Dickons & Dickons - [2012] FamCAFC 154

FAMILY COURT OF AUSTRALIA

DICKONS & DICKONS

[2012] FamCAFC 154

FAMILY LAW – APPEAL – PROPERTY – Contributions – where appellant contends Federal Magistrate erred in assessment of contributions –where the appellant received a number of inheritances of various types throughout the marriage – where the appellant contends that the Federal Magistrate failed to have adequate regard to those inheritances – where the Federal Magistrate’s reasons reveal confusion on her part of the source, timing and amount of various inheritances received by the appellant – where the Federal Magistrate’s reasons suggest the need for a causal relationship between moneys contributed by a party and specific assets or available property in order to be considered contributions for the purposes of s 79 – where there is no such need for a causal link between contributions and any particular asset or property – whether the Federal Magistrate erred in her assessment of the contributions – where the Federal Magistrate erred in fact by attributing specific inheritance received by the appellant to the wrong relative – where that error was not alleged by appellant – where the error alleged by the appellant is, in essence, that the trial judge attached insufficient weight to the contributions made by the appellant – the Federal Magistrate’s assessment does not fall outside of the generous ambit within which disagreement is possible.

FAMILY LAW – APPEAL – PROPERTY – where appellant also asserts an error on the part of the Federal Magistrate in the adjustment made pursuant to s 75(2), Family Law Act 1975 (Cth) – where the appellant alleges several specific errors of fact on the part of the Federal Magistrate – whether the Federal Magistrate erred – where each of the impugned findings was open to the Federal Magistrate – the Federal Magistrate did not err.

FAMILY LAW – APPEAL – PROPERTY – where a further ground of appeal alleges that the Federal Magistrate erred in making an order for spousal maintenance in favour of the respondent – where the appellant concedes the respondent demonstrates a need for maintenance and no challenge mounted to the Federal Magistrate’s finding that the appellant had the capacity to pay maintenance – where the basis of the alleged error is that the Federal Magistrate attached insufficient weight to the relevant s 75(2) factors – whether the Federal Magistrate erred – the Federal Magistrate did not err – where the appellant further contends that the Federal Magistrate gave insufficient reasons for ordering payment of spousal maintenance for two years – whether the Federal Magistrate gave insufficient reasons – where the Federal Magistrate’s reasons were sufficient.

Family Law Act 1975 (Cth)
Family Law Amendment Act 1983 (Cth)

Explanatory Memorandum, Family Law Amendment Bill 1983 (Cth)

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Jackson & Balen [2009] FamCAFC 131
In the Marriage of Best (1993) FLC 92-418
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
In the Marriage of Aleksovski (1996) FLC 92-705
In the Marriage of Pierce (1998) FLC 92-844
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Townsend (1995) FLC 92-569
Mallett v Mallett (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Mr Dickons

RESPONDENT:

Mrs Dickons

FILE NUMBER:

BRC

4274

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

19 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Faulks DCJ, Murphy J

HEARING DATE:

17 April 2012; Supplementary Written Submissions 26 April 2012 and 6 June 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 February 2012

LOWER COURT MNC:

[2011] FMCAam 113

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Jordan

SOLICITOR FOR THE APPELLANT:

Jones McCarthy Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Priestley

SOLICITOR FOR THE RESPONDENT:

Direct Brief

Orders

The appeal is dismissed.
The Appellant pay the Respondent’s costs of the appeal as agreed in writing or, failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickons & Dickons 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 16 of 2011
File Number: BRC 4274 of 2010

Mr Dickons

Appellant

And

Mrs Dickons

Respondent

REASONS FOR JUDGMENT

Orders made 23 February 2011by Demack FM effected a settlement of property pursuant to s 79 of the Family Law Act 1975 (“the Act”) between parties who had cohabited for about 14 years before separating in about May or June 2009. The parties had married in September 1996 and have one child born March 1998.
The husband appeals against orders made by the Federal Magistrate which, in broad terms, effected a distribution of the net property of the parties or either of them, amounting to slightly more than $1 million, in the proportions 60 per cent to the wife and 40 per cent to the husband. The effect of those orders is to leave the wife residing in the former matrimonial home subject to a small mortgage of about $18,000 and her retaining, in addition, some chattels. The husband retains a property acquired post-separation in which he resides with his current partner. The property has negligible equity. The wife also retains a property in Germany valued at about $169,000 which is subject to a life interest in favour of her mother.
The husband contends that the learned Federal Magistrate erred in her assessment of contributions; her assessment pursuant to s 79(4)(e) (“the s 75(2) factors”), and in ordering $650 per week by way of spousal maintenance for a period of two years, payable by way of a lump sum of $55,000 (after allowing for a discount referred to by the Federal Magistrate in her reasons at [136]).
Subsequent to the hearing of this appeal, the wife applied for an order that leave be granted to permit her to rely upon supplementary submissions. We permitted her to do so subject to affording the respondent an opportunity to respond. Written submissions were filed by the wife on 26 April 2012 and by the husband in response on 6 June 2012. We will deal with each of those submissions as they pertain to the grounds about to be considered.

The Grounds of Appeal

The husband’s Notice of Appeal contains 11 grounds, but written submissions filed on his behalf abandon ground 10. The grounds pressed are as follows:
1.The learned Federal Magistrate erred in law and in fact in the assessment of the parties’ respective initial contributions to the marriage by assessing the initial contribution of the wife in comparison to the husband to be sufficient to justify a 10% adjustment in favour of the wife.
2.The learned Federal Magistrate erred in law and in fact in the assessment of the husband’s contributions wherein the Federal Magistrate only made an adjustment of 20% in favour of the husband for contributions other than the initial contributions of the parties.
3.The learned Federal Magistrate erred in law and in fact in failing to take into account sufficiently the inheritances received by the husband throughout the marriage.
4.The learned Federal Magistrate erred in law and in fact in failing to have any or any sufficient regard to:-
4.1The inheritance received from the husband’s grandfather … being:-
4.1.1. Cash of $92,400;
4.1.2. A collection of approximately six gold coins;
4.1.3.An interest in a property at Portugal for which the husband subsequently received A$25,000.
4.2The sum of $174,000 received in 2005 by way of a gift from the husband’s mother …
5.The learned Federal Magistrate erred in law in assessing the relevant “s75(2) Factors” as justifying a 20% adjustment in favour of the wife which represented a 40% disparity between the parties and which represented an adjustment in favour of the wife over the husband of $432,382.
6.The learned Federal Magistrate erred in law and in fact in having regard to the husband’s turnover of some $250,000 rather than regard to his taxable income which she found was in the order of $110,000 or $120,000.
7.The learned Federal Magistrate erred in law and in fact in finding the fact that the husband was not working to his economic or financial potential, particularly:-
7.1. Having regard to his need to care for the child [M].
7.2.Having regard to the finding made by the learned Federal Magistrate in respect of the wife, that it was reasonable that her work availability be subject to the need to care for [M].
8.That the learned Federal Magistrate failed to have regard to the real impact in monetary terms of the adjustments made in favour of the wife at both the initial contributions stage and the s75(2) stage.
9.The learned Federal Magistrate erred in law, having already provided for a disparity in the wife’s favour of 40% for s75(2) factors, in finding that it was then appropriate to further order spousal maintenance for a period of two years.
…
11.The learned Federal Magistrate’s discretion, miscarried in that property settlement award made to the wife was manifestly excessive, inequitable and plainly wrong.
In written submissions filed on behalf of the respondent wife, her counsel groups those grounds into four. The first refers to ground 1, which attacks the assessment of the “initial contribution” made by the wife. The second group consists of grounds 2, 3 and 4 and relates to direct financial contributions made by the husband by way of inheritances received by him. It is to this issue that the additional submissions made on behalf of the parties relate. The third group consists of grounds 5, 6, 7 and 8 and refers to the asserted error in respect of the assessment of the “s 75(2) factors”. Finally, ground 9 attacks the assessment of spousal maintenance.
Separately, ground 11 alleges error by reason of the orders falling outside of the reasonable ambit of discretion and accordingly, it is contended, the result is “…manifestly excessive, inequitable and plainly wrong.”
We consider it convenient to deal with the grounds in the manner contended by the respondent, but subject to some preliminary comments by reference to the Federal Magistrate’s reasons.

The Nature of Contributions and Their Assessment

The Federal Magistrate approached the assessment of contributions by individually assessing components of the parties’ contributions. The significant initial contribution by the wife was said to result in an adjustment of “…10 per cent to the wife with respect to those issues…” (reasons at [97]). So, too, her Honour found that “…but for [various inheritances (to which attention will shortly turn)], the contributions during and post-marriage for financial and non-financial contributions, direct and indirect contributions would have been equal…” (reasons at [107]). However, her Honour considered that “…taking into account the indirect financial contributions by the husband, there should be an adjustment there to the husband in the order of 20 per cent” (reasons at [107]).
That process resulted in an ultimate finding as follows:
108. So, looking then at contributions, I have found that the wife should have a 10 per cent adjustment in her favour with respect to her initial contribution, taking into account the house with the life tenancy in [Germany], and a 20 per cent adjustment to the husband with respect to the other matters just discussed.
109.That leaves at the conclusion of the contributions, taking into account that I had considered them otherwise to be equal, an adjustment to the husband of 60 per cent of the pool.
Earlier in the reasons, her Honour had held:
102.The other contribution by the husband of note is his contribution of the inheritance moneys close to the end of the relationship from his mother’s estate. As is now demonstrated though, very little of that money was used in a manner which has acquired, maintained or conserved any asset. It has mainly been used in expenditure which has not achieved the acquisition, conservation or maintenance of any asset. It has provided a source of funds for both parties, more so the husband than the wife, but for both parties, and has also allowed for the funds available at distribution to include the moneys which I have said are still in trust which should be available for distribution of $116,000, plus, of course, the gold bullion of $68,000 and, indeed, I expect the gold coins of $6,430.
103.So the husband, apart from his contributions directly, has made these indirect financial contributions and, but for those indirect financial contributions, the parties’ mortgage on their one piece of real property in Australia would have been more substantial, and, but for those indirect financial contributions, the parties would not have had available to them the cash which is still in the solicitor’s trust account and the gold bullion.
The passages quoted, together with other passages within her Honour’s reasons, might be seen as suggesting a necessary causal relationship between contributions and what they are asserted to have produced in terms of the available property of the parties. A similar approach is evident in the written submissions on behalf of the respondent wife where it is said (at [10]):
… The error in the approach of the Appellant, with respect, is to equate inheritance monies received to contributions. The correct approach is to determine what assets of the parties were contributed to by the inheritance moneys and to what extent …
The corollary would appear to be that, if moneys were contributed to the relationship, but could not be tied to specific assets, or to the available property in its totality, they ought not be considered as contributions within the meaning of s 79.
As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “…directly or indirectly…” “…to the acquisition, conservation or improvement of any of the property …” and goes on to also refer to the financial contribution made “…otherwise in relation to any of that last-mentioned property…” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “…acquisition, conservation or improvement of any of the property…” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
… revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings …
Within that context, then, it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “…acquisition, conservation or improvement…” of property “…directly or indirectly…” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. Moreover, a particular financial contribution might have been used wholly in discretionary expenditure which, but for that contribution, would not have been available to the parties or would have required borrowings or a diminution of capital. Such a contribution can also, in that way, be seen, for example, as an indirect contribution to the conservation of property. Indeed, the principles discussed for example in In the Marriage of Kowaliw (1981) FLC 91-092 and In the Marriage of Townsend (1995) FLC 92-569, can be seen as an exception to that general proposition.
Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “…not in any merely token way…”; see, Mallett v Mallett (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “…where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property…” or is it, for example, a union where parties lived very separate domestic and financial lives?

The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.

Percentage Attributions to Specific Contributions

We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The difficulties which arise when percentages are attributed to components of the process can be seen exemplified in the submission by the appellant in respect of ground 1 in this appeal. The appellant’s written outline contends that the “…assessment of the initial contributions in favour of the wife … was excessive when compared to the subsequent contributions made by the husband.” It can also be seen exemplified in the way in which, for example, ground 2 is expressed.

the Assessment of Contributions – Grounds 1 to 4

The Arguments

We consider it both appropriate and convenient to deal with grounds 1 to 4 together; they all challenge, albeit in differing ways, the assessment of contributions arrived at by her Honour.
Under what is headed the “Premise of the Appeal” in the appellant’s written outline of argument, it is contended, relevantly, that her Honour “…seemed to ignore certain significant financial contributions on the part of the husband and, further, confused herself in respect of those contributions.”
The written outline goes on to contend that an error of fact is made by her Honour in referring (at [100]) to an inheritance from an “uncle”. Further, it is contended that the reasons do not reveal findings as to (or an appreciation of) the total amount received by the husband from his family – said to amount to about $830,000 (see appellant’s written outline at [14] – [16]). It is contended that her Honour “…mentioned only the inheritance from the [husband’s] uncle…, but failed to mention…” other inheritances received from the husband’s grandfather (of $113,000 plus six gold coins) and cash of $174,700 from the husband’s mother.
We have not been taken to any evidence or findings which suggest that the husband’s sworn evidence as to what amounts were received by him from his various family members were the subject of any challenge at the trial. The oral submissions made by trial counsel for the wife appear to concede, effectively, that these amounts were received by the husband (see, for example, transcript of proceedings of 24 January 2011, pp 187 – 189).
It should be pointed out that her Honour made no specific findings as to the amounts received by the husband, when they were received or their source. Further, her Honour made no finding as to the total of those amounts by reference to those components. Her Honour’s finding in that respect is confined to a reference (at [104]) to “…when all those figures are added up, the husband has contributed something like $700,000 to a pool of $1.08 million.” With the greatest respect to her Honour, it is by no means clear to us from where the figure of “…something like $700,000…” derives.
Having said that, we consider that her Honour’s task would, with respect, have been made much easier had cogent submissions been made detailing the amounts received by the husband from his family, when they were made, their source and the total. A number of figures were bandied about at the trial and, as will shortly be referred to, on this appeal. The manner in which submissions were made to the Federal Magistrate presents a confused and confusing picture (see, for example, transcript of proceedings of 24 January 2011, pp 187 – 189). While submissions as to these financial contributions formed a central place in the case, there was not, for example, a simple document providing the date, amount, and source of each of those amounts. Her Honour would have been considerably assisted by being provided with the evidentiary foundations for each such sum and a total.
The supplementary submissions on behalf of the appellant refer to a total figure of $850,073 (at [4]). Those supplementary submissions go on to contend (at [12]) that the total financial contributions were $890,000, referenced, in turn, to paragraphs [14] to [16] of the appellant’s initial written outline. Reference to those submissions sees specific reference being made to four amounts (at [14]) and an asserted total of $821,877 (at [15]) and reference to receipt of further property with attributed values of: shares ($25,000); a one-third interest in a wind farm ($5,100); a one-third interest in a property in B (approximately $35,000); as well as six gold coins from the appellant’s grandfather and 23 gold coins from the appellant’s mother’s estate, to which no value is attributed (at [16]). Despite the reference in those submissions to $35,000 as the value of a one-third interest in a property at [B], reference to the reasons reveals a specific finding (unchallenged on this appeal) that the net proceeds of the [B] property were $28,100 (see, reasons for judgment at [52] – [54]).
The figures contained in the appellant’s initial written outline are attributed to the husband’s affidavit of evidence in chief (affidavit of appellant filed on 16 December 2010 at [30] – [35]). We have been taken to no findings, evidence, or arguments which impugn that evidence. That evidence reveals the following amounts received by the husband from members of his family:
·   $63,991 from the estate of his uncle, who died in 1996 – received, it seems, in 2000;
·   $88,000 from his maternal grandfather, who died in 2002 – received, it seems in 2004, together with six gold coins;
·   $25,000 proceeds from shares in a company sold in 2004;
·   $174,700 in cash from his mother in 2005;
·   $186,886 cash from the estate of his mother in 2008;
·   $123,000 proceeds from the sale of a one-third share in real estate from his mother’s estate in 2008;
·   $62,000 proceeds from the sale of a one-third share in other real estate from his mother’s estate in 2009;
·   $5,100 being the value of a one-third share in a wind farm from his mother’s estate;
·   $123,100 being a one-third share in shares and securities from his mother’s estate;
·   A one-third share in other real estate in Germany from his mother’s estate which at the time of the swearing of the affidavit was under contract and expected to realise $32,000. (The property had been sold by the time of trial and as earlier referred to, her Honour found the net proceeds to be $28,100; see, reasons for judgment at [52] – [54]);
·   Gold bullion and gold coins. (No value of same appears in those parts of the husband’s affidavit, but her Honour found – and it is not challenged – that they had values of $68,000 and $6,430 respectively (see, reasons for judgment at [93](h)(i) and (ii))
The total of the amounts there contained (including the specific finding that the one-third share in the B property was worth $28,100), and the findings as to the value of the gold items is $954,307.
The findings made by her Honour in respect of the property received by the husband from members of his family and the values of the property received can be found in various parts of her Honour’s reasons (see at [29] – [30],

[75] – [76], [100] – [105] and [107]). But, as we have said, no clear picture emerges from the reasons indicative of her Honour being aware of the precise total of the amounts received and the timing and context of each of its components.
The respondent wife argued at the trial that $228,000 should be added back to the pool (see, transcript of proceedings of 24 January 2011, p 189, lines 14 – 16). It seems that this figure was comprised of a number of items of expenditure (including, for example, the husband’s partner’s university fees and the husband’s legal fees). But, equally clearly, it seems to have been predominantly comprised of amounts said to constitute profligate spending by the husband. A specific finding contrary to that assertion was made by her Honour (reasons for judgment at [86]). There is no challenge to that finding on this appeal. Her Honour did, however, add back to the pool some components of that sum (reasons for judgment at [93](d)).
The amounts received by the husband should be seen as contributions by him. We reject, for the reasons earlier outlined, so much of the respondent’s argument that contends that the appellant needed to establish at trial “that it was appropriate to consider those inheritances as contributions” if they could not be “tied” to property available for distribution. To the extent that her Honour suggests similarly (for example, reasons for judgment at [30], [76], and [102]), we consider that her Honour was in error. As no ground of appeal relates to any such error we need not consider it further.
We are also somewhat troubled by the statement of her Honour (at [104]) that:
It should not be considered by the court that the indirect financial contributions by the husband are $495,000 in its entirety or the funds by the uncle in their entirety or indeed the funds from the [B] property in their entirety such that, when all those figures are added up, the husband has contributed something like $700,000 to a pool of $1.08 million. This is not a mathematical exercise.
What her Honour was seeking to point out – correctly, with respect – is that while $700,000 (or some other figure) has been contributed and the pool is now about $1 million, that does not lead to a conclusion that the husband should receive 70 per cent of the pool or that any assessment of contributions should be in that sum. It is in that sense that the authorities clearly establish, and her Honour, with respect, correctly asserted, that the assessment is not a mathematical exercise. But, with the greatest respect to her Honour, we consider that the above statement confuses two aspects. Contrary to what is there asserted, there is no doubt that the husband had in fact, within the meaning of s 79, contributed in their entirety the amounts found (or which ought to have been found).
Leaving aside the respondent’s argument earlier referred to “tying” contributions to result, the respondent otherwise contends that if there are factual errors about the amount or source of the inheritances or other sums received by the husband, they have no impact on the result arrived at by her Honour because, “sensibly read, the judgment refers collectively to all of the inheritances …” (written argument for the respondent at [25]). In essence the submission mirrors the principle found in De Winter v De Winter (1979) FLC 90-605.
We accept the submission that the reference by her Honour to “…inheritances from an uncle…” (reasons at [100]) is an error. Her Honour erred in finding that the father “… had received inheritances from an uncle and those moneys came at a time when they were about to buy the house which is now the former matrimonial home …” (reasons at [100]). No inheritance was received from an uncle at that time.
Counsel for the respondent contends that if the word “grandfather” is substituted for the word “uncle” then her Honour’s reasons retain their integrity. We would find that argument more persuasive if we were not also persuaded that a reading of her Honour’s reasons as a whole does indeed exhibit some confusion on her Honour’s part about what inheritances were received, when they were received, and the total amount of them. In our view it is not clear whether her Honour paid any, or any sufficient, regard to the specific inheritances referred to in ground 4, or as is more generally asserted in ground 3.
In light of the submissions that such errors as her Honour made do not impinge upon the overall result arrived at by her Honour, we will deal with the impact of these conclusions when dealing with ground 11 and in light of our consideration of the other grounds.

The Section 79(4)(e) Adjustment – Grounds 5-8

The appellant’s submission in respect of these grounds which, in differing ways, deal with her Honour’s assessment of the so-called “s 75(2) factors” comes against a background where the appellant’s counsel at trial conceded that a 15 per cent adjustment in favour of the wife was appropriate.
Thus, whilst it is contended on behalf of the appellant that her Honour’s determination of a 20 per cent adjustment (referred to in ground 5 as representing “…a 40% disparity between the parties…”) amounted to error, a 30 per cent disparity (or an adjustment of 15 per cent) was conceded as appropriate at the trial. In that context, the respondent argues that what is challenged, is a 5 per cent difference in the context of the exercise of a broad discretion and the challenge to it falls foul of the principle clearly enunciated by the High Court in Gronow v Gronow (1979) 144 CLR 513 at 519-520 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.
We accept the argument on behalf of the respondent that the appellant’s submission that “…there are only two primary s 75(2) factors identified by her Honour…” does not do justice to her Honour’s reasons and, specifically, paragraphs [110] – [117] thereof. In our opinion, her Honour considered appropriately all of the matters pursuant to s 75(2) of the Act relevant to the facts of this case.
The appellant argues that the Federal Magistrate “…erred in law and in fact by having reference to the husband’s turnover … rather than regard to his taxable income…” The finding made by her Honour needs to be seen in the context of other findings which are not the subject of challenge on this appeal. For example, her Honour found (at [111]) that as a result of the moratorium on the husband’s right to practice in this country as a doctor coming to an end “…he hopes, in 2013 and potentially there may be some earlier release …[t]he husband’s economic potential is in every way vastly superior to the wife’s.”
That finding was clearly open to her Honour, is not the subject of challenge and was, with respect, properly, a very important determination in her Honour’s assessment pursuant to s 79(4)(e) (see, for example, In the Marriage of Best (1993) FLC 92-418).
Whilst her Honour refers to “turnover” at [113] of the reasons, her Honour had earlier considered the Husband’s employment and income position (see, generally, at [69] – [72]). Her Honour there refers to the husband’s taxable income and also refers to the husband’s own evidence that his weekly income “…is something in the order of $3,000 and his weekly expenditure is something in the order of $6,000.” It is submitted by the appellant in respect of this aspect:
37.Having seemingly had regard to the figure of turnover, at $250,000, rather than taxable income of $110,000 or $120,000, the Federal Magistrate must have misled herself during her assessment of the s75(2) factors.
We are by no means sure why this should necessarily follow. Moreover, her Honour was, as it seems to us is plain from the reasons, plainly aware of the difference between the husband’s taxable income and his turnover. In referring generally to the husband’s level of expenditure, when compared to his income, her Honour referred specifically to the evidence – which does not seem to us to have been the subject of any serious challenge at the trial – that the husband’s expenses (the deduction of which produced his taxable income) included nearly $7,000 in depreciation $5,000 in motor vehicle expenses and $15,000 paid to his partner “for attending to his taxation matters”.
We also accept the submission made on behalf of the respondent that her Honour’s finding is further supported by the appellant’s evidence with respect to his financial statement being “unsatisfactory”. Cross-examination revealed that the expenses claimed within that statement were excessive and, in some cases, non-existent (see, for example, transcript of proceedings, 24 January 2011, p 65, lines 14 – 15; p 66, lines 3 – 20; p 66, lines 1 – 26).
Specific findings made by her Honour are the subject of challenge in ground 7. The appellant contends in the written outline filed on his behalf that he deposed to “…working three jobs…” and “[i]t is submitted that that clearly equates to fulltime employment.” On that basis, it is said that the learned Federal Magistrate erred in finding that the husband was not working to his economic or financial potential. However, as pointed out by the respondent, the evidence revealed that the husband was working 25 hours at the G surgery, five hours one night per week elsewhere and an unspecified number of hours, on one weekend a month in Melbourne. Moreover, the husband agreed that he was working at less than his full income earning potential (see, transcript of proceedings of 24 January 2011, p 54, lines 21 – 22).
We are not entirely clear what is meant by the assertion in ground 7 that the Federal Magistrate erred “…in law and in fact…” in finding as a fact that “…the husband was not working to his economic or financial potential, particularly … [h]aving regard to the finding made by the learned Federal Magistrate in respect of the wife, that it was reasonable that her work availability be subject to the need to care for [M].” The Federal Magistrate specifically found, and it is not challenged on this appeal, that the wife “…stopped work when she was pregnant…” and that “…she has not worked outside of the home in paid employment in any real sense until post-separation.” (See, reasons at [10]). Further, her Honour found that, post-separation, the wife “…has attempted to find some work.” (See, reasons at [13]). In that context her Honour specifically found that “… she is not anywhere close to being able to simply make a living … at this stage.” (See, reasons at [13]).

We are not persuaded that her Honour erred in the manner alleged in ground 7.
The challenge in ground 8 that her Honour “…failed to have regard to the real impact in monetary terms of the adjustments made in favour of the wife at both the initial contribution stage and the s75(2) stage” is supported by paragraphs in the written outline which, with great respect, we have some difficulty following. Again, we make he point that a 15 per cent adjustment, that is, a disparity of some $324,000, in respect of s 79(4)(e) was conceded. Error is asserted because her Honour’s adjustment effects a disparity of $432,000. No error of fact or principle is asserted or is otherwise evident. Her Honour’s assessment was within the bounds of a broad discretion.
We are not persuaded that error is established in respect of these grounds.

Conclusions with Respect to Property Settlement

We consider that her Honour erred in fact as asserted by the appellant in referring to an inheritance from the father’s uncle.
This error of fact is not, of itself, the subject of any ground of appeal. However, that error, in combination with the absence of findings with respect to the various sources of the funds received by the husband and when they were received, and the failure to find a correct total of those amounts, gives substance to the challenge that the Federal Magistrate failed to “…take into account sufficiently the inheritances received by the husband throughout the marriage” as ground 3 alleges. The absence of findings to which we have referred also gives some weight to the challenge mounted in ground 4.
We repeat, however, that her Honour was certainly cognizant of the fact that a very significant sum of money was received by the husband from his family, as the reference to $700,000 in a pool of $1.08 million (at [104] of the reasons) indicates.
In those circumstances, the respondent submits, even if it is not possible for us to discern how it is that her Honour arrived at the figure of $700,000 and notwithstanding the absence of specific findings about the total contributed or the specific components of it, any such errors identified are not such that would attract appellate intervention. It is argued that the true attack is not that any factual error fatally informed the ultimate assessment but, rather, that her Honour attached to a contribution found to be in a very significant sum (whether it be $700,000 or $821,000 or some other figure in that region) insufficient weight. Thus, it is argued, the attack mounted by these grounds faces the familiar difficulties which confront those who attack a discretionary judgment by reference to the weight given to particular evidence by trial judges.
Ultimately, we are persuaded that there is merit in this submission. A contribution of $169,000 provided the foundation for the parties’ marriage. Thereafter, significant sums were received from time to time over the course of the parties’ relationship. In that respect, a significant sum (close to $500,000) was received late in the relationship in the context of a finding that the relationship had been crumbling for some time prior to final separation. Another judge sitting at trial might have been persuaded that the assessment of contributions should weigh more heavily in favour of the husband than that which was arrived at by her Honour. But, ultimately, we are not satisfied that her Honour’s conclusion falls outside of the “…generous ambit within which disagreement is possible...”
In that respect, we remind ourselves of the dictates applicable to the appellate review of a broad discretion. Kirby J outlined “…a number of general propositions…” in CDJ v VAJ (No 1) (1998) 197 CLR 172 at [186] that are apposite to the present issue:
1.Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. … (footnotes omitted)
Similarly, Brennan J in Norbis v Norbis (1986) 161 CLR 513 held (at 540) said:
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
Even had we been persuaded that her Honour’s assessment was in error, it is necessary for a court to consider relevant matters contained within s 75(2) of the Act by reference to the mooted division of property resulting from the assessment of contributions arrived at (s 75(2)(b)). If we were persuaded that the assessment of contributions ought to have been more generous to the husband, we might well have been persuaded that the assessment pursuant to s 79(4)(e) in favour of the wife ought to have been greater than that which her Honour determined.
Finally, it must always be borne in mind that the path dictated by s 79 (which has been described in the authorities as comprising a three-step, or four-step, process) is but a means of arriving at that which s 79 dictates, namely an adjustment of property, if any, that is just and equitable in all of the circumstances of the case.
Here, the Federal Magistrate addressed that central issue at [120] – [125] of her reasons. We find no fault with her Honour’s reasoning in that respect and, despite the errors earlier indentified, we are ultimately persuaded that the overall result arrived at by her Honour is just and equitable within the meaning of s 79. Ground 11 is, therefore, not made out.
The appeal in respect of the application for settlement of property, the subject of challenge in grounds 1-8 and ground 11 should be dismissed.

The Spouse Maintenance Orders

The challenge to the orders for spousal maintenance embraced by ground 9 is supported by three paragraphs within the written outline on behalf of the appellant which should be quoted in full:
52.Her Honour made an order for spousal maintenance in circumstances where she had already made a 20% adjustment (representing a disparity of $432,000) for s75(2) factors.
53.This was in circumstances where her Honour accepted that “there should be an attention to moving matters forward more proactively than the wife has thus far managed[”]. (Citing [134] of the reasons)
54.Her Honour seemed to give no particular reasons why a period of two years should be allowed for spousal maintenance.
Paragraph 52 of the outline just referred to might be seen as advancing a contention that the making of an adjustment pursuant to s 79(4)(e), that embraces the factors relevant to a claim for spousal maintenance (s 75(2)), is a disentitling factor in respect of spousal maintenance. Plainly, that is not the case, albeit, of course, that the terms of the property order are relevant (because s 75(2)(n) specifically makes it so).
The husband conceded at the trial that the wife demonstrated a need for maintenance. No challenge is made to a finding by the Federal Magistrate that the husband had a capacity to pay spousal maintenance. The only basis upon which the Federal Magistrate’s decision is challenged is that, in effect, her Honour attached insufficient weight to the relevant factors enumerated at s 75(2) of the Act.
We are not persuaded that her Honour can be said to have erred in that respect.
We reject the submission at [54] of the written outline on behalf of the appellant quoted above, that insufficient reasons were given why a period of two years should be allowed. The matters contained in paragraph [134] of her Honour’s reasons provide, in our view, a sufficient basis for disposing of that argument.
In short, her Honour had regard to the fact that, whilst the wife claimed a period of five years for the payment of spousal maintenance, a period of three and a half years (that is to say the eighteen months that had passed between separation and trial and the two years ordered by her Honour) “…would in the usual circumstances be a timeframe which would allow an attention to retraining or attending to one’s own maintenance…” (see, reasons at [134]).
In our view, the challenge to the order for spousal maintenance should fail.

Conclusion

In our judgment, the appeal should be dismissed.

Costs

The appellant has been wholly unsuccessful. There is nothing about the financial circumstances of the parties that suggests a costs order should not be made.
We observe that appeals provide a particular application of s 117 of the Act. Where a judgment involves the exercise of a broad discretion, there “… is a strong presumption in favour of the correctness of the decision appealed from…” (Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627). In that sense, the correctness of a trial judgment is presumed (see, for example, Jackson & Balen [2009] FamCAFC 131 at [28]). Within that context, an appellant with legal advice and representation has the opportunity to consider carefully the prospective litigation. In that sense, the institution of an appeal might be distinguished from, for example, proceedings for property settlement when the need to bring an end to the parties’ financial relationship might be seen to provide an imperative for litigation if settlement is not possible.
The appellant should pay the respondent’s costs of the appeal in an amount as agreed in writing, or, failing agreement, as assessed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and Murphy J) delivered on 19 September 2012.

Associate:

Date: 19 September 2012