Danford and Danford - [2011] FamCAFC 54

FAMILY COURT OF AUSTRALIA

DANFORD & DANFORD

[2011] FamCAFC 54

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Compensation payment – Appeal against property settlement orders – Where the husband received a substantial compensation payment – Whether the trial Judge erred in his assessment of the parties’ contributions – Whether the trial Judge failed to give proper weight to the husband’s significant financial contribution by way of the compensation payment – Whether the trial Judge placed too much weight on the wife’s contributions made after the husband’s accident – There was no error in the trial Judge’s assessment of contributions – Whether the trial Judge erred in his assessment of s 75(2) factors – Whether the 3% adjustment awarded in favour of the husband failed to recognise the disparity in the parties’ future needs – There was no error in the assessment of s 75(2) factors – Whether the trial Judge failed to give adequate reasons for his decision to allow the wife to retain the matrimonial home as part of her settlement – The reasons were adequate - Appeal dismissed – No order as to costs

Family Law Act 1975 (Cth)

Aleksovsky & Aleksovsky (1996) FLC 92‑705
Farmer & Bramley (2000) FLC 93-060
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Robb and Robb (1995) FLC 92-555
Williams v Williams (1985) FLC 91‑628

APPELLANT:

Mr Danford

RESPONDENT:

Ms Danford

FILE NUMBER:

SYC

7443

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

17 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & Loughnan JJ

HEARING DATE:

2 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 May 2010

LOWER COURT MNC:

[2010] FamCA 420

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Fisher Nash Morgan

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Humphreys & Feather

Orders

The appeal be dismissed.
There be no order as to the costs of the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 77 of 2010
File Number: SYC 7443 of 2007

Mr Danford

Appellant

And

Ms Danford

Respondent

REASONS FOR JUDGMENT

Introduction

The husband has appealed property settlement orders made by Rose J on 31 May 2010.
His Honour found the asset pool to be worth $3,010,257, of which $554,516 was held in superannuation. He found contributions to the non-superannuation assets had been made in proportions 55:45 in favour of the husband, and that the contributions to superannuation were equal.
The trial Judge determined there should be a 3% adjustment to the non-superannuation assets in the husband’s favour on account of the matters referred to in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). He decided the husband and wife should each retain their current superannuation. The husband’s superannuation was worth about $38,000 more than the wife’s.
Both parties wanted to retain the matrimonial home in which they were living at the time of trial. His Honour determined this issue in the wife’s favour.

Background

The husband and wife were aged 57 years at the time of trial. The wife was working in the family business. The husband was not working.
The husband and wife had married in March 1983 and separated under the one roof in 2006.
There were three children of the marriage, aged 22, 21 and 20 at the time of trial. The wife also had two children of a previous relationship, aged 31 and 29. They had lived with the husband and wife during the marriage.
The husband and wife acquired their first home in December 1982. A few months later, they incorporated a company through which they conducted a retail business, which was still operating at the time of trial.
When the parties sold their first home in 1992/93, they acquired the property where they were living at trial. The residence on that property was demolished and a new two storey home was constructed.
In September 1999, the husband sustained injuries in an accident. He was hospitalised for about seven months. Upon discharge, the husband lived in the matrimonial home, apart from two periods in a psychiatric facility.
The husband received a damages award of $1,441,941 on 11 September 2006, following prolonged litigation. Ten days later, the parties separated under the same roof.

The trial Judge’s judgment

After setting out the background, the trial Judge noted the primary contribution issue was the treatment of the husband’s damages and the extra contributions made by the wife arising out of his incapacity.
His Honour found that the wife had $50,000 savings at the commencement of cohabitation. He also found she had worked part‑time for six months in 1985/1986; was one of the secretaries of the family company; and had been appointed as a director in 1985. He accepted that she had undertaken some work in administration, as well as sales duties in the business.
His Honour found that the wife’s financial contributions, as well as her contribution as homemaker and parent, had increased significantly after the husband’s accident (which had ultimately led to one of his legs being amputated). He accepted that the wife had the primary conduct of the business after the accident. This involved daily attendance at the business, undertaking duties he described. He found that “For several years the wife has worked seven days per week at the company’s premises, subject to her parental care and assistance for one or more of the children”.
The trial Judge found that the wife had accompanied the husband to medical and legal appointments, and had provided instructions from time to time in relation to his workers’ compensation and damages claims. He accepted that the husband had also attended such appointments on his own.
His Honour also found that the wife had received bequests totalling $59,123 in 2006 and 2007.
The three children of the marriage were aged 12, 11 and 9 years at the time of the accident. The trial Judge found that the wife had:
… solely attended to their daily care and upbringing as well as attendances at sport and extra curricular activities without the assistance of the husband due to his hospitalisation and then subsequently the residual disabilities from which he had suffered.
In addition, his Honour found the wife had provided substantial care to the husband, which he then described.
The trial Judge found that following the separation, the wife had:
… continued her financial contributions in terms of her pivotal role in the ongoing conduct of the business of the company as well as the contribution as a homemaker and parent due to carrying out of a variety of domestic work for the benefit of the two youngest children in particular.
Turning to the husband’s contributions, his Honour accepted that the husband had contributed assets worth $55,000 at the commencement of cohabitation. He also recorded other contributions, including the husband’s establishment of, and work in, the business. His Honour found that the husband continued to be involved in the business following his discharge from hospital, in that he was involved with the wife in daily discussions and decision making about the business.
The trial Judge found that between 1997 to 2006 the husband had received gifts from his mother totalling $45,000, of which he retained $5,000 for his own use and had deposited the balance into a joint account.
His Honour noted there was scant, if any, evidence about the husband’s contribution to the welfare of the family and in the role of homemaker and parent (apart from having purchased a car for one of the children). He did, however, accept that the husband made a contribution in caring for the wife’s children when she was working part‑time prior to the birth of their first child, and had later “attended to the children after school”.
His Honour found that the husband had continued to make a contribution, following separation, by meeting various outgoings on the home, as well as some living expenses associated with the children living in the home. He also made contributions represented by his workers’ compensation payments received prior to the settlement of his damages claim.
The trial Judge recorded that the husband had retained the damages received in September 2006, but from time to time had used some of the capital or interest in meeting household outgoings and his personal needs, as well as paying for the car for one of the children of the marriage.
In discussing how these contributions should be assessed, his Honour said it was important to determine whether the damages represented a contribution by the husband, or whether they were a joint contribution. Whilst noting the decision was not directly on point, his Honour referred to Williams v Williams (1985) FLC 91‑628, where the High Court said (at 80,093):
… when the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant, in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what order should be made under s 79 of the Family Law Act 1975 (Cth).
His Honour next referred to, and accepted he was bound by, the decision in Aleksovsky & Aleksovsky (1996) FLC 92‑705, where the majority of this Court said (at 83,437):
In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.
His Honour then recorded that he had decided the husband had contributed 55% of the asset pool, excluding the superannuation assets. Given their obvious importance, we repeat below the reasons he gave for that decision:
118.I find that the contributions, whether financial or non-financial, including that of homemaker and parent carried out by each of the parties to be equal to the date of the accident. That is consistent with counsel’s conduct of the case and their helpful submissions. I emphasise that so far as the contribution that each of the parties made in the role of homemaker and parent, not given any weight to the wife’s contributions in that regard so far as [U] and [J] are concerned (being the two children of the wife’s former marriage) in accordance with the Full Court’s judgment in Robb and Robb [(1995) FLC 92-555]. That approach applies to the wife’s contributions whether prior or subsequent to the separation of the parties. On the other hand, I have given weight to the contributions made by the husband to the two children represented by his financial contributions to their support given the absence of any child support paid by their biological father.
119.The financial contribution made by the husband of the net damages received by him constitute the major asset of the parties. The husband’s financial contribution in that regard is in accordance with Aleksovski [supra] as referred to earlier in this Judgment. The net damages have been largely preserved by the husband. There is no evidence of the components of the calculation of the net damages which is not surprising given that the damages claim was compromised. To that extent, the evidence is different to that in many other cases in which the heads of damage are able to be the subject of evidence with consequential weight that might be attached to one or more of them in property settlement proceedings.
120.The husband continued to make financial contributions subsequent to the accident represented by the income derived from interest accrued on the net damages and the utilisation of it from time to time for the benefit of the parties and their three children. The husband also continued to participate with the wife in relation to the conduct of the company’s business. The husband made a further contribution in the role of homemaker and parent albeit very limited due to his injuries and the residual disabilities from which he has suffered.
121.However, the husband’s contributions subsequent to the accident represented largely by the damages must be balanced against the weight to be given by the wife’s financial contributions and her contribution in the role of homemaker and parent in the intervening years.
122.The wife’s contributions taken as a whole, subsequent to the accident, have required a Herculean effort. At the time of the accident the three children of the marriage were 12, 11 and 9 years respectively. The three children continued to live with the parties until they attained the age of 18 years and subsequent to completion of their secondary education.
123.Throughout each day of the week the wife was fully occupied being engaged in the sole daily management of the company and its business, management of household and family expenses as well as carrying the full responsibility for the supervision of the three children, their schooling and extra-curricular activities. In addition, the wife performed domestic work for the benefit of the three children and that of the husband and herself up to the point of separation.
124.Further, the wife also devoted herself to the care of and attention to the husband necessitated as a result of his substantial residual disabilities and emotional state, assistance and liaison provided in relation to his medical appointments and with his lawyers in relation to his claims for workers compensation and damages for personal injuries. I have accepted the wife’s evidence more fully set out in relation to her contributions in her primary Affidavit sworn 16 July 2009, in particular paragraphs 14 to 23; 32 to 36; 38 and 39; 41 to 43; 45 to 48; and 55. The wife also made financial contributions by the use of bequests she received as earlier referred to in this Judgment.
125.However, as is apparent, I have concluded that the weight to be given to the husband’s financial contribution represented by the net damages, the preservation of most of it and the income accrued exceeds the weight given to the wife’s contributions post accident.
The trial Judge next assessed contributions to the superannuation as being equal, observing in doing so that no contrary submission had been made.
His Honour then turned his attention to the s 75(2) factors. He noted the parties were of the same age. He inferred, from the lack of evidence to the contrary, that the wife was in good health. On the other hand, he found the husband “continues to have substantial residual disabilities”.
His Honour then detailed the husband’s injuries and his subsequent treatment. In doing so, he noted the husband had been provided with “home modifications and equipment”. He also cited extracts from a summary of the husband’s health, which noted that the husband:
… has moderated his analgesics but he has been left with a very significant restriction in mobility, activity, comfort and confidence in anything other than activities of daily living and self-care with a limited capacity to manage domestic and other household tasks which he does.
His Honour also accepted the evidence of a doctor who had said the husband’s pain was likely to increase beyond the discomfort he was then experiencing. The doctor’s prognosis was that the husband would:
… require total knee arthroplasty being done on his right and will need the preliminary removal of the metal implants on that side to enable the ‘condition’ or quality of bone in that pint, artificially supported by significant, internal inflation to settle down over some months before any such surgery is done on that side.
His Honour also accepted the doctor’s evidence that the husband was:
… probably going to require some home care assistance as a man in his late fifties, he is likely to face an increased need for domestic assistance and help in his continuing single status, unless some gratuitous care and assistance from his young family is maintained from time‑to‑time.
The trial Judge next noted that the wife’s income on average was $712 per week gross, principally from her salary from the business. He found she had the capacity for her current employment, but did not realistically have the qualifications or experience for alternative employment.
His Honour next noted that the husband’s income was approximately $1,000 per week gross, represented by the interest on the term deposit into which his damages has been paid. His Honour further noted that the husband did not have the capacity for any appropriate gainful employment.
His Honour went on to refer to the unchallenged expert evidence (set out in Exhibit 6) concerning the husband’s future needs. He said, “That matter is the subject of examination of scenarios of whether the husband remains living in the former matrimonial home or moves to alternative premises”.
His Honour’s findings in relation to the husband’s future accommodation are of importance to the appeal concerning who should receive the matrimonial home, and we therefore set them out in full:
148.In relation to the husband continuing to live in the former matrimonial home, the recommendation of the expert is that a stair climber be installed on the staircase for ease of access to the upper floor and an indicative quotation of $16,000.00 is provided.
149.So far as the potential alternative of the husband moving to alternate premises, the expectation is that such premises be a single level house or villa or ground level apartment preferably having an internal garage. The location of such accommodation should be such that it gives the husband “accessibility to and from the premises preferably in an area with level topography and with close access to shops and other community facilities, allowing him to travel there in an electric wheelchair” [Exhibit 6 p.21].
150.Particular aspects and facilities of the alternate accommodation are set forth in some detail in relation to internal layout, orientation of the house, outdoor areas, main bedroom, ensuite bathroom, kitchen, laundry, heating and cooling system and safety device systems.
151.In addition, Exhibit 6 provides the detailed recommendations and the basis for them in relation to the husband having the benefit of assistive equipment, furniture and the continued use of a modified motor vehicle.
His Honour also referred to the evidence in Exhibit 6 about the husband’s need for six hours of domestic assistance each week, at a cost of $38.50 per hour, as well as assistance with gardening and pool maintenance if he continued to live in the matrimonial home.
His Honour next recorded that neither party had any responsibility for the support of any of the children.
Having referred to all of these matters, the trial Judge said there should be an adjustment of 3% in the husband’s favour on account of the s 75(2) factors. That adjustment was applied to the non-superannuation assets; however, his Honour’s ultimate determination concerning superannuation meant that the husband also received a similar adjustment on those entitlements.
In further explaining his decision, the trial Judge referred to the differences in the parties’ health, and reiterated the husband’s need for medical treatment and domestic assistance. He recorded that whilst there was evidence of the commercial rate for domestic assistance, this could not be quantified as there was no evidence of the husband’s life expectancy. His Honour also recorded that the husband would need the “special features of accommodation” to which he had referred.

His Honour also recorded that he had given weight to the husband’s inability to earn income, which he said was in contrast to the wife who was “an experienced and capable manager of the company and has been resourceful in keeping the business functioning with its change of emphasis and direction in operations”.
Having noted that the wife had disclosed her salary was $700 per week gross; his Honour discussed the business accounts, which he described as being those of “a moderately performing company without goodwill”. Although there was “some cause for cautious optimism for the future” (as a result of the accounts revealing an increase in profit), his Honour found the company faced “continuing uncertainties”. He also noted the wife had considered it necessary to have the showrooms open seven days a week, which led him to conclude that “the company’s continued operations are not without difficulty even allowing for increased profitability”.
His Honour commenced the last part of his reasons by confirming his intention to make orders allowing the husband 58% of the assets, excluding superannuation. His Honour then said:
165.I have determined that it is just and equitable for orders to be made in accordance with those assessments having regard also to the practical effect set out in a subsequent paragraph and taking into account my resolution of an area of controversy, namely, who of the parties should become the sole registered proprietor of the matrimonial home.
166.So far as the matrimonial home is concerned, I will make an order that the husband transfer his interest in it as on balance the arguments on the evidence in favour of one party or another being successful in that regard favour the wife. Each has a case of substance for the order sought. However, I have accepted the evidence of the husband that not only would a chair lift have to be installed in the matrimonial home to provide access to the bedrooms which are all upstairs but also his acknowledgment that in some respects it would be easier for him to have a smaller single storey home preferably with an internal garage as recommended in Exhibit 6. I have taken into account that modifications to alternative premises may be needed and that the husband will need paid domestic assistance.
His Honour then set out a table showing the proposed division of the assets. This indicated the husband would receive net assets valued at $1,419,555, to which would be added his superannuation of $296,250. His Honour also identified the assets the wife would receive. These included the business, which the husband had proposed she should retain.
His Honour then explained why he proposed to allow the husband to keep all of his superannuation, even though his entitlements were more valuable than those of the wife. His reasons for this were as follows:
170.I have also determined that it is just and equitable for the parties to each retain their respective superannuation entitlements. I had previously assessed the parties’ contributions as being equal. Whilst there is a difference of $38,000.00 in favour of the husband, special needs arising out of his residual disabilities, and the financial consequences of them make it proper for those entitlements not to be disturbed either directly or indirectly even allowing for the absence of a splitting order having been sought. I accept the submission that the husband is in a position to obtain the appropriate certificate to enable him to access his superannuation. Counsel’s submissions did not suggest a different approach should be taken by me, other than of course enabling the husband to roll over his entitlements.
His Honour concluded his reasons by noting that the parties had reached agreement about the division of personal property.

Grounds of Appeal

The husband relied on the following nine grounds of appeal:
1.That His Honour erred in finding a contribution based entitlement in favour of the husband as to 55% in circumstances whereby the funds referrable to the husband’s damages award constituted approximately 47% of the pool of assets.
2.In all the circumstances, the finding as to contribution was manifestly in error.
3.That His Honour erred in making an adjustment in the husband’s favour of 3% under Section 75(2) given the husband’s future needs, the husband’s contribution to care and support of the wife’s two children from her first marriage and the income and earning capacity of the parties.
4.That His Honour erred in finding that the wife’s contribution subsequent to the accident “required a Herculean effort” on her behalf, it being a contribution by her over 7 years in a marriage otherwise of 24 years.
5.That His Honour placed too significant a weight on the wife’s contribution in the period post the husband’s accident.
6.That His Honour erred by overstating the wife’s contribution to the husband as set out in paragraph 124 of the Judgment and thereby erred in the assessment of contribution.
7.That His Honour failed to give adequate reasons for an order that the husband transfer to his wife his interest in the former matrimonial home.
8.That overall a finding of 58% in favour of the husband did not constitute a just and equitable result.
9.That His Honour failed to give proper and adequate reasons for an award in favour of the husband as to 58%.
These grounds were, to some extent, repetitive. The primary argument advanced by Senior Counsel for the husband in his oral submissions was that the outcome manifestly exceeded the reasonable range of discretion. In support of that proposition, attack was made on both the assessment of contributions and the s 75(2) adjustment. Complaint was also made about the adequacy of the reasons.
We would summarise the husband’s complaints as follows:
a)Error in the assessment of contributions - too little weight was given to the husband’s contribution of the damages, and too much weight was given to the contributions the wife made after the husband’s accident;
b)Error in the s 75(2) adjustment - the adjustment for s 75(2) factors was inadequate, principally because of the husband’s future needs, but also because of his contribution to the support of the wife’s children, and because of the differential in earning capacities;
c)Inadequacy of reasons – the reasons given for allowing the wife to retain the matrimonial home were inadequate. (The ground concerning the adequacy of reasons for the overall division was not pressed).

Appellate principles relating to discretionary judgments

Before discussing these complaints, we should record the limitations on appellate interference with discretionary judgments. These were explained in House v The King (1936) 55 CLR 499 (at 504 – 505) in these terms:
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 considering an appeal against the exercise of the discretion conferred by s 79 of the Act, the following passage from the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 (at 539 – 540) is also instructive:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of 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 [[1948] 1 All E.R.343 at p. 345], 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.

Assessment of contributions

No complaint was made about any of the trial Judge’s findings of fact relevant to contributions. Furthermore, save for an issue relating to contributions to the wife’s two children, it was not suggested his Honour had taken into account any irrelevant matter, nor that he had failed to take into account any relevant matter. Instead, it was submitted that his Honour had “manifestly failed to recognise the respective effect and value of each of the parties’ contributions”, given his finding that the wife made no contribution to the damages award, which he found was “the major asset”.
In particular, it was submitted the trial Judge had “failed to properly and adequately examine each of the respective contributions by the parties in the very short period following the accident, that is, contributions over a 7 year period”. It was argued that because of the way his Honour had “compartmentalised” his contribution findings, he had failed to give proper weight to the husband’s “overwhelming financial contribution” after the accident. It was also argued that proper weight had not been given to the workers’ compensation payments, as well as the domestic services paid for by the workers’ compensation insurer.
Senior Counsel for the husband singled out for particular criticism the finding that the wife’s contributions following the accident were “Herculean”. It was submitted that in describing her contributions in this way, his Honour had failed to have regard to “the enormity of the contribution made by the husband”, given that the assets attributable to the damages amounted to 58% of the pool (excluding the superannuation). It was also argued that had it not been for the husband’s “injection of funds we would be dealing with a … pool of assets of significantly smaller proportions than we are today”.
It had been originally submitted that because the husband’s contributions had been “assessed at 5% more than those of the wife”, he had received only an “additional $122,787” for his contributions. However, in his oral submissions, Senior Counsel for the husband properly conceded that, in fact, the husband’s contributions had been assessed at 10% more than those of the wife (and that his contributions had accordingly been treated as being worth about a quarter of a million dollars more than those of the wife).
In response, counsel for the wife submitted that the trial Judge had properly examined the contributions, both before and after the accident. He noted that his Honour, in finding that contributions were equal up to the time of the accident, had adopted the submissions of both counsel. It was further submitted that, following the accident, the wife’s contributions continued all the way to trial, a period of 10 years not seven, as had been suggested. It was submitted that the overall assessment, after taking into account the differences in contributions in the last ten years, was within the reasonable ambit of discretion. In support of that proposition, counsel for the wife referred to the findings made about the wife’s contributions in the period following the accident, both in the conduct of the business and in the care of the home, husband and children.
Counsel for the wife submitted that his Honour had taken into account the workers’ compensation payments the husband had received, which he calculated averaged about $25,000 per annum from 1999 to 2006. It was submitted that this amount, even when combined with the unspecified amount of domestic assistance funded by the insurer, did not amount to as much as the income the wife ought to have derived from her work in the business. Counsel for the wife submitted that the disparity in financial contributions in this period was in itself significant. He further submitted that his Honour was right to describe the wife’s other contributions as being “Herculean”. He referred us to the dictionary definition of that adjective, namely something that is “prodigious in strength, courage or size”, and submitted these attributes were all present in the wife’s contributions after the accident.
In assessing the merit of the competing submissions, we should first observe that it was common ground that the contributions from the date of marriage to the date of the accident, a period of some 16 years, were equal. The disparity in contributions, as found by his Honour, related to the next 10 years, subsequent to the husband’s accident. Whilst the focus of the evidence and submissions, and indeed of his Honour’s reasons, was necessarily on those last 10 years, it was important that the contributions made in the first 16 years not be ignored, even though they were equal. His Honour did not ignore them, as they were the first matter to which he referred (in paragraph 118) when setting out his reasons for decision.
We are not persuaded his Honour failed to give proper weight to the workers’ compensation payments, as well as to the domestic services paid for by the insurer. In setting out the contributions made by the husband, his Honour expressly recorded that the husband had received workers’ compensation payments. There is no reason to conclude he did not give those payments weight. We also note that Senior Counsel for the husband acknowledged at trial that he could not argue with the proposition that “the parties, through their joint endeavours, paid the workers compensation premiums that gave rise to the receipt of the benefit”. (Transcript 16 October 2009, p 145)
The husband’s proposition that the Court would have been dealing with a significantly smaller pool of assets, were it not for the injection of his damages award, may be treated as accurate, at least for the sake of this discussion. However, that proposition overlooks the fact that were it not for the husband’s accident, and his consequential disability giving rise to the damages award, the Court would also not be assessing contributions of the magnitude the wife was thereafter required to make. The proposition also ignores the fact that had it not been for the accident, the husband would have been in a position to make contributions of a different kind that could have led to the accumulation of assets by other means.
There are always value judgments involved in attempting to compare easily quantifiable financial contributions, such as the husband’s damages, with non‑financial contributions, such as those made by the wife. Such comparisons can never be made with mathematical precision and, as Finn J explained in Farmer & Bramley (2000) FLC 93-060 at [49], no amount of enumeration of contributions can explain why a particular assessment is eventually made, other than that it is within the recognised “range”.
In the present case, it is clear the trial Judge placed very great weight on the wife’s contributions. In seeking to explain his decision, his Honour endeavoured to convey the magnitude of the contributions by drawing on the analogy of Hercules, the great hero of Greek mythology, who was famously called upon to perform many onerous tasks, including at one stage holding up the whole world. In our view the analogy was apt. Whilst not in any way underestimating the devastating impact of the accident on the husband, it was the wife who had thereafter been called upon to perform many tasks, which she did over an extended period. Whilst some of us individually may have determined that her contributions were not as valuable as his Honour found, the authorities make clear that is not the test. We are not persuaded his Honour’s finding about the value of her contributions fell outside the “range”.
In determining there was no error in his Honour’s contribution assessment, we have not overlooked the fact that he dealt with the husband’s contributions to the wife’s children at the contribution stage, rather than when assessing the s 75(2) factors, which authority suggests would have been the appropriate point: Robb & Robb (1995) FLC 92-555. Senior Counsel for the wife properly did not seek to place great weight on the fact that his Honour had dealt with this issue at what may be seen as the wrong stage of the process. Instead, he submitted that his Honour’s approach showed he had “devalued” the other contributions made by the husband to an even greater extent than might first appear. As an alternative proposition, he argued that because the wife’s children were over 18 at the time of the accident, and because contributions to that time were found to be equal, his Honour had failed to have regard to the “additional contribution” the husband made to those two children.
His Honour’s findings regarding the contributions to the wife’s children are contained in paragraph 118 of his reasons (which we have set out above). We accept that paragraph 118 is capable of being interpreted in two ways; however, we consider the better reading is that his Honour regarded the parties’ contributions to the date of the accident as being equal, save for the husband’s contributions to the wife’s children, which his Honour expressly found should be given weight. In concluding this is what his Honour intended to convey by paragraph 118, we have had regard not only to the way in which he expressed himself, but also to the submissions in the proceedings below, which made clear that the husband’s case was that contributions to the date of the accident should only be assessed as being equal if the husband’s contributions to the wife’s children were disregarded (Transcript 16 October 2009, pp 143, 148, 149). We consider his Honour understood this was the basis of the husband’s concession, which is why he found it necessary to record in paragraph 118 not only the husband’s concession, but also the approach he had adopted to the husband’s contributions to the wife’s children.
We acknowledge that his Honour’s acceptance of the proposition that weight should be given to the husband’s contributions to the wife’s children means that he gave even less weight to the husband’s contribution of his damages award than the husband considered was appropriate. However, we are still not persuaded, even taking that fact into account, that his assessment of contributions was outside the range of discretion.

Assessment of s 75(2) factors

In challenging the assessment of the s 75(2) factors, Senior Counsel for the husband accepted that his Honour had considered all matters he was required to consider, save for the issue relating to the husband’s contributions to the wife’s two children (which his Honour had dealt with when assessing the parties’ contributions). He nevertheless submitted that the 3% adjustment was “manifestly wrong”, in that it did not recognise the disparity in the parties’ future needs.
Senior Counsel for the husband, when referring to the finding that the husband had an income of $1,000 per week from the investment of his damages award, noted that the wife’s income was not reliant on the capital from her property settlement, as she was able to work. It was submitted that for every dollar the husband spent on rehousing, the income available from his investment would be correspondingly reduced. Thus, it was said that if he were to acquire a home of equal value to the matrimonial home, his capital would be reduced by $990,000, leaving him with funds from which he might earn only about $19,000 per annum.
Counsel for the wife submitted that the husband’s argument was flawed, in that the evidence at trial was that the husband would not require a residence the size of the former matrimonial home, and in fact would benefit from a smaller residence, without garden and surrounds.
In dealing with the husband’s submissions relating to the likely disparity in incomes once the husband acquired new accommodation, counsel for the wife drew attention to the wife’s evidence that in order to retain her current income she had to keep the business open seven days a week, and that she was unlikely to be able to maintain that level of commitment into the future. It was submitted that in these circumstances there was insufficient evidence to support the propositions advanced on behalf of the husband concerning the future disparities in income.
In considering the merit of these submissions, we must keep in mind that the 3% adjustment for s 75(2) factors resulted in a 6% disparity between the parties – in what was a fairly substantial asset pool. Furthermore, when his Honour came to deal with the superannuation entitlements, to which contributions were equal, he decided the husband should retain all of his superannuation. This meant, as his Honour found, that the husband would receive $38,000 more superannuation than the wife. In explaining his reasons, his Honour drew particular attention to the “special needs arising out of [the husband’s] residual disabilities, and the financial consequences of them”. This inequality in the division of superannuation must therefore be considered alongside the 6% disparity to appreciate the overall outcome. Whilst some of us individually may have made a greater adjustment in the husband’s favour, we are not satisfied his Honour’s assessment was outside the range of discretion.
In arriving at this view, we have not overlooked the submissions made by Senior Counsel for the husband concerning the probability of the husband having to undergo further medical procedures. His Honour accepted the expert evidence that these would be required; however, the difficulty, from the husband’s point of view, is that the evidence concerning the likely net cost was less than clear. The fact this is so can be seen by reference to the closing submissions made at trial on this point by Senior Counsel for the husband (Transcript 16 October 2009, pp 146, 147).

Inadequacy of reasons

The complaint concerning the trial Judge’s decision to allow the wife to keep the matrimonial home as part of her settlement was attacked only on the basis of inadequacy of reasons.
His Honour demonstrated (at paragraphs 148 to 151) his detailed understanding of the evidence concerning the husband’s accommodation needs, whether he was living in the matrimonial home or elsewhere. He acknowledged that both parties had “a case of substance” for proposing they be entitled to receive the home. However, his Honour explained, in paragraph 166, why he considered the wife should receive the property. In our view those reasons were sufficient to explain the order he made.
Senior Counsel for the husband suggested that the final sentence of paragraph 166 (concerning the need for modifications to alternative premises the husband might obtain) should be seen as negating the matters to which his Honour referred in the earlier part of the paragraph (concerning further modifications needed to the former matrimonial home). It was therefore suggested his Honour did not explain why the wife had succeeded on this issue. We reject this proposition. We see the final sentence of paragraph 166 as merely reflecting that his Honour had not overlooked the fact that if the husband was required to leave the home, he may still need to make modifications to any other accommodation he obtained.
Notwithstanding his acceptance of this fact, his Honour was also entitled to have regard to the fact that the expert evidence pointed to the desirability of the husband obtaining more suitable accommodation than that provided by the former matrimonial home. Both counsel had acknowledged this was the effect of the expert evidence in their closing submissions (Transcript 16 October 2009, pp 136, 150). His Honour also correctly recorded the husband’s concession in cross-examination (Transcript 16 October 2009, p 105) that “in some respects” his interests would be promoted if he had a smaller, single storey residence. In our view, these matters combined were sufficient to support the order made.

Costs

Counsel for the wife submitted that the husband should pay the wife’s costs in the event the appeal was dismissed. Counsel for the husband submitted there should be no order for costs, as the appeal had been brought bona fide.
The fact the appeal was brought bona fide is not a sufficient reason for refusing to order costs. The husband was entirely unsuccessful and that, in itself, is a sufficient basis for awarding costs. However, given that it was conceded that the wife received a settlement pitched at the upper end of the range, and particularly given the husband’s future needs, we have decided there should be no costs order.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray and Loughnan JJ) delivered 17 March 2011.

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