Chancellor & McCoy - [2016] FamCAFC 256

FAMILY COURT OF AUSTRALIA

CHANCELLOR & MCCOY

[2016] FamCAFC 256

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing an application for property settlement on the basis that it was not just and equitable to make an order adjusting property interests – The trial judge did not hold the parties to a “higher or different standard than other de facto couples” – The trial judge did not err by misapplying Stanford v Stanford (2012) 247 CLR 108 and Fielding and Nichol [2014] FCWA 77 – The trial judge did not fail to give adequate consideration to the factors in s 90SM(4)(b) to (e) – An error of fact made by the trial judge was not material – The result was not manifestly unjust – The trial judge did not err in finding that the parties had agreed to keep their financial affairs separate – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

Family Law Act 1975 (Cth) – s 79, s 90SM

Bevan & Bevan (2013) FLC 93-545
Edwards v Noble (1971) 125 CLR 296
Chapman & Chapman (2014) FLC 93-592
Fielding and Nichol [2014] FCWA 77
Stanford v Stanford (2012) 247 CLR 108
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

APPELLANT:

Ms Chancellor

RESPONDENT:

Ms McCoy

FILE NUMBER:

BRC

1650

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Thackray & Strickland JJ

HEARING DATE:

7 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2016

LOWER COURT MNC:

[2016] FCCA 53

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Jordan

SOLICITOR FOR THE APPELLANT:

Burchill & Horsey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Feeney Family Law

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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 Chancellor & McCoy 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: NA 10 of 2016
File Number: BRC 1650 of 2013

Ms Chancellor

Appellant

And

Ms McCoy

Respondent

REASONS FOR JUDGMENT

The appellant and the respondent lived in a same-sex de facto marriage for 27 years. Although in a committed relationship, they kept their financial affairs almost entirely separate. By the time they separated, the respondent’s assets and superannuation were worth more than double those of the appellant.
On 25 January 2016, Judge Turner dismissed the appellant’s application for alteration of property interests, her Honour having concluded that it was not “just and equitable” to make any order for property settlement.
By Notice of Appeal filed on 22 February 2016, the appellant challenges the decision. For the following reasons, her appeal should be dismissed.

Significant background

The parties were working in the education industry when they commenced their relationship in 1982.
In 1983, the respondent purchased a home in Suburb M in her sole name for approximately $51,000. She provided the deposit of $27,000, with the balance financed by a mortgage she obtained and thereafter serviced.
The parties commenced cohabitation in the Suburb M home in 1983. Between 1983 and 1984, the parties renovated the home, with the respondent providing the funds and the appellant assisting with the labour. In 1984, the respondent’s parents provided $35,000 to discharge the mortgage.
In 1986, the respondent sold the home for $62,000 and used approximately $51,000 to purchase another property in her name in Suburb A. Between 1986 and 1987, the parties lived with the respondent’s parents during the week and in a cottage on the Suburb A property on weekends. In 1987, the respondent borrowed $45,000 from her parents to build a home on the property. In the same year, the respondent made a will naming her parents as the beneficiaries of her estate. The appellant and respondent moved to the Suburb A property in 1987.
The parties’ careers progressed along parallel lines. The appellant was a member of an employer funded superannuation scheme. The respondent was a member of a similar scheme, but commenced making additional voluntary superannuation contributions in 1999 by way of salary sacrifice.
In February 2002, the appellant purchased a house in Suburb B in her name for $187,000. The deposit came from $50,000 the appellant had received from her uncle, with the balance funded by a mortgage she thereafter serviced. The appellant has since allowed her sister to live in the property at a reduced rent.
Between 2002 and 2003, the parties renovated the Suburb B property, with the appellant providing the funds and the respondent assisting with labour.
In 2006, the respondent renovated the Suburb A property and installed a swimming pool, using funds from her parents and her savings.
In December 2010, the parties separated under the one roof.
In March 2011, the appellant received an inheritance of in excess of $560,000 from her uncle, who had died in January 2010. This included a property at Suburb E and cash of $165,000.
In December 2011, the appellant left the Suburb A property. Thereafter, the appellant lived with her family during the week and spent her weekends at the Suburb E home.
At the time of trial, the appellant was 59 years of age and the respondent 55. The respondent had retired and re-partnered, and was caring for her elderly parents. The appellant was still working and had not re-partnered.

The trial judge’s reasons

Relying on the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, the trial judge accepted that she could only make an order altering existing property interests if she was persuaded that it was “just and equitable” to do so. This proposition and the other legal principles that her Honour discussed are not the subject of any controversy in this appeal.
Her Honour observed that the High Court had recognised “that in the majority of matters the circumstances will immediately lead the court to the conclusion that it is just and equitable to proceed to a property division” (at [22]). In support of this proposition, her Honour recited the following paragraph from Stanford (original emphasis):
42In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[1]
The trial judge went on to say that where one party contends that a property division would not be “just and equitable”, Stanford provides “guidance as to what needs to be considered in determining just and equity [sic]” (at [23]). Here her Honour recited the following extracts from Stanford (original emphasis, footnotes omitted):
36 The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
…
40… whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Her Honour then quoted from Bevan & Bevan (2013) FLC 93-545, where an application for adjustment of property interests was dismissed in circumstances where the parties had lived apart for 18 years after a long marriage. In that matter, Bryant CJ and Thackray J said (original emphasis):
84.Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
85.This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
We think it useful to mention that in Bevan, Finn J also expressed a similar view when she said:
169. Findings of fact concerning the parties’ financial history (ie their contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The trial judge then went on to discuss Fielding and Nichol [2014] FCWA 77, where Thackray CJ dismissed an application for property settlement (where the relationship had lasted 12 years) on the basis that his Honour was not satisfied it was just and equitable to alter the parties’ property interests. The trial judge observed that the respondent had relied heavily on this decision, whereas the appellant had submitted that it was “clearly distinguishable” and hence of no application (at [30]).
Her Honour accepted Thackray CJ’s analysis of the relevant case law, and recorded that his Honour, relying on Chapman & Chapman (2014) FLC 93-592, had concluded his analysis by saying that a judge is not “obliged to take into account the matters in s 79(4)” but rather is “at liberty to do so” when determining whether it is just and equitable to make any order.
Echoing submissions that had been made by the respondent, her Honour then catalogued “distinguishing features” and “common features” between this matter and Fielding and Nichol, before going on to say:
34.Having considered the similarities and differences between Fielding and this matter, I find that the case of Fielding and Nichol is an authority which must be given consideration in the determination of this matter.
35.I will now turn to the question as to whether it is just and equitable to proceed to a determination of altering property interests between the parties.
Immediately following these paragraphs, under a heading of “Just and equitable”, her Honour said:
36.Whilst it is in the court’s discretionary power to consider what is just and equitable with the relevant authorities providing guidance as to the pathway that must be followed in reaching a finding as to what is just and equitable, one must not lose sight as to what the terms “just” and “equitable” actually mean.
Having referred to dictionary definitions of “just” and “equitable”, her Honour set out a table of assets and liabilities (excluding a controversial loan). The net value of the respondent’s assets was approximately $1.7 million, while the net value of the appellant’s assets was approximately $720,000. The most significant difference was that the respondent had superannuation worth $887,724, whereas the appellant’s superannuation was worth only $204,177.
Her Honour next summarised the parties’ positions, noting that the respondent perceived it would be unfair for the appellant to share in the wealth she had accumulated alone “when there has been no intermingling of financial lives” (at [44]). Adopting the expression used in Bevan, her Honour foreshadowed her intention to undertake “a separate but very careful deliberation” to determine whether it would be just and equitable to make any order (at [45]).
Under a heading, accurately entitled, “A separate but very careful deliberation of this matter”, her Honour discussed the “just and equitable” issue by reference to 10 topics. Having discussed these, her Honour concluded it would not be just and equitable to make any order altering property interests. She said at [59] that her conclusion was based on the following matters:
a)The parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other because:-
i)        There was no intermingling of their respective finances.
ii)       The parties did not have a joint bank account.
iii)Each party acquired property in their own name with there being little exchange of the detail of these acquisitions to the other party.
iv)       Each party remained responsible for their own debts.
v)Each party was able to use the remainder of their wages as they chose without explanation or accountability to the other party.
vi)There was a complete lack of joint financial decision making.
vii)There was the absence of sharing of any information with each other as to their financial situation or individual decision making.
viii)Neither party made provision for the other party in the event of their death either by way of will, beneficiary to superannuation funds or beneficiary to life insurance policies.
ix)The parties at the time of separation were unaware as to the worth of the assets acquired by each of the parties during the relationship and the decisions that had been made in respect to the acquisition of these assets.
b)Whether this separation of finances was initially a conscious decision by one party or both parties is irrelevant; what is relevant is that the parties continued to conduct their relationship without intertwining their finances consistently for some 27 years.
c)The payment of monies by [the appellant] to [the respondent] of $100 to $120 per fortnight for most of the relationship, whether classified as mortgage repayment ([the appellant’s] terminology) or rent or board ([the respondent’s] terminology), I find, given the small amount of payment in respect to the overall size of the pool accumulated by [the respondent], cannot be viewed as financial intermingling, but as financial assistance to the other party as the home owner who provided housing for the parties to live in during the entirety of the relationship.
d)As there is no evidence that the financial and non-financial contributions made by [the appellant] to the [Suburb M] property and the [Suburb A] property improved the value of these properties then no equitable interest by [the appellant] in the properties has been established.
e)Each party had the opportunity during the relationship to financially plan for their future given their profession and employment histories.
f)There was no evidence to support that either party was hindered in their individual financial decision making during the relationship.
g) For many years [the appellant] appeared to be in a more advantageous position as [the appellant] did not own real estate or gave [sic] evidence of servicing debts; but this is not reflected in the pool of assets each party has retained since separation.
h)It is unfair for [the respondent], who has taken steps to maximise her future wealth, to have to share that wealth with [the appellant] who did not invest as wisely; especially in regard to maximising her superannuation benefits.
i)[The appellant] has demonstrated her continuing struggle with financial matters given the spending of the inheritance and the increase in her mortgage over the [Suburb B] property since separation, despite the earning of an income.
j)Although the alteration of property interests has been denied due to it not being just and equitable for such an alteration to take place, [the appellant] has still been left with the significant assets accumulated by her during the relationship, consisting of two houses, several motor vehicles and superannuation.
k)Further, [the appellant] has the capacity, unlike [the respondent], to accumulate more assets, with her ability to work and her ability to contribute to her superannuation fund.
Although not mentioned in the summary at [59], it is important to record that one of the 10 topics her Honour had discussed relevant to the “just and equitable” issue was the “sharing of day to day living expenses” (at [52]). In dealing with that topic, her Honour made findings in accordance with the evidence of the respondent relating to the equal sharing of household costs.
Having announced her intention to dismiss the appellant’s claim, her Honour concluded her reasons with the following remarks:
62.It is easy to assume that where parties have been together in a recognised legal relationship, whether a marriage or a de facto relationship, and during that relationship the parties have accumulated property, then it automatically flows that a property settlement will occur following separation.
63. In the majority of cases this is true.
64.But as the High Court in Stanford was quick to point out this is not always the case.
65.There are matters due to their particular facts which cannot fall within that assumption and where it is not just and equitable to progress to an alteration of property.
66. Granted, these cases are in the minority.
67.But being in the minority does not mean that it is to be glossed over lightly.
68.There were many indicators in this matter that attracted the principals [sic] in Stanford; the lack of financial intertwining, the lack of financial planning for the future, the evident separation of finances and the continued individual ownership of property; just to name a few.

The Grounds of Appeal

While there were five appeal grounds, the oral submissions of counsel for the appellant extended to some matters that did not fit easily within any of them. We therefore propose to address the additional propositions advanced by the appellant as a discrete topic after dealing with the five stated grounds.

Ground 1 – Applying a different “standard” than to other de facto couples

By this ground the appellant asserts:
That in determining it was not just and equitable to make an order altering the parties’ existing property interests, Her Honour erred and her discretion miscarried by holding this de facto couple, and the Appellant in particular, to a higher or different standard than other de facto couples (where the fact of the relationship as defined in the Family Law Act was not in issue), when finding:
a.The parties lacked future plans or goals; and/or
b.The Appellant lacked knowledge as to the financial situation of the Respondent; and/or
c.A lack of evidence on the part of the Appellant;
And consequently her chain of reasoning was infected, as were her findings at paragraph 59.
In support of this ground it was submitted that her Honour had taken into account “wholly extraneous matters” in deciding that it was not just and equitable to make any property settlement order.
Although not referred to in the ground itself, the first “wholly extraneous” matter referred to in the appellant’s summary of argument was the statement made at [48(e)] of the reasons, namely “whilst presenting as very different in character, there is no suggestion that one party was overbearing of the other or that there was any power imbalance in their relationship”.
We do not accept that this was an irrelevant matter. In our view, her Honour was simply recording her satisfaction that the parties had kept their affairs separate by consent, rather than because of some form of coercion.
It was further submitted that the absence of “future plans or goals” was not a relevant consideration, but no argument was advanced to explain why this was irrelevant. Although her Honour did not say so expressly, we understand her reference to the absence of “future plans or goals” to be part and parcel of her findings about how the parties kept their affairs separate and conducted their financial lives without being accountable in any way to the other party. The somewhat unusual manner in which the parties arranged their affairs can be seen as distinguishing the present case from the “many cases” referred to in Stanford at [42] where there is “common use of property” and “express and implicit assumptions that underpinned the existing property arrangements”.
There was, of course, “common use” of the homes owned by the respondent, but there was also a modest periodic payment by the appellant referable to her occupation of those homes. Furthermore, her Honour made no findings that would point to any “express and implicit assumptions” that the parties would ultimately share in the other’s property. On the contrary, her Honour properly placed significance on the fact that neither had taken any steps to ensure that the other would receive their property or superannuation in the event of death, and indeed the respondent had executed a will giving her entire estate to her parents. In the absence of evidence of any assumption by the parties that one would benefit on the death of the other, it would not have been open to her Honour to conclude, without evidence, that there was any assumption that there would be some redistribution of wealth upon termination of the relationship by means other than death.
Counsel for the appellant further argued that it is not uncommon for one party in a relationship to lack knowledge of the financial situation of the other party, and he submitted that this has never been seen as a relevant consideration in resolving disputes between de facto couples. While we accept the premise in this proposition, it is clear that her Honour’s reliance upon this aspect of the evidence was in the context of a wider finding that the parties kept their financial affairs entirely separate and were not accountable to the other party relating to their use of property or expenditure of funds. It was therefore, in our opinion, a relevant consideration.
The appellant next complained about what her Honour said at [57] of her reasons (original emphasis):
57. Lack of evidence
a)There was lack of evidence from [the appellant] as to the alleged contributions made by [the appellant] to the [Suburb M] and [Suburb A] property, with no receipts for work done, no bank statements showing withdrawals and no affidavits by friends or family members as to work performed on these properties.
b)There was lack of evidence as to whether the financial and non-financial contributions made by [the appellant] to the [Suburb M] and [Suburb A] property increased the value of the properties. …
It was argued that her Honour was critical of the appellant for not having retained receipts for work done to the respondent’s properties and also for her failure to obtain evidence to show whether the contributions she made to the properties had increased their value. It was submitted that it was unsurprising in a committed relationship that a party might not keep receipts to prove how monies were spent. It was also argued that it would be “completely unlikely” that evidence would be provided as to whether contributions made to the properties had increased their value. In advancing this argument, counsel for the appellant drew attention to the fact that the trial judge had found that the appellant had done “all the domestic chores to enable [the respondent] to do labour” on the Suburb A property (at [51]), and that her Honour had fallen into error by expecting that there could be evidence of how the value of domestic work had improved the value of the properties.
Again, we do not dispute the premise of these propositions, but we do not perceive her Honour to have done more than point out the paucity of the evidence advanced by the appellant. It must be borne firmly in mind that her Honour was only exploring the issue of whether it was “just and equitable” to interfere with existing property interests. Had the appellant led evidence that the work she undertook around the respondent’s properties had increased their value to any greater extent than the work the respondent did around the appellant’s property, this would arguably have been a material matter for her Honour to have taken into account. In the circumstances, it was open to her Honour to draw attention to the absence of such evidence.
It is also important to record that among the 10 groups of matters that her Honour took into account were the direct and indirect financial contributions each party made to the other’s real property. It was not submitted on behalf of the appellant that her Honour had misstated the extent of these or had overlooked any contribution of the appellant. Accordingly, even though the trial judge commented on the lack of specificity in the appellant’s evidence, and the absence of corroborating documents or witnesses, it can be seen that her Honour did have regard to the respective contributions, which were weighed with all of the other matters she took into account.
In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
In proceeding as she did, we are not persuaded that her Honour held the appellant to a “higher or different standard than other de facto couples”.
There is therefore no merit in the ground.

Ground 2 – Misapplication of legal principle

By this ground it is asserted:
That in determining it was not just and equitable to make an order altering the parties’ existing property interests, Her Honour erred by misapplying legal principle and in particular, erred:
a. In her application of Stanford & Stanford (2012) 293 ALR 71 and of Fielding & Nichol [2014] FCWA 77; and/or
b. By confusing principles relevant to determining the existence of a de facto relationship, with principles relevant to her exercise of power under s90SM of the Family Law Act 1975.
In support of this ground it was submitted that the trial judge had erred by using the authorities “as reference points to which the present case had to be considered rather than considering an appropriate property settlement division in this case”. It was argued that this had resulted in her Honour “limiting her enquiry as to what was an appropriate property settlement division”.
These arguments reveal a misunderstanding of the ratio of Stanford. The point forcibly made by the High Court was that it is not appropriate for a trial judge to proceed to consider what is “an appropriate property settlement” without first determining whether it is “just and equitable” to make any order at all. There is no basis for the suggestion that her Honour treated Stanford as a “reference point”. Her Honour made no mention of the facts in Stanford and merely referred to it, entirely appropriately, as an authoritative pronouncement concerning the approach to be taken where a party seeks a property settlement order.
On the other hand, there is at least some basis for the contention that Fielding was treated as a “reference point”, because her Honour carried out an analysis of the similarities and differences between the present case and that case. We accept that her Honour was dealing with a detailed submission made on behalf of the respondent, but we nevertheless have reservations about the utility of such an analysis, given that Fielding was nothing more than a first instance decision. In saying this, we do not seek to cast any doubt on the propriety of the decision, but wish only to emphasise that no single case is ever the same as another, and each must be dealt with on its own facts and merits.
The appellant’s concern that Fielding was treated as a “reference point” was no doubt heightened by her Honour’s statement at [34] that “the case of Fielding and Nichol is an authority which must be given consideration in the determination of this matter”. However, her Honour had previously not only referred to the facts of Fielding, but also adopted the “thorough analysis of the case law since Stanford and Bevan” which Thackray CJ had undertaken. Her Honour was entitled to give consideration to that analysis.
The fact that her Honour did not impermissibly treat Fielding as a “reference point” can be further demonstrated by reference to two matters.
First, the highlighted portion of [36], which we set out again below, shows that the trial judge not only recognised she was required to exercise her own “discretionary power”, but intended to have regard to the “relevant authorities” only with a view to obtaining guidance as to the pathway to be followed:
36.Whilst it is in the court’s discretionary power to consider what is just and equitable with the relevant authorities providing guidance as to the pathway that must be followed in reaching a finding as to what is just and equitable, one must not lose sight as to what the terms “just” and “equitable” actually mean.
Secondly, her Honour identified five “distinguishing features” between this case and Fielding. Although she also identified 10 “common features”, it is significant that having done so, her Honour made no further reference to Fielding. Given her Honour’s acceptance of “distinguishing features”, the absence of further reference to the case in the last half of her reasons satisfies us that her Honour relied upon it only for its statement of the law.
For these reasons, we are not persuaded that her Honour “piggybacked” on Fielding as was asserted in the oral submissions of counsel for the appellant. Counsel for the appellant properly conceded that there would be no error on the part of the trial judge if Fielding had been used only as providing a structure for the way to approach the issue her Honour had to determine. In our view, this is what her Honour did.
The complaint in Ground 2(b) was not developed in oral argument. In any event, the trial judge clearly proceeded on the basis that there was a long-standing de facto relationship, and we are not persuaded that her Honour confused the “principles relevant to determining the existence of a de facto relationship” with the principles applicable when deciding whether to make an order.
Ground 2 therefore fails.

Ground 3 – Failure to give consideration to various factors

This grounds states:
That in determining it was not just and equitable to make an order altering the parties’ existing property interests, and in circumstances where Her Honour did give some consideration to the matters set out in s 90SM(4)(a), Her Honour then failed to give adequate consideration to the matters set out in s 90SM(4)(b) and/or (c) and/or (d) and/or (e) when exercising her discretion.
For ease of understanding, we set out the relevant portion of s 90SM(4):
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; …
In his summary of argument, counsel for the appellant drew attention to the fact that her Honour made no mention of “any contribution by either party to the welfare of the family in the capacity of homemaker” and nor was consideration given to “the effect of any proposed order upon the earning capacity of either party”. However, the complaint was not further developed in argument and accordingly no submission was made to explain why, in the circumstances of this case, it was an error for her Honour not to take into account:
a)contributions to the welfare of “the family”, when the evidence was that both parties had made such contributions; and
b)the effect of any proposed order upon earning capacity when, to the best of our knowledge, the trial judge was not asked to take that matter into account and, in any event, her Honour did not ultimately make an order (save to dismiss the claim).
It was also submitted that her Honour erred in her consideration of contributions under s 90SM(4)(b) by treating as relevant the fact there was no evidence of any increase in value of the property as a result of the contributions. Although we accept that contributions that do not improve the value of property may be taken into account in adjustment of property interests, we are not persuaded that it is an appealable error to place little or no weight on such contributions in determining whether it is just and equitable to make any order at all. This must be especially so in a case such as the present where each party made contributions to property owned by the other.
The ground lacks merit.

Ground 4 – Error of fact

By this ground it is asserted that the trial judge erred by finding that the respondent was caring for her parents at the Suburb A property. It was said that this error “misinforms” her Honour’s finding at [55(g)].
It was acknowledged that her Honour erred in finding that the respondent’s parents moved into the Suburb A property in 1997 and that at the time of trial the respondent was “living and caring for her parents at the [Suburb A] property”. As a consequence, it was acknowledged that there was an inaccuracy in [55(g)] where her Honour said:
It was never explained as to how the parties would spend their retirement given that [the respondent’s] parents lived with the parties and the [Suburb B property] was being rented at reduced rent to [the appellant’s] sister.
Although not germane to the appeal, out of fairness, it seems that her Honour was misled by a statement in an affidavit that the respondent’s parents “moved to [Suburb A] in 1997”. They did, in fact, move to [Suburb A], but into a house down the street from the respondent’s home.
The only issue relevant to this appeal is whether this error was integral to her Honour’s process of reasoning. Counsel for the appellant was unable to explain how the error was material to the primary finding in [55(g)], namely that there was no explanation “as to how the parties would spend their retirement”. In any event, with respect to her Honour, is not entirely clear what relevance the place of residence of the respondent’s parents would have to that issue, especially given her misapprehension that the parents had been living with the parties since 1997.
Appropriately, this ground of appeal was not strongly pressed by counsel for the appellant and we regard it as having no merit.

Ground 5 – Result outside the reasonable ambit of discretion

This ground asserts “that in all the premises above, the result embodied in the Order is manifestly unjust and outside the reasonable ambit of discretion”.
It was submitted by reference to the contributions and factors under s 90SF(3) that the appellant should have received 60 per cent of the net assets, and that having received “ever so slightly less than half that figure”, the outcome was “manifestly outside the range of the reasonable ambit of discretion referred to in cases such as House v King”.
This proposition fails to engage with the fact that, having determined that it was not just and equitable to interfere with existing property rights, her Honour did not need to make an assessment of what the appellant’s entitlements might have been had she decided it was just and equitable to make some form of property order. Our law does not provide for a system of community of property arising from marriage (or from a de facto marriage), and the High Court has emphasised in Stanford that it is simply not open to a trial judge to interfere with existing property rights of citizens merely by reference to the provisions of the Act.
Accordingly, this complaint also fails.

Treatment of evidence regarding superannuation and future plans

The grounds of appeal did not assert any errors of fact by the trial judge other than the complaint in Ground 4. Nevertheless, in his oral submissions, counsel for the appellant argued that her Honour had erred in accepting that there had been acquiescence by the parties in keeping their financial affairs separate, and had also erred by ignoring evidence of the appellant on this issue, which in turn had led to error in these findings at [55] that:
e) There was lack of evidence as to whether the parties would share their assets or superannuation upon retirement.
f)There was lack of evidence as to the future plans the parties may have had or goals that might have been shared had the parties not separated.
Counsel for the appellant took us to this paragraph of the appellant’s affidavit, which was said to contain evidence of the matters referred to above:
69.It was discussed and agreed between [the respondent] and I that [the respondent] would salary sacrifice into her superannuation as she decided to retire at 55 years of age and I supported [the respondent’s] position. [The respondent] and I agreed that I would need to take up any shortfall in purchasing things we needed as [the respondent] would be contributing extra to her superannuation. This subsequently transpired and I took up more of the responsibility for day to day running of the house costs so that [the respondent’s] superannuation could be increased. [The respondent] and I discussed this often throughout our relationship as our intention was that [the respondent] would retire at 55 (we planned very heavily around [the respondent] being able to retire at 55 because she hated her job and wanted to get out as soon as she could) and I would continue until I was 55 and then retire, four years later than [the respondent] retired. We also discussed that the [Suburb B] property would assist our finances when I retired as [the respondent’s superannuation fund] was a much better performing superannuation fund than [the appellant’s superannuation fund] and it would assist with the difference. [The respondent] and I were both aware of the amount of the other’s superannuation fund as we openly discussed superannuation during the relationship and particularly as [the respondent] neared retirement.
The respondent’s objection at trial to the admissibility of this paragraph was rejected, notwithstanding obvious deficiencies in the way the “evidence” was presented (transcript, 17 August 2015, p 9). The paragraph had not been responded to in the respondent’s affidavit (as the affidavits were filed on the same day), but the respondent did give evidence in her affidavit as follows:
20.During our relationship, [the appellant] and I did not comingle finances and remained financially independent of one another, except as follows:
(a)[The appellant] paid me $100 per fortnight at the [Suburb M] property between early 1983 to mid-1986 and $120 per fortnight at the [Suburb A] property between late 1987 and mid-2006. These payments were categorised as rent/board and/or contributions towards usual household expenses for the [Suburb M] and [Suburb A] properties. The payments were never referred to as mortgage repayments.
(b)Throughout the 28 years of our relationship, the extent of the joint acquisition of any assets was the purchase [of] a recreational vehicle, a camper trailer, a ride on mower which was later sold and very few items of furniture. These items were acquired on the basis that [the appellant] and I shared equally in the cost. The motor vehicle is no longer an asset of the relationship. [The appellant] has the camper trailer and the equivalent of half the furniture.
…
28.      [The appellant] and I kept our finances separate.
29.We did not often discuss our financial situations, except to the extent that [the appellant] agreed to contribute $120 per fortnight by way of rent whilst living with me in the [Suburb A] property and we agreed to share equally in groceries and utilities.
…
52.      I was very meticulous in ensuring that any expense we did share such as groceries and utilities were shared equally. Likewise, I was very careful to make sure that [the appellant] was never paying for any expense associated with the build, maintenance or improvement of the [Suburb A] property. I did this purposefully as it was always my intention for [the appellant] and I to remain financially independent of one another. For example, I recall throughout the relationship when we discussed anything to do with money or property or gifts, I would often say to [the appellant] words to the effect of: “What’s mine is mine, what’s yours is yours.”
…
126.     I entered into a [packaging] agreement with [the respondent’s employer] on 6 May 1999. After consulting a financial planner on 11 June 1999, I elected to make voluntary contributions to my [superannuation] fund provided that the net amount of my salary remained the same.
127.     With the benefit of financial advice, I made additional voluntary contributions of $50,000 since that time.
This evidence is in clear conflict with the appellant’s evidence, including her vague claim about taking up “any shortfall in purchasing things we needed” in compliance with the alleged agreement about contributions to superannuation.
As would be expected, there was cross-examination on these topics. The relevant portion of the appellant’s cross-examination appears at transcript, 17 August 2015, pp 12–17, while the respondent’s cross-examination is to be found at transcript, 17 August 2015, pp 68–69 and pp 77–78. We do not propose to recite the relevant passages, it being sufficient to record that nowhere did the appellant give evidence of what it was that she allegedly contributed to meet any “shortfall”, nor was any question put to the respondent concerning any expenses the appellant might have met because of such a “shortfall”. Nor was it put to the respondent where, when and how the agreement about the additional superannuation payments was reached. We also note that the appellant accepted she was “a bit surprised” to find that the respondent’s salary sacrificing had “started long before her retirement” (transcript, 17 August 2015, p 14).
The trial judge did not make mention of the divergence in the evidence relating to these topics. Although it might have been desirable for her Honour to have drawn attention to the conflict and explained why she seemingly preferred the evidence of the respondent, her failure to do so does not constitute appealable error. As Gleeson CJ, McHugh and Gummow JJ said in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
If one version of the facts is open on the evidence there can be no appealable error if a trial judge accepts that version, merely because another finding was also open. What is required for an appeal to succeed is to show that the finding made was not reasonably open: Edwards v Noble (1971) 125 CLR 296 at 304.
The trial judge made findings consistent with acceptance of the respondent’s evidence. In particular, her Honour found that “there was a complete lack of joint financial decision making”; “there was the absence of sharing of any information with each other as to their financial situation or individual decision making”; and “the parties contributed almost equally to household bills and groceries” (hence rejecting any suggestion that the appellant made up some “shortfall” for the respondent).
Her Honour’s findings at [56(a)], set out below, are also inconsistent with some agreement between the parties about the respondent increasing her superannuation contributions. In that paragraph, her Honour found that:
a)The evidence supports that [the appellant] lacked knowledge as to:-
…
ii)The amount of money being contributed to [the respondent’s] superannuation fund.
iii)How the salary sacrifice worked in respect to [the respondent’s] superannuation.
iv)When [the respondent] commenced contributions to her superannuation fund.
Taken together, it is clear her Honour rejected the appellant’s vague assertions about some agreement regarding the respondent’s superannuation contributions and the associated, equally vague, assertions about the appellant meeting additional expenses associated with a “shortfall”.
Finally, we will deal with the appellant’s submission that her Honour erred by not recognising that attitudes to same-sex relationships were less liberal in the earlier period of the parties’ association than they now are. It was said that this explained why the parties had kept their financial affairs separate, as otherwise attention would have been drawn to the true nature of their cohabitation. While we accept the premise in this proposition, it fails to explain those aspects of the parties’ financial arrangements which would have been known only to them.
We have not overlooked other propositions advanced on behalf of the appellant; however, as they fell well outside the grounds of appeal, and appeared to us to have no merit, we do not propose to discuss them.

The outcome and costs

As we have found no merit in any of the grounds, the appeal will be dismissed.
Counsel for the appellant properly conceded that there was little that could be said in response to the respondent’s application for costs of the appeal in the event it was dismissed. Having been wholly unsuccessful, the appellant should pay the respondent’s costs, to be assessed if not agreed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray & Strickland JJ) delivered on 2 December 2016.

Associate:

Date: 2 December 2016

[1] Stanford was decided under Part VIII of the Family Law Act 1975 (Cth), which deals with financial matters between parties to a marriage. The present matter falls for consideration under equivalent provisions in Part VIIIAB, which deals with parties to de facto relationships. The equivalent to s 79(4) in Part VIIIAB is s 90SM.