Chapman & Chapman
[2014] FamCAFC 91
FAMILY COURT OF AUSTRALIA
| CHAPMAN & CHAPMAN | [2014] FamCAFC 91 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appellant wife contends the trial judge “conflated” s 79(2) and s 79(4) of the Family Law Act 1975 (Cth) – consideration of Bevan & Bevan (2013) FLC 93-545 – where there is no requirement to consider the s 79(4) factors when making a determination as to whether any order is just and equitable (per s 79(2)) – whether the trial judge erred by conflating the two sections – where this was one of the “many cases” in which the s 79(2) requirement is easily met – where no error demonstrated. FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – CONTRIBUTIONS – where the appellant wife relies upon a number of grounds to challenge the trial judge’s decision to distribute the parties’ property in the proportion 65:35 per cent in favour of the respondent husband – where the appellant contends the trial judge erred in failing to consider certain relevant facts – whether the trial judge erred in the manner alleged – whether the trial judge’s assessment of contributions was “plainly wrong” – where no error demonstrated – where the appellant contends the trial judge erred by failing to make a splitting order – whether the trial judge’s decision not to make a superannuation splitting order was “plainly wrong” – no error demonstrated – where the appellant further contends the trial judge erred in her treatment by the husband of certain funds received following the sale of a property – where no error demonstrated – where the appellant challenged credit findings made by the trial judge – where no error demonstrated – appeal dismissed – appellant ordered to pay the respondent’s costs of the appeal. |
| Family Law Act 1975 (Cth) |
| Bevan & Bevan (2013) FLC 93-545 Bolger & Headon [2014] FamCAFC 27 CDJ v VAJ (1998) 197 CLR 172 Cerini & Cerini [1998] FamCA 143 Stanford v Stanford (2012) 247 CLR 108 Townsend & Townsend (1995) FLC 92-569 Watson & Ling [2013] FamCA 57 Willis & Willis [2007] FamCA 89 |
| APPELLANT: | Ms Chapman |
| RESPONDENT: | Mr Chapman |
| FILE NUMBER: | SYC | 5967 | of | 2008 |
| APPEAL NUMBER: | EA | 56 | of | 2012 |
| DATE DELIVERED: | 27 May 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Strickland and Murphy JJ |
| HEARING DATE: | 13 November 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 196 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wheelhouse SC |
| SOLICITOR FOR THE APPELLANT: | KDB Holmes Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Clinch Long Letherbarrow |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapman & Chapman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA56 of 2012
File Number: SYC5967 of 2008
| Ms Chapman |
Appellant
And
| Mr Chapman |
Respondent
REASONS FOR JUDGMENT
Bryant CJ
I have had the benefit of reading the reasons for decision of Strickland and Murphy JJ. I agree with the orders proposed and, save for one matter, agree with the reasons for decision.
In their reasons, Strickland and Murphy JJ make reference to [84] and [85] of the decision in Bevan & Bevan (2013) FLC 93-545 and say:
25.If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree.
Their Honours conclude, at [26], that the judgment in Stanford v Stanford (2012) 247 CLR 108 points to the opposite, namely that it could not be a requirement that in considering whether in the application of s 79(2) it is just and equitable to make any order at all, s 79(4) must be taken into account.
I agree with their Honours’ conclusion but I do not consider the reasons in Bevan, read as a whole, lead to the opposite conclusion, albeit I accept there may have been some infelicity of expression at [84] and [85] where the plurality said:
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 [the first emphasis is mine, the second emphasis is per the original].
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.
The point being made by the plurality at [84] is that it would be inappropriate to limit the wide discretion conferred by s 79(2) by requiring the Court to ignore the matters referred to in s 79(4). This is so because the matters referred to in subparagraphs (a) to (c) of s 79(4) in particular, would be likely to embrace much of the factual substratum on which any exercise of discretion would be based.
The infelicity of expression to which I have referred appears in the opening words of [85], which I accept can be read as requiring the Court to consider, in every case, the matters in s 79(4) when determining whether the requirements of s 79(2) have been met. This was not the intention. Rather, the paragraph was designed to highlight the potential for conflation of the two separate issues as a result of the appearance of the words “(if any)” in the opening sentence of s 79(4).
The fact this was the intention can be seen from [88] of Bevan where the plurality quoted with approval an extract from a paper by Martin Bartfeld QC, who said:
49.… there is scope for taking into account the factors under s 79(4) in the exercise of the s [79(2)] discretion.
(my emphasis)
Finn J delivered a separate judgment in Bevan & Bevan, in which her Honour said, at [152] that she was “largely in agreement” with what the plurality had said concerning Stanford. In particular, at [169] and [170], Finn J expressed the view that, in determining whether it is just and equitable to make an order:
169.Findings of fact concerning the parties’ financial history (i.e. 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 …
170.After having determined that it is just and equitable to make an order altering interests, the manner or extent of any such alteration of interests will then be determined, as the Chief Justice and Thackray J have indicated, by a consideration of the matters in s 79(4).
Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2), along with all other relevant considerations, as Murphy J held in Watson & Ling [2013] FamCA 57 at [12], citing Stanford at [40].
Strickland & Murphy JJ
On 4 April 2012 Stevenson J made orders for settlement of property between the parties to an approximately 20-year marriage. Her Honour divided the parties’ property and superannuation interests in the proportion 65 per cent to the husband and 35 per cent to the wife.
The wife appeals her Honour’s orders giving effect to that division. The husband opposes the appeal and seeks to maintain the orders of the trial judge.
Grounds and Issues
The seven grounds of appeal contain numerous subparagraphs. They do not particularise or illuminate the ground to which they relate; rather, they confuse it. The wife’s written outline of argument condensed those numerous subparagraphs into six challenges upon which the appeal was argued:[1]
a.First, the trial judge made a fundamental error of law and principle – by giving no separate consideration of s.79(2) Grounds 5 and 6;
b.Secondly, The trial judge failed to take into account and give sufficient weight to relevant material. This relates to the consideration of s.75(2)(b)/79(4)(e) and whether a splitting order should have been made. Grounds 1 and 2;
c.Thirdly, The trial judge made material errors of fact – This arises because the trial judge accepted the cost of renovations at [SS] Street could account for the expenditure of $750,000.00 from the Sale of [YY] St and draw downs from the [Chapman] Superannuation Fund. Ground 4
d.Fourthly, The trial judge took into account irrelevant material; made an error of law; and, ignored relevant material. – this concerns the missing heavy machinery and the reliance by Her Honour on Annotations in relation to which there was no evidence. Ground 3
e.Fifthly, The trial judge’s conclusion, which divided the parties [sic] assets in the ratio 35% to the appellant and 65% to the respondent (Judgment [193] AB Vol 1 63) and in excess of that which counsel for the respondent submitted was appropriate at AB Vol 7 1450 (5-10) after 22 years of marriage and 2 children was so unreasonable one of the categories of error that makes amenable to an appeal a discretionary judgment must have occurred – this relates to undervaluing homemaker, parenting and supporting contribution and going beyond the submission of counsel for the respondent-. Ground 2
f.Sixthly the Trial Judge Misused position [sic] as trial judge in relation to credit. Ground 7
(Bold emphasis in original).
[1]The attribution of the grounds of appeal in arguments (a) and (b) contains an error which is corrected in the balance of the written outline. The first argument is in fact directed to ground 5; the second to grounds 1 and 6. That attribution more accurately reflects the correlation of the arguments with the grounds as pleaded and accords with the oral argument; that attribution is used in these reasons.
The Application of s 79(2)
The s 79(2) challenge rests on four central planks which are interrelated:
·It is contended that “express consideration” must be given to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”). The failure by the trial judge to “…directly address the mandatory requirements of s.79(2)…” is, it is said, a failure to observe that requirement;
·A trial judge must “…give separate consideration to the mandatory requirement laid down in s.79(2)…” and her Honour did not do so; rather, it is contended, her Honour only gave “…consideration to the factors in s 79(4)…”;
·The written outline contends that it “…is ‘preferable’ that the court should consider s 79(2) before considering the s 79(4) matters …” It was not made clear how declining a preference amounts to appealable error. Oral argument suggested that the “preference” was, in fact, a requirement which her Honour had ignored. It is asserted that her Honour , “…reverse[s] the reasoning pathway…”;
·Finally, it is contended that “[t]here is no room for an appellate Court to infer there has been a consideration of S.79(2) by the first instance judge, because full consideration has been given to the s.79(4) matters” (emphasis in original).
The bases of each and all of those arguments were rejected by this Court in Bevan & Bevan (2013) FLC 93-545. Senior counsel for the wife concedes that his arguments necessarily invite this Court to find that at least some of what was said in Bevan is wrong.
Departure from an Earlier Decision of this Court
Senior counsel for the wife neither refers to principle nor advances any argument supportive of this Court departing from the decision in Bevan.
No argument is advanced by senior counsel for the wife as to whether what was said in that case is a “binding rule of law” or was otherwise a “guideline” (or, indeed, neither) (as to which, see Norbis v Norbis (1986) 161 CLR 513 at 518-520, per Mason and Deane JJ). Nor, either, was argument addressed to the principles governing this Court departing from its earlier decision (see, Nguyen v Nguyen (1990) 169 CLR 245, or, subsequently, by this Court in Prantage & Prantage [2013] FamCAFC 105, particularly at [91], [92]).
Even if what was said by this Court in Bevan was not in the nature of a “binding rule of law” in the sense in which that expression is used by the High Court in Norbis, this Court, for the reasons advanced in Prantage (at [91]), would depart from what was said in Bevan “…cautiously and only [if] compelled to the conclusion that [what was said there] is wrong.”
The relevant principles emanating from Bevan
As to inference, the plurality in Bevan said (at [89]) “[u]ltimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues” (emphasis added). Similarly, the plurality firmly rejected (at [86]) the notion that s 79(2) forms a “threshold issue” – which their Honours described as a “misleading” description – or that error is demonstrated by a failure to deal with s 79’s separate requirements in a particular order.
Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s 79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s 79(2) issue will, “…in many cases … [be] … effectively answered in the affirmative by the way the parties present their cases.”
Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
First, it is “…not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “…stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “…just and equitable requirement is readily satisfied…” by the fact of separation: “[i]t will be just and equitable to make a property settlement order … because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
“Ready satisfaction” of the s 79(2) requirement “in many cases” by reference to separation and its consequences brings with it a necessary further consequence; in those “many cases” the parameters, breadth and depth of the s 79(2) inquiry will be curtailed accordingly. It is those who lived within the “stated and unstated assumptions” who understand them best. As a result, satisfaction of the s 79(2) requirement can be inferred, at least in part, from the issues joined and, importantly, not joined, between the parties.
Nothing to which we have been taken by senior counsel for the wife suggests, in respect of the challenges raised by the wife, that what was said by this Court in Bevan was wrong, much less compels any such conclusion.
In light of the broad sweep of the wife’s arguments on this issue, mention should also be made of what the plurality said in Bevan at [84] and [85]. The opening to the latter paragraph and its reference to a “…requirement to consider the s 79(4) matters…” (emphasis added) in answering the s 79(2) question suggests that those factors must mandatorily considered. Their Honours support that conclusion in [84] by reference to the words used in s 79(4):
…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.
(Bold emphasis in original).
If the plurality intended that a consideration of the s 79(4) matters is mandatory in answering the s 79(2) question, we respectfully disagree.
The judgment in Stanford points, in our view, to the opposite conclusion. In particular:
· The “…range of potentially competing considerations” and the consequent impossibility of charting the “metes and bounds” of what is just and equitable (at [36]);
· The ready satisfaction of the s 79(2) requirement in “many cases” by the fact of separation (at [42]);
· The statement that “it will be just and equitable” to make an order in “many cases” by reason of the “…choice made by one or both of the parties…” to end the marriage (at [42]);
· Equally, the statement that “it will be just and equitable” to make an order “in many cases” because “…there is not and will not thereafter be the common use of property by the husband and wife” (at [42], emphasis in original);
· The reiteration that: “…nothing in these reasons should be understood as attempting to chart the metes and bounds of what is ‘just and equitable’ (at [46]); and,
· The further reiteration that nothing in their Honours’ reasons is “…intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable” (at [46]).
Further, and crucially, in “applying s 79 in this case” the Justices of the High Court did not themselves take into account the matters in s 79(4). Indeed [51] of the judgment suggests they eschewed those s 79(4) matters relating to contribution. If, as the plurality held in Bevan, it is a “…requirement to consider the s 79(4) matters…” (emphasis added) in determining if, pursuant to s 79(2), it is just and equitable to make any order it is, respectfully, inconceivable that their Honours in Stanford would not have done so.
Her Honour’s Consideration of s 79(2)
Each party contended below, through their respective senior counsel, for an order to be made pursuant to s 79. Neither party raised any issue before her Honour in respect of s 79(2). Implicitly, each must have conceded that the making of a s 79 order was just and equitable; each must be taken to have known that the specific orders sought could not be made unless that was so. Conversely, no submission to the contrary was made by either party in respect of that subsection.
Of course, while those factors might truncate a trial judge’s consideration of the subsection, they do not relieve it; a trial judge must decide for him or herself that justice and equity requires an order to be made.
It cannot be said that her Honour did not consider the justice and equity of making an order as s 79(2) requires; her Honour’s reasons (at [87]) make explicit that she did so. Her Honour did so in a short, but entirely correct, statement. The circumstances of this case, and the manner in which the parties conducted their respective cases before her Honour, made further exposition unnecessary.
In the latter respect, and despite aspects of the appellant’s argument challenging the adequacy of her Honour’s reasons, no ground of appeal is directed to that issue.
Conclusion
The wife’s arguments should be rejected. No error is demonstrated in respect of the application of s 79(2) and ground 2 must fail.
The Application of s 79(4)(e)
It is asserted by reference to grounds 1 and 6, her Honour “…failed to take account and give sufficient weight to…” a number of specified relevant considerations.
Despite the use of the conjunctive, an assertion that a trial judge has failed to take account of a relevant consideration is an assertion of an error distinct from an asserted error founded on the failure to accord proper weight to a consideration that has been taken into account.
The Alleged Failure to Take Account of Relevant Evidence
Contrary to what is asserted on behalf of the wife, her Honour’s reasons make it plain that her Honour did, in fact, consider each of the matters to which the appellant draws attention:
·The “14 year age difference” (reasons at [185]); the “…husband … is now 67 years old” and “[t]he wife … is now 52 years old” (at [3], [187] and [188]);
·The wife “…labours under health problems”:
…she suffers from arthritis and residual pain from a hip replacement and that she may require a knee reconstruction. I accept that she suffers from anxiety and depression but I reject any suggestion that the husband is responsible for her short term memory loss and difficulty with concentration. I accept that she suffers from panic attacks, recurrent meningitis and high blood pressure.
(at [186]);
·“The wife established no necessary connection between these health issues and her alleged inability to engage in gainful employment … She is only 52 years old and may well recover from these health problems sufficiently to allow her to take on paid employment or establish a business” (at [187]);
·“…the parties are in approximately equal positions, in terms of their respective capacity to engage in gainful employment” (at [188]);
·The husband “…may earn a modest income from his farming activities…” and will “…continue to derive most of his financial support from the superannuation fund” (at [188]). Earlier (at [135]), her Honour noted the total amounts drawn by the husband from the superannuation fund in the 2008, 2009, 2010 and 2011 financial years.
There is no merit in the wife’s argument that her Honour failed to take account of the specified evidence.
The Attribution of Weight
The essence of the wife’s argument on this issue centres on the uncontroversial fact that the husband was entitled to a tax-free weekly pension drawn from his self-managed superannuation fund. There was about $1.99 million in that fund at trial. At that time, the husband’s weekly pension was about $3000 per week. The wife had no entitlement to a pension and, in any event, had only about $100,000 in her superannuation funds.
The asserted error in the attribution of weight is said to be evidenced by her Honour’s failure to order a superannuation split in favour of the wife.
The Context for the s 79(4)(e) Findings
The consideration of the relevant matters referred to in s 75(2) of the Act, pursuant to s 79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
In addition, and important to the arguments in this appeal, a trial judge is obliged to “…consider the effect of the findings as to contribution on the respective positions of the parties, before proceeding to determine whether any adjustment was warranted pursuant to section 75(2)” (Willis & Willis [2007] FamCA 819, at [50]). In that respect, the nature and form of the property or superannuation interests comprising a party’s entitlement, and not just the dollar value of that entitlement are clearly central to achieving justice and equity as s 79 requires.
Her Honour found that the net value of the “…property of the parties or either of them…” was about $3.67 million. The parties’ superannuation interests were found to be in an amount of about $2.1 million. Of the latter total, the husband’s interest, contained within a self-managed superannuation fund in which he was the only beneficiary, was in an amount of about $1.99 million.
Her Honour’s contribution findings saw the husband retaining property and superannuation interests totalling about $3.75 million and the wife about $2 million. Each party sought orders that saw them retain property and liabilities which they then held or controlled. As a consequence of those orders, her Honour’s ultimate assessment would embrace an adjustment of an amount of about $1.64 million invested jointly on behalf of the parties in three controlled monies accounts and, on the wife’s case, a splitting order.
As a result of her Honour declining to make a splitting order, her Honour’s orders were formulated by reference to an adjustment to the parties’ entitlements to the controlled monies. Conscious that a dollar adjustment might not take account in the movement of those moneys pending execution, her Honour expressed that adjustment as a percentage: 86 per cent to the wife and 14 per cent to the husband (at [196]). (Using the value of that fund at trial for the purposes of comparison in these reasons, the wife was to receive, from the controlled monies, cash of about $1.4 million and the husband about $230,000).
The result of her Honour’s orders was, then:
The husband has:
·a farm property containing a home in which he resided;
·a share in a partnership together with livestock and equipment which produced, as her Honour found, “a modest income”. (The total value of the farm, partnership interest, livestock and equipment was about $1.24 million);
·Chattels including valuable cars and number plates with a total value of about $195,000;
·A modest amount of shares (about $16,000) and modest amounts in bank accounts;
·About $230,000 in cash being his approximate share of the controlled monies account; and,
·Superannuation interests of about $1.99 million producing a tax-free pension of about $3000 per week.
The wife has:
·Two home units with a total value of about $1.18 million subject to a mortgage of about $944,000 producing at trial “…a shortfall of $391.00 per week of rental income over mortgage payments” (at [190]);
·Bank accounts totalling about $224,000;
·Chattels of modest value (about $12,500);
·About $1.4million being her approximate share of the controlled monies account; and,
·Superannuation interests of about $100,000 which are not in the payment phase.
In addition each of the parties had earlier received by way of partial property settlement, $1 million each from the sale of the former matrimonial home in late 2008, about three years prior to the trial. The sale netted about $3.9 million. The balance of the sale proceeds was paid to the controlled monies account already referred to.
The wife utilised her interim distribution by purchasing securities and, subsequently, the two home units referred to above. Each is rented. The wife separately rents her own accommodation. Subsequent to the interim distribution, the husband bought a farm on which he lives and also sealed a road to it at a total cost of about $1 million (at [84] – although her Honour found, at [145], that she could “…not say that the husband directly applied his interim distribution funds to the acquisition of [the farm]”).
A substantial proportion of the fund from which the husband’s tax-free pension is paid derives from the sale proceeds of a real property introduced to the marriage by the husband (the YY Street property). Her Honour said she was “mindful of the fact that the assets of the … Superannuation Fund were generated during the marriage” (at [184]).
Consent orders made initially in early 2009 saw the wife receiving the greater of $1000 per week or 75 per cent of the last calendar month’s interest from the jointly-invested money. From 7 April 2011 she received the whole of the interest (at [86]) and the wife’s pre-trial Financial Statement revealed income from that source of about $1860 per week. It also revealed income from her two rental properties of about $1200 per week.
The wife challenges as irrelevant the statement by her Honour that “…the wife could have applied her $1 million interim property settlement in a more financially constructive manner” (at [190]). That finding appears to underpin her Honour’s conclusion that it was “…inappropriate that she receive any adjustment pursuant to section 75(2) because the rental income falls short of the monthly mortgage payments” (at [189]). Nothing apparent from the reasons or evidence reveals why the former finding falls within the narrow band of exceptional cases in which conduct evidence is relevant to the issue under consideration.
That said, nothing said by senior counsel for the wife is persuasive of the finding playing any substantive role in the ultimate decision that it was not just and equitable to make any s 79(4)(e) adjustment and we are not persuaded that it had any such role.
The wife had not worked remuneratively since 2008. In cross-examination, she agreed with the suggestion by senior counsel for the husband that, during the marriage, her income was “menial or very small” and “reasonably insignificant” when compared to that of the husband. She was asked but two questions as to her future prospects of employment: “do you have any desire to return to some form of employment shortly” and “…not only do you believe that you have the mental and physical capacity for it, but that it is something that you would like to do in any event”. In each case, the wife answered, “I hope so” (transcript of proceedings, 22 December 2011, p 103, lines 10-12).
Her Honour found that the wife suffered from “arthritis and residual pain from a hip replacement … anxiety and depression … short term memory loss and difficulty with concentration … panic attacks, recurrent meningitis and high blood pressure” and she “…may require a knee reconstruction…” (at [186]). Those findings are uncontroversial on this appeal.
The Asserted Error that Findings were not Open
It is submitted that the findings by her Honour that “[t]he wife established no necessary connection between [her] health issues and her alleged inability to engage in gainful employment” and that “…the parties are in approximately equivalent positions in terms of their respective capacity to engage in gainful employment” (at, respectively, [187] and [188]) were not open to her on the evidence.
Her Honour’s findings were made as but part of a holistic exercise that poses the question whether justice and equity requires the assessment of contributions to be adjusted by reference to the matters in s 75(2) considered relevant. Her Honour’s findings were not made, for example, in respect of an issue as to whether the parties or either of them had a present capacity for “gainful employment”.
The findings at [187] were used, at [188], to inform a comparison of the future financial positions of the parties, including the prospects of each party having the capacity for future gainful employment. That comparison was but one of a number of relevant points of comparison between the parties. Her Honour compared, on the one hand the possibility of the wife gaining future employment by reason of her age and the possibility of recovery from her ailments with, on the other hand, the husband’s greater age, the fact that he had retired and the fact that he had “modest income” from the stated sources.
Seen in that context, we are not persuaded that her Honour’s findings were not open to her for the purposes to which they were put.
The Failure to Make a Splitting Order
No submissions made to her Honour by senior counsel for either of the parties addressed, in terms, the important specific issue flagged by this Court in Willis, referred to above.
Arguments were, however, made to the effect that it was unjust and inequitable for the husband to retain the whole of his superannuation and its attendant tax free pension. Those arguments derived, in part, from a submission that “ …this fund was created, from assets … that were potentially assets of the parties that were transferred to it because those assets included the proceeds of sale of the [YY] Street property and the transfer in specie [of other real property]”. (transcript of proceedings, 22 December 2011, p 145, lines 9-12). The submissions went on to posit a superannuation split as necessary to achieving orders that were just and equitable (pp 145-6).
While her Honour, too, made no mention of Willis (noting that her Honour was a member of the Bench in that appeal) or the proposition emanating from it referred to earlier, there can be little doubt that her Honour was alive both to the differences in the nature and form of the property and/or superannuation interests that each party would receive pursuant to her orders as well as to the differences in dollar value of those entitlements (at [193] and [194]). Her Honour’s reasons reveal that she was aware of the parties’ differing ages, states of health and current employment prospects. So, too, her Honour was aware of the fact that the wife had significant indebtedness and the husband did not.
The context is important. To repeat, the challenge that her Honour did not consider relevant considerations cannot be sustained; rather the challenge is that her Honour erred in applying weight to the matters she did consider because the “correct” attribution of weight would have resulted in the making of a splitting order.
The facts and circumstances of this case earlier outlined reveal that there is merit in an argument that suggests that a splitting order was a result commended by those facts. One or more of us may have so ordered had we been the trial Judge. But that, of course, is not the test (see, for example, Gronow & Gronow (1979) 144 CLR 513 at 519, per Stephen J and CDJ & VAJ (1998) 197 CLR 172 at per Kirby J at [186]). No error is demonstrated – either specifically in the attribution of weight or by reason of her Honour’s decision being “plainly wrong” – if the exercise of her Honour’s discretion embraced the making of a splitting order, but also embraced reasonably the making of the orders which her Honour made.
Her Honour’s orders can be seen to have:
·Embraced orders in respect of the retention of property that each party sought;
·Permitted the continuation of the post-separation financial arrangements of the parties, including, importantly, what each had done with the $1 million paid to them by way of partial property settlement;
·Left the wife with significantly more available cash than the husband (86 per cent of the controlled monies account; about $1.4 million plus $224,000 already held) to utilise as she might choose including the paying down of the only significant debt included in the proceedings;
·Permitted of flexibility in the manner in which the wife dealt with her future (paying down some or all of the debt and thereby influencing the amount of available income from rental property), the acquisition of a home if she chose, and the like;
·Avoided the sale of an asset held within the husband’s superannuation fund that would have been required to effect the superannuation split contended for; and,
·Balanced the future needs of a then 52-year-old woman with those of a then 67-year-old man.
Those matters properly inform and sustain the orders made by her Honour even if those orders may be different to what the wife contended or different to what one or other of us may have ourselves ordered.
The circumstances here illustrate starkly that “…what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “…functions and purposes of [the Family] Court … [involve] … difficult and evaluative decisions…” such that “…any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
The circumstances do not, however, illustrate error in the attribution of weight or that her Honour’s refusal to make a splitting order was “plainly wrong”.
Not only can that be said here in respect of her Honour’s failure to make a splitting order, but also otherwise in respect of her Honour’s ultimate conclusion that a consideration of s 79(4)(e) did not warrant any adjustment to the assessment of contributions arrived at by her. In that respect, the husband’s tax-free pension emanating from a superannuation fund holding income-earning assets derived from the parties’ property over a 20-year marriage was an extremely important factor. That is all the more so when the wife – a woman in her 50s with limited capacity for remunerative employment – would need to predominantly meet her future needs from income derived from the property awarded to her by way of property settlement.
One or more of us sitting at trial may have given this factor, in particular, more weight than did her Honour. Similarly, one or more of us sitting at trial may have made an adjustment in favour of the wife upon a consideration of s 79(4)(e) as a whole. We consider this case close to the point at which an appellate court would interfere with a trial Judge’s discretion. However we are ultimately unable to persuade ourselves that her Honour’s ultimate assessment is “plainly wrong”.
Conclusion
The appellant’s challenge on grounds 1 and 6 is not made out.
Factual errors and “add backs”
The contention which underpins ground 4 uses the language of error as to fact but the true gravamen of the challenge is that her Honour ought to have “added back” as against the husband money which, it is contended, her Honour mistakenly found was expended by him on renovations to the former matrimonial home.
The argument proceeds as follows:
(a)Her Honour found (at [58]) that, from the proceeds of sale of real property ($1.75 million), $1 million was deposited to the husband’s superannuation account and the balance of $750,000 was “…reserved … to meet the costs of renovations to the [former matrimonial] home”;
(b)Later, at [135]-[149], her Honour made a series of findings in respect of withdrawals by the husband from his superannuation fund. Relevantly, her Honour found that a total of just over $715,000 was withdrawn in the 2007-08 and 2008-09 financial years;
(c)Having rejected the wife’s argument that no amounts were paid in respect of renovations after 2008 (at [138]-[140]), her Honour found that “…it is readily apparent that the husband must have had recourse to the superannuation money to meet these costs” (at [140]);
(d)Her Honour underlined that finding at [146] when she found that “…the husband had recourse to superannuation money in the 2007-2008 financial year in part to meet the cost of renovations…”;
(e)The result of her Honour’s findings is that: $750,000 was set aside from the proceeds of sale of real property to meet renovation costs and was not deposited to the superannuation fund; $715,000 was withdrawn from the superannuation fund during the renovation period and used for renovations and living expenses; and, that the renovations cost (it is accepted for the purposes of the appeal) $500,000;
(f)Accordingly, it is argued, either the $750,000 set aside for renovations was used (or partly used) for that purpose or $500,000 of the $715,000 withdrawn from the superannuation fund was used for that purpose – but both can’t have been used for that purpose. The corollary is that one or the other amount is “missing” in the sense of being unexplained; and,
(g)Accordingly, her Honour erred in failing to add back either such sum as a “premature distribution” to the husband. (Townsend & Townsend (1995) FLC 92-569).
Her Honour’s finding at [58] summarised above, refers to two sums of money: one of $1 million deposited to the superannuation fund and a separate amount of about $750,000. The apparently separate amount of $750,000 is not otherwise the subject of mention in the reasons. Her Honour’s finding emanates, it seems, from what the husband swore in his affidavit of evidence in chief, namely, that “I put $1 million from the sale proceeds into two self-managed superannuation funds and invested the balance in home renovation for [the former matrimonial home]” (affidavit of husband filed 15 April 2011 at [102]) and from what was (apparently as a result) submitted by counsel for the husband at the conclusion of the trial to the same effect.
The wife swears in an affidavit, filed on 14 April 2011, that when the property was sold for $1,750,000 a mortgage was discharged. No discharge amount is deposed to. The wife swears that the mortgage liability, some 10 years previously in 1994, was $1,100,000 (affidavit of the wife filed 14 April 2011 at [33]-[34]).
Given that the wife’s argument on this appeal centres on her Honour’s finding and its inherent assumption of two sums of money, it may seem remarkable that the facts illuminated by the evidence just outlined were never explored in cross-examination of either party or in specific submissions to her Honour. Even more remarkably, perhaps, the evidentiary foundation for the central premise of the wife’s argument was never explored before this Court. It appears to be erroneous.
Neither of the senior counsel for the parties took this Court to Exhibit 28 to the husband’s affidavit filed 15 April 2011. It is a settlement statement for the sale of the YY Street property. Nothing in the record suggests that this document was challenged in any way. It appears, on its face, to support the wife’s evidence that a mortgage liability was discharged; the document reveals that about $600,000 from the sale proceeds was paid to the husband’s bank and just short of a million dollars ($968,439.37) was paid to the husband.
The position revealed by that document may perhaps explain the form of the only three questions put to the husband by senior counsel for the wife in respect of the money in question:
And you say that that some cash proceedings (sic) which were derived from the sale of … [YY] Street in the sum of $750,000 was placed into the [super] fund --- Yes
And a further sum of $259,000 was placed into the fund. Is that correct --- Yes.
So at a date, after 2004 [when [YY] Street was sold], there were cash investments in the fund of a little over a million dollars, is that correct? --- That’s correct
(Transcript of proceedings, 21 December 2011, p 9, lines 27-34. Emphasis added.)
By way of corollary, it was never put to the husband that there were two sums of money to which recourse was, or could have, been had for the purposes of meeting renovation costs for the former matrimonial home. Nor was any such suggestion made in any oral or written submission to her Honour on behalf of the wife. Nor, it needs to be said, was there any argument made to her Honour framed in the manner summarised above.
Written submissions were confined to drawings from the superannuation fund and made no mention of any “other” sum of money. Those submissions were premised on two factual findings rejected by her Honour and not challenged on appeal. The first is that amounts were withdrawn after renovations were complete. The second is that the husband continued to work in the automotive industry. The submissions were also premised on a rejected assertion that income from working in the automotive industry, together with the husband’s partial property settlement, provided sufficiently for the husband’s expenses. Those matters create, of themselves, significant difficulties for the wife succeeding on the argument before this Court (see, Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71).
To the extent that [58] of the reasons contains a finding that there was an amount of $750,000 additional to the approximately $1 million deposited to the husband’s superannuation fund, that finding appears to be contrary to the evidence taken as a whole and is an error. Any such error was induced by the failure of counsel to properly illuminate the evidence. However, any such error does not impact upon the correctness of her Honour’s finding not to add back the sums contended for by the wife. Indeed, it strengthens her Honour’s finding.
Consistent with the evidence as a whole, and the assumptions inherent in the wife’s submissions made at trial, about $750,000 was drawn by the husband during the relevant period and used for $500,000 worth of renovations and for living expenses. In those circumstances, nothing to which the trial judge was taken, nor anything revealed by the record, suggests that her Honour erred in failing to add back the relevant sums. Indeed, her Honour was entirely correct in finding that, consistent with principle (see, for example, Cerini & Cerini [1998] FamCA 143, Omacini & Omacini (2005) FLC 93-218 and Townsend) the amounts withdrawn by the husband should not be added back.
Conclusion
There is no merit in the third of the central arguments advanced by the appellant. Ground 4 fails.
Before leaving this issue, it should be observed that the parties in this case contended between them for about $2.5 million in “add backs” (the wife $2.45 million; the husband about $125,000). The net value of the property as found by her Honour is about $3.6 million (with an additional approximately $2.1 million in superannuation).
This case provides a timely opportunity to repeat – yet again – what was said in Cerini, namely, that “add backs” are the “…exception rather than the rule…” (at [46]).
The Heavy Machinery
What senior counsel for the wife termed “the fourth contention” is embraced by ground 3. The challenge concerns her Honour’s findings in respect of three heavy machines.
In broad terms, the trial judge accepted, contrary to the wife’s contention, that the husband and his brother were entitled jointly to the proceeds of sale of heavy machinery ascribed the number “[1A]” in the proceedings and reasons. In respect of two other heavy machines, identified as “[1B]” and “[1C]”, the trial judge rejected the wife’s contention that they were owned by the husband and not his brother.
With great respect to senior counsel for the wife, his arguments on this issue sought to avoid the single most important difficulty confronting his argument, namely, sworn evidence given by the husband was accepted by her Honour. The wife’s contentions were put directly to the husband in cross-examination and were denied. Her Honour accepted those denials. The wife points to no evidence on this appeal which renders those findings erroneous.
In the latter respect, the wife asserts that her Honour placed undue weight upon handwritten notations contained within a log book required to be kept by law by reason of the husband then working in the automotive industry and which was tendered before her Honour. Those notations are styled “[X]”, “[Y]”, and, “[X&Y]”. It is accepted on this appeal that neither party led evidence as to what the annotations were or what they stood for. It is also accepted that there was no evidence of when the notations were made or who made them. However, both parties accept for the purposes of the arguments in this appeal that “[X]” refers to the husband, “[Y]” refers to his brother, and “[X&Y]” refers to the husband and his brother – i.e. a partnership between the two.
Not a single question was asked of the husband at trial about those notations.
The wife contends that her Honour placed significant weight upon those handwritten annotations in coming to the conclusion that the heavy machines were owned and/or sold as the husband alleged, and that her Honour was not entitled to do so without giving the parties an opportunity to be heard in respect of that finding. The decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, particularly at [69], is relied upon in support of that submission.
The principle there enunciated pertained to the evidence of expert witnesses being criticised “…by reference to expert material not in evidence without those witnesses having an opportunity to respond.” The case here is very different. It had been put to the husband that the heavy machinery or the proceeds from their sale were his and he denied it. The notations were in evidence. Counsel chose to not give the husband an opportunity to comment upon them. In the same passage from Kuhl to which senior counsel refers, Heydon, Crennan and Bell JJ observed:
…There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori is there a duty on a judge to advise the parties that the party-witness’s evidence is not adequate to make out the case of that party-witness…
Senior counsel for the wife also sought to criticise her Honour for not having regard to documentation, including contemporaneous documents in respect of the heavy machinery. The documents included, for example, the husband’s diary. (Exhibit 6 before her Honour). Those documents do not assist the argument; they record matters which the husband accepted in cross-examination. To the extent that they have evidentiary value, they are corroborative of the husband’s evidence and her Honour’s findings. Her Honour was entitled to use the documentary evidence, including the notations, to draw an inference consistent with her central finding as to the truth and veracity of the husband’s evidence.
Senior counsel for the wife also suggested, referring to the notations in particular, that her Honour erred by not having regard to alternative findings that were open on the evidence. Yet, as was pointed out during argument on appeal, alternative findings are open to a trial judge in almost every case where there are contested issues of fact. What must be shown, relevantly, is that the findings made by her Honour were not open to her or contained an error.
Finally, senior counsel argued that “a Jones v Dunkel inference” ought to have been drawn by the trial judge which, senior counsel contended, was that the failure by the husband to call his brother ought to have led to a finding that he would have given no evidence to contradict the contemporaneous business record. In Kuhl, referred to by senior counsel, their Honours held:
63.The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party who failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn … Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff’s counsel did not ask the plaintiff relevant questions.
64.The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…
(Footnotes omitted).
Again, the point is made that the wife’s specific assertions were put to the husband who denied them. Her Honour accepted his denials and his evidence. The notations in the documentary evidence, and the notations in the husband’s diary were essentially corroborative of that evidence and her Honour accepted them as such.
Conclusion
There is no merit in this challenge.
The Assessment of Contributions
The appellant’s “fifth contention” of error embraces ground 2.
The ground as drafted asserts an “error of fact” in the determination “…that the [husband’s] initial financial contribution was $1,800,000…” No such assertion forms part of any written or oral argument. None is otherwise apparent from the record.
Otherwise, the argument contends, it seems, that the assessment was “plainly wrong” or “plainly unjust” in the sense referred to in the familiar passages from Housev The King (1936) 55 CLR 499 at 505 and Gronow v Gronow (1979) 144 CLR 513 at 519.
The wife’s argument commences with a recitation of the husband’s position at trial that: “contributions during their cohabitation was probably equal except for initial contributions” and the later submission that if “…it’s likely there would be an equal division, the question for determination … is to what extent do you recognise that’s [sic] significant financial contribution at the beginning…” Ultimately, the husband’s counsel submitted “…that recognition may very well warrant something, and between 10 and 15 per cent” (transcript of proceedings, 22 December 2011, pp 152-3).
The wife’s argument on appeal, as set out in the written outline of argument handed to the Court at the commencement of the hearing, suggests that, as a result, “the contest” between the parties at trial was “…to what extent the adjustment order should favour the [husband] because of his initial contribution.” The written argument proceeds that “[h]er Honour concludes because of initial contribution … this entitled the [husband] to a 30% differential loading in his favour in overall adjustment.” The argument then devolves into suggesting that too little weight was given to the wife’s “…contribution as a homemaker and parent…” and, apparently as an alternative, that the assessment by her Honour “was not open” as being “…beyond the generous ambit of the trial judge’s discretion…”
Convenient shorthand used in the making of submissions often sees them couched in terms of “adjustment” to an “otherwise” equal distribution. While understandable enough, doing so is fraught with the potential for error. The “compartmentalisation” or labelling of contributions and the language of adjustment can produce errors of the type identified by this Court in Bolger & Headon [2014] FamCAFC 27 or Dickons & Dickons [2012] FamCAFC 154.
The task of assessing contributions is a holistic one involving the assessment of all contributions of all types across the whole of the cohabitation and, if relevant, before and after cohabitation. While shorthand submissions of the type earlier identified were made to her Honour, and while her Honour referred to those submissions (at [184]) in similar terms when reaching her conclusions, the comprehensive reasons read as a whole reveal that her Honour approached the assessment of contributions in the manner dictated by existing authority.
The familiar passages from CDJ and Gronow referred to earlier in these reasons relating to challenges to weight apply readily to the argument that her Honour gave insufficient weight to the contributions (of all types) made by the wife. So, too, in respect of the weight given to the contributions of all types made by the husband, including what was conveniently called his “initial contribution”.
The arguments advanced by senior counsel for the wife amount to no more than suggesting that this Court would arrive at different conclusions as to the weight to be given to the respective contributions than those reached by the trial judge. No material error of fact or law is asserted. Her Honour’s careful reasons in respect of the contributions of the parties are not asserted to be inadequate, nor could they be. No other foundation is offered for the assertion.
We can see no error in the attribution of weight.
The more general challenge mounted by the wife is directed to the contention that:
…It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
(House at 505, per Dixon, Evatt and McTiernan JJ).
We are not persuaded that her Honour’s assessment of contributions was “unreasonable or plainly unjust” or “plainly wrong” (House at 505 and Gronow at 519, respectively). Her Honour considered and weighed:
·The nature, form and value of the property that each of the parties had at the commencement of the relationship;
·The property and broader financial dealings of each of the parties and of the parties jointly;
·The remunerative work undertaken by each of the parties;
·The work undertaken by each of the parties in respect of renovations, management and maintenance of properties;
·Specifically, work undertaken by each in respect of the former matrimonial home, including in respect of renovations to it; and,
·The important contributions made to the “welfare of the family” and to the parties’ two children including the specific finding (at [175]) that “…it seems highly likely to me that the major homemaking and parenting roles were fulfilled by the wife during the relationship.”
At [179] her Honour found:
In my view, the husband made substantial post separation financial contributions. His uncontradicted evidence was that he paid for the wife’s holidays in overseas in 2007 and in June 2008. He met the costs of CC’s three months overseas as an exchange student between October and December 2008. He paid [CC’s] private school fees in 2010, including the costs of boarding, in a sum which he deposed to be approximately $30,000.00. He maintained that he paid $7,000.00 for [CC’s] university costs, which included residential fees at [PS School].
No specific ground of appeal challenges the finding there made nor was argument by the appellant directed specifically to it. However, the payments there referred to by her Honour all came from an income stream which itself derived from a superannuation fund the bulk of which emanated from the sale of property to which each of the parties had made contributions.
It seems to us erroneous to attribute solely to the husband contributions in the stated respects.
However, it is plain both from the arguments addressed to her Honour by senior counsel for each of the parties and from the reasons as a whole that such error as is embraced by that finding could not reasonably be said to have been material to her Honour’s ultimate finding in respect of contributions. So much might be thought to emerge from the manner in which the appeal was argued by senior counsel for the wife.
Conclusion
To repeat what was said earlier in these reasons in a different context, one or more of us may, in the overall context of this approximately 20-year marriage, have reached a different conclusion in assessing contributions, including one less generous to the husband. But, that is not the test.
We are by no means persuaded that her Honour’s assessment is plainly wrong.
The challenge embraced by ground 4 fails.
Credit Findings
The final challenge to her Honour’s orders centres on an assertion that her Honour’s findings as to the wife’s credit were not open to her or, as it is put in the written summary, that the trial Judge “misused her position” in making credit findings adverse to the wife.
Although not referred to by senior counsel for the wife, the latter expression might be thought to be a reference to what was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. The passage should be repeated as, within it, is contained the answer to the wife’s challenge to her Honour’s credit findings:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
(Footnotes omitted).
Senior counsel for the wife points to no foundation for the assertion that her Honour “palpably misused her position”. Nor does senior counsel point to any evidence which is inconsistent with “…facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
The highest the case for the wife could be put was that “the findings were all one way” against the wife. That is of itself insufficient to establish the contention. Importantly, the statement is not correct. For example, the husband’s case that he held his interest in a partnership on trust for the parties’ sons, based, essentially, on the husband’s own evidence, was rejected. Similarly, his contention that two cars and livestock were held on trust for the sons was also rejected.
Her Honour found in a number of different respects that the wife had exaggerated her evidence, relating particularly to indirect contributions she asserted she had made. Primarily, those findings (as with findings made in respect of the husband’s evidence) were based on the trial judge’s seeing and hearing the parties give evidence. The decision in Devries is frequently referred to (but not by either senior counsel here) in support of the proposition that more circumspection should now attend a trial judge’s assessment of credibility emanating from the advantage gained from observing demeanour and what occurs in the courtroom during a trial (see, Devries at 480, per Deane and Dawson JJ).
Yet, their Honours also went on to say in that context (again at 480):
…However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings…
Conclusion
There is no merit in the challenge embraced by ground 7.
Result of the Appeal
The appeal should be dismissed.
Costs
The Court sought submissions on costs at the conclusion of the appeal in respect of both possible outcomes. The appeal having failed, the respondent seeks an order for costs.
Despite the wife’s lack of success on this appeal, the matters referred to in these reasons and, in particular, the financial circumstances of the parties persuade us that no circumstances justify departure from that which is provided for in s 117(1) of the Act, namely, that that “each party shall bear his or her own costs.”
There will, then, be no order as to costs.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ and Strickland and Murphy JJ) delivered on 27 May 2014.
Associate:
Date: 27 May 2014
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