DANH & LOI
[2019] FamCAFC 190
•31 October 2019
FAMILY COURT OF AUSTRALIA
| DANH & LOI | [2019] FamCAFC 190 |
| FAMILY LAW – APPEAL – PROPERTY – Where the primary judge failed to address the splitting order sought by appellant whereby she sought to receive 70 per cent of respondent’s superannuation entitlement – Where the error identified does not affect any other order made by the primary judge – Appeal allowed in part – The assessment and determination of what if any order should be made in relation to the respondent’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge – Appeal otherwise dismissed. FAMILY LAW – COSTS – COSTS CERTIFICATES – Where both parties sought their costs – Where in the circumstances of this matter s 117(1) of the Family Law Act 1975 (Cth) should prevail and each party should bear their own costs – No order as to costs – Oral applications for costs certificates dismissed. |
| Family Law Act 1975 (Cth) ss 75(2) and 117(1) |
| Allesch v Maunz (2000) 203 CLR 172 Bolger & Headon (2014) FLC 93-575 Brown v Brown (1905) 3 CLR 373 Ferguson and Ferguson (1978) FLC 90-500 Gronow & Gronow (1979) 144 CLR 513 Kennon v Kennon (1997) FLC 92-757 In the marriage of Lawrie and Lawrie (1981) FLC 91-102 Lovine & Connor & Anor (2012) FLC 93-515 Petruski & Balewa [2013] FamCAFC 15 Sheedy and Sheedy (1979) 90-719 Stead v State Government Insurance Commission (1986) 161 CLR 141 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Tomasetti & Tomasetti (2000) FLC 93-023 |
| APPELLANT: | Ms Danh |
| RESPONDENT: | Mr Loi |
| FILE NUMBER: | SOA | 100 | of | 2018 |
| APPEAL NUMBER: | DGC | 1274 | of | 2017 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 30 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3660 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Nehmy |
| SOLICITOR FOR THE APPELLANT: | Mathews Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hutchings |
| SOLICITOR FOR THE RESPONDENT: | Wheeler Family Law |
Orders
The appeal be allowed in part.
Order 6. b. be set aside insofar as it applies to the superannuation benefits of the respondent husband.
The assessment and determination of what, if any, order should be made in relation to the respondent husband’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small.
Otherwise, the appeal be dismissed.
There be no order as to costs and the oral applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danh & Loi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 100 of 2018
File Number: DGC 1274 of 2017
| Ms Danh |
Appellant
And
| Mr Loi |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Notice of Appeal dated 17 April 2019 Ms Danh (“the wife”) appeals against the final orders for property settlement made by Judge Small on 30 November 2018.
On 1 May 2019 the wife was given leave to rely on that Amended Notice of Appeal.
The appeal is opposed by Mr Loi (“the husband”).
The orders the subject of the appeal are expressed to be “interim” orders, but that is plainly an error; they are final orders for property settlement.
The orders the subject of the appeal provide for the husband to pay to the wife the sum of $50,000, for the wife to transfer to the husband her interest in a property at Property F, for the husband to discharge the mortgage registered over the title to that property, and refinance the same in his own name. The orders also provide for the parties to each retain all other items of property in their respective possession, and importantly, for each to forgo any claims they may have to any superannuation benefits of the other party.
Relevant background
The parties were married in 1999 in Country B, and they separated in 2008.
The husband had lived in Australia since 1995 and is an Australian citizen. The wife came to Australia on a spouse visa in 2003, approximately four years after the parties were married.
There is one child of the marriage (“the child”), who was born in 2006. He has lived all his life with the wife, and at the time of the trial they were living in Country A.
Almost immediately following separation, the wife, and the then 19 month old child, moved to live in Country A where her best friend and her adoptive mother resided, and they effectively disappeared.
In 2010 the husband re-partnered, and at the time of the trial before the primary judge, they had two children and were expecting a third child in mid-2019.
In 2016, investigators hired by the husband located a woman with the same name as the wife living in Town R in Country A. The wife denied that she was that woman.
The evidence established that on 10 September 2013 the woman with the same name as the wife purchased a property at Town R in Country A for $US325,000 with the aid of vendor finance of $US260,000. Then, on 19 September 2016, that property was transferred by way of gift by the woman with the same name as the wife, to a person named “Ms F”, but without discharging the mortgage.
The wife denies that she was the person who purchased that property and who transferred the same to Ms F.
The wife conceded in evidence that her adoptive mother’s name is Ms F, but claimed that the Ms F on the title of the property is not her adoptive mother. The wife said that the person who owns the business where she works is named Ms F, that that is the person who owns the property, but again denied that that is her adoptive mother.
The wife conceded that she did move to Town R in Country A to live in the property identified, and she commenced to work in the business referred to, but not until [late] 2016.
Her Honour found at [66] that the wife is the person who purchased the property at Town R in Country A in 2013, and who transferred it to a person with the same name as her adoptive mother in 2016.
Further, her Honour found at [68] – [71] that that property is “beneficially” owned by the wife, but the husband, not having made any contribution to it, it should not be included in the pool of assets for division between the parties, but should be taken into account as a matter to be considered pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
The appeal
Ground 1
The learned trial judge erred by failing to accurately or properly identify the existing legal and equitable interests of the parties in property, by failing to include the respondent’s superannuation interests in the ‘property pool’.
The single issue here is that the husband disclosed in his Financial Statement filed on 14 November 2018 that he had a superannuation entitlement of $93,000, yet her Honour failed to include that entitlement in the pool of assets, and in fact failed to refer to it at all in the reasons for judgment when determining the asset pool, or indeed anywhere else. What her Honour did though is simply make an order that “each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party”. That was the precise order sought by the husband in his Further Amended Initiating Application. However, in her Response filed on 15 September 2017, the wife had in effect sought a splitting order whereby she would receive 70 per cent of that superannuation. Her Honour failed to address this application anywhere in her reasons for judgment.
The husband submits, correctly, that her Honour was entitled to take a robust approach to the orders to be made, given the failure by the wife to make any proper disclosure, and the fact that she misled the court as to her circumstances, and in particular the property that she had purchased in Country A.
However, that does not absolve the primary judge from making no reference whatsoever to a significant asset, and from explaining the order that her Honour in fact made in relation to that asset. It is also important to note that it cannot be said that her Honour was unaware of the husband’s superannuation entitlements. It was specifically referred to in the husband’s counsel’s submissions (see Transcript 29.11.2018, page 212 lines 34-40 and page 238 lines 17-23), as well as being disclosed in his Financial Statement.
The husband also submits that this issue is de minimus because it can be assumed that the accumulation of the husband’s superannuation occurred entirely post-separation, and there were no contributions to that by the wife, but that is to read far too much into her Honour’s decision, and those assumptions are not supported by any evidence before her Honour.
Thus, I find merit in this ground of appeal.
Before leaving this ground though, I note that the husband in his summary of argument suggested that her Honour had also erred in not including the wife’s beneficial interest in the property in Country A in the asset pool. I make three comments about that submission; first, it is not the subject of any ground of appeal, secondly, her Honour plainly identified the interest and provided adequate reasons as to how it should be dealt with ([68] – [71]), and thirdly, that property had not been valued and it would have been impossible to include it in the asset pool in any meaningful way.
Ground 2
In assessing contributions as Her Honour did, being 70 percent to the respondent and 30 percent to the appellant, the learned trial judge was ‘plainly wrong’ and erred by:
2.1 Placing too much weight on the respondent’s financial contributions by way of payment of the mortgage secured by the property at Property F in the post-separation period;
2.2 Placing too little weight on the appellant’s parenting contributions in the post-separation period; and
2.3 Failing to consider, weigh and assess the evidence on each matter relevant to contributions and then indicate the relative weight the court attached to each of those matters and how those matters balanced out.
This is a weight challenge. In other words, no error of fact or law or principle is alleged, but rather that her Honour has erred in the exercise of her discretion in the weight that she has accorded to the respective contributions of the parties.
Ground 2.3 though is a little different, and could be seen as alleging error of principle. However, it can be dealt with relatively easily and briefly.
Certainly, a trial judge has to weigh and assess the evidence as to the respective contributions of the parties, but the assessment of contributions is an holistic exercise, and it is unnecessary for a trial judge to indicate, the “relative weight” the court attaches to each contribution (see Petruski & Balewa [2013] FamCAFC 15 at [49]; Lovine & Connor & Anor (2012) FLC 93-515 at [41] – [42]; Bolger & Headon (2014) FLC 93-575 at [28]).
What her Honour did was identify the respective contributions of the parties both up to and post-separation, and after setting out her assessment of those contributions up to separation, her Honour expressed her overall assessment of all of those contributions in percentage terms ([100]). There is no error of principle in such an approach.
To return to the weight challenge. In the wife’s written summary of argument it is said that her Honour erred in four primary ways.
First, in finding that the husband made the overwhelming post-separation contributions by making all of the mortgage repayments, her Honour failed to recognise that the increase in the value of the property was due to the increase in the land value, the mortgage only being reduced from $190,000 to $140,000, and importantly the husband having drawn down $20,000 – $30,000 from the mortgage and spent it ([99]).
Apart from the circumstance that her Honour was well aware of these issues, the fallacy in this argument is that contributions are not only measured in terms of by how much the value of a property has increased, or by how much the mortgage has been reduced; the relevance is in the fact of making the required payments of principal and interest on a regular basis, and thus conserving the property and its equity. Importantly, I note that in assessing the husband’s contributions in this regard, her Honour took into account against the husband the fact of him drawing down $20,000 – $30,000 from the mortgage and spending it.
Secondly, in finding that the wife cared for the child of the marriage post-separation, her Honour erred (at [97]) in “ameliorating” that contribution on the basis that the husband did not know where the mother and the child were. It is said that in doing this her Honour “imported a moral judgement to the assessment given to the [wife’s] contribution and placed too little weight on the [wife’s] parenting contribution in the post-separation period” (paragraph 16 wife’s summary of argument filed on 15 April 2019).
However, that is not an accurate representation of what her Honour did. It was a fact that the wife had absconded with the child, and failed to let the husband know where they were, until the husband found them in Country A eight years later. Thus, the wife had actively and deliberately prevented the husband from having any input whatsoever into the care and upbringing of the child, and the wife should not be able to benefit from that circumstance. In my view her Honour was able to take that into account.
Although there is no authority directly on point, taking into account the “conduct” of one party as it affects the other party, is not a foreign concept when assessing the respective contributions of the parties (e.g. see Ferguson and Ferguson (1978) FLC 90-500; Sheedy and Sheedy (1979) FLC 90-719; and Kennon v Kennon (1997) FLC 92-757).
Thirdly, in failing to take into account the parties’ contributions to superannuation at all. That is true, given that her Honour did not include the husband’s superannuation in the asset pool, and appeared to overlook it, but this failure cannot be seen as a matter that affects her Honour’s finding as to the respective contributions of the parties overall. The usual approach, and there is no reason to suggest that this approach would not have been applied by her Honour here, is to place superannuation in a separate pool, and identify the respective contributions of the parties to that superannuation.
In any event, I note that this issue was not a specific part of this ground of appeal and as such it was strictly unnecessary to address it.
Fourthly, Ground 2.3 is repeated, but having dealt with that ground already, and found that it has no merit, I do not propose to address it again.
Ground 3
In assessing s75(2) factors as Her Honour did, such that an adjustment of 20% was made in favour of the respondent, the learned trial judge was ‘plainly wrong’ and erred by:
3.1 Placing too little weight on the parties’ income disparity;
3.2 Taking into consideration an obligation of the husband to care for a child who was not yet born;
3.3 Placing too much weight on the finding that the appellant lied to the Court in the proceedings at first instance; and
3.4 Failing to consider, weigh and assess the evidence on each matter relevant to s75(2) and then indicate the relative weight the court attached to each of those matters and how those matters balanced out.
This again is a weight challenge, but this time in relation to her Honour’s assessment of the relevant s 75(2) factors.
Nevertheless, the same comments can be made about this ground as I made in relation to Ground 2, and in particular Ground 2.3. The complaint in Ground 2.3 is mirrored in Ground 3.4, and as such it also has no merit.
The complaint in Ground 3.1 rests on taking a selective approach to her Honour’s reasons for judgment. In this instance, the wife has relied on what her Honour said in [108], but that overlooks what her Honour said in [107], and indeed her Honour’s approach to a consideration of the relevant s 75(2) factors.
It is true that in [108] her Honour was addressing s 75(2)(b), and her Honour identified that each party had an income, each of them had either a property or an interest in property, and each had a capacity for appropriate gainful employment, and her Honour concluded that “there’s no difference there in my view”.
There is plainly no error in that statement of fact, because, and for example, each party has an income, and the finding does not indicate that her Honour has failed to take into account and give appropriate weight to the disparity in the respective incomes of the parties. Indeed, her Honour specifically refers to that disparity in [107], and the findings in [107] and [108] then feed into her Honour’s ultimate conclusion at [116], where, after identifying in the previous paragraphs all of the relevant s 75(2) factors, including the disparity in the income, her Honour concludes that those factors justify a 20 per cent adjustment in favour of the husband.
Accordingly, this ground has no merit.
Next, the complaint in Ground 3.2. That complaint is that her Honour took into account the responsibility of the husband to care for his soon to be born child with his new partner.
The requirement to take into account the relevant s 75(2) factors is based on the principle that the future needs of each party should be considered in determining what order for property settlement is to be made (In the marriage of Lawrie and Lawrie (1981) FLC 91-102, at 76,746).
The directly relevant paragraphs here are s 75(2)(d)(ii) and (e). It is true that those paragraphs refer to a “child” or a “person”, and I presume that the argument being pressed here is that an unborn child does not come within those descriptions. No authority is cited for that submission, however, in my view that is too restrictive an interpretation, and without delving into the issue of when a foetus becomes a human being, I consider that the responsibility of a father to care for his child once born, is a responsibility or commitment captured by those paragraphs.
Indeed, a parallel can be drawn with the decision of Brown v Brown (1905) 3 CLR 373, where the High Court held that there was jurisdiction to make an order for the maintenance of an unborn child to come into effect once the child is born.
Alternatively, it would be possible to take such responsibility into account pursuant to s 75(2)(o).
Thus, I find that it was open for her Honour to take that responsibility into account, and there is no merit in this ground.
Finally, there is Ground 3.3. The complaint here is that her Honour placed too much weight on the finding that the wife lied to the court.
First, I note that it is not argued that it was not open to her Honour to take that circumstance into account under s 75(2)(o); it is purely the weight to be attached to that which is the issue.
In that regard, the complaint comprises nothing more than the bald statement that “too much weight” was placed on that factor. As such, the complaint cannot succeed. It is not demonstrated that in applying the weight that she did, her Honour was “plainly wrong” (Gronow & Gronow (1979) 144 CLR 513, per Stephen J at 520).
Indeed, there is no doubt that the finding at [67] that the wife had lied to the court, was a significant finding, and it justified substantial weight being placed on it. I agree with the submission of the husband, made in paragraph 24 of his summary of argument filed on 29 April 2019 that:
…The enormity of the lie/s, as found, inevitably placed the court in a position where any proper exercise [of] discretion must favour the respondent; she had deliberately placed the court in a position where it could not ascertain her assets or income. How it is now said that too much weight was placed on this crucial finding is baffling.
It is suggested in the wife’s summary of argument, at paragraph 24, that her Honour did not say how this issue was taken into account relative to other considerations. However, her Honour is not obliged to do that. Her Honour’s task is to identify the relevant factors, and then make an overall assessment of those factors in determining what, if any, adjustment is to be made (Tomasetti & Tomasetti (2000) FLC 93-023, at 87,391).
There is no merit in this ground of appeal.
Ground 4
The learned trial judge erred in finding, in the absence of admissible evidence from a handwriting expert, that the appellant purchased the property at Town R in Country A and then subsequently transferred that property to another person.
The issue for her Honour here was whether she could be satisfied on the balance of probabilities that the wife is the person with the same name who purchased the property in Town R in Country A in 2013, and then transferred it to a person with the same name as the wife’s adoptive mother in September 2016.
The wife’s evidence was that she has never owned that property, that it was not purchased by her, and that she did not transfer it to the person with the same name as her adoptive mother; the wife claimed that this was all a coincidence.
Her Honour had before her the sale documents comprising a document called “Deed of Trust with Assignment of Rents” which was the original purchase document in 2013. The signature of the purchaser on that document is “Ms Danh”. The other document was a document called a “Grant Deed”, which recorded the transfer by way of gift of the property from “Ms Danh” to “Ms F”. Again, the signature on that transfer document is “Ms Danh”.
Her Honour compared those signatures and said this:
61.I am not an expert in handwriting and do not pretend to be. All I can say is that the signatures on those two documents are so remarkably similar that I am satisfied that they are the same signature.
Her Honour then looked at the response documents filed in these proceedings and said this:
62.…[t]he signature on those documents is again so similar to the signature on the title deed documents from Country A, that I am satisfied that it is the same signature on all three documents.
And then her Honour said as follows:
63.The coincidence of that is simply unbelievable in the true meaning of that word.
64. It would mean, if what Ms Danh says is true, that:
•three years before she ever went to Town R, some person unknown to her, whose name was “Ms Danh”, purchased the property at Town R, signed it with a signature so similar to hers as to be the same for all intents and purposes in these proceedings and, coincidentally,
•one month after she (the wife whose name is Ms Danh) was located in Town R and a letter was sent to her, that that property was transferred to someone with her mother’s name.
65.I do not find those “coincidences” persuasive, and it is the signatures which persuade me most that the person who signed the title and transfer documents, and the person who signed the wife’s Response documents in these proceedings, are the same person.
66.That leads me to be satisfied, on the balance of probabilities – in other words that it is more probably true than not – that the wife in these proceedings is the “Ms Danh” who purchased the property at Town R in 2013, and who transferred it to a person with the exact same name as her adoptive mother in 2016.
67.In those circumstances, I cannot find other than that the wife in these proceedings has lied to this Court in saying that she does not own that property, that she has never owned that property, and that it was not her who bought the property and transferred it to the person with the same name as her mother.
The complaint is that her Honour erred in her finding as to who purchased and then transferred the property, because there was no admissible evidence from a handwriting expert, and any opinion expressed as to the similarity of the signatures was inadmissible.
However, that complaint, as is the ground, is misconceived. What her Honour found in relation to the signature cannot be described as an inadmissible opinion. Her Honour is entitled to form her own view of the similarity of the signatures and make findings accordingly. It was also not the case that all her Honour had to base her findings on was her assessment of the similarity of the signatures. That was certainly a crucial piece of evidence ([65]), but in addition there is all of the other evidence as to the purchase and transfer of the property, including the timing of the same, and that for the wife’s version to be true, it had to all be a coincidence.
Further, it was not for her Honour of her own motion to appoint an expert to compare the signatures, but it was always open for the wife to make that application and/or to present her own expert evidence. She did not do so.
In these circumstances there is no merit in this ground of appeal.
Ground 5
In circumstances where the appellant was a self-represented litigant, the learned trial judge failed to afford the appellant procedural fairness.
The principles of procedural fairness are well-known, and they are not in issue here; it is their application to the facts and circumstances of the proceedings before the primary judge.
It is asserted that her Honour failed to afford the wife procedural fairness as follows:
a)Contrary to interim orders made by her Honour on 1 November 2017 as to the filing, service and reliance on affidavits for the purposes of the final hearing, which took place on 29 and 30 November 2018, her Honour allowed the husband to rely on the affidavits of Mr E filed on 22 November 2018, and Mr C filed on 28 November 2018 when no leave was sought, and where the former affidavit was not served on the wife prior to the trial.
b)Her Honour failed to bring to the attention of the wife the issue of leave being required to rely upon those affidavits, and did not seek submissions from her on the question of whether leave should be granted.
c)Her Honour permitted Mr E to be interposed without explaining to the wife the usual order of witnesses and advising her of her right to object to that course.
There is no doubt that leave should have been granted for the husband to rely on the affidavits, and that the affidavit of Mr E should have been served on the wife prior to the trial. However, it is well settled that not every departure from the rules of natural justice will entitle an aggrieved party to a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at [9]).
The question becomes whether, if procedural fairness had been afforded, that would have made any difference to the result (Stead at [9]). In other words, if ordering a new trial (which could only be the result of a successful appeal on this ground) would inevitably result in the making of the same order, then ordering a new trial would be a futility (Stead at [9], and see Allesch v Maunz (2000) 203 CLR 172 at [50]). That is plainly the case here with the complaints raised by the wife.
There is no suggestion by the wife that if the affidavit of Mr E had been served prior to trial, rather than she just being able to read it prior to the hearing (Transcript 29.11.2018, page 7 line 39 – page 8 line 20), or if leave to rely on that affidavit had been formally granted, or if Mr E had not been interposed, then there would have been a materially different result.
There was no challenge to the relevance of, or the accuracy of the contents of Mr E’s affidavit, or to his oral evidence, and in my view there could not have been. Mr E produced the sale documents referred to above, and a “Property Detail Report”. His evidence only went to the name/s appearing on those official documents relating to the ownership of, and the loan details for that property. He did not know the wife, and he could not give any evidence as to whether it was the wife or some other person who purchased the property, or transferred it.
It is also important to note that the wife did not seek to cross-examine Mr E at trial, but her Honour was at pains to ensure that he was called to give evidence (Transcript 29.11.2018, page 10 lines 4-14), and to explain to the wife the importance of his evidence (Transcript 29.11.2018, page 9 lines 36-40).
The complaint of the wife also stretches to the affidavit of Mr C who valued Property F. There was no challenge to that valuation.
There is no merit in this ground of appeal.
Ground 6
The learned trial judge provided inadequate reasons.
There are three areas where it is said that her Honour failed to provide adequate reasons, namely:
a.Her Honour failed to identify the basis upon which Her Honour ordered that ‘each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party’ at paragraph 6(b) (sic) of the Final Orders;
b.The learned trial judge failed to give adequate reasons as to the weight afforded to the finding that the appellant had “lied to the Court” pursuant to s75(2)(o) and how this finding was weighted against other s75(2) considerations; and
c.The learned trial judge failed to give adequate reasons as to the weight afforded to the appellant’s post separation contributions and how these contributions were weighted and balanced against the post separation contributions of the respondent.
(Paragraph 43 summary of argument filed by the wife)
As to the first issue, in reality, that is nothing more than a repeat of the complaint in Ground 1. Having found merit in that ground, it is unnecessary for this Court to further address that issue, save and except to say that no reasons were given by her Honour for the order that she made.
As to the second issue, in reality that is also nothing more than a repeat of the complaint in Grounds 3.3 and 3.4. As can be seen I have found no merit in those grounds, and thus this complaint cannot succeed either.
A trial judge is not required to assign a weighting to each factor that is considered under s 75(2). A trial judge needs to identify the relevant s 75(2) factors and then assess holistically what adjustment, if any, is to be made to the respective entitlements of the parties as a result. Her Honour did that and thus there is no error.
As to the third issue, the same response can be made. In reality it is a repeat of Ground 2, and I have found that there is no merit in that ground. Again, a trial judge is not required to assign a weighting to each relevant contribution. As long as the trial judge identifies those contributions, weighs each against the others, and makes an holistic assessment of those contributions, that is sufficient. Indeed, I need do no more than refer to what Coleman J said in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], sitting as a single judge of the Full Court, namely:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. In this Court’s view this is not such a case.
Thus, there is no merit in this ground save and except to the extent that it relates to the order dealing with superannuation.
Conclusion
The only ground which has merit is Ground 1, and thus the appeal must be allowed in part.
The question then becomes what orders should this Court make.
Because there is an absence of any reasons for the order made by her Honour as to the superannuation entitlement of the husband, it is not possible to re-exercise the discretion, and thus there must be a remitter to the Federal Circuit Court of Australia to a judge other than Judge Small. However, that only needs to be a partial remitter, to determine what order should be made in relation to the husband’s superannuation, namely whether the husband is to retain it or there is a splitting order made, and if so, what order.
Although her Honour failed to include that superannuation in the pool of assets, as I have indicated above, if that had been addressed it would have been in a separate pool, and thus, her Honour’s error that I have identified, does not affect any other order made by her Honour.
Costs
At the conclusion of the hearing submissions were received as to the issue of costs depending on the result of the appeal.
If the appeal was allowed, the wife sought costs of $21,000 calculated on a party/party basis, arguing that the errors of the primary judge were so obvious that the appeal should have been conceded. However, if no order for costs was made, then the wife sought costs certificates for the appeal and any rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
That application was opposed by the husband, but the husband himself sought costs of $21,000 calculated on a party/party basis, if “the appeal was allowed” because of the findings as to the wife’s “lack of candour”. That application was opposed by the wife.
In the alternative, if no costs were ordered, then the husband sought costs certificates as well.
If the appeal was dismissed, the husband sought costs in that same amount of $21,000. That application was opposed by the wife on the basis of the respective financial circumstances of the parties. The husband earns $130,000 per annum, but the wife’s financial position is allegedly dire.
The result of the appeal is that it is being allowed in part. Thus, it was necessary and appropriate for the wife to bring the appeal to the extent that it was ultimately successful, and that part of the appeal was not conceded by the husband. However, I have found no merit in the balance of the appeal, and thus it was appropriate for the husband to oppose those parts of the appeal.
In these circumstances, s 117(1) of the Act must prevail, and each party should bear their own costs. Accordingly, there will be no order as to costs.
In relation to the applications for costs certificates, in the circumstances it is inappropriate for such certificates to be issues, and those applications will be dismissed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 31 October 2019.
Associate:
Date: 31 October 2019
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