Carson & Hillman
[2019] FamCAFC 42
•8 March 2019
FAMILY COURT OF AUSTRALIA
| CARSON & HILLMAN | [2019] FamCAFC 42 |
| FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made an order which provided for the splitting of the appellant’s superannuation pension such that the respondent was to receive 30 per cent of that entitlement – Where the trial judge made an erroneous finding about how the appellant’s superannuation entitlement was accumulated but that finding was of no material significance – Whether the trial judge made other erroneous findings and failed to have regard to relevant considerations – Where the trial judge had not done so – Appeal dismissed. FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the trial judge dismissed the appellant’s spousal maintenance application – Where the appellant had not established that she was unable to support herself adequately – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such order – Where there are circumstances which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeal – Where the appellant’s Summary of Argument failed to comply with r 22.22 of the Family Law Rules 2004 (Cth) and Practice Direction No. 1 of 2017 – Where an Application in an Appeal to adduce further evidence was dismissed when the appellant conceded the evidence was inadmissible - Costs ordered in the sum sought by the respondent. |
| Evidence Act 1995 (Cth) s 91 Family Law Rules 2004 (Cth) |
| De Winter and De Winter (1979) FLC 90-605 Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168 Stein v Stein (2000) FLC 93-004; [2000] FamCA 102 |
| APPELLANT: | Ms Carson |
| RESPONDENT: | Mr Hillman |
| FILE NUMBER: | BRC | 7935 | of | 2017 |
| APPEAL NUMBER: | NOA | 66 | of | 2018 |
| DATE DELIVERED: | 8 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Watts JJ |
| HEARING DATE: | 12 February 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 June 2018 |
| LOWER COURT MNC: | [2018] FamCA 477 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr G Page QC |
| SOLICITOR FOR THE APPELLANT: | Michael Dwyer Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr M Alexander |
| SOLICITOR FOR THE RESPONDENT: | Evans & Company Family Lawyers |
Orders
The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal and the Application in an Appeal filed on 21 December 2018 fixed in the sum of $15,483.83.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carson & Hillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 66 of 2018
File Number: BRC 7935 of 2017
| Ms Carson |
Appellant
And
| Mr Hillman |
Respondent
REASONS FOR JUDGMENT
The appellant, by Notice of Appeal filed on 23 July 2018, appeals certain paragraphs of the property settlement order made by the trial judge which provide for a split of the superannuation pension of the appellant such that the respondent is to receive 30 per cent of her pension payments. The respondent seeks the appeal be dismissed.
The parties lived in a de facto relationship from July 2004 until April 2017. There are two children of the relationship who were aged nine and seven years at the time of the trial.
The net assets owned by the parties jointly and severally were worth $653,128.00. In addition, the appellant, who had been a public servant between 2001 and 2012, was entitled to a life time pension in the payment phase in the sum of $1,888 per week, which the parties agreed, on the basis of expert evidence, had a value of $1,985,920.
The trial judge adopted a global approach to the consideration of contributions and concluded that they were largely equal.
In reaching that conclusion, the trial judge discussed the financial contributions each party made through personal exertion during the relationship, the manner in which the appellant became entitled to a pension, the initial contribution by the respondent of the equity in a relatively valuable property and by the appellant in a less valuable property, the respondent’s efforts in carrying out renovations to various properties, the way the parties fulfilled the roles of homemaker and parent (up until 2012 with the assistance of a nanny) and contributions made by the parties after separation.
The trial judge found that s 90SM(4)(d)-(g) considerations favoured the appellant and that she was entitled to be awarded significantly more than the respondent overall on account of these prospective considerations.
The property settlement order which the trial judge made divided the assets, excluding the pension, as to 51.31 per cent to the appellant and 48.69 per cent to the respondent and split the pension 70/30 in the appellant’s favour.
The Appeal
Despite the fact that the only part of the property settlement order subject to the appeal are the paragraphs providing for a split of the appellant’s superannuation pension, there are ten grounds of appeal which assert error in respect of the trial judge’s findings on contributions (Grounds 2 – 11) and one ground (Ground 1) which asserts error by the trial judge in dismissing the oral spousal maintenance application of the appellant.
There was no application by the appellant to amend the orders to be appealed against, and as a result, not only was the Court confused as to what the appeal was about, but that confusion extended to the respondent.
However, in order to dispose of the appeal in an as expeditious manner as possible, we allowed the appeal to proceed upon the grounds of appeal in the Notice of Appeal as drawn, and we will now address those grounds.
Ground 2
That in finding that the appellant made contributions to her superannuation from her income and that the contribution to the family of her income was thus reduced the trial judge erred in that there was no evidence before her that the appellant made any salary sacrifice for such
There was no finding by the trial judge that the appellant made any salary sacrifice towards her pension but there was a finding that “[s]he also made contributions from her income to her superannuation” (at [34]).
In the appellant’s affidavit, filed 4 April 2018, she stated at paragraph 92(h)(i)(B)(XXI)(e), “[m]y Pension is something that I worked for for many years which I neither contributed to financially nor did I salary sacrifice to increase its value”.
The appellant gave the following oral evidence during cross-examination:
[SOLICITOR]: … In your material, you stated that you neither contributed to, nor did you salary sacrifice to increase its value?
[THE APPELLANT]: No.
[SOLICITOR]: Was there any other contributions that you made to that superannuation?
[THE APPELLANT]: No.
(Transcript 19 April 2018, p.78 line 46 to p.79 line 1)
In these circumstances, the trial judge’s finding that the appellant contributed to her superannuation from her income was erroneous.
However, when that error is considered in the context provided by the trial judge’s reasons for judgment read as a whole, it can be seen to have been a finding of no material significance to the trial judge’s ultimate conclusion (see, eg, De Winter and De Winter (1979) FLC 90-605).
The trial judge expressed her intention to “consider contributions to all property including superannuation” at [19]. From [20] – [40], the trial judge considered the parties’ respective and multifarious kinds of “contribution” as required by s 90SM(4). That section has its analogue in s 79. In discussing the assessment process involved, by reference to numerous authorities, the Full Court observed in Lovine & Connor (2012) FLC 93-515 at [40] and [42]:
40.Contribution, either direct or indirect and financial or non-financial, to any of acquisition and/or conservation and/or improvement to property (whether or not such property has ceased to be held) or to the welfare of the family or children, falls for consideration. No order of priority is attached to individual elements. The evaluation occurs often, as in this case, with respect to such disparate kinds of contribution made over a substantial period. Such evaluation, having regard to its subject matter, inevitably involves value judgments and matters of impression.
…
42.As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.
Included within the trial judge’s discussion of contributions overall, is the specific discussion of the pension at [22], including the way the pension had been acquired over a period of 11 years, the fact that the parties were together eight of those 11 years, and the efforts made by the respondent in supporting the appellant’s career including looking after the children when the appellant was absent and otherwise attending to her duties.
At no point within the overall discussion of contributions, or the specific discussion about the pension, did the trial judge purport to quantify or otherwise attach any relative significance to the erroneous finding. Rather, that finding can be seen to have been expressed by way of passing reference.
We find the subject error to be immaterial to the conclusions ultimately reached by the trial judge and that, consequently, there is no merit in Ground 2.
Ground 3
That in finding that the sale proceeds of the appellant’s property at [Suburb Z] was used to reduce the mortgage over the [Suburb A] property the trial judge erred in that the evidence before her showed that the appellant’s property at [Suburb Z] was initially used as security for borrowings which enabled the purchase of [the property at Suburb A] and the proceeds of sale of [the property at Suburb Z] were used to reduce the mortgage debt over [the property at Suburb A] together with the appellant’s income enabled the purchase of the property at [Suburb A].
At [26], the trial judge found:
After the children were born [the appellant’s Suburb Z] property was sold and the $270,000 received from the sale was used to reduce the mortgage on the then recently purchased [the Suburb A] property…
There is inconsistency in the appellant’s evidence as to the precise history of how the Suburb A property was acquired and how the equity in the Suburb Z property was applied.
At paragraph 10 of the appellant’s affidavit filed 4 April 2018, she says:
We decided that we would sell my [Suburb Z] property and purchase a larger property at [Suburb A]. I sold the [Suburb Z] property for approximately [$635,000] and together we purchased the [Suburb A] property for an amount of [$735,000] with a line of credit that [the respondent] organised after I had deposited [$270,000] towards that purchase. That amount of [$270,000] was effectively the equity that I had in the [Suburb Z] property after I paid out the mortgage…
This evidence indicates that the Suburb Z property was sold prior to the acquisition of the Suburb A property.
However, in cross-examination, the appellant said that upon the sale of the Suburb Z property, after the discharge of the mortgage on that property, “whatever was surplus to that sale was then put into the [Suburb A] property mortgage” (Transcript 19 April 2018, p.69 lines 46 – 47). This evidence suggests that the Suburb Z property was sold after the acquisition of the Suburb A property and that evidence provides a basis for the trial judge’s finding at [26].
Neither version given by the appellant at trial supports the proposition in Ground 3 that the Suburb Z property was initially used as security for borrowings which enabled the purchase of the property at Suburb A. Any difference in the evidence of the appellant is immaterial. It is uncontroversial that the equity in the Suburb Z property found its way into the equity in the Suburb A property.
There is no merit in Ground 3.
Grounds 4, 8 and 9
That in finding that the respondent used funds from a joint loan facility to renovate the property at [Suburb L] the trial judge erred in that the evidence before her was that the property at [Suburb L] was purchased in 2006 and renovated prior to the purchase of the [Suburb A] property and the establishment of the joint loan facility.
That in determining the contributions of the parties the trial judge failed to observe that the evidence of the respondent was that all costs of renovation made to the [Suburb L] property were met by the respondent and his business when there was made [sic] no disclosure by the respondent of the use made by him of the $360,000 line of credit secured over that property taken into account as a liability in the proceedings.
The trial judge erred in that she failed to take into account the fact that the line of credit secured over the [Suburb A] property was used in part to pay down the mortgage on the [Suburb L] property.
In Ground 4, the appellant sought to make the point that the trial judge was in error about the source of funds for the renovations of the property at Suburb L because that property was renovated from 2006 and the joint loan facility was obtained in 2010.
The appellant accepted that that loan facility was in part used to renovate Suburb A. Any error in relation to the funding of the costs of the renovations to the Suburb L property is immaterial. Those costs came from monies from the respondent’s business which formed part of the joint financial resources of the parties.
The trial judge was broadly cognisant of what each party earnt during the relevant periods and the loans and line of credit obtained. All of these sources of funds were used by the parties to assist in financing renovations and improvements to the three properties.
The trial judge did not find that the respondent wasted or misspent funds from loans or the line of credit, and nor was such a finding open to her Honour.
There is no merit in Grounds 4, 8 and 9.
Ground 5
That in considering the contributions of the parties the trial judge erred in that she failed to take into account the fact that the appellant’s home at [Suburb Z] was the home of the parties from the commencement of their relationship and that the appellant paid all mortgage payments and outgoings relating to her property until their move to [Suburb A] in 2010.
When discussing contributions the trial judge recorded at [23], that after six months of renting, the parties moved into the appellant’s Suburb Z property and at [26] that after the children were born (ie after December 2010) the Suburb Z property was sold and the parties moved to Suburb A.
During the relevant periods, the parties’ financial resources were shared. At [33], the trial judge acknowledged the superior income of the appellant during this period.
There is no merit in Ground 5.
Ground 6
That in taking into account renovations made to the [Suburb Z] property by the respondent and described as “extensive” by the trial judge the trial judge erred in that there was no evidence before her as to the effect of such renovations on the price obtained on sale.
At [23] and [27], the trial judge said:
23.… [The respondent] carried out renovations to [the Suburb Z] property. He built fencing and timber decks around the pool, installed an electric gate and new front entry door, laid new carpets, painted inside and out and landscaped the property.
…
27.[The respondent] personally carried out extensive renovations to the [Suburb L] property and the [Suburb A] property using funds from a joint loan facility...
As can be seen, the trial judge did not describe the respondent’s renovations to the Suburb Z property as “extensive”; that was a description her Honour used in respect of the renovations by the respondent to the other two properties. The fact that the trial judge did not (and on the evidence could not) quantify any amounts by which the renovations increased the value of the properties is not material. What is relevant is the work and labour undertaken by the respondent.
There is no merit in Ground 6.
Ground 7
That in finding that the respondent employed a full-time nanny to assist in the care of the children the trial judge erred in that the evidence before her was that the appellant contributed extensively to the costs of such employment.
The appellant, in her oral evidence, said:
[The respondent] actually paid for the nanny through his company … I understand. But that [sic] were some occasions where I also paid her directly from my income.
(Transcript 19 April 2018, p.70 lines 21 – 23)
Therefore, the evidence of the appellant was not as asserted in Ground 7. In any event, the parties contributed their several incomes to their joint financial endeavour.
At [33], the trial judge found that “[d]uring the relationship [the appellant’s] income significantly exceeded [the respondent’s]”. Her Honour then set out a table detailing the taxable income earnt by both of the parties between the 2004 and 2017 financial years inclusive. The trial judge commented about the figures in that table from [34] – [37]. At [38], the trial judge found “[the appellant’s] income exceeded [the respondent’s] throughout the relationship, at times significantly. Each party made other contributions including to the welfare of the family”.
There is no merit in Ground 7.
Ground 10
That in reciting the particulars of the mortgages obtained to acquire [the Suburb L property] in 2006 and [the Suburb A property] in 2010 the trial judge erred in that she failed to take into account the reliance of the parties on the regular large income of the appellant.
As just mentioned, the trial judge acknowledged at [33], that overall the appellant’s financial contributions to regular family income were significantly greater than the respondent’s. There is no basis to assert that the trial judge failed to take into account the “regular large income of the appellant”.
There is no merit in Ground 10.
Ground 11
That the trial judge erred in finding that the appellant had an unexercised earning capacity when the evidence before her was that she had no such capacity.
The trial judge found at [44], [45] and [50]:
44.[The appellant] holds an Arts degree [and further qualifications] but she has not been employed since March 2012.
45.… It is not apparent on the evidence how [the appellant’s] wish to maintain her role as a parent would be impeded by working in the areas for which she has qualifications and particularly during school hours.
…
50.… [The appellant] has an earning capacity although limited by reason of her primary care of the children. Her particular qualifications are likely to suit part time work.
The appellant, in her affidavit filed 4 April 2018 at paragraph 93(x), indicated that if she were able to move the children’s schooling to Suburb A, the availability of before and after school care “would allow me to get a job and relieve my financial issues”.
In addition, there was the following exchange between the trial judge and the appellant during her oral evidence:
HER HONOUR: … You’re more than capable of finding employment now during school hours. Do you accept that or not?
[THE APPELLANT]: Yes.
(Transcript 19 April 2018, p.77 lines 33 – 35)
It was well open on the evidence for the trial judge to find that the appellant had unexercised earning capacity.
There is no merit in Ground 11.
Ground 1
That in relation to the application for spousal maintenance that was before her the trial judge erred in that she:
a. Made a finding that the application was not pressed by the appellant;
b. Made a finding that the shortfall of $330 a week arising on the split of the pension could be met from part time employment in the absence of any evidence of employment available to the appellant and the likely income from such employment;
c. Failed to have any regard to the relevance of the irregular payment of child support to the appellant and to the likely costs to the appellant of the refinancing of the mortgage over the [Suburb A] property and any likely increase in the repayments if such refinance was in place;
d. Failed to have any or any proper regard to the fact that the child support paid to her by the respondent did not meet the proper needs of the children.
As to Ground 1a, at the commencement of the trial the appellant had not formally made an application for spousal maintenance but during the trial was given leave to do so. She sought spousal maintenance in the sum of $400 per week.
At [4], the trial judge found that “[the appellant’s] application for spouse maintenance was not pressed” and at [52] found that the “payment of spousal maintenance was not pressed by [the appellant], it being conceded that she was unable to establish an inability to support herself adequately”.
There is no dispute that counsel for the appellant at trial made the concession that the appellant “can’t overcome the threshold in section 72” (Transcript 19 April 2018, p.97 lines 41 – 44). Because the parties were not married, the correct reference to the threshold is s 90SF(1)(b) not s 72 of the Family Law Act 1975 (Cth) (“the Act”) and the concession by counsel for the appellant is to be understood on that basis.
Section 90SF(1)(b) of the Act provides that:
… the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
…
(b) only if the second-mentioned party is unable to support himself or herself adequately…
Based upon the concession made by counsel for the appellant, the trial judge was correct in saying that the appellant’s application for spousal maintenance was not pressed.
This concession was, however, made in the context of the appellant seeking a property settlement order which would see her retaining her full pension in the sum of $1,888 gross per week. The effect of the trial judge’s property settlement order was to reduce the appellant’s income from that source to $1,322 per week. The trial judge was aware of the basis upon which the concession was made and thus, at [53] considered the appellant’s application for spousal maintenance having regard to the effect of the property settlement order (see s 90SM(3)(n) of the Act). The trial judge considered the appellant’s spousal maintenance application in light of the change in the appellant’s income as a result of the pension splitting clauses in the property settlement order and found there was a $330 per week shortfall between her income ($1,322) and expenses ($1,652), which she could meet with income from part-time employment.
There is no merit in Ground 1a.
In relation to Ground 1b, at [53], the trial judge found:
… The shortfall of $330 per week can, in my view, be met from part time employment in one of the three areas in which [the appellant] has qualifications. Despite being out of the workforce since 2012, [the appellant’s] qualifications are likely to enable her to gain employment should she wish to do so, in order to supplement the income she will continue to receive by way of her pension.
In addition to the appellant’s challenge that there was an absence of evidence of employment and the likely income from such employment available to the trial judge, Queen’s Counsel for the appellant asserted in oral submissions that the onus to establish that the appellant could earn a sufficient amount to meet her weekly shortfall shifted to the respondent once the shortfall had been established. We do not accept that submission. The onus of establishing that the appellant is unable to support herself adequately remained with the appellant. If there was an inadequacy of evidence about the availability and likely remuneration from part time employment during school hours, that was because the appellant failed to adduce that evidence. In respect of the finding that the shortfall could be met, as already mentioned, the appellant made a concession that she was more than capable of finding employment during school hours. The trial judge heard from and observed the appellant during the trial. Her Honour was mindful of the appellant’s work history as a public servant and her various qualifications. It was open to the trial judge to reach the conclusion that the appellant could meet the shortfall of $330 per week from part time employment. In any event, as we have said, the appellant had failed to satisfy the onus of establishing that she was unable to adequately meet the shortfall.
There is no merit in Ground 1b.
As to Grounds 1c and 1d, in the appellant’s Financial Statement she recorded that as at the date of the trial her receipt of child support was in the sum of $17 per week.
At [43], the trial judge considered s 90SM(4)(g) of the Act, in the context of the discussion in respect of the property settlement order (a subsection in almost identical terms of s 90SF(3)(q)) and said:
The current child support assessment is a very modest $249 per month. There is a child support debt (disputed by [the respondent]) of $5,209. The parties are currently involved in a process with the Child Support Agency relating to this dispute.
However, the level of support that the appellant needs for herself is not dependent upon her obligation to maintain the children (see Stein v Stein (2000) FLC 93-004). The trial judge did not include in her calculation of the $330 per week shortfall either the child support which the respondent was providing or might in the future be liable to provide to the appellant or the cost of the children to the appellant. That was the correct approach.
At the time of the trial, the appellant was paying $675 to BB Bank in respect of the mortgage of the Suburb A property. This payment is included in the trial judge’s calculations, at [53], of the appellant’s expenses of $978 (as set out in Part G of her Financial Statement), which is in turn, part of the trial judge’s overall finding that the appellant’s expenses were $1,652 per week. There was no evidence about the cost of the appellant refinancing the mortgage over the Suburb A property nor of any likelihood of an increase in the payments for the mortgage on the property.
There is no merit in Grounds 1c and d.
Conclusion
Given there is no merit in any ground of appeal, the appeal shall be dismissed.
Costs
Queen’s Counsel for the appellant suggested that it would not be proper for a costs order to be made having regard to the appellant’s financial circumstances. The respective financial circumstances of the parties (as they were after the property settlement order had been made) are set out in the reasons of the trial judge. The respondent has since received a retrospective adjustment to his child support liability and has a debt to the appellant of about $13,344. The appellant obtained a stay of the trial judge’s property settlement order on 10 August 2018 and has been receiving the whole of the pension since that time. As a result of the dismissal of the appeal, she will have a liability to repay the respondent about $16,414 (29 weeks from 10.08.18 – 01.03.19 x $566). Neither of these respective liabilities significantly influence our considerations in respect to costs.
The appellant has been wholly unsuccessful in the appeal.
The appellant’s Summary of Argument did not comply with Order 8 made on 24 September 2018 which required the appellant to file a Summary of Argument in accordance with r 22.22 of the Family Law Rules 2004 (Cth) and Practice Direction No. 1 of 2017, notwithstanding multiple requests from the respondent to do so. The basis for Ground 2 was only articulated by Queen’s Counsel for the appellant in oral submissions.
As a result of these matters, there are plainly circumstances justifying an order for costs in favour of the respondent (s 117(2) and (2A) of the Act).
During the hearing, the appellant abandoned her Application in an Appeal to adduce further evidence and it was dismissed. She had sought to prove the existence of facts that were in issue in proceedings involving the parties about child support before decision makers at the Department of Human Services and a member of the Administrative Appeals Tribunal. The appellant conceded that evidence of decisions and findings of fact made in those proceedings were not admissible given the exclusion contained in s 91 of the Evidence Act 1995 (Cth). Thus, the respondent must also have his costs of that application.
The respondent seeks to fix a sum of $13,512.53 for the appeal and $1,971.30 for the Application in an Appeal and the appellant does not cavil with the reasonableness of the amounts sought.
It is just that the appellant pay the respondent’s costs in the sum of $15,483.83.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Watts JJ) delivered on 8 March 2019.
Associate:
Date: 8 March 2019
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