceded (at paragraph 30 of his Summary of Argument) that this error was not material to the quantum of the first finding ($596,200), being the controversial value of the relevant proceeds of sale of the real properties. He however submitted that “it demonstrates a misunderstanding of key evidence in relation to the transaction, which… tarnishes the balance of the related findings.”
The primary judge then goes on to say:
590 Therefore, the [husband] has dealt with just short of $600,000 of the parties’ assets in a manner that has not been explained. One could easily proffer a number of speculations as to its fate such as it being used in the construction of the [Suburb B] property or forming part of the funds borrowed from his mother or, in some way, remaining for the [husband’s] benefit in the [ZZ Trust].
591 Each of these permutations would require the Court to take a different approach to the use of the funds. However, the Court cannot indulge in such speculation.
592 Therefore, the simple fact that remains is that the [husband] has not explained the fate of these funds. The Court is entitled to draw the adverse inference that he has had or still has the benefit of these funds. This must be taken into account.
(Emphasis added)
The adverse inferential conclusion subject to complaint arises from a lacuna in the evidence in the husband’s case.
The husband noted in his Summary of Argument that issue as to the use and application of the identified funds derived from the sale of the Suburb AE and Suburb YY properties was not raised by the wife in her affidavit evidence or Case Outline document. He contends that the wife first raised the issue as to the money being “missing” after the conclusion of the parties’ evidence, during closing submissions.
It was inaccurate for the husband to submit that the wife “had never contended there was any money missing until after the conclusion of the parties’ evidence”. The issue was joined on the subject matter during the trial. In his cross-examination, the following exchange occurred:
[SENIOR COUNSEL FOR THE WIFE]: So if we take the tax payment out and we take the two deposits into [ZZ Trust] out of the 1.463, that still leaves you with about $600,000, doesn’t it?---
[THE HUSBAND]: I’m under a lot of stress and struggling to follow the maths, but I will take your word for it.
[SENIOR COUNSEL FOR THE WIFE]: No, don’t take my word for it. Look, it’s as simple as this, really: $1.46 million comes from [Suburb AE]. Okay. From that, you pay 264,000 to the tax officer?---
[THE HUSBAND]: Yes.
[SENIOR COUNSEL FOR THE WIFE]: You pay about – nearly $600,000 into [ZZ Trust] in those two instalments of 520 and 72?---
[THE HUSBAND]: Yes.
[SENIOR COUNSEL FOR THE WIFE]: Where did the rest of the money go?---
[THE HUSBAND]: I would have to check the source documents.
[SENIOR COUNSEL FOR THE WIFE]: Well - - -?---
[THE HUSBAND]: That’s – I mean - - -
[SENIOR COUNSEL FOR THE WIFE]: - - - is there any evidence in your affidavit about where the balance of the sale proceeds for [Suburb AE] went to?---
[THE HUSBAND]: I – these – these – I don’t know, to be honest.
(Emphasis added) (Transcript 18 August 2023, p.446 lines 20–35)
The husband bore the onus to explain how the proceeds of the sales in his control were applied. He was placed on notice by way of the exchange outlined above as to the wife’s inquiry as to the use of the funds. He subsequently had the opportunity to provide an explanation as to the application of the funds by way of seeking leave to adduce further evidence-in-chief, or in re-examination. He chose not to do so.
In closing submissions, senior counsel for the wife submitted:
So far as the [Suburb AE] proceeds are concerned, I asked him where the money went, and he said, “I” – you know, I said, “You’ve been asked that on a number of occasions – to explain where that is,” and to this moment, we still don’t have an explanation as to where that extra $596,000 went, and that’s relatively recent. So where is it? And in the absence of an explanation, your Honour would be entitled to infer that it’s still somewhere available to the husband. The fact that we can’t say where it is is not to the point. That would be to give in to the – what we say is likely, in the absence of an explanation, a contrivance on the part of the husband.
(Transcript 25 August 2023, p.631 lines 20–27)
King’s counsel for the husband in closing submissions in response said:
[KING’S COUNSEL FOR THE HUSBAND]: In relation to the [Suburb AE] property, your Honour, which appears – does it separately appear here, no. Your Honour, there’s a reference to the [Suburb AE] property and 596,000, and it’s item 36 on the balance sheet. Your Honour, I tender the annexures to the husband’s trial affidavit, tab 279, which is pages 988 through to 993. For what it identifies, and I don’t need to take your Honour there, is the receipt [dated late] 2017 of the [Suburb YY] property coming in at 918,000, there being a payment out but, effectively, the – well, it is then 513,000, because some other monies have been withdrawn, remains in that account and is just slowly depleted over time.
[THE PRIMARY JUDGE]: Yes. Exhibit 41.
(Emphasis added) (Transcript 25 August 2023, p.644 lines 24–33)
Exhibit 41 is a single six-page statement of the husband’s NAB Bank account #...72 for the period 26 October 2017 to 24 April 2018, commencing at page 659 of the Digital Exhibit Book. It postdates the completion of the Suburb AE sale and records the deposit of $918,567.92 from the Suburb YY sale in late 2017, bringing the credit balance of the account at that time to $1,672,609.02. The statement contains multiple credit and debit transactions. Some have limited particulars or notes purporting to describe specific transactions. Others do not. The statement records a closing balance of $525,167.01. The statement does not in and of itself identify the use and application of the disputed portion of the proceeds of the Suburb AE and Suburb YY disposals, nor does it establish that such funds were “slowly depleted over time”.
The husband’s challenge by way of this particular to the ground does not lead to the conclusion of the primary judge not being open. On one view, the complaint by way of this particular of the ground cannot be fairly raised on appeal because of the way the husband chose to conduct the trial before the primary judge. This particular of the ground is nothing more than a vehicle for the husband to challenge the finding on the basis that it was not as he sought. This particular at 2(d) of the ground fails.
Ground 2 has no merit.
Ground 3 – errors as to adjustment to the contribution finding
The husband contends that the primary judge erred in the assessment of factors pursuant to s 75(2) of the Act:
(a)Firstly, by double counting the effect of family violence occasioned by the husband;
(b)Secondly, by a failure to consider child support that the husband has paid, and will pay; and
(c)Thirdly, by a failure to consider the property to be received by the wife as a result of the contribution assessment.
Alternatively, the husband submits that the primary judge failed to provide adequate reasons as to these considerations.
Ground 3(a) – Double counting of the effect of the family violence
The husband contended that the primary judge “double counted” the effect of family violence, both as a factor increasing the wife’s contribution assessment, falling under the principle in Kennon v Kennon (1997) FLC 92-757, and as a s 75(2) factor, adversely affecting the wife’s capacity to earn an income.
The husband did not dispute the fact of family violence perpetrated by him upon the wife (at [630]). As to this issue, the primary judge said:
640 The [husband] has been controlling and coercive throughout much of the marriage and since.
…
642 The [wife’s] evidence is replete with examples of the [husband] restricting the [wife’s] access to credit cards, cancelling them and cutting them up. The [husband] agreed that at times he had done so. It is true that sometimes this was a mere threat or only occurred short-term. Nonetheless, it is an easy inference to draw that this would have upset the [wife] and added to her anxiety.
643 The [husband] has delayed the payment of school fees to the point of solicitors’ letters of demand being issued, even at times when he had the ready funds to do so. The [husband] agreed that this was “highly distressing” to the [wife] and “something to worry about” (Transcript 17 August 2023, p.329 lines 33–35).
644 The [husband] often refused to pay or delayed paying accounts even though he was in a position to so do, or otherwise behaved in a controlling manner….
The primary judge made a finding (at [656]) that conduct of the husband made the wife’s contributions more arduous and onerous, and forced her to engage in additional care of the children and required her to manage her anxiety as to financial affairs. The primary judge found the impact of family violence upon the wife’s contributions “must be quite modest” (at [657]).
Subsequently, in consideration of factors referred to in s 75(2) of the Act, the primary judge said:
664 The [wife] will have the care of three children for some time. This may impact on her ability to earn income for some time. The marriage and her care of the children coupled with the behaviour of the [husband] has had the effect that the [wife] has not been employed for a long period of time which has adversely affected her capacity.
(Emphasis added)
Both the husband and the wife cited the Full Court decision of Loncar & Loncar (2021) FLC 94-054 as relevant:
62In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step.
(Emphasis added)
There is no error of principle by taking into account findings of prior family violence in evaluating past contributions and then considering its prospective impact in combination with other factors as relevant to findings as to future earning capacity.
The projected effects of family violence on the wife were considered by the primary judge, coupled with both the history of the marriage dynamic whereby the wife was not in employment for many years while caring for the children and her future full-time care of them. The accumulation of these facts grounded the predictive prospective factor as to the wife’s future earning capacity from known uncontroversial historical facts and from present circumstances.
No error is established. This particular of the ground fails.
Ground 3(b) – Failure to consider Child Support (s 75(2)(na))
Section 75(2)(na) of the Act requires the primary judge to take into account “any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage” in considering what order should be made in property settlement proceedings.
The gravamen of the husband’s challenge is that the primary judge did not make any express reference “to either child support or any cross-reference to the subsequent subheading “Child Support Departure Order” in the consideration of factors relevant to the adjustment to the contribution finding, despite orders being made requiring him to make both periodic and non-periodic child support payments.
By way of illustration as to what the husband contended was a significant value of child support to be paid in the future not considered by the primary judge, he provided during the hearing of the appeal an aide memoire (Exhibit A). That document extrapolated to an annualised value in different categories the periodic payments he made as recorded in his financial statement as at 18 July 2023.
He did not take this approach at trial. He made no written or oral submissions in the consideration of s 75(2) matters as to the quantum of any future child support he would pay. This failure was not identified in his Summary of Argument, reflecting an approach looking for error without reference to the manner in which the trial was conducted.
The dicta of the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, is apposite to the approach taken by the husband by way of this ground on appeal:
120.In these circumstances a measure of benevolence should be employed in reading Palmer J's reasons for judgment, both in relation to this first error detected by the Court of Appeal in relation to the adversarial character of the proceedings, and the second error it detected in relation to the "balancing exercise". Counsel for the plaintiffs did not demur from the proposition that when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
121.The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration "expressly", even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.
(Footnote omitted) (Emphasis added)
The husband did not draw the primary judge’s attention at trial to this consideration at trial. At the hearing of the appeal he contended that the relevant discretion was guided by the Act and as such future child support was not only a matter that was both “fundamental and obvious”, it was mandated for consideration by the Act.
The manifestation of what is considered depends upon the circumstances of the case. A failure to refer to aspects of that subjective process, for example in the reasons, does not necessarily indicate that the primary judge has not complied with the obligation to consider, as was identified by the Full Court in Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb & Sheean”):
87. In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
In Fowles & Fowles (No 2) [2024] FedCFamC1A 115 the Full Court cited Tibb & Sheean, saying:
226The primary judge did not mention either the 2017 DD Trust or the Fowles Family Trust in that discussion, but that does not mean they were not given appropriate weight. The mere fact that they were not expressly mentioned does not mean that they were not taken into account (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at [41]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386; Tibb v Sheean (2018) 58 Fam LR 351 at [75]–[88]).
(Emphasis added)
The husband’s historic payment of child support is the subject of consideration by the primary judge (at [434]). The husband’s evidence was that he had paid periodic child support as assessed and non-periodic support by way of school fees and medical costs. The primary judge found that the husband has “generally supported and maintained the children as needed”, “but subject to the caveat that he has been financially controlling” of the wife, which at times had affected the children. The primary judge recorded at [291] that the husband conceded in cross-examination that he had been financially controlling. The primary judge further considered:
643 The [husband] has delayed the payment of school fees to the point of solicitors’ letters of demand being issued, even at times when he had the ready funds to do so. The [husband] agreed that this was “highly distressing” to the [wife] and “something to worry about” (Transcript 17 August 2023, p.329 lines 33–35).
644 The [husband] often refused to pay or delayed paying accounts even though he was in a position to so do, or otherwise behaved in a controlling manner…
(Emphasis added)
As to the scope of the dispute between the parties as to future non-periodic child support payable by the husband, he conceded that he would continue to pay school and incidental costs, private health insurance and gap medical costs. The dispute as to future non-periodic child support was that the husband opposed paying for extra-curricular activities, sporting equipment, clothing, and other expenses of the children without prior written agreement. The additional relief as to non-periodic child support sought by the wife was:
673… a lump sum prepayment of the children’s school fees (or alternatively, payment as they fall due) and payment of the children’s other education expenses, extracurricular activities, private health insurance and medical expenses.
The primary judge found (at [675]) that there was no material before the Court permitting quantification of a lump sum order. The primary judge ordered the husband to pay the non-periodic payments to which both parties agreed, being that as sought by the husband.
A narrower scope of the dispute existed as to future periodic child support payable by the husband to the wife. It was framed by the husband conceding to pay $400 per week per child and the wife seeking for him to pay $500 per week per child. The primary judge determined at [677] that the husband was to pay $450 per week per child, noting that neither the evidence nor the submissions assisted in determining such an amount.
In our view, although not express, when regard is had to the primary judge’s reasons in their entirety, it is tolerably clear that due consideration was afforded to the future payment of child support by the husband in determining the adjustments to the contribution finding and to the justice and equity of the order made adjusting property. We are not persuaded that any appealable error is identified by way of this particular of the ground.
Ground 3(c) – Failure to consider quantum of funds to be received by the Wife as a result of the contribution assessment (s 75(2)(n))
By way of this ground, the husband contends that the primary judge failed to consider s 75(2)(n) and/or s 75(2)(b) before proceeding to determine whether any s 75(2) adjustment was warranted.
The husband submitted that it is necessary to “consider the effect of the findings as to contribution on the respective positions of the parties before proceeding to determine whether any adjustment is warranted pursuant to s 75(2)” (Scriven & Scriven (2020) FLC 93-988 at [50]). That is not the case here. The primary judge’s findings as to contributions are found at [659] of the reasons, prior to consideration and evaluation of the s 75(2) factors commencing at [660].
The husband further identified as relevant to the ground the reasons in Lovine & Connor and Anor (2012) FLC 93-515 (“Lovine & Connor”) at [72]. The primary judge in that matter did not have regard to the property findings as the “starting point when assessing the s 75(2) factors”. That was not the circumstance in this case for the reasons identified earlier by way of the orthodox chronology of the reasons.
The primary judge does not make express reference to s 75(2)(b) and/or s 75(2)(n) of the Act.
In part as an adjunct to Ground 1, the husband contends that it is “impossible to determine” the quantum of the contribution findings and adjustment to the contribution findings from the reasons, hence those components could not have been independently considered pursuant to ss 75(2)(b) or 75(2)(n).
The wife sought, and the husband conceded at trial, that the contribution finding ought to be adjusted in favour of the wife by way of the consideration of the factors identified in s 75(2) of the Act. They disagreed as to the terms of that adjustment.
Again, when regard is had to the primary judge’s reasons in their entirety, it is plain that consideration was given to the value of the property of the parties available for adjustment (at [598]) and the impact of the contribution finding (at [659]) on that value of property as part of the consideration of the range of s 75(2) factors relevant in this matter.
The complaint that the primary judge did not cross check this adjustment (Lovine & Connor at [81], where the primary judge in that case did not “sufficiently analyse the effect of such an adjustment in real money terms as he was bound to do”) cannot be sustained. The primary judge (at [671] and [672]) completed by way of cross check the differential in the value of property to be adjusted between them was $2,658,536, ensuring that it was appropriate and just and equitable.
No error is established by this particular of the ground.
Ground 3 fails.
Ground 1 – inadequate reasons
By way of this ground, the husband submits that the primary judge “failed to disclose, or sufficiently disclose, the pathway by which he reached his ultimate decision on the competing applications for an order under s. 79 of the Act”, rendering the reasons inadequate.
This ground does not assert that the reasons fail to refer to “cogent evidence that is relevant to an issue that is of significance in the proceedings” (Aitken & Aitken (2023) FLC 94-142 at [42]). The purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). The Full Court has confirmed many times that reasons need only be adequate, and adequacy depends on the circumstances. Reasons will be inadequate if the appellate court is unable to ascertain those reasons for the decision and if justice is not seen to be done (Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]). The proper abandonment of Ground 4 correctly identifies that the outcome by way of the orders made by the primary judge was within the generous ambit of discretion afforded by s 79 of the Act in the circumstances of this case, such that justice by way of those orders was achieved. This was confirmed by way of the elements promoted by the husband in the re-exercise of discretion by this court he sought, should the appeal be successful.
To support this ground, the husband submits that:
1.1Having determined that “the initial contributions favour the father” the learned Trial Judge failed to particularise the extent to which such contributions favoured the Husband.
1.2Having determined that “… the contributions of the parties to the time of hearing as slightly favouring the father” the learned Trial Judge failed to particularise the difference in percentage terms of the extent to which such contributions favoured the Husband.
1.3Having determined that the ultimate result would be a division of the property of the parties in the proportions of 62.5% to the Wife and 37.5% to the Husband, the learned Trial Judge failed to identify the quantum, either as a percentage or a figure expressed in monetary terms, of the extent and effect of the factors contained in s 75(2) of the Act.
In his Summary of Argument, the husband goes on to submit:
8.As has been recognised In the marriage of Horsley, AT and Horsley, NM (1991) FLC 92-205, a failure to separate the contributions of the parties from the relevant s. 75(2) factors can effectively preclude an appellate Court from examining [the primary judge’s] reasons or indeed an appellant from challenging them.
(Footnote omitted)
Whilst not challenging the accuracy of that submission, in this context it is not reflective of the primary judge’s reasoning. The reasons explicitly separate the contributions and their evaluation from the relevant s 75(2) factors and their consideration adjusting the contribution finding.
The complaint of the husband in paragraph 49 of his Summary of Argument is that it is impossible to determine the primary judge’s contributions assessment and adjustments thereto as components of the final determination, as they were “not independently considered in either percentage or real money terms”. For the reasons identified, the contention that they were not independently considered is rejected.
The husband in his Summary of Argument conceded that a primary judge is not obliged to expressly state the contributions or adjustment thereto as a percentage, but that “it is usual for such statement to occur”. In so far as the ground indirectly asserts that the primary judge fell into error in not ascribing a monetary or percentage value to the contribution finding or adjustment thereto, such contention is not accepted.
It has generally been recognised, albeit not legislatively mandated or required by the Full Court, that a disciplined approach and a structured process of reasoning of a s 79 determination is required (Lee Steere & Lee Steere (1985) FLC 91-626; Ferraro& Ferraro (1993) FLC 92-335; Townsend& Townsend (1995) FLC 92-569; Hickey and Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143 (“Hickey”)).
In Cosola & Moretto (2023) FLC 94-143, the Full Court confirmed at [38] that s 79 itself sets out the sequential tasks in which trial judges are to engage, as was made clear by the High Court in Stanford v Standford (2012) 247 CLR 108 (“Stanford”) at [37].
Section 79 of the Act does not require the ascribing of a monetary or percentage value to the contribution finding or adjustment thereto. This was identified by the Full Court in JEL & DDF (2001) FLC 93-075:
137.It is urged upon us by [senior counsel for the appellant] that in a case such as the present one, her Honour ought not to have assessed the parties’ contributions in percentage terms but rather on a monetary basis. It is true that traditionally the Court has assessed the parties’ contributions in percentage terms. There is, however, nothing in the Act which dictates such an approach.
(Emphasis added)
The Full Court in Hickey identified a preferred approach to the determination of an application brought pursuant to the provisions of s 79 involving four inter-related steps. The second step is the identification and assessment of the contributions of the parties and a determination of the contribution-based entitlements of them as expressed as a percentage of the net value of their property. The third step is identification and assessment the relevant matters in ss 79(4)(d), (e), (f), and (g), including the facts in s 75(2), also expressed as a percentage of the net value of their property.
The High Court has confirmed that the promotion of preferred approaches or guidelines has the benefit of a uniformity of approach, avoiding capricious or arbitrary decision making (Norbis& Norbis (1986) 161 CLR 513 (“Norbis”)).
In Bevan & Bevan (2013) FLC 93-545 the Full Court recognised that the four-step process is a short-hand distillation and that guidelines or preferred approaches identified by the Full Court do not constitute binding rules of law that vitiate the exercise of the broad s 79 discretion.
In Fitzmaurice & Woolridge (2020) FLC 93-951 (“Fitzmaurice & Woolridge”), in discussing s 90SM (being the de facto property adjustment equivalent of s 79) the Full Court said:
19.These three aspects echo three of the four steps or stages developed in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”). Adherence to those four steps is not mandatory, and the approach “merely illuminates the path to the ultimate result” (see Norman & Norman [2010] FamCAFC 66 at [60]). Indeed in Martin & Newton (2011) FLC 93-490 at 86,127, it was said of the four step calculus:
305.… [T]hat approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant s 75(2) matters.
(Emphasis in the original)
20.The short point however is, whether a staged or another approach is adopted by a judge engaged in determining the parties’ entitlement to property settlement orders, the fundamental responsibility imposed by s 90SM is to:
a)identify the assets and liabilities of the parties available for consideration;
b)consider and assess the parties contributions under s 90SM(4)(a)–(c); and
c)consider and asses the matters relevant in s 90SM(4)(d)–(g), including referral to matters in s 90SF(3).
The primary judge identified that he intended to follow the holistic approach in assessing contributions and adjustments thereto (Jabour & Jabour (2019) FLC 93-898; Horrigan & Horrigan [2020] FamCAFC 25) (at [606]).
The preferred or orthodox approach identified in Hickey is not mandatory. What is mandatory is that the sequence of tasks specified in s 79 of the Act are completed. That is what the primary judge did. The contributions of the parties were carefully considered and analysed, being:
(a)As to initial direct financial contributions of the wife as subject to unsuccessful challenge in Ground 2(a) (at [607] – [613]) and the use made of those contributions;
(b)Identifying the husband’s initial direct financial contributions by minority interests in real properties owned with his family (at [492] and [506]) and the ultimate benefits received from those interests (at [483] – [484], [607]–[611], [616], [617]);
(c)Finding that the initial contributions favour the [husband], but not to the degree asserted by him (at [618]);
(d)The husband receiving the entirety of the proceeds of sale of the Suburb Q property, being over $952,761, of which he had a minority interest (at [492]);
(e)A $100,000 gift from the husband’s mother in 2010 (at [623]);
(f)Other loans from the husband’s mother in 2010, 2013, 2014 and 2020 (at [622]); and
(g)The sum of $1 million provided by way of loan from the husband’s mother in 2010 which was never repaid (at [624]);
(h)Other non-financial and homemaking and parenting contributions within the dynamic established by the parties in this marriage;
(i)Finding that the acts of violence perpetrated by the [husband], adversely made more arduous and the wife’s homemaker and parent contributions (at [632]–[657]);
(j)Finding that save for 2010 gift and loan provided by the husband’s mother that was not repaid, the contributions throughout the relationship should be regarded as equal (at [619]);
(k)Assessed the parties post-separation contributions as the same as during the relationship, with the wife having the primary care of the children and the husband providing economic support for the family (at [658]); and
(l)Finding that the contributions of the parties at the time of the hearing slightly favour the husband (at [659]).
The primary Judge further considered by way of adjustment to the contribution finding:
(a)As recorded earlier, the husband’s earning capacity of at least $1 million each year compared to the fact that the wife could not return to her pre-child employment (at [660] and [663]), and the impact of that on her future income earning capacity (at [664]);
(b)The wife’s future full time care of the children; and
(c)The husband’s failure to explain the fate of nearly $1,200,000, coupled with the payment of the $60,200 invoice, which are matters of considerable significance having regard to the total property to be divided (at [665]).
The primary judge, taking all matters into account, as required by s 79 of the Act, considered the appropriate just and equitable adjustment of the property was 62.5 per cent to the wife and 37.5 per cent to the husband (at [666]). That finding led to the differential between the parties of $2,658,536 (at [668]).
The primary judge then considered:
671 …This is appropriate given the above considerations.
672 I am satisfied in all the circumstances that such a division is just and equitable.
The approach taken by the husband to the adequacy of the primary judge’s reasons seeks to constrict the metes and bounds of the s 79 process by directing that which is not required by the section itself (Stanford at [36]). The primary judge undertook and completed the sequential steps as required by s 79 of the Act.
That said, the preferred or orthodox approach, as distilled by the Full Court in Hickey and as subsequently endorsed for the reasons repeated in Fitzmaurice & Woolridge, is to ensure that the hazards and errors confronting trial judges as identified by the High Court in Norbis are avoided and to secure an absence of controversy from inadequate reasons to ensure justice is achieved.
The primary judge’s conclusory findings (at [659]–[672]) informed an appropriate contribution finding and adjustment to that finding pursuant to s 75(2) of the Act, and the justice and equity of the property adjustment order made. All that is necessary is for the reasons to enable the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). The pathway of reasoning by which the primary judge made the above findings is in this case sufficiently discernible.
Ground 1 fails.
CONCLUSION AS TO THE APPEAL
The husband has failed to establish appealable error. The Notice of Cross Appeal filed 22 May 2024, as amended on 8 July 2024, will be dismissed.
COSTS
In the event the appeal was unsuccessful, the wife sought for the husband to pay her costs on a party and party basis fixed in the sum of $48,612. The husband did not resist such an order and did not take issue with the reasonableness of the quantum sought. Such order will be made accordingly.
For all of the above reasons, we make the order as set out at the forefront of these reasons.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Campton and Jarrett. Associate:
Dated: 9 August 2024
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