Clives & Clives
[2008] FamCAFC 172
•19 November 2008
FAMILY COURT OF AUSTRALIA
| CLIVES & CLIVES | [2008] FamCAFC 172 |
| FAMILY LAW - APPEAL – PROPERTY – SUPERANNUATION – ASSESSMENT OF CONTRIBUTION AND S 75(2) FACTORS – Where appellant husband asserted insufficient weight given to his initial financial contributions – Where appellant husband asserted too much weight given to s 75(2) factors in favour of respondent wife – Where appellant husband asserted trial Judge erred in his assessment of contribution and s 75(2) factors in relation to superannuation – Where appeal against discretionary judgment – Where trial Judge has very wide discretion – Whether error of fact vitiates trial Judge’s assessment of overall contributions – Having regard to trial Judge’s careful assessment of other contributions and given the length of the marriage, the overall assessment was not vitiated – No appealable error regarding the assessment of the non-superannuation pool – Where trial Judge’s assessment of contribution and s 75(2) factors in respect of the superannuation pool was outside the reasonable ambit of his discretion – Where trial Judge failed to consider whether the orders made were just and equitable – Appealable error. FAMILY LAW - RE-EXERCISE OF DISCRETION – Where both parties submit that a re-exercise of discretion is appropriate – Where error demonstrated in only one of the two pools (superannuation) – Whether discretion ought be re-exercised with respect to both pools – Discretion re-exercised with respect to both pools. FAMILY LAW - COSTS – Where appeal successful – Where error on the part of trial Judge demonstrated – Both parties were awarded costs certificates in respect of the costs of the appeal. |
| Family Law Act 1975 (Cth) – s 75(2), s 79, s 90MC |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Coghlan & Coghlan (2005) FLC 93-220 Clauson & Clauson (1995) FLC 92-595 De Winter & De Winter (1979) 23 ALR 211; (1979) FLC 90-605 Garrett & Garrett (1984) FLC 91-539 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 Horsley & Horsley (1991) FLC 92-205 House v The King (1936) 55 CLR 499 Mallet v Mallet (1984-5) 156 CLR 605 Money & Money (1994) FLC 92-485 Norbis v Norbis (1986) 161 CLR 513 Pierce & Pierce (1999) FLC 92-844 Quinn & Quinn (1979) FLC 90-677 Tuck & Tuck (1981) FLC 91-021 Wilkinson & Wilkinson (2005) FLC 93-222 |
| APPELLANT: | Mr Clives |
| RESPONDENT: | Ms Clives |
| FILE NUMBER: | SYF | 3941 | of | 2005 |
| APPEAL NUMBER: | EA | 100 | of | 2007 |
| DATE DELIVERED: | 19 November 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick, Boland and Cronin JJ |
| HEARING DATE: | 13 June 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2007 |
| LOWER COURT MNC: | [2007] FamCA 761 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Eleanor Murphy & Company |
| COUNSEL FOR THE RESPONDENT: | Ms Cleary |
| SOLICITOR FOR THE RESPONDENT: | Taylor Scott |
Orders
The appeal is allowed.
That Order 1 of the orders made by the Honourable Justice Rose on 27 July 2007 be varied by deleting where appearing therein the sum of $212,160.00 and substituting in lieu $244,538.00.
That Order 5 of the orders made by the Honourable Justice Rose on 27 July 2007 be varied by deleting where appearing therein the sum of $93,514.00 and substituting in lieu $81,010.00.
That the Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Clives and Clives is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 100 of 2007
File Number: SYF 3941 of 2005
| Mr Clives |
Appellant
And
| Ms Clives |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Clives and Ms Clives, on the breakdown of their marriage after approximately fifteen years of cohabitation, were unable to resolve arrangements for their two children, and the division of their property. Defended proceedings were heard by Rose J who delivered reasons for judgment in the parenting proceedings on 12 July 2007 and in the property proceedings on 27 July 2007. This is the husband’s appeal against the property orders.
The trial Judge divided the parties’ net assets, other than their superannuation interests, totalling $647,576.00 as to 60 per cent to the wife ($388,545.00) and 40 per cent to the husband ($259,031.00). The parties had sought that the trial Judge deal with their superannuation interests in a separate “pool” to the pool containing their other assets, and to make a splitting order adjusting their superannuation interests. The trial Judge determined that the wife should retain total superannuation of $170,456.00 and the husband retain superannuation of $217,219.00. His Honour achieved that result by making a splitting order in respect of the husband’s interest in favour of the wife with a base amount of $93,512.00 allocated to her.
The Notice of Appeal contains 18 grounds of appeal. Grounds 4, 11, and 12 of the grounds were abandoned. Senior counsel for the husband argued the appeal under a number of topics by grouping various of the grounds, and asserted in summary that the trial Judge was in error:
·in failing to give sufficient weight to the husband’s initial contributions;
·in his finding in respect of the wife’s initial contributions;
·in failing to “add back” the sum of approximately $57,000.00 interest generated from the investment of the proceeds of sale of the matrimonial home which sum was utilised by the wife post separation;
·in weight afforded to factors favouring the wife under s 75(2);
·in his assessment of contribution and s 75(2) factors in respect of the parties’ superannuation entitlements; and
·in failing to make orders which were just and equitable.
Both parties’ counsel agreed that, in event the appeal was upheld, we should re-exercise the discretion on the evidence before the trial Judge without any up-dating material being received by us.
This appeal raises the question of the effects which flow if appealable error is found in respect of one only of the pools (property or superannuation) on the re-exercise of discretion in making an order under s 79 which is just and equitable.
We propose, after outlining relevant background material, to examine the issues raised in the appeal as identified by senior counsel for the husband. We will then, if we determine error has occurred in respect of one or both pools, consider the implications of such error on the re-exercise of the discretion.
Background
At the date of the hearing the husband was aged 49 years and was employed as a project manager.
The wife was aged 38 years and was employed as a police officer on a part-time basis.
The parties commenced cohabitation in 1990. They finally separated on 4 March 2005.
There are two children of the marriage, “K” and “KR” aged respectively 16 years and 13 years at the date of the hearing before the trial Judge. The parties assumed responsibility for the wife’s niece “CR” following that child’s mother’s death and parental responsibility orders were made in the Children’s Court, Lidcombe in the parties’ favour in September 2001. “CR” was aged 6 years at the date of the hearing.
Pursuant to the parenting orders made by the trial Judge, all of the children live with the wife and spend time with the husband. In summary, the two elder children in school terms spend time with the husband each alternate weekend and one weekday evening per fortnight from 5.30 pm to 8.00 pm. Additionally, the elder children spend one half of each school holiday period with the husband and on other special days. “CR” spends time with the husband each alternate Sunday and on other special occasions.
In 1986 the husband purchased in his sole name a property in the Port Stevens area (“the S property”) for a purchase price of $62,000.00. The S property was funded in part by a mortgage advance of $45,000.00.
In 1989 the wife purchased a home unit in the western suburbs of Sydney (“the unit”) for a purchase price of $91,500.00. The trial Judge noted the purchase price was “funded as to $30,000.00 by a combination of her savings and a gift from the maternal grandmother of $10,000.00 and the balance of $76,400.00 by way of a loan”. In 1994 the wife sold the unit for a sale price of $91,500.00 and received net proceeds of sale of $8,500.00.
In September 1996 the husband sold the S property, which was then unencumbered, for a sale price of $135,500.00.
In about 1997 the parties purchased a property in western Sydney (“the matrimonial home”) for a purchase price of $225,000.00. The matrimonial home was funded from the proceeds of sale of the S property and a mortgage advance from the National Australia Bank of approximately $95,000.00.
In early 2004 the matrimonial home, which was by then unencumbered, was sold for a sale price of $519,000.00 and the net proceeds of sale of approximately $506,385.00 were invested in an account in the sole name of the wife.
In February 2004 the parties and the children commenced occupation of rented premises at in western Sydney.
At the commencement of cohabitation the husband had a superannuation entitlement then worth approximately $33,000.00. The trial Judge noted “there is no dispute that the present day value of that initial financial contribution is $71,768.55”. At the commencement of cohabitation the wife had no superannuation entitlements. At the date of the hearing the husband’s superannuation had an agreed value of $310,731.00 and the wife had a superannuation entitlement with an agreed value of $76,944.00.
Shortly after separation the husband received an inheritance of approximately $13,000.00.
Appellate principles
This is an appeal against a discretionary judgment. The restrictions on appellate interference with a discretionary judgment are well known.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
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.
In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, Asquith LJ said at 345:
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 contribution grounds
Grounds 1, 2, 3 which all relate to the question of the trial Judge’s treatment of the parties’ respective initial contributions, as well as ground 5 directed to assessment of post separation contributions, were argued together by the husband’s senior counsel. We propose to examine these grounds in the same grouping adopted by senior counsel.
(a) the trial Judge’s reasons in respect of contributions
In his separate property judgment, the trial Judge having set out the relevant legal principles to be applied in the determination of property settlement proceedings, first made findings about disputed items of property, and then made findings about the pool of assets to be divided between the parties. We will later return to the one challenge raised in respect of the pool as determined by his Honour. His Honour then turned to discuss contributions, setting out in paragraphs 45 to 60 of his reasons the husband’s contributions throughout the parties’ fifteen year cohabitation. No challenge is raised to his Honour’s factual findings about the husband’s contributions.
At paragraphs 58 to 60 of his reasons the trial Judge recorded post separation contributions made by the husband, including payment of child support, and as homemaker and parent having regard to the regular periods of time the children spent with the husband. Earlier in his reasons, at paragraph 55, his Honour noted that the husband had, in 2005, received an inheritance of $12,500.00 from his mother’s estate.
At paragraphs 61 to 67 of the property judgment, his Honour dealt with the wife’s initial contributions. His Honour noted that the wife’s “significant asset at the commencement of cohabitation was [the unit]” and that it was funded as set out in paragraph 7. Paragraph 7 is in the following terms:
In 1989 the wife purchased [the unit] for $91,500.00 funded as to $30,000.00 by combination of her savings and gift from the maternal grandmother of $10,000.00, and the balance of $76,400.00 by way of a loan.
Under the heading “Assessment of Contributions” his Honour explained that his assessment of contribution “must be seen against approximately 15 years of cohabitation including the care and upbringing of [the parties] two children as well as CR”. His Honour thereafter said:
Having regard to the findings I have made, it is clear that the husband’s financial contributions whether direct or indirect exceeded those of the wife. (paragraph 70)
His Honour then directed his attention to the issue of the husband’s initial contributions and said at paragraphs 71 and 73:
The husband’s initial financial contributions included his equity in the [S property] of no less than $52,000.00 and within a year following commencement of cohabitation he received termination pay from his employer of $8,000.00 in cash and superannuation entitlements. However, the latter will be taken into account in terms of the parties respective contributions to their superannuation entitlements for the purpose of making superannuation splitting orders as sought by each of them.
…
The [S property] had its benefit to the parties not only because it was an initial financial contribution of the husband but also as it was occupied by the parties for a substantial period of time and then sold in 1996 for $135,000.00 unencumbered. That amount represented the majority of the funding of the subsequent purchase of the former matrimonial home. [footnote omitted]
The trial Judge in paragraph 75 in footnote 7 referred to Pierce & Pierce (1999) FLC 92-844 at 85,881. We will return shortly to refer to the relevant passages in Pierce.
In considering the wife’s initial contributions the trial Judge said:
The wife for her part made a significant initial financial contribution represented by her equity of about $30,000.00 in [the unit].
[The unit] was subsequently utilised by the wife in part to generate income through rent which helped defray the outgoings but also when it was used by the parties for family occupation. It was sold in 1994 resulting in net proceeds of sale of about $8,500.00. (paragraphs 79-80)
His Honour found at paragraphs 85 and 86:
The husband made significantly greater financial contributions than the wife due to the equity that he had in the [S property], its subsequent use by the parties, the proceeds of sale that were generated in 1996 and the large proportion of the purchase price of the former matrimonial home funded by those sale proceeds.
In addition, the husband’s financial contributions included the receipt in about 1991 of $8,000.00 from his employer and in 2005 of $12,000.00 as a beneficiary of his late mother’s estate. All of his financial contributions well exceeded the financial contributions made by the wife.
At paragraph 89 of his reasons, his Honour explained:
I have given considerable weight to the primary financial contributions of the husband in accordance with Pierce and Pierce. It must be remembered that it is well established that in a lengthy marriage contributions cannot always be calculated mathematically. [footnote omitted]
and then went on to note that the husband’s financial contributions needed to be balanced against the primary contributions of the wife in her role of homemaker and parent.
At paragraph 92 of his reasons, the trial Judge set out his conclusions on contribution, and made findings that the parties’ respective contributions “to their net property, excluding superannuation entitlements, as being 55% in favour of the husband and 45% in favour of the wife”.
(b) counsel’s submissions
Senior counsel for the husband submitted that “a 5% adjustment in the Husband’s favour is inadequate having regard to the Husband’s initial contributions” (husband’s submissions paragraph 3 page 2). He then submitted that the net proceeds of sale of the S property represented 60 per cent of the purchase price of the matrimonial home when acquired by the parties in 1996. He further submitted that the husband’s contributions “were in no way matched by the Wife”. In his oral submissions, senior counsel for the husband asserted that his Honour had, contrary to authority, failed to consider the use made by the parties of the husband’s initial contributions.
Senior counsel for the husband asserted that the trial Judge had “made an error of fact which led him to overstate the Wife’s initial contributions” (husband’s submissions paragraph 9 p 4) because the wife’s unit which, was sold in 1994, realised $91,500.00, and was encumbered by a mortgage of $82,609.23 at the time of sale thus resulting in no effective profit being made on the sale.
Whilst acknowledging paragraph 79 of his Honour’s reasons (which we have set out above) may contain an error of fact in asserting the wife’s equity in the unit was about $30,000.00, her counsel argued in her written submissions that this was not a material error of fact, but rather the correct finding was that the wife had brought about $30,000.00 to the relationship, and that some of her funds were used to purchase the unit, and some part of the funds to purchase furniture. However, in her oral submissions, counsel for the wife conceded that, having regard to the wife’s evidence that the unit cost $91,500.00 and she borrowed $76,400.00 to complete the sale, her equity in the unit could not have exceeded approximately $15,000.00, and that in addition she had some furniture.
Senior counsel for the husband also asserted that although the trial Judge had referred to the husband’s post separation inheritance (asserted to be $13,647.00), he had failed to take this contribution into account in his overall assessment of the parties’ contributions.
The wife’s counsel submitted that the parties had both derived a benefit from, at particular periods during the early years of their cohabitation, occupation of the unit and the S property. She submitted that the overall 10 per cent differential made by the trial Judge on his contribution assessment was within the reasonable ambit of his Honour’s discretion.
Discussion
It is convenient for us to commence our discussion by considering whether the error of fact, acknowledged by the wife’s counsel, made by the trial Judge in respect of the wife’s initial contributions, vitiated his Honour’s exercise of discretion in his overall assessment of the parties’ contributions.
In De Winter and De Winter (1979) 23 ALR 211; (1979) FLC 90-605 the High Court considered the circumstances in which a material error of fact can constitute appealable error. Gibbs J explained at 217:
…It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597, both Latham CJ, at p 600, and Rich J, at p 604, cited from the judgment of Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 526 ; [1943] 2 All ER 76 at 79: “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court's discretion will have been exercised on wrong or inadequate materials. …” … It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.…
As the trial Judge noted in paragraph 89 of his reasons, the exercise of assessing contributions in a lengthy marriage is generally not one to be calculated mathematically.
In this case, his Honour was assessing contributions made over a marriage of 15 years duration. It appears to us, having regard to his Honour’s recognition of the disparity in the parties’ initial contributions, and his careful consideration of other contributions, that the mistake of fact about the wife’s equity in the unit has not affected the contribution assessment, and does not constitute appealable error.
We turn then to the separate question of whether his Honour failed to give sufficient weight to the husband’s initial contributions. The question of weight to be given to initial contributions is comprehensively dealt with by the Full Court in Pierce v Pierce. There the Full Court set out the relevant principles to be applied when considering disparate initial contributions. At paragraphs 25-27 Ellis, Baker and O’Ryan JJ discussed earlier authorities on initial contributions, which authorities referred to the “erosion” of initial contributions. Their Honours, at paragraph 27, referred to the judgment of Fogarty in Money and Money (1994) FLC 92-485, and at paragraph 28, said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…
We accept that the task to be undertaken by a trial Judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise. (See Quinn & Quinn (1979) FLC 90-677, Tuck & Tuck (1981) FLC 91-021; (1979) 7 Fam LR 492, Garrett & Garrett (1984) FLC 91-539, Horsley & Horsley (1991) FLC 92-205; (1991) 14 Fam LR 550 and Clauson & Clauson (1995) FLC 92-595 at 81,909 – 81,910.)
In Norbis v Norbis (1986) 161 CLR 513 Mason and Deane JJ said at 522:
In G and G, a case decided after Mallet and the decision of the Full Court in the present case, Nygh J. expressed his agreement with the proposition “that it cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item”.
…
In this respect we agree with the comment of Nygh J. in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them. [footnotes omitted]
In Mallet v Mallet (1984-1985) 156 CLR 605, Mason J said at 625:
The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court “shall take into account” these factors imposes a duty on the court to evaluated them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under paras. (a) and (b) of sub-s. (4), difficult though that may be in some cases.
In this case his Honour assessed the parties’ contributions to their net non-superannuation assets of $647,576.00 as to 55 per cent or $356,166.00 to the husband, 45 per cent or $291,409.00 to the wife, a differential of $64,757.00.
We reject the proposition that his Honour failed to have regard to the use made by the parties of the S property both as their home, and providing the substantial capital applied to the purchase of the matrimonial home, and note his Honour’s consideration of these matters in paragraph 85 of his reasons. We discern this complaint is really directed to the weight his Honour gave to these matters.
Whilst other judges may have awarded a greater percentage in the exercise of their discretion in favour of the husband for his contributions, including his initial contributions, we are satisfied that his Honour’s assessment was, albeit at the lower end of the range, not outside the reasonable ambit of his discretion. Accordingly we find no merit to the challenges to his Honour’s contribution assessment of the non-superannuation pool.
Asserted error in failure to “add-back” the sum of $57,831.00 interest
Trial judge’s treatment of the asserted “add-back”
The trial Judge, at paragraph 27 of his reasons, referred to the sum of $57,831.00, the quantum of which sum was not in dispute, and represented interest retained by the wife on a net basis after an allowance had been made for tax paid, being interest earned on the net proceeds of sale of the matrimonial home.
His Honour explained the reason the amount had been deposited into an account in the sole name of the wife was to minimise tax, it being agreed at the relevant time that the wife’s income was less than that of the husband. His Honour then went on to explain how, when the wife realised that she bore the burden of tax on the invested amount, and that the investment resulted in her receiving reduced government benefits and child support, a dispute had arisen between the parties. His Honour went on to note the husband’s contention that as the sum had been retained by the wife it should be “added-back” to the pool to be divided. His Honour also explained the wife’s case, namely that the sum should not be “added-back” because the funds had been utilised to meet “a variety of living expenses for herself and the children as well as some of their particular expenditure such as new school uniforms for [K and KR]”.
The trial Judge referred to the wife’s evidence of the effect of the increased income, including a reduction in child support, periods in which no child support was payable, and the fact that the wife had become liable for a refund of child support. Having referred in some detail to the evidence of the wife his Honour said (at paragraph 38):
There was little, if any, challenge of substance to the evidence of the wife. The evidence contained in the wife’s affidavits was given in a detailed, plausible manner and in those circumstances I accept it and make findings accordingly.
His Honour rejected the submission that the funds received by the wife constituted a premature distribution of property which was not expended for appropriate purposes. In the exercise of his discretion his Honour determined that the sum of $57,831.00 should not be included as notional property for the purposes of the calculation of the parties’ net assets.
In written submissions filed on behalf of the husband by his junior counsel it was submitted it was within the trial Judge’s discretion “to add-back monies spent on living expenses” and that “His Honour should have declined to add back the $57,831” (Husband’s submissions, p 7, paragraph 20).
It appears to us that what is intended by this submission is an acknowledgement that it was within the trial Judge’s discretion whether to add-back moneys spent on living expenses and that his Honour should have “added back” the interest received by the wife. It was further submitted that “the Wife’s evidence was so flimsy as to be incapable of supporting” the relevant findings of fact made by the trial Judge. We do not agree with that submission.
The wife dealt with the effect of the receipt of the income in paragraphs 59-64 of her affidavit sworn 13 July 2006. In addition, the wife relied on evidence in chief in an updating affidavit sworn 5 April 2007 (paragraphs 120-136). The wife annexed copies of her income tax returns for the year ended 30 June 2006, together with documents received by her from the Family Assistance Office. This material supported the findings made by the trial Judge.We are satisfied there was no error of discretion by his Honour in refusing to add-back the interest received by the wife and accordingly we find no merit in this ground.
Whilst not argued orally before us by the husband’s senior counsel, the husband relied on written submissions prepared by his junior counsel in respect of grounds 6, 8 and 10. Those grounds respectively challenge rulings on evidence made by his Honour during the course of the hearing. Nothing in the written submissions supports a finding of error of law by the trial Judge in respect of his evidentiary rulings and we find no merit in any of these grounds which we note were not agitated with any vigour before us.
Asserted error in assessing relevant s 75(2) factors
The husband raised a single challenge to his Honour’s assessment of relevant s 75(2) factors. That challenge was directed to an asserted error of discretion by the trial Judge in giving undue weight to the wife’s care of the child, CR and asserted inadequate weight given to the carer’s payment received by the wife of $210.00 per week.
His Honour dealt with relevant matters under s 75(2) in paragraphs 93-114 of his reasons for judgment. Having considered those matters his Honour determined there should be an adjustment in the wife’s favour of 15 per cent of the non-superannuation assets, and based his reasons for such adjustment on the following factors:
·the wife having the primary care of the two children of the marriage;
·the wife having the primary care of CR;
·the disparity in the parties’ present and likely future incomes;
The adjustment made in the wife’s favour was 15 per cent or $97,136.00. Whilst the adjustment in the wife’s favour may also be considered at the more generous end of the range, (particularly when regard is had to his Honour’s treatment of the superannuation entitlements), we are not satisfied that it was outside the reasonable ambit of his Honour’s discretion. We do not discern any undue weight placed by the trial Judge on the wife’s care of CR but rather it was one of the relevant factors considered by the trial Judge when making the s 75(2) adjustment. It is clear from paragraph 102 of his Honour’s reasons that he specifically took into account when considering both parties’ incomes that the wife’s income included the sum of $210.00 per week received by way of government payment for CR. Accordingly we consider there is no merit to this challenge.
The superannuation grounds
It is not a matter of controversy that the parties sought that the trial Judge deal with assessment of contribution and consideration of s 75(2) factors relevant to their respective superannuation entitlements discretely.
Senior counsel for the husband submitted that the trial Judge had erred in his treatment of the parties’ respective superannuation entitlements in the following areas. He asserted that the trial Judge had:
·failed to give adequate weight to the husband’s pre-cohabitation superannuation which had an agreed value at the date of the hearing of $71,768.55;
·failed to assess the impact of reducing the husband’s superannuation by $93,514.00 having regard to the husband’s age at the date of hearing;
·failed to identify s 75(2) factors in respect of the husband’s entitlement which, by deduction, appeared to have been 15% of his entitlement;
·not explained the basis for his assessment of the wife’s contributions and s 75(2) factors in respect of her entitlement;
·failed to take into account the husband’s superannuation had increased by $122,000.00 in the post separation phase; and
·failed to consider the disparate ages of the parties (the husband being aged 49 years at the date of the trial and the wife aged 38 years).
Trial Judge’s treatment of the parties’ superannuation
Having dealt with the parties’ contributions to their non-superannuation assets and considered relevant matters under s 75(2) his Honour then turned to consider the question of superannuation splitting orders sought by the parties. There was no dispute before his Honour about the valuation of the parties’ superannuation entitlements. His Honour noted that submissions were made on the husband’s behalf to exclude from his calculations the husband’s pre-cohabitation superannuation at its present day value. His Honour went on to record, at paragraph 132:
Ultimately, it was clear that the real issue was the weight to be attributed to the initial financial contribution made by the husband to his superannuation entitlements and its current value.
His Honour then explained in making a splitting order he was required to make findings about the parties’ respective contributions and relevant s 75(2) matters (referring to the decision in Coghlan and Coghlan (2005) FLC 93-220). His Honour determined he would assess contributions to the parties’ separate superannuation entitlements rather than considering their respective contributions on a global basis.
Having discussed the manner in which he proposed to determine contributions by each of the parties to their respective superannuation entitlements, his Honour noted that the husband’s initial contributions to his superannuation fund represented 23 per cent of its agreed value of $310,731.00 (paragraph 141).
At paragraph 143 of his reasons the trial Judge noted he “had also made findings in respect of the relevant matters pursuant to s 75(2)” and went on to say, at paragraph 144:
It is clear that so far as the husband’s superannuation fund is concerned, his contributions exceeded those of the wife. However, the wife made indirect financial contributions. In addition, my assessment of relevant s75(2) matters leads me to conclude that an adjustment should be made in the wife’s favour.
Earlier in his reasons when discussing matters relevant to s 75(2) the trial Judge referred to each of the parties’ Financial Statements noting the disparity in their earnings ($107,765.00 earned by the husband and the wife’s remuneration from part-time employment in the Police Force). His Honour noted that the wife’s evidence was that if she worked full time her income would be $55,000.00. Of significance to this challenge to his Honour’s reasons were his findings at paragraph 120 and 121. There his Honour said:
A further consequence is that the wife’s current and future income is significantly less than that of the husband and is likely to remain at that lower level for the foreseeable future.
A further financial consequence is that it inevitably follows that the employer superannuation contributions for the wife will be much less than that for the husband with potentially less security for her by way of superannuation.
His Honour, at paragraph 145 of his reasons, said:
Accordingly, the principles to which I have made earlier reference so far as the weight that should be given to contributions and rejection of the pure mathematical approach, lead me to conclude that there will be orders that reflect 60% in favour of the husband and 40% in favour of the wife. That has the result in terms of the value of the husband’s superannuation entitlement value being apportioned in the sum of $186,438.00 in his favour and $124,292.00 in favour of the wife.
At paragraph 149 of his reasons the trial Judge summarised his findings on contributions by the wife to her superannuation entitlements and, it appears referring to the earlier assessment made by him of matters under s 75(2), concluded she had an entitlement to 60 per cent of her fund. His Honour said:
Having regard to the lengthy period of cohabitation, the parties’ relevant contributions, the subject of earlier findings, and the assessment made by me of s75(2) matters which favour the wife, I have concluded that it is just and equitable that the orders reflect the proportion of 60% in favour of the wife and the remaining 40% in favour of the husband. That translates into the amount of $46,166.00 attributed to the wife and the remainder of the value of superannuation accorded to the husband.
The trial Judge then produced a table in which he set out calculations to demonstrate how the wife should receive an adjustment from the husband’s superannuation by way of a splitting order in the sum of $93,514.00. We now reproduce that table:
Husband’s superannuation $310,731.00 40% to wife 124,292.00 Wife’s superannuation 76,944.00 60% to wife 46,166.00 Total 170,458.00 Less: Wife retains the whole of her superanuation [sic] 76,944.00 Balance (base amount) 93,514.00 (paragraph 150) [original emphasis]
Discussion
At paragraph 63-64 of the reasons for judgment in Coghlan (supra) the majority (Bryant CJ, Finn and Coleman JJ) set out the preferred approach in determination of property settlement cases which involve a superannuation interest if a splitting order is (as in this case) sought. It is useful that we set out those paragraphs:
63. However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
64. Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.
Before us senior counsel for the husband submitted that, although not expressly set out in his Honour’s reasons, having regard to the overall assessment of the husband’s entitlements at 60 per cent it must be inferred that his Honour initially assessed the husband’s contribution to his superannuation entitlements at 75 per cent to the husband and 25 per cent to the wife and then made an adjustment of 15 per cent under s 75(2).
From our examination of his Honour’s reasons we discern that he assessed contributions and the relevant s 75(2) adjustment in the parties’ respective funds on the following basis:
Husband’s total superannuation $310,731.00
Contribution 75% $233,048.25
Less 15% (s 75(2)) $46,609.65Husband’s entitlement his fund $186,438.00
Wife’s total superannuation $76,944.00
Contribution 45% $34,624.80
Plus 15% (s 75(2)) $11,541.60Wife’s entitlement her fund $46,163.40
Wife’s entitlement husband’s fund $124,293.00
Husband’s entitlement wife’s fund $30,781.00
Adjustment Husband to Wife $93,512.00
Although senior counsel for the husband submitted we should find appealable error by the trial Judge in respect of his treatment of the parties’ superannuation and re-exercise the discretion, he did not articulate what would be an appropriate adjustment to be made to the superannuation interests.
Whilst his Honour indicated he would deal separately with each party’s superannuation entitlement, his Honour did not explain the basis on which he assessed the wife’s (or the husband’s) contribution to her fund. Having regard to his Honour’s reasons in paragraph 149, we infer from his reasons, and as set out in our calculations above, that his Honour assessed the wife’s contributions to her fund at 45 per cent and included a 15 per cent adjustment for relevant s 75(2) factors, or perhaps that her contributions to her fund should be assessed at 60 per cent and no adjustment made under s 75(2). If the latter was the basis of his Honour’s determination then there is no explanation as to why he found the wife’s contributions exceeded those of the husband by a 20 per cent differential, it not being in dispute that the wife’s superannuation was acquired during the course of the parties’ cohabitation (see annexures to the report of the single expert, Mr Stephen Bourke).
As a result of the trial Judge’s overall determination the parties’ superannuation and non-superannuation assets were divided between them as to 54 per cent to the wife and 46 per cent to the husband as follows:
Husband’s non-superannuation assets:
40% = $259,030.00
Husband’s adjusted superannuation $217,219.00
$476,249.00Wife’s entitlement 60% $388,546.60
Plus adjusted superannuation $170,456.00
$559,002.00$1,035,251.00
We consider there is merit in a number of the submissions made by senior counsel for the husband in respect of the trial Judge’s treatment of the parties’ superannuation interests.
We consider his Honour gave appropriate weight to the husband’s greater pre and post cohabitation contributions to his fund, including his post separation contributions of $122,000 in his contribution assessment. But we consider his Honour gave insufficient weight to the disparity in the parties’ ages (and as a consequence the number of years until the likely retirement of each party).
His Honour failed to explain the basis of his assessment of the parties’ respective contributions to the wife’s fund or any particular factor relied on under s 75(2) to be adjusted from her fund.
Of crucial significance in our view was the failure by his Honour, when dealing with relevant matters under s75(2), to consider the quantum of the splitting order he proposed to make in the wife's favour (see Wilkinson & Wilkinson (2005) FLC 93-222 at paragraphs 37-39) namely that the wife's superannuation entitlement would increase from $76,944 to $170,456 and the husband's entitlement reduce from $310,731 to $217,219. We are satisfied this omission constitutes appealable error.
The lack of consideration of the effect of the proposed splitting order is, as we will shortly discuss, further exacerbated by the failure of the trial Judge to consider the overall justice and equity of the orders he proposed to make.
We are satisfied that the trial Judge’s assessment of contributions and relevant s 75(2) factors in respect of the superannuation pool was outside the reasonable ambit of his discretion and constitutes appealable error. We are also satisfied that his Honour fell into error in failing to consider whether the effect of his determination of both pools resulted in an order to be made under s 79 which was just and equitable.
Re-exercise of the discretion
Both parties sought we should re-exercise the discretion on the facts as found by the trial Judge and without any updating evidence in relation to valuation of assets and liabilities. We have already set out, earlier in these reasons, the relevant background history of the parties’ contributions.
Does the appealable error in determining the appropriate base amount in the splitting order require re-exercise of discretion in respect of the non superannuation pool?
We did not have the benefit of any argument on this topic, as the husband’s position was that the trial Judge was in error in his assessment of contribution and s 75(2) factors in respect of both pools (non superannuation assets and superannuation).
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; (2003) 30 Fam LR 355 the Full Court at paragraphs 44 to 48 explained that there can only be one property order under s 79, which order has the effect of “disposing of all issues relating to the disclosed property of the parties”. The Full Court there considered the effect of adjusting superannuation interests but did not consider it necessary to determine whether or not superannuation was property as defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”). In a subsequent Full Court (Coghlan) the majority (Bryant CJ, Finn and Coleman JJ) explained that s 90MC merely gave a court, when determining proceedings under s 79, jurisdiction to also make a splitting order of the parties’ superannuation interests. Significantly for present purposes the majority said at paragraph 44:
However s 90MS(1) does have the effect, in our view of requiring that in a case where the Court intends to make orders in relation to superannuation interests of the spouses, it must do so “under” s 79 (although s 90MS(2) makes it clear that the Court cannot make an order in relation to a superannuation interest except in accordance with Part VIIIB). In other words, the Court must apply to superannuation interests the matters to be taken into account under s 79.
In dealing with the practical implications of their interpretation of the legislation in Part VIIIB, their Honours, at paragraphs 63 and 64, noted nothing prevented a court from treating the parties’ superannuation interests as an item of property, and then went on to discuss how a trial Judge should determine the adjustment, if any, to be made by way of a splitting order if the superannuation interests were considered separately. We have earlier in these reasons set out paragraphs 63 and 64 of Coghlan.
It appears to us that, although the majority in Coghlan (similarly to the Full court in Hickey) did not expressly determine whether a superannuation interest was property, but rather determined superannuation interest was generally not an interest which was to be adjusted as property under s 79, because it was to be considered or adjusted at the same time as also determining property entitlement, the statutory provisions and principles applicable to adjustment of property under s 79 should be applied.
Further it is clear from the majority’s decision that, in determining whether an adjustment of property interests under s 79 is just and equitable, for that process to be properly carried out, consideration must be given to the overall effect of the adjustment of the non superannuation assets and also consideration of the superannuation splitting order.
It appears to us that it would be somewhat artificial to determine that when a party's superannuation interest is treated as property, and included in one list of assets and liabilities, and a trial Judge errs in respect of one aspect of the structured discretion undertaken in the four step approach in respect of that pool, notwithstanding the overall result is considered correct, for that determination to be subject of a different set of criteria on appeal to one where the superannuation is considered in a separate pool.
In this case the orders under appeal are Orders 1 to 3 (the property orders) and Orders 4 to 8 inclusive (the superannuation splitting orders). As presently advised, and again noting we have not had the benefit of argument on this topic, we consider that if appealable error is established in respect of the superannuation pool of assets, given that any adjustment made by way of splitting order must be considered as part of the exercise of discretion in ensuring that the adjustment of property interests under s 79 are just and equitable, if we are to set aside a splitting order and make a different order, we ought also exercise an independent discretion in respect of the non-superannuation assets.
Determination of the property pool
The only substantial challenge before the trial Judge to the pool of non-superannuation assets was the submission by the husband’s senior counsel that the trial Judge should have “added back” the sum of approximately $57,000.00 received by the wife by way of interest.
We do not find it is appropriate to “add back” this sum as a premature distribution of assets. We are satisfied the wife provided sufficient evidence to show she had used the funds for reasonable living expenses and that the investment of the funds in her sole name had reduced her entitlement to government benefits and child support for which the husband was liable.
Accordingly, we determine that the assets and liabilities of the parties are as found by the trial Judge and which we now set out:
Assets
H/W/J
Savings, proceeds fmh in bank
J
$585,751.00
Toyota motor vehicle
H
$8,500.00
Commodore motor vehicle
W
$4,700.00
IAG shares
W
$6,944.00
Bike, tools, furniture
H
$5,000.00
Jewellery, camera, furniture
W
$1,000.00
Bank ANZ
H
$4,300.00
Bank NAB
W
$403.00
Bank NAB
W
$8.00
Cash in hand
W
$804.00
Legal fees paid
H
$29,071.00
Legal fees paid
W
$8,500.00
TOTAL Assets
$654,981.00
Less Liabilities
PAYG tax liability
W
$6,993.00
NAB Visa
W
$412.00
TOTAL Liabilities
$7,405.00
NET PROPERTY
$647,576.00
Superannuation
M Solutions
H
$310,731.00
F Super
W
$37,881.00
T Super Rollover
W
$39,063.00
TOTAL Superannuation
$387,675.00
Initial contributions
The husband made an initial contribution of his unquantified equity in the S property which had been purchased in 1986 some four years prior to the parties’ commencement of cohabitation for a purchase price of $62,000.00. At the commencement of cohabitation the mortgage on the S property was found by the trial Judge to be less than $10,000.00. We accept that the husband had an equity of not less than $52,000.00 in the property at the commencement of cohabitation.
In addition the husband had a superannuation interest which had a then value of approximately $33,000.00. At the commencement of cohabitation the wife had an equity in the unit not exceeding $15,000.00 and some furniture. We accept that the parties used both the unit and the S property at various periods to provide a residence for them. We accept the disparity in the parties’ initial contributions requires adjustment in the husband’s favour, particularly having regard to the subsequent use of that property both as a residence for the parties and providing the substantial capital to fund the purchase of the matrimonial home.
The husband throughout cohabitation, except for a period of several months when he was engaged in part-time casual employment, provided his earnings for the benefit of the family. We accept that the husband also made a contribution to the welfare of the family, albeit that contribution was not as significant as that made by the wife. Post separation the husband continued to contribute to the welfare of the family. He paid child support and has provided care for the children on a regular basis in accordance with court orders. The husband also received the benefit of an inheritance of approximately $13,000.00 shortly prior to or after the parties’ separation.
In addition to the wife’s initial contributions, in November 2000 she received a final termination payment of $12,796.29. She provided the predominant parenting role and made a substantial contribution to the family in her homemaker role. The wife during cohabitation and post separation applied her part-time income to meeting living expenses as well as financial support for the children.
Weighing and balancing the parties’ many contributions throughout their 15 year relationship we find that their contribution based entitlement should be assessed at 60 per cent in favour of the husband and 40 per cent in favour of the wife, that is, the husband’s contribution based entitlements represents a 20 per cent differential or $129,512.00.
Section 75(2) factors
We consider the relevant matters to be taken into account in the re-exercise of discretion in respect of factors relevant under s 75(2) so far as the parties’ non-superannuation asset pool is concerned, having regard to the factual findings of the trial Judge, to be first the wife’s responsibility for the care of the children of the marriage, at least for the next four years.
Secondly, the wife has day to day responsibility for the care of CR who is only eight years of age having been born on 8 September 2000. Additionally, we have regard to the significant difference in the parties’ incomes as found by the trial Judge. We are satisfied these factors justify an adjustment in the wife’s favour of 15 per cent or $98,247.00 of the non-superannuation assets.
Conclusion – non-superannuation assets
As a result of our contribution assessment and adjustment pursuant to s 75(2) the wife will receive 55 per cent of the non-superannuation assets of $356,167.00 and the husband will receive 45 per cent of those assets or $291,409.00.
Assessment of contribution to superannuation and consideration of s 75(2) in respect of the parties’ superannuation entitlements
The evidence before the trial Judge was not in dispute. At the commencement of cohabitation the husband had a superannuation interest having a value of approximately $33,000.00 which, at the date of the trial, was valued by the single expert as having a present day value of $71,768.55.
Neither party made submissions to us as to whether we should treat the parties’ superannuation interests in the same manner as the non-superannuation assets, that is, a global assessment of contributions and relevant s 75(2) factors or whether we should deal with their separate superannuation entitlements on an “asset by asset” basis. Consistent with the approach taken to the trial Judge, we propose to deal with each party’s fund on an “asset by asset” basis.
(a) husband’s superannuation
We are satisfied there is little difference in assessing the parties’ contributions to the husband’s fund whether we give significant weight to his initial contributions and otherwise assess the parties’ contributions during cohabitation and post separation, which, as we will shortly explain, we are satisfied were equal, or whether we deduct from the husband’s entitlements the present value of his pre-cohabitation superannuation and assess contributions to the superannuation acquired during cohabitation.
We assess the husband’s contributions to his superannuation fund to be approximately 62 per cent or $191,249.00 and the wife’s indirect contributions to be approximately 38 per cent. In so determining, we have regard to the wife’s unchallenged evidence about the manner in which the parties agreed superannuation would be acquired by the husband for their joint benefit (Wife’s affidavit sworn 13 July 2006, paragraph 43), the husband’s direct financial contributions and the wife’s indirect contributions by way of homemaking responsibilities which freed the husband to participate in full-time work.
Post separation there was a significant increase in the husband's superannuation entitlement (see report of Mr. Stephen Bourke dated 18 May, 2007 page 7). The basis of that increase is not explained by the husband. In his affidavit of evidence in chief filed 14 July, 2006 the husband makes no reference to his superannuation. In cross-examination the husband gave evidence that he contributed "the basic amount" to his superannuation (transcript 11 April, 2007 page 96). We are hindered by the paucity of evidence from the husband in assessing his post separation contributions. However, we take into account that post separation the wife continued her role as primary carer of the children, and that as a result of the agreement between the parties to invest the net proceeds of sale of the matrimonial home, the husband’s child support obligations were reduced prima facie providing him greater capacity to make contributions to his superannuation.
In considering relevant factors under s 75(2) we note that the husband, by reason of his age, has a shorter working life expectancy than the wife (the husband being aged 49 years at the date of trial and the wife 38 years). We balance that factor against the husband’s present higher earning capacity to that of the wife.
We also take into account that, pursuant to our orders, the wife will have immediately available to her a capital entitlement retaining approximately $50,000.00 more from the net proceeds of sale of the matrimonial home than the husband and that she will receive additional superannuation by way of a splitting order of approximately $81,000.00. In all of these circumstances, we do not find any adjustment should be made under s 75(2) to the husband’s superannuation entitlements in favour of the wife.
(b) wife’s superannuation
By contrast to the husband, the wife’s superannuation contributions commenced during the marriage. Having regard to the roles performed during the marriage and post separation which we discussed above (and taking into account the wife had the exclusive benefit of $57,831 for living expenses which must have assisted her to maintain her superannuation contributions), we assess the parties’ contributions to the wife's superannuation to be equal.
We regard the same factors in considering any s 75(2) adjustment to the wife’s superannuation as were relevant to consideration of the husband’s superannuation entitlements, and do not find any adjustment is warranted.
Conclusion - superannuation
Accordingly, we find that the husband should retain superannuation entitlements to the value of $191,249.00 and the wife should retain her existing superannuation entitlements and a splitting order in the sum of $81,010.00 be made from the husband’s superannuation fund to adjust the parties’ superannuation interests.
Are the orders just and equitable?
The composition of the non superannuation assets to be retained by each of the parties will be as follows:
Husband will retain:
Toyota motor vehicle $8,500.00
Bike, tools, furniture $5,000.00
Bank – ANZ $4,300.00
Legal fees paid $29,071.00
Part funds jointly held in bank account $244,538.00Less Liabilities: Nil
Net property $291,409.00Wife will retain:
Commodore motor vehicle $4,700.00
IAG shares $6,944.00
Jewellery, camera, furniture $1,000.00
Bank – NAB $403.00
Bank – NAB $8.00
Cash in hand $804.00
Legal fees paid $8,500.00
Part funds jointly held in bank
account $341,213.00Less liabilities:
PAYG tax $6,993.00
NAB Visa card $412.00 $7,405.00
Net property $356,167.00
As a result of our determination the husband will retain:
Non superannuation assets $291,409.00
Superannuation $229,721.00
$521,130.00and the wife will retain:
Non superannuation assets $356,167.00
Her superannuation entitlements $76,944.00
Superannuation splitting order $81,010.00$514,121.00
with the result that the parties’ overall division of assets will be approximately equal. Both parties will have a capital base to re-establish themselves with that of the wife exceeding the husband, and each retain a significant superannuation base to build on for retirement.
Overall we are satisfied that this distribution represents a just and equitable order under s 79 of the Act.
Costs
We received submissions on costs at the conclusion of hearing the appeal. Both parties sought in the event the appeal was allowed, we should grant certificates pursuant to the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth). We are satisfied that the appeal has succeeded on a question of law and that, in the exercise of our discretion, it is appropriate we grant certificates as sought.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 18 November 2008
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