Cheng & Mong
[2023] FedCFamC1A 196
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cheng & Mong [2023] FedCFamC1A 196
Appeal from: Cheng & Mong (No 3) [2023] FedCFamC1F 577 Appeal number(s): NAA 202 of 2023 File number(s): SYC 2806 of 2020 Judgment of: MCCLELLAND DCJ, TREE & CURRAN JJ Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s determination of a 75/25 contribution based division in favour of the husband was manifestly adequate – Whether the primary judge placed sufficient weight on the short duration of the marriage – Whether the primary judge placed sufficient weight on the direct financial contributions of the husband and the husband’s parents – Whether the primary judge placed sufficient weight on the husband’s parents’ non-financial contributions – Where Applications in an Appeal to adduce further evidence withdrawn – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Number of paragraphs: 40 Date of hearing: 30 October 2023 Place: Heard in Sydney, delivered in Parramatta Counsel for the Appellant: Mr Jackson Solicitor for the Appellant: AEON Law Firm The Respondent: Litigant in person ORDERS
NAA 202 of 2023
SYC 2806 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHENG
Appellant
AND: MS MONG
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, TREE & CURRAN JJ
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheng & Mong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, TREE & CURRAN JJ:
INTRODUCTION
On 12 July 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final orders effecting a division of the parties’ property which, as at the date of the hearing, had a net value of $1,477,253. After considering all relevant factors set out in s 79(4) of the Family Law Act 1975 (Cth) (“the Act”), the final apportionment determined by the primary judge was 80 per cent of the parties’ property to the appellant husband (“the husband”) and 20 per cent to the respondent wife (“the wife”). Relevantly, that division was made after the primary judge determined that a consideration of the matters set out in ss 79(4)(a)-(c) of the Act required a contribution-based entitlement of 75 per cent to the husband and 25 per cent to the wife. That was then increased by the primary judge’s conclusion that the husband was entitled to an adjustment in his favour of 5 per cent having regard to those matters set out in ss 79(4)(d)-(g) of the Act.
The only ground of appeal ultimately relied upon contends that the determination of the husband’s contribution-based entitlement was manifestly inadequate, as it failed to recognise the substantial direct financial contributions by him and his family, and failed to recognise his parents’ non-financial contributions, both in the context of a marriage with a duration of six and a half years. It is contended that the primary judge’s decision was unreasonable within the principles adumbrated in House v The King (1936) 55 CLR 499 (“House v The King”).
The wife opposes the appeal.
For the reasons that follow, the appeal will be dismissed.
BACKGROUND
The primary judge helpfully set out the background in her reasons at [15]–[16] as follows:
The husband was born in Country B in 1979, and the wife in 1983. The parties met in early 2013, and married in 2013 in Australia. From 2013 to January 2015, the parties lived in a dwelling attached to the paternal grandfather’s business in Country U. In January 2015, the wife returned to Country B to live with her parents. X was born in 2015.
The wife said she was the sole carer for X from birth until at least August 2017, when the parties relocated to Australia, as the husband came in and out of Country B on an infrequent and irregular basis given he was working in his father’s factory in Country U.
The primary judge found that the husband only saw X (“the child”) for the first time in late 2015 and that the wife was the primary carer for the child. It was not in contest that the wife was not employed, and the husband was the sole source of income for the family.
The primary judge further set out the background at [18] as follows:
At the end of 2015, the parties purchased the property at F Street, District G, City C, Country B (“the City C property”) in the name of the husband’s aunt. The wife and X lived here from early 2016 until mid-2017.
On 2 November 2016, the parties purchased the property at 1 J Street, Suburb H, New South Wales, Australia (“the Suburb H property”) in the husband’s sole name, which is where the husband’s sister lives. The purchase price for the Suburb H property was $1,695,000 and the husband obtained a mortgage in his sole name in the amount of $1,356,000.
The primary judge found that the husband received $279,250 from his father and paid $339,000 towards the deposit of the Suburb H property, leaving a shortfall of $59,750. She found that the paternal grandparents did not contribute to the payment of stamp duty, leading to a total shortfall of $138,485. The primary judge concluded that sum can only have come from the parties’ savings.
When the parties came to Australia on 17 August 2017, the parties lived at the Suburb H property.
It was not in contest that the wife made no direct financial contribution to the matrimonial asset pool, as noted by the primary judge, but that she made indirect financial contributions.
The parties separated on a final basis on 14 February 2020 when the wife left for Country B, as she says, on a temporary basis. Following her departure, the husband withdrew his support for her visa and since that time she has not returned to live in Australia, and the child has remained in the sole care of the husband.
The husband received $1,369,937.24 from his mother on 22 August 2017, nearly one year after the Suburb H property was purchased. This was a significant contribution and while that was accepted by the primary judge, her Honour found that it was not utilised towards the mortgage for the Suburb H property and that the mortgage had only reduced by some $500,000 as at the date of the trial.
The husband received a total of $2,384,124 from his parents. The primary judge was not satisfied on the evidence of an alleged contribution from his aunt in the sum of $730,000.
RELEVANT APPELLATE PRINCIPLES
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King must be established. At 504–505, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Later in Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) Brennan J said, at 539–540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(Footnotes omitted)
Thus an appellate court should “be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”,[1] not disturb discretionary decisions unless it is demonstrated that the primary judge was “plainly wrong”,[2] and in matters of weight, not disturb the decision of the primary judge “unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court”.[3]
[1] Gronow v Gronow (1979) 144 CLR 513 at 520 (Stephen J).
[2] CDJ v VAJ (1998) 197 CLR 172 at 230–231 (Kirby J).
[3] Lovell v Lovell (1950) 81 CLR 513 at 519 (Latham CJ), quoted in Mallett v Mallett (1984) 156 CLR 605 at 614. (Gibbs CJ).
THE HUSBAND’S CHALLENGE ON APPEAL
The husband pressed only Ground 2 of his Notice of Appeal filed 2 August 2023, which contends that the primary judge erred in assessing the husband’s contribution-based entitlement at 75 per cent, “as such an assessment was manifestly inadequate.”
Notwithstanding the way in which Ground 2 was cast, the husband’s Summary of Argument filed 18 September 2023, proceeded to also contend at paragraph 35, that the primary judge did not sufficiently give weight to:
a.The relatively short duration of the marriage; nor,
b.The extent of the direct financial contributions made by the [husband], not limited by himself, but through his parents; nor,
c.The [husband’s] parents’ non-financial contributions.
(Footnote omitted)
It is convenient to consider the weight challenges and then consider the ground more generally.
The complaint that the primary judge did not sufficiently give weight to “the relatively short duration of the marriage.”
In his Summary of Argument, the husband contended that “[t]here is however no reference in the Reasons for the Judgment for the impact if any of such a relatively short marriage in the context of its duration”.[4]
[4] Appellant’s Summary of Argument filed 18 September 2023, paragraph 36.
At trial, the husband’s Amended Case Outline filed 16 May 2023 recorded at page 11, “[a]lso not in dispute was the fact that this was a relatively short marriage of seven years, from 2013 until 2020”, although in oral submissions the relationship length was referred to as six and a half years.
Plainly, the judge did have express regard to the duration of the marriage at paragraphs [15] and [21] where she records the date of marriage and date of separation.
The husband’s contention in oral submissions that it was a very short relationship was not accepted by the primary judge. It was also not supported on the evidence. The following exchange occurred at trial:
MR JACKSON: It’s a very short relationship, your Honour. They were together for literally a year or two, I think, or not much - - -
HER HONOUR: It’s a seven-year relationship.[5]
[5] Transcript 13 June 2023, p.11 lines 21–24.
The oral submissions thereafter referred to a “fairly” or “relatively” short relationship.[6] However the relationship was characterised, the primary judge accepted it spanned approximately seven years and noted that was uncontested. However, there was no submission made by the husband to the primary judge as to what should have been the consequence arising from this fact.
[6] Transcript 14 June 2023, p.98 lines 31–39.
It is evident that the primary judge accurately and uncontroversially recorded the period of cohabitation of the relationship. There is no reason to think she failed to properly weigh it as a relevant consideration.
The complaint that the primary judge did not sufficiently give weight to “the extent of the direct financial contributions made by the husband, both by himself, and through his parents.”
Throughout her reasons, the primary judge specifically made findings as to the direct financial contributions of the husband and his parents. Particularly, her Honour acknowledged the overwhelming financial contribution from the husband and his family, including:
(a)At [47]:
… [t]he husband conceded these monies provided to him, by his aunt, for the purchase of the City C property and by his parents for the Suburb H property, could not be characterised as loans but instead were contributions to the matrimonial asset pool, for which he should obtain a benefit by way of initial contribution. I accept that sensible position.
(b)At [67]:
While the concession was made to have these monies provided be treated as contributions, it is also a relevant fact that the paternal grandparents live in the Suburb H property and make no contribution to the ongoing costs and maintenance of this property, having provided significant monies initially to the husband.
(c)At [69]:
Thus, I do not regard to the entirety of the money advanced by the paternal grandparents to the husband as contributions, but rather in part a pre-payment by them of what they should pay for living in the Suburb H property. There is no doubt part of the advancement assisted the parties to purchase the Suburb H property when they did and that this is a relevant contribution by the husband via his parents.
(d)At [74]:
… There is also no doubt that the husband financially supported the wife at a high level during the marriage, as did his parents at times, and there can be no criticism of the husband in regard to the monies he paid to the wife to support her whilst she was living in Country B and together in Australia, and I reject the wife’s criticisms of the husband in that regard…
(e)At [96]:
The husband provided, by way of his income and assistance from his parents and perhaps his aunt, the totality of money to purchase both the Suburb H property and the City C property…
(f)At [99]:
Up to the birth of [the child], I find the parties made equal contributions. After the birth of [the child], I find the husband had a financial resource in his family to assist in the purchase of the City C property. The husband used his income to pay off the mortgage of the City C property while the wife lived there and cared for [the child]. The wife contributed to the maintenance of the City C property in the husband’s absence.
(g)At [100]:
The parties used their savings of approximately $138,485 at that time of the purchase of the Suburb H property, and the husband paid the mortgage whilst the wife and [the child] occupied the property, with the paternal grandparents. Thus, contrary to the wife’s position of having made no financial contribution to the acquisition of the assets, she has made a contribution. The husband had a financial resource, namely his parents, to assist in the purchase of the Suburb H property.
(h)At [101]:
After arriving in Australia, I find the wife continued her primary care of [the child], while the husband continued to earn the income. It is clear there was a significant direct financial contribution from the husband’s parents to the acquisition of the Suburb H property and thus the husband’s contributions to the acquisition of this property are superior to that of the wife. I accept that his parents have also made significant contributions to the ongoing conservation and maintenance of the Suburb H property; However, they also live at that property and enjoy the benefit of this to the exclusion of the wife.
(Footnotes omitted)
Her Honour concluded at [102]:
Having regard to all these matters, I assess the husband’s contribution-based entitlement to the matrimonial asset pool at the date of separation, being early 2020, to have been superior to the wife’s, and I assess his contribution-based entitlement at 75 per cent.
As set out above, her Honour accepted that the husband’s parents had “also made significant contributions to the ongoing conservation and maintenance of the Suburb H Property” by reference to s 79(4)(b) of the Act and expressly acknowledged in her reasons their direct financial contributions in having “provided significant monies” and acknowledging it as “a relevant contribution by the husband via his parents.”
Given the extensive reference to the various contributions in the reasons, there is no basis to conclude that the primary judge failed to appreciate the significance of the direct financial contributions, or other contributions made by the husband or his parents, or that she failed to give these factors weight.
That the primary judge did not adopt the percentage adjustment as contended for by the husband in the exercise of her discretion, does not establish a failure to give sufficient weight to the direct financial contribution of the husband and his family.
The complaint that the primary judge did not give sufficient weight to “the husband’s parents’ non-financial contribution.”
It was contended by the husband in his Summary of Argument filed 18 September 2023 at paragraph 41, that the primary judge did not factor in the non-financial contributions made by the husband’s parents in assisting the child “as set out in the unchallenged affidavit evidence at paragraphs 4 and 34 of the [paternal grandfather’s] trial affidavit.” Relevantly those paragraphs were that “I love my grandson [the child], whom I took care of with [the husband] and my daughter [Ms Q]. We have been living together since around 2017” and “[c]urrently my wife and I also assist [the husband] in parenting [the child].”
Other than those statements, which were devoid of any detail, there was no probative evidence that the primary judge was taken to the husband’s claim that his parents made post-separation non-financial contributions “as grandparents”. Further at trial, there was no submission made, orally or in writing, as to the weight which should be afforded to the alleged specific contribution.
Notwithstanding this, the primary judge did acknowledge at [92] that the husband has “the invaluable support of his parents to assist him in the care of the child, but he does this solely in the absence of the wife”.
There is no reason, therefore, to think that inadequate weight was given to this matter.
Was the 75 per cent contribution-based entitlement manifestly inadequate?
The “ambit”, as referred to above in Norbis, in this case was always liable to be wide. Other judges may have reached different conclusions having regard to the weight appropriate to be given to the countervailing factors revealed by the evidence, but that does not establish error. Significantly, the adequacy of the primary judge’s reasons and findings themselves have not been challenged in this appeal. It has not been shown that the primary judge failed to have regard to any relevant fact or circumstance in the exercise of her discretion. No relevant fact or circumstance has been shown to have been given excessive or inadequate weight. We are not persuaded that the 75 per cent contribution-based finding in the husband’s favour was manifestly inadequate, unreasonable or plainly wrong.
Ground 2 fails.
CONCLUSION
The appeal fails and is dismissed.
COSTS
The wife was self-represented on the appeal. The husband sought that if the appeal was unsuccessful that there be no order as to costs due to this fact. The wife made no submission as to costs.
Each party should bear their own costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Tree & Curran. Associate:
Dated: 15 November 2023
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