Cartham and Cartham - [2009] FamCAFC 153

FAMILY COURT OF AUSTRALIA

CARTHAM & CARTHAM

[2009] FamCAFC 153

FAMILY LAW – APPEAL AGAINST ORDERS FOR SETTLEMENT OF PROPERTY – established that the trial Judge’s Reasons for Judgment inadequate/inconsistent with his ultimate decision – established that exercise of discretion with respect to evaluation of parties’ contributions miscarried – appeal allowed – by consent, Court re-exercised trial Judge’s discretion – costs certificates granted

Family Law Act 1975 (Cth) s 75(2)

Farmer & Bramley (2000) FLC 93‑060;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Bennett and Bennett (1991) FLC 92‑191

APPELLANT:

Ms Cartham

RESPONDENT:

Mr Cartham

FILE NUMBER:

CSC

2007

APPEAL NUMBER:

104

2008

DATE DELIVERED:

26 August 2009

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Finn & Coleman JJ

HEARING DATE:

20 May 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 October 2008

LOWER COURT MNC:

[2008] FamCA 975

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kent SC

SOLICITOR FOR THE APPELLANT:

Miller Harris Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

Williams Graham Carman

Orders

That the appeal against the orders of the Honourable Justice Benjamin of 10 October 2008 (“the orders”) be allowed.
That Order 4 of the orders be varied to insert the figure “$53 823” in lieu of the figure of “$106,805.00” appearing in that order.
That Order 15 of the orders be varied to insert the figure “$39 777” in lieu of the figure of “$26,803.00” appearing in that order.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Cartham & Cartham 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 104 of 2008
File Number: CSC 75 of 2007

MS CARTHAM

Appellant

And

MR CARTHAM

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed 18 December 2008 Ms Cartham (“the wife”) appealed against orders made by Benjamin J on 10 October 2008 in proceedings for settlement of property between the wife and Mr Cartham (“the husband”).
The orders made by the trial Judge provided for a division of the superannuation and non-superannuation assets of the parties as to 55 per cent to the wife and as to 45 per cent to the husband.
The trial Judge’s orders provided that the husband receive a property at S in the State of Queensland subject to the liabilities attaching to it, that the wife pay to the husband the sum of $106 805, and that the wife receive the parties’ shareholding in B Company Pty Ltd and C Business Pty Ltd.
The trial Judge’s orders provided that the wife cause a BMW motor cycle registration number … to be transferred to the husband, and that the proceeds of sale of a property held by solicitors on behalf of the parties be paid to the husband. Various indemnity orders were also made.
The trial Judge’s orders provided for a splitting order in favour of the wife with respect to the husband’s superannuation interest, in a base amount of $26 803.
The wife’s Notice of Appeal sought that the order requiring her to pay to the husband $106 805, and the orders ancillary thereto (being Orders 4, 5, 6 & 7) be discharged. The wife also sought the discharge of the splitting order made by the trial Judge, being Orders 14, 15, 16, 17, 18 and 19, and that, in lieu thereof, a somewhat differently worded splitting order, in the same base amount as the trial judge ordered be made.
It is apparent that, if successful, the wife’s appeal would result in the husband’s entitlement to a settlement of property being reduced by the sum of $106 805.
The husband resisted the wife’s appeal and sought to maintain the trial Judge’s orders.

Background

The parties commenced cohabitation in 1995, married in 1998 and separated in January 2006. The wife was aged 49 years at the date of the trial Judge’s judgment and the husband was then aged 52 years. There were no children of the marriage. [AB: 16, par 1].
At trial, the asset pool was largely uncontroversial and approximated $630 000 net. Over opposition by the wife, the trial Judge recorded his intention to add to the net asset pool approximately $27 000 with respect to the sale of a ring. The wife had received such proceeds of sale. [AB: 18 & 19, pars 11, 13 & 14].
The superannuation assets of the parties were uncontroversially determined to approximate $128 000.
At the commencement of cohabitation, the husband had a superannuation interest worth approximately $70 000, and a liability with respect to the property owned by him of between $20 000 and $29 000. At the commencement of cohabitation the wife had assets of approximately $100 000, $30 000 of which was represented by her a superannuation interest. [AB: 19, pars 15, 16 & 17].
The trial Judge concluded that the property of the parties, including their superannuation interests, should be divided as to 55 per cent to the wife and as to 45 per cent to the husband having regard to the parties’ contributions. Such entitlements were not adjusted by reference to section 75(2) of the Family Law Act 1975 (Cth) (“the Act”).

The trial Judge’s Judgment

Having referred to the matters outlined above, and noted the “preferred approach” to the determination of the proceedings, the trial Judge addressed the contentious issue of the credibility of the parties. [AB: 16, par 4].
His Honour recorded that “neither witness was overly impressive”. After detailing a number of the areas of the evidence of the parties which led to such conclusion, the trial Judge reiterated that he would “treat all of their evidence with some caution.” [AB: 17 & 18, pars 5 & 10].
His Honour recorded his acceptance of the evidence of Mrs E in relation to “the husband’s involvement in the [wife’s] business”, and said that he would give little weight to the evidence of Mrs U in relation to that topic, having found her to be a “partisan witness”. The evidence of Mr D was considered “not much help either way”. [AB: 18, par 10].
Having recorded, uncontroversially for present purposes, the agreed net non-superannuation assets of the parties in the sum of $631 697, the trial Judge addressed the contentious issue of whether $27 353 should be notionally added back with respect to the proceeds of sale of a diamond ring. His Honour recorded that there was “no issue that the ring was property accumulated during the relationship and there was no issue that the ring was paid into the general account of the business”. His Honour also recorded that the wife had “to a large extent, funded both her lifestyle, and albeit not to her consent, her husband’s lifestyle, out of that account following separation”. [AB: 18, pars 11 & 13].
The trial Judge acknowledged that the wife had paid $1400 per month with respect to a BMW motor vehicle which was in the husband’s possession from the date of separation until early 2007, and the mortgage repayments on the home which the husband occupied, together with municipal and water rates with respect to those premises for part of the post separation period. [AB: 18-19, par 14].
His Honour further recorded that:-
14.…The husband complained that the wife lived a lavish lifestyle in terms of the motor vehicles she drove, at least by implication, and the two overseas trips she had. This must be seen in the context of the nature of the way the parties operated throughout the marriage and apparently since separation. I have had regards [sic] to the principles in relation to add backs, and it seems to me I have a broad discretion, and exercising that broad discretion, I do intend to add back that sum of $27,353. [AB: 19: par 14].
The trial Judge then proceeded to consider the contributions of the parties. His Honour found that the husband had net assets of approximately $50 000 at the commencement of cohabitation, approximately $70 000 of which was represented by superannuation entitlement. Inclusive of superannuation entitlements of approximately $30 000, the wife was found to have had assets approximating $100 000 at the commencement of cohabitation. [AB: 19, pars 16 & 17].
The trial Judge found that:-
17.…From the commencement of the marriage until the parties left employment, in the case of the husband in about July 1999, and in the case of the wife in about December 1999, they both earned an income, and it seems consistent that their contributions over that period of time were equal. [AB: 19, par 17].
Reference was then made to the receipt by the husband of approximately $66 000 gross upon leaving his employment in 1999, and to the wife’s receipt of approximately $40 000 upon her leaving her employment later the same year. [AB: 19, par 18].
After the termination of her employment in 1999, the wife had acquired a sales agency. His Honour recorded that:-
18.…it is not clear on the evidence nor do I frankly need to determine, how the purchase of the [sales] business was funded, but it was funded out of the resources of the parties… [AB: 19, par 18].
The trial Judge referred to the wife having been “engaged in that [sales] business since late 1999 or early 2000” and to the unchallenged evidence of the wife that she worked “hard in that business”. His Honour recorded that the controversy in relation to the sales business related to “the effort the husband put into that business”. [AB: 20, par 19].
His Honour recorded that the husband’s efforts had to be “seen in the context that the husband was not trained as a [sales] agent, was unwell for at least two periods over that time, and left the real management of the organisation to the wife”. He further recorded as “an agreed fact” that the husband “was involved in five sales in about 2002, but not otherwise”. The trial Judge concluded that “the husband did not put nearly the effort or contribution to the business as that of the wife.” [AB: 20, par 19].
The trial Judge recorded that he had regard to “the other matters in which the husband was involved”. Those were “the renovation of the business premises and the renovation of the former matrimonial home”. [AB: 20, par 20].
His Honour also referred to the post separation contributions of the parties. In the post separation period the husband occupied a jointly owned property and was found to have been “working fulltime earning significant income, which at present is in excess of $50,000 a year”, and to having “declined to make mortgage payments” on the property which had a rental value of $280 to $300 per week. [AB: 20, par 21].
The trial Judge found that, from the revenue of her sales business and its working capital, the wife “met the mortgage instalments and has done so since separation for a period of just under two years”. It is not in doubt that at the time of his Honour’s judgment, the wife had made those payments for a period of just under three years. [AB: 20, par 21].
Reference was made to the fact that the husband’s partner had moved into the home he was occupying in April 2008 with her children but that “still no efforts were made by the husband to contribute to the cost of his own accommodation”, notwithstanding that he was “able to afford at least part of that cost” and was able “to afford to buy a $41,000 motor vehicle and meet the loan repayments in respect of it” and “had use of the company’s BMW motor vehicle for a year, in circumstances where the wife was expected through her endeavours and through the capital of the business, to meet the loan repayments”. [AB: 20, par 22].
The receipt by both parties of bequests was referred to by the trial Judge. In 2003 the husband had received approximately $20 000, and after separation the wife had received a bequest of $13 000. [AB: 21, par 23].
The trial Judge referred to the sale of an investment property subsequent to separation. That sale generated the $67 463 to which he had earlier referred in the context of identifying the property of the parties to the marriage. [AB: 18 & 21, pars 11 & 23].
The trial Judge concluded that:-
24.Whilst I do not accept that the husband was a diligent worker in the [sales] business, I do not wholly accept the wife’s version of his efforts, as that must be seen through the prism of her subjective views. [AB: 21, par 24].
His Honour referred to the husband’s son of a prior relationship, who “visited the parties it seems at least every 18 months and sometimes 12 months”, and to the husband’s payment of child support “at the appropriate rate from 1995 to 1999”, and at the “minimum, which was some $25 per month” between 1999 and 2003 whereafter it “increased eventually to $250 per month, which was paid out of the business”. [AB: 21, par 24].
The trial Judge said of the parties’ contributions to their superannuation assets:-
27.… It is somewhat confusing in the evidence, in that each of the parties had significant superannuation in 1995, and it appears not to have increased greatly since that time. The husband had some $70,000 in superannuation, which is now about $84,000 in superannuation, a part of it which looks like it has been accumulated since his employment [that] commenced in recent times. It is clear from the evidence that from time to time the parties used part of their superannuation for their investments for their lifestyle. The same can be said about the wife, whose superannuation has increased from $30,000 to $44,000 since 1995. [AB: 21, par 27].
Having regard to the evidence of the parties’ contributions, the trial Judge concluded that “of the totality of the pool of all assets, the husband contributed 45 per cent and the wife contributed 55 per cent.” He further recorded that:-
28.…I am not asked to make any adjustments in relation to the other factors which in the circumstances of this case, is entirely appropriate that there be no further adjustment. I must consider what is just and equitable and in doing so having regard to the age of the parties and their significant involvement within the workforce, it seems to me that a splitting order ought to be made. [AB: 22, par 28].
His Honour then proceeded to explain how the parties’ 55 per cent to 45 per cent division of the parties’ superannuation and non-superannuation assets should be achieved.

The Grounds of Appeal

The wife’s Amended Notice of Appeal articulated a number of challenges to the trial Judge’s decision. As Senior Counsel for the wife confirmed at the commencement of his oral submissions, those challenges fell into two broad categories. The first, and potentially simplest of the wife’s challenges, raised by Ground 1A of her Amended Application in an Appeal which was filed by consent at the commencement of the hearing of the appeal, related to the trial Judge’s treatment of the sum of $27 353 being the proceeds of sale of a diamond ring which the wife had received, and paid into her company.
The thrust of the wife’s other challenges was, as her Senior Counsel also confirmed on the hearing of her appeal, that the appeal should succeed either on the basis that the trial Judge’s reasons for concluding that the property of the parties should be apportioned as to 55 per cent to the wife and 45 per cent to the husband were inadequate, or that such conclusion fell beyond the ambit of a reasonable exercise of discretion in reliance upon the trial Judge’s unchallenged findings of fact.
Although not argued in that order, for reasons which will become apparent, it is convenient to commence with a consideration of the challenge to the trial Judge’s treatment of the proceeds of sale of the diamond ring.

The proceeds of sale of the diamond ring

As is clear, the trial Judge expressed an intention to “add back” the sum of $27 353. We have earlier referred to the trial Judge’s reasons for so concluding in that regard, but it is useful for present purposes to set out in their entirety the two paragraphs of his Reasons for Judgment dealing with that topic:-
13.The only issue regarding the pool of assets was with respect to the diamond ring sold by the wife in which she received some $27,353. There was no issue that the ring was property accumulated during the relationship and there was no issue that the ring was paid into the general account of the business. This must be seen in the circumstances the wife, had to a large extent, funded both her lifestyle, and albeit not to her consent, her husband’s lifestyle, out of that account following separation.
14.She was paying about $1400 per month in respect of the BMW motor vehicle to which I have alluded earlier, and the mortgage repayments on the home which the husband occupied at [S]. She was also paying, at least for part of the time, municipal rates and water rates. The husband complained that the wife lived a lavish lifestyle in terms of the motor vehicles she drove, at least by implication, and the two overseas trips she had. This must be seen in the context of the nature of the way the parties operated throughout the marriage and apparently since separation. I have had regards [sic] to the principles in relation to add backs, and it seems to me I have a broad discretion, and exercising that broad discretion, I do intend to add back that sum of $27,353. [AB: 18 & 19, pars 13 & 14].
It is common ground that the trial Judge in fact did not add back the sum of $27 353 to the asset pool. Senior Counsel for the wife submitted that although the Court was “left in the dark” as to how the sum was ultimately treated by the trial Judge, the Court could “only infer” that his Honour had regard to it in some manner within the context of the consideration of the parties’ contributions.
Counsel for the husband did not dispute that the sum had been taken into account within the context of an assessment of the parties’ contributions. The crux of the submission on behalf of the husband was that:-
10.Bearing in mind that upon separation the wife retained control of the income producing assets of the relationship and the benefit of all the income derived from those assets it was incumbent upon her to do more than merely state that the proceeds of sale of the jewelry [sic] were paid ‘into’ the business. A fortiori in circumstances where she conceded in cross-examination that some of her post-separation activity included replacing existing vehicles with the acquisition of a BMW convertible at a borrowing cost of more than $133,000 and 2 overseas holidays (one with a partner of sorts). [Supplementary Submissions of Respondent, par 10].
It was ultimately submitted on behalf of the husband in relation to this issue that:-
12.His Honour concluded that he should treat the evidence of the wife ‘with some caution’ having earlier described her as ‘not overly impressive.’ There was no evidence before the learned trial judge establishing that the wife’s sale of the asset and disposition of the proceeds was reasonable. [Supplementary Submissions of Respondent, par 12].
On behalf of the wife it was submitted that the trial Judge’s findings of fact could not have reasonably resulted in his having increased the contribution based entitlement of the husband by reference to the proceeds of sale of the diamond ring. The trial Judge’s findings as to the utilisation of the proceeds of sale for the benefit of both parties were asserted to preclude such an outcome.

Perhaps unsurprisingly, having expressed an intention to add back the proceeds of sale of the diamond ring but in fact not done so, the significance of those proceeds of sale was not expressly referred to within the context of his Honour’s evaluation of the contributions of the parties. Whilst it might be inferred that the trial Judge considered the sum within the context of his evaluation of the parties’ contributions, we are not convinced that he ultimately did, or, if he did, how his Honour took the proceeds of sale of the ring into account in his evaluation of the parties’ contributions.
To the extent that the trial Judge may have had regard to the proceeds of sale of the diamond ring in the context of evaluating the parties’ contributions, the findings of fact made by him as they emerge from the paragraphs of his Reasons, which we have set out in full above, would not in our view have justified enhancing the contributions of either party.
Objectively, as the trial Judge’s findings confirm, and is not in doubt, the diamond ring was acquired utilising the parties’ funds during cohabitation. Depositing the proceeds of sale into the wife’s business account, as the trial Judge’s findings also confirm, made the funds substantially available for the benefit of the parties. When regard is had to the expenses of the parties which were being met from the business, that inference gains even greater support. To the extent that it was submitted on behalf of the husband that the wife had not demonstrated that the expenditure had been for joint purposes, the evidence, which was apparently accepted, was capable of supporting the trial Judge’s findings to the effect that the bulk of the monies were used for joint purposes. The following passages of the submissions of Counsel as they emerge from the Transcript of Proceedings before his Honour are consistent with so concluding.
HIS HONOUR: And the add back or not add back of the diamond ring?
MS WILLIS: [Counsel for husband]
And I’m going to say to your Honour that in our submission you don’t have sufficient evidence or confirmation that any of the sale of the proceeds of the diamond ring went into anything specifically to do with the business because the wife runs her own life out of the business and all of her spendings [sic] or many of her spendings [sic] are coming out of that account. … [The wife has] told us absolutely everything comes out of there so it would be unfair on the evidence as it is to proceed on the basis of any assumption that she has directed $27,000 into the course of the business. It’s gone into a big pool of money and that big pool of money pays for everything.
…
MS BRASCH: [Counsel for wife]
The diamond ring, your Honour, the evidence is as good as this: it went into the [C Business] bank account. That’s really the extent of the evidence about the diamond ring. If we look at the totality of the evidence, it’s correct that my client, she freely admits she lives out of that and [B Company], but that’s not unusual for a principal running a business, for any kind of business.
What we do know, though, not only does she live out of that account, but that’s where she pays the properties, services the mortgages from. By this stage, April 2008 she is still servicing [T Street], the home; her mother’s home, in which the husband and his partner and her children are still residing; [V Street], where the business is; [R property] is gone and so have the two investment properties.
But, your Honour, if add back is the important – is the key, in my submission, to whether the diamond ring goes in. The answer to that being in the affirmative would mean the Court would have to be satisfied that it was either a premature distribution. …
…whether it was paid for legal fees, and that’s clearly not the case, or whether it was wanton, reckless, and on the totality of the evidence, in my submission, your Honour, the Court would be troubled to conclude on the balance of probabilities that it was any of those things. …
The Court would be able to take some comfort, given how the wife has carried on this business, that it’s gone into the general mix of the business’s funds, [h]as been allocated accordingly and has been taken into account for in that way, but what the Court would struggle to do would be to find it as a premature distribution. It’s clearly not legal fees. Was it wanton and reckless? Her evidence was and her evidence is at the time she was having troubles making ends meet. [AB: 608, Transcript page 178, lines 22-33; AB 619, Transcript page 189, line 15 - page 190, line 7].
Counsel for the husband submitted that the proceeds of the sale of the diamond ring “found their way fairly into the ultimate result”. To the extent that they did, and did in a way that enhanced the entitlement of the husband, we do not accept that the trial Judge’s findings, or any evidence to which we have been referred, justified so doing. In order to determine whether the receipt of the proceeds of sale of the ring did have the impact asserted by Counsel for the husband, it is necessary to have regard to the broader challenge to the trial Judge’s decision.

The challenge to the adequacy of the trial Judge’s reasons and the decision reached by him

Senior Counsel for the wife asserted that there were only two significant issues in the case. The first of those related to the diamond ring to which we have referred. The second related to the entitlements of the parties by reason of their contributions. It was submitted by Senior Counsel for the wife that this was “a case about contributions”. Counsel for the husband, sensibly in our view, did not dispute that assertion.
Senior Counsel for the wife referred to the trial Judge’s findings with respect to the parties’ initial contributions. It was submitted that, on the trial Judge’s conclusions, the disparity of the contributions between the parties translated as 6.5 per cent of the asset pool at the date of the hearing.
It was submitted that, if, as he should, the trial Judge had regard to the reality that the wife had net tangible property worth approximately $70 000 at the commencement of cohabitation whilst the husband’s tangible property represented a deficit of $20 000, the impact of the initial contributions of the parties could be seen as even more significantly favouring the wife.
Senior Counsel for the wife relied upon the fact that the trial Judge’s conclusion that the wife had net assets of $100 000, and that the husband had net assets of $50 000 at the commencement of cohabitation, arose as the husband then had a superannuation entitlement of $70 000 whilst the wife’s entitlement at that time approximated $30 000, entitlements which both remained untouched and unavailable for use by the parties during their cohabitation.
Senior Counsel for the wife asserted that there had been “no analysis of what happened” with respect to the initial capital contributions of the parties in the trial Judge’s Reasons. Senior Counsel for the wife referred the Court to the submissions made on behalf of the wife in the following terms:-
17.Direct contributions: The critical contribution aspect of the period of cohabitation (1995‑2006) from the Wife’s perspective is her overwhelming direct financial contributions to the divisible property pool – a pool that has been generated during the course of cohabitation largely, and almost entirely, due to the wife’s efforts in [sales]. The present properties were purchased:
(a)[S property] – wife bought for mother in January 2002
(b)[T Street] – bought by wife’s [B Company] in October 2003
(c)[R property] – contract Sept 2005, then changed to husband’s name. [S]ettlement April 2006
(d)[V Street] – bought 2003, with [wife] servicing mortgage
(e)[C Street] – May 2002, with [wife] causing mortgage to be paid from purchase to separation
(f) [M property]– December 2003, with [wife] causing mortgage to be paid from purchase to separation [AB: 420 – 421, par 17].
Senior Counsel for the wife further submitted that the trial Judge had failed in his reasons to adequately consider and reflect the impact of the wife’s business. As is not in doubt, the business commenced in 1999. By that time, as Senior Counsel for the wife submitted, the evidence did not reveal that the parties had accumulated “anything of any significance”. Senior Counsel for the wife relied upon the concession made by the husband in cross-examination:-
MS BRASCH: [Counsel for wife]
It would be correct to say then from when you left [O Company] in ’99 to October 2005 that you had no income source independent of [the wife] and the business?
HUSBAND:
That would be correct. [AB: 475, Transcript page 47, lines 16 - 18].
In his affidavit of evidence in chief the husband said with respect to the purchase price of the business:-
20.The purchase price of the business was $70,000.00. We paid $50,000.00 up front and were provided with vendor finance in the sum of $20,000.00. The $50,000.00 provided by us was obtained by taking an advance on a mastercard account of $27,000.00 and $23,000.00 from our pooled resources. [AB: 39, par 20].
In cross-examination the husband agreed that the purchase price of the business had been $120 000. [AB: 483, Transcript of Proceedings, page 55, lines 38‑44].
Subsequent to 1999, and until shortly prior to separation, the husband had no employment or other source of income independent of the wife’s business. In 1999 as the trial Judge recorded both parties received redundancy payments, the husband in the sum of approximately $66 000 gross, the wife in the sum of approximately $40 000 net. [AB: 19, par 18].
It was submitted by Senior Counsel for the wife that the evidence left no room for doubt that her business was “the source of wealth” of the parties. At trial, his Honour said that the “activity of the wife in terms of working”, which on her evidence was “seven days a week”, was a “source” of money. [AB: 617, Transcript of Proceedings, page 187, lines 1-4].
Senior Counsel for the wife referred to paragraphs 19 and 24 of the trial Judge’s judgment, and to the “offsets” in paragraph 20. So far as the “offsets” were concerned, Senior Counsel for the wife relied upon the husband’s evidence that:-
27.Also at about this time we purchased a property known as [P property] which was next to our office with the intention that it would be refurbished and renovated and used as our office. [Mr S] was engaged to carry out the building work. I worked alongside him over a two month period during 2003 when the renovation works were done. Essentially the property was gutted and renovated. I assisted by attending to the following:-
(i)Removing internal walls
(ii)Taking up terracotta tiles
(iii)Cleaning floors for resurfacing
(iv)Preparation of walls for running cables for computers and telephones including the drilling of holes and placing of cable trays and running 600m of cable and connecting cables to wall sockets and patch panels
(v)Assisted the electrician with the electrical works
(vi)Management and organisation of various tradesmen [AB: 40, par 27].
He also relied upon the husband’s own evidence that:-
37.At about this time we purchased a property at [T Street] as an investment property with a tenant in place. When the tenant moved out we decided to move in to the property but before doing so I painted the whole of the inside and some of the outside of the property and generally tidied it up ready to move in. We moved in for a period of three weeks and decided to fully renovate the property. [The wife] decided that she couldn’t live there whilst the renovation works were being carried out so we rented the house next door. The renovation works were then carried out over a period of about six months during the first part of 2005. A builder was engaged but I assisted him throughout that period. The renovation including the gutting of the interior, moving the kitchen within the house, building a new patio area and laundry, installing the swimming pool and building a new bathroom, walk-in robe and ensuite. [AB: 41‑42, par 37].
As is not in doubt, the various homemaking tasks which were performed by third parties were paid for out of the wife’s business. So far as the husband’s health during cohabitation was concerned, Senior Counsel for the wife referred to the husband’s evidence that:-
23.Towards the end of 2002 and in early 2003 I suffered from depression. I was being treated by Dr [J] in […] who prescribed Efexor. I subsequently attended at the […] Depression Clinic as an impatient [sic] from 4 January 2003 to 18 February 2003. As a result of the treatment received and my ongoing use of prescribed medication my depression was under control when I left the clinic. [AB: 39, par 23].
…
32.I suffered a further depressive disorder and was admitted to a depression clinic at […] in Brisbane from 18 June 2004 to 9 July 2004. During the period of my treatment at the clinic I came to realise that my poor relationship with [the wife] contributed significantly to my depressive disorder. I had become completely compliant with [the wife’s] many demands and suffered low self esteem and loss of motivation because of [the wife’s] constant criticism of me. Whilst I thought that it was the pressure of work that was exacerbating my depression I came to realise that the biggest pressure was trying to please [the wife]. As an example I couldn’t even drive a car with [the wife] in it without constantly taking instructions from her as to how to drive. I went from being a trained mechanic who was always interested in cars and a good driver in to [sic] a nervous driver. [AB: 41, par 32].
The effect of the husband’s evidence was that the husband was hospitalised from 4 January 2003 to 8 February 2003 and from 18 June 2004 to 9 July 2004. Senior Counsel for the wife submitted, correctly, that there had been no medical evidence before the trial Judge to show that the husband was otherwise precluded from employment at any time subsequent to 1999. It was also submitted on behalf of the wife that in any event the husband’s incapacity to contribute meant that the burden which fell on the wife was greater than it otherwise would have been.
The evidence of the husband in relation to the husband’s care of the wife’s mother was that:-
31.I also provided a great deal of assistance to [the wife’s] parents. I spent eight weeks in [northern Queensland] with her mother while she received radium treatment and I assisted with her weekly shopping from about 2003 onwards by taking her to and from the shopping centre. I also played golf with [the wife’s] father once each week until we separated. [AB: 41, par 31].
Without demeaning the husband’s contribution to the welfare of the wife’s parents, Senior Counsel for the wife submitted that its impact could have only been minimal.
The wife’s contributions in the post separation period were submitted by her Senior Counsel to have been inadequately considered in the trial Judge’s Reasons, or reflected in his decision. [AB: 42-43, pars 43-35].
It was submitted on behalf of the wife that she had, in the post separation period, serviced debts for which the parties were liable totalling approximately $1 700 000. The wife asserted that:-
30.…In the mean time, post separation (144 weeks; 21 months), the wife has paid:
a.    [S property] mortgage at $1400 per month, plus rates (save for 1 notice paid by [the husband]) and water, $4000 … electricity & phone for 6 months post separation
b.    Met the shortfall of mortgage funds when the husband removed $1300 from the joint account at separation – the joint account being used for mortgage payments
c.Forgone rent on [S property] – perhaps $300 per week
d.[T Street] mortgage
e.[V Street] mortgage
f.[R property] mortgage - $1000 per month from April – [N]ov 2006
g.The husband’s credit cards for 6 months post separation
h.The lease of $1468 per month on the [vehicle] driven by the husband for 12 months post separation
i.    And is meeting a significant ATO debt, now $121,000 – the monies diverted from that company to the ATO is money she does not have for living or servicing debt. [AB 423, par 30].
On behalf of the husband reliance was placed upon the fact that the wife’s business had paid 33 monthly mortgage instalments of $1400 with respect to the premises occupied by the husband, a total of $46 200, and 12 monthly instalments of $1468 with respect to the BMW motor vehicle which the husband retained for 12 months after the parties separated, a total of $17 616. Fairly, Counsel for the husband conceded that those payments had been made for the husband’s benefit.
Senior Counsel for the wife submitted that the trial Judge had failed to have regard to, or adequately reflect in reaching his decision, the reality that the husband had returned to work full time in October 2005, that his partner, who was occupying the premises in respect of which the wife’s company was serving the mortgage, was earning $35 000 per annum and that, save for one notice regarding rates, the wife had paid all rates relating to those premises. The rental value of the property throughout the relevant period was $280 to $300 per week.
Senior Counsel for the wife relied upon concessions made by the husband during cross-examination in the following exchanges in support of his contentions:-
MS BRASCH: [Counsel for wife]
The house you live in, you’d agree, wouldn’t you, that if it was being rented it would be about $300 a week or thereabouts?
HUSBAND:
280, 300, I guess.
MS BRASCH:
And you would accept the proposition that with you in there the wife has been unable to rent it. That’s a rather obvious statement, isn’t it?
HUSBAND:
Well, of course, yes.
MS BRASCH:
Of course. And in doing so she’s been unable to recuperate rent that she might otherwise have been able to secure?
HUSBAND:
Yes. [AB: 468, Transcript of Proceedings, page 40, lines 1‑9].
The husband also conceded:-
MS BRASCH: [Counsel for wife]
Now, there was a BMW purchases in about September – sorry, that was purchased?
HUSBAND:
Yes.
MS BRASCH:
Now, September/October ’05 you started work at [H Organisation]?
HUSBAND:
October. 8 October, ’05.
MS BRASCH:
And the agreement between you and the wife was that it would be bought through the [sales business], but you would pay…?
HUSBAND:
No, I didn’t even know she was purchasing that vehicle.
MS BRASCH:
You’re familiar with the monthly repayments?
HUSBAND:
No.
MS BRASCH:
If I indicated to you they were $1468?
HUSBAND:
I would say that would probably be correct. [AB: 495, Transcript of Proceedings, page 67, lines 36‑49].
Senior Counsel for the wife also relied upon the fact that in the post separation period the wife had liquidated four of the parties’ investment properties. The husband had played no material part in those events.
It was conceded by Senior Counsel for the wife that the $20 000 inherited by the husband had properly been brought into the marriage as his Honour found, albeit the sum was received in New Zealand dollars, which translated as approximately $16 000 Australian. The transcript of proceedings before his Honour reveals:-
MS BRASCH: [Counsel for wife]
And the lots of your inheritance were – there was one amount for 16,397, thereabouts? You didn’t receive $20,000 in one go, did you? You received it in…?
HUSBAND:
No, I got 19 – 19,000 New Zealand, would have equated to 16,000 Australian, I guess. [AB: 493, Transcript of Proceedings, page 65, lines 43‑46].
It was submitted that the wife had paid her inheritance of $13 000 into the business and used it substantially for the benefit of the parties. The evidence in that regard revealed the following:-
MS WILLIS: [Counsel for husband]
Now, have you received an inheritance after separation, Ms [Cartham]?
WIFE:
After – after separation I had received the balance of my – what my mum had in her – in her Westpac account.
MS WILLIS:
When did you receive that?
WIFE:
I asked – my mum died [in] January.
MS WILLIS:
2006?
WIFE:
Yes. And – I’m sorry, I’m just trying to collect my thoughts here. I believe it was a cheque posted to me and I believe I probably got it about three months – two to three months after mum passed away.
MS WILLIS:
Three months after your mother passed away. So about April or May?
WIFE:
Either – either – either two to three, yes.
MS WILLIS:
About April or so?
WIFE:
Somewhere around there, yes.
MS WILLIS:
And how much was it for?
WIFE:
It was 13,000 something.
MS WILLIS:
And it’s true that you haven’t told the Court in your affidavit about receiving that money, isn’t it?
WIFE:
I just immediately used it in the – in the company. [AB: 558, Transcript of Proceedings, page 130, lines 8‑26].

It was thus ultimately submitted that the findings of fact recorded by the trial Judge could not have reasonably resulted in the division of the assets which he concluded to be just and equitable.
Senior Counsel for the wife submitted the trial Judge must have excessively depreciated the wife’s initial capital contributions, and excessively depreciated her contributions from 1999 to the date of separation, and in the post separation period. A disparity of entitlements between the parties of approximately $73 000 (inclusive of their superannuation entitlements) was accordingly submitted to fall beyond the ambit of a reasonable exercise of discretion.
On behalf of the husband it was submitted that:-
2.It is clear that his Honour has regard to all of the various contribution facts and arguments advanced. They are summarised in paragraphs 5 – 11 of the Respondent’s original submission. “His Honour said nothing to indicate that he did not give them adequate weight.” [Supplementary Submission of the Respondent, par 2].
It was further submitted:-
3.The language of his Honour showed that he ‘weighed’ matters which were particularly contentious. See for example paragraphs 6, 9[b] and 9[c] of the Respondent’s original submission. [Supplementary Submission of the Respondent, par 3].
By reference to the judgment of Finn J in Farmer & Bramley (2000) FLC 93‑060, it was submitted that the trial Judge’s Reasons for Judgment adequately revealed his reasoning process. [Supplementary Submission of the Respondent, par 4].
So far as the reasonableness of the trial Judge’s exercise of discretion was concerned, it was submitted that the case for the wife before the trial Judge had always been that her initial capital contributions should be considered to “slightly favour” the wife. Reliance was placed upon the submissions of Counsel then appearing for the wife in which it was said:-
Your Honour, the initial contributions, in my submission, slightly waiver [sic] my client. I accept it is slight. Slightly waiver [sic] my client. [AB: 624, Transcript of Proceedings, page 194, lines 4‑5].
That submission was consistent, as Counsel for the husband reminded the Court, with the written outline of the wife’s case, which asserted that:-
15.The husband brought a house to the relationship that [h]ad either no or negative equity (XXN). Thus, when he transferred an interest to her “as a commitment to the relationship,” he shared an empty asset. The wife however brought a home with either equity (per H 9) or $70,000 equity for the wife. Thus, the initial contributions slightly favour the wife. [AB: 420, par 15].
It was thus submitted that as the trial Judge’s conclusion that “the wife’s initial contributions are somewhat greater than that of the husband” was consistent with what the wife’s own Counsel had asserted, it was not reasonably open to Counsel for the wife to urge a more advantageous conclusion upon this Court. [AB: 19, par 17].
Were the reasonableness of the trial Judge’s exercise of discretion to turn solely upon the impact of the parties’ initial contributions, this submission would have considerable attraction. However, as the submissions of Senior Counsel for the wife make clear, the trial Judge’s decision was suggested to fall beyond the ambit of reasonable exercise of discretion by virtue of the combination of this and other factors to which he referred.
It was submitted on behalf of the husband that the trial Judge’s finding that the parties’ contributions between 1995 and 1999 were equal was reasonably open to him. We do not understand Senior Counsel for the wife to contend otherwise. The cumulative effect of the findings of fact made by the trial Judge to which Senior Counsel for the husband referred were submitted to have vitiated the trial Judge’s conclusion that the parties’ assets should be divided 55 per cent to the wife and 45 per cent to the husband.
It was submitted on behalf of the husband with respect to the period from 1999 to separation that:-
9.The findings concerning the husband’s contributions from about the time the [sales] business was commenced until the time of separation were:
[a]an employment payout of $66,000 was received;
[b] the husband ‘did not put nearly the effort or contribution to the business as that of the wife’ but also that ‘I do not wholly accept the wife’s versions of his efforts.’ As well his efforts had to be seen in the context that he was untrained as a [sales] agent, had been unwell for 2 periods of time, and had left the management of the business to his wife;
[c] there was ‘no doubt’ that the husband ‘put the effort’ into renovation of the business premises and the former matrimonial home;
[d]a 2003 bequest of $20,000 was received;
[e]‘the husband cared for the wife’s mother particularly in the final year of her life’;
10.The finding’s [sic] concerning the wife’s contributions were:
[a]an employment payout of $40,000 was received;
[b]‘it is not challenged that the wife works hard in [the] business;’
[c] the wife assisted in the care of the husband’s child […] when he visited though ‘this was primarily undertaken by the husband;’ [Outline of Submission on behalf of Respondent, pars 9‑10].
We have earlier referred to the evidence in relation to most of these matters.
Sensibly, in our view, Counsel for the husband’s submissions acknowledged the contribution of the wife in assisting in the care of the husband’s child. So too was the wife’s contribution towards the payment of child support, albeit such payments were nominal from 1999 until shortly prior to separation.
Counsel for the husband sensibly did not suggest that the analysis of the post separation contributions of the parties advanced by Senior Counsel for the wife was other than substantially accurate.
It was submitted on behalf of the husband that the trial Judge had not impermissibly overvalued the husband’s homemaking role:-
14.The trial judge referred to the homemaker role at AB 1 page 20 para 20. His Honour does not over-value or over-state that role. [Outline of Submission on behalf of Respondent, par 14].
On behalf of the husband it was submitted with respect to the wife’s business that:-
16.Though the wife was the legal owner of the parties’ business interests, this arose because the husband did not have [qualifications as a sales agent] and could not be a director. Nevertheless the business had been acquired ‘out of the resources of the parties.’ The business had been used by them to fund a ‘very expensive lifestyle;’ the businesses were valuable [$150,000 and $358,000]; and it was common ground that the wife had enjoyed the benefit of all the income of the businesses since separation. The wife funded her entire expenditure out of the businesses. [Outline of Submission on behalf of Respondent, par 16].
In oral submissions, Counsel for the husband referred to “family assets”, included in which was the wife’s business. With respect to Counsel for the husband, his submissions in relation to the business ignore the reality that, in the pre-separation period, on the trial Judge’s own findings, the wife did far more in and for the business than did the husband. His Honour recorded that the husband did not “put nearly the effort or contribution to the business” as did the wife. [AB: 20, par 19].
In the post separation period, the wife made the totality of contributions for and on behalf of the business as between the parties. The payments made for the benefit of the husband from the business were thus totally referrable to the wife’s efforts. As between the parties, the wife was solely responsible for managing the substantial liabilities that the parties had at separation, and for liquidating investment assets.
In the same period, the husband, as the trial Judge found, unreasonably refused to contribute to the cost of the mortgage over the home which he and his partner occupied and, for 12 months, had the benefit of a motor vehicle in respect of which, as between the parties, the wife was making the only contributions.
In relation to those matters, it was submitted on behalf of the husband that:-
17.The wife’s own case was that the mortgage payments by her cost $40,702 and the lease payments on the company BMW $19,088. The division of the non-superannuation assets of $659,050 on a 55/45 basis in favour of the wife resulted in her entitlement being $362,477 and his entitlement being $296,572 – a differential of $65,905. Though the exercise is not one of mathematics, if the obligation was to recompense her ‘dollar for dollar’ then she achieved this. [Outline of Submission on behalf of Respondent, par 17].
In our view, this submission provides some support for the contention of Senior Counsel for the wife that the trial Judge’s decision could not accommodate all of the factors which, on his own findings of fact, needed to be included in order to achieve a just and equitable division of the property of the parties. As we understand this submission, Counsel for the husband thereby asserted that, as at the date of separation, the parties had contributed equally to their property. The trial Judge’s findings of fact present substantial hurdles to acceptance of that proposition.
It was ultimately submitted on behalf of the husband that the trial Judge’s exercise of discretion “was well within the appropriate range”. [Outline of Submission on behalf of Respondent, par 20].
With respect to the trial Judge, and accepting, as Counsel for the husband submitted, that the trial Judge delivered his decision ex tempore after the trial before him, we conclude that there is substance in the contention of the wife that the trial Judge’s Reasons do not adequately reveal the reasoning process which led him to his ultimate conclusion.
In Farmer & Bramley (supra) Finn J said (27 Fam LR 316 at 326):-
Given that awards under s 79 are virtually never calculated with mathematical precision, no amount of enumeration of, or indeed of evaluation of, contributions, or of the s 75(2) matters, or indeed of any of the matters listed in s 79(4), can ever explain exactly why a particular figure, or more usually a percentage, is eventually arrived at (other than that it is within the recognised “range”). Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s 79.
While accepting this proposition, we consider that in this case more was required of his Honour.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24, McHugh JA said (at 279):-
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities were followed by the Full Court of this Court in Bennett and Bennett (1991) FLC 92‑191. The Full Court there said (at 78,266):-
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
In Bennett and Bennett (1991) (supra) the Full Court also said (at 78,266):-
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
With all due respect to the trial Judge, it is difficult to discern from his Reasons why he concluded as he did. To the extent that his reasoning process was articulated, his Honour’s Reasons were not readily able to be reconciled with the conclusion he reached.
Even if, contrary to our conclusion, the trial Judge did adequately reveal the process of reasoning which led to his decision, we agree with the contention of Senior Counsel for the wife that his decision fell beyond the ambit of a reasonable exercise of his discretion.
In our view, the “slightly” or “somewhat” greater initial contributions of the wife, combined with her significantly greater contributions between 1999 and separation, and her overwhelmingly greater contributions in the post separation period were not adequately reflected by a disparity of entitlement of only 10 per cent.
As the submission of Counsel for the husband to which we have earlier referred tacitly acknowledged, the post separation period alone would have accommodated a 10 per cent disparity of contribution based entitlement. When regard is had to the nature of the initial capital contributions of the parties, the use made of them, the impact of the business in which the wife was by far the greater contributor, and making all due allowance for the offsetting contributions of the husband to which the trial Judge referred, at separation the wife’s entitlement on a contribution basis significantly exceeded that of the husband. The wife’s challenge to the trial Judge’s decision is accordingly made out.
Both parties requested the Court to re-exercise the trial Judge’s discretion by reference to the asset pool found by him. Neither party ultimately sought to adduce any further evidence for the purpose of the re-exercise of the trial Judge’s discretion.
As Senior Counsel for the wife, correctly in our view, submitted, concluding as we have that the trial Judge’s Reasons were inadequate does not necessarily mean that the Court lacks sufficient findings of fact to re-exercise the discretion. In this case, as the submissions of Senior Counsel for the wife confirm, the challenge to the trial Judge’s decision was not reliant upon the absence of any material finding of fact but rather that the significance of such facts was not adequately explained and that the facts as found precluded a conclusion as favourable to the husband as the trial Judge reached.
We are comfortably satisfied that re-exercising the trial Judge’s discretion is both possible and appropriate. This is particularly so given that the wife’s claim is for an additional 10 per cent of the asset pool (approximately $73 000), and that the costs to the parties of a re-trial would be disproportionate to that sum.
Counsel for the husband invited the Court to apply to both the superannuation and non-superannuation assets the percentage division which the Court considered appropriate. Sensibly in our view, neither party sought to resile from the position which had been taken before the trial Judge with respect to section 75(2).
In our view, having proper regard to the initial capital contributions of the parties, and their nature, and to the history of the contribution of the parties subsequent from 1999 to the date of separation, and from the date of separation until the date of trial, almost three years thereafter, the wife’s contribution based entitlement very substantially exceeded that of the husband.
The submission of Senior Counsel for the wife that the contributions of the parties should be considered as favouring the wife by 65 per cent to the husband’s 35 per cent does in our view represent a proper reflection of those factors. It is difficult to see how the parties could have had the property they had at the date of trial, but for the contributions of the wife in both the pre and post separation periods.
We accordingly conclude that the non-superannuation assets of the parties should be divided as to 65 per cent to the wife and 35 per cent to the husband. As Counsel for the husband has invited the Court to do so, and it is appropriate in any event, we shall also apply the 65 per cent to 35 per cent division to the superannuation assets of the parties.
Sixty-five per cent of the non-superannuation assets of the parties, valued at $631 697 net (that is, without the ring proceeds), translates as $410 603 to the wife and 35 per cent of that sum translates as $221 094 to the husband.
If the husband retains the S property and his motor cycle, and added back $25 000 for paid legal expenses, he would have assets of $346 750. After taking into account the mortgage of S property in the amount of $192 000, the husband’s credit card indebtedness of $36 705, his debt to C Business Pty Ltd of $10 188, and the husband’s capital gains tax liability arising from the sale of the R property of $8049, the husband would have net assets of $99 808. On the basis that the husband was entitled to receive $221 094 with respect to the non-superannuation assets, if the proceeds of sale of the R property held in trust by Miller Harris of $67 463 were paid to the husband, he would be entitled to receive a further $53 823 from the wife. We will accordingly vary Order 4 of the trial Judge’s orders to insert that figure in lieu of the sum of $106 805 provided for by that order.
So far as the superannuation assets are concerned, the husband’s interest is worth $85 185, the wife’s interest $44 552. Applying the percentages of 65 per cent and 35 per cent to the total of the superannuation interests of the parties, the wife becomes entitled to receive out of the parties’ superannuation interests, $84 329. The husband would be entitled to receive $45 408. In order that the wife receive her entitlement, a splitting order in her favour in the sum of $39 777 should be made with respect to the husband’s interest in the SS Superannuation fund, in lieu of the sum of $26 803 provided for in Order 15 of the trial Judge’s orders. We see no reason for changing the wording of the splitting order (or orders) made by the trial Judge.
We observe that the outcome we propose produces little difference mathematically to the outcome asserted on behalf of the wife to reflect a 65 per cent to 35 per cent division of the total property of the parties in her favour. The trial Judge having, sensibly in our view, considered the superannuation and non-superannuation interests of the parties in two separate pools, our doing so is appropriate. This is particularly so as the case before us appears to have been conducted on that basis and neither Counsel nor we have raised the possibility of the wife’s entitlement with respect to the husband’s superannuation interest being adjusted out of non-superannuation assets.

Costs

Both parties sought costs certificates in the event of the appeal succeeding. We are satisfied that the basis upon which we have allowed the appeal entitles the parties to cost certificates.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 26 August 2009