Cabbell & Cabbell - [2009] FamCAFC 205

FAMILY COURT OF AUSTRALIA

CABBELL & CABBELL

[2009] FamCAFC 205

FAMILY LAW - APPEAL – PROPERTY – ASSESSMENT OF CONTRIBUTION – INITIAL CONTRIBUTION – Where the Federal Magistrate did not adequately analyse and give weight to the husband’s initial contributions – Where the Federal Magistrate did not sufficiently trace the use of the parties’ initial assets – Where the Federal Magistrate’s reasons for finding equality of contribution not discernible – Where assessment of equal contribution not open on the evidence and plainly wrong – Appealable error established – Appeal allowed.

FAMILY LAW - APPEAL – PROPERTY – ASSESSMENT OF CONTRIBUTION – Whether Federal Magistrate erred in assessment of the parties’ contributions during the marriage – Where not in dispute that husband worked very hard and for long hours – Where no serious dispute about wife’s role – Where Federal Magistrate properly afforded significant weight to wife’s role – Where findings made by Federal Magistrate open to him – No merit to challenge.

FAMILY LAW - APPEAL- PROPERTY – SECTION 75(2) ADJUSTMENT – Whether Federal Magistrate erred in failing to take into account difference in parties’ ages, state of health and earning capacity – Whether Federal Magistrate erred in finding the husband had superior capacity to manage investments – Where it was not suggested that the Federal Magistrate overlooked any relevant factor – Where no evidence before the Federal Magistrate in relation to future expenditure of the husband as a result of his ill health – Where the failure to make an adjustment was not plainly wrong – No appealable error established.

FAMILY LAW - APPEAL – PROPERTY – RE-EXERCISE OF DISCRETION – Where no stay of Federal Magistrate’s orders – Where Federal Magistrate’s orders put into effect – Where neither party sought to adduce further evidence – Where parties sought any adjustment be made by way of adjustment to the percentage split of superannuation – Consideration of contributions – Contributions assessed as to 55 per cent by the husband and 45 per cent by the wife – Consideration of s 75(2) factors – No adjustment made under s 75(2) – Orders made.

FAMILY LAW - COSTS – Where husband sought an order for costs on a party and party basis – Where husband self-represented at the appeal – Where appeal successful – Where it is appropriate that the wife pay the husband’s costs.

Family Law Act 1975 (Cth) – s 75(2), s 79

Bennett & Bennett (1991) FLC 92-191
De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605
House v The King (1936) 55 CLR 499
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mallet v Mallet (1984) 156 CLR 605
Money & Money (1994) FLC 92-485
Pierce & Pierce (1999) FLC 92-844
Williams & Williams [2007] FamCA 313

APPELLANT:

Mr Cabbell

RESPONDENT:

Ms Cabbell

FILE NUMBER:

BRC

4985

2007

APPEAL NUMBER:

116

2008

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Boland, Thackray & O’Ryan JJ

HEARING DATE:

22 September 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 October 2008

12 November 2008

LOWER COURT MNC:

[2008] FMCAfam 1103
[2008] FMCAfam 1225

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Cabbell appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Kirk SC

SOLICITOR FOR THE RESPONDENT:

Berck & Associates

Orders

The appeal be allowed.
The Order 19 of the orders made by Federal Magistrate Baumann on 26 November 2008 as varied under the slip rule on 15 January 2009 be varied by deleting the percentage “44.83%” and substituting in lieu “32.71%”.
The wife pay the husband’s costs of and incidental to the appeal as agreed and failing agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Cabbell & Cabbell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 116 of 2008
File Number: BRC 4985 of 2007

Mr Cabbell

Appellant

And

Ms Cabbell

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Cabbell, a solicitor, and Ms Cabbell, a senior public servant in a Government Department, were married for almost 25 years. They had three children all of whom are now over the age of 18 years. On the breakdown of their marriage in 2007 they were unable to agree how their property, which then had a value in excess of $9.5 million, should be divided between them.
Proceedings for property settlement were commenced by the wife in the Federal Magistrates Court, Brisbane Registry. Those proceedings came before Baumann FM who, on 8 October 2008, delivered reasons for judgment but did not make final orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The Federal Magistrate’s reasons included findings that the parties’ contributions to their property were equal, and that no adjustment to either party should be made under s 75(2) of the Act. However, the Federal Magistrate, having expressed concern about diminution of the value of assets as a result of the global financial crisis, afforded the parties an opportunity to re-open their cases, and make further submissions about the value of assets and liabilities, and the “mix” of assets and superannuation each should retain.
On 12 November 2008 Baumann FM published further reasons. In those reasons he found the parties’ assets, which included their superannuation entitlements, had reduced to $8,511,549.00. The Federal Magistrate determined how the parties’ assets, which essentially comprised real property, cash and shares, superannuation, and personalty should be apportioned so that they each received one half of those assets. Orders reflecting the Federal Magistrate’s reasons were made on 26 November 2008. The orders were further amended (pursuant to the slip rule) on 15 January 2009. It is from those orders that the husband appeals.
In his amended Notice of Appeal, filed on 15 April 2009, the husband seeks that the appeal be allowed and that, on a re-exercise of the discretion, he receive 60 per cent of the assets. It was not in dispute before us that there was no stay of the Federal Magistrate’s orders, and they had been put into effect. What the husband sought, by way of adjustment in his favour, was an amendment to the superannuation splitting order made by the Federal Magistrate so that instead of the wife receiving a base amount of 44.83 per cent of his interest in the superannuation fund, the base amount be reduced to 20.596 per cent of the husband’s interest in that fund.
Before the Federal Magistrate both parties were represented by senior counsel. However, the husband appeared on his own behalf to argue his appeal. The wife continued to be represented by her senior counsel at trial, Mr T Kirk SC.
The husband’s grounds of appeal contain substantial overlap, with grounds challenging the Federal Magistrate’s contribution assessment, and lack of an adjustment under s 75(2) in the husband’s favour as being outside the generous ambit of discretion. Other grounds assert a lack of adequate reasons, or the taking into account by Baumann FM of irrelevant considerations. It is also asserted that the Federal Magistrate made findings which were not supported by the evidence. We will later in these reasons set out the grouping of the grounds contained in senior counsel for the wife’s submissions. At this point it is sufficient to identify the broad challenges to the Federal Magistrate’s orders as follows:
·asserted error in assessing the parties’ contributions as equal as such assessment failed to give appropriate weight to the husband’s superior initial contributions, and financial and other contributions throughout the parties’ cohabitation and post separation;
·a failure to give reasons or adequate reasons for the contribution assessment;
·asserted error in failing to make an adjustment in the husband’s favour under s 75(2) because of the age disparity between the parties, the husband’s health problems, and the wife’s superior earning capacity gained during the marriage;
·by making findings the husband had business acumen and skills without the necessary evidentiary base to support such a finding; and
·that the equal division of the parties’ property was not “just and equitable”.
At the hearing the husband did not dispute the categorisation of the grounds by Mr Kirk SC and acknowledged that a number of challenges he sought to mount under s 75(2)(k) were in fact matters relevant to s 75(2)(o). However, understandably in circumstances where he was self represented and because of his sight problems (which we will refer to in greater detail later in this reasons), he did not, in his oral submissions, address the grounds in these categories.
To avoid so far as possible overlap, we have determined it is practical, as was effectively recognised by Mr Kirk SC in his summary, to deal with the grounds directed to contributions and s 75(2) and other asserted errors before finally considering the challenge to the overall justice and equity of the orders (ground 1).

Background

We propose at this point of our reasons to only set out a short summary of salient facts which we have extracted from the Federal Magistrate’s reasons, the parties’ submissions and affidavits. When we come to our discussion of the parties’ respective contributions we consider it will aid understanding of our reasons to provide a fuller summary of relevant facts, particularly those germane to the assessment of the parties’ initial contributions.
The husband was born in 1946 and was aged 62 years at the date of trial. The wife was born in 1955 and was aged 52 years at the date of trial.
The parties married and commenced cohabitation in 1982. They separated under the one roof in February 2007 and physically separated in May 2007 when the husband left the matrimonial home at G, a suburb of Brisbane.
There are three children of the marriage; L, A and S. All the children were over the age of 18 at the date of the hearing. S was in his final year at school. L was living overseas and A and S were living with the wife in the matrimonial home. A was diagnosed with a chronic illness when aged 8 years.
The husband is a qualified solicitor. Prior to the marriage he was an equity partner in a firm which subsequently merged with a national law firm and became an equity partner in that firm, a position he held until 2004 when he became a salaried partner for 2 years. Thereafter he accepted a consultancy with another law firm working initially three days per week. That consultancy was reduced, in 2007, to one day per week, and by the trial he was unemployed.
At the commencement of cohabitation the wife was engaged in full time employment as a primary school teacher. She ceased full time work and took maternity leave after L’s birth. She returned to work for a short period but ceased full time work in 1986. Thereafter she undertook tertiary studies ultimately obtaining her Doctorate in Philosophy. She engaged in some part-time work while studying, and returned to full time work in 1998 after completion of her doctorate. At the date of the hearing she was employed on a three year contract, which was to expire in 2009, with the public service as a senior public servant.

Ground of appeal

The husband relied on seventeen grounds of appeal with a number of grounds divided into sub-grounds. As we have already observed there was considerable overlap in a number of the grounds and it is unnecessary we set out the grounds in full.
The wife’s senior counsel in his written submissions grouped the grounds under the following categories:
·that the result was not just and equitable being outside the reasonable ambit of discretion (ground 1);
·contribution grounds, including failure to give adequate weight to the husband’s initial contributions, and financial and non financial contributions throughout the marriage (grounds 2, 4 and 7(c));
·failure to make an adjustment under s 75(2) in favour of the husband because of:
-   his age and state of health (ground 3);
-   the superior earning capacity of the wife (grounds 6, 7(a), 7(d), 7(e) and 9));
-   the effect of the marriage on earning capacity (ground 5); and
-   the wife’s occupation of the matrimonial home post separation (ground 7(b));
·that the failure to make an adjustment under s 75(2) had the result that the overall effect of the adjustment was unjust (ground 16);
·the failure to express the parties’ entitlements in percentage terms (ground 13);
·other errors:
-    errors of fact and law (ground 7(f));
-    inappropriate adverse findings about the husband (ground 10); and
-    taking into account irrelevant matters (ground 12).

The contribution grounds

The broad thrust of the husband’s submissions directed to these grounds was twofold. First, he asserted the Federal Magistrate’s exercise of discretion was plainly wrong. Second, he asserted the Federal Magistrate failed to give adequate reasons for his determination that the parties’ contributions should be assessed as equal.
The wife’s senior counsel argued that, having regard to well established appellate principles, the Federal Magistrate’s decision could not be impugned, no error in his reasoning being identified in the husband’s submissions. Further, he submitted that the basis for the Federal Magistrate’s conclusions of equality of contribution could be discerned from his reasons – that is, the contributions made throughout the course of the parties’ cohabitation and post separation “swamped” the disparity in their initial contributions.
We will explore these submissions below, but consider it useful to discuss aspects of the overall equality of contribution assessment by the Federal Magistrate by first considering how he dealt with initial contributions.

(a) Initial contributions

The Federal Magistrate’s reasons

In his reasons delivered on 8 October 2008 (“the first judgment”) the Federal Magistrate commenced by referring, at paragraph 11(b), to the husband’s occupation at the time of the marriage noting he was then a partner in a small legal firm. The Federal Magistrate recorded:
… He had joined the firm in 1975 and quickly became a partner although his best recollection of his salary at that time was about $230 per week. Certainly I am satisfied that he did take out a loan of about $61,000.00 to increase his equity in the partnership of [T] to a equal 1/7^th share (14.285%). The Husband says this loan was paid out by 30 June 1981. I have no probative evidence of his income or benefits in 1982 or, if the partnership interest had a value, what it was at the time of marriage. It is not disputed that through a process of mergers, the Husband become a partner in the well know [sic] national firm [the national firm]. …
In paragraph 11(d) the Federal Magistrate referred to the wife’s employment at the date of the marriage, noting she was:
… employed full time as a primary school teacher and continued in that role until 31 December 1983 – taking twelve months maternity leave to accommodate the birth of [L]…
In further dealing with the background matters the Federal Magistrate recorded in paragraph 11(f):
… In that regard as early as 1977 the [Cabbell] Family Trust, with a Corporate Trustee was created. The name of the Trustee was subsequently changed to [W] and the name of the Trust was changed to The [M] Family Trust. As the pool of assets reveals below, some of the assets are apparently held in the name of [W] in its own right, and some as Trustee.
Significantly in paragraph 11(g) the Federal Magistrate explained:
… I accept the history of investments broadly given by the Husband in his Affidavit and that the Wife did as well, meant little of the cross-examination was directed to that history.
We pause here to note, in light of concessions by the wife recorded in paragraph 11(g), the Federal Magistrate no doubt felt it was not necessary for him to record in any detail the history of the acquisition of the parties’ assets.
The Federal Magistrate, having set out the assets and liabilities of the parties as found by him proceeded, at paragraph 31 of his reasons, to deal with the question of initial contribution. We think it useful to set out in full paragraphs 31 to 33 of the Federal Magistrate’s reasons:
31.I am satisfied that the Husband’s initial contributions were superior to those of the Wife. The Husband had interest in the legal partnership. He owned (through [W]) the unit at [G (“the T property”)] which was purchased before the marriage for between $25,000-$35,000 (little turns on the difference now) which had a mortgage estimated by the Husband to be $11,000. He also introduced a property at [G (“the E property”)] which had a mortgage of $5,000 and although its market value at the time of marriage is uncertain, I accept it materialised in a gross benefit of approximately $80,000 in February 1984 when it was sold. Additionally I accept the Husband had furniture, a motor vehicle and a motor cycle and some savings he says amounted to $10,000. He claims a superannuation interest as well without any corroboration.
32.The Wife claims, again without any corroboration, that she “had savings of $20,000 and a motor vehicle”. Even if I accepted that level of initial contribution the Husband’s contributions initially were superior. However that was now over twenty-five years ago. I do not ignore that [the T property] is still owned by [W] – over twenty-five years it has appreciated to $290,000. But although not a significant asset in the pool as now exists, it shows that some of the improvement in the asset pool reflects a strategy of not selling, (or being forced to sell) properties acquired during the relationship. Most are longer term holdings. For example, the “family home” at [G (“the matrimonial home”)] was acquired in 1983 and the investment units in [Y] in 1988. Some speculative property investments were carried out from time to time.
33.It is the Husband’s case principally, that the springboard for the parties current asset position was:-
·The Husband’s income as a partner in a number of legal firms;
·His “interest” in the partnership of [T] held at commencement.
The Federal Magistrate then went on to discuss what he found to be deficiencies in the husband’s evidence. There is no dispute that the husband did not provide any retrospective valuations of real estate owned by him at the commencement of the marriage, or any statement disclosing the quantum of his superannuation fund at that time. Nor did he provide any expert or other evidence to demonstrate the superior earnings he asserted he derived as an equity partner of the national firm, compared with earnings of a suburban solicitor or one in a “mid tier” firm.
The Federal Magistrate set out his conclusions on contribution, at paragraphs 44 and 45 of his reasons, as follows:
44.When I weigh up all the contributions; one against the other; financial and non-financial; direct and indirect; over a relationship of twenty-five years, I cannot conclude that the Husband’s contributions outweigh the Wife’s or that the Wife’s outweigh the Husband’s.
45.Although in no way starting in equal positions, I have come to the conclusion, on the evidence overall, that the contributions are of equal value at the time of the hearing before me.

The evidence about initial contributions

The husband relied on two affidavits in the proceedings before the Federal Magistrate, namely his affidavit sworn 12 June 2007 (“the husband’s first affidavit”) and his affidavit filed 25 March 2008 (“the husband’s second affidavit”). He also relied on an affidavit of Mr D filed 17 March 2008.

Mr D, a former partner in the husband’s practice, deposed to the husband acquiring a 1/7^th share of the equity of his first partnership in 1976 and that the share in the equity had a value in July 1976 of between $110,000.00 and $120,000.00.
In his second affidavit the husband deposed to being a partner of his initial firm for over seven years, that that firm subsequently merged with another Queensland law firm and then with the national law firm. The husband gives no dates of the mergers or any details of the terms and conditions relevant to the merger of the firms. Neither does Mr D.
In his second affidavit the husband deposed at the date of the marriage:
·he owned:
-a house (which he purchased in 1975) at G subject to a mortgage of approximately $5,000.00 (“the E property”). The E property was sold in about December 1983 for $80,000.00;
-furniture and furnishings;
-an Alfa Romeo GT motor vehicle;
-a Suzuki GS 450 motor cycle;
·he had funds in bank accounts of approximately $10,000.00;
·he had an interest in a superannuation fund. Contributions to that fund commenced on 10 February 1975 (there was no evidence of the quantum of the husband’s entitlement in the fund as at 1982);
·W as trustee of a discretionary family trust owned a unit at O, a south-west suburb of Brisbane (“the T property”). The T property was purchased in 1978 for $25,000.00 and at the date of marriage was subject to a mortgage of approximately $11,000.00; and
·W had monies on deposit of approximately $10,000.00.
The husband’s evidence in his second affidavit was that in September 1983 (that is, approximately 18 months after the marriage) W, as trustee of the family trust, purchased the matrimonial home for a purchase price of $121,000.00. He deposed the purchase price was funded from monies held by W or himself, with a loan from the Bank of New Zealand of approximately $50,000.00. W also bought a unit at O for $85,000.00 in 1984 (“the S property”). W provided a 10 per cent deposit for this unit and the balance was borrowed. It was thereafter tenanted. For seven years prior to the hearing the S property was rented by the husband’s mother.
The husband deposed that the E property was sold in December 1983 and until completion of the sale in February 1984 he obtained bridging finance from the Bank of New Zealand, and upon completion of the sale applied $75,000.00 to the mortgage then secured over the matrimonial home.
In his submissions the husband asserted that the equity in the matrimonial home on its acquisition was approximately $80,000.00, all of which equity was funded from his pre-cohabitation assets (transcript, 22 September 2009, p 18). In his oral submissions in reply, the husband asserted he contributed the whole of the acquisition cost of the matrimonial home ($75,000.00 from the E property and $50,000.00 from his or the family trust’s savings) (transcript, 22 September 2009, p 71). By contrast, the wife’s senior counsel by reference to the husband’s affidavit (paragraphs 19 and 20) said:
We see then, in paragraph 19, that [the E property] was sold, and that was in about – I think the sale obviously took place well after the contract having been signed, but February of 1984, and we find then in paragraph 20 that the net proceeds of sale, which were approximately $75,000, were applied to the mortgage over the [matrimonial home]. Now, we know as a matter of fact, because of what is said in paragraph 18, that that mortgage was $50,000. So that what establishes is that $71,000 plus presumably some of the costs of acquisition were provided from other sources in a period of some 18 months after the parties had married, and with the mortgage having been paid out in February of 1984, that $50,000 represents approximately 40 per cent of the value of that particular property. (transcript, 22 September 2009, p 59)
It was not in dispute at the date of the hearing the T property had an agreed value of $290,000.00 and the matrimonial home an agreed value of $1,100,000.00.
The wife’s evidence, in her affidavit filed 28 March 2008, was that at the commencement of cohabitation she had savings of approximately $20,000.00 and a motor vehicle (paragraph 65).

The Law

The Federal Magistrate’s assessment of contribution was a discretionary exercise and therefore subject to the well-known limits on appellate interference.
Those limits, and the circumstances in which an appellate court can interfere, are described in House v The King (1936) 55 CLR 499 where Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As we have already noted, the husband also asserted appealable error by the Federal Magistrate in failing to provide adequate reasons for his overall findings in respect of contribution, including the parties’ initial contributions.
Intertwined with the husband’s assertion that the Federal Magistrate failed to provide adequate reasons for his contribution assessment, he also asserted a lack of evidence to support findings made about his business acumen and factual error in respect of his superannuation interest. The principles thereby requiring our consideration also include those discussed in authorities such as De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605.
The rationale behind the requirement to provide adequate reasons is well known (see Bennett & Bennett (1991) FLC 92-191 at 78,266 and Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386).

How has the Court’s jurisprudence in respect of initial contributions developed?

As the wife’s senior counsel appropriately and candidly conceded before us, there is no formula, nor could there be, given the wide discretion exercised under s 79, which prescribes how a court should deal with initial contributions in cases of property adjustment.
The principles enunciated in decisions prior to 1999 are conveniently reviewed in Pierce & Pierce (1999) FLC 92-844 at paragraphs 25 - 27 of that judgment. In those paragraphs the Full Court (Ellis, Baker and O’Ryan JJ) referred to the cases which discussed the concept of an initial contribution being “eroded” or offset to a greater or lesser extent by later contributions during the marriage, and the qualification to or expansion of this concept by Fogarty J in Money & Money (1994) FLC 92-485 at 81,054, namely that later contributions over a long marriage did not need to be greater, but rather those contributions (sometimes referred to as the myriad of other contributions) “offset” the significance which might be placed on greater initial contributions. Their Honours then, at paragraph 28, explained that in assessing contribution (including initial contributions) rather than considering if an initial contribution had been “eroded”, what was relevant was the “weight to be attached, in all the circumstances, to the initial contribution”. Their Honours then explained the initial contribution should be weighed with all other contributions, and in paragraph 30 stressed the need for a trial Judge “not only to identify the relevant contributions, but also to assess them”. That latter statement of principle is consistent with the discussion in Mallet v Mallet (1984) 156 CLR 605 where Mason J said in discussing s 79:
The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court “shall take into account” these factors imposes a duty on the court to evaluate them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under pars. (a) and (b) of sub-s. (4), difficult though that may be in some cases.
In Williams & Williams [2007] FamCA 313 the Full Court (Kay, Coleman and Stevenson JJ), after discussing conflicting cases determined in the New South Wales Court of Appeal under the Property (Relationships) Act1984 (NSW) which involved discussion of how initial contributions should be assessed in a property adjustment case under that legislation, said at paragraph 26:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
We do not think it is necessary we attempt to prescribe further guidelines for the discretionary exercise which must be undertaken by a trial Judge in assessing initial contribution. That exercise must be undertaken having regard to the individual facts of a particular case.

Discussion – initial contributions

Before us senior counsel for the wife submitted that even if the parties’ (who the Federal Magistrate described as a “dynamic combination”) initial contributions were ignored, because of the many and varied contributions made by them during their marriage of approximately 25 years duration, a finding of equal contribution would have been open to the Federal Magistrate. With respect, for reasons we will now elaborate, in the circumstances of this case, we cannot accept the initial contributions could be ignored.
We accept that the evidence in this case discloses both parties over the course of their long term marriage made disparate but substantial contributions, and but for the initial contributions, a finding of equality of contribution during the marriage could have been readily sustained on the evidence. But the initial contributions, particularly the husband’s initial contributions, required assessment and weighing.
In this case the Federal Magistrate identified in paragraph 31 of his reasons many of the husband’s pre-cohabitation assets. However, he did not refer to the cash held in the family trust of $10,000.00. That omission may be explicable because of the lack of controversy about the parties’ initial contributions.
We note at this point that the husband’s evidence about initial contributions and early real property purchases was somewhat disjointed and, as we will shortly discuss, there was some confusion as a result of the husband’s evidence about the actual funding of the purchase price of the matrimonial home. These difficulties certainly did not assist the Federal Magistrate.
The evidence did disclose the husband’s contributions to his superannuation fund commenced in 1975. Thus, we accept that the Federal Magistrate’s finding in paragraph 31 that the husband claimed a superannuation interest without corroboration was in error. However, the reality was the statement relied on by the husband merely disclosed a start date, but contained no evidence of the value of his interest then or at the commencement of cohabitation. In these circumstances, it is apparent that the Federal Magistrate, even if he had regard to the husband’s evidence, could have given little weight to it. But the Federal Magistrate was obliged to identify all the contributions and assess the weight which should be given to them. This, we are satisfied, with respect, he did not do. Further, we are unable to identify any discussion by the learned Federal Magistrate of why the husband’s pre-cohabitation assets, particularly the proceeds of sale of the E property and W, were apparently rejected as requiring any recognition other than the broad summary contained in paragraphs 44 and 45. The conclusions in those paragraphs imply that the length of the marriage was the predominant determinate in the Federal Magistrate’s reasoning.
While there was no evidence about how the husband’s equity in his original firm was treated in subsequent mergers, and no evidence about the husband’s actual earnings during the marriage, the evidence about the source of the majority of the funds for the acquisition of the matrimonial home was undisputed. We do not suggest that the value of the matrimonial home at the date of trial should be transposed, or recognised at a value of $1,100,000.00 as a contribution in that quantum on the husband’s behalf. However, the source of its funding on acquisition required not only discussion but weighty consideration in the assessment process. Similarly, the husband’s contribution of the T property, which remained an asset at the date of hearing, was a relevant factor to be considered.
We think, with respect to the Federal Magistrate, that the facts of this case also called for some close analysis of what the parties had acquired by 1988, that is, some six years after the date of the marriage. The parties had by that time purchased all of the real estate (with the exception of the husband’s unit at O which unit was purchased after separation (“the P Property”)) retained at the date of the hearing. These properties had a value of $2,945,000.00 at the date of hearing.
While we are fully cognisant that the wife made significant contributions in the first six years of the parties’ marriage, including her earnings as a primary school teacher both before and after the birth of L, the contribution of her superannuation of $3,000.00 and her salary from work as a relief teacher between 1986 and 1987, there is no dispute there was no other source of income or capital to fund the purchase of the other real property investments other than the husband’s earnings as an equity partner in his legal practice. That ability to generate profits was as a result of his equity partnership acquired prior to the commencement of cohabitation.
We are satisfied that the Federal Magistrate did not adequately analyse and give weight to the husband’s initial contributions, nor did he sufficiently trace the use of initial assets and consider the foundation they laid for the parties’ substantial wealth at the date of trial.
We are unable to discern from the Federal Magistrate’s reasoning why it was he concluded, notwithstanding the disparity in the parties’ initial contributions, particularly having regard to the value of the matrimonial home at the date of trial, and the other real property acquisitions made early in the marriage, that the parties’ overall contributions should be assessed as equal. We are therefore satisfied there is merit in the husband’s reasons challenge.
In summary, we are satisfied that the Federal Magistrate’s assessment of equal contribution was not open on the evidence and was plainly wrong. Further, as we have already indicated, we are unable to discern from the Federal Magistrate’s reasoning how he arrived at a finding of equality of contribution in the circumstances of this case. Thus we are satisfied that appealable error on the two bases argued by the husband in relation to the assessment of contribution is established.

(b) Other contributions

The husband asserted that the Federal Magistrate was in error in his assessment of the parties’ contributions during the marriage. He asserted he “had been the sole financial contributor to over 95% of the assets in the matrimonial pool” (husband’s submissions, p 3, paragraph 2) and further, that he was a substantial non-financial contributor. He asserted that he worked long hours as a partner in his various legal firms and that the wife was supported emotionally and financially by him during her tertiary studies.

the Federal Magistrate’s reasons in respect of contributions during the marriage

At paragraph 36 of his reasons, the Federal Magistrate explained that the husband was entitled to claim credit for his financial contributions but he balanced this finding saying:
… I do not ignore the Wife’s support of the Husband’s practice demands – the long hours; the regular overseas travel and other absences for work and no doubt his emotional non availability (at times) through the stress of his work (exacerbated by his diagnosis of cancer and more recently his sight difficulties).
The Federal Magistrate concluded, at paragraph 37:
Suffice to say that the Court can readily accept the Wife’s evidence that generating a good income in the profession of the law, brings with it a number of time and family sacrifices.
Later, at paragraphs 39 to 41, the Federal Magistrate set out his findings about the wife’s contributions as homemaker and parent. The Federal Magistrate accepted the wife’s evidence about her role in parenting the children. That evidence included her evidence about how she “juggled” household activities and the needs of the children with her studying commitments giving the family her first priority. We accept, in the circumstances of this case, where it was not in dispute that the husband worked very hard and for long hours, that the findings made by the Federal Magistrate were open to him.
We are satisfied that the learned Federal Magistrate properly afforded significant weight to the wife’s role in the marriage. There was no serious dispute about her predominant homemaking and parenting role, and that her earnings throughout the marriage and particularly after 1998 were used for the benefit of the family.
Accordingly we see no merit in this challenge by the husband.

Conclusion - contributions

We have found appealable error by the Federal Magistrate in the manner in which he dealt with initial contributions, particularly those of the husband. That error affected the whole of the Federal Magistrate’s contribution assessment. Accordingly we are satisfied his overall assessment of the parties’ contributions as equal cannot stand.

Section 75(2) adjustment

The husband’s written and oral submissions encompassed a number of challenges to the Federal Magistrate’s failure to make an adjustment in his favour under s 75(2). As identified by the wife’s senior counsel, the husband’s grounds under s 75(2) are agitated on three principal bases.
The husband asserted the Federal Magistrate had failed to give adequate weight to:
·the 10 year disparity between the parties’ ages, his health issues and the difference in the parties’ future earning capacities;
·asserted failure to take into account the wife’s educational qualifications obtained during the marriage; and
·asserted factual error in finding the husband had business acumen which would permit him to effectively manage his assets.

We pause here to note that the husband’s assertions in relation to the ground in which he asserted Baumann FM was hostile to him (implying the Federal Magistrate made findings adverse to the credit of the husband, but did not give reasons), although framed as a challenge under s 75(2) will be dealt with by us as a discrete topic.

The Federal Magistrate’s discussion of s 75(2) factors

The Federal Magistrate commenced his discussion of this provision of the Act by noting, at paragraph 46:
…a few of the section 75(2) factors have application in this case, the most contentious both on the evidence and in submissions became subsections (a) and (b)…
Subsections 75(2)(a) and (b) provide as follows:
The matters to be taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
…
They are to be considered by reason of the requirements of s 79(4)(e).
Before commencing his detailed discussion the Federal Magistrate said “[m]y findings on the whole of the evidence about each of the parties, on these two critical factors follow” (paragraph 47).
The Federal Magistrate commenced his discussion of the evidence by referring to the husband’s age, his expertise in banking and finance law and concluded that his ability to obtain gainful employment as a lawyer was in the Federal Magistrate’s view “limited”.
At paragraph 49 of his reasons, the Federal Magistrate commenced his discussion of the husband’s health. After referring to the husband’s evidence that he was in remission from cancer, he then discussed the expert evidence “on the current prognosis and effect of the Husband’s eye condition”, concluding the difference between the expert ophthalmologists who gave evidence before him “was marginal” (paragraph 50). That evidence was to the effect that the husband’s sight in his left eye was severely affected by glaucoma and he had an “unknown but significant risk of glaucoma developing in the right eye”.
The Federal Magistrate concluded his discussion of the medical evidence and how the husband’s health impacted on his employment opportunities, at paragraph 52, as follows:
This diagnosis is consistent with the Husband saying that he can read “but not comfortably”. Further surgery was scheduled in the month after the hearing. When all these factors are considered, I do not find that the Husband has any real prospect of returning to a high level of remunerative employment or consultancy. My view is that his future financial progress, post division of this pool is reliant on his business acumen and awareness of the financial markets. However, I am entitled to observe, such environment is filled with uncertainties and challenges at this time. It seems clear however he has proved successful in these pursuits in the past.
The Federal Magistrate then turned to his consideration of the wife’s position. He said, at paragraph 53, “the Wife is at an exciting stage of her career”. He then proceeded to summarise the wife’s role from 2000 and recorded the increases in her salary during the period of her employment with the government commencing at around $65,000.00 per annum to the time of trial when he noted she was employed under a contract as a senior public servant on an annual gross salary of $133,507.00, together with benefits of a salary packaged work vehicle.
The Federal Magistrate found the wife’s hard work and educational attainments would enable her to derive income of not less than $100,000.00 per annum and that she had no health issues likely to impede her working life to at least age 60 years or beyond.
At paragraphs 56 and 57 the Federal Magistrate set out his conclusions on the parties’ earning capacities. As the husband challenges the Federal Magistrate’s findings contained in these paragraphs we set them out in full.
56.I assess in a personal exertion role, the Wife’s opportunities into the future are superior to those of the Husband. Whether however the Husband’s greater both business acumen; financial management skills and opportunities (not being distracted by the pressures of daily employment) balance the Wife’s is difficult to access [sic] – but my view is that little difference will occur between them, when the other factors taken below are weighed in.
57.This comparative assessment was made more difficult by the deficiencies in the case of the Husband, that may have allowed me to better understand, assess and possibly predict what were the relative sources of income and capital growth between:-
·Personal exertion income;
·Investments in equities;
·Investments in property.
The Federal Magistrate then moved on to other matters he considered relevant under s 75(2), including the husband’s eventual receipt of $90,000.00 on the termination of his mother’s life interest in the S property occupied by her. He also considered the wife’s application for adult child support (which he dismissed) but concluded on the evidence that A and S were likely to continue to live with the wife and that she was likely to be “their just target for any required assistance” (paragraph 58(b)).
In dealing with the effect of the marriage on the earning capacity of either party, the Federal Magistrate balanced the support the wife gave to the husband’s career as a full-time mother and as primary homemaker and parent, as well as other support to his career, with the husband’s efforts in supporting the wife’s studies from undergraduate degree to the obtaining of her doctorate.
The Federal Magistrate went on to discuss (at paragraph 58(f)) the mix of assets he proposed the parties would retain as a result of his final orders and also explained that the husband would receive his superannuation interests tax free. He further discussed the fact that the husband would, because of his age, be able to convert his superannuation into cash. He concluded “[t]his maximises his options for investment beyond those of the Wife who, is likely to have preserved superannuation” (paragraph 58(f)). The Federal Magistrate appeared to weigh this advantage with the advantages the wife had in being able to continue to work and accrue further superannuation entitlements.
Thus, the Federal Magistrate concluded, at paragraph 59, some factors favoured slight adjustment to the husband and other factors favoured a slight adjustment to the wife.
The Federal Magistrate concluded, at paragraph 62, that no adjustment to the parties’ contribution based entitlements should be made.

The parties’ submissions

The husband submitted that the Federal Magistrate erred in not taking into account (and making an adjustment in his favour) the difference in the parties’ respective ages. He asserted that, based on the wife’s present age, it was reasonable to expect she would continue to work for another 10 years, during which time, based on her current earnings, she would earn in excess of $1 million.
The husband also asserted a factual error by the Federal Magistrate in his finding that the husband had superior capacity to that of the wife to manage his investments because of his “business acumen and awareness of the financial markets” as he had “proved successful in these pursuits in the past”. The husband also submitted the parties’ significant assets were ones which had been purchased in the early years of the marriage and he had not engaged in buying and selling assets. He further submitted that if he had skills attributed to him by the Federal Magistrate he would have foreseen the global financial crisis, and sold shares so that the parties’ assets would not have diminished from approximately $9.5 million at the date of hearing to $8.5 million when the matter was re-opened before the Federal Magistrate in October 2008.
The wife’s senior counsel took us to the evidence which he submitted demonstrated the Federal Magistrate had an evidentiary basis for his findings about the husband’s business skills and acumen. He directed us to examples in the evidence of the husband’s business skills. These included, he submitted:
·the purchase of a third unit at Y (a purchase not initially supported by the wife but conceded by her to have been purchased for sound commercial reasons);
·the husband’s evidence of his share trading in his affidavit sworn 12 June 2007 (paragraphs 79 and 80);
·the husband’s evidence of knowledge of the investment markets (husband’s affidavit filed 28 March 2008, paragraph 70);
·the husband’s evidence that the wife relied on discussions with him before she took out a margin loan (husband’s affidavit filed 28 March 2008, paragraph 71);
·the husband’s evidence that he managed financial matters throughout the marriage “because I had knowledge and experience gained from my practice as a solicitor in commercial law” (husband’s affidavit filed 28 March 2008, paragraph 62);
·the husband’s evidence about his purchase of commercial properties (husband’s affidavit filed 28 March 2008, paragraphs 80 and 81); and
·the husband’s oral evidence when he affirmed it had been “part of [his] long term strategy to maximise in a tax friendly way [his] superannuation entitlements” (transcript, 15 April 2008, page 72).

Discussion

It is convenient that we commence our discussion by considering the husband’s complaint about the Federal Magistrate’s findings about the parties’ ages, state of health and earning capacities.
It is not suggested that the Federal Magistrate overlooked any relevant factor under s 75(2). Rather the gravamen of the husband’s complaint is that Baumann FM gave insufficient weight to factors favouring the husband and too much weight to factors favouring the wife.
In summary, the factors which the Federal Magistrate found favoured an adjustment to the wife were:
·the husband’s superior business acumen which would enable him to effectively manage (and impliedly increase) his property entitlements and that the wife did not possess similar skills;
·the husband’s immediate access to his superannuation, and the deferral for several years of the wife’s access to her superannuation;
·the likelihood the adult children would call on the wife for support; and
·the receipt in due course by the husband of $90,000.00 (the life tenancy adjustment).

The factors he found favoured an adjustment to the husband were:
·the wife’s ongoing ability to earn a substantial income and acquire further superannuation;
·the husband’s inability to continue to practise as a solicitor due to age and loss of eye-sight; and
·his other health issues.
Although the husband submitted the Federal Magistrate should have made an adjustment in his favour for the earning skills the wife acquired during the marriage, it is clear that the Federal Magistrate balanced this advantage against the support which the wife gave to the husband in her role as homemaker and parent, enabling him to pursue his demanding career. We discern no appealable error in this assessment.
We also note the husband readily conceded he put no evidence before the Federal Magistrate of any likely future expenditure he would have as a result of his ill health and loss of vision. At the time of trial there was evidence the husband was to undergo further eye surgery, but no evidence of the cost of it was adduced. The husband was able to drive a motor vehicle. Thus, the Federal Magistrate was in a difficult position to give any weight to potential future medical or other expenses of the husband associated with his health.
It is convenient that we first consider the husband’s assertion that the Federal Magistrate’s finding that the husband had business skills and acumen was not available on the evidence. We accept, based on the evidence to which we were referred by the wife’s senior counsel (and which we have extracted above), there was evidence on which the Federal Magistrate could make the findings of which the husband complains. But was it appropriate to balance that skill against the wife’s income earning capacity over the next ten years and/or other factors favouring the husband and make no adjustment in his favour?
On the contribution assessment made by the Federal Magistrate we think many judicial officers would have made an adjustment in the husband’s favour. However, that does not mean that the Federal Magistrate fell into appealable error. We are not satisfied that the failure to make an adjustment in the husband’s favour was “plainly wrong”, nor have we been directed to any irrelevant consideration taken into account by the Federal Magistrate or any relevant matter overlooked by him. Accordingly we are satisfied that the Federal Magistrate’s treatment of relevant matters under s 75(2) discloses no appealable error.

Other challenges

The husband asserted the Federal Magistrate had made findings about his credit which were not open on the evidence. He submitted this was demonstrated by the Federal Magistrate’s comment about his application in respect of a child support assessment. The Federal Magistrate’s principal credit findings were set out in paragraphs 8 to 10 of his first reasons and disclose that he found each of the parties were “essentially honest”. Having read the transcript of the proceedings, and the Federal Magistrate’s reasons, we detect no apprehended or actual bias by the Federal Magistrate and this aspect of the husband’s appeal is without merit.
Mr Kirk SC referred to the husband’s ground directed to an asserted failure by the Federal Magistrate to express the parties’ contributions in terms of equality rather than as a 50 per cent entitlement. This ground (ground 13) as drafted is somewhat convoluted. We gleaned from the husband’s submissions that this ground was really directed to his assertion that the overall result was not just and equitable.

The just and equitable ground

Having found appealable error by the Federal Magistrate in his contribution assessment, it is unnecessary that we consider this ground other than to note that we accept the merit of the husband’s submissions, namely that given his initial contributions a determination that he receive 50 per cent of the parties’ assets was not a just and equitable adjustment of the parties’ property interests.

Re-exercise of the discretion

We have earlier in these reasons set out the evidence relating to the parties’ contributions, including with some particularity, the evidence about the husband’s initial contributions.

The assets to be divided

Neither party sought to adduce any further evidence by way of updating evidence in the event we found appealable error and determined to re-exercise the discretion. Thus we were asked to re-exercise the discretion in respect of net assets, including superannuation, having a value of $8,511,549.00. Further, as the Federal Magistrate’s orders had been carried into effect, we were asked by the parties to make an adjustment to the Federal Magistrate’s orders by adjusting the percentage split of the superannuation fund which could then be recorded by the trustee of the superannuation fund.

Contribution assessment

The evidence discloses that during their lengthy marriage each of the parties contributed fully in their respective roles. There was no dispute that the husband was the principal breadwinner and contributed his income for the benefit of the family. His evidence showed that he worked very hard in his role as a commercial solicitor. He acknowledged that, in submissions to us, his role as an equity partner did not leave him time to do anything else (transcript, 22 September 2009, p 31). He asserted his partnership demands involved a “100 per cent time commitment” (transcript, 22 September 2009, p 38). The husband did make some non-financial contributions, including a role in parenting the children, but the constraints of his employment necessarily meant he played a less significant role than the wife in these areas.
The wife made significant contributions throughout the marriage. She worked until the birth of L, and resumed full time work for a period after maternity leave until that commitment became too onerous with the husband’s work demands. She engaged in some part-time work whilst studying and used her scholarship funds to pay babysitting costs when studying for her doctorate. She resumed work in 1998 and contributed her earnings for the benefit of the family as a whole. She was the principal homemaker and parent. Given each of the parties’ respective roles, their commitments and income, the use of employed assistance by way of nannies and cleaners was understandable and appropriate.
Post separation the wife had the benefit of occupation of the matrimonial home, but she also had a significant role in the ongoing care of the children. We note the younger two remained living in the home at the date of trial with S in his final school year.
The evidence does not support findings of any post separation contribution by either party which warrants special recognition in that party’s favour. In so determining, we recognise the wife retained the benefit of occupation of the matrimonial home but she was the main contributor to the care of S.
We are satisfied, but for the husband’s initial financial contributions, a finding of equality of contribution is an appropriate one, given the parties’ essentially disparate but complementary outstanding contributions.
We have set out the evidence about the husband’s initial contributions earlier in these reasons. Although the evidence about the precise funds used to acquire the matrimonial home is somewhat ambiguous, we do not accept the interpretation of the husband’s affidavit evidence suggested by senior counsel for the wife, namely that the husband contributed 40 per cent of the cost of the property. The husband’s evidence that the E property was sold for $80,000.00 is not in doubt, nor is the fact that approximately $75,000.00 of those proceeds were applied to the purchase of the matrimonial home at a purchase cost of $121,000.00. At a minimum the husband contributed approximately 62 per cent of the equity in that property, but his evidence that he also used funds of the family trust or savings was not seriously disputed. We accept that approximately 18 months after the marriage the husband had acquired the matrimonial home without significant borrowings. That home was used by the parties throughout the following 20 plus years of the marriage as their matrimonial home. At trial it was valued at $1,100,000.00. Additionally, the T property in which the husband had approximately 50 per cent equity at the commencement of cohabitation was still in existence at the date of trial and valued at $260,000.00.
We also accept that, at the commencement of cohabitation, the husband had acquired an interest in the equity in his first legal practice. Although the husband’s evidence was deficient in that it did not disclose how his equity of approximately $110,000.00 to $120,000.00 (the quantum of which was not challenged and was contained in the evidence of Mr D) was treated in subsequent mergers, his ability to obtain profits from the partnership provided the foundation for parties to acquire other real property. The wife did not assert any direct financial contribution to the three home units at Y, or the S property occupied at the date of trial by the husband’s mother. All of the real property in existence at the hearing had been acquired by the parties by 1988, that is, within six years of the marriage with the exception of the P property which the husband purchased post separation.
While it was not asserted that the wife made a direct financial contribution to the Y properties or the two units at O acquired prior to 1988, we accept she made some indirect contributions to those properties.

Overall we think significant weight should be afforded to the husband’s initial contributions. Those contributions provided the substantial equity in the matrimonial home, and the foundation to acquire the other real property purchased in the next six years of the marriage. Taking those contributions into account we are satisfied that the parties’ respective contributions should be assessed as to 55 per cent by the husband and 45 per cent by the wife, that is a differential of $851,155.00 or 10 per cent.

Section 75(2) factors

We have set out in some detail the Federal Magistrate’s discussion of relevant s 75(2) factors. We agree the factors discussed by the Federal Magistrate are the relevant factors to be considered in this matter. However, we must now, as a result of our contribution assessment, take into account the disparity in the parties’ capital positions. The husband will retain assets in the form of superannuation which he can, at his option, immediately convert to cash. He retains assets in excess of those of the wife of $851,155.00.
We have also taken into account the husband’s age, and his lack of earning capacity. We have also had regard to the wife’s present and future earning capacity. Whilst we accept the evidence supports a finding the husband has acquired business skills and expertise during the marriage we do not make any significant adjustment on that account.
We agree with the Federal Magistrate that whilst the parties will share expenses for their adult children it is to the wife that the parties’ children are likely to turn for financial assistance, particularly the two younger children who remain living in the matrimonial home requiring increased expenditure by the wife for utilities and maintenance of the home.
We agree with the Federal Magistrate that while the wife attained qualifications during the marriage, she did so whilst supporting the husband in maintaining his demanding career. We do not find any adjustment should be made for this factor.
We also take into account the husband will obtain a financial benefit on the termination of his mother’s life tenancy in the S property.
Weighing and adjusting all these factors we do not find any further adjustment should be made in either party’s favour under s 75(2).

Orders which are just and equitable

We have already noted neither party sought to disturb the mix of assets provided in the Federal Magistrate’s orders, and both sought any adjustment in the Federal Magistrate’s order should be by the somewhat unusual order that the wife’s base amount in the husband’s superannuation entitlement should be expressed as a percentage of the fund on a terminating event, rather than calculated as a monetary base amount.
We have determined the wife should receive a total property entitlement of $3,830,197.00. She has received assets to a value of $2,681,240.00. Accordingly, she has an entitlement to $1,148,957.00 from the superannuation fund which has an agreed value of $3,512,364.00. Thus, her percentage entitlement of the fund is 32.71 per cent rather than the 44.83 per cent ordered by the Federal Magistrate. We have annexed as Annexure “A” to these reasons the calculations of the parties’ superannuation percentage entitlements based on Exhibit A in the appeal, being a calculation sheet prepared by the wife’s senior counsel.

Costs

The husband sought, in the event the appeal was allowed, an order that the wife pay his costs and expenses of and incidental to the appeal on a party and party basis. In the alternate, he sought a certificate under the Federal Proceedings (Costs) Act1981 (Cth). He conceded, in the event the appeal was dismissed, that he should pay the wife’s costs. The wife’s senior counsel submitted that, in the event the appeal was allowed by reason of error of law, the wife should receive a certificate. He submitted nothing advanced on the wife’s behalf had led the Federal Magistrate into error. Unsurprisingly, given the parties’ financial circumstances, he made no submissions about the ability of either party to meet a costs order.
We have regard to the fact that the husband has been successful in his contribution challenge resulting in the appeal being allowed. The husband was self-represented at the hearing of the appeal and prepared the appeal book. Any costs ordered as payable by the wife will therefore be limited to such out of pocket expenses as may be agreed or established on an assessment. We are satisfied it is appropriate to order that the wife pay the husband’s costs.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 20 November 2009

ANNEXURE “A”

DIVISION OF THE POOL BY THE FEDERAL MAGISTRATE

(a)Components of Property/Super Pool

Property received/retained by the Wife

($4,255,774 – super split $1,574,534) $2,681,240

Property received/retained by Husband

($4,255,776 – the superannuation fund $1,937,830) $2,317,946

Superannuation fund $3,512,364

$8,511,550

(b)Super Split as Ordered

The Super split to the Wife of the Husband’s superannuation fund based on the Federal Magistrate’s 50/50 division provided to the Wife $1,574,534 (or 44.83% of the then value of the entitlement)
The split has been put into effect as have all of the other Orders.

(c)New Orders – Division of Pool on Re-Exercise of Discretion

As the Husband’s appeal has succeeded and a 55/45 division is ordered the Wife’s entitlement has dropped from $4,255,774 to $3,830,197.
The Super split is calculated as follows:

45% of divisible pool $3,830,197
Deduct
Property received/retained by Wife $2,681,240

Quantum of super split $1,148,957

That equates to a split of 32.71%.

Property retained by Husband:

55% of divisible pool $4,681,352
Deduct
Property received/retained by Husband $2,317,946

Quantum of super split $2,363,406

That equates to a split of 67.29%.