DAYMOND & DAYMOND
[2014] FamCAFC 212
•6 November 2014
FAMILY COURT OF AUSTRALIA
| DAYMOND & DAYMOND | [2014] FamCAFC 212 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY SETTLEMENT – CONTRIBUTIONS – where the trial judge made final property settlement orders between the appellant husband and the respondent wife reflecting a division of 47.5 per cent and 52.5 per cent respectively – where the trial judge found that the respective contributions of the parties were equal – where the appellant husband submitted that that finding was unreasonable and manifestly unjust to him and the exercise of discretion miscarried – where the appellant husband made greater direct financial contributions, including via a late inheritance, than the respondent wife, and the respondent wife made greater homemaker and parent contributions than the appellant husband – where the appellant husband submitted that the contribution findings in other cases with some similar factual circumstances demonstrate that the result in this case is plainly wrong – where it was claimed that in finding equality the trial judge took into account an irrelevant consideration and accorded too much weight to the care provided by the respondent wife to the now adult child of the parties who has Asperger’s Syndrome – where there is no basis for the overall assessment of contributions in one case to be decided in the same way as in other cases simply because there may be a broad similarity between the facts of those cases – no merit found in the claims that the trial judge took into account an irrelevant consideration and accorded too much weight to the care provided by the respondent wife to the child of the parties with Asperger’s Syndrome – where the Full Court found no error by the trial judge in his assessment of the contributions of the parties as being equal – where his Honour’s decision was not outside the range and plainly wrong such that it was no proper exercise of his judicial discretion – no merit in these grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY SETTLEMENT – ADEQUACY OF REASONS – where the appellant husband submitted that there was a lack of reasons in a number of areas including in relation to the overall assessment of contributions by the trial judge – where the reasons by the trial judge are adequate in explaining why he concluded that the respective contributions of the parties should be treated as being equal – no merit in these grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the appeal was wholly unsuccessful – where the appellant husband did not oppose an order for costs if the appeal was unsuccessful – costs order made in favour of the respondent wife. |
| Family Law Act 1975 (Cth) – s 79 |
Bennett & Bennett (1991) FLC 92-191
Bonnici & Bonnici (1992) FLC 92-272
Farmer and Bramley (2000) FLC 93-060
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mallett & Mallett (1984) 156 CLR 605
Petruski & Balewa [2013] FamCAFC 15
Pierce & Pierce (1999) FLC 92-844
S S Hontestroom v S S Sagaporack [1927] AC 37
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Wen & Thom [2010] FamCAFC 81
| APPELLANT: | Mr I Daymond |
| RESPONDENT: | Ms R Daymond |
| FILE NUMBER: | BRC | 18 | of | 2011 |
| APPEAL NUMBER: | NA | 25 | of | 2013 |
| DATE DELIVERED: | 6 November 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May and Strickland JJ |
| HEARING DATE: | 28 November 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 April 2013 26 July 2013 |
| LOWER COURT MNC: | [2013] FamCA 215 [2013] FamCA 552 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Carew QC |
| SOLICITORS FOR THE APPELLANT: | Best Wilson |
| COUNSEL FOR THE RESPONDENT: | Mr Coulsen |
| SOLICITORS FOR THE RESPONDENT: | Toogoods Lawyers Lawyers |
Orders
The appeal be dismissed.
The husband pay the wife’s costs of and incidental to the appeal, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Daymond & Daymond has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 25 of 2013
File Number: BRC 18 of 2011
| Mr I Daymond |
Appellant
And
| Ms R Daymond |
Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Notice of Appeal filed on 23 September 2013
Mr I Daymond (“the husband”) appeals against property settlement orders made by Murphy J on 9 April 2013 and 26 July 2013.
The respondent in the appeal is Ms R Daymond (“the wife”), and she opposes the appeal.
Background
The husband and wife commenced cohabitation in December 1988 and married in 1989.
The parties have two children, O born in 1990 and Q born in 1992. Q has Asperger’s Syndrome and at the time of trial continued to live with the wife.
The parties separated for a period of one year in 1997 and for seven years between January 2000 and January 2007. Between January 2007 and their final separation in November 2009, the parties lived in separate residences.
Mr D and Ms M Daymond are the husband’s brother and sister-in-law. Mr A Daymond is D and M’s son.
Mr A Daymond commenced proceedings against his father and uncle in the Supreme Court of Queensland in relation to the shareholdings in the company
P Pty Ltd (“the family company”). The family company operates grazing properties and a mine, and also owns several investment properties. The husband and Mr D Daymond each own 50 per cent of the shares in the family company.
The Supreme Court proceedings were transferred to the Family Court and heard by Murphy J, together with proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) pertaining to the marriages of the husband and wife, and of D and M, on 23-26 July 2012 and 3-4 December 2012 respectively.
His Honour made orders and delivered his reasons for judgment on 9 April 2013. His Honour dismissed A’s claim, and made orders for property settlement, identifying the percentage entitlements of the husband and the wife, and D and M. Those latter orders provided for the parties to file, within 21 days, agreed Minutes of Order to give effect to the respective percentage divisions.
The 21 days elapsed without agreement being reached and a hearing date was allocated. On 7 May 2013 the husband filed a Notice of Appeal against the orders of 9 April 2013.
The matter came before Murphy J on 17 July 2013 and his Honour made orders and delivered his reasons for judgment on 26 July 2013.
By Further Amended Notice of Appeal filed on 23 September 2013 the husband also seeks to appeal against the orders of 26 July 2013.
The reasons for judgment of the trial judge delivered on 9 April 2013 relating to the dispute between the husband and the wife
The trial judge commenced his reasons for judgment by providing a background to the parties and the proceedings. His Honour noted that, save for A’s claimed interest, the property potentially available for division pursuant to s 79 of the Act was agreed.
At [98] his Honour set out a table of the husband and the wife’s assets and liabilities (including superannuation), with a net total of $2,229,963.50.
His Honour noted that the husband’s shareholding in the family company comprised about 62 per cent of the net assets and superannuation interests of the parties.
His Honour also noted that the wife lived in a property at Suburb L, and the husband lived in a property at Town H.
The trial judge then outlined the parties’ initial contributions. In summary, at the commencement of the relationship the husband held a 13 per cent shareholding in the family company and owned a professional practice, a car and a boat. His Honour noted that “[l]ittle evidence of value attends those items but some measure of [the professional practice’s] relative value might be gleaned from the fact that the practice has an agreed value of $30,000 now, more than 20 years later” (at [106]). At the commencement of cohabitation, the wife owned a home in Suburb W valued at about $75,000 with a $30,000 mortgage, a motor vehicle worth about $5,000 and $15,000 in superannuation.
As to contributions during the relationship, it was common ground that from the commencement of cohabitation until the year 2000 the husband worked seven days a week, working full-time in his professional practice and working in the family business “as and when required”. At the commencement of cohabitation the wife was employed with a government agency and thereafter, at different times, worked part-time for the husband’s professional practice, the family company and a local hairdresser. Her income was modest. In 2007 the wife obtained a Bachelor degree, which she had undertaken during the mid-2000s when the parties were separated.
It was the wife’s evidence that the husband contributed very little to parenting and homemaking duties. The wife claimed she was responsible for the day-to-day care of the children, which was exacerbated by Q’s special needs and the husband’s lifestyle. The wife asserted that this lifestyle centred around the consumption of alcohol, and attendance at the “pub”.
His Honour noted that many of factors pertaining to D and M’s relationship in relation to the family company were also relevant in relation to the husband and wife. For example, the shares and the husband’s loan to the family company accounted for 74 per cent of the property pool; the husband’s shareholding was owned with another family member; the shareholding was largely acquired by inheritances; the business was run by the husband’s family; and the assets held by the family company were mainly acquired prior to the husband commencing full-time work with the company. His Honour also noted that the husband paid the wife a weekly sum after their final separation, that in order to meet the wife’s entitlement the husband’s shares in the family company would be affected, and as a result no finding could be made with any precision about the husband’s future income.
The trial judge set out the history in relation to the parties’ property transactions. In summary, his Honour found the wife’s Suburb W property provided a home for the parties after they were married, that the wife paid the mortgage and outgoings on that property, and the husband’s only direct financial contributions were paying the phone bill and $50 per week towards groceries. The Suburb W property was sold in 1991 for about $35,000 net which was put into a term deposit in the wife’s name. In 1990, the parties moved to Town H and purchased a property from the husband’s sister-in-law. His Honour accepted the wife’s evidence that she spent $10,000 from the proceeds of sale of the Suburb W property and $6,500 on her credit card towards renovations and the purchase of items for the house. In 2002 the husband provided the wife with $10,000 as the deposit for a property in Suburb L. Both parties agreed that sum constituted repayment by the husband of a $13,000 loan made to him by the wife in 1991.
His Honour accepted the wife’s evidence “in respect of the extent to which the husband’s use of alcohol and, in particular, the time he spent at the pub, impacted upon the relationship of the parties” (at [116]). His Honour noted the husband’s concession that he attended the hotel on a regular basis but rejected the husband’s account of the time he spent there in favour of the wife’s evidence. His Honour also rejected the written submission filed on behalf of the husband as to the lack of reliability of the publican who gave evidence for the wife.
The trial judge determined the wife’s contributions as homemaker and parent “significantly” exceeded those of the husband, whose contributions were “minimal at best”, and that the wife’s role was exacerbated by the husband’s attendances at the “pub” and the requirement for her to attend to Q’s special needs (at [117]).
As to their respective financial circumstances since separation, the trial judge noted the wife was on a casual contract with a government agency earning about $24,000 per annum and that the husband’s income over the last ten years ranged from $50,000 to $65,000 (being $51,000 for the 2010/11 financial year). His Honour also noted the husband paid the wife monthly payments of about $600 per month between 2001 and 2002, $800 until 2008 and $900 since 2008, and that the wife had met the mortgage contributions on the Suburb L property since its purchase in 2002.
The trial judge found the wife’s post-separation contributions were “made more difficult as a result of needing to continue to provide for [Q’s] needs” (at [121]) with very little physical assistance from the husband.
In relation to the family company, the trial judge considered that the wife made negligible direct financial contributions, but that she contributed indirectly by reason of her support of the husband. His Honour found the husband’s contributions represented by inheritances, and the shareholdings they produced, were substantial and greater than the wife’s direct and indirect financial contributions. However, his Honour also considered the wife’s direct financial contributions by way of the Suburb W property were significant.
Ultimately, the trial judge assessed the parties’ contributions as being equal.
The trial judge then turned to consider s 79(4)(e) of the Act. His Honour noted an equal division of property would see each party receive property with a value of about $1.1 million, but that the manner in which such settlement was effected would be significant in making any adjustment pursuant to s 79(4)(e). His Honour noted the wife would most likely retain the Suburb L property, that as a qualified health care professional she could now potentially increase her work, and that Q’s special needs should be considered as if the wife was caring for a child into the future. His Honour noted that the husband would have access to income of $270,000 over the next four years from the mine, that his future income would be derived from the family company so long as he remained a shareholder although his age and lifestyle may impact on this, that the sale of the family company or his shares would impact the overall financial position of the husband, and that any potential development of a property known as Property K remained speculative.
Weighing all considerations, his Honour determined an adjustment of 2.5 per cent (being a 5 per cent disparity of $115,000) to the wife was just and equitable.
Orders made on 9 April 2013
The trial judge made the following relevant orders on 9 April 2013:
ORDERS
(1)That the Claim and Statement of Claim filed by [Mr A Daymond] in the Supreme Court of Queensland on 23 March 2012 and transferred to this Court on 30 May 2012 be dismissed.
…
B.IN THE MARRIAGE OF [MR I DAYMOND] and [MS R DAYMOND]
(5) THAT as and by way of settlement of property pursuant to s 79 of the Act, the existing legal and equitable interests in property of the parties as set forth in the Reasons for Judgment herewith be altered so as to effect a division of those interests whereby [MR I DAYMOND] receives property equivalent to 47.5 per cent of the value thereof and [MS R DAYMOND] receives property equivalent to 52.5 per cent of the value thereof.
(6)THAT so as to give effect to paragraph (5) of these Orders, the parties shall, within 21 days of the date of these Orders, provide via joint e-mail communication to [the associate to Murphy J] an agreed minute of Order.
(7)THAT in the event that the parties are unable or unwilling to arrive at the orders contemplated by paragraph (6) hereof, the matter be listed for hearing before Murphy J on a date and at a time to be advised and, in that event, the parties shall, not later than 5 days before such date, file and serve all such material as might be necessary so as to make submissions in respect of any order for costs of and incidental to the failure to provide a minute of order as paragraph (6) contemplates.
The reasons for judgment of the trial judge delivered on 26 July 2013 relating to the dispute between the husband and the wife
The husband and the wife remained in disagreement about the orders to give effect to the trial judge’s reasons of 9 April 2013.
His Honour noted the husband’s case proceeded on the basis that the Court should make orders in terms of the draft minute of orders tendered in relation to D and M. However, those orders were subsequently amended on D’s behalf to deal with various issues, including a potentially endless series of auctions when selling real property, the uncertainty of when the wives would receive the balance of their entitlements, and the division of sale costs and commissions. His Honour expressed concern that the amended orders could not be implemented in the husband and wife’s case, because they did not give “force and effect to the trial judgment and findings based on the evidence at trial”.
At [29] the trial judge set out a number of matters relevant to the orders that should be made. In particular, his Honour noted it must have been apparent to the husbands that some actions by the family company would need to take place in order to meet the wives’ entitlements and that there was no evidence that either of the husbands took any step to make the necessary arrangements.
Ultimately, the trial judge considered it was just and equitable to make orders providing for the husband to raise and pay the relevant cash sum within four months. His Honour also set out the orders he proposed to make in relation to the sale of the Town H property, adopting the wife’s proposal that the property be transferred to her if the sale did not take place. Lastly, his Honour determined to make the order proposed by the husband in relation to the initial payment of $44,000 to the wife within 14 days.
Orders made on 26 July 2013
His Honour made the following relevant orders on 26 July 2013:
…
B.IN THE MARRIAGE OF [MR I DAYMOND] and [MS R DAYMOND]
As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) and so as to give effect to the Orders made 9 April 2013, IT IS ORDERED:
2.The husband shall do all such things, sign all such documents and give all such consents as might be necessary so as to transfer to the wife and/or abandon all right, title and interest he has or may have in and to:
a. Her property situated at [J] Street, [Suburb L] in the State of Queensland;
b. Her furniture;
c. Her Kia … motor vehicle;
d. Her cash savings with the ANZ Bank;
e. Her superannuation with [T Super], [U Super] and [V] Super;
f. Her credit card liability with ANZ Bank and CBA;
g. Her HECS debt; and,
h. The ANZ Bank mortgage liability on the said [Suburb L] property.
3.The wife shall do all such things, sign all such documents and give all such consents as might be necessary so as to transfer to the husband and/or abandon as the case may be all right, title and interest she has or may have in and to:
a. His interest in the [professional] practice;
b. His furniture;
c. His loan to [P] Pty Ltd;
d. His interest in [P] Pty Ltd;
e. His cash savings with Westpac;
f. His superannuation with [X Super]; and,
g. His credit card liability with ANZ Bank.
4.Save as otherwise expressly provided in these Orders:
a. Each party be solely entitled to the exclusion of the other party to all property (including choses-in-action) in the possession of such party as at the date of these Orders;
b. Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
c. Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
d. All insurance policies are to become the sole property of the owner named hereon; and,
e. Each party be solely liable for and indemnify the other against any liability encumbering any asset to which that party is entitled pursuant to these Orders.
5.The parties shall each and together do all such things, sign all such documents and give all such consents as might be necessary so as to:
a. Enter into an unconditional contract to sell the property situated at [G] Street, [Town H] to [Ms Y]; and,
b. Effect settlement of the said sale on a date not later than 30 days after the date of these Orders, with the husband to ensure that all outgoings in respect of the property are up to date.
6.In default of settlement of the sale contemplated in paragraph 5, [Mr I Daymond] shall transfer to [Ms R Daymond] all his right, title and interest in the property at [G] Street, [Town H] and provide vacant possession not later than 4:00pm on a date 32 days from the date of these Orders with the transfer to occur at the value agreed by the parties at trial, namely $180,000. [Ms R Daymond] or her agent shall inspect the property and any damage shall be repaired at the expense of [Mr I Daymond].
7.The husband shall raise and pay to the trust account of Bruce Dulley Family Lawyers:
a. The sum of $44,000 within fourteen (14) days of the date of these Orders; and,
b. The amount of $818,284.80 by 4:00pm, 24 November 2013 in the event that paragraph 5 of these Orders is carried into effect; or,
c. The amount of $638,284.80 by 4:00pm, 24 November 2013 in the event that paragraph 6 of these Orders is carried into effect.
…
Grounds of appeal
The grounds of appeal as contained in the Further Amended Notice of Appeal filed by the husband on 23 September 2013 are as follows:
1.Having made the following findings:
(a)the husband’s interests in his family company account for
74 percent of the net value of the property to be divided;(b)the shareholding was largely acquired by inheritances;
(c)the business was not established and run by the wife and husband but by the husband’s broader family;
(d)the assets held by the family company (which comprise its value) consist largely of those which existed prior to the husband commencing full-time work with the company;
(e)the wife made negligible direct financial contributions to the business or property owned by the family company;
(f)the contribution by the husband represented by inheritance and the shareholding they produced which now form part of the husband’s interests in property is very substantial
(g)that the husband worked seven days a week, spread between his professional practice and the family businesses
the assessment by the learned primary Judge that the contributions of the husband and wife were equal was unreasonable and manifestly unjust to the husband and thus the exercise of discretion has miscarried.
2.In the alternative, the reasons provided by the learned primary Judge for assessing contributions of the husband and the wife as equal are inadequate.
3.Having struck out those parts of the wife’s evidence in which she sought to agitate a ‘Kennon’ claim the learned primary Judge erroneously took into account the husband’s conduct i.e. his “use of alcohol” and found that it “impacted upon the relationship of the parties” and that the wife’s role as homemaker and parent “was exacerbated by the husband’s attendances at the pub …”.
4.In the alternative, the reasons provided by the learned primary Judge are inadequate in that they fail to explain how the husband’s “use of alcohol” impacted upon His Honour’s assessment of contributions and what was meant by the finding that the wife’s role as homemaker and parent “was exacerbated by the husband’s attendances at the pub …” and to what extent that finding impacted on the assessment of contributions.
5.The learned primary Judge erred:
(a)in placing too much weight on the provision by the wife of the [Suburb W] property as the home in which the husband and wife resided until 1991;
(b)in accepting the evidence of the wife that the [Suburb W] property was valued at about $75,000 in December 1988 when that lay opinion evidence was objected to by the husband;
(c)in drawing any conclusion as to the value of the husband’s professional practice in 1988 based upon its agreed value as at the date of trial;
(d)in failing to provide adequate reasons for his finding that the wife’s contributions have been made more difficult as a result of needing to continue to provide for [Q’s] needs and what impact such a finding had on His Honour’s assessment of contributions;
(e)in preferring the evidence of the wife over that of the husband as to the time the husband spent in the pub and in failing to provide adequate reasons for same; and
(f)in rejecting “specifically the contentions in the written submissions filed on behalf of [the husband] as to the lack of reliability of the publican who gave evidence for [the wife]” and in failing to provide adequate reasons for same.
Grounds 5(b) and 5(c) were not pressed by the husband.
Orders sought
In his Further Amended Notice of Appeal filed on 23 September 2013 the husband seeks the following orders:
1.That the appeal be allowed.
2.That paragraph 5 of the Order made on the 9 April 2013 be varied by deleting 47.5 percent and replacing with 62.5 percent and deleting 52.5 percent and replacing with 37.5 percent.
3.That paragraph 7 b. and 7 c. of the Order made on the 26 July 2013 be varied by replacing the reference to “$818,284.80” in paragraph 7 b. with “$483,790.31” and replacing the reference to “$638,284.80” in paragraph 7 c. with “$303,790.31”.
4.That a costs certificate pursuant to section 9 of the Federal Proceedings Costs Act issue to the appellant.
Discussion
As can be seen there are five grounds of appeal set out in the Further Amended Notice of Appeal, and the written summary of argument presented on behalf of the husband specifically addressed each of those grounds of appeal. Helpfully though, in her oral submissions senior counsel for the husband identified three main bases on which the orders of the trial judge were challenged. They are as follows:
a. The result was plainly wrong.
b.The trial judge took into account an irrelevant consideration, namely the husband’s use of alcohol and the impact of that on the relationship between the parties.
c.There is a lack of adequate reasons to explain the overall assessment by his Honour of the respective contributions of the parties.
Clearly, in identifying these as the three main issues in the appeal, senior counsel for the husband was not abandoning any of the grounds of appeal (save and except of course Grounds 5(b) and (c)). On that basis we would expand the challenges for us to consider to four categories, namely:
a.The overall assessment of the contributions of the parties is plainly wrong (Ground 1).
b.There is a lack of adequate reasons provided by his Honour (Grounds 2, 4 and 5).
c.His Honour took into account an irrelevant consideration in the exercise of his discretion (Ground 3).
d.A weight challenge (Ground 5).
The issues promoted by the husband, including as reframed by us, plainly relate to and stem from familiar passages in the High Court decisions of House v The King (1936) 55 CLR 499 and Gronow & Gronow (1979) 144 CLR 513. In House the plurality of the High Court expressed it in this way at 504-505:
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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow, Stephen J said this at 519-520:
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.
(Footnotes omitted)
The overall assessment of the contributions of the parties
In her written summary of argument senior counsel for the husband initially pointed to the following findings (in summary) made by his Honour:
11. …
(a)the husband’s interests in his family company account for
74 percent of the net value of the property to be divided(b) the shareholding was largely acquired by inheritances
(c)the business was not established and run by the wife and husband but by the husband’s broader family
(d)the assets held by the family company (which comprise its value) consist largely of those which existed prior to the husband commencing full-time work with the company
(e)the wife made negligible direct financial contributions to the business or property owned by the family company
(f)the contribution by the husband represented by inheritances and the shareholdings they produced which now form part of the husband’s interests in property is very substantial
(g)the husband worked seven days a week, spread between his professional practice and the family businesses
(h)the husband paid the wife about $600 per month between 2001 and 2002 increasing to $800 per month until 2008 and since 2008 has paid $900 per month by agreement
(Footnotes omitted)
Given these findings, given that 74 per cent represents $1,647,651 of the pool of $2,229,963, and given that a substantial proportion (11 per cent of the shares in the family company, and one half interest in a property known as “Property F”) was received late in the marriage by way of inheritance from the husband’s mother (she died in 2005 and her estate was finalised in 2009), it is said that the trial judge’s finding of equality of contribution by the parties was “unreasonable and manifestly unjust to the husband and thus the exercise of the discretion has miscarried”.
We note at this point the argument by counsel for the wife that although the inheritance was received late in the marriage, the husband had been effectively enjoying the benefit of that inheritance for some time previously, and thus it could not in fact be treated as something received late in the marriage. However, we were not taken to any evidence in relation to this, and significantly this was not raised before the trial judge. His Honour proceeded on the basis that this was property received by the husband late in the marriage. There was also no Notice of Contention filed on behalf of the wife putting this proposition forward as support for his Honour’s decision. Further, we note that whatever the position was with the shareholding, the half interest in the property known as “Property F” was not available to the husband prior to him receiving it via the inheritance, and that interest was valued in excess of $300,000. Thus, this argument cannot alter the importance of these contributions by the husband, or how we should approach his Honour’s treatment of them.
It is beyond doubt that the direct financial contributions by the husband as identified by the trial judge were significant, but the assessment of contributions is an holistic exercise, and it is necessary to take into account all contributions of the parties regardless of type and timing. Thus, as also captured in the written argument of the husband, the trial judge made the following findings (in summary):
15. …
(a)The husband’s frequent attendances at the pub 12pm-3.30pm and 4pm-7.30pm each weekday and long periods on the weekends
(b)The wife’s contribution as a homemaker and parent significantly exceeded that of the appellant
(c)The husband’s contribution as a homemaker and parent was minimal
(d)The wife’s role was exacerbated by the husband’s attendances at the pub and the frequency and length of those attendances
(e)The wife has undertaken the lions’ [sic] share of care for [Q], including specifically those matters associated with his special needs arising from the condition with which he suffers
(f)The wife’s post separation contributions have been made more difficult as a result of needing to continue to provide for [Q’s] needs and she has done so with very little physical assistance from the husband
(g)The wife’s contribution as a homemaker and to the welfare of the family are very substantial and greater than those of the husband
…
It can be seen that this was a classic case of the trial judge having to weigh the greater financial contributions of the husband with the greater homemaker and parent contributions of the wife. To state the obvious, in such a case, although to identify the respective contributions can be relatively straightforward, it can become a difficult task to translate that identification into figures, and this has been recognised in many cases. For example, in Steinbrenner & Steinbrenner [2008] FamCAFC 193, Coleman J, in exercising appellate jurisdiction, said this at [234]:
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 that precedes it as to render the reasoning process defective …
Here it is claimed that a finding of equality is a “leap from words to figures” that is too great.
In attempting to demonstrate why the trial judge was plainly wrong in his assessment of contributions, senior counsel for the husband, in reliance on comments by Deane J in Mallett& Mallett (1984) 156 CLR 605, took us to the treatment of similar factual circumstances in this and other decided cases.
Deane J said this at 641:
It is plainly important that, conformably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances. Otherwise, the law would, in truth, be but the “lawless science” of a “codeless myriad of precedent” and a “wilderness of single instances” of which Lord Tennyson wrote in his poem “Aylmer’s Field”. It is inevitable and desirable that the need for such consistency should lead the Judges of the Family Court to look to what has been said and decided in prior cases for assistance and guidance in determining what is just and appropriate in the differing circumstances of subsequent cases and that shared experience and accumulated expertize should lead to the emergence of generally accepted concepts of what is prima facie just and appropriate in particular types of cases …
Senior counsel for the husband first took us to his Honour’s findings in this case as between the husband’s brother and his wife. His Honour there found the contributions should be assessed at 55 per cent/45 per cent in the husband’s brother’s favour. Clearly there were similarities between the contributions made by the husband in this case when compared with the contributions made by the husband’s brother in his case, and his Honour recognised that at [110] of his reasons for judgment. For example, there were similar circumstances in relation to the receipt of their respective interests in the family company. The brother had a three per cent interest at the start of his relationship with his wife (in about 1971), that then increased to 26 per cent in 1983 by way of inheritance from the father’s estate, by 1995 it was 39 per cent as a result of various allocations of shares, and then he became a 50 per cent shareholder (as did the husband in the case at hand) when the mother died. It was also the case that in their marriage of 38 years the wife (M) was found by his Honour “to have made a greater contribution” to the “role of rearing the two [children] and making a stable home for them” (at [86]).
Plainly though there were individual differences as well, and particularly when considering all the contributions of the parties, as is required. Significantly those differences included the fact of the wife having a property of her own at the commencement of the relationship, and the proceeds of the subsequent sale of that property being used in various ways by the parties. Further there were the significant absences of the husband from the home creating a substantial burden on the wife in carrying out her role as a homemaker and parent, and in a similar vein the impact of the extra care required of Q given his condition. Thus, there are clear bases for a different result, and that was recognised by his Honour at [111] of his reasons for judgment.
Counsel then took us to the decision of the Full Court in Bonnici & Bonnici (1992) FLC 92-272. The important facts there were that approximately one year before the separation the husband and his sister inherited the freehold of the premises in which the husband and the wife had operated a restaurant business for approximately 13 years. The restaurant business and the premises were then sold approximately seven months before the separation, and the proceeds of sale of the premises were ultimately divided equally between the husband and his sister.
The Full Court, in allowing the appeal and re-exercising the discretion, held that the money received by the husband from the sale of the freehold premises should not be brought into account, primarily because the wife “cannot be regarded as contributing significantly to an inheritance received late in the relationship” (at 79,020).
The Full Court altered the finding of equality arrived at by the trial judge such that overall the wife received 45 per cent and the husband 55 per cent of the balance of the net assets of the parties.
Apparently the particular relevance of this case to the case under consideration is how the Full Court treated the inheritance received by the husband late in the marriage. An obvious difference though is that in the case before us the trial judge did take into account the inheritance received by the husband.
Next, counsel referred us to the Full Court decision in Pierce & Pierce (1999) FLC 92-844. That case involved a 10 year marriage with the husband bringing in assets to the value of $226,000 and the wife $11,500. A home was subsequently purchased for $235,000 to which the husband contributed $200,000 and the wife $10,000. The net assets of the parties at the time of the hearing totalled $319,190 of which the home accounted for $260,000.
The husband was in paid employment throughout the marriage and the wife initially was employed full-time but later part-time. There were two children of the marriage who lived with the husband.
In allowing the appeal and re-exercising the discretion the Full Court assessed the contributions at 70 per cent/30 per cent in favour of the husband. Their Honours said this at 85,881:
30.There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have regard to the use made by the parties of the husband’s greater initial contribution.
To reiterate, these cases were cited to us to demonstrate that his Honour’s assessment of the overall contributions of the parties in this case was outside the range and plainly wrong. Clearly, in each instance the husband in the case achieved a higher percentage based on his contributions than the husband here. However, although there is plainly wisdom and logic in what Deane J said in Mallett, the fact is that no two cases are the same. In the broad there can always be similarities such as the husband’s and his brother’s direct financial contributions via their shareholdings in the family company, but equally there will always be individual differences that can and will impact on a trial judge’s assessment of the contributions of the parties.
As the Full Court said in Petruski & Balewa [2013] FamCAFC 15:
74.… Counsel for the wife, in his written submissions, cited a number of first instance decisions where the court had, in relatively short marriages, assessed the percentage entitlements of the parties at levels similar to that contended for by the wife to indicate that the result reached by his Honour departed so much from the results in these cases that his Honour was plainly wrong. We consider such an exercise to be unhelpful. The task to be undertaken by a trial judge in applying ss 79(2), 79(4) and 75(2) of the Act requires the trial judge to consider the particular circumstances of the case before him or her in determining whether any and if so what order should be made. What another judge may do in another case on the basis of the facts in that case can rarely if ever determine what is done in the case at hand.
Further, we do not see that approach as being inconsistent with what Deane J said in Mallett. There can and should be a consideration of other cases in addressing specific legal issues and in the application of “generally accepted concepts of what is prima facie just and appropriate in particular types of cases” (Mallett at 641). In other words, in our view his Honour was referring more to the need for consistency between general principles enunciated in each case, and his Honour was not suggesting that realistically there should be a consistency of results simply where some factual circumstances coincide.
Where there is such a wide discretion reposed in trial judges under s 79 of the Act, there is no necessary basis for the overall assessment of contributions, for example, in one case, to be decided in the same way as in other cases, simply because there may be a broad similarity between the facts of those cases.
Thus, we do not find it helpful to compare this case with the outcome in the cases referred to by counsel. That does not demonstrate that his Honour was plainly wrong on the facts of the case before him.
As explained in her oral submissions before us, senior counsel for the husband suggested that in order to arrive at the assessment of equality there needed to be something to offset the effect of the late inheritance received by the husband. It is said that here that can only be the husband’s use of alcohol and the impact of that upon the relationship, and/or the alleged extra burden placed on the wife by the fact that she solely cared for the now adult child Q who has Asperger’s Syndrome. However, senior counsel submitted that his Honour erred in taking these considerations into account. In relation to the first issue, that brings into play the challenge raised in Ground 3 of the grounds of appeal. Accordingly, it is convenient for us to address this ground of appeal at this point.
An irrelevant consideration
His Honour clearly found that the wife did not satisfy the requirements of maintaining a “Kennon” claim, and the evidence relating to the husband’s conduct, including his “use of alcohol”, was struck out. Thus, it must be the case that his Honour was not satisfied that the husband’s conduct caused the contributions of the wife to be more onerous than otherwise.
In saying that, it is helpful to understand the way in which the “Kennon” claim was advanced by counsel for the wife at trial, how it was responded to by counsel for the husband, and how his Honour dealt with it. First, the submission by the wife’s counsel:
MR HACKETT: So I submit, consistent with the authorities where someone deals with a wife’s contributions of cooking and cleaning in that way, such that because he would arrive home in a state of drunkenness, which varied from time to time, she was on – to use my words – walking on eggshells all of the time, such that she watched her Ps and Qs. It made the contribution she made more arduous in that respect. It’s admissible evidence, in my submission ...
(Transcript, 23 July 2012, p 38, lines 38-43)
Secondly, counsel for the husband responded as follows:
MS CAREW: … I concede that that evidence would be sufficient to perhaps form a finding of course of conduct, but in addition to that there are two other elements of the Kennon argument, if you like, as spelt out by the Full Court in Spagnardi.
…
So the two other elements are the effect that it had on the victim and, thirdly, there must be evidence which would enable the court then to quantify the effect of that violence upon the capacity of the victim to make his or her contributions …
(Transcript, 23 July 2012, p 39, lines 4-6 and lines 11-14)
Finally, there is his Honour’s ruling about whether the evidence reached the level where this kind of a claim could be pursued:
HIS HONOUR: It seems to me that the relevance of evidence might broadly be described as conduct evidence, needs to be seen against a starting point, evident in both the overall thrust of the legislation and in many years of decisions of the Full Court in respect of it; namely, that since the passing of the Family Law Act conduct evidence is, generally speaking, irrelevant. … The circumstances in which an exception to that general principle is made in what might be described as marital conduct, have relatively recently been examined in the decision of the Full Court in Kennon and in subsequent decisions, including those referred to in the written outline on behalf of the husband’s [sic]; namely, Spagnardi and Makeham. …
It is insufficient to establish that there has been conduct which might amount to a “course of violent conduct” as that expression was used by the Full Court in Kennon. It is argued, in my respectful view correctly, that additional “requirements” are necessary in order to exceptionally admit conduct evidence. They are referred to, or rather they are described, I should say, in the outline as saying that the course of violent conduct must be established as having had an effect on the victim and there must be evidence that would enable the court to quantify the effect of that violence upon the capacity of the victim to make his or her contributions.
I accept the submissions made on behalf of the husbands [sic] that the evidence under consideration does not meet those requirements and I strike it out as irrelevant.
(Transcript, 23 July 2012, p 39, lines 46-47 and p 40, lines 1-3, 5-9 and 13-23)
Thus, it can be seen that the argument that had been rejected by the trial judge was a course of violent conduct by the husband which allegedly had an impact upon the wife and caused her contributions to thereby be made more onerous.
It is argued by the husband that despite this, his Honour still took the husband’s conduct into account in assessing the respective contributions of the parties. In this regard we are referred to [116], [117] and [120] of his Honour’s reasons. Those paragraphs provide as follows:
116.I accept [the wife’s] evidence in respect of the extent to which [the husband’s] use of alcohol and, in particular, the time he spent at the pub, impacted upon the relationship of the parties. [The husband] effectively conceded that during cohabitation he attended the hotel on a regular basis but I reject the account he gives of the time which he spent at the hotel in favour of that deposed to by the wife. I reject specifically the contentions contained in the written submissions filed on behalf of [the husband] as to the lack of reliability of the publican who gave evidence for [the wife].
117.It is submitted in addition on his behalf that “socialising at the local pub is part and parcel of maintaining a profile in a small community.” I accept that this might be so as a general proposition but find that the frequency and length of [the husband’s] attendances are not explained by any such factor. I consider that [the wife’s] contribution as a homemaker and parent significantly exceeded that of [the husband] and, as a corollary, that his contribution in that respect was minimal at best.
…
120.I accept that the husband worked seven days a week, spread between his [professional] practice and the [P] Pty Ltd businesses. But, that consideration is subject to the finding earlier made in respect of the time spent at the pub. I consider that he made minimal contributions as a homemaker and parent. I consider that the wife’s role in that respect was exacerbated by the husband’s attendances at the pub and the frequency and length of those attendances. I find that the wife has undertaken the lion’s share of the care for [Q], including specifically those matters associated with his special needs arising from the condition from which he suffers.
Seen against the context of the “Kennon” claim, as his Honour described it, these findings did not relate to any violent behaviour by the husband which had an impact on the wife and consequently on her capacity to make contributions. His Honour was describing the behaviour of the husband and in particular the time he spent at the “pub” and the impact upon the relationship of the parties, insofar as the wife was largely left to care for the family and carry out the homemaker role without assistance from the husband.
In support of the argument that his Honour had inappropriately taken into account irrelevant matters, senior counsel for the husband emphasised the first sentence of [116], and in particular the words “use of alcohol”, and the fourth sentence of paragraph 120, and particularly the word “exacerbated”.
However, as submitted by counsel for the wife, it is open to find that what his Honour was in fact taking into account was the extent of the absences of the husband from the home which then imposed a greater burden on the wife in terms of her contributions. On this basis it did not matter what the husband was doing during those absences and his Honour was not in fact taking that into account. We would go slightly further than counsel and say that, in fact, what the husband was doing during those absences may have had some relevance in the sense that he was choosing to be at the pub rather than at home making a contribution. In our view it is clear that his Honour was considering just this issue and, accordingly, it could not be said that his Honour was taking into account an irrelevant consideration.
In that context as well, in referring to the husband’s “use of alcohol” his Honour was merely providing some background. Indeed, in that first sentence at [116], his Honour particularly focused on “the time” that the husband spent at the “pub”. That is also consistent with the issue that his Honour was addressing, and the conclusion that his Honour reaches at [117], namely, “that [the wife’s] contribution as a homemaker and parent significantly exceeded that of [the husband] and, as a corollary, that his contribution in that respect was minimal at best”. Finally, we do not consider the fourth sentence at [120] to be inconsistent with this interpretation.
Thus there is no merit in Ground 3.
Turning to the second area identified where the wife’s greater contributions as found by his Honour could be said to provide, when weighed with all of the other contributions, a basis for an overall finding of equality of contribution, is the provision of care for the now adult child Q. Unlike the issue just addressed, there is no specific ground of appeal suggesting for example that his Honour afforded too much weight to the wife’s contributions in this regard, but in Ground 5(d) it is said that his Honour failed to provide adequate reasons for his finding “that the wife’s contributions had been made more difficult as a result of needing to continue to provide for [Q’s] needs and what impact such a finding had on his Honour’s assessment of contributions”.
Despite there being no specific ground as referred to above, it was submitted during oral argument by senior counsel for the husband that the evidence did not demonstrate that there was a greater burden placed on the wife as a result of Q’s condition than would have been the case in any event.
We were taken by both counsel to the evidence that was before the trial judge in relation to this issue. That evidence detailed the medical and related appointments that the wife was required to take Q to, the exercises for Q that the wife had to oversee, and the various other commitments that she had to meet arising from different aspects of Q’s condition. On the basis of that evidence we do not accept the submission of senior counsel for the husband that what the wife was required to do was the equivalent of the things that a full-time mother would do at home with a child in any event. The evidence clearly demonstrates the substantial burden placed upon the wife in caring for Q and particularly in the context of the husband being at work for part of each day and at the “pub” for significant periods of time. Thus, we do not consider that his Honour has erred in his findings in this regard. It is convenient to recall again what his Honour said at [120] and also at [121] of the reasons:
120.… I consider that [the husband] made minimal contributions as a homemaker and parent. I consider that the wife’s role in that respect was exacerbated by the husband’s attendances at the pub and the frequency and length of those attendances. I find that the wife has undertaken the lion’s share of the care for [Q], including specifically those matters associated with his special needs arising from the condition from which he suffers.
121.I find that the wife’s post-separation contributions have been made more difficult as a result of needing to continue to provide for [Q’s] needs and that she has done so with very little physical assistance from the husband. …
As to the complaint in Ground 5(d) of lack of adequate reasons, we will address that shortly. In the meantime, we find that it was open to his Honour to accord substantial weight to the burden placed upon the wife firstly as a result of the significant absences of the husband from the home, and secondly, as a result of Q’s needs. Thus, given that the assessment of contributions is an holistic one, we are not persuaded that his Honour erred in finding that the contributions of the parties were equal. We do not consider that his Honour’s decision was outside the range and plainly wrong such that it was no proper exercise of his judicial discretion. That discretion is a broad one, and although another judge may not have been as generous to the wife as his Honour was, that is not the test. His Honour did not exercise his discretion by reference to erroneous facts, nor did he have regard to extraneous or irrelevant facts or circumstances, or fail to have regard to relevant facts or circumstances. No error of principle has been demonstrated. Nor has it been shown that, despite the absence of demonstrable error, the finding that the contributions are equal, is “unreasonable and manifestly unjust to the husband”. In these circumstances there is no merit in Ground 1.
Lack of adequate reasons
It is said that there is a lack of adequate reasons in relation to the overall assessment of the contributions of the parties (Ground 2), and also specifically in relation to three matters: first, his Honour’s treatment of the husband’s “use of alcohol” and how that impacted on the overall assessment (Ground 4), secondly, the related issue of his Honour preferring the evidence of the wife over the husband as to the time the husband spent in the “pub” (Ground 5(e)), and thirdly, in finding that the wife’s contributions had been made more difficult as a result of needing to continue to provide for Q’s needs (Ground 5(d)).
The principles applicable to a challenge to the adequacy of reasons for a discretionary judgment are well established and are often repeated by this court (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24;
Sun Alliance Insurance Ltd v Massoud(1989) VR 8, and Bennett & Bennett (1991) FLC 92-191). They need not be restated here at any length. The basic proposition is that the pathway to the conclusion reached by the trial judge must be able to be discerned from the reasons for judgment.
Addressing the third specific challenge referred to above, we refer to [121] of his Honour’s reasons set out above.
As we have indicated, the evidence on which this finding is based was outlined in some detail in the wife’s affidavit material and we do not understand that much, if any, of that evidence was challenged. The only comment that the husband’s senior counsel made in the written summary of argument was that “some of [the evidence] is prospective.” Further, as explained above, the argument of the husband’s senior counsel was that this evidence did not demonstrate any greater impact upon the wife and her contributions than would have been the case in any event.
As we have found, we consider that the evidence clearly supports the finding of his Honour at [121] of his reasons for judgment, but of course the issue now raised is whether his Honour’s reasons in reaching that finding are adequate. We consider that they are. Indeed, given that the wife’s evidence as to what she was required to do for Q was largely unchallenged, it was unnecessary for his Honour to do more than he did in his reasons for judgment. Mahoney JA put it thus in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at [385]:
… It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing …
And further at [385]-[386]:
… the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. … In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.
And again at [386]:
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear …
(Authorities omitted)
In a similar vein there are Coleman J’s observations in Wen & Thom [2010] FamCAFC 81 at [57]:
As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
To repeat, his Honour has done all that was required of him in the circumstances, and Ground 5(d) must fail.
As to the alleged lack of adequate reasons for preferring the evidence of the wife (Ground 5(e)), we have set out above [116] of his Honour’s reasons where this preference is referred to.
It is always a difficult task indeed to challenge on appeal a credit finding by a primary judge given that primary judges enjoy advantages that we lack. As was said by Lord Sumner in S S Hontestroom v S S Sagaporack [1927] AC 37 (at 47):
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Further, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq)and Others (1999) 160 ALR 588, Kirby J explained “the trial judge’s real advantages” and said this at [90]:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
(Footnotes omitted)
Here, despite the fact that most of the wife’s evidence in relation to the topics of the husband’s use of alcohol and his conduct was struck out, the combination of the wife’s evidence that was admitted, the concessions made by the husband in his evidence, and the evidence of the publican clearly allowed the trial judge to make the finding that he did.
It is suggested that the evidence of the publican was “inconsistent” with the evidence of the wife, and of the husband, and that his Honour should have accepted the written submissions of the husband “as to the lack of reliability of the publican” (Ground 5(f)). Having been taken to the relevant parts of the transcript, and having perused the affidavit of the publican, we are not persuaded that the publican’s evidence was so inconsistent with the wife’s that it was not reliable. Importantly though, it was inconsistent with the husband’s evidence in many respects, and of course having seen and heard the husband give evidence his Honour rejected that evidence. It is also relevant to note that all the written submission of the husband (filed on 4 December 2012) suggested was that “the publican would be hard pressed to reliably contradict the husband given her other duties and she certainly got one thing wrong by suggesting that he would frequently use the TAB when he did not gamble.” His Honour was not swayed by this submission. We consider that it was open to the trial judge to accept the evidence of the wife, and to reject the submission as to the publican’s evidence.
We also reject the submission that given an exchange that occurred between bench and bar as to the need for the publican to be cross-examined, it was not open to his Honour to make the finding of credit that he did. In response to a question by the husband’s counsel whether his Honour would be assisted by cross-examination of the publican “on an issue of credit”, and the intimation of the wife’s counsel that he “would make no submissions of an adverse inference" if the publican was not cross-examined, his Honour ultimately said, “Yes, it doesn’t strike me as a big ticket issue, if that’s of assistance to anybody” (transcript 24.7.12, page 182, lines 7, 30-31, and 33-34). The husband’s counsel then did not require the publican for cross-examination.
In our view, what his Honour said and the context of the discussion does not prevent his Honour from making a finding as to the publican’s evidence.
The complaint of course is about lack of reasons, but as is apparent from the authorities, it is not every issue in dispute that a trial judge needs to address in detail in the reasons, and clearly this falls into that category. Thus we find no merit in this challenge.
Next, there is the treatment of the husband’s “use of alcohol” and how that impacted on the overall assessment. We consider that we have adequately addressed this complaint in what we have said above in relation to this issue. In short then we find no merit in this ground of appeal (Ground 4).
Finally, we turn to the challenge in relation to his Honour’s overall assessment of the respective contributions of the parties.
We emphasise again the difficult task confronting a trial judge in making the “leap from words to figures”, and we point out what was said by Finn J in Farmer and Bramley (2000) FLC 93-060 at [49]:
… Given that awards under s 79 are virtually never calculated with mathematical precision, no amount of enumeration of, or indeed of evaluation of, contributions, or of the s 75(2) matters, or indeed of any of the matters listed in s 79(4), can ever explain exactly why a particular figure, or more usually a percentage, is eventually arrived at (other than that it is within the recognised “range”). Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s 79.
Here, as we have set out earlier in these reasons, his Honour identified the respective contributions of the parties, highlighting the husband’s contribution in the form of his shares in the family company, the use made of the Suburb W property owned by the wife at the commencement of the relationship, and the wife’s contributions as a homemaker and parent.
His Honour found that the wife’s contribution as a homemaker and parent significantly exceeded that of (the husband), and that “the contribution by [the husband] represented by inheritances and the shareholdings they produced … is very substantial and greater than that of the direct and indirect financial contributions of [the wife]” (at [123]).
Then, having identified the contributions, in weighing the same his Honour found that the contributions should be assessed as being equal.
How then is it suggested that his Honour’s reasons in reaching this conclusion are inadequate, and even more to the point, what more could his Honour have constructively added to his reasons for judgment to render them adequate? Senior counsel for the husband suggested that the appropriate assessment of the parties’ respective contributions was a 65 per cent/35 per cent division in favour of the husband. In explaining why that should have been the result all senior counsel indicated was that greater weight should have been given to the direct financial contributions of the husband, and less weight given to the homemaker and parent contributions of the wife. However, that still begs the question, namely, what more could his Honour have said to provide greater transparency in the pathway to his decision. His Honour took account of the husband’s direct financial contributions, and his Honour took account of the wife’s parent and homemaker contributions, and in relation to the latter his Honour accorded great weight to those contributions and specifically identified the burden cast upon the wife by the significant absences of the husband from the home and the fact that she was solely responsible for meeting Q’s needs.
We are satisfied then that his Honour’s reasons are adequate in explaining why he concluded that the respective contributions of the parties should be treated as being equal. Thus, this ground (Ground 2) must fail as well.
That addresses the three bases promoted by the husband’s senior counsel in her oral submissions for challenging the orders made by his Honour, and also deals with all but the last of our reframed challenges, and we now turn to that topic.
The weight challenge
This challenge finds its expression in Ground 5(a).
To succeed in such a challenge it must be established that in according too much weight to a particular fact or circumstance that renders the decision plainly wrong, that decision being no proper exercise of the judicial discretion (see Gronow).
Here, his Honour found that:
123.… [The wife’s] direct financial contributions and the use to which they were put (an initial home for the family and, later, a deposit on real property owned by the wife and forming part of the property to be divided) are also significant. …
We are comfortably satisfied that this finding was well open to his Honour on the evidence, and thus this does not render his Honour’s decision “plainly wrong”.
This ground has no merit.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions from both counsel as to the question of costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, counsel for the wife sought an order that the husband pay the costs of and incidental to the appeal. As conceded by senior counsel for the husband, there was nothing that could be said in opposition to that application in the circumstances of this case. Accordingly, we propose making the order sought by the wife.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Strickland JJ) delivered on 6 November 2014.
Associate:
Date: 6 November 2014
8
4