Cosio & Cosio (No 4)
[2024] FedCFamC1A 149
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cosio & Cosio (No 4) [2024] FedCFamC1A 149
Appeal from: Cosio & Cosio (No 3) [2024] FedCFamC2F 260 Appeal number(s): NAA 71 of 2024 File number: SYC 6131 of 2019 Judgment of: SCHONELL J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from final financial orders – Adequacy of reasons – Where the primary judge did not err in his treatment of s 75(2) and 79(2) of the Family Law Act 1975 (Cth) – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44
Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cosio & Cosio (No 3) [2024] FedCFamC2F 260
Dawes & Dawes (1990) FLC 92-108
De Winter and De Winter (1979) FLC 90-605
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Lenehan and Lenehan (1987) FLC 91-814
Metwally v University (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Parshen v Parshen (1996) FLC 92-720; [1996] FamCA 141
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yarrow & Yarrow (2022) FLC 94-112; Yarrow & Yarrow (2022) FedCFamC1A 135
Number of paragraphs: 144 Date of hearing: 1 August 2024 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Marsdens Law Group ORDERS
NAA 71 of 2024
SYC 6131 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR COSIO
Appellant
AND: MS COSIO
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 15 July 2024 is dismissed.
2.The Further Amended Notice of Appeal filed 31 May 2024 is dismissed.
3.In the event that any party wishes to make an application for costs they are to file and serve within 28 days written submissions limited to seven pages (excluding annexures) setting out the basis for a costs order with the other party to file and serve any written submission in reply limited to seven pages (excluding annexures) within a further 14 days thereafter.
4.The question of costs will be reserved to chambers.
THE COURT NOTES THAT:
A.All documents are to be filed by email to ...@... copying in each other party and served upon each other party by email.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cosio & Cosio has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Further Amended Notice of Appeal filed on May 2024, the appellant husband (“the appellant”) appeals financial orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by a judge of Division 2 on February 2024.
The appeal was opposed by the respondent wife (“the respondent”).
The Further Amended Notice of Appeal comprises 14 separate grounds. All but one has a number of sub-grounds. Many of the grounds are repetitive while others misquote the primary judge’s findings. There are more than 120 separate contentions as to error.
The assertions as to error are wide ranging. They include more than 45 asserted errors of fact, assertions that contributions were assessed adopting a community property or Marxist approach, assertions of legal unreasonableness, assertions that the primary judge in describing the Suburb B property as “matrimonial property” was conveying an assumption of community property (appellant’s Summary of Argument filed 6 June 2024, paragraph 18), that the primary judge adopted an impermissible “Robin Hood” approach (appellant’s Summary of Argument filed 6 June 2024, paragraph 25), and that “contributions not capable of precise dollar estimation should still be so evaluated to expose reasoning and avoid double-conversion” (appellant’s Summary of Argument filed 6 June 2024, paragraph 31).
The appellant would have been well served to pay heed to the observations of Branson J in Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd (2002) 234 FCR 549 at [4]) that “[n]ot every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal”.
For reasons which follow there is no merit to any of the grounds and the appeal will be dismissed.
BACKGROUND
The parties commenced cohabitation in 1991, married in 1992 and separated in November 2017. A divorce order was made in 2019.
The parties have two children, one born 1997 and the other born 2002. At the time of hearing both children were over the age of 18.
The appellant was employed in the technology industry, subsequently as a professional and in 2017 he became self employed. The respondent was in full-time employment until early 1997 when she ceased work due to the impending birth of the parties’ first child. She did not return to employment until 2008 when she commenced working with a government department.
For the first 16 years or so of the relationship, the parties lived in rented accommodation. In 2007, the appellant acquired in his own name a property at Suburb B (“the Suburb B property”). The purchase of the Suburb B property was funded by way of a mortgage, together with the proceeds of sale of shares and options arising from his employment. During the course of the relationship, he also received moneys by way of inheritance.
Following the breakdown of the relationship, the respondent commenced proceedings for property settlement.
In late 2022, a judge of Division 2 made final orders pursuant to s 79 of the Act. The appellant lodged an appeal against those orders which was successful, and the matter was remitted for hearing before another judge of Division 2.
On the rehearing, the respondent sought an adjustment pursuant to s 79 of the Act contending that the assets of the parties which primarily comprised of the Suburb B property, a sum of money in a bank account in the respondent’s name and superannuation should be divided in the proportions as to 55 per cent to the respondent and the balance to the appellant.
The appellant contended at hearing that the Court should not make any adjustive order.
The primary judge captured the parties’ respective positions in Cosio & Cosio (No 3) [2024] FedCFamC2F 260 (“the judgment”) as follows:
62.The wife argued that it was just and equitable for there to be property orders made in this matter. The parties were married [i]n [...] 1992 having commenced cohabitation in [...] 1991. They separated on a final basis on 19 November 2017 and, accordingly, their relationship lasted for, approximately, 26 years. The wife maintained that at the crux of the dispute between the parties was the husband’s failure to understand and apply the Act as he had wholly misinterpreted the law in relation to the interpretation of s.79 of the Act and that the circumstances of the parties’ relationship were not, as the husband asserted, “unusual” but rather that the parties’ relationship was an ordinary marriage where they cohabitated, then married and then had children for which both shared parental responsibilities. The fact that the [Suburb B] property was acquired some 16 years into the parties’ relationship but was wholly owned by the husband meant that, without a property adjustment order, the wife would be entitled to nothing from her efforts during the parties’ relationship. The wife submitted that, in those circumstances, it was clearly just and equitable that there be some property adjustment order.
63.The Court accepts the husband’s submission that its purpose under the law is not to assess compensation but, rather, contribution. The contribution assessment being based on the parties’ efforts during the parties’ relationship. The husband argued that there should be no adjustment in terms of the parties’ interests in property as it would not be just and equitable to make a property settlement order. The thrust of the husband’s position was, as articulated, that he believed the parties had conducted their affairs based on running their own separate finances throughout their relationship and that, from his perspective, his acquisition of the [Suburb B] property was his alone. It was put to the husband that his case was predicated upon the contention that there was some agreement between him and the wife that if the marriage ever ended the net result would be that what was his was his and what was hers was hers. The husband responded, “that is part of it”. The husband agreed that there was no binding financial agreement to that effect and nothing in writing to evidence this agreement and that his view was his “subjective impression”. His commitment to that position appeared to blind him to any perceived justice in the wife’s cause or perceived injustice in his position.
The primary judge found after a 26-year relationship involving a myriad of contributions by both parties and which produced two children that it was just and equitable that the Court should adjust the property interests of the parties.
The primary judge found that the appellant had made a significant financial contribution that was superior to that of the respondent and found that the respondent had made the major contribution as a homemaker and parent. The primary judge, finding that it was appropriate to assess the parties’ contributions in a global fashion, adopted a two-pools approach; one in relation to the non-superannuation assets and the other in relation to the superannuation assets.
In relation to the non-superannuation assets, the Court assessed the appellant’s contribution at 62 per cent and the respondent’s contribution at 38 per cent. In relation to the superannuation assets, the Court assessed the appellant’s contribution at 57.5 per cent and the respondent’s contribution at 42.5 per cent. The primary judge then considered whether or not there should be an adjustment under s 75(2) of the Act and determined not to do so.
Having determined that it was just and equitable to divide property in accordance with the contribution findings, the primary judge made orders to give effect to such determination.
THE APPEAL
As referred to earlier, the Further Amended Notice of Appeal comprised more than 120 contentions as to error. In the course of oral argument, two sub-grounds of Ground 2 were abandoned. Such an extensive miscellany of asserted error may, contrary to the appellant’s propositions, demonstrate that in fact no ground has merit (Thorne v Kennedy (2017) 263 CLR 85 at [49]; Tame v New South Wales (2002) 211 CLR 317 at [345]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
The grounds in the Further Amended Notice of Appeal run to 13 pages. They are replete with repetition and on occasions misquote the primary judge’s findings. They are prolix, many amount to mere submission, and not all were addressed in the appellant’s Summary of Argument or expanded on orally. The asserted material errors were listed in an alphabetic sequence in the grounds but in the Summary of Argument were divided into “key material factual errors” and “remaining material factual errors” which did not follow the sequence in the grounds. It is baffling why they were divided in such a jumbled fashion. I do not propose to record every individual ground and the multitude of subparts, albeit I have had regard to each. Where they repeat the same assertion or subject matter, I will where convenient deal with them collectively.
By an Application in an Appeal filed mid-2024, the appellant sought the Court receive further evidence on the hearing of the appeal in the event the appeal was successful. In circumstances where the appeal will be dismissed, consideration of the Application in an Appeal is otiose and it will be dismissed.
Where a ground of appeal makes a contention that goes to the integrity of the court process, then those matters should be dealt with prior to addressing the balance of the appeal (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Ground 1 and Ground 5B make such a contention and accordingly will be dealt with first.
GROUND 1
Ground 1 contended that the primary judge refused to permit the appellant to make submissions in response to those of the respondent, made findings on matters that were not the subject of challenge or notice, and in doing so acted contrary to the rule in Browne v Dunn (1893) 6 R 67.
The appellant’s Summary of Argument in support of the ground contends that:
1.An appeal must be allowed, where a party is being prevented by the trial judge from properly putting their case, unless a new trial would inevitably have the same results. That ordinarily cannot be the case where there was a refusal to allow a party to address on an issue of fact, especially where that issue is whether particular evidence should be accepted (Stead v SGIO (1986) 161 CLR 141 at 145-146)…
The appellant’s reliance upon the High Court’s decision in Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”) requires some consideration of the facts that led to the High Court’s determination. In Stead, the appellant sought to make submissions in response to those made by the respondent however did not do so where the trial judge indicated that he did not accept the evidence of a particular expert witness. As the High Court observed at 144:
… The appellant's counsel understandably did not develop the submission and addressed no further argument on the acceptability of Dr Scanlon's evidence on the issue of causation.
The trial judge, having reserved the judgment, ultimately accepted the evidence of Dr Scanlon on the issue.
That bears no resemblance to what happened before the primary judge in this matter. At the close of the evidence, the appellant advised that he had prepared in excess of 90 pages of written submissions. The respondent sought an opportunity to respond and was given three weeks in which to respond. The primary judge advised the parties that he would thereafter consider whether there needed to be any further oral submissions, which position was accepted by both the appellant and respondent. The parties were then called back into court to address a matter on the balance sheet and the appellant again raised with the primary judge whether or not he would have an opportunity to put on submissions in reply. The primary judge reminded the appellant that he had put on 96 pages of submissions and that was enough.
At no point did the primary judge resile from his earlier stated position that he would consider if submissions in reply were warranted. As it was, the primary judge did not call for submissions in reply.
In contrast to the over 90 pages of appellant’s submissions, the respondent’s submissions were mercifully short and comprised some nine pages. The first four pages identified non-controversially the respective positions of each party, the issues and the law. The balance engaged with the appellant’s submissions.
The question of a right of reply is entirely a matter within the discretion of the trial judge (John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77).
Nowhere in the Summary of Argument or during oral argument did the appellant identify or elaborate upon which of the respondent’s submissions would have been worthy of response or what submission made by the respondent was accepted by the primary judge to which the respondent would have rejoined. It is not for an intermediate Court of Appeal to rummage through the judgment to find error (Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
Not every denial of procedural fairness will occasion a rehearing. Here, there was none.
Ground 1 is without merit.
GROUND 5B
Ground 5B as drawn amounts to no more than a complaint about a series of questions asked of the appellant during cross-examination about a holiday. As drafted, the ground does not clearly or with precision articulate error.
The appellant’s Summary of Argument contends that that the primary judge’s assessment of the appellant’s evidence was unjustified, and the questioning materially differed from what occurred and further that counsel for the respondent did not permit the appellant to respond to a proposition.
Beyond referencing a paragraph of 350 words, the appellant fails to articulate where the primary judge made any assessment in the context of the holiday questioning. In relation to the questioning of the appellant by the respondent’s counsel, the appellant’s Summary of Argument states:
16.…the court below had an obligation to intervene (and not to misuse it in the manner it did). Failure to intervene can convey endorsement of or collaboration, risking an apprehension of bias and misuse of the advantage in seeing and hearing witnesses (Let’s Go Adventures v Barratt [2017] NSWCA 243 at 123). The misuse fatally comprised any criticism the Court below might have made of the husband as a witness.
As to the assertion that the appellant was denied an opportunity to respond, the appellant could have, if he wanted, addressed the issue in re-examination (assuming it properly fell within the permissible bounds of re-examination). He elected not to do so. He clearly made a forensic decision. The appellant is bound by the way he conducted his case at trial (Metwally v University (1985) 60 ALR 68 at 71).
As to the second aspect of Ground 5B where no application for recusal was made by the appellant, he waived any complaint of apprehended bias arising from judicial conduct (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [334]; Vakauta v Kelly (1989) 167 CLR 568 at [577]–[579]). Further, I am mindful of what Ward JA said in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128:
232.…the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
I am not satisfied that the rational, not unduly sensitive or suspicious hypothetical observer, would find that the primary judge would bring a partial mind to the determination based upon that asserted by the appellant. The singular instance advanced by the appellant does not establish that the appellant was denied a fair trial or that the cross-examination was procedurally unfair. There is no merit to Ground 5B.
GROUND 2
Ground 2 contends that the primary judge made material errors of fact that are said to have been occasioned by the denial of procedural fairness. Where there was no denial of procedural fairness, the appellant must demonstrate that there was an error, and that it was material to the determination. Gratuitously, the Summary of Argument expands the ground to contend inadequacy of reasoning asserting “having regard to the generality of the Court’s reasoning at D119 [217], every error of fact is material” (appellant’s Summary of Argument filed 6 June 2024, paragraph 2).
The contention of inadequacy is repeated in numerous places throughout the grounds and the appellant’s Summary of Argument. It is uncontroversial that reasons will be adequate if this Court is able to divine the path of reasoning, the parties understand why the decision was made and justice is seen to be done (Bennett and Bennett (1991) FLC 92-191; Yarrow & Yarrow (2022) FLC 94-112 at [17]). It is trite to observe that it is not necessary for a judge making a discretionary determination to detail every fact which his or her Honour has found to be relevant or irrelevant. A judge is not required to make an explicit finding on each disputed piece of evidence (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378) nor is it necessary that they mention every fact or argument relied on as relevant to an issue in the proceedings (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
There is no merit to the complaint about [217] of the judgment. When [217] is read with all that comes before, it reveals the primary judge’s reasons to be clearly ascertainable and do justice to the issues posed by the parties. The approach proposed by the appellant on the appeal is to do that which is the antithesis of what this Court requires. In that respect, Handley JA in Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148 observed:
14.Appellate courts exist to remedy errors of law and miscarriages of justice not to dot I’s and cross T’s in the reasons for judgments of trial judges.
There is no merit to that part of Ground 2 that contends that there was a generality of reasoning adopted by the primary judge.
Appellate intervention will only be warranted if the mistake of fact is material to the ultimate decision (De Winter and De Winter (1979) FLC 90-605 at 78,092 (“De Winter”)). An appellate court will not interfere with a finding of fact if there is evidence on which that finding could be made, even where an alternate finding may have been available. As the Full Court reminds in Koyroyshs & Koyroyshs [2021] FedCFamC1A 54:
121.Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129).
As to sub-Ground 2(a) and 2(b)(i)–(ii) the primary judge accurately recorded at [37(ff)] of the judgment that in February 2008 the appellant received a redundancy package which was mostly used towards reducing the indebtedness secured over the mortgage on the Suburb B property. No error is identified in such finding.
The primary judge at [55(c)] of the judgment, records the submission of the appellant that his redundancy and inheritance were provided by him for the welfare of the family. At [120] of the judgment, the Court accepted that the appellant’s financial contribution by way of taxable income exceeded that of the respondent. The Court acknowledged that the respondent agreed that the appellant had contributed a lot of money to the maintenance of the family in general and that his contribution was not limited to the repayment of mortgage sums, rates, and utilities on the Suburb B property, and included payment for groceries and other household expenses. The Court acknowledged the appellant’s financial contributions included cash and shares from his grandmother acknowledging at [123] of the judgment that the appellant’s financial contributions greatly exceeded those of the respondent and at [149] of the judgment that the appellant’s payment of family expenses, including mortgage expenses on the Suburb B property, were for the benefit of the family unit and that the appellant’s income enabled those expenses to be paid arose from his employment and work efforts. The primary judge recognised the appellant’s financial contributions both by way of capital and income as well as recognising his contributions as a homemaker.
Sub-Ground 2(b)(iii)–2(b)(v) assert that the overall tenor of the judgment was that regardless of the source of the contributions to the Suburb B property, it should be treated as an asset in which the respondent had an interest, that the respondent’s inheritance was treated more favourably and that the appellant’s inheritance as a contribution to the welfare of the family was not recognised. This is redolent of many of the asserted errors which amount to complaint by way of grievances unlinked to appealable error identifiable in the judgment. It is for the appellant, not the Court, to identify error where it is not immediately apparent (Bahonko v Sterjov (2008) 166 FCR 415 at [3]). The appellant failed to identify where the primary judge found the Suburb B property was an asset in which the respondent had an interest, or where the respondent’s inheritance was treated more favourably. The assertion that the primary judge did not recognise the contributions of the appellant is without foundation.
There is no merit to sub-Grounds 2(a) and 2(b).
Sub-Ground 2(c) asserted error on the part of the primary judge in finding imprudence on the part of the appellant in “rolling over” his superannuation. This is the first of many instances where the appellant misquotes the finding of the primary judge. There is no finding of imprudence. The primary judge merely records at [37(gg)] of the judgment that the superannuation was reduced when it was “rolled over” to a new superannuation fund. There is no criticism or reprobation. The sub-ground is without merit.
Sub-Ground 2(e) and 2(e2) asserted error on the part of the primary judge in concluding that there was no difference between a conversation and a discussion. The appellant’s Summary of Argument and oral argument seeks to draw a distinction between conversations and discussions, contending that a discussion, as opposed to conversation, entails a debate of merits. If the appellant held this view at the hearing it was not one drawn to the attention of the respondent in cross-examination. In that respect, the transcript records:
Because isn’t it the situation that from the outset of your relationship back in the 90s, you never discussed one another’s business; correct, or how you would spend money?---Well, I would say we had regular conversations about that.
I’m going to suggest to you there was never any situation where you ever said to one another, “Look, we’re going to basically mix our funds together and be codependent”?---No, I don’t ever remember having a conversation like that. No.
(Transcript 28 August 2023, p.28 lines 10–25)
If it was a serious matter that the parties understood the difference between a conversation and a discussion in their daily discourse, then it was incumbent upon the appellant to make the distinction plain to the respondent in cross-examination. He failed to do so. He is bound by the way he conducted his case. The primary judge was entitled to accept the respondent’s evidence. This sub-ground has no merit.
Sub-Ground 2(f) asserted error in finding that the appellant was critical of the respondent. The findings were plainly available and open on the evidence. The appellant’s affidavit is replete with criticisms of the respondent. It is not an error merely because the appellant does not accept the finding. There is no merit to this sub-ground.
Sub-Ground 2(g) misquotes the primary judge’s finding. His Honour does not make a finding that the respondent’s credit card had been cut up. There is no merit to this sub-ground.
No error is identified in the findings made by the primary judge identified in sub-Ground 2(h) which were available and reasonably open on the evidence.
Sub-Ground 2(i) misrepresents the primary judge’s finding. The primary judge qualified the period to which the respondent’s income increased. There is no merit to this sub-ground.
Sub-Ground 2(j) does not identify the appealable error occasioned by the primary judge’s finding. The appellant contended his contributions were made more burdensome by the impact of the respondent’s infidelity in that it adversely affected his ability to earn an income. The primary judge accepted that it would have been hurtful but recorded that there was no evidence of the economic effect on his business. The ground refers to paragraphs in the appellant’s affidavit which are said to demonstrate contrary to the finding that there was evidence of the economic effect. The cited paragraphs support the primary judge’s findings. They do not evidence the economic effect and are merely a series of submissions devoid of admissible evidence. There is no merit to this sub-ground.
Sub-Grounds 2(k) and 2(l) contend that the primary judge was in error in finding that the appellant did not make a recurring complaint and if he did the parties’ relationship continued without change. The appellant has not demonstrated the error in the primary judge’s finding. The paragraphs cited as support for the appellant making a recurring complaint contrary to the primary judge’s finding in fact demonstrate the correctness of the finding. The first of the cited paragraphs [20(b)] of the judgment in the appellant’s affidavit record the appellant “periodically complained” while the other at [31] of the judgment records he spoke to the respondent once in 1998 and from December 2008 “complained from time to time”. The cited paragraphs demonstrate the correctness of the finding. The alternate finding that irrespective the relationship continued was entirely consistent with the evidence and the appellant’s case. The contention that the finding amounted to victim-blaming or was an attempt to avoid a finding that the appellant’s contributions are devoid of merit and inconsistent with the primary judge’s findings. The acceptance of the respondent’s evidence was reasonably open and available on the evidence (Edwards v Noble (1971) 125 CLR 296).
Ignoring the offensive way in which sub-Ground 2(m) is drawn, it misquotes the primary judge’s finding. The primary judge did not find at [56] of the judgment as the appellant attempts to assert, that the respondent was throughout the relationship financially dependent on the appellant. The primary judge says the respondent was “substantially” dependent on the appellant. The foundation for the finding was set out at [53]–[55] of the judgment where the primary judge finds the respondent was dependent on the appellant when she first arrived in Australia and following the birth of their child when she did not work for about ten years. There is no merit to the sub-ground.
There is no merit to sub-Ground 2(n). The primary judge’s finding that the parties did not maintain separate finances and that there was not financial autonomy was entirely consistent with the evidence advanced by the appellant and the respondent that there were periods of time when the respondent did not work and was dependent upon the appellant for financial support. It is not enough for an appellant to contend error because the primary judge makes a finding contrary to the case advanced by the appellant.
There is no merit to sub-Grounds 2(o) and 2(o1). The primary judge made a finding consistent with the evidence that the respondent made both financial and non-contributions during the relationship which assisted the appellant in the financial contributions that he made. There was ample evidence to support the findings as to the respondent’s contributions from her income during the periods in which she was in employment and by way of her non-financial contributions. The primary judge, at [106]–[133] of the judgment, referred to each of the financial contributions made by the appellant including the purchase of the Suburb B property, loan funds and mortgage payments, and recorded uncontroversially that the appellant had been assisted by the respondent in both her financial and non-financial contributions. The appellant further contends that the primary judge was in error in finding that there was no binding financial agreement entered into between the parties as the same did not exist in the law until 2000. There was no binding financial agreement between the parties at any time. The primary judge made no more than a statement of the patently obvious. No error is apparent.
Sub-Grounds 2(p) and 2(q) were abandoned.
No error is identified by sub-Ground 2(p1). There was no finding that the respondent had property of any significance other than superannuation. The primary judge’s finding at [64] of the judgment was open and available on the evidence. The appellant has not demonstrated the error in such finding.
As to sub-Grounds 2(r), 2(s) and 2(s1), the appellant contended there was an oral assumption entered into early in their relationship that if they separated, the respondent said she did not want any of his “stuff”. Such assumption, according to the appellant, underpinned the relationship, albeit was entered into before the birth of the children and the purchase of any property. The appellant asserts that the primary judge’s finding that the respondent denied the conversation about “stuff” was in error, contending that the respondent did not ever deny there was such an assumption. The conversation about “stuff” appears in the appellant’s affidavit in his position as the respondent to the wife’s initiating application. The appellant elected not to cross examine the respondent on this conversation. In the appellant’s cross examination, it was put to him that the respondent denied such a conversation.
The findings of the primary judge that the word “stuff” could not have contemplated the acquisition of real estate at [65] of the judgment and that the terms and intent of the conversation were not intended or anticipated to apply to property subsequently acquired at [107] of the judgment are reasonably open and available on the evidence as a whole, even assuming there had been an error in concluding the respondent denied the assumption (per Mason J in De Winter at 78,097–78,098). There is no merit to sub-Grounds 2(r), 2(s) and 2(s1).
Sub-Grounds 2(t), 2(y) and 2(kk) assert error on the part of the primary judge in finding that the respondent made any, let alone a material contribution to the Suburb B property while a homemaker in circumstances where the appellant contended that the respondent was not a homemaker at any time during the ownership of the Suburb B property and that her contributions as a homemaker and parent did not enable the appellant to make financial contributions.
The findings of the primary judge as to the respondent’s contributions as a homemaker and parent are clearly set out at [109], [116], [119], [120], [130] and [140]–[154] of the judgment and were open and available on the evidence. The fact that the appellant maintains a view contrary to the primary judge’s finding that the respondent was not a homemaker at any time during the ownership of the Suburb B property or that her contributions otherwise enabled the making of his contributions does not establish error on the part of the primary judge. There is no merit to these sub-grounds.
In relation to sub-Grounds 2(u), 2(v), 2(w) and 2(ee1), the respondent appears to concede that the primary judge’s findings were in error as to payment of credit card debts, when the appellant became a director, when the respondent paid for a pest inspection and as to the respondent’s parenting contribution at a time when the appellant received dividends. It is not enough just to point to error. The appellant must establish that the errors had the character of materiality necessary to give rise to a reconsideration or rehearing (De Winter). The appellant has not done so. There is no merit to these sub grounds.
Sub-Ground 2(x) asserts the primary judge made a finding at [108] of the judgment that the respondent had an equity in the Suburb B property and at sub-Ground 2(z) that the primary judge found at [106] and [108] of the judgment that the Suburb B property was treated as a joint asset or by reason of that fact the respondent had an equity in it. In each instance the appellant misquotes the primary judge’s finding. The appellant’s Summary of Argument reframes the proposition that it is to be inferred from the primary judge’s finding that the respondent had an equity. Neither proposition is open. No such finding was made or inferred. The sub-grounds are without merit.
Sub-Ground 2(aa) has no merit. Reading the judgment as a whole reveals that the primary judge found that the appellant’s financial contributions, including those to the Suburb B property, greatly exceeded those of the respondent. There is no merit to the sub-ground that the primary judge failed to find that the appellant made substantially all the financial contributions to the Suburb B property. The appellant’s complaint that the words “greatly exceeded” as used by the primary judge to describe the disparity in financial contributions do not adequately describe the extent of his contributions constitute semantic nonsense, not appealable error.
The finding the subject of complaint in sub-Ground 2(bb) about a trip, assuming it established error (which it does not), is immaterial. The primary judge’s finding was open and available, as much is clear from the appellant’s submission. This and other grounds demonstrate the appellant’s “overzealous” focus on the ascertainment of contributions contrary to the clear dicta of the High Court (see Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) at [524]). The sub-ground is without merit.
Sub-Ground 2(cc) challenges the findings of the primary judge at [120] of the judgment as inconsistent with what the appellant described as false contentions in the respondent’s affidavit. The respondent did not say in her affidavit that she paid for all the groceries and expenses for the children. The respondent agreed that the appellant met household expenses for her and the children. There is no challenge to the primary judge’s finding at [120] of the judgment that the appellant agreed that the respondent had expended money on the children and expenses for the family. The primary judge accepted the evidence of the appellant which was not glaringly improbable. There is no merit to the sub-ground.
Sub-Ground 2(dd) again misquotes the primary judge’s finding. The primary judge found, contrary to the sub-ground, that much of the appellant’s recollection “appeared” reliant on extensive searching through documents. This finding was open and consistent with the appellant’s case given its focus on the minutiae of the appellant’s dissection of the payment of household expenses by reference to documents. The sub-ground is without merit.
There is no merit to sub-Ground 2(ee). The appellant’s Summary of Argument perpetuates the fiction that runs through some of the grounds that the primary judge adopted a “community property view”. Contrary to the ground, the primary judge did not find that the appellant “kept [the respondent’s] documents”. The appellant yet again misquotes the primary judge’s findings at [120] and [124] of the judgment. The primary judge does not in those paragraphs use the words “family finances”. The primary judge found that the appellant ran their finances, a finding entirely consistent with the evidence. It is a descent into the absurd to contend that the use of such a banal expression amounts to the primary judge adopting a community property view. The ground is without merit.
Neither sub-Ground 2(ff) or that part of the appellant’s Summary of Argument referable to it posit the error said to have been occasioned by the primary judge. An examination of parts of the judgment said to be apposite are no more enlightening. The respondent in her Summary of Argument asserted “the alleged error, as articulated, is not understood”. Conscious as he must have been of that assertion, the appellant elected not to address the ground in oral submissions. Beyond a brief oral submission as to evidence regarding the “luxury expenses finding” of facts being contained within the exhibits bundle, no other oral argument was advanced. Regard to the asserted exhibits does not identify the error which the appellant was obliged to identify. Where the appellant fails to make apparent an error it is not for the Court to trawl through the Appeal Book or bundle of exhibits to attempt to decipher error (Bahonko v Sterjov (2008) 166 FCR 415). The sub-ground is without merit.
Sub-Ground 2(gg) asserted that the primary judge erred in failing to find at [127] of the judgment that the respondent’s “extravagant expenditure on herself” reduced her contributions. The primary judge found that there was nothing about the respondent’s expenditure that was reckless, that minimised the value of the assets of the parties, and that there was no complaint made by the appellant during the relationship of expenditure. The findings of the primary judge were open and reasonably available. There is no merit to the sub-ground.
Sub-Ground 2(hh) contends a series of errors on the part of the primary judge that all source from a misquoting of the primary judge’s finding. The primary judge did not find that the respondent “was always focused on making savings”. The primary judge’s finding was no more than what was recorded in the correspondence identified in the appellant’s exhibit. Despite asserting that an inference was drawn by the primary judge, no such inference is apparent from the paragraphs relied upon. The sub-ground has no merit.
Sub-Ground 2(ii) asserts error on the part of the primary judge in finding at [129] of the judgment that the appellant only asserted legal as opposed to legal and equitable ownership of the Suburb B property. There is no merit to the appellant’s ground or the submission in support of it. The primary judge was well apprised of the appellant’s arguments in relation to the Suburb B property. Further the appellant misquotes the primary judge’s finding. The primary judge did not find at [129] that the appellant “only asserted legal ownership of the [Suburb B] property”. There is no merit to sub-Ground 2(ii).
Sub-Ground 2(jj) asserted error on the part of the primary judge in respect of the appellant’s criticism of the respondent in not taking out life insurance. The appellant describes in his Summary of Argument that it was inexcusable of the respondent to not take out life insurance after she returned to work, describing such conduct as demonstrating no concern for the appellant’s financial wellbeing. The relevance or otherwise of that in the assessment of contribution is not apparent. That said, the primary judge recorded the appellant’s criticism of the respondent in not taking out life insurance following the children’s birth at [142] of the judgment. The sub-ground asserts an error of fact. No error is apparent. There is no merit to sub-Ground 2(jj).
Sub-Ground 2(jj1) asserts error in failing to find that the respondent did not include the appellant as a nominated death beneficiary on her superannuation. It is not explained how a failure to make the asserted finding constitutes an error of fact or how the fact had any relevance to any consideration of the contributions of the parties or issue in the proceedings. In circumstances where it did not and could not have any relevance to an issue in the proceedings, it could not constitute an error to not address it. There is no merit to sub-Ground 2(jj1).
Sub-Ground 2(jj2) asserts error on the part of the primary judge in finding that the respondent more likely contributed more to the care of the children during all periods the appellant was in full time work. The finding was reasonably open on the evidence in circumstances where the respondent did not work for a period while caring for the children and while the appellant was at work. The fact that an alternate finding may have been open does not render the finding erroneous. There is no merit to sub-Ground 2(jj2).
Sub-Ground 2(ll) asserts error on the part of the primary judge in finding that the appellant did not disclose the assets of his new wife. The appellant’s Summary of Argument fails to demonstrate the error on the part of the primary judge. The appellant in his affidavit stated that he did not know what his new wife’s net asset position was in respect of funds but then asserted that it was modest. The two are irreconcilable. The finding was reasonably open. The sub-ground is without merit.
Sub-Ground 2(mm) asserts error on the part of the primary judge in finding that the respondent assisted in dealing with distress occasioned by family litigation. The primary judge’s finding was that the respondent’s email “appeared to evidence that she had assisted in dealing with the distress” at [147] of the judgment, and no more than that. Such finding was reasonably open. The fact that the appellant disputes the finding does not establish error. There is no merit to the sub-ground.
There is no merit to any part of Ground 2.
GROUND 3
By Ground 3, the appellant contends that the primary judge made a number of errors of law.
Sub-Ground 3(a) contended that the primary judge double counted the respondent’s contributions to the welfare of the family and as an indirect contribution to the Suburb B property. The appellant’s Summary of Argument contended that the contribution could be recognised under s 79(4)(c) and not again under s 79(4)(a). There is no error in the approach adopted by the primary judge. Section 79(4)(c) contributions can also be recognised under s 79(4)(a) or s 79(4)(b). The Full Court in Dawes & Dawes (1990) FLC 92-108, approved in Ferraro and Ferraro (1993) FLC 92-335, observed at 77,729 as follows:
Although it is difficult, as it always is in such cases, to put one's finger squarely on what led his Honour to so undervalue the wife's contribution, we think that one significant matter which did so was that he failed to give any weight to the fact that the wife's performance of her role as homemaker and parent during the 30 years of cohabitation was not just a contribution under sec. 79(4)(c) (which he subsequently recognised to some degree) but was also a significant contribution under sec. 79(4)(b)…
Sub-Ground 3(a) is without merit.
Sub-Ground 3(b) asserts legal error by the primary judge in failing to take account of the appellant’s contribution by provision of the Suburb B property as a contribution pursuant to s 79(4)(c). This ground and others underscore the failure by the appellant to accept what the High Court has observed, namely that there should not be an “overzealous attention to the ascertainment of the parties’ contributions” (Norbis at [524]). A reading of the judgment as a whole, including the primary judge’s assessment of the parties’ respective contributions as a homemaker and parent at [140]–[154] clearly demonstrates that the primary judge recognised the financial contributions of the appellant within the terms of s 79(4)(c).There is no merit to sub-Ground 3(b).
Sub-Ground 3(c) asserted that the primary judge erred in assessing the contributions during the relationship, thereby disregarding that the appellant’s contributions of income arose from efforts made before the relationship commenced in creating his earning capacity. The appellant further contended that the assessment of contribution “must not be assessed, adopting Marxist dogma” (appellant’s Summary of Argument filed 6 June 2024, paragraph 4). The primary judge recognised the appellant’s contributions by way of income as part of his financial contributions, including acknowledging what the appellant’s income and resources were in 1991, which clearly were acquired before the relationship commenced. Apart from a bald and irrelevant reference to Marxist dogma, the appellant does not identify where the primary judge does that which is asserted to be an error of law. There is no merit to sub-Ground 3(c).
Sub-Ground 3(d) contended through its five sub-parts that the primary judge “took into account a presumption of advancement”. Much of the ground constitutes a submission rather than an attempt to identify error. The appellant’s Summary of Argument expanded the sub-ground to contend that the primary judge, “took into account the presumption of advancement to infer an intention to give the [respondent] an interest in the [Suburb B] property” (appellant’s Summary of Argument filed 6 June 2024, paragraph 6). Tellingly, at no place in the sub-ground or the Summary of Argument does the appellant identify where the primary judge “took into account” the presumption of advancement or used it to infer an equity in favour of the respondent. The singular paragraph cited ([107] of the judgment) in support says nothing of the sort. Sub-Ground 3(d) is without merit.
Sub-Ground 3(e) contended error in finding that it was just and equitable to make an order which involved presuming that a party has a right to a division of assets. The primary judge did not proceed under such an assumption or presumption. The sub-ground and the appellant’s Summary of Argument fail to identify where the primary judge did that complained of. This a repetition of matters the subject of Grounds 7 and 13. The sub-ground is without merit.
Sub-Ground 3(f) contends that the primary judge failed to give proper consideration to the significance of the name in which the Suburb B property was held while the appellant’s Summary of Argument contended that the reasoning of the primary judge treated the legal and equitable ownership as matters of “mere happenstance” (appellant’s Summary of Argument filed 6 June 2024, paragraph 8). Neither the sub-ground nor the appellant’s Summary of Argument identify by reference to a paragraph where the primary judge did that which is contended to be in error. The primary judge identified the legal and equitable interests of the parties at [83] of the judgment recording that the appellant was the owner of the Suburb B property. No error is identified.
Sub-Ground 3(g) contended that the primary judge erred in law in asserting that the respondent was dependent upon the appellant (without limitation for the entire relationship). Further, the sub-ground contended that the appellant had an obligation to provide support to the respondent including equity in the Suburb B property, citing as support for the contention [56] and [66] of the judgment. The appellant misquotes these paragraphs. Neither paragraph provides any foundation for the sub-ground or the submission. The primary judge did not find that the respondent was financially dependent on the appellant for the entire relationship. Nor did the primary judge find that the appellant had an obligation to provide a roof over the respondent’s head in the form of equity. Sub-Ground 3(g) is without merit.
There is no merit to any part of Ground 3.
GROUND 4
Sub-Ground 4(a) contends the primary judge erred in law and was legally unreasonable in assessing the whole of the relationship through the lens of the period in which the respondent did not work, in circumstances where the contributions to the Suburb B property were made when the respondent was working. Whilst the appellant cited in support various paragraphs of the judgment, none of those paragraphs either individually or collectively support the submission of the appellant.
The primary judge identifies at [96] of the judgment that the task of his Honour was to assess the contributions of both parties before and after separation, and further consider these in a holistic sense at [100]. The primary judge recorded the initial contributions of the parties at [103]–[105], the acquisition of the Suburb B property at [106]–[114], the contributions post the birth of the first child at [115]–[133] and subsequent to separation at [134]–[139] and assessed the homemaker and parent contributions. The contributions were assessed over the entirety of the relationship and to the date of hearing. The sub-ground has no merit.
Sub-Ground 4(b) as drafted, while recognisable as a submission, does not distil with precision the error. The appellant’s Summary of Argument contended that the judgment is “founded on an analysis asserting partnership” (appellant’s Summary of Argument filed 6 June 2024, paragraph 11). The sub-ground and submission are not informed by a reference to where in the judgment the primary judge asserted a partnership. The absence of a reference renders more easily a conclusion that the sub-ground has no merit. A reading of the reasons as a whole does not identify the primary judge did other than follow the direction of the High Court in Stanford v Stanford (2012) 247 CLR 108 and once satisfied that it was appropriate to consider making an order assessed the contributions of the parties over the entirety of the relationship. The sub-ground is without merit.
Sub-Ground 4(c) contended that the primary judge found that the appellant was not put to a forensic disadvantage by the non-disclosure of the respondent. The ground misquotes the primary judge’s finding. The primary judge observed that the appellant had carried out extensive searches in light of the assertion as to non-disclosure. The primary judge did not find that the appellant was not put to a forensic disadvantage. Further, the Court was not satisfied that the extent of disclosure was such that meant it could not make a just and equitable determination and said that it would take the matters into account under s 75(2)(o) at [173] of the judgment. At [203] of the judgment, the primary judge considered under s 75(2)(o) the respondent’s asserted interests and trusts and determined that it weighed against making an adjustment in favour of the respondent. No error is identified in the primary judge’s approach. Sub-Ground 4(c) has no merit.
There is no merit to any part of Ground 4.
GROUND 5
Ground 5 contends that the primary judge erred in law by reversing the onus requiring the appellant to demonstrate that it was not just and equitable to make an order and in relation to evidence of the respondent as to items of expenditure, citing [132] and [148] of the judgment in support of such contention. Neither paragraph support what the appellant contends and misquote the findings and reasons. The primary judge correctly identified that the Court needed to be satisfied whether it was just and equitable to make an adjustive order. The primary judge accurately at [59]–[61] of the judgment identified what was required to be established in an application pursuant to s 79. There is nothing in the recitation of the law by the primary judge that is demonstrative of error. The primary judge thereafter, over the paragraphs that followed, set out reasons for why he determined that it was just and equitable to make orders. No part of the reasons proceeded upon an assumption that involved in any way a reversal of onus. The appellant also erroneously contended, that the Court “required the [appellant] to prove that the [respondent] did not spend money on expenses benefiting the [appellant]” citing in support [148] of the judgment (appellant’s Summary of Argument filed 6 June 2024, paragraph 14). Yet again, the appellant misquotes primary judge’s reasons. No part of [148] provides any foundation for the ground or the submission. There is no merit to Ground 5.
GROUND 5A
Ground 5A contends that the primary judge erred in not applying a Ferrcom inference (Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 at 418). The appellant submits in his Summary of Argument “the Ferrcom inference should have been made, and it was an error for the court below to seek to make up for the gaps in the [respondent’s] evidence on the assumption that, if given, it would have benefitted her, and to dismiss out of hand uncontradicted evidence, and further, unchallenged evidence, of the [appellant]”.
The appellant relies on the primary judge’s findings at [119] of the judgment as the sole support for the ground. The primary judge at [119] found that a child of the parties went to Europe, that the respondent accompanied her, and that the appellant agreed (while being critical of her going on a holiday) that she was the parent in charge of the child. The primary judge properly found this to be a contribution on the part of the respondent. The appellant does not identify what uncontradicted evidence and unchallenged evidence of the appellant was dismissed out of hand. There is no merit to Ground 5A.
GROUND 5C
Ground 5C contends error on the part of the primary judge in making an adjustive order because the appellant provided “the use of his house to the family as the family home” for the respondent (appellant’s Summary of Argument filed 6 June 2024, paragraph 18). The appellant’s Summary of Argument contends that because of this provision of the Suburb B property, the Court reasoned that it had an obligation to grant the respondent an equity interest, citing in support [108] and [112] of the judgment. The appellant misquotes the primary judge’s finding. No part of [108] and/or [112] contain any finding or process of reasoning supportive of a finding that the court proceeded upon an assumption that it had an obligation to grant the respondent an equity.
The appellant also complains about the primary judge’s use of terms such as “matrimonial property” or “marital asset” at [54] of the judgment, contending that those terms convey community property concepts. The appellant misquotes the primary judge’s findings at [54]. In no part of the paragraphs cited by the appellant does the primary judge use such terms. The appellant’s fixation with the notion that the primary judge adopted community property concepts fails to recognise the primary judge’s acknowledgement that “there is no ‘doctrine of community property’ under Australian law” at [100]. The primary judge gave appropriate weight to the appellant’s contribution of the Suburb B property. There is no merit to Ground 5C.
GROUND 5D
This ground contends error on the part of the primary judge in characterising painting undertaken by the respondent to a number of rooms in the Suburb B property as a contribution. There was no issue that the respondent painted a number of rooms. The appellant contends in his Summary of Argument that:
19.… Repainting of rooms does not per se contribute to the maintenance or preservation of the property. It would only be if it were repainting, proximately to a sale, where it may assist in obtaining a higher sale price.
The appellant fails to cite any authority supportive of this view. Contributions are not assessed by the degree to which they add value but rather to the undertaking of the task. In circumstances where there was no issue that the respondent had undertaken the painting, the primary judge quite properly recognised the work undertaken by the respondent as a contribution. There is no merit to Ground 5D.
GROUND 5E
Ground 5E contends that the primary judge erred, was legally unreasonable, and otherwise provided inadequate reasons as to the value to be attributed to a homemaker contribution.
The ground as cast is not demonstrative of error. The appellant’s Summary of Argument proceeds upon an erroneous assumption, namely, that the primary judge was to provide reasons as to the “value to be attributed to the homemaker contribution” (appellant’s Summary of Argument filed 6 June 2024, paragraph 20).
The primary judge, exercising a wide discretion, does not value contributions but rather makes a holistic assessment of the totality of the myriad of contributions of both parties over the entirety of the relationship (Dickons v Dickons (2012) 50 Fam LR 244). As the authorities make clear, and as ignored consistently by the appellant before the primary judge and on appeal, the assessment of contribution is not a mathematical exercise.
The primary judge assessed the homemaking contributions of both parties commencing at [140] of the judgment. The primary judge recorded the respondent’s contribution in relation to her economising in terms of the family expenditure; records the appellant’s criticism of her contributions including that he contended that he spent some six to eight hours doing bulk shopping on a regular basis where the respondent’s only contribution was to assist him in packing the shopping away; recorded the appellant’s evidence in relation to washing and ironing; and the appellant’s attempt to “break down that type of work into what was considered as harder and easier” at [145]. The Court assessed the homemaking contributions of both parties, determining that the respondent, during the years that the appellant was in full-time employment, more likely contributed more in terms of homemaking, observing as follows:
151Further, the husband, in maintaining that as the wife gave up her work opportunities to be a homemaker she must have valued the homemaker experience, including relationships with the children, as at least equivalent to her lost income and, to the extent that he continued in remunerative employment, he missed out on that homemaker experience…
There is no error in the primary judge’s approach nor was it legally unreasonable. The reasons of the primary judge were adequate in dealing with the issues as raised by the parties. They provide a clear exposition of the basis of the primary judge’s determination. There is no merit to Ground 5E.
GROUND 6
Ground 6 contends that the primary judge’s reasons in rejecting the appellant’s arguments advanced upon a conventional and equitable estoppel basis were inadequate.
The primary judge clearly considered all of the appellant’s arguments, argued at length in his very detailed submissions, that it was not just and equitable to adjust the parties’ property. The primary judge found against the appellant’s position contending that it was so. Implicit in the primary judge’s determination was a consideration of all of the submissions advanced in support of his argument that the Court should determine that it was not just and equitable to adjust the property of the parties. A clear reading of the judgment as a whole and in particular at [64] and [65], makes plain that the primary judge clearly had in contemplation all of the arguments advanced by the appellant, including those based on notions of estoppel.There is no merit to Ground 6.
GROUND 7
By Ground 7 the appellant contended that the primary judge erred, was legally unreasonable and provided inadequate reasons in determining that it was just and equitable in the terms of s 79(2) to consider making an order pursuant to s 79 or what order if any should be made.
The primary judge’s determination of the s 79(2) considerations commenced at [59], the primary judge identifies the matters relevant to a determination as to whether it was just and equitable at [62]–[65], rejects the appellant’s contentions as to financial autonomy, and determined that it was appropriate that the Court should consider making an adjustive order. Thereafter, the primary judge assessed the contributions of the parties and having regard to the matters under s 75(2) determined at [214], that the orders made were just and equitable.
There is no merit to any of the appellant’s arguments that the primary judge erred, was legally unreasonable or gave inadequate reasons. A reading of the judgment as a whole reveals the reasoning process. The fact that the appellant does not accept the primary judge’s determination is not evidence of error.
The appellant in his Summary of Argument contends that the Court is required, in making its just and equitable determination, to have regard to the deprivation of a party’s property and that the Court did not consider this issue. It is self-evident from the paragraphs referred to above and the primary judge’s determination that the circumstances were such that the appellant was required to make a payment to the respondent. The appellant also submitted that the primary judge proceeded on assumptions consistent only with the community property regime, citing various paragraphs in the judgment. The appellant misquotes the primary judges’ reasons. None of those paragraph’s support in any way the contentions advanced on behalf of the appellant.
The ground also contended that the primary judge proceeded on an assumption that an order for adjustment of property must follow from property having been acquired during the relationship and that the respondent had a right to have property divided. No part of the appellant’s submission identifies where in the reasons of the primary judge his Honour proceeded on the basis of such assumptions or rights. It again misquotes the primary judge’s reasons. There is no merit to Ground 7.
GROUND 8
Ground 8 contends error on the part of the primary judge in failing to rationally and adequately consider and/or provide adequate reasons where “the parties had not adopted an attitude that the marriage was a practical union of lives and property”. In furtherance of the ground, the appellant repeats aspects of earlier grounds to the effect that the parties kept their property separate, there was not an assumption that property would be shared, and that the parties led separate social lives all of which were “core aspects” of the appellant’s case.
There is no merit to any part of Ground 8. The primary judge was acutely aware of the appellant’s case but the ground proceeds upon the erroneous assumption that because the primary judge did not accept the appellant’s case, the primary judge was in error. Whilst it was clearly the appellant’s case that the nature of the parties’ relationship and various assumptions that underpinned it provided the foundation for the arguments he advanced, those assumptions were not in every instance accepted either by the respondent or the primary judge. The appellant has not successfully challenged the factual findings of the primary judge that underpinned the overall determination.
While the respondent accepted that there was no conversation about the parties pooling their assets, the primary judge did not find that the parties had conducted themselves as financially autonomous, particularly during the years when the respondent was not working and financially dependent upon the appellant. It does not constitute error on the part of the primary judge to make findings contrary to the case advanced by the appellant.
A reading of the judgment as a whole clearly reveals that the primary judge considered all of the relevant matters and provided clear and transparent reasons that addressed the multiplicity of arguments advanced by the appellant. There is no foundation to the appellant’s assertion that the primary judge did not consider relevant matters or provided inadequate reasons.
There is no merit to Ground 8.
GROUND 9
This ground is a repetition of other grounds disguised in different language, contending that it was not just and equitable to affect a division of the parties’ assets or in contending erroneously that the respondent failed to make any material contributions. The primary judge, in a conventional and orthodox fashion, having determined that it was just and equitable to make orders, assessed the parties’ contributions and having regard to those contributions, made orders that were just and equitable. The ground also proceeds erroneously in contending that orders were made in relation to the appellant’s house. No such order was made other than by way of default in the event the appellant failed to comply with an order to pay the respondent a sum of money. The ground is without merit.
GROUND 10
Ground 10 contends that the primary judge erred in assessing the various contributions of the appellant, including failing to assess as a financial contribution the reduction of the mortgage, the asserted “lifestyle sacrifices made by the [appellant] alone” and that the appellant was the sole financial and non-financial contributor in the time between separation and final hearing.
There is no merit to any aspect of this ground. The primary judge had regard to the appellant’s contributions by way of reduction of the mortgage. The primary judge recorded as undisputed the contributions by the appellant of the redundancy in reduction of the mortgage, the income of the appellant applied to the mortgage payments and living expenses of the parties, the payment in late 2020 of the line of credit by the appellant, the renting out of the Suburb B property by the appellant in early 2022, and maintenance works undertaken on the Suburb B property by the appellant between early 2022 and late 2022.
There is no merit to Ground 10.
GROUND 11
Ground 11 contends that the assessment of contribution and the orders made early 2024 were manifestly unjust and unreasonable and that the Court exceeded its jurisdiction by going further than the justice of the case demanded. Much of the ground constitutes a submission stemming from a grievance of the appellant that the primary judge did not determine the case in the manner the appellant urged, or alternatively, repeats assertions of error the subject of other grounds. To the extent they do so, they will not be considered again. They otherwise fail to articulate error.
The primary judge assessed in a holistic fashion all of the contributions of the parties over a long relationship, reaching a determination as to how the contributions should be assessed in relation to the superannuation and non-superannuation assets and determining that there should be no adjustment under s 75(2). The primary judge accepted the appellant’s contributions exceeded those of the respondent. Despite asserting in the ground that the primary judge disregarded contributions of the appellant, no argument is advanced identifying which contribution of the appellant was disregarded. It represents yet again a misquoting of the primary judges’ reasons. There is no element of the primary judge’s discretion that miscarried, and the determination of the primary judge was well within the reasonable bounds of the exercise of discretion.
The primary judge was conscious that the assessment of contributions was not an accounting exercise albeit that the appellant determined the Court should do so. To the extent that the appellant insists the primary judge was in error in failing to have regard to what was described in the ground as “objective mathematical reality” (appellant’s Further Amended Notice of Appeal filed 31 May 2024) is unsupported by authority.
The approach urged by the appellant as to the assessment of contributions is inconsistent with that urged by established authority.
The primary judge considered the contributions of the appellant in providing the Suburb B property. The appellant’s arguments that he is in somehow prejudiced and deprived of the value of an asset he contributed is without merit. It is merely a consequence of the primary judge’s determination that the appellant takes on a mortgage. That is the appellant’s choice.
Ground 11 is without merit.
GROUND 12
Ground 12 asserted the primary judge was in error in adopting a global approach as opposed to an asset-by-asset approach to the assessment of contributions. The appellant’s Summary of Argument contended that “adoption of the wrong approach will be an error” citing the Full Court’s decision in Lenehan and Lenehan (1987) FLC 91-814. The appellant misquoted the Full Court. Their Honours did not say that it will constitute an error, rather it may constitute error.
The adoption of a global as opposed to an asset-by-asset approach is a matter of the primary judge’s discretion. The primary judge identified the pool of assets at [94] noting that it comprised the Suburb B property, two bank accounts in the appellant’s name, a motor vehicle in the respondent’s name and another motor vehicle in the appellant’s name. There were thus three discrete categories of property. As the High Court in Norbis observed at 533:
… The legislation confers a discretion upon the court which, provided the required matters are taken into account, does not dictate the employment of any particular method in the formulation of an appropriate order for the alteration of property interests…
The primary judge did that which the High Court identifies is necessary. The primary judge identified at [98] of the judgment, his Honour’s reasons for adopting a global approach. The assertion that the primary judge’s approach was applied “irrationally” is offensive and unwarranted. The primary judge identified and assessed all of the relevant contributions and did not, as the appellant incorrectly submits, value “part of the husband’s contributions at nothing” (appellant’s Summary of Argument filed 6 June 2024, paragraph 39). Consistent with many of the hyperbolic submissions of the appellant, the submission does not identify by reference to the reasons where or which of the appellant’s contributions were valued at nothing.
There was nothing, other than the appellant’s view, about this case that warranted other than a global assessment. The primary judge correctly adopted a global assessment.
There is no merit to Ground 12.
GROUND 13
This is merely a repetition of earlier grounds asserting error by the primary judge in determining that it was just and equitable to alter the legal and equitable interests of the parties in the parties’ property. There is no merit to any part of Ground 13.
GROUND 14
The ground contends that the primary judge erred in adopting a presumption and then treating it as irrebuttable, contrary to statute and the evidence. The appellant’s Summary of Argument contended that the adoption by the primary judge of a “presumption” arising from Parshen v Parshen (1996) FLC 92-720 (“Parshen”) “was contrary to law” (appellant’s Summary of Argument filed 6 June 2024, paragraph 43).
Parshen does not speak of presumptions, but inferences. The appellant submitted that the primary judge “presumed … that money earned by the [respondent] was used for the benefit of the family unit and was a financial contribution” (appellant’s Summary of Argument filed 6 June 2024, paragraph 43). The contention on the part of the appellant misquotes the findings of the primary judge. At no point in either the ground or the Summary of Argument does the appellant identify where the primary judge did that which is contended, he did. Further the appellant conceded that the respondent expended money on the children and on expenses for the family. There is no merit to Ground 14.
DISPOSITION
The Further Amended Notice of Appeal and the Application in an Appeal will be dismissed.
At the end of the appeal hearing, the parties wished to be heard on the question of costs once the outcome of the appeal was known. I propose to make directions to give effect to such a position.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 6 September 2024
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