Dawson & Barnaby
[2025] FedCFamC1A 2
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dawson & Barnaby [2025] FedCFamC1A 2
Appeal from: Barnaby & Dawson [2024] FedCFamC2F 1102 Appeal number: NAA 236 of 2024 File number: MLC 1455 of 2023 Judgment of: SCHONELL J Date of judgment: 17 January 2025 Catchwords: FAMILY LAW – APPEAL – Where the appellant contends that the primary judge fell into error by not undertaking an analytical approach to the assessment of contribution – Where no error is found – Where the respondent sought costs against the appellant in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum of $20,000 Legislation: Family Law Act 1975 (Cth) ss 79, 117, 117(2), 117(2A) Cases cited: Amero v Croft [2010] FamCAFC 118
Bennett and Bennett (1991) FLC 92-191
Bushby and Bushby (1988) FLC 91-919
Cook and Langford [2008] FamCAFC 84
Edwards v Noble [1971] 125 CLR 296; [1971] HCA 54
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
House v The King [1936] 55 CLR 499; HCA 40
Metwally v University of Wollongong [1985] 158 CLR 447; HCA 28
Mifsud v Campbell (1991) 21 NSWLR 725
Morin & Simons [2024] FedCFamC1A 130
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Q and Q [1999] FamCA 1314
Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Number of paragraphs: 63 Date of hearing: 9 December 2024 Place: Sydney Counsel for the Appellant: Dr Ingleby Solicitor for the Appellant: Bentleys Law Counsel for the Respondent: Mr Hall Solicitor for the Respondent: Carew Counsel ORDERS
NAA 236 of 2024
MLC 1455 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DAWSON
Appellant
AND: MR BARNABY
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 19 November 2024 is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $20,000 within two months of the date of making this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawson & Barnaby has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Amended Notice of Appeal filed 19 November 2024, the appellant appeals orders in Part VIII proceedings made by a Judge of Division 2 of the Federal Circuit and Family Court of Australia. The Amended Notice of Appeal contends five grounds.
BACKGROUND
In the proceedings before the court below, each of the parties sought adjustive orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) in what was found to be a relationship of some three years duration.
In that respect, the primary judge found that the parties commenced cohabitation from 2019, married in 2020, and separated mid-2022. There were no children born of the relationship albeit the appellant had three children of a previous relationship.
The parties conducted the hearing on the basis of an agreement in relation to what was described as “three pools” of property. It was an agreed fact that any adjustive order was to be made against only one of the pools. The primary judge described it in the following terms:
5The first pool (Pool A) is the property each party owned before the relationship started. Each party owned substantial property before the relationship started: the Husband owned net property before the relationship with a value of slightly more than $2,000,000. He had no debts. The Wife owned net property before the relationship with a value of slightly more than $1,000,000 even allowing for the fact that she had substantial debts in the nature of mortgages secured against real estate in [Suburb B], [Suburb C] and [Suburb D]. Of course, between 2019 and trial, the value of the parties’ Pool A property has changed. As is set out in the reasons below, I have found that the Wife’s total net property in Pool A has a value of $1,027,505. The Husband’s Pool A assets have a net value of $2,297,164. Neither party seeks an order altering their interests in property in Pool A.
6The second pool (Pool B), to which I will return shortly, was principally comprised of two real estate parcels at [Property E] and [Property F], both close to [Location G]. The parties acquired these properties during the relationship at least in part to earn short-term rental income. It is the alteration of the parties’ interest in that property with which this case is concerned.
7The third pool (Pool C) is the parties’ superannuation. Neither party seeks a superannuation splitting order as to the superannuation in Pool C. Each party will retain their own superannuation. The Husband will retain superannuation of approximately $407,868 (Balance sheet at Annexure A, items 48 and 49). The Wife will retain superannuation of $78,463…
In relation to Pool B, the primary judge recorded that a company owned and controlled by the respondent was the legal owner of the Property E and Property F properties. In that respect, the primary judge observed:
8… I accept that the parties’ approach is appropriate, namly that I “look through” the corporate vehicle and treat the property owned by [Company H] as owned jointly by them. [Company H] is the trustee of a trust. The parties did not disclose any issue about its trustee status or the trust except to say that it may affect some capital gains tax issues. I therefore put those trust facts to one side.
[Property E]
9In September 2020 [Company H] acquired [Property E]. The transaction settled in December 2020. The purchase price was $420,000. [Property E]’s agreed current value is $600,000 (Annexure A, item 1). Initially, there was a mortgage of $302,000 (Ex. R19). The mortgage was discharged from the net proceeds on the sale of the second property ([Property F], below) and [Property E] is now owned unencumbered. During the period it has been owned, [Company H] derived income from short-term rentals of [Property E]. [Company H] remains the registered proprietor of [Property E]. The Wife wishes to retain ownership of [Property E]. The orders I will make will provide her with that opportunity, but that will mean that the Husband receives the residual funds held in the lawyers’ trust account ($264,004) and, in addition, the Wife will make a cash adjustment payment to the Husband of $200,319. If she does not make that payment, [Property E] will need to be sold.
[Property F]
10[I]n [...] September 2021, approximately one year after the purchase of [Property E], [Company H] purchased [Property F] for $2,000,000. The Wife funded the 10% deposit of $200,000. In addition, she funded the purchase by increasing her debt secured against her pre-relationship real estate. [Company H] borrowed approximately $1,375,000 to pay the balance (Ex. R20). The Husband was the sole guarantor of the loan.
11Following the relationship’s breakdown, by a contract made on [...] January 2023, the Husband unilaterally sold [Property F] for $3,000,000.
12Given [Company H] had purchased the property or $2,000,000 in September 2021 and it was sold less than 18 months later in early 2023 for $3,000,000, there was a capital gain. The [Property F] sale settled [i]n March 2023.
13The debt under the [Property F] mortgage grew whilst [Company H] owned [Property F]. After costs and the discharge of the mortgage, net sale proceeds of $1,564,734 were paid into a lawyers’ trust account.
14Subsequently, following court orders made on 1 May 2023, on 22 May 2023, $303,661 from the trust account was applied to discharge the [Property E] mortgage.
15By court orders made on 1 May 2023, and subsequently, $909,549 has been applied from the lawyers’ trust account by way of part property settlement for both parties. The Wife has received $784,549 (Annexure A, items 32, 34 and 35). The Husband has received $125,000 (Annexure A, items 31 and 33). It was common ground that the amount still held in the trust account is $287,695 (Annexure A, line 7). I will make orders, however, that the first payment from the residual funds held will be to discharge a land tax liability of [Company H] of $23,691 — which I regard as a joint liability — which will reduce the available funds in the trust account to $264,004.
…
30.As noted, the parties did not seek orders altering the interests in property they owned before the relationship (Pool A) or their superannuation (Pool C). As a result, the controversy I must quell specifically concerns the Pool B property acquired during the relationship. Nonetheless, s. 79 directs my attention to all the parties’ property in determining what orders are appropriate, just and equitable. Further, the appropriate orders as to the Pool B property are informed by what property the parties own outside Pool B: their pre-relationship assets and superannuation.
It was the appellant’s position before the primary judge that the respective contributions of the parties to the Pool B property be assessed on an asset-by-asset basis. The primary judge declined to do so, observing that a global approach to the assessment of contributions to the Pool B assets is appropriate where the net proceeds of a sale of property were applied in part to discharge a mortgage on another jointly owned property and the “orthodox position that it is not necessary to measure a party’s contribution referable to the current status of a particular asset” at [19].
The appellant sought orders that she receive 90 percent of the net value of Property F given she paid the deposit of $200,000 and increased her mortgage secured against her pre-relationship real estate to purchase the property. The primary judge, whilst recording the weight to be given to the appellant’s contribution, observed that the percentage sought by the appellant failed to give sufficient weight to the respondent’s contributions, observing that:
21.…first, the necessity of the Husband’s unencumbered pre-relationship assets being a necessary prerequisite to procuring finance; second, the Husband’s sole guarantee of the debt; or, third, the Husband’s non-financial contributions. In addition, the parties bought both properties in a joint and shared endeavour during the relationship. Both properties appreciated in capital value. My assessment of the evidence is that the appreciation in the capital value of the properties was (largely) a result of external market forces rather than a particular contribution of either party. In circumstances in which the parties bought both properties as part of a shared endeavour they, by and large, ought both to share in the fruits of the capital appreciation of the value of those properties.
The appellant also sought she receive 76.2 percent of the value of Property E based upon a mathematical calculation of her direct financial contributions. Of that proposal, the primary judge observed the “contributions ought to be assessed holistically not mathematically” at [21].
The respondent contended that the Pool B property should be divided equally. The primary judge did not accept the respondent’s position, noting that the appellant’s contribution was “instrumental in the purchase of [Property F] and laid the foundation for the purchase and the ensuing capital gain” at [23] such that adequate weight must be given to its provision solely by the appellant. The primary judge found:
29The Wife’s contributions of at least $675,000 to the purchase of [Property F] in the absence of a like contribution from the Husband is given a very significant weight in the context of the myriad factors in the contributions analysis. …
…
34An order altering property interests under s. 79 which is appropriate, just and equitable will take account of the Pool A assets, even if the parties are to retain all of them.
35The Wife’s total net Pool A assets are $1,027,505 as set out in the Annexure B table. In summary, she will continue to own real estate at [Suburb B] and [Suburb D], the sale proceeds of a [Suburb C] property and some monies outstanding in bank accounts as well as some small miscellaneous items.
36The Husband’s total net Pool A assets are $2,297,164 as set out in the Annexure C table. The Husband will continue to own unencumbered real estate in [Suburb J] and with his sister in [Suburb K]. He has a vehicle, some shareholdings and some money in a partnership bank account. His only debt is a credit card debt of approximately $3000.
37As to Pool C, the Husband will retain superannuation of $407,868 and the Wife superannuation of $78,463.
38As to bank accounts, although there was extensive evidence about the parties’ transferring monies between bank accounts in each of their names, it appeared that both parties maintained bank accounts in their own names. The parties’ orders did not propose that monies either of them held in any bank account should be the subject of orders altering their property interests. I have treated monies standing in bank accounts of either party as Pool A assets.
The respondent further sought that there should be a 5 percent adjustment in his favour pursuant to s 75(2) of the Act. The primary judge declined to make any further adjustment.
The primary judge determined that the Pool B property was to be adjusted as to 67.5 percent to the appellant, and 32.5 percent to the respondent. The primary judge observed:
149In reaching this conclusion, the Wife’s capital contribution of at least (but probably more) than $625,000 to the purchase of [Property F] is a significant contribution that must be given appropriate weight. It needs to be considered in the context of the myriad contributions of the parties. It was that contribution that provided the foundation for the purchase of [Property F] and the ensuing wealth which flowed from its appreciation in value which is the major asset at issue (see, i.e., Cabbell & Cabbell [2009] FamCAFC 205, [54]). The Wife’s contribution must be assessed in the context of the fact that it was the substantial extent and unencumbered nature of the Husband’s pre-relationship assets that were instrumental in the parties procuring finance for the purchase of [Property E] and [Property F]. Further, the Husband’s sole guarantee of the debt must be given some weight. In addition, I must give some weight to the moderately greater capital contribution the Husband made to the purchase of [Property E]. Some weight must be given to the Wife’s greater management of the properties, but this is offset by her apparent retention of rental income received from [Company H]. Some weight must be given to the Husband’s non-financial contributions as to home maintenance and care of the Wife’s children.
150In terms of the capital gain on both parties, it is to be remembered that [Company H] was incorporated as a joint endeavour in which they both hoped to participate. Although the relationship has ended, from a business point of view it was a successful endeavour in that both parcels of real estate achieved substantial capital appreciation over a short period. The substantial increase in the value of [Property F] appeared to arise mainly by external market forces. I have not overlooked that the Wife said that she did substantial renovating work at [Property F]. She said that “much of the capital gain realised on the sale of [Property F] is due to the physical cleanup, renovations, furnishings, decor and physical labour attended to and arranged by me personally”. Nonetheless, her estimate that she applied $144,000 of her own funds to furnish, prepare and maintain the properties for guest use does not readily translate into the approximate $800,000 capital gain achieved on the sale of [Property F]. I calculate an approximate $800,000 capital gain by reference to the fact that the parties each must pay CGT on a capital gain of approximately $194,000, and only 50% capital gain is taxable because the asset was held for more than 12 months.
151Authority “point[s] to the increase [because of external market forces] being categorised as a contribution by both parties and not necessarily the party who contributed the greater proportion of the funds to acquire that property” (Petrellis at [92] citing among other authorities Bachman & Self [2023] FedCFamC1A 50 at [125]– [127]).
On 13 September 2024, the appellant filed a Notice of Appeal, as amended on 19 November 2024.
GROUNDS OF APPEAL
This is an appeal from a discretionary determination pursuant to s 79 of the Act. The section grants to the primary judge a wide discretion. As Brennan J observed in Norbis v Norbis (1986) 161 CLR 513 at 540:
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.
It is well settled that to succeed in an appeal from the exercise of such a discretion, an appellant must bring their appeal within one of the recognised categories of appellant intervention identified by the High Court in House v The King [1936] 55 CLR 499. An appellant must therefore demonstrate that the primary judge’s discretion miscarried by:
·Making an error in approach or principle.
·Failing to consider a relevant circumstance and/or considering an irrelevant circumstance.
·Making an error in the findings of fact such that the finding is unsupported by the evidence; or
·Making orders that fall so outside a reasonable exercise of discretion that the orders were “unreasonable or plainly unjust”.
As observed by Stephen J in Gronow v Gronow (1979) 144 CLR 513:
519.The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight…
This appeal contended errors in application of principle, factual errors, and failure to give reasons or adequate reasons. In presenting the appeal, the appellant’s counsel contended that there was a degree of overlap between the grounds with each compounding an error advanced in an earlier ground. Thus, it was submitted that the primary judge erred in failing to follow established principle (Ground 1) which, so it was asserted, led to error in failing to adopt a contention of the respondent (Ground 2) leading to errors in the findings of fact unsupported by adequate reasons (Grounds 3, 4 and 5).
For reasons for which will become apparent, I am satisfied there is no merit to the appeal and the Amended Notice of Appeal will be dismissed.
GROUND 1
1. The primary judge erred in law, in the context of a short marriage, by not following Bushby
The reference to “Bushby” is to the Full Court’s decision Bushby and Bushby (1988) FLC 91-919 (“Bushby”). The appellant submitted that Bushby has not been overruled, was referred to approvingly by the Full Court in Cook v Langford [2008] FamCAFC 84 and Amero v Croft [2010] FamCAFC 118 (“Amero”) and the primary judge consequentially fell into error in not following it.
The appellant submitted “in short, the primary judge erred in law by failing to undertake a ‘more analytical consideration of individual contributions’” (appellant’s Summary of Argument filed 19 November 2024, paragraph 25). In support of this submission, the appellant relied on the observation of the Full Court in Amero where their Honours observed as follows:
78.This exercise, particularly in respect of a short marriage where there are no children of the relationship and a modest pool of assets often requires a much more analytical consideration of individual contributions to that to be undertaken when dealing with a long term marriage where there have been a myriad of diverse contributions over many years. While the authorities stress the exercise is not an accounting one (see Quinn & Quinn (1979) FLC 90-677; Anastasio & Anastasio (1981) FLC 91-093; Bushby & Bushby (1988) FLC 91-919) in a short term marriage assessment on an asset by asset basis is often appropriate.
The appellant further submitted that the primary judge erred in concluding at [96] that there is no special approach to the assessment of contribution in short marriages as contrasted with the assessment of contributions in longer relationships.
The appellant’s submission as to the effect of the Full Court’s observations in Bushy and Amero ignores the deliberate and qualified language adopted by their Honours in each of their determinations. In Bushby, the Full Court observed that while direct financial contributions in a short marriage may be the primary issue, they were not the only issue, citing with approval the primary judge’s observation that “the application under sec.79 must commence with the assessment of the contributions of each of the parties under sec.79(4)(a), (b) and (c)” at 76,668.
In so far as the appellant relied upon a passage from Amero as support for the submission contending error on the part of the primary judge, the submission ignores the paragraph that preceded it where the Full Court observed:
77.It is important to remember that s 79(2) only requires a court to adjust the property of the parties to a marriage if it is just and equitable to do so. But in determining whether or not to make an adjustment a court must make findings about and evaluate the parties’ respective contributions both financial and non-financial, direct and indirect, as well as contributions to the welfare of the family either on a global or asset by asset basis. Additionally consideration must be given to s 79(4)(d), (e), (f) and, if relevant, (g). Section 79(4)(e) incorporates consideration of s 75(2).
The appellant’s submission also fails to engage with the deliberate imposition by the Full Court of the word “often” prefacing the words “analytical” and later “asset by asset”. The word “often” qualifies what the appellant would contend was the absoluteness of the Full Court’s observations. There will be cases where it often is appropriate to do a more analytical consideration of the individual contributions and there will often be cases where an asset by asset approach is appropriate. But there will often be others, the matter at hand by way of example, where it will not.
The adoption of a global as opposed to an asset by asset approach is peculiarly the provenance of the primary judge. In Norbis v Norbis (1986) 161 CLR 513, Brennan J observed at 541:
…the primary judge's adoption of the asset-by-asset approach in lieu of the global approach was not an error affecting the validity of the order which he made. There is no logical foundation for concluding that one approach should produce, at the end of the day, an order different from, or preferable to, the order which the other approach would produce. Either approach is capable of producing a just and equitable order.
While the Full Court observed in Zyk and Zyk (1995) FLC 92-644 that “either approach is permissible, depending on the circumstances, but generally the global approach is to be preferred” at 82,508.
Here, the primary judge declined to adopt an asset by asset approach in circumstances where there had been the transfer of funds between various accounts described by the appellant’s then counsel as a “cycling of funds” at [102]; where the parties did not separate the financial affairs of a company from their personal financial affairs and that “the tangle of the parties’ financial affairs only became knottier” at [102] when it was considered that there were payments through different bank and that the funds for various businesses were not kept separate from company accounts. In doing so, his Honour did not fall into error.
A close reading of the primary judge’s Reasons reveal that his Honour undertook an assessment of the individual contributions of the parties of all types, consistent with that required by s 79 (albeit absent the focus on the minutiae particularised by the parties in their prolix affidavits) on a global basis, giving reasons for doing so. No error is made out.
There is no merit to the appellant’s contention that the primary judge erred in observing that there was no “special” category of cases for short marriages at [96]. The primary judge used special as synonymous with different or discrete and in doing so referred to Q and Q [1999] FamCA 1314 where the Full Court observed:
39.There is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with "a particular contribution". It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.
There is no merit to Ground 1.
GROUND 2
2. The primary judge erred by rejecting the Husband’s concession that the parties should have their capital contributions returned to them.
In support of this ground, the appellant relied upon a statement made by the respondent’s counsel in opening that each of the parties should have their capital returned to them.
The appellant’s counsel then referred to evidence advanced by the appellant that she had contributed capital of $1.25 million (appellant’s Summary of Argument filed 19 November 2024, paragraph 30). Having recorded that in the Summary of Argument, he properly conceded in oral submissions that the appellant’s evidence involved a $200,000 double count. Through a series of calculations, the appellant’s counsel sought to contend some error on the part of the primary judge in not adopting the submission of the respondent in opening. How that amounted to an error on the part of the primary judge, despite its articulation in the Amended Notice of Appeal, the Summary of Argument and in oral submissions remains abstruse.
The respondent’s opening was no more than that. It did not represent an agreed position nor was it one upon which both parties conducted the hearing such that a departure may give rise to a denial of procedural fairness. Whatever may have been the force or otherwise of the respondent’s counsel opening at trial, it was not adopted by the appellant and counsel for the appellant did not articulate a reason nor cite any authority why not adopting an opening advocated by only one counsel, contrary to the position of the appellant, constituted an error on the part of the primary judge. The appellant is bound by the way she conducted her case at hearing (Metwally v University of Wollongong [1985] 158 CLR 447)
Ground 2 fails.
GROUND 3
3. The primary judge erred in failing to make specific findings about the Wife’s capital contributions, by reason of which there are no or inadequate reasons for the 67.5% adjustment to the Wife.
The ground contends error in failing to make a specific factual finding as urged by the appellant and a failure to give any or adequate reasons for the contribution-based finding.
The particular factual finding that was said not have been made (thus amounting to appealable error) was that the appellant contributed $1.25 million to Property F. The appellant’s Summary of Argument submitted in numerous places that the appellant had contributed $1.25 million to Property F. As identified earlier, during the course of the appeal, the appellant’s counsel conceded that there was a double counting of approximately $200,000 in relation to the appellant’s asserted contribution to Property F. Such concession renders otiose any assertion of error on the part of the primary judge in failing to find the appellant’s contribution was $1.25 million.
The appellant also submitted that an error on the part of the primary judge in failing to include a liability of the appellant in determining her Pool A assets evidenced the primary judge’s failure to properly consider the appellant’s contributions. The appellant’s submission ignores the inclusion by the primary judge of the liability in the consolidated pool of assets forming Annexure A to the primary judge’s Reasons.
Nor is there any merit to the appellant’s contention that the primary judge provided no reasons or inadequate reasons for the contribution-based finding of 67.5 percent. A reading of the Reasons as a whole reveals the primary judge accepted the appellant’s evidence that she had contributed $58,725 to the purchase price of Property E and that after payments by the respondent the balance was provided by way of mortgage finance at [125]. The primary judge thereafter observed that:
127The contributions between them could not be differentiated because by and large rental income from the property serviced the mortgage.
The primary judge accepted the appellants’ evidence that she spent money on capital improvements at [128], recorded that the appellant contributed $200,000 as the deposit for Property F at [134], that she increased the level of debt she had on properties she owned prior to the marriage by at least $425,000 and probably more at [134], and that a mortgage was taken by a bank to provide the balance of the finance and that the appellant increased her mortgage to meet the transaction costs in relation to the property at [134]. The primary judge found that the respondent did not contribute to the Property F purchase price by mortgaging his pre-relationship assets, but nevertheless found that he was sole guarantor in relation to the mortgage. The primary judge found that that the appellant made a relatively greater contribution to the management of the Property E during periods of the respondent’s illness at [136], accepted her evidence that she had a greater responsibility for the letting and day-to-day management of the properties arranging cleaners and gardeners, replacing broken missing items and preparing the property for arrival for guests at [137], found the appellant’s substantial contributions to the generation of income ought to be given weight in the contribution analysis at [138], that the appellant made non-financial contributions caring for the respondent during his period of illness at [142], accepted the appellant’s evidence that she applied $144,000 of her own funds to furnish the properties for guest use at [144], accepted the appellant’s evidence that she paid an additional $122,333 in interest payments at [145], and that since 1 May 2023 the appellant had been solely responsible for the management of the Property E at [147]. The primary judge recognised that the appellant’s contribution to the purchase of Property F was a significant contribution providing the foundation for the purchase of it and ensuring the wealth which flowed to the parties at [149] and also observed that the appellant had done substantial renovating work at Property F at [150].
The observations of the Full Court in Morin & Simons [2024] FedCFamC1A 130 are apposite to the contentions advanced by the appellant where their Honours observed as follows:
59Appellate courts reviewing an exercise of discretion at first instance should avoid an overly critical or pernickety analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved (U v U (2002) 211 CLR 238 at 270; AMS v AIF (1999) 199 CLR 160 at 211). The task of moving from a qualitative to a quantitative assessment of the parties’ contributions in a financial cause under the Act is not always easy (Mallett v Mallett (1984) 156 CLR 605 at 625). An assessment of such contributions need not be the subject of “over-zealous attention” (Norbis v Norbis (1986) 161 CLR 513 at 524). It is only necessary that the appellate court be able to discern either expressly or by implication the path by which the result has been reached (Bennett & Bennett (1991) FLC 92-191 at 78,267).
The above reveals that there is no merit to the appellant’s contention that the primary judge did not make findings and/or failed to give adequate reasons for the contribution assessment. The Reasons clearly reveal the primary judge’s reasoning process such that this court is able to discern how his Honour reached the conclusion that it did (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
Ground 3 is without merit.
GROUND 4
4. The primary judge erred by finding that the Husband evidence of $210,086 contribution was not directly challenged.
Ground 4 challenges a finding by the primary judge. The Reasons record the following:
143There were other contributions over the life of the relationship. The Husband said that he contributed $210,086 of capital to the acquisition, conservation and improvement of assets. I say only that this evidence was not directly challenged.
The appellant contends that the primary judge made an error in determining that the respondent’s evidence was not directly challenged because, so it was submitted, the appellant in her affidavit in reply said:
6.The respondent therefore deposes in paragraphs 26 and 32 that he contributed in total $210,086. The respondent does not explain how he got to this figure.
It was submitted that the primary judge did not address this evidence in his Honour’s Reasons and that it was incumbent upon him to address the evidence of the appellant.
A close examination of the appellant’s affidavit in reply is consistent with the primary judge’s finding that the respondent’s evidence was not directly challenged. The appellant’s statement in her affidavit that the respondent “did not explain how he got to this figure” is not evidence of a fact, it is at its highest an irrelevant submission. It is neither a denial nor challenge to the evidence of the respondent. The statement is also clearly specious as it ignores the respondent’s evidence in the paragraphs that preceded it where he explained in detail how the figure was calculated.
Counsel for the appellant conceded in oral submissions that the respondent was not directly challenged in cross-examination as to the contribution of $210,086 stating however that he was asked questions about an amount of $40,000 (the subject of Ground 5) that was withdrawn by the respondent that was sourced from the contribution of $210,086. Cross-examination on that discrete issue did not undermine the correctness of the finding and even if it did it lacked the materiality necessary to enjoy appellate intervention, nor was it in error as Ground 5 demonstrated.
The ground does not establish any error on the part of the primary judge.
Ground 4 fails.
GROUND 5
5. The primary judge erred in finding (RFJ para 125(b)) that the Husband paid an amount of $40,000 to the purchase price of Property E.
The ground as framed in the Amended Notice of Appeal challenged as erroneous the primary judge’s finding that the respondent paid $40,000 to the purchase price of Property E. The Summary of Argument expanded the ground to contend an inadequacy of reasons on the part of the primary judge in so finding.
The parties were at issue as to which of them contributed the sum of $40,000 to the purchase of Property E. As the submissions of the parties revealed, the appellant did not challenge that the respondent had paid $40,000 but said that he did so with funds that had originally come from her account. The respondent conceded that some funds had come from accounts of the appellant, but those funds had always remained in an ANZ account, whereas the $40,000 he paid came from an entirely separate account with NAB and was not sourced in any way from the payments made by the appellant to his ANZ account. The primary judge resolved the issue on the basis of a credit-based finding, preferring the evidence of the respondent. No part of the appeal contends the credit finding of the primary judge was not open.
The transcript reveals that the primary judge was clearly alive to the issue as to payments by the appellant into the respondent’s bank accounts and payments back by the respondent to the appellant and also the contention as to the source of the $40,000 paid from the respondent’s NAB account. It was the subject of cross-examination and submissions. The finding that the funds were provided by the respondent and not sourced from the “cycling” of funds undertaken by the appellant was made clear in the respondent’s counsel’s Summary of Argument that demonstrated that the appellant conflated two different bank accounts. The respondent’s Summary of Argument referring to the transcript made clear that the payment by the respondent of $40,000 was made from his NAB accounts whilst the appellant had “cycled” funds through the ANZ account. The detailed analysis in the respondent’s Summary of Argument including transcript and exhibit references was not challenged by the appellant who elected merely to rest on his written Summary of Argument.
The evidence of the respondent was consistent with the documentary records and the appellant’s evidence conflated two series of events and was simply wrong. This was not a case that an alternative version of events may have been open to the primary judge (albeit consistent with the observations of the High Court in Edwards v Noble (1971) 125 CLR 296 this would not have assisted the appellant).
Here, the primary judge resolved the factual contention by preferring the evidence of one over that of another. The primary judge provided an explanation for why he did so, and the Reasons are sufficient given the significance of the factual issue relative to the overall dispute (Mifsud v Campbell (1991) 21 NSWLR 725 at 728).
There is no merit to Ground 5.
DISPOSITION
For the above reasons, the appeal will be dismissed.
COSTS
The respondent sought an order by way of costs in the event the appeal was dismissed in the sum of $26,089 said to be calculated at scale.
The appellant indicated that it would be difficult to resist an order in the event the appeal was dismissed but said that a more reasonable sum was $15,000.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs. Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
It is well-settled law that no one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor (see Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123).
The appellant has been wholly unsuccessful on the appeal and none of the grounds had merit.
It was not suggested by the appellant that the sum sought by the respondent was not at scale the only submission was that a more reasonable amount was $15,000 and that the respondent’s Summary of Argument exceeded the limit permitted by the Rules and that the appellant should not be ordered to meet those costs.
The sum sought by the respondent are said to accord with the scale. In the event that a fixed sum is not ordered the parties will be left to an assessment which will only incur further costs. I do not propose to allow this aspect of the parties’ litigation to continue beyond this event (see Warbrick & Warbrick (2021) FLC 94-030 at [13]) given the propensity of these parties to litigate over minutiae (as demonstrated by the necessity of the primary judge to rule on an addback of $1,750).
The Rules and authorities make plain that I can fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126). I am satisfied that it is just that an order for costs should be made but not in the quantum as sought by the respondent. I am of the view that an order for costs should be made, and I will order the appellant to pay the respondent’s costs assessed in the sum of $20,000. I am satisfied that that amount is fair and reasonable. I will order the appellant to pay that sum to the respondent within two months of the date of the making of this order.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 17 January 2025
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