Elford & Elford
[2016] FamCAFC 45
•29 March 2016
FAMILY COURT OF AUSTRALIA
| ELFORD & ELFORD | [2016] FamCAFC 45 |
| FAMILY LAW – APPEAL – PROPERTY – contributions – lottery win – whether the trial judge erred in treating the lottery win during the course of the marriage as a special contribution by the husband – where the parties kept their assets and finances separate – where no error established – appeal dismissed. |
| Family Law Act 1975 (Cth) ss 75(2), 79(4) |
| Babett & Falconer (2015) FLC 98-067 Mallet v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Elford |
| RESPONDENT: | Mr Elford |
| FILE NUMBER: | LNC | 291 | of | 2013 |
| APPEAL NUMBER: | SOA | 88 | of | 2014 |
| DATE DELIVERED: | 29 March 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Murphy and Cronin JJ |
| HEARING DATE: | 12 October 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2531 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Trezise |
| SOLICITOR FOR THE APPELLANT: | Andrea Trezise |
| COUNSEL FOR THE RESPONDENT: | Mr McVeity |
| SOLICITOR FOR THE RESPONDENT: | Grant Tucker |
Orders
The appeal be dismissed.
Each party pay their own costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elford & Elford 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 MELBOURNE |
Appeal Number: SOA 88 of 2014
File Number: LNC 291 of 2013
| Ms Elford |
Appellant
And
| Mr Elford |
Respondent
REASONS FOR JUDGMENT
On 12 November 2014, in proceedings for settlement of property,
Judge Roberts ordered the husband to pay to the wife $51,000.
The uncontroversial evidence is that of assets of about $1.4 million, the $51,000 order meant that the wife was receiving just over 10 per cent. She had sought about 32 per cent.
The wife appeals against the order seeking that it be set aside and that this Court re-exercise its discretion rather than remitting the matter for rehearing. For the reasons that follow, the appeal must fail.
Background
The factual background of the parties was uncontroversial. The husband is about 22 years older than the wife, each had a previous relationship and, importantly for the purposes of the trial and this appeal, they largely led separate financial lives. They commenced co-habitation in 2003, married in 2007 and separated in late 2012. When cohabitation began in 2003, the wife had three dependent children aged three, six and nine years from her previous relationship. Those children lived with the parties.
Two specific facts were central to the determination of the trial judge. The first was that in early 2004, approximately 12 months after the parties commenced cohabitation, the husband won $622,842 in a lottery. The husband also had savings which “topped up” the lottery win to $650,000. That became and remained thereafter, a term deposit in his name. The term deposit was included in the property of the parties for division. It represented 20 per cent of the total value of their property and superannuation interests.
The second specific issue was that the husband suffered a stroke in 2011, approximately 12 months prior to separation. It left him blind and unable to drive or read. He currently requires kidney dialysis three times per week and paid carers assist him with household tasks on a daily basis.
Within the $1.4 million in property and superannuation interests being divided, each party had a home. The husband’s home was valued at $345,000 and unencumbered. The wife’s home bought just after separation, was valued at $269,000 but encumbered by a mortgage of $234,575. The wife also had superannuation of $67,189 which, using the approach adopted and promoted by both parties, was added to the “asset pool”. The wife also had credit card and personal loan liabilities of just over $21,000. The only other significant assets were the husband’s bank balances and investments including the lottery money. By the time of the trial, they totalled $960,000.
As the trial began and before any adjustment was made, the wife had just over 6 per cent of the assets.
Grounds of appeal
The amended notice of appeal filed on 5 June 2015 contains 13 complaints which can be condensed into four assertions of error as follows:
(a)The trial judge erred in principle on two bases in:
i.inappropriately applying the law concerning lottery wins and in this particular case, treating it as a special contribution by the husband; and
ii.failing to assess contributions holistically;
(b)The trial judge failed to give sufficient weight to:
i.the contributions of the wife in her role as a homemaker;
ii.the parenting of the wife’s three children and the care of the husband; and
iii.the manner in which the parties used “their funds”;
(c)The trial judge failed to give adequate reasons for his assessment of the contributions of the wife as homemaker, her parenting of the three children and her care of the husband and as to why no adjustment was made in her favour having regard to her future support for the three children; and
(d)The decision of the trial judge was plainly wrong and manifestly unjust.
The asserted errors of principle
The lottery issue
The trial judge (correctly) included the husband’s savings and investments in the parties’ divisible property. This first challenge concerns his Honour’s approach to treating the lottery win of $622,842 as a contribution by the husband. The wife argued the lottery money should be treated as a joint contribution by the parties.
The wife’s evidence to the trial judge, albeit more in the form of an argument, described the lottery win as a “major issue” for determination.
She acknowledged the husband had bought the ticket and that the proceeds of the win were deposited into his account. She prefaced all of that by saying that “we won the sum”. When cross-examined, the wife acknowledged that the husband had used the same ticket numbers since 1995, that he had purchased the ticket without her assistance and she had not contributed to it. When asked in cross-examination why she thought the win was a “joint contribution” she replied “because we were also in a relationship”. The wife also acknowledged in that same cross-examination that she had maintained separate bank accounts from the husband because “that was what he wanted”.
The nub of the wife’s argument at trial and repeated on appeal, can be seen in her counsel’s submission to the trial judge as follows:
… Your Honour, this marriage relationship was almost ten years duration. This was a marriage that they entered into as husband and wife. They did things jointly. This was a joint enterprise. This was something they both went into…
…
… It was a common relationship, there was a common togetherness, there was a common joint venture that they were in a marriage. It was a joint endeavour. That’s what their relationship was about. It was a common use of the property…
(Transcript of proceedings, 16 October 2014, pp 29-30)
It was submitted by the wife before us that the trial judge inappropriately applied the decisions of Zyk and Zyk (1995) FLC 92-644 and
Eufrosin & Eufrosin [2014] FamCAFC 191 by giving “undue weight to the financial aspects of the purchase” of the ticket and the financial relationship of the parties rather than the “joint endeavour”.In addition to noting that the lottery money had been retained separately along with a further $190,000 the husband received in 2007 through an inheritance from his mother’s estate, his Honour said:
31.The parties clearly kept their assets quite separate and it is also clear that, to a very large degree, they kept their finances quite separate. They maintained separate bank accounts and they did not ever have any joint bank accounts. Indeed, when the wife was cross-examined, she said: “that was always his request; what accounts he had were his” and “he never wanted to have a joint account”.
(Citation omitted)
His Honour accurately recorded and understood the wife’s central contention as to the lottery win:
42.In her affidavit the wife said: “[The husband] claims that this [lottery] win comprises his sole contribution. I claim it is a joint contribution made during the period of our relationship.” She was asked in cross-examination how it could be considered to be a “joint contribution”, and her answer was: “Because we were in a relationship”. When questioned further, she conceded that:
· she did not contribute financially towards the purchase of the ticket;
· she did not pick the winning numbers;
· the husband had been buying weekly tickets with those numbers since 1995;
· she and the husband had been in a relationship for less than a year when his ticket was a winner;
· the winning ticket had been in the husband’s sole name; and
· the funds had been paid into the husband’s bank account.
His Honour also found that the husband never intended the weekly purchase of
a lottery ticket to be a “joint matrimonial purpose” [47] and said “[i]n this case, the husband did not ‘hand all his money to the wife’, nor did she have ‘practical control of the family finances’” [50].
In Zyk and Zyk (above), the parties had been married for two years when the husband had a lottery win of about $95,000. He had been in a syndicate before the marriage and the wife had no involvement in the lottery ticket purchase but the winnings were used by the parties for joint purposes. The trial judge found that it was “part of the husband’s general practice” to hand all of his money to the wife who had “practical control of the family finances” and the lottery tickets were purchased by the husband from money that he had from time to time. The trial judge found that upon the husband handing the money to the wife, she applied it (as the Full Court described it) “so that it formed part of their joint property”.
The Full Court said (at 82,511) that it was preferable to approach the issue as one of “contribution” rather than as a “windfall” because the latter tended to isolate the asset into a special category outside of the traditional approach adopted in s 79 proceedings. The Full Court went on to say (at 82,515):
In our view, the critical question in such cases is – by whom is that contribution made? In the ordinary run of marriages a ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly…Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties…
(Emphasis added)
But the Court then said by way of caution:
There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion, but in the generality of cases with which this Court would normally deal this appears to us to be the correct approach and the correct outcome.
The Full Court in Eufrosin & Eufrosin (above) adopted a similar approach. There, the wife purchased a winning lottery ticket six months after separation. The winnings were $6,000,000, of which the wife gave her sister $1,000,000 and retained the remaining $5,000,000.
The facts of that case are also encapsulated in the following statement by the Full Court:
7.The husband contends that the wife used funds from a business that had been run primarily by him (and other of his family members) during the course of the marital relationship to purchase the lottery ticket. Even if that is accepted, the argument which proceeds from it ignores the reality of the parties’ post-separation lives. The parties had put in place a system whereby regular withdrawals of funds were made by each of them from what was formerly a joint asset, and those funds were applied by each of the parties individually to purposes wholly unconnected with the former marital relationship.
(Emphasis in original)
Picking up the point made in Zyk (above) and addressing a “community of property” concept to which we shall return, the Full Court said:
11.As this Court in Zyk made clear, the source of funds should not “determine the issue” of how a lottery win should be treated for s 79 purposes. What is relevant, in our view, is the nature of the parties’ relationship at the time the lottery ticket was purchased. In our view, the authorities just cited, together with what was said by the High Court in Stanford regarding the “common use” of property, is sufficient to dispose of the husband’s contention that her Honour erred in failing to find that he contributed to the wife’s lottery win. At the time the wife purchased the ticket, regardless of the source of the funds, the “joint endeavour” that had been the parties’ marriage had dissolved; there was no longer a “common use” of property. Rather, the parties were applying funds for their respective individual purposes.
(Emphasis in original; citations omitted)
In his reasons for judgment at [52], the trial judge quoted that passage from Eufrosin. His Honour then said:
53.In my view, it is not only “the nature of the parties’ relationship at the time the lottery ticket was purchased” that sets this case apart from so many of the decided “lottery winnings” cases; it is also the manner in which the husband and the wife conducted their financial affairs after those winnings were received by the husband in 2014. Those winnings were placed into an account in the husband’s sole name and that is where they remain to this day. The parties also kept all their other finances separate for the entirety of their relationship.
54.In view of those circumstances, I consider it appropriate to treat the husband’s lottery winnings of $622,842 in January 2004 as
a contribution by the husband alone.His Honour found that the purchase was initiated by the husband independently of the wife consistent with a lengthy practice of the husband’s alone that pre-dated the relationship by about eight years. Rather than share or utilise any of the proceeds with the wife, he continued to treat his property as his own. The wife conceded that was the husband’s intention even if she was unhappy about it. The husband’s contribution was therefore appropriately recognized by the trial judge consistent with the approach outlined by authority.
As we have alluded to, the underlying theme of the wife’s case seems to us to be that this was a partnership and therefore there was no necessity to examine discrete financial contributions because everything during the relationship had accrued to the parties as a partnership. That is, the property of the parties or either of them was to be seen as a form of “community” property.
That then can be seen exemplified in the final submissions made by counsel for the wife before the primary judge earlier quoted.
The trial judge dealt with the submissions to that effect by saying that such a concept does not form part of Australian family law [44]. His Honour was plainly correct in so finding. The High Court in
Stanford v Stanford(2012) 247 CLR 108 said:
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the [Family Law Act 1975 (Cth) (“the Act”)] must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law” [citing Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J; [1963] HCA 49]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses” [citing Hepworthv Hepworth (1963) 110 CLR 309 at 317 per Windeyer J. See also Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231-232 per Dixon CJ]. The question presented by s 79 is whether those rights and interests should be altered.
Earlier decisions of this Court have made the same point. For example, in
Dzieczko and Dzieczko(unreported, Family Court of Australia, Strauss, Lindenmayer and McCall JJ, 30 April 1992), this Court said emphatically “there is no doctrine of community of matrimonial property under Australian law”.
We can see no error of principle committed by the primary judge.
Consistent with the fundamental principle emphasised by the High Court in Stanford v Stanford (above), and the terms of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), the case below might have been argued on the basis of an asset by asset approach in which it was contended that the lottery win (or, more broadly, the cash in the term deposit of which it formed part) was property of the husband with respect to which it was not just and equitable to alter existing interests in that property. However no such case was argued or alluded to and we will say no more about it.
The Asserted Failure to Assess Contributions “Holistically”
The second error of principle said to have been made by his Honour is that the trial judge failed to assess the contributions “holistically”.
It is submitted that his Honour had “compartmentalised” the contributions focussing on the financial contributions contrary to what this Court said in Petruski and Balewa (2013) 49 Fam LR 116. In that case, it was said:
49.The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship (Dickons & Dickons [2012] FamCAFC 154). As was also said by the Full Court in Lovine & Connor and Anor [2012] FamCAFC 168, at [40] and [41] such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise”.
It is plain from the reasons of the trial judge that his Honour considered:
·the financial contribution of the husband through the lottery money and his inheritance;
·the financial contributions made by the husband through his earnings until his retirement;
·the wife’s financial contributions from her earnings; and
·the financial contributions provided by the wife through the sale of her home and the use to which those funds were put. No challenge is made to the accuracy of those findings.
His Honour then considered the non-financial contributions made by the wife. That is, his Honour assessed and dealt with the wife’s contributions as
a homemaker, a parent to her children and her care of the husband when he became ill. For example, his Honour found:
37.The Case Outline filed on behalf of the wife appeared to suggest that the wife made greater financial contributions than the husband towards the end of the relationship simply because her income may have been higher than his. That cannot be the case because the clear arrangement between the parties throughout the relationship was that the wife was essentially responsible only for paying for the food and household supplies for both parties and the wife’s three children. It should also be remembered that the husband had no legal obligation to support the wife’s children financially and it was clearly part of their agreement that the wife should meet the costs of her children’s education and other living expenses, while the husband “provided the roof over their heads” as conceded by the wife during her cross-examination. Consequently, any increase in the wife’s income in the later years should have made it easier for her to meet the costs of maintaining her children (for which the husband was not legally responsible).
…
40. The wife clearly made non-financial contributions to the relationship; she was primarily responsible for cooking, cleaning and gardening. Those are important contributions to family life and should be recognised as such. Her non-financial contributions must also have increased in significance when the husband became incapacitated by his health problems towards the end of their relationship. However, it is also important to note that prior to that incapacitation, the husband made non-financial contributions when he assisted the wife by caring for her children and collecting them from school at times when she was working.
(Citations omitted)
It will be noted that his Honour recognised that the contributions made by the wife in that respect were “important”. It can also be seen that his Honour balanced those various non-financial contributions of the wife with the important consideration that the husband had made direct and indirect financial contributions to the wife’s three children and noted in that respect that, because they were not his children, he had no legal obligation to do so.
In Robb and Robb (1995) FLC 92-555, this Court made the point that because s 79(4)(c) refers, relevantly, to contributions made to “contributions to the family constituted by the parties to the marriage and any children of the marriage”, contributions of the type made here by the husband to children who were not his, needed to be taken up by reference to s 75(2)(o). Although not recognised in those terms by his Honour, he was plainly alive to that distinction and gave consideration both to the important s 79(4)(c) contributions made by the wife and to the husband’s “contributions” to children who were not his, albeit that this needed to occur by reference to s 79(4)(e) rather than s 79(4)(c).
The evidence about what role each party fulfilled was not controversial.
The wife received child support from the father of the children but recognition was given to the husband’s actions in paying for the outgoings in relation to the house that everyone occupied and paying the private health insurance premiums for the wife and the children (albeit that he obtained a tax deduction for them). Provided no “double counting” occurs by giving weight to those matters pursuant to s 75(2)(o) and in recognising that the husband was assisting the wife to fulfil her own legal obligations towards her children, we see no error of principle. It is not contended that any such double counting occurred here.
In our view it cannot be contended reasonably that the trial judge did not give consideration to the totality of the contributions of all types made by each of the parties. His Honour weighed those contributions and exercised his discretion as to how those contributions should be expressed in both percentage and dollar terms. (See, for example, at [58]).
In respect of the first category of grounds of appeal no error of principle is established.
The Weight Challenges
The second category of errors earlier set out asserts error in the attribution of weight to the evidence of the wife about her non-financial and homemaker contributions and that of her support for the husband when he became incapacitated later in the relationship.
As is so frequently the case in the appeals heard by this Court, the assertion that his Honour failed to give “any” weight to the enumerated factors is plainly unsustainable. Even a cursory examination of the reasons of the trial judge reveals that his Honour did give weight to the identified factors. The true gravamen of the ground is an assertion that the trial judge should have given those issues greater weight.
The wife’s evidence was that she used her money for the overseas travel and expenditure for herself and the children and other expenses personal to her such as the payment of a debt of her mother. She referred to an express agreement that the husband would pay the outgoings in relation to the home and she would pay for food and upkeep of her children. Such was the arrangement between the parties that the wife acknowledged that on holidays, the husband would pay for her airfares and accommodation but she was required to pay for the travel and accommodation of her children. She acknowledged the husband’s indirect contribution to her benefit in providing a residence and health insurance for the children. The husband’s evidence was more expansive acknowledging that he assisted with the care of the children particularly when the wife was at work and he cared for the children until she arrived home. Renovations paid from the husband’s money were also undertaken to the house to accommodate the needs of the children. Our comments made earlier deriving from the decision in Robb pertain.
We have already set out the findings the trial judge made on the uncontroversial evidence about the parties’ non-financial contributions. His Honour referred
(at [40]) to the wife’s “important contributions to family life” which “should be recognized as such”. His Honour placed specific importance on the carer role of the wife when the husband became incapacitated. His Honour’s language alone is a powerful indicator that his Honour gave those matters significant weight.
The case was conducted expeditiously before his Honour and was, of course, dominated by the issue of how the lottery win should be treated in arriving at a just and equitable settlement of property. Neither counsel in their outline of case before his Honour addressed the point made in Robb earlier referred to. Nor was that distinction made in the respective brief addresses to his Honour at the conclusion of the case. Indeed, counsel for the wife submitted there that the wife “made the homemaker and child carer contributions during the period of the marriage”.[1] Perhaps understandably then, his Honour did not make the distinction addressed in Robb to which we have earlier referred.
[1] Transcript of proceedings, 16 October 2014, p 29
However, to repeat what we have said earlier, we consider that his Honour plainly gave significant weight to the contributions of the wife and considered, as with respect he should have, the “contributions” of the husband to the family constituted by the parties and the wife’s children, albeit that the place to recognise those “contributions” was in considering s 79(4)(e).
In her final address to the trial judge, the wife’s counsel drew attention to the financial contributions made by the wife as well as that of homemaker and “child carer”. Counsel for the wife also submitted to the trial judge that the wife still had a dependent child and that, it was said, justified a division of the “property pool” of 32 per cent in the wife’s favour.
What his Honour said of the wife's parenting role to her own children at [37] and [40] of the reasons has already been quoted. In addition, his Honour said:
63.The wife works full-time and her total weekly income is $1,149, inclusive of Centrelink benefits and child support payments. From that income she must support herself and her three children, but it must be remembered that the husband has no legal liability to support those children.
It is well settled that the attribution of weight to components of the evidence in arriving at a discretionary decision is quintessentially the province of the trial judge. It cannot be said that his Honour failed to give any weight to the issues identified by the appellant wife. Nor is it established that his Honour failed to take account of a relevant consideration or took account of irrelevant considerations.
Ground 1.6 asserts specifically that the trial judge gave “inappropriate emphasis to the manner in which the parties used/or held their funds”.
The precise nature of the error is not immediately apparent to us and the ground is not addressed specifically in the appellant’s summary of argument nor was it addressed orally. It appears that this ground centres on the assertion that the trial judge erred by placing too much emphasis on financial rather than
non-financial matters. Our earlier comments as to the attribution of weight pertain.
Although frequently cited, in light of the arguments at the centre of the challenges just discussed, we consider it again important to repeat what was said over thirty years ago by the High Court in Mallet v Mallet (1984) 156 CLR 605 by Gibbs CJ at 608-610:
… The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those things are left to the court's discretion, which must, of course, be exercised judicially.
It is proper, and indeed often necessary, for the Family Court, in dealing with the circumstances of a particular case, to discuss the weight which it considers should be given, in that case, to one factor rather than another. It is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in such cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.
… The respective values of the contributions made by the parties must depend entirely on the facts of the case and the nature of the final order made by the court must result from a proper exercise of the wide discretionary power whose nature I have discussed, unfettered [sic] the application of supposed rules for which the Family Law Act provides no warrant.
It follows from what we have said that we consider that no error is demonstrated in the weight given by the trial judge to the various contributions of the parties.
The challenges referenced to the attribution of weight fail.
The Reasons Challenge
The law in respect of adequacy of reasons is well settled and has frequently been referred to. (See, for example, Bennett and Bennett (1991) FLC
92-191; citing, in particular Sun Alliance Insurance Ltd v Massoud [1989] VR 8, and Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983]
3 NSWLR 378 at 386). Central to the adequacy of reasons is the consideration that parties need to know why a decision has been made and the reasons of the court must deal with the substantial points raised by those parties (See Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31; Hunter v Transport Accident Commission (2005) 43 MVR 130 at 136).Nothing within the written or oral arguments made on behalf of the appellant wife persuades us that his Honour’s reasons were less than adequate.
The proceedings before his Honour were concluded within about an hour and a half. The issues were properly confined to those of primary importance to a determination of the orders that represent a just and equitable settlement of property.
His Honour’s reasons focussed on those same issues but were not at all inadequate in explaining how his Honour arrived at his conclusions in respect of those issues or arrived at the ultimate conclusion as to the orders that represented a just and equitable settlement of property.
The Assertion That The Outcome Was Manifestly Unjust
The final complaint raised in the amended notice of appeal asserts that the discretion of the trial judge miscarried in that the result was plainly wrong and manifestly unjust.
The thrust of the wife’s argument is that the result lies outside the parameters of what is accepted as the wide discretion and “which parameters mark out the boundaries within which reasonable minds might differ as to the result without appealable error” (see De Winter and De Winter (1979) FLC 90-605 at 78,092 per Gibbs J and Norbis and Norbis (1986) 161 CLR 513 at 540 per Brennan J). That is, it is submitted that the outcome giving the wife 10 per cent of the parties’ property and superannuation interests was “unreasonable or plainly unjust” using the language in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ or “plainly wrong”
(see Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J). A further dissection of that argument is that the contribution finding was too low and that the lack of any adjustment by reference to s 75(2) factors was inappropriate in the circumstances.In respect of the latter issue, the wife’s argument in final submission to the trial judge focussed on the future care of her children. That is, of course, an important factor but it had to be balanced against two important factors which his Honour referred to in the reasons. First, it was the children’s father (and not the husband) who had the responsibility to contribute financially to their needs. Secondly, and plainly importantly, the husband had very significant health issues and a commensurate need to significant paid care, summarised by his Honour:
62. The wife is 47 years old and in good health. The husband is nearly 69 years old and is in very poor health. He is effectively blind and he receives kidney dialysis treatment three times per week. He cannot read or drive and he requires carers to attend at his home on a daily basis to assist him with basic tasks.
The trial judge also acknowledged and took into account the capital disparity arising from the contribution findings.
Kirby J said in CDJ v VAJ(No 1) (1998) 197 CLR 172:
186.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 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 ... 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.
(Citations omitted)
The problem to which his Honour refers is exacerbated when it is difficult, if not impossible, for the court to answer the further question, “plainly wrong by reference to what?” In other areas of the law involving quintessentially discretionary decisions by reference to statutory requirements or criteria (general damages in tort and sentencing in criminal law are two examples) that subsidiary question is answered by reference to decided cases that seek to embrace the principle that in exercising any such discretions, like cases should be treated alike. In family law property cases, comparisons with earlier cases have traditionally been eschewed, most commonly by reference to the axiom that each marriage is unique.
Here, the challenged result is said to be “plainly wrong” but, as is almost always the case, the basis for the contention is only that the relevant party (here the wife) should have received more. The contention risks this Court engaging in an exercise that is not permitted, described by a former Chief Justice of Australia in this way in Sharman v Evans (1977) 138 CLR 563, at 565:
... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge…
In Babett & Falconer (2015) FLC 98-067, this Court said, in passages that have direct reference to the arguments in this case:
31.It is by no means uncommon to see grounds of appeal framed in terms identical, or similar, to Ground 3 in this appeal. That such a contention of discretionary error can be made might be seen to emanate from the concluding part of the frequently-cited passage from the judgment of their Honours, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504, 505 (“House”). Their Honours, having set out specific errors that might inform discretionary error, said:
… the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
32.Their Honours’ statement in House makes it clear that the conclusion of unreasonableness or injustice must be so “plain” that it permits of an inference that there has been a failure to “properly” exercise “the discretion which the law reposes in the court of first instance”. More recent statements by the High Court also underscore the required aberrance. For example, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194…(at 203–204) …
33.Earlier statements by the High Court have emphasised the “very wide discretion” inherent in s 79 (Mallet v Mallet (1984) 156 CLR 605, 608). That very wide discretion can be seen to be an example of where “… the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion” and, as a result, “the latitude” given to a trial Judge is “considerable”. By way of corollary, “… it is never enough that an appellate court, left to itself, would have arrived at a different conclusion” (Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).
34.However, what is at issue here is a discretionary conclusion reached from established facts none of which are challenged on appeal. An appellate court’s decision that a trial Judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts. Justice Stephen’s often-quoted passage in Gronow v Gronow …
35.Some five years later, Gibbs CJ, having cited those statements with approval, said to similar effect in Mallet v Mallet (above) at 615 …
…
37.While it can be contemplated that assessments of contributions pursuant to s 79 might be judged erroneous by reason of fitting the description “unreasonable” or “plainly unjust”, it is a description that begs a foundation for this Court doing other than substituting its own discretionary conclusion for that of the trial Judge. In this, as in so many like cases, the central contention is that error is established by the result being “so outside” something that is not only unidentified but is not referenced to any foundation save for that assertion.
(Quotations from cited cases omitted)
His Honour’s task here was a difficult one; the facts upon which the proper assessment of both contributions and s 79(4)(e) were based had unusual features. As we have said, we do not consider that his Honour made any discretionary error. No material factual errors were made. Some or all of us may have reached a decision different to his Honour but that circumstance does not warrant appellate interference. In the absence of any demonstrable criteria by which it is said that his Honour’s decisions was “plainly wrong” we are in the position of being asked to provide a “second opinion” as to the appropriate exercise of discretion. We are unable to persuade ourselves that the result is outside the parameters upon which reasonable judicial minds might differ.
The challenge is not made out.
Conclusion
No ground being successful, the appeal must fail.
Costs
The respondent seeks that the appellant wife should pay the costs of and incidental to the appeal.
Section 117(1) of the Act describes that each party bears their own costs. However, in the exercise of the broad discretion conferred by s 117(2A), the expectation that the making of orders at the conclusion of a trial should ordinarily bring an end to the litigation and consequently, the legitimate expectation that the parties should retain the fruits of their judgment is an important consideration in combination with an appeal being “wholly unsuccessful” (s 117(2A)). (See, for example, Trask & Westlake (Costs) [2015] FamCAFC 214, at [4]; Limousin & Limousin (Costs) (2008) 38 Fam LR 478, at [60]). That consideration is important in this case.
However, we consider that the financial circumstances of the parties and, in particular the fact that the husband, despite his manifest need for care, has available to him almost $1 million in cash, whereas the wife has a dependent child and is meeting a mortgage with a significant gearing on a very modest home with a modest income, to be particularly important here.
In the exercise of our discretion, we consider that each party should bear their own costs.
I certify that the preceding Seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy and Cronin JJ) delivered on 29 March 2016.
Associate:
Date: 29 March 2016
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