Bunting & Stanzler
[2024] FedCFamC1A 67
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bunting & Stanzler [2024] FedCFamC1A 67
Appeal from: Stanzler & Bunting [2023] FedCFamC2F 1286 Appeal number: NAA 300 of 2023 File number: SYC 6808 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 3 May 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that she was not afforded procedural fairness – Where the Court determines that the appellant failed to clarify whether she continued to press her proposed orders that the properties be sold, despite being given the opportunity to do so at first instance – Where the primary judge’s assessment of contributions was adequately explained – No merit in any grounds of appeal – Decision of the primary judge not plainly wrong – Where the primary judge’s ultimate conclusion did not exceed the generous ambit of discretion allowed for trial judges – Adequate reasons – Judgment not infected by operative delay – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 75 and s 79 Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Baghti & Baghti and Ors [2015] FamCAFC 71
Beck and Beck (No 2) (1983) FLC 91-318; [1983] FamCA 7
Brodie & Brodie (2009) 41 Fam LR 18; [2009] FamCAFC 6
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Clives and Clives (2008) FLC 93-385; [2008] FamCAFC 172
De Winter and De Winter (1979) FLC 90-605
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Elgin v Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189
Fabrizi v Grasso (JNR) as the Legal Personal Representative of Mr Grasso (DECEASED) (No 2) [2022] WASCA 27
Franklin & Franklin [2010] FamCAFC 131
Gadhavi & Gadhavi (2023) 67 Fam LR 174; [2023] FedCFamC1A 117
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (No 2) [2023] WASCA 108
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Jabour & Jabour(2019) FLC 93-898; [2019] FamCAFC 78
Loude & Loude [2009] FamCAFC 52
Mallet and Mallet (1984) 156 CLR 605; [1984] HCA 21McDonald v Queensland Police Service (2017) 269 A Crim R 582; [2018] 2 Qd R 612
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
Monie and Others v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25
Norbis and Norbis (1986) 161 CLR 513; [1986] HCA 17
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Rigby & Olsen [2021] FedCFamC1A 46
SDCV v Director-General of Security (2022) 405 ALR 209; [2022] HCA 32
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Teal & Teal [2010] FamCAFC 120
Van der Linden v Kordell [2010] FamCAFC 157
Vida v Vida and Another (2023) 67 Fam LR 285; [2023] FedCFamC1A 175Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Number of paragraphs: 103 Date of hearing: 26 March 2024 Place: Sydney Counsel for the Appellant: Mr Othen Solicitor for the Appellant: Mills Oakley The Respondent: Litigant in person ORDERS
NAA 300 of 2023
SYC 6808 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BUNTING
Appellant
AND: MR STANZLER
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 300 of 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
On 6 October 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) made orders awarding each party 50 per cent of the total net property pool. In arriving at his determination as to what was a just and equitable adjustment of the parties’ property, the primary judge found that contribution factors justified an adjustment in favour of the respondent husband of five per cent. That adjustment was, however, offset by the primary judge’s conclusion that, having regard to the future needs of the appellant wife, she was entitled to an adjustment of five per cent in her favour pursuant to the matters set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
The appeal is based on four broad grounds, which contend the following:
(a)The primary judge failed to provide procedural fairness and a fair trial to the appellant, including by failing to grant an application for adjournment.
(b)The primary judge failed to provide adequate reasons for orders that resulted in the appellant retaining one of the two properties in Country P in circumstances where it was contended that outcome was contrary to her wishes.
(c)The primary judge erred in determining that the respondent was entitled to an adjustment of five per cent in his favour pursuant to the matters set out in s 79(4) of the Act which outcome, it was contended, was unreasonable and further, was not explained by adequate reasons.
(d)The primary judge erred in respect to his assessment of the appellant’s future needs as justifying an adjustment of only five per cent in her favour.
The errors identified in respect of that final ground related to the appellant’s contentions that the primary judge failed to:
(a)have regard to material matters; and
(b)set out the impact of his determination on the financial position of the wife; and
(c)provide adequate reasons; or
(d)in the alternative, exercise discretion in a proper fashion, noting that the outcome was unreasonable and unjust and that the Court would draw this inference on appeal.
During the course of the appeal, the Court drew to the attention of counsel for the appellant that Ground 1 was based on a false premise. Contrary to the appellant’s assertion, the primary judge did not refuse to grant the appellant’s application for an adjournment under s 79(5) of the Act. Rather, that application was withdrawn by the wife at first instance, and consequently dismissed. In the reasons which follow, I explain how that misapprehension and the appellant’s failure to clarify her position by filing submissions in chief and in reply in accordance with the directions made by the primary judge, have infected other aspects of the appeal.
The reasons further explain why, more generally, the appellant has failed to satisfy me of the existence of appellable error justifying intervention by the Full Court.
BACKGROUND
For the purpose of this appeal, I provide the following brief outline of background facts and contentions insofar as they are relevant to the issues that require determination in this appeal.
The appellant wife, Ms Bunting was born in 1967 and is currently 57 years of age. The respondent husband, Mr Stanzler was born in 1968 and is currently 56 years of age. Both parties were born in Country P.
The parties were married for 26 years. The primary judge noted that neither party gave any evidence of cohabitation between the period of them meeting in 1982 and marrying in 1992. An issue of controversy in the substantive proceedings was the date of formal separation. The parties agree, however, that the husband left the former matrimonial home in April 2016 and the wife continued to reside in the property after that time and until the date of hearing. The parties divorce became final in 2018.
There is one child to the marriage, Mr R, who was 19 years old at the time of the final hearing. Mr R is currently 21 years of age. It was acknowledged during the proceedings that Mr R is an outstanding musician. The parties’ respective contributions to assisting Mr R were issues in the first instance proceedings, but that is not the focus of this appeal.
The parties have investment properties in both Australia and Country P. There are five properties, which were purchased in the parties’ joint names, and are set out as follows:
(a)Property B, City C, Country P;
(b)Property D, City C, Country P;
(c)Property E, Suburb F, Australia;
(d)Property G, Suburb H, Australia; and
(e)Property Q, Suburb J, Australia.
I have highlighted the properties located in City C, Country P (“the Country P properties”) because a central issue in this appeal is whether the potential sale of one or both of those properties was an issue that should have received judicial attention by the primary judge either in terms of making orders to that effect or explaining why he failed to do so.
The substantive proceedings were commenced by the husband by way of an Initiating Application filed in the Federal Circuit Court of Australia (as it was then known) on 2 November 2018. The husband sought an order altering the property interests of himself and the wife under s 79 of the Act.
The primary judge notes at [2]–[3] of his reasons that:
After ignoring rule 4.03 of the then applicable Federal Circuit Court Rules 2001 and the Orders made on 7 December 2018, 5 March 2019, 14 May 2019 and 2 July 2019, the wife filed her Response on 27 August 2019 addressing the Applicant’s section 79 application.
The husband filed Amended Initiating applications on 18 June 2021 and 2 June 2022, with the wife thereafter filing an Amended Response on 31 July 2022 seeking, inter alia, orders under section 79 of the Act, and for the husband to pay her spousal maintenance.
Relevantly, in proposed Orders 4 and 5 of his Further Amended Initiating Application filed on 2 June 2022, the husband sought that each party take such steps as was necessary to transfer to the other party their interest in one of the Country P properties, such that each party would have exclusive title to one of those properties.
Comparatively, in proposed Order 9 to 11 of her Amended Response filed 31 July 2022, the wife sought orders for the sale of both of the Country P properties, with the net proceeds to be divided between the parties, such that the respondent wife receive 70 per cent of the net sale proceeds and the applicant husband receive 30 per cent.
The matter was listed for final hearing before the primary judge on 5 September 2022. At the hearing, the applicant husband relied upon a Case Outline Document filed on 2 September 2022, indicating that he relied upon his financial statement filed 21 April 2022 and two affidavits filed by him on 2 November 2018 and 21 April 2022. The husband also relied upon affidavits filed by the wife on 26 August 2019, 15 August 2022 and a financial statement filed by the wife on 26 August 2019.
At the hearing on 5 September 2022, the respondent wife relied upon a Case Outline Document filed 2 September 2022 indicating that she relied upon her affidavit filed on 15 August 2022 and her financial statement filed on 31 July 2022. Save to the extent that they were referred to in a balance sheet attached to the wife’s Case Outline Document, no reference was made to the wife’s proposed orders for the sale of the Country P properties. The affidavit of the wife filed 15 August 2022 also makes no reference to the wife’s desire to sell the Country P properties, nor does it state an intention to do so in the event of one or both of those properties being transferred to her.
The evidence of both parties was heard on 5 September 2022, with the primary judge commending counsel for ensuring that the evidence was completed on that day.[1] Neither party was cross examined in respect to the desire to sell or retain the Country P properties. At the completion of evidence, the primary judge made orders for the parties to file written submissions according to the following timetable:
1. The Applicant and the Respondent are to file any written submissions in chief by no later than 4:00PM on 3 October 2022.
2. The Applicant and the Respondent are to file any written submissions in reply by no later than 4:00PM on 17 October 2022.
(Emphasis in original)
[1] Transcript 5 September 2022, p.81 lines 17–19.
Both parties filed written submissions on 5 October 2022. The wife’s written submissions were in two parts. The first part was titled “Application for adjournment”, and the second part was titled “Wife’s substantive submissions”. Under the first heading, the wife set out arguments as to why the proceedings should be adjourned pursuant to s 79(5) of the Act, to enable both of the Country P properties to be sold prior to final orders being made. The reasons advanced for the adjournment are set out in paragraph 2 of the wife’s submissions, as follows:
a. The property pool is $4.961 million (rounding). The [Country P] properties are held jointly. There are 2 properties. They are each worth $944,976, that is, in total, they are worth, $1.889 million. That represents 38% of the asset pool.
b. Orders made in the Federal Circuit Court and Family Court are not able to be enforced in [Country P]. Any Order that a court makes in Australia, may not sever the financial relations between the parties.
c. Having the funds available for distribution in Australia will enable the court to make effective orders, and the parties to sever their financial relationship.
On 17 October 2022, the husband filed his response to the wife’s submissions, which addressed the wife’s application for adjournment.
On 25 October 2022, the wife filed a document titled “The wife’s reply”. That document appears to be a response to the husband’s submissions filed 5 October 2022 and 17 October 2022. In her reply filed 25 October 2022, the wife explained her position as seeking a 70:30 division of the property in her favour, with the proportion of property going to her including the “proceeds from the sale of the [Country P] properties” (paragraph 16). The reasons advanced by the wife included her contention that the sale of the Country P properties would enable her to retain Property E without mortgage while being able to provide for herself “with rental income from the Australian investment properties”, noting that the rental income that she was receiving from the two Country P properties “will cease to exist after the properties are sold”.[2]
[2] Wife’s Written Submissions filed 25 October 2022, paragraphs 16 and 18.
In her written submissions in reply filed on 25 October 2022, the wife also proposed what she described as a ‘compromise’ at paragraph 19, being that:
… she obtains one investment property in Australia: the one in [Suburb J], which has a higher rental income than the [Suburb H] property, on the condition that the two parties agree to sell the [Suburb H] Property. The proceeds of the sale can be used by the wife to pay off the [Suburb J] property mortgage, and part of the [Suburb F] property mortgage.
The matter was next listed before the primary judge on 9 November 2022, on which date the wife withdrew her application for the matter to be adjourned pursuant to s 79(5) of the Act. The wife was given liberty to file a further document titled “Respondent wife’s reply”. That document traversed the same issue as the earlier submission including cross comparing the orders sought by the husband and the orders sought by the wife. While expressed in more concise terms than the earlier submission of 25 October 2022, that submission filed on 9 November 2022, contained no reference to the anticipation of the Country P properties being sold, but rather noted that if the husband retained the assets that he proposed, which included one of the Country P properties then, in order to do “justice and equity between the parties” it would be necessary for the husband to make “a cash payment to the wife of $1,339,596” (page 3).
Relevantly, the wife’s submissions in reply filed on 9 November 2022, which was filed after the wife abandoned her application for interim orders that the Country P properties be sold prior to final orders, omitted the following paragraphs that had been included in the earlier submission of 25 October 2022 (pages 8–9):
The two [Country P] properties are valued at $944,975 each which total $1.89 millions (Item 4 & Item 5 Balance Sheet). The total amount of the three mortgages on the Australian properties is $851,990, including the mortgage $409,784 for the [Suburb F] property (Item 33 Balance Sheet), the mortgage $267,245 of the [Suburb J] property (Item 35 of Balance Sheet), and the mortgage $174,961 of the [Suburb H] property (Item 34 of Balance Sheet).
After the two [Country P] properties are sold, the funds can be used by the wife to pay off the outstanding mortgage of the [Suburb F] property, which is $409,784 (Item 33, balance sheet), and the mortgages for the two investment properties in Australia, which total $442,206.
With the wife receiving the proceeds from the sale of the [Country P] properties, she will be in a position to retain her home in [Suburb F] without a mortgage. With the rental income from the Australia investment properties, it will enable the wife to receive some future income, under the circumstances of her with ongoing health issues.
(As per the original)
The wife’s omission of reference to the sale of the Country P properties in her further written submissions filed on 9 November 2022 is significant because, as earlier noted, it was on that day that the wife withdrew her application for adjournment pursuant to s 79(5) of the Act to enable the Country P properties to be sold prior to final orders being made (referenced in the reasons for judgment at [9]–[10]).
Significantly, the orders made by the primary judge on 9 November 2022 were as follows:
1. The Court grants leave to the Respondent Wife to file and serve and rely upon her supplementary reply submissions handed up in open Court.
2. The Applicant Husband is to file and serve amended written submissions in chief by no later than 4:00PM on 30 November 2022.
3.The Respondent Wife is to file and serve amended written submissions in chief and in reply by 4:00PM on 21 December 2022.
4. The Applicant Husband is to file and serve amended written submissions in reply by no later than 4:00PM on 25 January 2023.
5. The matter is otherwise adjourned to Chambers for consideration of reserving judgment on 27 January 2023.
6. The Application in a Proceeding filed by the Respondent Wife on 5 October 2022 is dismissed.
7. Any written submissions in relation to costs of the Application in a Proceeding filed by the Respondent Wife are to be included in the written submissions in chief to be filed pursuant to these orders.
(Emphasis in original)
It is relevant to note that the first Order, which granted the appellant (the respondent wife at first instance) leave to “file and serve and rely upon her supplementary reply submissions” dated 9 November 2022, was the last submission filed by the appellant. As noted, that submission omitted the earlier reference to the proposed sale of the Country P properties. The omission of that reference is entirely consistent with Order 6 of the orders made on 9 November 2022, that the wife’s Application in a Proceeding for an adjournment, which was included in her written submissions filed on 5 October 2022, was dismissed.
It is to be accepted that the differing contentions in respect to the sale of the Country P properties that had originally been set out in the wife’s submissions of 25 October 2022, as compared to those filed by the wife on 9 November 2022 may have created a situation of ambiguity for the parties and the Court. What is significant, however, is that the orders made by the primary judge on 9 November 2022 gave the wife every opportunity to clarify her position by filing and serving amended submissions in chief and in reply by 21 December 2022. The wife failed to do so and hence, lost the opportunity to clarify the situation of ambiguity in the final orders she was seeking. I will further reference that failure in the body of this decision.
As a result, the primary judge was left with the wife’s application for orders that were annexed to her written submissions dated 5 October 2022, which are Annexure “B” to the judgment. The first four proposed orders were premised on an adjournment being granted prior to final orders being made with the Country P properties to be sold during the period of the proposed adjournment. With the wife’s application for the adjournment being abandoned, those proposed orders became redundant. This is demonstrated by the wife’s application for proposed Order 4, which sought an order that the balance of the proceeds from the sale of the Country P properties was to be held in a controlled monies account pending any agreement between the parties or final order of the Court. Clearly, that proposed Order was incapable of being fulfilled once the wife’s application for an adjournment of the proceedings pursuant to s 79(5) of the Act was withdrawn and dismissed.
GROUNDS OF APPEAL.
On the morning of the hearing, the wife was granted leave to amend her grounds of appeal to read, with amendments underlined, as follows:
1.That the trial Judge failed to provide procedural fairness and a fair trial to the Appellant or further or in the alternative erred at law when in the context of a substantial delay in delivery of Reasons for Judgment the trial Judge:
a. failed to determine her application including under section 79(5) that two properties in the joint names of the parties in [Country P] be sold and the proceeds used to pay down mortgage debt in Australia; and/or
b. required her to retain one of the properties in [Country P] at a fixed value against her wishes without regard to the costs of realising it.
2.That the trial Judge failed to give any reasons or any adequate reasons for determining in favour of the Respondent’s application that the Appellant would retain one of the two properties in [Country P] in circumstances where she proposed its sale and did not wish to retain it.
3.That with respect to the contributions assessment awarding the Respondent 55% of the net property of the parties, the trial Judge:
erred in compartmentalising the assessment of contributions prior to separation from those made after separation; and
- in the context of a substantial delay in delivery of Reasons for Judgment:
a.failed to give any or adequate reasons for determining that the Respondent made 55% of the contributions; or
b.further in the alternative, the assessment is unreasonable and unjust such that the Court would infer there has been a failure to exercise the discretion in proper fashion.
4.That with regard to the section 75(2) adjustment of 5% in favour of the Appellant and in the context of a substantial delay in delivery of Reasons for Judgment the trial Judge:
a.failed to have regard to material matters; and
b.failed to set out the impact of his determination upon the financial position of the wife either prior to undertaking the section 75(2) exercise or upon doing so; and
c.failed to provide adequate reasons for his determination that a 5% adjustment was appropriate, or just and equitable; or
d.in the alternative, when strictly scrutinised in the context of the said delay, the section 75(2) adjustment is unreasonable and unjust such that the Court would infer there has been a failure to exercise the discretion in proper fashion.
The impact of delay
It is to be noted that the appellant relies on delay in the publication of reasons for judgment as being an issue of relevance to Grounds 1, 3 and 4.
The contention that there was an unacceptable delay in the publication of the judgment is based on a false premise. In paragraph 6 of the appellant’s Summary of Argument filed 24 January 2024, it is contended that there was a delay of 10 months between the reservation of judgment and the date of final submissions, which, according to the authority of Aon Risk Services v Australian National University (2009) 239 CLR 175 at [152]–[153], is an unacceptable period of delay. The delay was, in fact, nine months. While not ideal, it can often be the case that the demands upon a judicial officer are such that there is unfortunately, an unsatisfactory delay in the making of final orders and the delivery of judgment.
Authorities are clear that a judgment may be so infected by “operative delay”, in which case, appellate intervention is warranted. In Monie and Others v Commonwealth of Australia (2005) 63 NSWLR 729, Hunt A-JA (with whom Giles JA and Bryson JA agreed) observed at [44]:
It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial …
In considering whether there was “operative delay”, the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 (“PRD Realty”), as applied in Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20 at [115]–[119], said:
[68]Where there are relevant contemporaneous materials, such as file notes and correspondence, and there is significant delay between the hearing of evidence and the giving of reasons for conclusions, being reasons that do not advert to the contemporaneous materials and do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal.
[69]Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.
[70]That advantage includes seeing the oral and documentary evidence unfold in a coherent manner, which cannot be replicated on appeal (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 per Kirby J at [90]; Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd (2002) 55 IPR 449 at [87]). That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge failed to use or misused such an advantage. The mere fact of a long delay itself weakens a trial judge’s advantage. Thus, delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given.
[71]In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
[72]In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]).
[73]Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998)) [subsequently reported at 217 ALR 452].
In this case, the primary judge made it clear that he had the benefit of all documents filed by the parties including the transcript (reasons for judgment at [23]) and, further, that it was unnecessary for him to make any findings as to credit (reasons for judgment at [73]). The latter reference is significant because, in the absence of the need to make a finding as to credit, it was unnecessary for the primary judge to attempt to recall the parties’ demeanour in giving evidence. In those circumstances, it cannot be said that the period of time between the filing of written submissions and delivery of judgment was such that it gave rise to operative delay, infecting the judgment. I accept, however, the submission of counsel for the appellant that even a delay of nine months warrants additional scrutiny of a judgment by an appellate court: PRD Realty at [44].
CONSIDERATION OF THE GROUNDS OF APPEAL
Ground 1(a) – Failure to provide procedural fairness and a fair trial to the appellant or further, or in the alternative, the primary judge erred at law by failing to determine the appellant’s section 79(5) application
During the course of the appeal, counsel for the appellant acknowledged that Ground 1(a) fell away[3] in circumstances where it is apparent that on 9 November 2023, the appellant wife withdrew her s 79(5) application for an adjournment (reasons for judgment at [9]–[10]) and consequently, that application was dismissed. Accordingly, Ground 1(a) is without merit.
[3] Appeal Transcript 26 March 2024, p.21 lines 46–47.
Counsel for the appellant nonetheless contended that there remains substance in Ground 1 insofar as the primary judge failed to afford procedural fairness and a fair trial to the appellant as a result of his Honour’s failure to consider and address her submission that the “two properties in the joint names of the parties in [Country P] be sold and the proceeds used to pay down mortgage debt in Australia”. As earlier noted, that submission was contained in the appellant’s written submissions filed on 25 October 2022 but was omitted from the final submissions in reply filed by the appellant on 9 November 2022.
In considering this ground of appeal, it is important to note that the appellant bears the onus of establishing that there is some “legal, factual or discretionary error” in the decision under appeal.[4] In that context, there is a “strong presumption” in favour of the primary judgment, and an appellate court must be satisfied it is clearly wrong before there is any appellate interference: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
[4] Allesch v Maunz (2000) 203 CLR 172 at 180–181. See also McDonald v Queensland Police Service (2017) 269 A Crim R 582 at [47].
In this case, the appellant has failed to satisfy me, sitting as a single judge at appellate level, that the primary judge misconstrued the nature of the appellant’s case at first instance. As I have earlier noted, while the appellant did, in her submissions filed on 25 October 2022, refer to a desire to sell the Country P properties as one alternative to pay down mortgage debt in respect to the former matrimonial home, she did not press that submission in her subsequently filed submissions in reply filed on 9 November 2022. That change of position occurred with the wife filing those amended submissions after the wife withdrew her application for an adjournment for the purpose of the properties being sold prior to final orders being made.
As noted earlier, on 9 November 2022, the day she abandoned that application for an adjournment, the wife filed further submissions in reply which omitted reference to a desire to sell the Country P properties. Instead, it was submitted that, in the event of the husband retaining the properties sought in his application, which included one of the Country P properties, that he should pay her the cash sum of $1,339,596.
It is important to appreciate that:
… the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice. [5]
[5] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (No 2) [2023] WASCA 108 at [203], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Ex parte Lam”) at [37]; HT v The Queen (2019) 269 CLR 403 (“HT”) at [18]; Fabrizi v Grasso (JNR) as the Legal Personal Representative of Mr Grasso (DECEASED) (No 2) [2022] WASCA 27 at [92].
In other words, the concept of procedural fairness is not fixed, as succinctly stated by Gageler J (as he then was) in SDCV v Director-General of Security (2022) 405 ALR 209 at [174]:
… “[t]he rules of procedural fairness do not have immutably fixed content ... ‘[F]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’”.[6] Procedural fairness necessarily has a variable content; it can be “provided by different means in different contexts and may well be provided by different means in a single context”.[7] It “is defined by practical judgments about its content and application”.[8]
[6] Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 (“Pompano”) at [156], quoting Ex parte Lam at [37]; see also [105] and [108]. See also HT at [46] and [64].
[7] Pompano at [177] and [195]. See also Dietrich v The Queen (1992) 177 CLR 292 at 364; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54].
[8] Pompano at [68].
As earlier explained, the wife’s proposed Orders 1 to 4 that were attached to her written submissions filed on 5 October 2022, became redundant when the wife abandoned her application for interim orders for the property to be sold prior to final orders being made. Even accepting that ambiguity arose from the appellant wife’s abovementioned changed position, it is significant that she was given the opportunity to clarify her position by filing amended submissions in chief and in reply in accordance with the timetable set in the orders made by the primary judge on 9 November 2022. She failed to avail herself of that opportunity to clarify whether she continued to press for orders that the Country P properties be sold. She cannot now contend that she was denied procedural fairness or a fair trial as result of her failure to clarify her position.
As noted by the primary judge in his reasons for judgment at [10], a reason for the amended filing schedule included “the wife’s desire, expressed [through] her Counsel, [Mr K], at the mention, to provide to the Court an amended Minute of Final Orders sought”.
Having requested a revised timetable to clarify the ambiguity in the orders she was seeking, the appellant cannot now take advantage of that situation of continuing ambiguity created by her indolence in failing to comply with the revised timetable. She had every opportunity to clarify and present her case and she failed to avail herself of that opportunity. Where a party is given an opportunity to clarify their case and fails to do so, there is no obligation on a trial judge to rummage through historical and superseded documents in an to attempt to divine what the party’s case might have been had they complied with the Court’s directions to clarify their case.
In the circumstances of this case, I am satisfied that the appellant was afforded a fair trial and there has been no denial of procedural fairness.
Therefore, this ground of appeal has no merit.
Ground 1(b) – Failure to provide procedural fairness and a fair trial to the appellant or further, or in the alternative, erred at law in requiring the appellant to retain one of the properties in Country P at a fixed value against her wishes without regard to the costs of realising it
This sub-ground of appeal is also based upon a flawed premise. The primary judge did not make an order requiring the appellant to retain one of the Country P properties. The primary judge made orders pursuant to s 79(4) of the Act to adjust the parties’ property, such that each of them retained one of the Country P properties that were agreed to be of equal value. The orders contain no compulsion on either party to retain those properties. Subsequent to the making of the orders, the parties are free to retain or dispose of the properties as they see fit.
In those circumstances, the principle’s adumbrated in Vida v Vida and Another (2023) 67 Fam LR 285 (“Vida”) to which the Court was referred by counsel for the appellant, have no application to this case. A material factual finding in Vida was that, in order for the respondent to pay the appellant the lump sum payment prescribed in an arbitral award, it was necessary for the respondent to sell an item of real estate which, in turn, would have capital gains tax implications: Vida at [31]. The Full Court held that, despite inadequacies in the presentation of the respondent’s case at first instance, having become aware of the necessity for the real estate to be sold, it was incumbent upon the arbitrator to invite submissions from the parties as to the potential capital gains tax consequences in order for the arbitrator to be satisfied that his orders were just and equitable.
To similar effect, in Elgin v Elgin (2015) 54 Fam LR 31 (“Elgin”), which was referred to by the Full Court in Vida, the primary judge ordered that corporate property in the form of an apartment owned by a company controlled by the husband, was to be transferred to the wife. It was accepted that transfer gave rise to necessary taxation consequences that fell upon the husband. Additionally, it was accepted there would be tax consequences for the husband in the event of it being necessary for the husband to extract funds from corporate entities controlled by him in the event that he was unable to pay the settlement sum to the wife as required by the orders made by the primary judge: Elgin at [189]. It was held by the Full Court in Elgin that despite inadequacies in the presentation of each party’s case, it was incumbent upon the primary judge to invite submissions as to those likely taxation consequences in order to be satisfied of the just and equitable requirement set out in s 79(2) of the Act.
Those cases are, in my view, distinguishable from the circumstances of this appeal. The sole affidavit relied upon by the appellant wife at first instance, made no reference to an intention on her part to sell a Country P property or even express a desire to do so. Nor was that issue the subject of oral evidence in the hearing that was conducted on 5 September 2022.
Insofar as the wife’s Amended Response filed on 31 July 2022 proposed orders for the sale of both of the Country P properties, those proposed orders were superseded by the orders attached to the wife’s submissions of 5 October 2022. As earlier noted, the orders sought for the sale of the Country P property were proposed as interim orders in the context of an application for the proceedings to be adjourned prior to the making of final orders. Those proposed orders became redundant once the appellant abandoned her application for an adjournment. Moreover, the final written submissions filed by the appellant on 9 November 2022, which appears to have been filed subsequent to the wife abandoning her application for an adjournment, contained no reference to a desire on the part of the wife to sell the Country P properties.
For the purpose of this appeal, I have determined that the procedural history that I have earlier outlined, gave rise to a situation of ambiguity. That situation of ambiguity appears to have been acknowledged by counsel for the wife in the proceedings at first instance (reasons for judgment at [10]). In the absence of the wife availing herself of the opportunity to clarify that situation of ambiguity by filing written submissions in chief and in reply by 21 December 2022, it remained, at best, a mere speculative possibility as to whether the wife would, in the future, sell the Country P properties. Such a mere speculative possibility of sale does not, in my view, enliven the obligation on the part of a trial judge, referred to in Vida and Elgin, to enquire of the parties of the potential taxation and other financial consequences in the event that a party did subsequently decide to sell either or any of the properties.
For these reasons, Ground 1(b) is also without merit.
Ground 2 – Failure to give adequate reasons
The requirement to give adequate reasons is “a fundamental requirement of the exercise of the judicial function”: Rigby & Olsen [2021] FedCFamC1A 46 at [38].
The parameters as to what constitutes adequate reasons is, however, defined by the manner in which the parties conduct their case. Specifically, the primary judge is entitled to focus his or her reasons on those issues the parties identify as requiring adjudication. This point is well made in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Housing Commission”) where Mahony JA said at 385–386[9]:
There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: …
…
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: … A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.
However, the decision of (sic) a particular submission may be an essential part of the judge’s reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.
(Citations omitted; emphasis added)
[9] Cited with approval in Baghti & Baghtiand Ors [2015] FamCAFC 71 at [63]–[64].
In this case, the appellant wife neglected the opportunity afforded to her by the orders made by the primary judge on 9 November 2022, to clarify the orders she sought and to make submissions in respect to those orders. In those circumstances, there was no obligation on the part of the primary judge to provide reasons for not making orders that had become otiose as a result of withdrawal of the appellant’s application for adjournment on 9 November 2022 on the speculative possibility that, had the appellant complied with the directions made on 9 November 2022 in respect to filing her amended written submissions in chief and in reply by 21 December 2022, such submissions may have identified that she sought the sale of both of the Country P properties or, at least, one of the Country P properties by way of final relief.
In the absence of the appellant availing herself of the opportunity to make such submissions, it is not open to her, on appeal, to challenge the adequacy of reasons of the primary judge for failing to address an issue that she failed to clarify when that opportunity was afforded to her.
For these reasons, Ground 2 is without merit.
Ground 3 – Contended errors in respect to contributions assessment
The appellant’s Summary of Argument filed 24 January 2024 dealt with Ground 3 as a whole. It is, however, convenient for me to focus initially on sub-ground 3(a) and subsequently to combine my consideration of sub-grounds 3(b) and 3(c).
Ground 3(a) – Asserted compartmentalisation of contributions assessment
In assessing the contributions of the parties, the primary judge was required to take into consideration all of the myriad contributions including both parties’ initial contributions in a holistic fashion.[10] That is, in the exercise of discretion under s 79 of the Act, the Court is required to “weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation” (Jabour at [60], citing Wallis & Manning (2017) FLC 93-759). Given their differing natures, it is not possible to assess contributions with mathematical precision so as to allow them to be weighed neatly against one another.[11] In reality, the “task is like comparing apples and oranges”: Franklin & Franklin [2010] FamCAFC 131 at [177] (Boland and Thackray JJ). The Court must weigh all contributions collectively, avoiding segmentation or compartmentalisation,[12] and then move from a qualitative to a quantitative assessment.[13]
[10] Dickons v Dickons (2012) 50 Fam LR 244 at [24] and [26]. See also Jabour & Jabour (2019) FLC 93-898 at [86] (“Jabour”).
[11] Norbis and Norbis (1986) 161 CLR 513 at 522 (Mason and Deane JJ) (“Norbis”). See also Clives and Clives (2008) FLC 93-385 at [41], [44]–[45].
[12] Jabour at [73]–[87]. See also Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48].
[13] Mallet and Mallet (1984) 156 CLR 605 at 625 (Mason J); Teal & Teal [2010] FamCAFC 120 at [36] (Boland
In my view, the primary judge did just that. A reading of the reasons for judgment, as a whole, confirms that the primary judge was well aware of his obligation to holistically assess the parties’ contributions across the totality of their marriage and in the period subsequent to separation until the date of the trial.
In that respect, the primary judge noted that “[a]t the commencement of cohabitation neither of the parties had any assets of value or were subject to any liabilities” (reasons for judgment at [35]). That finding was unchallenged.
Throughout the body of the judgment, the primary judge details the financial and non-financial contributions made by the parties both during the period of their intact relationship and subsequent to separation. By way of summary, the primary judge stated at [50] of his reasons:
The husband made the principal financial contribution during the parties’ cohabitation and applied his income towards the acquisition, conservation and improvement of the properties and towards the living expenses of the family unit. The wife also made a financial contribution during the parties’ cohabitation by applying her income in the same manner as the husband, but of an overall significantly less income than the husband.
Comparatively, in terms of the wife’s contributions during the parties’ intact relationship, the primary judge stated at [52] of his reasons:
The wife was principally responsible for the role of homemaker of the family unit while the parties resided together. The husband assisted with homemaker duties when available at the former matrimonial home, and he was principally responsible for exterior maintenance and gardening. Each party attended to their own homemaker duties and requirements while living apart for periods of time prior to the date of separation, as detailed above.
Guidance provided by the Full Court is that the myriad of contributions by parties to a marriage should be holistically assessed. It is not, however, a judicial sin and, indeed, it is quite common for parties themselves, their legal advisers and, ultimately the Court, to consider the contributions that the parties respectively made at the commencement of their relationship, during the course of their intact relationship and in the period subsequent to separation until the final hearing. Indeed, counsel for the appellant agreed, during the appeal, that the primary judge was not in error in adopting that approach, but nonetheless contended that there was error on the part of the primary judge in bringing all of the contributions together.[14]
[14] Transcript 26 March 2024, p.24 lines 5–7.
I respectfully disagree with that submission. The fact that the primary judge has assessed the nature and quality of the parties contributions in respect to different periods of time does not mean the primary judge has compartmentalised the assessment of contributions but rather, used the documenting of contributions made during those three respective periods as a logical way of assessing both the nature of the quantity and quality of the parties’ contributions as they existed during those relevant periods.
The reasons for judgment make it clear that the primary judge appropriately made a holistic assessment of the myriad of contributions both financial and non-financial made over the entirety of the parties’ relationship. That is, at the commencement of their relationship, during the course of their intact relationship and subsequent to the parties’ separation. While his Honour acknowledged the parties’ concession that the parties’ contribution during the course of their intact relationship were equal, the primary judge did not compartmentalise his assessment of the parties’ contributions as a result of that concession.
Accordingly, there is no merit in this ground of appeal.
In the context of substantial delay in delivery of reasons: Ground 3(b) – Asserted failure to give any or adequate reasons for determining that the respondent made 55 per cent of the contributions; or Ground 3(c) – The assessment is unreasonable and unjust such that the Court would infer there has been a failure to exercise the discretion in proper fashion
By reference to [129]–[130] of his Honour’s judgment, it is contended by the that the primary judge simply stated on a “holistic” basis that the contributions assessed overall, expressed as a percentage, is 55 per cent (appellant’s Summary of Argument filed 24 January 2024, paragraph 25). Further, the appellant contends that the judgment sets out “no reasoning as such to make the leap of 5% by reason of post separation matters” (appellant’s Summary of Argument filed 24 January 2024, paragraph 26).
I do not, with respect, agree with those submissions. Even putting the judgment under a greater degree of scrutiny as a result of delay, it is apparent that the primary judge adequately set out his reasoning as to why he found that the respondent’s contributions, in the period post-separation, justified an adjustment in his favour of five per cent.
The following paragraphs assess post-separation contributions and detail how the primary judge arrived at a 55 per cent adjustment in favour of the respondent:
123. As noted above, both parties put to the Court during the Final Hearing that contributions to separation were equal, and the parties maintain this position in their written submissions. On the basis of the evidence, and independently of the parties’ agreement, I find that the parties’ contributions from commencement of cohabitation until separation were equal. During that period the husband made the principal financial contribution to the acquisition, conservation and improvement of the property of the parties and each of them, past and present, and to the welfare of the family unit in relation to financial support, with the wife also making financial contribution, however less than the husband.
124. The wife made the principal contribution to the welfare of the family unit as homemaker and parent from commencement of cohabitation until separation, with the husband assisting in relation to both when he was not in attendance at his place of employment. There were periods of time when the parties each had the sole care of [Mr R], and each attended to their own homemaker duties as a consequence of living on different continents.
125. The husband made a superior contribution to that of the wife post separation. The husband maintained payments required on the loan accounts secured on the [Australian] properties, and payment of rates and other outgoings related to the ownership of those properties from the time of separation until the time of Final Hearing. From April 2016, in addition to maintaining payments related to the [Australian] properties, the husband maintained payments for his own accommodation, while the wife remained in occupation, without accommodation cost to her, of the former matrimonial home, being the [Suburb F] property.
126. In the period from the parties’ separation in either 2014 (on the husband’s evidence) or 2015 (on the wife’s evidence) until the husband left the former matrimonial home in April 2016, both parties contributed to the day-to-day care of [Mr R], though the wife made the greater contribution in that regard through that period of time in consequence of the husband being in at his place of employment and the wife being available in the former matrimonial home by not engaging in paid employment.
127. Between the period of April 2016 and until [Mr R] reached 18 years of age … both parties had periods of time where they were the sole carer for [Mr R], the wife for about 19 months and the husband for about 23 months, with [Mr R] being his main carer from about December 2019, whereby he moved into a shared apartment with other persons. The husband continued to provide regular weekly financial support to [Mr R] until he reached 18 years of age and continuing thereafter.
128. The husband provided financial support to the wife from the separation under the one roof until he left the former matrimonial home in April 2016.
129. I find the contributions post separation and up until the time of Final Hearing to favour the husband.
Those reasons adequately explain why the primary judge arrived at a conclusion that, having regard to the differential between the parties’ post-separation contributions but nonetheless assessed in the context of the totality of the parties’ respective contributions, the husband was entitled to an adjustment of five per cent in his favour.
In so concluding, I have had regard to the appellant wife’s reference to the recent decision of Gadhavi & Gadhavi (2023) 67 Fam LR 174 (“Gadhavi”) where the Full Court observed that, in the assessment of what is a just and equitable adjustment of the parties’ property, there would be cases:
… where the leap from words to figures is “so great, and so unheralded by the discussion which precedes it” so as to either or both; “render the reasoning process defective”[15] or result in the conclusion that the ultimate assessment by a trial judge of the parties’ respective contributions is one that is outside the reasonable ambit of discretion and will, as a result, constitute appealable error.[16]
[15] Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], cited with approval in Brodie & Brodie (2009) 41 Fam LR 18 at [90] and Loude & Loude [2009] FamCAFC 52 at [85] (“Loude”).
[16] Loude at [86]
It is necessary to distinguish the facts of this case from the circumstances considered by the Full Court in Gadhavi. In Gadhavi, the unchallenged evidence was that the husband’s initial contributions were seven times greater than those of the wife’s. The Full Court acknowledged that the primary judge was entitled to give a significant adjustment to the wife as a result of a regrettable history of being subject to ongoing violent and coercive and controlling conduct by the husband. The Full Court found, however, that the primary judge failed to adequately explain “why the husband’s substantial initial contribution was subsumed by the wife’s contributions such that it was not only wholly negated, but that her contribution based entitlement exceeded his by a differential of 20 per cent” (Gadhavi at [47]). This was in circumstances where that differential represented the sum of $4,846,055 (Gadhavi at [49]).
In Gadhavi (at [49]), that conclusion was reached in circumstances where it had been contended that the adjustment in favour of the wife was of such a magnitude that it should be regarded as being so unreasonable that it was beyond that which could be considered to be a proper exercise of discretion within the principles adumbrated in House v The King (1936) 55 CLR 499 (“House v The King”). In the context of that case, the Full Court, in Gadhavi, ultimately found error on the part of the primary judge whether it be described “as a lack of adequate reasons or as a decision which is unreasonable within the principles adumbrated in House v the King” (at [49]).
In this appeal, counsel for the appellant clarified that the appellant wife was not asking the Court to find that the primary judge’s assessment of the parties’ respective contributions was “plainly wrong”, but rather that there was a “leap from word[s] to figures which is not sufficiently heralded by the discussion which came before”.[17]
[17] Transcript 26 March 2024, p.25 lines 7–10.
In a well-known and often applied statement of principle, Brennan J, in Norbis at 539–540 stated:
Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(Footnote omitted)
In my view, the factual findings of the primary judge as set out in [123]–[129] of his judgment, which have been set out above, sufficiently explain the reasons of the primary judge in moving from words to the figure of a five per cent adjustment. Further, it was well within the “generous ambit” of the primary judge’s discretion to make that adjustment in favour of the husband following his assessment of the totality of the s 79(4) contributions made by the parties.
Accordingly, there is no merit in Grounds 3(b) and 3(c) of the appeal.
Ground 4(a) – Asserted failure to have regard to “material matters” with regard to the s 75(2) adjustment
The primary judge concluded that an adjustment of five per cent in favour of the wife was appropriate having regard to those matters set out in s 75(2) of the Act. The appellant contends that this adjustment was inadequate and arose from a number of errors made by the primary judge including firstly, that the primary judge failed to have regard to relevant matters.
It is well accepted that it is unnecessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence: Housing Commission at 333.
The primary judge explained his reasons for making an adjustment of five per cent in favour of the wife pursuant to s 75(2) of the Act, within the following passages of his judgment:
132. At the time of hearing the husband was 54 years of age and the wife 55 years of age. There is no evidence that the husband is other than in good health, and there is no evidence given any weight that indicates that the wife is so affected by health issues that she is unable to engage in appropriate gainful employment.
133. The husband continued to engage in appropriate gainful long-term employment as [a professional at a large company], while the wife has not been in employment since 2010 but has given no adequate evidence of her efforts to gain employment or of the range of employment and remuneration therefore open and available to her.
134. The husband’s income is patently far superior to that of the wife. Based on his Financial Statement he has gross annual income of $198,536, noting that $20,332 of that is derived from rents received, and whether or not such rental income will continue is dependent upon what, if any of the Australia and [Country P] real properties he retains in a final order by the Court. Based on her Financial Statement the wife has an annual income of $19,240 derived only from rental income received by her from one of the [City C] properties in [Country P].
135. The parties relative earning capacities can be a consideration in assessing any adjustment between the parties pursuant to section 75(2)(o) and the evidence leads to a finding that the husband’s earning capacity is significantly in excess of that of the wife even if she were able to find appropriate gainful employment at a level commensurate with her experience and skill set. This consideration is in favour of an adjustment to the wife.
136. The only child of the marriage, [Mr R], was 19 years of age at the time of the hearing and to an extent self-supporting with some financial assistance from the husband
137. The commitments of each of the parties that are necessary to enable each party to support him or herself are as set out in their respective Financial Statements referred to earlier in these reasons. Patently, the wife’s current income is inadequate to meet her necessary and unavoidable living expenses, but she has significant liquid capital assets to assist and there is no evidence upon which to base a finding that she is incapable of engaging appropriate gainful employment.
138. There is no evidence that either party is eligible for any pension allowance or benefit under the laws of the Commonwealth, of a State or Territory or of any other country or through their superannuation entitlements.
139. There is no evidence sufficient to enable the court to make a determination of a standard of living that all the circumstances it is reasonable for each of the parties in consequence of their separation having occurred in either 2014 or 2015.
140. The parties’ cohabitation was from their marriage in 1992 (neither gives evidence of cohabitation prior to marriage) until separation under the same roof in either 2014 or 2015, and then commencing to live separately and apart in 2016. Using the latter date as the mark, they were in cohabitation or living together as separated under the same roof for 24 years. The wife has not been in paid employment since 2010, a period of 12 years prior to the Final Hearing, 6 years prior to them ceasing to live separated under the same roof. That period of unemployment must necessarily have affected the wife’s earning capacity.
141. The wife is not cohabiting with any other person. The husband is cohabiting with his now wife, [Ms L], who has an income disclosed in the husband’s Financial Statement of $72,228 per annum (however as mentioned earlier, it is unclear whether this figure is gross or net).
142. Subsequent to separation, the wife removed monies from the parties’ joint account and from a share trading account, and it is not clear on the evidence whether those monies have been dispersed by her or form part of the money standing to her credit in the [M Account] and/or [N Account] in Australia or the [O Account #65]. The relevant amounts are $52,000 and $50,000, respectively. The husband also made a withdrawal from the parties’ joint account at about the time of separation of a sum of $50,000 and asserts that he expended the same on renovations of the rental properties and purchase of [Mr R’s musical instrument]. I take into account each of the circumstances as factual circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account, in making a final assessment of any adjustment between the parties consequent upon the relevant considerations in section 75(2) of the Act.
143. I find that there should be an adjustment in favour of the wife of 5%, which, applied to a one pool approach of available assets and superannuation entitlements less the liabilities, and less the Registered Education Saving Plan for [Mr R] (a pool of $4,961,465) is an adjustment in the sum of $248,073, and I find that is just and equitable in all circumstances.
It is apparent that the primary judge took into consideration a number of factors that favoured an adjustment in favour of the wife, but also matters that mitigated against a greater adjustment. This included the absence of evidence that she was “incapable of engaging in appropriate gainful employment” (at [137]), and his finding that the wife removed monies from the parties’ joint account and a share trading account in circumstances where there had been an inadequate accounting for those amounts (at [142]).
The appellant contends, however, that in, addition to those matters specifically referred to in the judgment as justifying a s 75(2) adjustment to the wife, the primary judge should have considered additional matters which were identified in paragraphs 28 to 33 of the appellant’s Summary of Argument filed 24 January 2024.
It is contended that the primary judge failed to consider that, by reason of the appellant’s desire to sell the Country P property ultimately allocated to her, that she would lose the stream of income from that property (appellant’s Summary of Argument filed 24 January 2024, paragraph 28). The flaw in that argument is, however, that there was no sworn evidence by the appellant that she desired to, or intended to, sell the Country P property and her application for interim orders for the sale of that property prior to final hearing was withdrawn and dismissed.
This same conclusion applies in respect to the contention that, in assessing the appellant’s future entitlement to income, the primary judge should have considered that the appellant proposed the sale of the Country P property (appellant’s Summary of Argument filed 24 January 2024, paragraphs 30 and 33).
It is, with respect, difficult to discern the omission identified in paragraph 29 of the appellant’s Summary of Argument filed 24 January 2024, which, it is contended, has given rise to error. That paragraph references [134] of the reasons for judgment, which reads as follows:
134.The husband’s income is patently far superior to that of the wife. Based on his Financial Statement he has gross annual income of $198,536, noting that $20,332 of that is derived from rents received, and whether or not such rental income will continue is dependent upon what, if any of the Australian and [Country P] real properties he retains in a final order by the Court. Based on her Financial Statement the wife has an annual income of $19,240 derived only from rental income received by her from one of the [City C] properties in [Country P].
In Beck and Beck (No 2) (1983) FLC 91-318 at 78,167, the Full Court stated that the essential task of the Court of applying s 75(2) involves “the assessment of an appropriate amount which would result in financial justice between the parties taking into account all of the facts relevant to the particular case”. In undertaking that task, the Court considers, as one relevant factor, the potential future earnings and earning capacities of the parties. That task is necessarily predictive and based on a relatively broad assessment whereby the primary judge typically attempts to extrapolate from the parties’ current earnings what they are likely to continue to earn in the future and/or have the capacity to earn in the future.
At [134] of the judgment, the primary judge identified what he found to be the “patently far superior” income of the husband to the wife. That finding is followed by the primary judge’s conclusion that the husband has a significantly greater earning capacity than the wife (at [135]).
The exercise of assessing potential earnings and earning capacity is undertaken in the context of a broader consideration of the range of matters identified in s 75(2) of the Act and does not require a meticulous accounting exercise whereby each subcomponent of the parties’ current income is dissected and modelled into the future on the basis of differing potential outcomes arising from a speculative possibility that a property may be sold at a later date. The essential point is that the primary judge found, appropriately, that the husband had a significantly greater earning capacity than the wife.
The matters identified in paragraph 29 of the appellant’s Summary of Argument filed 24 January 2024 cannot reasonably be said to have influenced the “ultimate conclusion” of the primary judge to that effect: De Winter and De Winter (1979) FLC 90-605 at 78,092. The lack of evidence regarding the appellant wife’s intentions in respect to selling the Country P properties and the unclarified ambiguous nature of the orders she was pressing in respect to those properties was such that the primary judge’s omission to refer to a speculative possibility of sale of one or both of the Country P properties did not, in my view, constitute appellable error.
Accordingly, there is no merit in this ground of appeal.
Ground 4(b) – The failure by the primary judge to set out the impact of his determination
Ground 4(b) contends that the primary judge “failed to set out the impact of his determination upon the financial position of the wife either prior to undertaking the section 75(2) exercise or upon doing so”.
This ground also, with respect, lacks merit in circumstances where the primary judge sets out his findings at [132]–[145] as to why he made a five per cent adjustment pursuant to s 75(2) in favour of the wife which, in the context of the pool of assets, was an adjustment in the sum of $248,073 in favour of the wife. Further, at [145] of his reasons, in undertaking a holistic overview of the justice and equity of the orders that he made, in accordance with the fourth step identified in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39], the primary judge set out the effect of his orders including the impact on the financial position of the wife.
Accordingly, this ground of appeal is without merit.
Ground 4(c) – Inadequate reasons
Paragraphs [132]–[142] of the reasons for judgment adequately explain the reasons of the primary judge in determining that a five per cent adjustment in favour of the wife pursuant to s 75(2) was found to be appropriate and just and equitable. Accordingly, there is no merit in this ground of appeal.
Ground 4(d) – The s 75(2) adjustment was unreasonable and unjust
It is not clear if the appellant pressed this ground of appeal. Counsel for the appellant stated, in the course of the appeal, that “the import of the ground is not, if you like, finding this is plainly wrong or it’s just so unreasonable that your Honour can’t work out how it has happened. It is a failure to consider material matters and a lack of reasons that I have identified”.[18]
[18] Transcript 26 March 2024, p.26 lines 6–9.
I have explained why I have found that the primary judge considered those matters that were material to making an appropriate just and equitable adjustment of the parties’ property, including that component identified as being due to the factors set out in s 75(2) of the Act. I have also identified those paragraphs of the reasons which, in my view, adequately explain the reasoning of the primary judge in making that adjustment.
To the extent that the appellant continues to press the unreasonableness ground of appeal, I make the following observation: the factors, identified by the primary judge, as supporting of and militating against an adjustment to the wife pursuant to s 75(2) of the Act and the determination by the primary judge that an adjustment of five per cent in favour of the wife was just and equitable, was well within “the generous ambit” afforded to a trial judge in exercising jurisdiction pursuant to s 79 of the Act. In so finding, I note that it has been long recognised that, within that ambit, “reasonable disagreement is possible” (Norbis at 539 and CDJ v VAJ(No 1) (1998) 197 CLR 172).
Accordingly, this ground of appeal is also without merit.
COSTS
The appellant has been wholly unsuccessful in this appeal and the respondent is self-represented. In those circumstances, I make no order as to costs.
ORDERS
Appeal NAA 300 of 2023 is dismissed, with no order as to costs.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 3 May 2024
and Dawe JJ); Van der Linden v Kordell [2010] FamCAFC 157 at [90].