CZEB & CZEB
[2012] FamCAFC 53
•3 April 2012
FAMILY COURT OF AUSTRALIA
CZEB & CZEB [2012] FamCAFC 53
FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Not established that the trial Judge palpably misused the advantage which he enjoyed in relation to the credit of the parties ─ Where to the extent that the husband complained that the trial Judge erred in concluding that most of the wife’s superannuation interest had accrued subsequent to the parties’ separation, nothing to which the Court was referred provided support for finding such complaint to have been made out ─ Where the Court found that the trial Judge’s conclusion fell comfortably within the “broad ambit” of the discretion he was exercising (see Norbis v Norbis (1986) 161 CLR 513) ─ Not established that the trial Judge’s assessment of the disparity of contributions in favour of the wife was vitiated by material errors of fact, or exceeded the generous ambit of discretion ─ Not established, even without reference to the so-called “Kennon” factor that the trial Judge’s discretion miscarried with respect to the contribution based entitlements of the parties ─ Not established that the trial Judge erred in the exercise of his discretion in declining to make a s 75(2) adjustment in favour of the husband ─ Where the circumstances surrounding and following the making of the alleged agreement suggested numerous bases upon which it may have been void, invalid or have been invalidated ─ Not established that the trial Judge erred in declining to enforce the agreement asserted by the husband ─ Where in the absence of the trial Judge in any way increasing the wife’s interest because of the injuries which the wife sustained at the husband’s hands, the Court did not accept that the trial Judge erred in failing to increase the husband’s entitlement on the basis that he would, or might, have to reimburse the Criminal Injuries Compensation Tribunal for up to $50,000 paid out to the wife by it ─ Appeal dismissed
FAMILY LAW ─ APPEAL ─ Costs order made by trial Judge ─ Not established that the trial Judge’s discretion miscarried in awarding the wife indemnity costs on the basis he did ─ Not demonstrated that the trial Judge’s exercise of discretion was based upon erroneous findings of fact or that it was vitiated by erroneous application of principle, or by reliance upon extraneous matters, or the failure to have regard to relevant matters ─ Appeal dismissed
FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where many of the husband’s complaints were plainly unsustainable, and doomed to fail ─ Where the Court was not satisfied that indemnity costs should be awarded in favour of the wife as the circumstances did not involve anything of an exceptional or unusual nature ─ Husband to pay the wife’s costs and reserved costs of and incidental to the appeal as agreed or assessed on a party and party basis
Family Law Act 1975 (Cth) s 75(2), Part VIII
Abalos v Australian Postal Commission (1990) 171 CLR 167
Champness & Hanson (2009) FLC 93-407
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Kamano & Kamano [2011] FamCAFC 189
Kennon & Kennon (1997) FLC 92-757
Norbis v Norbis (1986) 161 CLR 513
SS Hontestroom v SS Sagaporack [1927] A.C. 37,
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
Voulis v Kozary (1975) 180 CLR 177
APPELLANT: Mr Czeb
RESPONDENT: Ms Czeb
FILE NUMBER: SYC 7329 of 2008
APPEAL NUMBER: EAA 43 of 2011
DATE DELIVERED: 3 April 2012
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Coleman, Ainslie-Wallace & Ryan JJ
HEARING DATE: 12 March 2012
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 23 February 2011
LOWER COURT MNC: [2011] FamCA 87 REPRESENTATION
COUNSEL FOR THE APPELLANT: Self represented
SOLICITOR FOR THE APPELLANT: Self represented
COUNSEL FOR THE RESPONDENT: Mr Maurice
SOLICITOR FOR THE RESPONDENT: Pigott Stinson Orders
(1)That the appeal be dismissed.
(2)That the husband pay the wife’s costs and reserved costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Czeb & Czeb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EAA 43 of 2011
File Number: SYC 7329 of 2008
Mr Czeb Appellant
And
Ms Czeb Respondent
REASONS FOR JUDGMENT
introduction
1.By Notice of Appeal filed 21 April 2011, pursuant to an order extending the time in which to do so, Mr Czeb (“the husband”), appealed against orders made by Barry J on 23 February 2011 in proceedings for settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between the husband and Ms Czeb (“the wife”).
2.The trial Judge’s orders provided that the wife acquire the husband’s interest in the parties’ former matrimonial home at H in the State of New South Wales by paying to him 40 per cent of the parties’ equity in the property. Based on the evidence at trial in relation to the value of the property, and the mortgage outstanding over it, the payment to the husband was likely to have been approximately $165,470.
3.It is less than entirely clear from the husband’s Notice of Appeal what orders he sought in lieu of the orders made by the trial Judge, but it can reasonably be inferred that the husband sought relief substantially in the terms sought by him at trial, which was essentially the transfer to him of the wife’s interest in the former matrimonial home, free of encumbrance, together with a lump sum of $100,000, and $250 per week for a period of two years or $25,000 by way of further lump sum payment.
4.The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders.
5.By his Notice of Appeal filed on 21 April 2011, the husband also challenged an order for indemnity costs, assessed in the sum of $37,236 made against him by the trial Judge on 6 April 2011. The husband sought the discharge of that order.
6.The wife opposed the husband’s appeal and sought to retain the indemnity costs awarded to her by the trial Judge.
background
7.Both parties were born in Europe, the husband in 1960, the wife in 1961.
8.The parties initially commenced a relationship in approximately 1979, married in 1985 and separated in 2006.
9.The marriage was dissolved by Decree pronounced in December 2007.
10.There was one child of the marriage who was born in 1985, and was aged 22 years when the parties separated.
11.Both parties were qualified in a profession in a European country, but were unable to work as professionals in Australia. The parties came to Australia in 1998 and became citizens in 2000.
12.At the time the parties arrived in Australia they had assets of approximately $30,000. The trial Judge, then uncontroversially, found that they had contributed equally to the acquisition of those funds.
13.In 1999 the parties acquired the former matrimonial home at H for $290,000. A significant sum was applied to the purchase price together with a mortgage, the balance of which at the time of the trial was approximately $206,326.
14.At the time of trial, the wife was in employment from which she earned $150,000 per annum plus superannuation contributions based on 9 per cent of her salary. In February 2010 the wife commenced research work on a contract basis. The research contract provided remuneration of $160,000 per annum. The research work was continuing at the date of trial.
15.Since June 2007, the husband has been incarcerated, initially on remand, then, having been convicted in the District Court of New South Wales in 2009 to serve a sentence of 17 years imprisonment for a crime against the wife. The husband’s appeal to the New South Wales Court of Criminal Appeal against his conviction and sentence was unsuccessful, as was his subsequent application for special leave to appeal to the High Court.
16.The trial Judge found the value of the former matrimonial home at H to be $620,000. The balance of the mortgage secured over the property at the date of trial was $206,326. Those figures are not controversial for present purposes. The equity in the former matrimonial home was accordingly $413,674.
17.The trial Judge referred to “Items not included in pool” comprising bank savings of the husband $800 together with assets of the wife, bank savings $2,500, furniture (offset inter alia by unpaid legals) $10,000, motor vehicle $45,000, superannuation $77,656 and the wife’s car loan $52,000, her credit card debt $71,495, personal loans $57,192 and unpaid legal fees $21,000.
18.The trial Judge found that the majority of the wife’s superannuation interest had been accumulated subsequent to the parties’ separation, with no contribution of any kind by the husband. His Honour also found that the husband did not have a superannuation interest as he had not been employed and able to acquire such an interest prior to his incarceration and, clearly unable to do so after his incarceration.
19.The wife sought a division of the equity in the former matrimonial home of 60 per cent to the husband’s 40 per cent. The wife sought to support such entitlement in reliance upon the decision of the Full Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”). The trial Judge recorded that a “finding under the Kennon principle” was not “greatly relevant” as the wife established an entitlement to 60 per cent of the equity in the former matrimonial home by virtue of her contributions. His Honour found however that “her contributions in all aspects of the relationship were made more arduous as a result of being subjected to the violent behaviour” of the husband.
20.Ultimately, the trial Judge concluded that the evidence did not indicate that the husband’s violent behaviour towards her had “impacted” on the wife’s earning capacity, and that, for the reasons he had earlier articulated, it was unnecessary to consider whether any “further percentage entitlement should be made on account of the Kennon principle”.
21.The trial Judge’s Reasons for awarding the wife 60 per cent of the equity in the former matrimonial home were essentially that the wife’s financial contributions during the parties’ cohabitation and after its cessation greatly exceeded those of the husband. His Honour clarified his conclusion by then saying:
92.…
·To the extent that on review it may be thought that because of the significant imbalance in income that 60 per cent is an excessive award to [the wife] I would be prepared to invoke the principle in the Kennon case as detailed above by awarding her a minimum of an additional 10 per cent.
22.The trial Judge did not alter the entitlements of the parties by reference to any s 75(2) factor.
23.The husband’s current circumstances led the trial Judge to find that he had “no need for spouse maintenance”. The trial Judge dismissed the husband’s application for spousal maintenance, essentially on the basis that, as the husband would receive approximately $165,000 “with the possibility [subsequently realised] this may be reduced by an award of costs” the husband could not demonstrate that he was unable to support himself without an award of maintenance.
24.On 6 April 2011 the trial Judge awarded the wife indemnity costs, which he assessed at $37,236. The basis of the award was essentially the husband’s conduct of the proceedings [par 13], and the outcome of the wife being wholly successful and the husband being wholly unsuccessful.
25.The trial Judge found that the husband had made, and persisted with “outlandish claims” in circumstances where, as his own material revealed, the husband was “familiar with the principles of property settlement division in this jurisdiction” [par 20]. The husband was found to have adopted a position which was “so outrageous as to be untenable”, whilst the wife’s position was “measured and reasonable” [pars 21-22]. These matters were also relied upon by the trial Judge.
26.Having received submissions in relation to the issue, the trial Judge assessed the indemnity costs payable by the husband in the sum of $37,236. Whilst the husband has challenged his liability for indemnity or party and party costs, he has not challenged the trial Judge’s assessment of such costs.
grounds of appeal
27.The grounds articulated in the husband’s Notice of Appeal are lengthy and, in many instances more in the nature of submissions than grounds of appeal as such. It is difficult to discern in many instances a legal basis for the husband’s challenges, although the major complaints of the husband are abundantly apparent from his grounds of appeal and comprehensive 24-page Summary of Argument in support of them.
Grounds 1 and 2
28.Grounds 1 and 2 assert, albeit not quite in those words, that the orders made by the trial Judge were not just and equitable in that they fell beyond the ambit of a reasonable exercise of discretion. The husband asserted that the effect of the trial Judge’s orders was that the wife retained a sum of approximately $248,204 representing 60 per cent of the equity in the former matrimonial home together with a superannuation or pension interest in a Scandinavian country of $58,000, an Australian superannuation interest of $77,656, an inheritance in a European country of $80,000, household effects, savings and the like of $31,500, a motor vehicle of $45,000 and $50,000 likely to be awarded to her out of the property of the husband by way of victims compensation.
29.By comparison, the husband asserted that he would be left with only the $160,576 approximately representing 40 per cent of the equity in the former matrimonial home, reduced by $37,236 indemnity costs. The husband asserted that he had actual or contingent liabilities approximating $198,000 to meet out of such sum.
30.At trial the wife disputed that she had an interest in superannuation in a Scandinavian country, or that she had an inheritance in a European country. Later grounds of the husband’s Notice of Appeal challenge the trial Judge’s rejection of the husband’s assertions in relation to these topics.
31.The trial Judge was aware that the wife had a motor vehicle worth $45,000 but, sensibly, also referred to the $52,000 debt relating to it. The wife’s motor vehicle thus represented a net liability of $7,000.
32.The husband complained about the trial Judge’s refusal to treat as an asset of the wife, and as a liability of his, the likely award of $50,000 to her by way of victims compensation resulting from the violent conduct of the husband towards her which led to his imprisonment for a term of 17 years.
33.Nothing articulated in support of grounds 1 and 2 advances the husband’s complaints with respect to the wife’s Scandinavian superannuation, European inheritance or likely victims compensation award. We will deal with those challenges later in these Reasons, and in the context of the Grounds of Appeal in which they are specifically raised.
34.The husband complained that the trial Judge failed to have regard to the wife’s vastly greater earning capacity ($310,000 per annum plus superannuation contributions) compared with his inability to earn for a significant period into the future. In support of these grounds, the husband submitted that the disparity of earning ability warranted a “very significant” adjustment, suggesting 25 per cent in his favour to have been appropriate.
35.Finally, in the context of these grounds, the husband asserted that the trial Judge had failed to have regard to the wife’s failure to make a full and frank disclosure of her assets.
36.As is largely apparent from the terms of these challenges and the husband’s submissions in support of them, they cannot succeed. In the main, they constitute a cataloguing of complaints which the husband makes in other grounds to which we shall refer. We can however record at this point that nothing to which we have been referred, either in relation to these or other challenges, establishes that, although the wife may not have disclosed as readily or fully as she ought, no resources of the wife have been shown to have remained undisclosed, or inadequately disclosed, as at the date of judgment.
37.If the husband’s appeal is to be successful, it must be by reference to other grounds upon which the husband has relied.
Ground 3
38.Ground 3 of the Notice of Appeal provided:
Ground 3: The consequences of the judgement [sic] extended far beyond the percentage of the property awarded. [AB1: 6, par 8].
39.In support of this challenge the husband submitted:
[9]… The trial judge erred in vilifying the H, ascribing him attributes “violent”, “controlling” (J:92); “not prepared to work in an employed capacity or to operate a business successfully” (J:77); accept the W’s allegations of a violent relationship (J:83). The evidence showing otherwise is outlined in this document. (Original emphasis)
40.As with grounds 1 and 2, this ground in reality represents a summary of other complaints more fully agitated by the husband in later grounds of appeal. We shall address those challenges later in these reasons.
Ground 4
41.It is difficult to know where ground 4 of the husband’s Notice of Appeal concludes, and the submissions in support of the challenges it raises begin. The crux of the ground however seems to be that the trial Judge erroneously preferred the evidence of the wife to that of the husband where the two were in conflict.
42.After referring to a number of the trial Judge’s findings that were critical of his evidence, the husband asserted reasons why those findings were erroneous. Closely analysed, the essence of the husband’s complaint is that the trial Judge did not accept his version of events, where it was contrary to the wife’s version, or challenges to the reliability of the wife’s evidence with respect to such matters.
43.Nothing to which the husband has referred in support of ground 4 establishes that the trial Judge erroneously rejected allegations made by him at trial. Nor does anything to which we have been referred establish that the trial Judge erroneously rejected any admissible evidence adduced by the husband in support of such allegations. Nor has it established that the trial Judge erroneously accepted any evidence given by the wife.
44.Although the husband clearly does not accept it, a reading of the trial Judge’s Reasons confirms that, notwithstanding the shortcomings his Honour found with respect to the husband’s evidence, little ultimately turned on so doing. Many findings of fact recorded by the trial Judge were either uncontroversial, or found expression in the husband’s own evidence.
45.The trial Judge, and it seems the wife also, accepted the husband’s contention that the parties had contributed equally to the property they had at the time of their arrival in Australia in 1998. To the extent that the trial Judge did not include in the property of the parties a number of assets possessed by the wife, not including those assets, and a number of substantial liabilities of the wife, that was not to the detriment of the husband. Indeed, the exclusion of assets inclusive of superannuation interest totalling $135,156 and liabilities totalling $201,687, may have been to the detriment of the wife, but that is not a matter about which we need speculate.
46.It was not an issue that the wife had made all payments on the mortgage over the former matrimonial home subsequent to June 2007.
47.For the reasons we have earlier suggested, the trial Judge concluded that contributions favoured the wife by 60 per cent to the husband’s 40 per cent. The trial Judge accepted that the wife had been the “primary breadwinner” and that, “other than for relatively brief periods of time, whether in [Scandinavia] or in Australia” the husband had not made any significant financial contribution from employment or self-employment.
48.We have not been referred to anything which establishes that the trial Judge erred in so finding, or that, at trial, the husband had established that he had made a material financial contribution by way of income from employment or self-employment subsequent to the parties’ departure from a European country to a country in Scandinavia in 1991. Whether or not that evidence supported a finding that the wife’s contributions exceeded those of the husband by 20 per cent is another question, which requires determination in the context of grounds agitated later in the husband’s Notice of Appeal.
49.The trial Judge rejected the husband’s assertions with respect to the wife’s Scandinavian superannuation interest and European inheritance, topics which we will revisit in the context of other grounds raised by the husband. If established, those complaints may render the trial Judge’s exercise of discretion erroneous, but, as we have recorded above, the husband’s challenge to the trial Judge’s finding in relation to credit fails and, even if it did not, nothing would change as his Honour’s decision did not materially turn upon credit.
Ground 5
50.Again, it is difficult to suggest where the ground of appeal concludes, and the submissions in support of it begin. The crux of the complaint however seems to be that the trial Judge’s favourable findings with respect to the wife’s evidence, and financial disclosures, were erroneous having regard to the wife’s failure to disclose very substantial income from research work which she was undertaking under contract, the effect of which was to more than double her already substantial ($150,000 per annum) salary from employment.
51.The trial Judge found in this regard with respect to the wife’s employment:
25.[The wife’s] oral evidence to the Court when clarification was sought on this issue was that her employment produces an income of $150,000 a year together with superannuation payments based on 9 per cent of her salary. In addition, she has been doing research work. The research contract was for $160,000 per year. The contract commenced in February 2010 and was due to be completed at the end of November 2010. This additional income was not disclosed in her initial financial statement filed on her behalf but was clarified by a letter to [the husband] by her solicitors dated 28 April 2010 (exhibit 5).
52.It has not been established, either by reference to the initial non-disclosure of the wife’s additional income, or otherwise, that it was not reasonably open to the trial Judge to find as he did with respect to the wife’s evidence. We do not understand the husband to suggest that the wife had sources of income which remained undisclosed, or inadequately disclosed. As will be seen, the wife’s denials with respect to matters relating to Scandinavian superannuation and European inheritance were not contradicted by any documentation to which the trial Judge was referred, although the husband steadfastly maintained a contrary version of those events. Moreover, even if the wife had attempted to avoid disclosure of her contract earnings, it would not necessarily follow that she had attempted to avoid disclosing other assets or financial resources.
53.Nothing to which we have been referred establishes that the trial Judge erroneously preferred the evidence of the wife to that of the husband in relation to domestic violence, in respect of which there was corroborative evidence. In no other material respect was the evidence of the wife significantly controversial.
54.In support of the wife’s assertion that the challenges to the trial Judge’s conclusions with respect to the credibility of the parties should fail, Counsel for the wife referred to the decision of this Court in Champness & Hanson (2009) FLC 93-407 where the Full Court said:
15. …
In State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, Gaudron, Gummow and Hayne JJ commented on the “real advantages” enjoyed by a trial judge in making findings of fact. We respectfully adopt their Honours’ statement at [90]:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. (footnotes omitted). (Original emphasis)
55.This Court has not been referred to anything which establishes that the trial Judge palpably misused the advantage which he undoubtedly enjoyed in relation to the credit of the parties (see SS Hontestroom v SS Sagaporack [1927] A.C. 37, Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, Voulis v Kozary (1975) 180 CLR 177 and Kamano & Kamano [2011] FamCAFC 189).
56.Quite apart from the demeanour of the parties, and the disparate nature of the claims each maintained, the evidence of the wife was corroborated, or otherwise clearly able to be accepted in numerous respects, whilst that of the husband clearly lacked such support and/or was inherently improbable. It has not been established that the wife’s denials in relation to allegations made by the husband could not be accepted, or were glaringly improbable.
57.This challenge fails.
Ground 6
58.The heading to Ground 6 “The W’s Representations as to her Superannuation” encapsulated the basis of the husband’s complaint. In short, the husband asserted at trial, and continues to assert that, by reason of her full time employment in a country in Scandinavia between 1993 and 1998, the wife had acquired a superannuation interest in that country which she had failed to disclose. The wife denied that she had any interest which she should have disclosed.
59.The husband asserted that the trial Judge had erred in failing to find that the wife had a superannuation interest in a Scandinavian country. The passages of the transcript to which the husband referred clearly establish that the wife denied that she had any entitlement to a retirement or superannuation fund in a Scandinavian country, and the basis upon which she asserted that she was not so entitled. The passages of transcript relied upon by the husband establish no more than his assertion that the wife did have such an entitlement.
60.The evidence upon which the husband relied before the trial Judge, and has relied upon before this Court, is no more than unqualified opinion evidence, and/or hearsay. There was simply no evidence before the trial Judge which precluded acceptance of the wife’s denial that she had any entitlement to existing or potential superannuation benefits in Scandinavia.
61.This ground may also assert that the wife’s Australian superannuation interest was greater than she disclosed, insofar as the 9 per cent contribution made by or on her behalf should have been with respect to not only the $150,000 per annum salary which she was receiving, but also to the $160,000 which she was receiving pursuant to her research contract.
62.The husband cross-examined the wife in relation to her employment benefits. We have not been referred to or found for ourselves any suggestion by him to the wife that she was receiving any superannuation contribution over and above 9 per cent on her $150,000 salary, or any evidence that such was the case.
63.Nothing to which this Court has been referred establishes that the wife was receiving, or entitled to receive any contribution by way of superannuation with respect to her research contract.
64.Accordingly, we do not accept that the trial Judge erred in finding as he did with respect to the value of the wife’s superannuation interest. To the extent that the husband may complain pursuant to this ground that the trial Judge erred in concluding that most of the wife’s superannuation interest had accrued subsequent to the parties’ separation, nothing to which we have been referred provides support for finding such complaint to have been made out.
65.This challenge fails.
Ground 7
66.The complaints of the husband with respect to “The W’s Representations as to her Financial Affairs Overseas” involve three aspects.
67.The first aspect relates to the husband’s initial contributions. The husband asserted that he had property estimated, by him to be worth AU$18,000 at the commencement of the marriage in 1985.
68.As is apparent from the husband’s Summary of Argument, the figure appears to be based on the husband’s unqualified opinion of the value of items of personalty. The fact that the parties may, when they left Europe in 1991, have accumulated funds, does not establish, and the husband has not alleged, that he had those funds in 1985.
69.It has not been established that the husband had property to the value of AU$18,000 at the commencement of cohabitation, or that the trial Judge erred in failing to find that he did. In any event, whatever the husband may have had in 1985, his case before the trial Judge was that the parties’ contributions were equal in 1998.
70.The second aspect of ground 7 relates to the husband’s assertion that the wife has acquired an interest in property in Europe by inheritance.
71.The husband’s submissions in support of this challenge assert:
[23] …
[a]The H’s evidence: “In [Europe] [the wife] has properties which value I estimate to be about $80,000. According to [the wife’s] father’s will, after his death in 1997, [the wife] has inherited the following properties: [a] Land, urban, city [Location A] (value about $25,000; land area, I believe is 1,400 m²); [b] 3-bed-room house and land, [Location A1] (value about $55,000).” […];
[b]The W admitted that the property existed; she was to inherit it after her father’s death in 1997; she argued that she had no property since her step-brother had instituted proceedings to challenge the father’s will and was living at the property. The W admitted that the H organised her parents to be brought to [Scandinavia], The W claimed that she was responsible for their living expenses in [Scandinavia]; the H objected this [sic] evidence as being false […].
[c]The W is legally entitled to the property; can be legally represented in [the European country], as she was in Australia;
[d]The W depreciated the H’s contributions to the property, and the life-style of her parents; the W attempted to conceal her entitlement to the property (estimated value $80,000). (Original emphasis)
72.The husband referred the Court to cross-examination of the wife in which, he submitted, the wife had admitted to having inherited, or being entitled to inherit property in Europe. The husband relied upon the wife’s statement during cross-examination that:
I had a contract with my parents to support them when they’re old until they die and in return they will give me the house and the backyard and the plot in the second.
73.The wife had earlier rejected the husband’s suggestion to her that she was “the only inheritant” after the death of her father whose estate comprised “the house in the street of [Location A1].”
74.The wife proceeded however to say:
The contract – my father died. I went to see them in ‘91. My parents were still alive. My father died in ‘97. However, because they – I left them to be in [the European country], apart from a couple of months or in - they came to live for a while in [Scandinavia] and they went back to [the European country]. My two half brothers and my half sister contested the will with the court in [Location A], the city where I was born and where we lived, and to date this hasn’t been resolved. And my ex-husband knows that because he was the one to help me and he was the one to tell me how should I write to the court in [the European country] and try to defend my inheritance, which has never ever been given to me because it’s contested. I know for sure, for a fact, that one of my half brothers lives in that house. So with all that that you know, you still say that I have inheritance, which I don’t. And the question is whether or not ever that’s going to be resolved, and in particular because now I’m Australian citizen, whether or not I would even have right to get something that’s in a country that I don’t belong any more.
75.The husband then asked:
Do you have anything else to say about that?‑‑‑
The wife replied:
I’m saying to you that that inheritance is not mine. It’s under – it’s contested and there is no – my mother died as well. So there is no one to defend that any more, and I’m here, and they live in that house. So that’s my answer to that inheritance which you revoke all the time and I don’t have it, but you forget your own inheritance.
76.The husband asserted that the wife’s contention was “incorrect”. The wife reiterated that it was correct.
77.In cross-examination, the husband was asked:
Well, all right. You can take it as denied, and I’m sorry if there has been some misunderstanding there. When I say “evidence,” sir, I’m not talking about what you say. I’m talking about a document or another witness or something independent of what you say. Do you understand what I mean by that?---Yes. Corroborative evidence. That’s right. And what I’m suggesting, sir, is you haven’t put on any corroborative evidence, as you have described it, to suggest that the wife has an inheritance in [Europe]?---Not myself.
78.Nothing to which this Court has been referred establishes that the trial Judge erred in accepting the wife’s assertion that she did not have any interest in property in Europe, or an entitlement to any such interest. Whilst we concede that the evidence was less than entirely clear, and that other findings may have been open, we cannot accept that it was not reasonably open to the trial Judge to find as he did.
79.The third aspect of this challenge relates to “The H’s financial contributions in [Scandinavia] (1991-1998)”. The husband asserted in support of this complaint:
[24] …
[a]The H’s evidence: “I contributed to my family with about $23,500. Whilst studying, and for 6 months thereafter, when looking for work I was receiving study and job-seeker allowance (about […]800 pw [a] In 1994/95, I was studying [a Scandinavian] language – basic, advanced, and for [professionals] (for about 1.5 years, and then for 6 months I was receiving job-seeker allowance; in total 104 weeks). [b] In 1996, I completed a 3-month [training course] (following with 6 months job-seeker allowance; in total 39 weeks). [c] In 1995, I was reimbursed by the […] company […] (about $2,000) for my air-ticket and attending employment interview in December 1994, coming from Australia.” […]
[b]The W: “I paid from my earnings” the H’s Master’s Degree in [the United Kingdom] […];
[c]The W depreciated the H’s financial contributions in [Scandinavia] (about $23,500). (Original emphasis)
80.The short and dispositive response to these complaints, to which the trial Judge referred, is found in the evidence in chief of the husband himself in which he said “I was unemployed since 1991 apart from 8 months in 1998/1999” [par 92]. The trial Judge recorded, as was clearly open to him in reliance upon that evidence, that the husband had conceded “against interest” that he had “produced very little income for the household” during this period [par 92].
81.Notwithstanding the husband’s own evidence in relation to his lack of employment from 1991-1998/1999, and the trial Judge’s findings that the wife carried out “at the very least” 50 per cent of the duties of homemaking and parenting and been “far and away the primary income earner for the household throughout the lengthy period of the marriage” [par 92] the trial Judge concluded that the husband was entitled to 40 per cent of the equity in the former matrimonial home. Unless some other basis for appellate intervention is enlivened, the trial Judge’s conclusion falls comfortably within the “broad ambit” of the discretion he was exercising (see Norbis v Norbis (1986) 161 CLR 513).
82.This challenge fails.
Ground 8
83.Ground 8 headed “The Notion of Equality: 1985-1999” requires little comment or consideration.
84.The husband asserted, the wife did not challenge, and the trial Judge accepted, that contributions until the time the parties arrived in Australia in 1998 were able to be regarded as equal.
85.The finding made by the trial Judge was that urged upon him by the husband. The husband cannot successfully complain that the trial Judge made a finding in the terms sought by him. Nothing to which we have been referred establishes that the trial Judge erred in finding as he did.
86.This challenge fails.
Ground 9: “Contributions in Australia: 1999-2007”.
87.The submissions of the husband in support of the challenges to the trial Judge’s conclusions explain why he had no employment subsequent to 1999, but do not challenge that reality. Similarly, the husband records what he asserts to have been the history of the wife’s employment. Again there is no challenge to the trial Judge’s findings in that regard.
88.The Husband’s affidavit sworn 29 April 2010 recorded the following in relation to his employment history from 1999 - 2007:
27.About 5 months later, I got job as a “[…] Research Associate” with the same company where [the wife] worked. From the very beginning, a newly appointed […] Research Manager, required from me to give her all my correspondence before sending them out. The General Manager supported the requirement. Three weeks later, I resigned. Two weeks later the same General Manager offered me a home-based position as a “[…] Writer”, which I held for about 8 months, until August 1999.
...
29.In July 1999, the General Manager declined to follow the agreements related to the terms and conditions of employment [the wife] and I had reached with her in January and February 1999, and continued to confirm it up to July 1999. In August 1999, both [the wife] and I resigned from our employments. [The wife’s] salary was $65,000 initially and then $75,000, plus $15,000 car allowance. My hourly rate was $50 per hour, and the average salary in period January to August 1999 was about $9,000 per month (about $107,000 per year, before tax).
...
32.Since August 1999, I was building comprehensive business infrastructure for a business I founded under the registered business name [C Business]. In the period August to September 1999 I developed website, graphics for business stationary and commenced work on the Standard Operating Procedures, databases and several applications. In late September 1999 [the wife] joined me as a partner in the business. [The parties’ child] was also involved in the business occasionally.
...
254.After my resignation up to the incident in June 2007, I was working on average 10-12 hours per day, 6 days per week, to find way out of the financial and professional circumstances [the wife] and I found ourselves. I refer to paragraph 32- 134 above.
260.Since 1999, in particular between 2001 and 2006, [the wife] and I sought hundreds of jobs related and not related to our profession, each […].
a. We attended dozens of employment interviews by employers or employment agents.
b. In the second half of 2005 [the wife] and I sought over 100 jobs.
c. I received 1st and last job offer in 2002, from [a hospital in the Hunter region].
d. [The wife] received her 1st job offer from [N Company] in 2006, 6 ½ years after her resignation. (Errors as in original and Original emphasis)
89.In relation to the employment of the parties subsequent to 1999, the trial Judge found:
23.The parties commenced a business [C Business,] in about 1999. At paragraph 10 of her case summary document [the wife] asserts that this business was not profitable and the living expenses of the parties had to be subsidised with Centrelink benefits and the sale of some of her […] shares to the extent of about $75,000. It is not clear whether these shares were part of her remuneration package while she worked for this company in [Scandinavia] or whether she elected to purchase shares whilst so employed. [The husband] was additionally undertaking studies and in 2004 obtained a Diploma […] from [a] University. Exactly what this qualifies [the husband] to do was not made clear but as events have transpired this aspect is not greatly relevant.
90.No finding of fact there made by his Honour has been shown to have been other than reasonably open to him.
91.As is not in doubt, the trial Judge did not suggest that the wife’s contributions to C Business were in any way superior to those of the husband, or that the lack of profitability of the business was referrable to anything done or not done by the husband.
92.We have not been referred to anything which establishes that the trial Judge inaccurately recorded the wife’s post 2006 employment when he said:
24.In 2006 [the wife] returned to her employment with [N Company] (refer to her affidavit paragraph 33). She worked for another […] company in October 2006 and then commenced her present employment […].
93.As is not in doubt, the husband has not been in a position to secure employment since his incarceration in 2007. The husband submitted that he received his “first and last job offer in 2002”.
94.Significantly, the trial Judge concluded that the disparity of contribution entitlement between the parties arose from the wife’s greater financial contributions of income for the household, particularly in the light of the husband’s concession with respect to the period subsequent to 1999. Significantly, and properly, the trial Judge did not “go behind” the finding of equality of contributions up to 1998 which he had earlier uncontroversially recorded.
95.Nothing to which we have been referred establishes that the trial Judge’s assessment of the disparity of contributions in favour of the wife was vitiated by material errors of fact, or exceeded the generous ambit of the discretion which he was exercising. Even if it did, as the trial Judge recorded, to the extent that such assessment was excessively generous to the wife, such excess could be comfortably accommodated by the so called “Kennon” adjustment which, for reasons he had earlier articulated, the trial Judge would, and could, have made to justify a 60 - 40 contribution in favour of the wife.
96.It has not been established even without reference to the so-called “Kennon” factor that the trial Judge’s discretion miscarried with respect to the contribution based entitlements of the parties.
97.This challenge fails.
Ground 10: “The Kennon Principle: The W’s case” and Grounds 11-12: “The Kennon Principle: The H’s case”.
98.These grounds assert that the trial Judge erred in finding as he did with respect to the violence visited by the husband upon the wife. Given the conclusion we have recorded above, nothing may turn upon the merit or otherwise of this challenge.
99.If we are in error in our earlier conclusion, and the trial Judge’s determination of the contribution based entitlements of the parties required a “Kennon” component to be sustainable, our consideration of these complaints would assume significance.
100.Despite the ingenuity of the husband’s attempts to rationalise the evidence before the trial Judge, and his Honour’s findings with respect to it in relation to this topic, nothing to which we have been referred establishes that the trial Judge erred in finding as he did with respect to the wife’s claim in reliance upon the decision of the Full Court in Kennon.
101.The husband’s submissions to this Court in support of these complaints are more revealing of the husband’s lack of insight into, or insensitivity towards domestic violence than any possible error on the part of the trial Judge.
102.The wife in her affidavit sworn 5 February 2010 gave the following evidence with regards to “ongoing domestic violence” by the husband towards the wife:
10.From the moment that we commenced cohabitation, [the husband’s] dark side of his personality came through. First, the verbal abuse started. From there, very quickly it degenerated into physical abuse including hitting, kicking, throwing me on the floor and hitting me. He would also throw things and break them around me. It just [got] worse from there. I have suffered over the years from a broken nose, broken ribs, cut above the right eyebrow and bruising. I did not report the violence to the police. I left home many times for days at a time, staying in local hotels and on one occasion, a women’s refuge in [H]. He also hit [the parties’ child] numerous times, cut her clothes up and broke her belongings. He cut the head off her doll. I do not want to say much more than this other than the incident that I refer to below because of the traumatic nature of the memories that this raises for me. The violence just simply, never stopped.
...
35.[In June 2007], [the husband] attended my work place. How was carrying a brief case. He gave me a flash drive to insert into my computer. The flash drive contained a document as to what he thought was a fair division of our property which seemed to entail that he took all of the property plus I pay him a sum of $250,000.00. I printed out the document. I then drove him to [the M Shopping Centre] with the view to discussing the division of our property. … We had lunch. We returned then to the car because I needed to go back to work. In the car, after a minute or so, [the husband] [seriously assaulted me]. I was taken to [a] Hospital by ambulance where I underwent surgery for approximately 10 hours. I remained in intensive care for a few days and then I was released into the general section of the hospital. I was released on 14 June 2007. I do not wish to go into incident in any more detail than that. I do not wish to remember.
36.[The husband] was arrested by police at the scene of the attack. He was charged and indicted on the following offence:-
…
(b)On […] June 2007 in [M Shopping Centre], he did wound me with intent to murder me;
(c)On […] June 2007 in [M Shopping], he did maliciously wound me with intent to do grievous bodily harm to me; and
(d)On […] June 2007 at [M Shopping Centre], he did use an offensive instrument, namely a motor vehicle with intent to prevent the awful apprehension of himself. … (Errors as in original)
103.The husband was convicted on the first of these charges. The conclusion remains undisturbed. All avenues of appellate challenge to it have been exhausted.
104.The wife further deposed:
37.I returned to work on or about 25 July 2007. I have continued to experience physical and psychological symptoms since the attack including constant aching of various parts of my body. I have pain management to help me with my injuries including physiotherapy and medication. I also have deep wound marks. I see a psychologist whose name I do not wish to mention for safety reasons, now on an irregular basis. At first, the appointments were twice a week.
105.As noted earlier, the trial Judge preferred the evidence of the wife to that of the husband, both generally and in relation to this issue. We are not persuaded that so doing was erroneous. Nor was his Honour’s acceptance of the wife’s evidence in relation to domestic violence.
106.The corroborative evidence of the parties’ child, was accepted by the trial Judge. That evidence was contained in an affidavit affirmed by the parties’ child on 26 October 2007 which was annexed to the husband’s affidavit sworn 29 April 2010 and recorded:
6.In February 1998, we moved to [a suburb in] Sydney. At this time, my father Mr. [Czeb], would regularly beat my mother in front of me. I am not aware as to the reasons for the beatings. I would always feel very distressed after witnessing the beatings and felt scared for my own safety and for the safety of my mother.
...
8.Between August 1999 and May 2001, I saw on numerous occasions Mr. [Czeb] beat my mother. Each attack left me trembling as I knew Mr. [Czeb] might attack me as well at any moment.
9.I considered on many occasions contacting the police but feared that doing so would cause reprisal from Mr. [Czeb].
10.In about May 2001, I left the [H] house with Mrs. [Czeb] and we fled to a refuge in [H]. This was following a particularly violent incident between my parents. On this occasion, Mr. [Czeb] dragged me by the hair into my bedroom and started to beat me. He then broke my mother’s nose in front of me.
11.My mother and I returned to the home shortly after as we were scared about what would happen to us if we didn’t.
12.Between May 2001 and 2004, my father continued to beat my mother and myself on regular occasions. The beatings were severe and were increasing in frequency and as a result I moved to Sydney in 2004 to escape my father.
13.Between 2004 and November 2005, I visited the [H] house on weekends. Mr. [Czeb] would sometimes beat me during my visits and the only reason I visited was so I could see my mother. I hated going to the [H] house as it caused me great distress to see my mother being beaten.
107.Further corroborating evidence appeared in a statement made by the parties’ child to police in 2007 which was annexed to the husband’s affidavit sworn 29 April 2010 and recorded:
11.On another occasion around April 2001 my father disagreed me dating a boy and he became very angry with increasing arguments and physical abuse over the next couple of weeks on both mum and me. This came to a point one night where during one of his outbursts he punched and slapped mum until her nose was bleeding and looked broken, he also punched and slapped me but I didn’t have the same injuries as mum. We ran out of the house and from [HH] all the way to [H], along the way we saw my father driving our car looking for us but we hid from him fearing what he might do. We went to a church looking for shelter and a priest let us stay over night. After that the priest organised us to go and stay at a women’s refuge. Over the next four or five days we remained at the refuge but mum stayed in contact with my father until she couldn’t reach him one day. After about two or three days mum finally made contact with my father and he came and picked us from the refuge. When we got home we found a lot of sleeping pills and an empty hipflask, my father told mum that he had tried to overdose on the pills and alcohol while we were staying at the refuge.
12.For a while the arguing and abuse seemed to settle down a little bit, about a month at the most, until another argument where my father punched and slapped mum and me. The severity of his abuse seemed to getting worse with mum getting big bruises on her face and body, with a bleeding nose and cut lips. This time mum and I went and stayed at [a] Hotel where over the next couple of days mum got two big black eyes from the punches and slaps.
...
17.Sometime in 2005 there was a period where I hadn’t spoken to either my father or mother for a while. I got a call from my father from the home number, […], where he spoke to briefly about not being in contact for about a week, during this phone call I heard my mum in back ground yell out “no” and something break, with this the line was disconnected. The next day mum came to Sydney, by train I think, and she told me that my father had continually hit and beat her for a period of five days, where he would hit her first thing in the morning and continue through the day, using the metal buckle of a belt. She told me that he had mainly hit her on and around the body and that she couldn’t leave the house. Mum stayed with me for around a month. (Errors as in original)
108.We have not been referred to anything which establishes that the trial Judge could not rely upon the evidence of the parties’ child in support of his conclusion that there had been “ongoing domestic violence” by the husband towards the wife.
109.The evidence of Mr F and Ms C, upon which the husband placed considerable reliance before the trial Judge, and this Court, was considered by the trial Judge who recorded:
84.… Neither witness observed incidents of domestic violence and each gave evidence of observing the parties residing in a relatively harmonious lifestyle. The evidence of these witnesses is not to say domestic violence did not occur, but simply that they did not observe same. I am not persuaded by a perusal of their oral evidence to reject the evidence of [the wife] and [the parties’ child] of domestic violence over a prolonged period of time.
Nothing to which we have been referred establishes that his Honour erred in so finding.
110.The trial Judge recorded that the wife’s “contributions in all aspects of the relationship were made more arduous as a result of being subjected to the violent behaviour of [the husband]” [par 85]. The trial Judge also recorded that the husband’s “violent behaviour” had not “impacted” on the wife’s earning capacity [par 86]. As is not in doubt, if it had, that would also have been relevant, pursuant to s 75(2)(b) or s 75(2)(o) of the Act. Nothing to which we have been referred establishes that the trial Judge erred in concluding as he did.
111.Importantly, the trial Judge did not make any further adjustment, either pursuant to the decision in Kennon or otherwise, on account of the “shocking events” in 2007 for which the husband was convicted and sentenced to 17 years imprisonment, a sentence which he has now unsuccessfully challenged in the New South Wales Court of Criminal Appeal and the High Court.
112.Nothing to which we have been referred establishes that the trial Judge erred in concluding as he did with respect to the wife’s claim in reliance upon the decision of the Full Court in Kennon. To the extent that the trial Judge needed to rely upon his findings with respect to that aspect of the wife’s claim, to bolster his conclusion with respect to the parties’ contributions, his Honour was justified in doing so.
113.These challenges fail.
Ground 13: “The H’s non-finacial [sic] contributions”.
114.The complaints articulated by the husband in support of this challenge proceed on a false premise. The husband’s complaint, at least inferentially, is that the trial Judge regarded his non-financial contributions as having been less than those of the wife.
115.The evidence of the husband with respect to the parties’ daughter does not contradict the trial Judge’s findings. Nor does either of the assertions made by the husband with respect to “The W’s representations to the employer”, or the role of the husband which could be “inferred from his work”.
116.Importantly, the trial Judge found that “at the very least [the wife] would have carried out 50 per cent of the duties of homemaker and parent” [par 92, first dot point]. His Honour did not find that the wife’s homemaker and parent contributions exceeded those of the husband. Nothing to which we have been referred establishes that the finding made by the trial Judge was not reasonably open to him.
117.Given that the trial Judge did not find that the wife’s contributions as homemaker and parent exceeded those of the husband, there is simply no foundation for this complaint.
Ground 14: “2006-2010: The H’s contributions in the year before and after the separation”.
118.There are two components of this challenge. The first relates to the year prior to separation, the second to the year subsequent to separation.
119.In relation to the year prior to separation, the amounts referred to by the husband, if the evidence established that they had been paid, and we have not been referred to any such evidence, were minimal by any standard. In the absence of any identified source of income from which those payments were, or could have been made by the husband, and we have not been referred to any evidence of such source(s), they were financial contributions which were completely overshadowed by the financial contributions of the wife.
120.In relation to the post separation period during which the husband has been incarcerated, as his own submissions make clear, it is not asserted that the husband made direct financial contributions. The complaint is in reality that the wife’s income from employment greatly exceeded any monies which were available to the husband. The trial Judge was clearly alive to that reality.
121.As is not in doubt, since June 2007 the husband has made no financial or other contributions to the matrimonial home. In fairness however, the wife has had a vastly greater income, and has had the benefit of use and occupation of the matrimonial home during that period.
122.The husband’s inability to earn subsequent to June 2007 was referrable to his own violent criminal conduct. His argument that the wife should have been penalised because, as a result of his own violent criminal conduct he was unable to derive income, because he was incarcerated, is disingenuous. So too is the argument that the Court “should regard the not paid spousal maintenance as the husband’s contribution to the mortgage”.
123.Accepting, notwithstanding that we have not been referred to any evidence which obliged the trial Judge to so find, that the husband made the payments referred to by him, those payments would not have changed anything. Nor would any of the matters to which the husband referred, all of which the trial Judge was aware of, none of which obliged the trial Judge to increase the husband’s contribution based entitlement.
124.Quite apart from the husband’s absence of needs whilst he is incarcerated, the husband’s inability to derive income was referrable to his own violent criminal conduct. To adjust entitlements in his favour by virtue of that circumstance would be neither just nor equitable.
125.As we have earlier noted, the contribution finding made by the trial Judge comfortably accommodated the factors to which he had regard, including the reality that, whilst the wife had paid all mortgage instalments and other outgoings with respect to the former matrimonial home after June 2007, the wife had occupied the premises to the exclusion of the husband, and been in receipt of far greater income than the husband had available to him during that period.
126.This challenge fails.
Ground 15: “The W took after the separation $31,500 in not-recognised matrimonial assets”.
127.Quite apart from the fact that the husband’s submissions in support of this challenge are not based upon expert opinion evidence of valuation, we have not been referred to any evidence which established that the husband had, or should have been recognised as having an interest in any of the items of property to which he referred.
128.As is not in doubt, the trial Judge recognised that the wife had some of the items to which the husband referred in his submissions. Nothing to which we have been referred establishes that his Honour should either have included some or all of those items in the net asset pool, or have had regard to them to the husband’s advantage pursuant to s 75(2) of the Act.
129.This challenge fails.
Ground 16: “Extreme disparities”.
130.The husband complained that the trial Judge had erred in declining to make an adjustment in his favour pursuant to s 75(2) of the Act having regard to the “extreme disparity” in the earning abilities of the parties.
131.Ground 16 of the husband’s Notice of Appeal provided:
[59]GROUND 16: EXTREME DISPARITIES: Principles: According to a line of authorities in the last 25 years “a very significant adjustment is warranted,” from 25%-35% to the entire property where there is a “significant disparity in earning capacities” and “comparatively modest pool of assets”. In addition “in the cases involving failure to make a full and frank disclosure of assets, where the property at the date of the trial cannot be precisely ascertained” more than the disputed property pool can be ordered. (Footnotes omitted and Original emphasis)
132.The husband referred to a number of decisions of this Court. Those cases turn upon their own facts and circumstances, and do not establish the “principles” or propositions asserted by the husband. The undisturbed findings of fact in this case reveal a quite different scenario to that advanced by the husband.
133.The husband appears to complain that the trial Judge both erroneously understated the wife’s earning ability for the purpose of his consideration of s 75(2), and erred in failing to make an adjustment in his favour pursuant to s 75(2) having regard to the wife’s earning capacity.
134.The trial Judge recorded with respect to the wife’s earning capacity:
93.… I accept that [the wife’s] income is likely to be $150,000 a year for the foreseeable future. She has taken on a separate contract to assist in payment of legal fees but there is no evidence that this contract will be renewed. …
135.We have not been referred to any evidence establishing that the trial Judge erred in finding what the wife’s income was likely to be, or that there was no evidence that the research contract, pursuant to which she was earning an additional $160,000 per year, would be renewed when it expired. The trial Judge’s consideration of s 75(2) was thus not permeated by any error of fact.
136.The trial Judge was obliged to consider the operation of s 75(2). His Honour was not obliged to conclude that an adjustment was appropriate. His Honour was acutely aware of the disparity in earning ability and recorded:
93.… Whilst in normal circumstances where one party has little or no income and the other party has a substantial income, an adjustment for s 75(2) factors may be called for however; I take into account the fact that [the husband] has no expenses of any kind for the next ten years.
As is not in doubt, the husband’s absence of expenses was referrable to his incarceration as a result of his violent criminal conduct towards the wife.
137.It has not been established that the trial Judge erred in the exercise of his discretion in declining to make a s 75(2) adjustment in favour of the husband.
138.The disparity in earning ability, in part referrable to the choices the husband made in that regard after arriving in Australia, and in part to his incarceration, would, were it necessary to do so, provide further support for declining to make a s 75(2) adjustment in his favour pursuant to s 75(2)(o) of the Act.
139.This challenge fails.
Grounds 17-18: “The agreement [in 2007]”.
140.The husband’s complaint is essentially that the trial Judge should have enforced an agreement which the husband asserted that the parties entered into on […] June 2007, whether, as inferentially the husband seems to assert, by treating it as if it were a binding financial agreement or, as a matter of justice and equity, making orders which reflected the terms of the agreement.
141.The trial Judge referred to the agreement upon which the husband sought to rely at trial in the following terms:
52.To understand [the husband’s] material it is necessary to make reference to a document headed “Agreement” which is annexure 1 to his affidavit sworn 29 April 2010. In this affidavit [the husband] deposes at paragraph 125 that he read the terms of the agreement to [the wife] shortly prior to the [assault]. [...]
142.The husband set out the circumstances surrounding the execution of the agreement in his affidavit in the following terms:
125.[In 2007], I read [the wife] on the phone the agreement I had prepared, and we had conversation to the following effect,
I: Is that OK, or you have anything else to add?
[The wife]: No, that’s fine. I haven’t organised an appointment at the bank, but I’ll call them immediately and let you know.
I:I am going to [Suburb C] to buy shoes and I’ll come to [N Company] for lunch.
[The wife]: OK. […]
126.Later that morning, whilst I was in train, on my way to [Suburb C], [the wife] called me on my mobile phone and we had conversation to the following effect,
[The wife]: I couldn’t get an appointment for today.
I:It doesn’t matter. We shall go without an appointment. Someone would see us.
[The wife]: OK.
127.In [Suburb C], I visited the Commonwealth Bank branch, the one across the Shopping Centre, and spoke to a bank official, about the terms of [the wife’s] agreement and the personal loan. He told me words to the following effect, “The limit on a personal loan is $50,000, but I’ll talk to the office and let you know, probably today and let you know when you and your wife could come”.
128.I gave him [the wife’s] and mine contact details. I was expecting to receive a telephone call from the Commonwealth Bank that afternoon.
129.After the Commonwealth Bank, I went shopping for shoes. AT [a shoe store] I found shoes which I liked and was interested in purchasing a pair of black and brown ones. The lady who served me told me that they would have 50% discount the following week; I postponed the purchase until then.
130.On my way to [N Company], about 11:55 am, I received a telephone call from [Mr D], who told me that the second defendant had declined to settle the case without money. It was as a sledge-hammer to my head.
131.About 12 o’clock, I met [the wife] at [N Company]. I gave her the agreement on a flash-drive. About half an hour later, [the wife] came out of her office and gave me the agreement, printed on one page, which was in a plastic sleeve; I enclose a copy of that document as Annexure “A”, p
21A:1.132.Then [the wife] drove me to the [M] Shopping centre. I told [the wife] about the news regarding the second defendant and that I spoke to the Bank when I was in [Suburb C] […]. We decided to wait for the call from the Bank and have lunch at Madonald’s in the meantime.
133.After the lunch we went back to the car, where the incident happened. [The wife] was to go back to the work, me to go to see [Mr D].
134.I asked [the wife] to stay and talk. I was not finding anything to say. I saw the agreement protruding from the back pocket of my brief case. I went in to the brief case to get that document and have something to talk. I saw the [weapon], which was in the same pocket. I took it to tell [the wife] about my suicidal plans. [The wife] grabbed the [weapon] and started to scream. The next I remember was that I could not breath and huge pressure on my back. (Errors as in original and Original emphasis)
143.The “incident” to which the husband there referred involved his [assaulting] the wife 30 times with a [weapon], and led to his being sentenced to imprisonment for 17 years for wounding with intent to murder the wife on […] June 2007.
144.The trial Judge recorded the terms of the agreement as:
54.The material terms of the agreement are as follows:
- - -
Agreement
5.I, [the wife] agree to:
a.Transfer the current joint ownership of the property, held
between me and [the husband], to full ownership of [the husband];
b.Pay [the husband] AU$250,000, which I will deposit on his
Commonwealth Bank of Australia account number […];
c.The AU$250,000 I will obtain as a personal loan or other
applicable loan, either with the Commonwealth Bank of
Australia or Westpac Banking Corporation Australia;
d.Upon the transfer of the ownership and payment of the
AU$250,000 to [the husband’s] account, I will not have any
interest in, claims and demands for the property
whatsoever.
e.Be cooperative and proactive to finalise this agreement by
the Friday, […] June 2007. (Original emphasis)
145.As the husband’s own submissions make clear, his Honour accurately recorded the agreement which the husband asserted.
146.The husband’s evidence did not establish that the wife ever signed, or otherwise agreed with the document which he asserted before the trial Judge. The husband sought to rely upon evidence which he asserted that the wife gave in the District Court in 2009 in the following terms:
[66] …
[c] In 2009: to the District Court: “The wife says that there was an agreement, the wife says she was planning on going to the bank…” […];
The W: “I just want to get everything to be finished so I can, you know, get out of everything so we discussed about me if I can get loan from the bank and pay off the mortgage and he gets the house and yes, I pay off everything so he can have the house and try to find a job and sort out his life and everything. So we had been – we talked about that as a means to resolve the settlement situation.” […]; For further evidence see Part 2.4, below. (Original emphasis)
147.The trial Judge was not bound by the agreement, if in fact there had been an agreement between the parties. The circumstances surrounding and following the making of the alleged agreement suggest numerous bases upon which it may have been void, invalid or have been invalidated. His Honour was obliged to and did, determine a just and equitable settlement of property as between the parties in the light of the evidence before him and the provisions of Part VIII of the Act.
148.The terms of the agreement asserted by the husband which, in effect, would have represented a settlement to the husband in excess of $1,000,000 was not, on the trial Judge’s findings of fact, just or equitable.
149.Nothing to which we have been referred establishes that the trial Judge erred in declining to enforce the agreement asserted by the husband.
150.The husband also argued, by reference to other cases, that the orders made by the trial Judge were not just and equitable, having regard to the agreement upon which he relied. None of those cases, or anything else to which this Court has been referred establishes that the trial Judge erred, in the exercise of his discretion by reasons of the agreement relied upon by the husband.
151.This challenge fails.
Grounds 19-20: “Year 1985: The H’s initial contribution: s 75(2)(O)”.
152.We have largely dealt with this topic earlier. It is sufficient for present purposes to record that nothing to which we have been referred establishes that the husband had significantly greater assets than the wife at the commencement of cohabitation.
153.As the trial Judge recorded, accurately there is no doubt, the husband’s case was that, when the parties arrived in Australia in 1998, 13 years after their marriage, the husband regarded their contributions as having been equal. Quite apart from the absence of any evidence establishing that the husband made greater initial contributions than the wife, his own case before the trial Judge was that, if there were disparate initial contributions, by 1998 the parties’ contributions should be regarded as equal.
154.The submissions of the husband in relation to “Distribution of the matrimonial property: The H’s proposal” cannot be accepted given the undisturbed findings of the trial Judge in relation to the asset pool, the parties’ contributions and s 75(2).
155.As we have earlier noted, the trial Judge carefully considered the implications of the husband’s incarceration for 17 years as a result of his violent criminal conduct towards the wife in June 2007.
156.As we have also noted in the context of earlier grounds, what other courts decided in cases involving different facts does not render erroneous what the trial Judge decided in this case. Other judges may have been more or less generous to the husband, but that is not the test.
157.In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at pages 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference. (Footnote omitted)
158.The trial Judge’s decision has not been demonstrated to have exceeded the “generous ambit” to which Brennan J referred.
159.This challenge fails.
Ground 21: “Spousal Maintenance”
160.Ground 21 relates to the trial Judge’s dismissal of the husband’s spousal maintenance claim.
161.The husband asserted in that regard:
[76]J:93 argues the H “has no expenses of any kind for the next ten years”. The needs of the H are high due to the prosecution, conviction and the imprisonment. The H’s has also had living expenses in prison (additional food, toiletries, sport shoes, watch, photocopying, printing, court fees, etc, […]. The H’s ability to attend these needs and defend himself would have been different if he had financial support. (Original emphasis)
162.As is not in doubt, even after payment of the costs awarded by the trial Judge, the husband would receive approximately $130,000. Such expenses as he asserts that he has and will have whilst incarcerated for the next 10 years could be comfortably met from that sum.
163.Section 72 of the Act refers to the inability of a spouse to support him or herself adequately without an award of maintenance. The means by which a spouse may support him or herself are not limited to income. To the extent that the husband has expenses whilst he is incarcerated, he will be able to draw against his entitlement to a settlement of property pursuant to the trial Judge’s orders to meet those expenses.
164.This challenge fails.
Grounds 24 - 26
165.Grounds 24-26 relate to the husband’s appeal against the order for indemnity costs.
166.The husband submitted in this regard:
[82]Legal Cost: The triple dip: The trial judge erred in Ground 24: Awarding the W her legal cost in the primary trial proceedings and Ground 25: Offsetting the W’s legal cost against the matrimonial property:
(a)J:74 offsets the W’s “unpaid legals” 2-times: by furniture ($10,000) and “by items excluded” ($21,000);
(b)J:110-111 allowed the W further submissions; she claimed additional legal costs of $37,236, plus indemnity cost for her AIC. The orders of 06/04/11 give the W $37,236 on indemnity bases.
(c) J2:7-8 refers to the W’s settlement offer. The H did not accept that offer for the reasons sated [sic] in this document. (Original emphasis)
167.As we have earlier noted, the trial Judge did not reduce the asset pool by reference to the wife’s unpaid legal expenses. As is not in doubt, the trial Judge did not include in the pool of assets of the parties a number of items of property of the wife, or a number of her liabilities.
168.The assets which his Honour did not include comprised the wife’s bank savings of $2,500, $10,000 net for furniture after deducting $21,000 for legal fees, the wife’s motor vehicle worth $45,000, but encumbered in the sum of $52,000, the wife’s post separation credit card debt of $71,495 and the wife’s post separation personal loan of $57,192. Nor did his Honour include the wife’s superannuation interest of $77,656, the “vast majority” of which was accumulated after the parties separated.
169.The husband made numerous submissions in support of his appeal against the order for indemnity costs. Many of those submissions relied upon asserted errors of fact. We have not been referred to anything which establishes that the trial Judge proceeded in reliance upon erroneous facts.
170.Notwithstanding that the husband’s Summary of Argument does not raise any matter casting doubt on the correctness of the trial Judge’s order for costs, we have considered carefully his Honour’s Reasons for awarding costs, and making the award on an indemnity basis.
171.On 6 April 2011, the trial Judge delivered judgment in relation to the wife’s costs application. The trial Judge recorded that on 27 August 2009 the wife “offered to settle on an equal division of the assets”.
172.His Honour further recorded:
8.During the course of the hearing I was informed by Counsel for [the wife] that had [the husband] accepted the offer contained in the letter of 27 August 2009, his entitlement would have been in the order of $206,000. I have no reason to doubt the accuracy of this information. Indeed it was not challenged in any fashion by [the husband].
We have not been referred to anything which establishes that his Honour erred in fact in anything which he there recorded, although the husband has a quite different view of the offers for settlement and their effect.
173.The trial Judge referred to the submission on behalf of the wife that:
10.Counsel drew attention to the financial circumstances of the parties. [The wife] is employed earning about $150,000 gross plus superannuation. All of [the husband’s] physical needs are being met as he is serving a lengthy term of imprisonment for inflicting serious injury upon [the wife]. He is not due for release until some time after 2020.
174.His Honour then referred to a submission on behalf of the wife that:
11.In the course of his written submissions Counsel indicates:
“Upon his release some time after 2020 he has a variety of valuable qualifications that should ensure that he is capable of supporting himself financially.”(Original emphasis)
175.The trial Judge had cause to “seriously question” that submission and articulated:
12.… I am not prepared to draw such inference as I noted in the reasons for judgment [the husband] has a poor work record as an employed staff member and has not shown any proficiency in being self employed. I accept that he is intelligent having obtained a degree [in professional field 1 in his native country] and a degree in [professional field 2] in more recent times from [an Australian] University. Given his conviction for a serious offence of violence, it is highly speculative whether he would be able to obtain appropriate employment in either [professional field 1 or 2].
176.The submission on behalf of the wife in relation to the conduct of the husband in making three “unmeritorious applications in a case, which ultimately were dismissed for want of prosecution” [par 13] were accepted by the trial Judge. His Honour also accepted that “much of [the husband’s] material was inadmissible, irrelevant and argumentative” [par 13]. His Honour also accepted that the husband’s application for property settlement had been “totally unsuccessful”. That claim was accurately described by the trial Judge as being for more than “100 per cent of the property pool” [par 14].
177.It is not in doubt that the husband was in fact seeking almost twice the net value of the pool of assets determined by the trial Judge.
178.It has not been established that the trial Judge erred in concluding that the husband should pay the wife’s costs of the proceedings at first instance.
179.Turning to consider whether the wife should be awarded costs on an indemnity basis as she sought, or on a party and party basis, the trial Judge accepted that:
17.… when considering a costs application a Court must determine costs on a compensatory basis. A costs order is not to be perceived as punitive or a back door way of awarding damages. I accept a Court has the power to order a percentage of costs to be paid, or to defer payment of an order of costs for a period of time.
180.The trial Judge recorded:
19.… The conduct of [the husband] has been so outrageous there is no reason whatsoever why [the wife] should have to pay any of her costs. [The husband] confronted [the wife] with a typed agreement, the effect of which she was to transfer all the property to him and pay him $250,000, a sum which she would have needed to borrow. In effect, he would receive all the assets in addition to a large cash sum and she would be left with a significant liability. For any prospect of success it was necessary for [the husband] to establish some evidentiary basis in support of his allegations. No such evidence was forthcoming.
20.It is difficult to comprehend how a person who is familiar with the principles of property settlement division in this jurisdiction could make such outlandish claims. In [the husband’s] typed submissions to the Court at trial he listed most of the leading authorities in property settlement cases.
21.I find there was no merit in the stance taken by [the husband] in response to the Wife’s application for property settlement. At all times the position he adopted was so outrageous as to be untenable.
22.At all times the position adopted by [the wife] was measured and reasonable.
23.Where as here, one party has adopted a position so far outside a normal range for resolution of issues, it is appropriate to award indemnity costs.
24.In considering the specific factors enumerated in s 117(2A), I make the following observation:
· Subparagraph (c) the conduct of the parties to the proceedings…. As a litigant [the husband] has at all times behaved in a manner totally removed from how a litigant should conduct himself or herself and such behaviour had the effect of the matter proceeding to trial when it should have been resolved.
· [The husband] has been wholly unsuccessful in the proceedings.
· Most importantly, [the wife] made a perfectly reasonable offer of settlement prior to the hearing which would have resulted in [the husband] obtaining an outcome more favourable than the orders which were ultimately made.
181.Nothing to which we have been referred establishes that the trial Judge’s discretion miscarried in awarding the wife indemnity costs on the basis he did. Nothing to which we have been referred demonstrates that the exercise of discretion was based upon erroneous findings of fact. Nor was it vitiated by erroneous application of principle, or by reliance upon extraneous matters, or the failure to have regard to relevant matters.
182.Nothing to which we have been referred appears to challenge, or if intended to, successfully challenge the quantum of the indemnity costs awarded by the trial Judge.
183.The husband’s appeal against the trial Judge’s order for costs made on 6 April 2011 will be dismissed.
Grounds 22-29, 35-38: “The W’s and H’s liabilities during the marriage, the W’s motor vehicle savings, legal cost”
184.Grounds 22-29, 35-38 do not, as is clearly apparent from the terms of the husband’s Summary of Argument in support of them, raise any matter which could enliven appellate intervention.
185.Pages 15 – 17 of the husband’s Summary of Argument raise a series of complaints, the precise nature of which is less than clear. Many of them appear to reiterate, at least in part, earlier complaints made by the husband. To the extent that the complaints are intelligible, nothing raised in support of them could enliven appellate intervention.
186.A document headed “Further Facts” pages 18 – 24 of the husband’s Summary of Argument, contains many matters, the overwhelming majority of which could not enliven appellate intervention. To read those paragraphs is to understand why that is so.
187.One matter raised by the husband, however, does warrant comment. Variously articulated, the husband complained that the trial Judge’s discretion miscarried by reason of his approach to the payment of victim’s compensation to the wife. The husband submitted in that regard:
[144] …
[b]The H’s evidence to the trial judge at the Family Court trial: On the Victim’s compensation the H informed the judge that the W would receive up to $50,000 from the Victim’s Compensation Tribunal; the Tribunal would seek recovery of the amount awarded to the W from the H. On the incident the H said [a] the incident happened without intent to harm and involuntary [sic] and [b] the prosecution and conviction was pursued at all cost, to the extent of the police, prosecutor and the trial judge perverting the course of justice; The H offered the trial judge evidence on these matters, which he did not seek to obtain. Extensive evidence on these facts is available on request […].
188.We accept for the purpose of the husband’s complaint that the wife may be awarded $50,000 compensation by the Victims Compensation Tribunal and that, if such payment is made, the Tribunal would seek to recover such sum from the husband. We also accept that recovery may be effected.
189.Having regard to the charge of which the husband was convicted and the sentence imposed, we cannot accept his disingenuous submission that the “incident happened without intent to harm and involuntary [sic]”. It is likely that such assertion has been agitated at trial, on appeal, and on a special leave application. Nor can we accept the husband’s criticisms of the criminal justice system, and the various participants in it about whom the husband has complained.
190.The trial Judge recorded:
29.One of the items in his list of assets which he asks to be brought into account is a notional sum of $50,000 which he estimates will be the compensation [the wife] will receive under the Victims of Crime legislation in New South Wales as a result of the incident which occurred [in 2007].
191.His Honour concluded in that regard:
30.It is difficult to contemplate the perversity of a submission in these terms that a criminal can seriously injure his wife and then seek to receive some or all of the proceeds of her compensation claim presumably on the basis he made a contribution to the gaining of the asset.
The logic underpinning the trial Judge’s conclusion in relation to the husband’s application to notionally add back $50,000 which the wife may receive by way of criminal injuries compensation is unassailable.
192.The impact upon the husband of having his assets reduced by $50,000 to give effect to the payment of $50,000, and consequential increase in the assets of the wife by its receipt requires consideration. It is not in doubt, having regard to the net asset pool determined by the trial Judge (approximately $413,674), that the husband’s 40 per cent share thereof would be materially reduced and the wife’s 60 per cent thereof materially increased by the wife receiving $50,000, ultimately in effect, from the husband
193.In the absence of the trial Judge in any way increasing the wife’s interest because of the injuries which the wife sustained at the husband’s hands, we cannot accept that the trial Judge erred in failing to increase the husband’s entitlement on the basis that he would, or might, have to reimburse the Criminal Injuries Compensation Tribunal for up to $50,000 paid out to the wife by it.
194.Importantly, the trial Judge did not, either in the context of an assessment of contributions, or otherwise, take into account to the husband’s detriment the violent criminal conduct he perpetrated upon the wife in 2007.
195.No part of the trial Judge’s conclusions with respect to the Kennon application by the wife was referrable to the husband’s actions in 2007. Had his Honour done so, different considerations might arise.
196.His Honour expressly recorded:
88.I do not propose to make any further adjustment on account of the shocking events for which the Respondent has been convicted. In the event that [the wife] wished to institute proceedings for damages for assault in the civil courts, she has been at liberty to do so. It may be that her claim is now statute barred but she could seek leave to extend the time in which to institute proceedings.
89.Whilst I note the seriousness of the injuries and the consequences to her, it is not for this Court to make any further adjustment as a result of same pursuant to the principles of s 79, particularly, where, as here, no medical evidence of any kind has been placed before the Court. It may well be this Court could award “special damages” limited to loss of wages, physiotherapy treatment, psychological counselling and such like but, again, the Applicant has not elected to adduce such evidence.
197.Nothing to which we have been referred establishes that the trial Judge erred in law or discretion in what he there recorded.
198.No basis for appellate intervention having been enlivened, the husband’s appeal will be dismissed.
costs
199.The wife sought an order for costs of the appeal on an indemnity basis.
200.The husband resisted both an order for costs and, if they be awarded, indemnity costs.
201.The husband has been wholly unsuccessful in the appeal to this Court. With respect to him, many of his complaints were plainly unsustainable, and doomed to fail.
202.We are of the opinion that the husband should pay the wife’s costs.
203.Counsel for the wife submitted that the circumstances were “exceptional” and that indemnity costs should be awarded.
204.As is not in doubt, the husband failed to file his appeal against the primary orders of the trial Judge within time, but filed an appeal against the costs order within time.
205.For reasons given on 28 April 2011 the Court extended the time for filing a Notice of Appeal against the substantive orders of the trial Judge.
206.The husband failed to comply with the directions in relation to filing appeal books, necessitating a further application which was determined on 14 October 2011.
207.Costs were reserved on both of those occasions, and will be payable by the husband pursuant to the order for costs we propose making in the appeal.
208.Though wholly unsuccessful, the husband presented comprehensive written submissions in support of his appeals, and did not prolong the hearing of those appeals with oral submissions.
209.The understandable brevity of the submissions of Counsel for the respondent in opposition to the husband’s Summary of Argument leaves little room for doubt that resisting the appeal did not involve anything of an exceptional or unusual nature.
210.We are not satisfied that indemnity costs should be awarded.
211.The Court’s order will be that that costs and reserved costs as agreed or assessed on a party and party basis be awarded.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Ryan JJ) delivered on 3 April 2012.
Associate:
Date: 03.04.2012
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