Coventry and McNamee - [2011] FamCAFC 123

FAMILY COURT OF AUSTRALIA

COVENTRY & MCNAMEE

[2011] FamCAFC 123

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – superannuation – assessment of the husband’s contribution to his superannuation at the commencement of cohabitation and post-separation – where the husband was the sole contributor to the superannuation fund both pre-cohabitation and post-separation – where the wife made significant indirect contributions in the level of responsibility she assumed for the parties’ children during cohabitation and post-separation – whether the Federal Magistrate erred in weighing up each parties’ contributions and determining that husband’s superannuation entitlements be assessed at 60 percent to the husband and 40 per cent to the wife – whether the Federal Magistrate failed to provide adequate reasons for her decision – no merit found in any ground of appeal – appeal dismissed.

Family Law Act 1975 (Cth) s 75(2) and s 79(4)

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627
House v The King (1936) 55 CLR 499 at 504
Gronow v Gronow (1979) 144 CLR 513 at 519
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279
Bennett and Bennett (1991) FLC 92-191 at 78,266
Wen & Thom [2010] FamCAFC 81 at [57]

APPELLANT:

Mr Coventry

RESPONDENT:

Ms McNamee

FILE NUMBER:

ADC

987

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1379

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Berman

SOLICITOR FOR THE APPELLANT:

David Burrell & Co

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Maloney & Partners Family Law

Orders

The appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Coventry & McNamee is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 17 of 2010
File Number: ADC 987 of 2009

Mr Coventry

Appellant

And

Ms McNamee

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Coventry (“the husband”) against property settlement orders made by Federal Magistrate Mead on 23 December 2009 in proceedings between the husband and Ms McNamee (“the wife”).
In summary, the Federal Magistrate assessed the parties’ contributions to the two assets available, namely, the equity in the former matrimonial home and the value of the husband’s superannuation entitlement, separately. Her Honour found that the parties’ contributions to the former matrimonial home should be assessed 60 per cent/ 40 per cent in favour of the wife and that the contributions to the husband’s superannuation entitlement should be assessed at 60 per cent/ 40 per cent in favour of the husband. Her Honour determined that there should be a 10 per cent adjustment on account of s 75(2) factors in favour of the wife with respect to the equity in the former matrimonial home, such that this was to be divided 70 per cent/ 30 per cent in her favour.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The wife seeks that the husband’s appeal be dismissed.

Background

At the time of the trial the husband was aged 43 years and the wife was aged 41 years.
In 1984 the husband enlisted in the Royal Australian Air Force (“RAAF”). At the time of trial the husband was employed as an Engineer and was a senior officer. The wife was not in paid employment.
The parties commenced a relationship in 1991.
In July 1993 the parties purchased a property in H (“the H property”). In approximately February 1994 they commenced to reside in this property, along with the wife’s son K from a previous relationship. K was aged 21 years at the time of the trial.
The parties married in February 1995.
There are three children of the marriage, E born in August 1995, R born in February 1997 and B born in May 1999. The children were thus aged 14, 12 and 10 years respectively at the time of trial.
The parties separated on 8 July 2001 and their divorce became final on 27 December 2002.
Following separation the wife, the parties’ three children and K continued to reside in the former matrimonial home. For three months following separation the husband continued to meet all household expenses, prior to the wife commencing to receive Commonwealth benefits and the issuing of a child support assessment. The wife has been the children’s primary carer since separation.
From 2001 until the time of trial the husband lived in rental accommodation, initially on the RAAF base and subsequently in private rental accommodation.
On 17 March 2009 the husband filed an Initiating Application seeking property settlement orders. The husband also sought leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to commence proceedings more than twelve months after the parties’ divorce was granted.
On 4 May 2009 an order was made by consent granting the husband liberty to proceed with his application for property settlement.
The trial was heard by Federal Magistrate Mead on 18 September 2009. Her Honour delivered her reasons for judgment on 23 December 2009 and made orders on this date for the wife’s solicitor to forward to the husband, the Court and the relevant trustees of the husband’s Military Superannuation and Benefits Scheme (“MSB”) a draft minute of order encompassing the terms of the judgment.
The final orders the subject of this appeal were made on 24 February 2010.
On 12 March 2010 orders were made by consent staying orders 1 and 3 of the orders made on 24 February 2010 “up to and inclusive of 12 April 2010”.

Reasons for judgment of the Federal Magistrate

After summarising the approach to be taken by the court in determining an application for property settlement orders, the Federal Magistrate provided a background of the matter, as outlined above, before outlining the orders sought by the parties. In summary, the husband proposed that the wife retain the former matrimonial home and assume the responsibility for the liabilities in relation to the same, and that he make a small cash payment to the wife. The husband contended that the equity in the former matrimonial home should be divided 60 per cent/40 per cent in favour of the wife and the wife receive

60 per cent of 30 per cent of the current value of his superannuation fund (with 30 per cent being the percentage of the superannuation entitlement the husband asserted accrued during cohabitation). The wife contended that the husband’s interest in the former matrimonial home should be 30 per cent and that she had a 40 per cent “interest” in the current value of the husband’s superannuation fund. The wife sought that the husband’s interest in the former matrimonial home be set off against the wife’s “interest” in the husband’s superannuation such that the wife would retain the former matrimonial home and receive a “splittable interest” in the husband’s superannuation with a base amount of $157,000.
Turning to determine the asset pool, there were only two relevant assets, namely the former matrimonial home and the husband’s superannuation entitlement, and the parties were agreed as to the value of each. The home had a net value of $252,000 and the husband’s superannuation entitlement was $581,457. Although the husband agreed that the value of his superannuation as at 30 May 2009 was $581,457, the husband contended that this was not the appropriate amount to take into account. Rather, the husband argued that the only amount that should be taken into account is the amount accrued during the parties’ cohabitation, namely $134,735.
The Federal Magistrate then turned to consider the parties’ contributions. The parties were, in principle, in agreement that the husband made the major direct financial contribution to the acquisition, improvement and conservation of the parties’ property during the course of the relationship and that the wife made the major non-financial contribution by way of her home maker and parenting role. Her Honour recorded that the husband conceded that the wife should be taken to have made a significant contribution to that amount of his current superannuation entitlement that had accrued during cohabitation, namely $134,735, and that the wife had been the primary caregiver for the parties’ children during cohabitation.
Her Honour found that taking into the account the parties’ initial financial contributions to the purchase of the H property, their contributions of furniture, the husband’s financial contributions by way of wages and a retention benefit during cohabitation and the wife’s significant contribution by way of her home maker and parenting role, that the parties’ contributions as at the date of separation should be assessed as being equal.
Her Honour also found that due to the level of responsibility that the wife assumed for the parties’ children during cohabitation that the husband’s capacity for study and the advancement of his career was enhanced, which was of benefit to the parties during cohabitation and to the husband following separation, particularly in respect of the high level of his superannuation entitlement.
Her Honour recorded that the parties were on “less common ground” in relation to post-separation contributions, however.
It was the wife’s case before the Federal Magistrate that her post-separation contribution was significantly greater than that of the husband’s due to her “vastly greater role” with respect to the care of the children, which had in turn enabled the husband to undertake further study and career development. It was the wife’s case that the significant increase in the husband’s superannuation entitlement directly related to her parenting efforts both during the marriage and post-separation.
The husband also contended before the Federal Magistrate that he had made significant post separation contributions, including direct financial contributions to the mortgage over the former matrimonial home at various times until approximately October 2005. The husband argued the wife had had the exclusive use and occupation of the former matrimonial home, which was a significant benefit to her and contended that the wife had engaged in deliberate conduct to thwart his efforts to resolve the property settlement issues between the parties since their separation. In this respect her Honour noted that neither party had filed any application in relation to property settlement until nearly eight years after separation, although her Honour was satisfied that nothing turned on this argument by the husband.
Her Honour, after outlining the husband’s care of the children post separation, concluded that there was no doubt that the overwhelming responsibility for the care of the children since separation had been met by the wife, and that there should be an adjustment in the wife’s favour on account of that contribution. Her Honour was also satisfied that the wife had made an indirect contribution to the current level of the husband’s superannuation entitlement.
The Federal Magistrate reiterated that the wife’s care of the children during the marriage allowed the husband to study, improve his qualifications and as a result improve his rank, his salary and thereby his superannuation entitlement, given it was a defined benefit. Her Honour found that this contribution had continued post-separation.
Her Honour took into account that the wife had had the use and occupation of the former matrimonial home since separation, which had been of benefit to her. However, her Honour was not satisfied that, save for a short period immediately after separation, the husband had made a financial contribution to the expenses of the home as adjustments had been made to his child support obligations to account for the financial contributions he made in that regard.
Her Honour thus determined that the parties’ contributions should be assessed in relation to an asset pool comprising of the equity in the former matrimonial home and the total of the value of the husband’s superannuation as at

30 May 2009. However, her Honour determined to assess the parties’ contributions in relation to the two assets separately.
Her Honour found there should be an adjustment of 10 per cent in favour of the wife with regard to the equity in the former matrimonial home such that the parties’ contributions to this asset should be assessed 60 per cent/40 per cent in her favour.
Her Honour determined that the husband’s overall contribution to his superannuation entitlement had been greater, in that he had undertaken the study and additional work necessary to improve his employment prospects, and as a result his income and superannuation entitlement, and that there should thus be an adjustment in the husband’s favour such that the contributions to the husband’s superannuation entitlement should be assessed 60 per cent to the husband and 40 per cent to the wife.
Her Honour then turned to consider the factors outlined in s 75(2) of the Act. Given that there is no challenge to the Federal Magistrate’s consideration of s 75(2) it is unnecessary to set out in detail her Honour’s findings and reasons in this regard. However, in summary, after considering the relevant s 75(2) factors, her Honour found that the husband’s income was significantly greater than the wife’s, as were his financial resources. The Federal Magistrate recorded that although the wife had, by assuming primary responsibility for the care of the children, contributed to the current financial position of the husband including his superannuation entitlement, an adjustment had already been made on account of this fact when determining the parties’ contributions. Her Honour found that the wife’s capacity to earn an income had been affected by the duration of the marriage and her primary care of the children. Her Honour considered it reasonable for the wife to have an opportunity to re-train in the future to enable her to earn adequate income to support herself and to share the financial support for the children. Taking all these matters into account her Honour determined that there should be an adjustment in the wife’s favour of 10 per cent, however, this adjustment was only to be made with respect to the parties’ equity in the former matrimonial home.
Her Honour thus recorded that the equity in the former matrimonial home was to be divided 70 per cent/30 per cent in favour of the wife and the wife was to be “entitled to an amount equal to 40 per cent of the value of the husband’s superannuation entitlement as at 30 May 2009.” [Paragraph 120]
Her Honour then turned to consider how this division of assets would be effected. The husband did not argue at trial against the wife retaining the former matrimonial home, but argued that there should not be a splitting order with respect to his entitlement in the MSB Scheme.
As will become apparent from a discussion of ground one of the appeal, what the Federal Magistrate then said at paragraph 125 is of relevance:
I have found that the wife’s contribution based entitlement with respect to the husband’s superannuation entitlements should be fixed at 35 per cent of the value of those entitlements as at 30 May 2009, being the sum of $232,582.80. (Emphasis added)
Her Honour accepted the wife’s proposal that any amount which she would have to pay to the husband with respect to the former matrimonial home should be offset against her “interest” in the husband’s superannuation fund and that the base amount for the splitting order sought should be reduced by that sum, such that the base amount should be $157,000.
Finally, her Honour indicated that she could not make final orders at that time as the trustees of the husband’s superannuation fund needed to be provided with a copy of the draft orders to ensure procedural fairness. Her Honour thus proposed that the wife’s solicitor prepare a minute of order incorporating the orders proposed in the judgment and forward the same to the husband, the MSB fund and the Court.

Orders made on 24 February 2010

Final orders were ultimately made by the Federal Magistrate on 24 February 2010. Those orders provided, inter alia, for the husband to transfer to the wife his interest in law and equity in the former matrimonial home, with the wife to contemporaneously discharge the mortgage over the property, obtain re-finance and indemnify the husband from any future liability.
The following order was made with respect to the husband’s superannuation entitlement:
1.5 With respect to the husband’s superannuation entitlement with the Military Superannuation and benefits Scheme member number …
1.5.1that the Court allocate, as required by section 90MT(4) of the Family Law Act 1975 a base amount of ONE HUNDRED AND FIFTY SEVEN THOUSAND DOLLARS ($157,000) to the wife;
1.5.2that pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of the husband’s interest in the said Military Superannuation and Benefits Scheme (the MSB) the wife is entitled to be paid (by the Trustee of the MSB) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction to the entitlement the husband would have had in the said MSB but for this order;
1.5.3that order 1.5.2 has effect from the operative time;
1.5.4that the operative time for these orders is four (4) days from the date on which a sealed copy of these consent orders is served upon the Trustee of the MSB
…
The husband only appeals order 1.5.1.

Grounds of appeal

The husband’s Notice of Appeal filed on 24 March 2010 contains the following grounds of appeal:
1.      That upon the Trial Magistrate finding that the wife’s entitlement to the husband’s superannuation should be fixed at 35 percent she fell into arithmetical error by calculating the value of such entitlement to be $232,580.80 instead of $203,509.95.
2.      That the Trial Magistrate erred in failing to five [sic] proper weight to the contribution of the husband of his superannuation entitlement at the commencement of cohabitation.
3.      That the Trial Magistrate erred in failing to give proper weight to the post separation contributions of the husband to his superannuation entitlement.
4.      That the Trial Magistrate erred in failing to give adequate reasons as to how the contributions of the parties to the superannuation entitlement of the husband were reconciled.
In the event the appeal is successful the husband seeks a re-exercise of discretion and for this Court to “assess the entitlement of the wife to the husband’s superannuation entitlements at 25% being a value of $145,364.00 less the adjustment of $75,600 resulting in the base amount of a splitting order (paragraph 1.5.1 of the Order) being reduced to $69,764.00.”

Principles applicable to the appeal

This is an appeal against an exercise of discretion by the Federal Magistrate. The principles applicable to an appeal from a discretionary judgment are well settled as follows.
The limitation of an appellate court hearing an appeal from a discretionary judgment was discussed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 where his Honour said at 627:
… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated at 519:
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.
Similarly, in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, Asquith LJ said:
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

Discussion

Ground 1 – Alleged arithmetical error

The issue here is whether the trial judge made a typographical error in paragraph 125 of her reasons in referring to the wife’s percentage entitlement to the husband’s superannuation as 35 per cent instead of 40 per cent. If this is not an error then her Honour made a mathematical error in that same paragraph in converting the percentage entitlement to a monetary figure. Further, if 35 per cent is correct then her Honour must also have a made an error in paragraphs 64 and 102 where she recorded 40 per cent.
It is quite apparent to me that the wife is correct and the reference to 35 per cent is a typographical error. Everywhere else in the judgment the percentage is referred to 40 per cent and that is the percentage represented ultimately in the final orders made by the Federal Magistrate.
Thus this ground of appeal must fail but the typographical error still needs to be corrected and I propose alerting the Federal Magistrate to this with a view to her Honour applying the slip rule and amending this reference in her reasons for judgment.

Ground 2 – Assessment of the husband’s contribution to his superannuation entitlement at the commencement of cohabitation

Ground 3 – Assessment of the husband’s contribution to his superannuation entitlement post-separation

Ground 4 – Adequacy of reasons challenge

These grounds can usefully be dealt with together.
Correctly in my view the Federal Magistrate rejected the husband’s submission that “the only amount of his superannuation that should be taken into account when assessing contributions is $134,735” which apparently was the amount of the superannuation that accrued during the period of cohabitation. The approach then that her Honour adopted, and again correctly in my view, was to take the value of the superannuation as at the closest date to the hearing as was possible on the evidence and then assess the respective contributions of the parties to that superannuation pursuant to section 79(4) of the Act.
There is no doubt on the evidence that the husband made a greater contribution to his superannuation than the wife. Firstly, he in effect became a member of the superannuation fund approximately ten years before the commencement of cohabitation and during that time he made the sole contributions. Secondly, after separation the husband was again the sole further contributor to the fund.
The complaints are that her Honour did not give proper weight to the husband’s contributions pre-cohabitation and post-separation and her Honour did not give adequate reasons as to how her Honour dealt with the contributions of the parties to the superannuation and in particular the husband’s contributions.
It is quite apparent from her Honour’s reasons that she was alert to the fact that the husband was the sole contributor to his superannuation pre-cohabitation and the sole further contributor post-separation. For example, I refer to paragraph 25 of her Honour’s reasons.
However, her Honour was also aware of the significant indirect contributions made by the wife in the form of the level of responsibility she assumed for the parties’ children during cohabitation (paragraph 45 and 46). This enabled the husband to study and advance his career which led to his ability to increase the level of his superannuation. Her Honour also found that this indirect contribution continued beyond separation (see paragraph 55 and 59 of her Honour’s reasons). Importantly there is no challenge in this appeal to her Honour’s findings as to the wife’s indirect contributions during cohabitation and post-separation.
Having identified the respective contributions of the parties to the husband’s superannuation it was then necessary for her Honour to weigh up those contributions and determine what percentage entitlements each party should receive. Her Honour did this and concluded as follows in paragraph 64 of her reasons:
Although the wife has made a significant contribution to the current value of the husband’s superannuation entitlements, I find that his overall contribution has been greater in that he has undertaken the study and the additional work necessary to improve his employment prospects and accordingly, his income and his superannuation entitlements, and notwithstanding the very significant contribution made by the wife that has effectively enabled him to have the capacity so to do, there should still be an adjustment in his favour such that the contribution to the current value of the husband’s superannuation entitlements should be assessed at 60 per cent to the husband and 40 per cent to the wife.
To now bring in the complaint by the husband of inadequate reasons the husband says in effect that her Honour failed to explain how she had taken into account the husband’s initial contribution and his post-separation contributions.
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision. The law with respect to the need to provide adequate reasons is also well settled as follows.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 279 that:
without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and Finn JJ) said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours continued at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
As Coleman J recently observed in Wen & Thom [2010] FamCAFC 81 with respect to adequacy of reasons:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case 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.
Here, as I have demonstrated, her Honour was in no doubt as to the extent of the contributions not only of the husband but also of the wife, and her Honour articulated that in her reasons for judgment.
For my part, I have been able to “discern … the path by which the result has been reached”, and with respect to the husband’s counsel what more her Honour could constructively have added to her reasons for judgment is difficult to imagine.
This path involved of course the exercise by her Honour of a wide discretion, and it may be that other conclusions less generous to the wife were reasonably open to her Honour, or might have fallen from a different judicial officer, but that is not the test for present purposes. The well known passage from Bellenden (formerly Satterthwaite) v Satterthwaite set out above in paragraph 49 is relevant in this context. Further, nothing to which I have been referred persuades me that her Honour exceeded “the generous ambit of her discretion”.
Finally, I observe that the husband contends that insufficient weight was given to his contributions “particularly in circumstances where the amount of adjustment required to be paid by the wife to the husband in respect of the non-superannuation asset (the former matrimonial home) is dealt with by way of a deduction (without discount from the base amount of $232,582) to produce a new base amount of $157,000”. However, as was pointed out by the wife,
No argument was put forward that the amount should be discounted. It was the husband’s contention that his equity in the former matrimonial home ought to be sent off against the wife’s entitlement in the husband’s superannuation fund. Her Honour was not asked to consider any discounting of the figures.
In these circumstances there is no merit in these grounds of appeal.

Conclusion

Given that I have found no merit in any of the grounds of appeal, the appeal will be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

9 June 2011.

Associate:

Date: 9 June 2011