Cornett & Hext
[2021] FedCFamC1A 90
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cornett & Hext [2021] FedCFamC1A 90
Appeal from: Cornett & Hext (No. 4) [2021] FamCA 289 Appeal number(s): SOA 36 of 2021 File number(s): MLC 5714 of 2018 Judgment of: AUSTIN, BERMAN & HARPER JJ Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final property settlement orders – Adequacy of reasons – Whether primary judge erred in treatment of add back amounts – Whether primary judge failed to take account of ongoing medical expenses – Matters not argued at trial – Whether result just and equitable – No error demonstrated – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(4), 117(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Aldi Foods Pty Ltd v MoroccanoilIsrael Ltd (2018) 261 FCR 301; [2018] FCAFC 93
Cassidy & Murray (1995) 124 FLR 267; [1995] FamCA 91
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Harris & Dewell (No 2) (2018) FLC 93-863; [2018] FamCAFC 180
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Ridehalgh v Horsefield [1994] Ch 205
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
S.S. Hontestroom v S.S. Sagaporack [1927] AC 37
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Wen & Thom [2010] FamCAFC 81
Number of paragraphs: 73 Date of hearing: 12 November 2021 Place: Heard in Melbourne (via video link), delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Kenna Teasdale Lawyers ORDERS
SOA 36 of 2021
MLC 5714 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CORNETT
Appellant
AND: MR HEXT
Respondent
ORDER MADE BY:
AUSTIN, BERMAN & HARPER JJ
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The wife pay the husband’s costs fixed in the sum of $10,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornett & Hext has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BERMAN & HARPER JJ:
On 13 May 2021, a judge of the Family Court of Australia (as it then was) made final orders determining parenting and property adjustment proceedings between Ms Cornett (“the wife”) and Mr Hext (“the husband”).
The parenting orders concern the parties’ three children. No appeal is brought in relation to those orders.
As for the property adjustment orders, the primary judge assessed the parties’ contributions as 75 per cent to the husband and 25 per cent to the wife, but in taking into account the matters to which s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) refers, adjusted the wife’s entitlement by 5 per cent. This led to an apportionment between the parties with 70 per cent to the husband and 30 per cent to the wife in respect of non-superannuation assets, and equalisation of the superannuation. There was an overall distribution of the asset pool with 32.5 per cent to the wife and 67.5 per cent to the husband. Orders were made to give effect to this assessment. The wife, who is the appellant, challenges those final orders of 13 May 2021.
BACKGROUND
It is helpful to set out some of the factual background of this matter in order to give context to the issues agitated on appeal. This background summary is derived from the reasons for judgment of the primary judge.
The parties commenced their relationship in 2002, began cohabiting in 2004, and married in 2008.
On 5 April 2005, the parties purchased a property in Suburb BB for $535,000 (“the Suburb BB property”). The husband paid a 5 per cent deposit of $26,750 from his savings, and upon settlement, applied a further $30,000 from his savings. The balance of the purchase price was funded by a joint mortgage from the Commonwealth Bank of Australia in the amount of $500,000.
Between September 2011 to February 2012, the husband received an inheritance of $799,836 which was applied as follows:
(a)$5,000 gifted to CC Company;
(b)$92,000 applied to reduce the mortgage over the Suburb BB property; and
(c)$700,000 placed in a DD Bank account in the wife’s name.
In 2012, the parties purchased the former matrimonial home at EE Street, Suburb FF for $2.5 million (“the Suburb FF property”). A 10 per cent deposit of $250,000 was paid from the husband’s inheritance into the wife’s bank account. At settlement, a further $270,000 was applied from the husband’s inheritance, followed by a further $100,000, which the husband received from NAB as a bonus. The balance was funded by a joint mortgage.
Settlement of the sale of the Suburb BB property took place on 6 June 2012. The property was sold for $807,000, with the net proceeds of sale being $653,796. $650,000 was applied to reduce the mortgage over the Suburb FF property to $1,036,000.
In November 2017, the wife commenced a part-time job in marketing, working three days a week with a pro rata salary equivalent to $150,000 per annum. She maintained this employment for four months. The wife remained unemployed at the time of final hearing.
The parties separated on 18 February 2018 but continued to live under one roof. The wife withdrew $8,000 from the parties’ joint bank account on 21 March 2018.
The wife commenced proceedings on 24 May 2018, seeking parenting, property, and spousal maintenance orders.
At a case assessment conference in June 2018, orders were made by consent which effectively provided that:
(a)The husband pay the wife $100,000 as partial property settlement; and
(b)The husband pay the wife periodic spousal maintenance of:
(i)$800 per week into a nominated account;
(ii)the cost of the wife’s rental premises up to $700 per week, plus bond and first month’s rent;
(iii)$500 per week on account of the wife’s medical expenses; and
(iv)maintaining the wife’s mobile telephone expense and private health insurance premiums at the current level.
The above spousal maintenance arrangements continued up to the final hearing.
On 16 September 2019, orders were made allocating final hearing dates to commence in January 2020, and for each party to receive $300,000 by way of partial property settlement from the sales proceeds of the former matrimonial home.
On 14 January 2020, orders were made by consent varying the amount to $500,000 as partial property settlement.
The final hearing took place over five days in January 2020, followed by a further five days in February 2021.
On the final day of hearing, the wife conceded that the husband should have sole parental responsibility for the children, that the children should live with the husband, and argued she should spend supervised time with the children once per month.
The wife was unrepresented for the preparation and the hearing of her appeal. However, she was represented by a solicitor, as well as senior and junior counsel during the first five days of hearing from 20–24 January 2020, and two junior counsel during the second five days of hearing from 8–12 February 2021.
THE APPEAL
The primary judgment was discretionary. An appeal against an exercise of discretion is governed by well-known principles.
In House v The King (1936) 55 CLR 499, the High Court said at 504–505:
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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 (“Gronow”), Stephen J said at 520:
...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.
The High Court has emphasised the advantage enjoyed by a trial judge in assessing witnesses, as well as the limitations on an appellate court in interfering with a trial judge’s assessment of evidence. In Fox v Percy (2003) 214 CLR 118 at [23], the majority of the High Court said:
…These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Footnotes omitted)
In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, the High Court (McHugh J; Mason CJ, Deane, Dawson, and Gaudron JJ agreeing) cited the following observations of Lord Sumner in S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 at 47 with approval:
…The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone.
We are well aware that the task of this Court is to conduct a “real review”, but we also recognise we must observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record, which, as the High Court observed in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [33], include:
…"those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole". The appellate court needs to be conscious that "[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another". The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error.
(Footnotes omitted)
For reasons which will become apparent, it is important to note two general matters which informed the primary judgment. First, the primary judge was impressed by the standard of the wife’s representation. At [378], her Honour recorded the following:
I wish to take this opportunity to express that the wife has been incredibly well served by her legal representation and she should be very grateful that her Counsel during the last week of the trial has shown such persistence, patience and professionalism in advocating on her behalf.
Secondly, the primary judge found the wife to be an unreliable witness. At [118], her Honour said:
The wife as a witness was unbelievable and unreliable. She gave evidence in a manner which was unusual and not forthright. … She offered a plethora of explanations and stories and wove a web of deceit around her answers to significant issues of the trial. At times she did not seem to appreciate the trouble she found herself in, the implausible nature of her evidence and the consequence of her actions. She completely lacked insight into her mental health and the impact it had on the dispute and sad and tragic events which had transpired. I do not accept her evidence as truthful and where her evidence differs I prefer that of the husband and other witnesses who contradict her version of events.
For the sake of clarity, we propose to deal with the wife’s grounds of appeal as follows.
Ground 4 – “The primary judge erred by failing to provide any, or any adequate reasons, as to how or why it was just and equitable to adjust the parties' legal and equitable interests, inclusive of superannuation, as to 67.5% to the Husband and 32.5% to the Wife.”
This ground is expressed as a challenge to the adequacy of the primary judge’s reasons. Judicial reasons are adequate if they reveal why a case was decided the way it was. Coleman J, sitting as the Full Court in Wen & Thom [2010] FamCAFC 81 stated at [57] that
…How much needs to be said for that requirement to be met will vary from case to case, and in the light of the issues raised which require adjudication. In many cases, very little will need to be said, whilst in other cases, a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
See also Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 (“Tatmar Pastoral Co”) at 385–386.
In support of this ground, the wife made a range of submissions, all of which appeared to be an attack on the primary judge’s findings about the composition of the asset pool.
In determining the composition of the asset pool, the primary judge said at [404]–[405]:
404.As it was so difficult to ascertain where the parties agreed and disagreed about the composition of the asset pool, I sought that the parties provide me with a joint asset and liability pool, indicating what assets they agree upon and which ones they disagree.
405.An email was received by my associate from the solicitors for the husband which attached the parties' joint asset pool. The email stated:
Please note that the respondent's solicitors have reviewed the proposed joint asset pool, however, they have been unable to obtain "the client's approval to that [sic: the agreed asset pool] being provided but consider it is a true reflection of the asset pool."
Her Honour then set out the asset pool at [406]. For the purposes of these reasons, it is unnecessary to set out the pool in full again. The total net property pool was found to be $3,818,512.17 including superannuation. The parties had joint property of $1,337,669.17, less liabilities. The husband enjoyed property of $1,031,451, less liabilities, while the wife held $888,000, again less liabilities. For reasons which will become apparent, the wife’s property was comprised of $750,000 in partial property distribution and $150,000 in litigation funding. The total value of superannuation was $561,392.
The wife’s submissions can be summarised as follows.
First, she argues that the primary judge’s statement at [404] meant her Honour viewed the parties’ financial circumstances as complex. This view was said to be wrong because there was no “great maze of complexity”. But despite the asserted absence of complexity, the wife argued that “far more prudent efforts should have been made” (presumably by her Honour) “to unravel the fiscal truth of the mess [the husband] was solely responsible for creating”, and the husband should have been put under “far more forensic scrutiny” (Wife’s Summary of Argument filed 15 October 2021 (“SOA”) at [13]–[15]).
Secondly, she asserts that the primary judge accepted the husband’s version of the asset pool “without qualification”, while treating the wife’s version of the asset pool as mere assertion, when the husband’s figures for the asset pool were “grossly misleading” (SOA at [16]–[18]).
Thirdly, she argues that the primary judge should not have accepted the husband’s version of the joint asset pool, because her solicitors, by email, had indicated the wife did not approve his version, but nonetheless her lawyers had embraced the husband’s statement of the asset pool as a “true reflection” (SOA at [17]).
Fourthly, she contends that the primary judge failed to take account of all the share and managed funds addbacks, “again which all had supporting documentation” (SOA at [23]). The wife had contended the husband breached court orders dated 28 June 2018 to obtain funds in order to pay her spousal maintenance, and that these should be added back into the pool. She also claimed that if, in breach of court orders, the husband failed to pay mortgage payments on the matrimonial home, these should also be brought into account.
Fifthly and finally, she argues that the primary judge failed to take account of all relevant matters concerning the asset pool, because on 12 May 2021 after judgment was reserved, the wife emailed material herself to the primary judge, in the nature of further evidence (SOA at [18]).
These submissions are rejected. First, the point made by the primary judge at [404] was that it had been difficult to obtain agreement between the parties about the composition of the asset pool. It was not a statement about complexity. Secondly, as the husband submitted, neither the wife’s Case Outline for trial, nor her opening submissions, raised any issue of non-disclosure by the husband. Allegations of non-disclosure in the wife’s affidavits were the subject of objection and not pressed. No allegations of non-disclosure were put to the husband in cross-examination. Finally, no case based on non-disclosure was put forward in closing submissions. It is well settled that the primary judge was not obliged to give reasons in relation to matters that were not made the subject of evidence or argument before her: Tatmar Pastoral Co at 385.
In circumstances where the wife had been represented by competent lawyers throughout the trial, there was no obligation on her Honour to engage in her own forensic scrutiny of the husband beyond the manner in which the wife’s lawyers presented her case at trial. As already pointed out, her Honour specifically commended the wife’s lawyers in their presentation of her case.
Thirdly, as recorded at [405], her Honour was informed the asset pool was agreed as between the lawyers on the record for the parties, even if the wife’s lawyers made clear that the wife herself had not given approval. In those circumstances, her Honour was entitled to proceed on the basis that the asset pool set out at [406] was a “true reflection”. The wife complains about her lawyers, alleging their interest in her case waned or they did not follow her instructions (SOA at [17]).
It is true that legal practitioners must present their client’s case. In Ridehalgh v Horsefield [1994] Ch 205 (“Ridehalgh”), the Court, in the context of making costs orders against legal practitioners, observed at 234:
Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it.
However, legal practitioners also have a duty to the Court. A solicitor’s duty to the Court is co-extensive with that of counsel: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [98]. This Court in Cassidy & Murray (1995) 124 FLR 267 at 281, again in the context of considering a costs order against lawyers, endorsed the decision in Ridehalgh, including the importance of the lawyer’s duty to the Court.
The tension between a lawyer’s duty to a client and their duty to the Court is not always, or even usually, resolved in favour of the client. In Giannarelli v Wraith (1988) 165 CLR 543 at 556, Mason CJ made clear a lawyer’s duty to the Court is paramount:
The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. … The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow…
This Court can reach no view in this appeal about the wife’s complaints against her lawyers, except to observe they are inconsistent with the primary judge’s commendation of those lawyers. Furthermore, the approach of those lawyers in accepting the husband’s balance sheet as a “true reflection” seems entirely consistent with their duty to the Court. But, even if made on a reasonable basis, the wife’s complaints expose no error by her Honour upon which this Court could act.
Fourthly, the primary judge did not accept the husband’s version of the property pool “without qualification”. On the contrary, her Honour considered competing arguments relating to its composition at [408]–[414]. The primary judge set out the husband’s arguments in response to the wife’s submissions at [410] and rejected the wife’s arguments, concluding at [415]:
I am of the view that the husband was within the terms of the orders of 28 June 2018, which were made by consent when both parties were represented by experienced Counsel, when he utilised the sale of the managed fund and share portfolio to provide significant financial assistance to the wife to support her subsequent to the separation. I do not intend to add back into the asset pool the proceeds of sale of the managed fund or the share portfolio. I also note that the wife's estimate of the amount realised by the husband is significantly greater than that sworn to by the husband, and I prefer the husband's evidence to that of the wife.
In her submissions on appeal, the wife made extensive reference to her affidavits at trial and argued that one witness, Mr Hext, mislead the Court (SOA at [23]–[26]). But, as already pointed out, the primary judge concluded generally that it was the wife who was an unreliable witness and not to be believed (above at [27]). In relation to the asset pool, the primary judge clearly preferred the evidence of the husband and did not accept the evidence of the wife, including the allegation that the husband failed to make mortgage payments. Her Honour’s factual conclusions, to the extent that they depend upon the credit of the parties and witnesses, and hence the reliability of their evidence, are neither “glaringly improbable” nor “contrary to compelling inferences”, which is the test of error on appeal for factual findings of that kind: Lee v Lee (2019) 266 CLR 129 at [55]; Aldi Foods Pty Ltd v MoroccanoilIsrael Ltd (2018) 261 FCR 301 at [2]–[3] and [46]–[54]; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Jess & Jess (2021) FLC 94-055 at [63]–[65].
In relation to add backs specifically, it is clear from her Honour’s reasons that she included partial property distributions in the asset pool, but otherwise declined to include, as property of the husband, the add backs for share or managed funds sought by the wife. The primary judge pointed out that these had been used to fund financial support for the wife. This approach was clearly in accordance with authority. Add backs are “exceptional”, a matter of discretion for the trial judge, and reasonably incurred expenditure does not usually come within accepted categories of addback: Trevi & Trevi (2018) FLC 93-858 at [27]–[30].
The wife’s submissions made in support of this ground do not make clear why the primary judge’s reasons were said to be inadequate. Her Honour undertook a lengthy discussion of the assets at cohabitation (at [417]–[421]), financial contributions during the relationship (at [422]–[435]), post-separation financial contributions (at [436]), and non-financial contributions (at [437]–[443]). The factors under s 75(2) were then considered at length (at [445]–[460]). Her Honour’s conclusions as to contributions and future needs were then set out at [462]–[472].
The reasons were careful. No error is demonstrated. Her Honour’s reasons are clearly adequate, and accordingly, we find no merit in this ground.
Finally, we note under this ground that part of the wife’s argument appears to be that the primary judge should have come to different factual conclusions based upon documentation which was sent by the wife to her Honour’s chambers after the evidence was closed, and which was not properly before her. There was no application to reopen by the wife. It would have been improper for the primary judge to take account of further material unilaterally provided by the wife after the final hearing was completed.
Ground 1 – the primary judge failed to take into account the future costs to be incurred by the wife in relation to medical, allied health and other expenses to equip for the purpose of re-establishing time with the children
In support of this ground, the wife argued that the primary judge gave no consideration to “the inevitable consequences which will lead me being totally dependent on the Commonwealth Pension or the NDIS” (SOA at [5]). The wife argues her Honour should have taken this into account in the final step in reaching the necessary conclusion that her discretionary decision was just and equitable.
We note that in her Case Outline dated 17 January 2020, which was prepared by senior counsel, it was contended as part of the wife’s claimed future needs that
The wife's mental health has been compromised, and she will continue to need support and/or treatment into the future. That support, particularly psychological support, will be an ongoing financial outgoing for her.
However, it should also be observed that this contention in the Case Outline was made in the context of the wife claiming primary care of the children. The final parenting result was quite different. By the end of the trial, the wife sought only supervised time with the children, and the primary judge ultimately made orders for the children to spend no time with her.
More to the point, the wife did not pursue a claim for ongoing expenses for psychological support by the end of the trial. The wife argued that she has mental health issues which were “well documented” in the hearing (SOA at [6]). This much is true. The wife’s mental health was the subject of specific and extensive evidence, including expert evidence ordered by the primary judge. Those experts, including the wife’s own treating specialists, expressed the view which her Honour accepted, that the wife had no significant mental health problems (at [121]–[125] and [458]). This led her Honour to observe in final submissions that the wife had not run a case which acknowledged her mental health problems; therefore, she did not proffer a psychological treatment regime which may allow future engagement with the children (Transcript 12 February 2021, p.375 lines 18–20).
Beyond this observation, there was no evidence to support the wife’s contention that she was or would be “totally dependent on the Commonwealth Pension or the NDIS” (SOA at [6]), nor any evidence of the alleged future medical expenses or the nature of the therapy which may have been directed to a re-engagement with the children. No argument was ultimately made by the wife to the primary judge that the costs of ongoing treatments should be taken into account.
We accordingly find no merit in this ground.
Ground 5 – The primary judge failed to address and/or give appropriate weight and make any adjustment in relation to the wife’s litigation funding
There was no evidence that any argument was put to her Honour at trial about how or why the wife’s private arrangements with litigation funders should be taken into account for the purposes of s 79(4)(e) of the Act. Again, no error is disclosed on appeal if the primary judge does not consider an argument that was not put to her.
Ground 3 – The primary judge erred in applying s 75(2) of the Act to arrive at a 5 per cent adjustment
The submissions under Ground 3 are premised on a supposed finding by the primary judge that this was “a case where there is a significant capital base available to each party” (SOA at [10]). However, this does not appear as a finding in the judgment.
Another complaint is that her Honour afforded no assistance to the wife “in matters of procedure, particularly in my being forced to engage with a Litigation Funder at the strong behest of my original solicitors” (SOA at [11]). The wife gives no explanation of what assistance the primary judge should have provided. The wife then argues that because $40,000 of the $150,000 ordered by the primary judge in the wife’s favour had to be paid to litigation funders, this “crippled” the wife’s ability to adequately contest the final week of the hearing “which involved the property matters” (SOA at [11]). This is coupled with further complaints about the wife’s former lawyers.
The wife was represented in the final week. The contention that the presentation of her case was “crippled” is untenable. As already noted, the primary judge expressly commended the wife’s lawyers in her judgment. Furthermore, her Honour’s adjustment of 5 per cent in the wife’s favour in relation to the s 75(2) factors was well open on the factual findings discussed at [445]–[472] of her reasons. These contentions expose no error.
There is no merit in this ground.
Ground 2 – “The Primary Judge erred in assessing the contribution-based entitlements as to 75% to the Husband and 25% to the Wife by:
a) applying excessive weight to the Husband’s initial contribution and not applying any, or any adequate weight, to the Wife’s financial and non-financial contributions; and
b) arriving at an adjustment that was manifestly unjust, evidence (included that of the wife in her Affidavit sworn on the 20 Jan 2021) resulting in an outcome which was neither just nor equitable.”
A challenge to weight is difficult to sustain on appeal. In Gronow, Stephen J said at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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. …
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at [186]:
A number of general propositions may be stated:
1.Neither this Court, nor the Full Court [of the Family Court] in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is "plainly wrong" will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to "plainly wrong" is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
(Footnotes omitted)
We have referred above (at [49]) to those parts of the primary judgment where her Honour discussed and evaluated the parties’ contributions.
The wife did not explain how the primary judge was said to have accorded excessive weight to the husband’s contributions. In her submissions, the wife gave particular attention to the fact that the parties agreed that she would undergo IVF treatment to fall pregnant, and as a result gave up her well paid employment to focus on this difficult process. She argued the husband adamantly insisted she should stay home as a full time mother rather than return to work. As a result, she claims that she spent too long out of the work force, and could not cope with “all the significant changes” in the workplace (SOA at [8]).
However, as already noted, the primary judge did not accept the wife as witness of truth and also made a finding that she was capable of finding employment. No challenge is made to these findings. Nor was it any part of the wife’s case at trial that her IVF treatment should be considered as a contribution for the purposes of s 79(4) of the Act.
The wife did not explain why the outcome was manifestly unjust. As pointed out, her submissions under this ground concentrated on IVF treatment and an alleged difficulty in finding employment. No submission was made about the overall justice and equity of the outcome. The primary judge’s assessment of entitlements was, again, well open to her on the basis of the evidence discussed at [417]–[443] of the reasons (summarised above at [49]). This ground cannot be sustained.
Accordingly, the appeal will be dismissed.
COSTS
The husband claimed costs in the event the appeal was unsuccessful. The wife resisted this. We agree that the wife should pay costs because her appeal was wholly unsuccessful. We are of the view that costs should be calculated at scale.
Indemnity costs are a significant departure from the position set forth in s 117(1) of the Act and are “exceedingly rare”: Harris & Dewell (No 2) (2018) FLC 93-863 at [23]–[25]. No persuasive basis for indemnity costs was put forward by the husband.
The husband provided a notice of costs. This itemised total costs of $33,890 and costs at scale of $19,155.88 for this appeal. However, for reasons unexplained, these totals included costs of $2,073.76 for appeal SOA74 of 2020. We will ignore these costs because the appeal before us was SOA36 of 2021. The husband’s costs were then broken into separate amounts for the costs of solicitor and counsel. The scaled costs claimed for the husband’s solicitor are $9,098.62 for 35.1 hours. For counsel, the costs claimed at scale are $7,983.50, including the hearing of the appeal. On an assessment, we doubt the full scale amounts would be allowed in favour of the husband.
We consider that in order to save the cost of any assessment, the Court should exercise its discretion to fix an amount of costs pursuant to r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The wife will be ordered to pay the costs of the husband of the appeal fixed in the amount of $10,000. We will allow 60 days for the wife to make payment.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Berman and Harper. Associate:
Dated: 17 December 2021
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