Fadden and Fadden
[2009] FamCAFC 157
•26 August 2009
FAMILY COURT OF AUSTRALIA
| FADDEN & FADDEN | [2009] FamCAFC 157 |
| FAMILY LAW – APPEAL – Challenge to orders for property settlement – not established by reference to evidence at trial or further evidence sought to be relied upon that asset pool erroneously quantified – not established that exercise of discretion with respect to contributions or s75(2) miscarried – appeal and application to adduce further evidence dismissed |
| Family Law Act 1975 (Cth) Part VIII, ss 75(2), 79(2) |
| Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Bennett and Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Clauson and Clauson (1995) FLC 92-595 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 De Winter and De Winter (1979) FLC 90-605 Gray and Gray (2005) FLC 93-228 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 House v The King (1936) 55 CLR 499 Kildea v Kildea (2008) 38 FamLR 347 Norbis v Norbis (1986) 161 CLR 513 Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418 |
| APPELLANT: | Mr Fadden |
| RESPONDENT: | Ms Fadden |
| FILE NUMBER: | BRM | 15285 | of | 2006 |
| APPEAL NUMBER: | EA | 124 | of | 2008 |
| DATE DELIVERED: | 26 August 2009 |
| PLACE DELIVERED: | Dubbo |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May and Strickland JJ |
| HEARING DATE: | 5 June 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 September 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1032 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr. W. Tregilgas |
| SOLICITOR FOR THE APPELLANT: | Byrnes & Cox Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr. J. Priestley |
| SOLICITOR FOR THE RESPONDENT: | Fishburn Watson O'Brien |
Orders
That the appeal and application for leave to adduce further evidence be dismissed.
That the wife’s costs of the appeal and the application for leave to adduce further evidence be reserved.
That the wife file and serve submissions in support of her application for costs within 21 days.
That the husband file and serve submissions in opposition to the wife’s application for costs within 21 days thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Fadden & Fadden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 124 of 2008
File Number: BRM 15285 of 2006
| MR FADDEN |
Appellant
And
| MS FADDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 17 December 2008, Mr Fadden (“the husband”) appealed against orders made by Scarlett FM on 23 September 2008 in proceedings between himself and Ms Fadden (“the wife”), pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
The Federal Magistrate’s orders provided that the net assets of the parties, as determined by him in the sum of $888 128.55, be divided in the manner proposed by the wife in her Amended Application for Final Orders filed 20 May 2008.
In essence this provided that the wife transfer to the husband two properties situated at C with the husband to be responsible for the liability to the bank. The wife was to retain a house property at F and the husband pay the wife $300 000.
The husband sought by his Amended Notice of Appeal to have the orders of the learned Federal Magistrate set aside, and the matter remitted to the Federal Magistrates Court for rehearing by another Federal Magistrate.
On 22 April 2009, the husband filed an Application in an Appeal to adduce further evidence, pursuant to s 93A of the Act. The further evidence is contained in an affidavit of the husband annexed to the affidavit of his solicitor filed on 22 April 2009 and in Exhibits 1 and 2 tendered before us.
The wife resisted the husband’s appeal, opposed his application to adduce further evidence, and sought to maintain the learned Federal Magistrate’s orders.
Background
The husband was born April 1959 and the wife was born October 1963. Accordingly, the husband is 50 years of age, and the wife is 45 years of age.
The parties commenced cohabitation in 1982 and were married August 1988. They separated under one roof in November 2004. The wife left the C property on or about 8 December 2005 and went to live at F. The parties’ two daughters have since resided with the wife.
There are four children of the relationship. As at the date of the learned Federal Magistrate’s decision on 23 September 2008, the children were aged 23, 22, 19 and 17.
The husband and wife both worked during the marriage. In addition the wife was found to be the primary caregiver of the four children. The husband worked as a miller. For a substantial period of the marriage a business of milling was operated by a company, Fadden Pty Ltd of which the parties were the directors and shareholders.
The learned Federal Magistrate determined the net value of the matrimonial assets to be $888 128.55. His Honour assessed the contribution based entitlements of the wife and the husband at 55 per cent and 45 per cent respectively. A 10 per cent adjustment was made in favour of the wife pursuant to s 75(2) of the Act. The learned Federal Magistrate thus concluded that the wife should receive 65 per cent and the husband 35 per cent of the property.
Having regard to s 79(2) of the Act, and the reality that the proposed division of the parties’ property favouring the wife by 65 per cent to the husband’s 35 per cent ‘would give the wife more than she has in fact asked for in her amended application…’ the learned Federal Magistrate concluded that such a division would not be just and equitable in all the circumstances. He thus ordered that ‘that the wife should receive the items that she seeks in her amended application…’ (reasons, [54]). So doing represented a division of the property between the parties of approximately 54 per cent to the wife and 46 per cent to the husband based on the value of the property as found by the Federal Magistrate.
The Federal Magistrate’s judgment
The learned Federal Magistrate commenced his reasons for judgment by identifying the orders for settlement of property sought by the wife in her application, and those sought by the husband in his response.
His Honour then provided a brief background to the parties’ relationship, and their acquisition and sale of real property during that relationship before setting out the relevant legal principles for the determination of an application under
s 79 of the Act. None of those matters are controversial for present purposes.
The parties’ net matrimonial assets were then identified and quantified under the heading ‘The Matrimonial Assets’. After valuing the assets and subtracting the liabilities, the net value was found to be $888 128.55.
His Honour then considered the contributions made by the parties and assessed the wife’s contributions at 55 per cent and the husband’s contributions at 45 per cent. He recorded in that context that ‘[n]either party brought any significant asset into the marriage’ of some 23 years. His Honour accepted that both parties worked during the marriage, and that ‘[t]he wife assisted with the business and was the primary caregiver of the parties’ four children…’. His Honour found that a number of lump sums received during the marriage ‘were all used by the parties for joint purposes.’ However, as more of those funds were received by the wife, they were regarded as a greater contribution by her than the husband. (reasons, [31]-[40])
The learned Federal Magistrate recorded the concession made by the husband ‘that the wife carried out most of the cooking and household chores between 1985 and 1997 whilst the children were being raised’ (reasons, [24]). Reference was also made to the cross-examination of the husband by counsel for the wife in relation to the payment of child support including that he was paying $20 per week for the youngest child.
His Honour then turned his attention to s 75(2) of the Act. He recorded that the proposed orders ‘will be unlikely to have any effect on the earning capacity of either party’ under the heading ‘Effect on Earning Capacity - s.79(4)(d)’. Several s 75(2) factors were then traversed. These included the parties’ ages and health, their employment and employability, the need for the wife to provide some care for the parties’ youngest child E aged 17, and the inadequacy of the husband’s child support payments to the wife to meet the needs of E. It was found that ‘[t]here needs to be an adjustment in favour of the wife’. That finding was made in consideration of the need of the wife to care for E who would not leave school until the end of 2009. (reasons, [41]-[48])
It was further found by his Honour that ‘[n]either party is cohabiting with another person, although the wife has now formed a relationship with another man’ who lives elsewhere, and ‘[n]either party appears to be entitled to any pension or superannuation payment’. (reasons, [49] and [50])
In the light of the s 75(2) factors to which he had referred, the learned Federal Magistrate made a 10 per cent adjustment in favour of the wife.
In the final stage of his reasoning, the learned Federal Magistrate considered whether the order he proposed making was just and equitable in all the circumstances as required by s 79(2) of the Act. His Honour recited in general terms the items of personal and real property that the parties were liable to receive and then observed that ‘65% of the net value of the assets would give the wife more than she has in fact asked for in her amended application’, an outcome which he was not satisfied would be just and equitable in all the circumstances. (reasons, [52]-[55])
Consequently, the orders ultimately made resulted in the wife receiving ‘the items that she seeks in her amended application…’ and the husband receiving the balance. It is common ground that so doing resulted in the asset pool being apportioned as to 54 per cent to the wife and 46 per cent to the husband.
Relevant Appellate Principles
The principles which govern the appeal, and application for leave to adduce further evidence, are not in doubt and do not require extensive restating.
There is a presumption at law that a trial judge’s decision is correct, and the onus rests on the appellant to show otherwise (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J at 627 – 628; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 per Windeyer J at 206 – 208).
As will be seen, the challenges agitated on behalf of the husband fall within two broad categories. The first category relates to the determination of the property of the parties (‘pool issues’). The contention of the husband was that the learned Federal Magistrate exercised his discretion in reliance upon erroneous findings of fact as to the net value of the property of the parties. The learned Federal Magistrate found the net assets of the parties to be worth $888 128.55. Before this Court, counsel for the husband submitted that the asset pool should have been found to approximate $798 772.10. In De Winter and De Winter (1979) FLC 90-605 the High Court said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p. 137, to Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p. 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
If the husband’s contention succeeded, that the learned Federal Magistrate erred in determining the value of the parties’ property to the extent asserted, appellate intervention with respect to the exercise of discretion based upon such erroneous findings of fact would be likely to be enlivened.
Potentially relevant to the husband’s challenge to the identification and quantification of the property of the parties was his application for leave to adduce further evidence. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow, and Callinan JJ stated at 201:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
The second broad category of challenge agitated on behalf of the husband related to the learned Federal Magistrate’s exercise of discretion. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ stated at 504 – 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Specifically, in the context of the exercise of discretion under s 79 of the Act, Brennan J stated in Norbis v Norbis (1986) 161 CLR 513 at 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343, at p 345, Asquith L.J. stated the rationale of an appellate court's approach:
“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.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In CDJ v VAJ, Kirby J said at 230-231:
186. A number of general propositions may be stated:
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. (footnotes omitted).
The Grounds of Appeal
The appellant husband specified six grounds of appeal in his Amended Notice of Appeal, filed 17 December 2008. They can conveniently be grouped under four broad headings:
a)Identification and quantification of the asset pool, (‘Pool issues’);
b)Assessment of contributions;
c)Determination of s 75(2) factors; and
d)Adequacy of reasons.
The application for leave to adduce further evidence relates primarily to the Pool issues.
Pool issues
The first ground in the husband’s Amended Notice of Appeal provided:
‘The learned Federal Magistrate made a mathematical error when calculating the matrimonial pool thereby inflating the pool of assets available for division between the parties. As a consequence the Orders made by His Honour result in a different division of the matrimonial pool than that envisaged by His Honour when making those Orders.’
Although Ground 1 potentially overlaps with the husband’s application to adduce further evidence, we would note that if the husband is successful with this or any other of his grounds of appeal in reliance upon the evidence which was before the learned Federal Magistrate, consideration of any further evidence in support of the husband’s appeal would be unnecessary. Absent such success, the application to adduce further evidence would require consideration.
In his written submissions, counsel for the husband contended that the learned Federal Magistrate had erroneously inflated the asset pool, and that, as a consequence, ‘the Orders made by His Honour result in a different division of the matrimonial pool than was envisaged by His Honour when making those Orders.’
In paragraph 29 of the judgment the learned Federal Magistrate included in the property of the parties to the marriage the following accounts owned or controlled by the husband:
(d) Bank account Fadden P/L $65 114.40
(j) Husband’s Bank account $76 134.38
(k) Husband’s cash investment accounts
i)$ 2 550.77
ii)$25 118.72
(l) Husband’s Awards account $19 285.28
Those four accounts total $188 203.55.
This contention has two components. First, it was asserted that his Honour had erred in failing to determine and quantify the property of the parties to the marriage as at the date of separation. As is not in doubt, the learned Federal Magistrate identified and quantified the property of the parties to the marriage as at the date of the hearing before him in relation to certain assets; and at other dates in relation to other assets, most notably the bank accounts owned or controlled by the husband.
Secondly, by having regard to the balances of bank accounts on different dates, the learned Federal Magistrate was asserted to have double counted funds owned or controlled by the husband, thereby erroneously inflating the asset pool. This component will be considered separately.
Determining the asset pool
Counsel for the husband submitted that the learned Federal Magistrate did not explicitly or implicitly state in his reasons at what date he had struck the ‘balance sheet’. With respect to counsel for the husband, there seems to be little doubt that the learned Federal Magistrate endeavoured to determine the asset pool as at the date of the hearing before him.
Counsel for the husband submitted that although ‘[t]he authorities would tend to support the date of hearing 22 May 2008’ as the date for determining the asset pool, citing Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [30], and Kildea v Kildea (2008) 38 FamLR 347 at [104] and [105], the authorities do not render that an ‘inflexible rule’. It was submitted that in the circumstances of the case, the learned Federal Magistrate erred by not fixing the date for determining the asset pool as the date of the parties’ separation. The parties separated under one roof in November 2004 and physically separated on 8 December 2005. The trial was heard on 22 May 2008 and the judgment was delivered on 23 September 2008.
Counsel for the wife submitted that the learned Federal Magistrate had not erred in the circumstances of this case by identifying and quantifying the property of the parties to the marriage as at the date of hearing or endeavouring to do so.
It was submitted on behalf of the wife that, in the circumstances of this case, and because of the way in which the husband had elected to disclose, or fail to disclose, his financial circumstances, the learned Federal Magistrate had not erred in determining the assets by reference to dates other than the date of trial. To the extent that the husband complained that the learned Federal Magistrate had included the balance of bank accounts in his possession or under his control by reference to dates other than the date of trial, it was submitted on behalf of the wife that, in the circumstances of this case, the husband could not successfully complain. The failure of the husband to place any source documentation before the learned Federal Magistrate with respect to accounts which were at all material times controlled by him was submitted to support this contention.
Nothing to which counsel for the husband has referred us establishes that the learned Federal Magistrate erred in seeking to determine the asset pool as at the date of hearing. So doing was consistent with the authorities to which counsel for the husband referred us, and with commonsense.
Significantly, to the extent that the evidence permitted him to do so, his Honour considered the movement of assets and utilisation of funds in the post-separation period in the course of reaching his conclusion as to the entitlements of the parties. Having rejected the contention of the husband that the learned Federal Magistrate erred in not determining the asset pool as at the date of separation, it is unnecessary to consider the submissions on behalf of the husband reconstructing the asset pool at that date.
To the extent that the learned Federal Magistrate relied upon dates other than the date of hearing in relation to bank accounts controlled by the husband, we are not persuaded that he erred by so doing. In the course of dealing with other challenges raised on behalf of the husband, the reasons why we are not so persuaded will be amplified. As will be seen, to the extent that the husband may have been disadvantaged by the manner in which the learned Federal Magistrate quantified the property of the parties, the husband was responsible for such disadvantage. Whether the manner in which the learned Federal Magistrate quantified the property of the parties to the marriage had any of the other consequences complained of by the husband is a separate issue which requires consideration.
Four Bank accounts held or controlled by the husband were potentially relevant to the identification and quantification of the asset pool. The wife attached copies the statements for three of these accounts to her affidavit filed 16 August 2007, the relevant information not being provided by the husband. The identity and styles of these accounts were not in doubt, and were identified by counsel for the husband by reference to the learned Federal Magistrate’s judgment. Copies of statements for the following accounts were provided as follows:
·Overdraft Cheque Account in the name of ‘Fadden Pty Ltd’ (Account number: xxx) (Exhibit E2 to wife’s affidavit);
·Savings Account in the name of the husband (Account number :xyz) (Exhibit E3 to wife’s affidavit);
·Cash Investment Account in the name of the husband (Account number: xxy) (Exhibit E4 & E5 to wife’s affidavit); and
·Awards Account in the name of the husband (Account number: uvw (Exhibit 4 before the Federal Magistrate).
These statements revealed the balances which led the learned Federal Magistrate to conclude that the husband’s bank accounts totalled $188 203.55.
Correctly in our view, no submission made on behalf of the husband asserted that any of the figures upon which the learned Federal Magistrate relied when quantifying the property of the parties to the marriage was erroneous having regard to the unchallenged evidence before him. As will be seen, the husband’s contentions in the appeal proceed on the basis of the documentation upon which the learned Federal Magistrate relied.
The course of the proceedings prior to trial is instructive for present purposes. As mentioned, in her affidavit filed 16 August 2007, to the extent that she was able, the wife identified and quantified (among other assets) some of the bank accounts held by the husband. Annexed to the wife’s affidavit were source documents in support of the wife’s allegations.
In contrast, the husband provided no documentation to substantiate a number of the allegations appearing in his affidavit filed 10 April 2007, or in his subsequent affidavit filed 4 September 2007. Both of the husband’s affidavits were filed while he was still legally represented, and both affidavits were ‘prepared / settled by’ Mr Kevin Byrnes, lawyer. In his affidavit filed 10 April 2007, the husband suggested the asset pool comprised the following at the time of separation:
35.I estimate that the value of our assets at the time of separation were as follows:
[C property] (comprising 2 lots) $450,000.00
[M Street, F] $150,000.00
[Fadden] Pty Ltd $100,000.00
Station wagon motor vehicle driven by applicant $ 5,000.00
Tip truck$ 2,000.00
Furniture$ 5,000.00
Bank Account in my name $ 5,000.00
Bank Accounts in Applicant’s name NK
In relation to the value of the company I have given an estimate of $100,000 based on the following. Firstly, the company-owned machinery which I estimate had a value of nearly $20,000. The company also owned a utility motor vehicle with a value of approximately $2,000. Finally, the company had approximately $80,000 in the Bank.
36.The Applicant had a number of Bank Accounts into which she had been paying monies prior to separation. The Applicant paid her wage directly into her own Bank Accounts and did not account to me in relation to those monies. As such, I am unable to say how much the Applicant had in savings in her own name at the time we separated.
37.At the time of separation we had the following liabilities:
Mortgage re [C property] $ 50,000.00
38.At the time of separation we had the following superannuation entitlements:
My Superannuation Fund $ 25,000.00
To the best of my knowledge the Applicant had superannuation entitlements though I am unable to say what the value of those entitlements was at the time we separated.
The husband’s counsel submitted to us that the balance in the husband’s account at separation was $37 219.28. Thus it is readily apparent that the husband’s assertion in his affidavit as to the balance of the bank account in his name is considerably less than this amount.
Subsequently, in his affidavit filed 4 September 2007, the husband provided a list of the parties’ assets and liabilities ‘at the time of separation in November 2004.’ No figures were provided for deposits in bank accounts. After discussing a number of transactions that occurred between November 2004 and December 2005, the husband made another estimate of the parties’ assets and liabilities at the time the wife left the C property in precisely the same terms as he had in his previous affidavit.
Perhaps not surprisingly in view of what is now conceded on his behalf, the husband in this affidavit did not provide any source documentation to support his assertions, other than with respect to the item of sale of cattle valued at $11 284.98. The husband said in paragraph 119 of his affidavit that he had
$4 000 in a bank account and that the value of the business was $100 000.
At trial, all of the wife’s evidence, including the exhibits, some of which we have earlier referred, were admitted without objection by the husband (T/S 22/05/08 pp 4-5 and 31-32). The husband was not legally represented at the trial. Had the husband been represented at trial, there is no apparent basis upon which he could have successfully opposed any of the source documentation relied upon by the wife being received in evidence. Although the husband expressed some desire during cross-examination at the trial to provide to the court some source documentation to support his claims at no stage did he do so, or seek to do so.
The husband’s reasons for not putting any source documentation before the court at trial were, and remain, unknown. However, under cross-examination some hint was given as to why he may have not provided such documentation (T/S 22/05/08 p 24):
Mr Davies: ‘... In paragraph 102 you say:
The company had approximately $80,000 in savings at the time the applicant vacated the home.
Do you now accept that the figure was in fact $93,299.47?’
Mr Fadden:‘No, I don’t accept that. I - I don’t accept that. I don’t accept that because when - when I said that I left out that, yes, the company has got debts. And actually, it was an estimate. And I estimated that after the debts were paid the company would be left with $80,000.’
Mr Davies: ‘Moneys for which you still retain?’
Mr Fadden:‘Well, yes, they’re in an account that’s tucked aside where nobody can bet [sic] at it.’ (emphasis added)
The four bank accounts referred to by the learned Federal Magistrate were undoubtedly at all material times in the name of the husband and/or under his control. Counsel for the wife submitted, correctly in our view, that the husband was aware of what his wife was claiming, and had seen the documents she was relying upon. It was entirely within the husband’s capacity, and open to him, to challenge the wife’s position by providing relevant source documentation to prove a different conclusion based on evidence. He chose not to. The husband was legally represented when he made that choice. In fact, he was legally represented until two days before the hearing on 22 May 2008. There is substance in the contention of counsel for the wife that the husband offered to the court ‘very questionable evidence’. That conclusion is supported by the submission of the wife’s counsel that:
…To take an example, in the wife’s affidavit as Annexure “E3”, is a copy of a bank statement as at 16 March 2007 showing the husband’s Bank Internet account to be $76,134.38 (this document also tendered as exhibit 5). The husband who filed an affidavit after the wife as well as before does not seek in any way to impugn that annexure or even to explain it. Rather, the husband merely says that as at the time he swore both his affidavits [April and August 2007] he had only $4,000 of savings. It is important to bear in mind in this case the very questionable evidence of the husband. From the example just given, we have a $72,000 discrepancy in a period of one month without any explanation. The husband does not dispute the bank statement, and does not explain how $76,000 has become $4000.
Apart from his failure to challenge any evidence of the wife in relation to the bank accounts in the husband’s name or under his control, or to adduce any source documentation on his own behalf, the husband never indicated to the learned Federal Magistrate what he contended to be the relevant accounts, or their balances. None of the submissions made by counsel now representing the husband in this court were made at trial. At no time during the trial did the husband, in evidence or by way of submission, suggest what the asset pool should comprise, or its total value. We have earlier noted that the husband elected to place no source documentation before the court pertaining to the bank accounts which were at all material times owned or controlled by him.
In the circumstances we have detailed, the husband’s complaint with respect to the date at which the learned Federal Magistrate identified and quantified the asset pool is not made out. Nor are the husband’s complaints in relation to the sources of the figures upon which his Honour relied. As we have noted, it was only because the wife put source documentation before him that the learned Federal Magistrate was able to reach any conclusions with respect to the bank accounts owned or controlled by the husband. None of the figures upon which his Honour relied have been shown to lack an evidentiary foundation. The husband made an election, long before he ceased to be legally represented, in relation to the disclosure of the bank accounts owned or controlled by him in the post-separation period. In the circumstances which resulted, his complaint in relation to the findings with respect to those accounts cannot succeed.
It remains to be considered whether, although the source documentation before the learned Federal Magistrate provided an evidentiary foundation for his findings with respect to the husband’s bank accounts, the evidence revealed a duplication or ‘double counting’ within those accounts.
Double counting
The crux of the husband’s complaint was that, at its highest, the balance of the bank accounts owned or controlled by him at, or subsequent to separation, totalled $149 244.10 in the light of the evidence which was before the learned Federal Magistrate. His Honour found that the accounts owned or controlled by the husband totalled $188 203.55. It was thus submitted that there had been a double counting at least to the extent of approximately $39 000.
The source documents (the annexures to the affidavit of the wife and Exhibits 3, 4 and 5) suggest only one instance of double counting, which was conceded before us by counsel for the wife in any event. The double counting relates to the inclusion of two cash investment accounts in the amounts of $2 550.77 and $25 118.72. The larger balance in fact included the lesser balance of $2 550.77. There was, to that extent, a double counting as was fairly conceded by counsel for the wife, and apparent on analysis of the source documentation.
It was submitted on behalf of the wife that the learned Federal Magistrate’s exercise of discretion was not vitiated by this minor double counting; as such a sum could not constitute a material error of fact (De Winter and De Winter (1979) FLC 90-065). It was further submitted on behalf of the wife that the husband’s complaint was not entitled to success because, relative to the asset pool, the double counting could only be seen as de minimis.
The de minimis rule is embodied in the Latin maxim de minimis non curat lex, which translates as ‘the law (or the court) does not take account of trifles’. It is a ‘general principle that some breaches of duty, or mistakes in procedure or in deeds, are too trivial to be made the ground for giving a legal remedy, or dismissing a claim, or as the case may be.’ (David M. Walker, The Oxford Companion to Law (1980), 337).
We accept the submissions made on behalf of the wife with respect to the double counting of $2 550.77 that such an error in an asset pool of $888 128.55 (0.03 per cent) does not constitute a material error of fact.
In addition to the matters to which we have referred, it is apparent that the husband’s motor vehicle, valued at $6 000, was not included in the asset pool. On the face of it, such sum could properly have been included. So doing would have more than offset the de minimis double counting to which we have referred.
In our view, for all or any of the reasons articulated above, if the husband’s appeal were otherwise not entitled to succeed, the learned Federal Magistrate’s double counting in the sum of $2 550.77 would not alter that state affairs.
It is significant that counsel for the husband did not suggest to us by reference to the documentation before the Federal Magistrate any other alleged instance of double counting. As we have already observed it was always open to the husband at trial in the course of making a full and frank disclosure of his finances to place before the court bank statements evidencing movement of significant sums of money between the accounts controlled by him in support of his assertion that the accounts placed before the court by the wife revealed double counting. This the husband elected not to do. Nothing advanced before us on his behalf changes the position. In the circumstances, it was not for the wife to prove the absence of double counting.
Accordingly, we are not persuaded that the husband’s challenges to the learned Federal Magistrate’s determination and quantification of the asset pool have merit. In summary, we so conclude, in reliance upon the following matters, each of which we have earlier discussed in more detail:
a)At all material times, the husband controlled the bank accounts which gave rise to this controversy;
b)The husband had known since August 2007 the documentation with respect to his bank accounts upon which the wife relied;
c)At no time did the husband place before the court any of the source material in relation to any of the bank accounts;
d)The husband was represented until shortly before the hearing on 22 May 2008;
e)The husband made no effort during the trial to demonstrate any alleged double counting of bank accounts by reference to source documentation; and
f)The husband’s evidence in cross-examination reinforced the impression that he was anxious not to reveal, or have revealed, details of bank accounts under his control in the post-separation period, or of the movements of funds in or between such accounts.
As the husband’s challenges to the learned Federal Magistrate’s conclusions with respect to ‘pool issues’ in reliance upon the evidence at trial lack substance, it is necessary to consider his application to adduce further evidence.
Application to adduce further evidence
We have earlier referred to the principles governing the husband’s application. As the majority judgment in CDJ v VAJ confirms, for an application for leave to adduce further evidence to be successful, counsel for the husband must establish that, if accepted, the further evidence to be relied upon would ‘render erroneous’ the trial judge’s decision. In the context of this appeal, the asserted error relates to the quantification of the property of the parties.
In the affidavit containing the proposed further evidence, the husband made statements in relation to the balances of his bank accounts. This included that two of the accounts were opened post separation. It was asserted that at the date of separation the balance of the accounts then in existence was $98 847.10. The husband annexed to his affidavit two analyses said to have been completed by him after consultation with his accountant. The husband said in his affidavit:
16.I have perused the bank statements in respect of the abovementioned four accounts and have consulted my accountant so as to produce a table setting out the movement between them. That table also shows the cumulative total of those accounts on various dates following separation.
17.Annexed hereto and marked with the letter “A” is that table…’
(original emphasis)
Annexure A to the husband’s affidavit provided details of four accounts between 15 December 2005 and 30 January 2009, which appeared to be the following accounts:
a)Overdraft Cheque Account in the name of ‘Fadden Pty Ltd’ (Account number: xxx);
b)Awards Account in the name of the husband (Account number: uvw);
c)Saver Account in the name of the husband (Account number: xyz); and
d)Cash Investment Account in the name of the husband (Account number: xxy).
These were the accounts in respect of which the wife tendered source documents at trial.
It is apparent that this further evidence potentially encompasses bank statements which were not in evidence before the learned Federal Magistrate, and not all of which were made available to us. The significance or otherwise of those further statements thus requires consideration.
A number of observations are appropriate with respect to the transactions referred to in annexure A, and particularly with respect to the periods not covered by the evidence before the learned Federal Magistrate. The husband has provided minimal source documentation supportive of the allegations made by him in annexure A. Annexure A does not indicate the source documentation from which it was prepared. Whilst that can be inferred from paragraph 16 of his affidavit, we have been denied the benefit of all of the bank statements with respect to the periods in question, and are thus unable to verify the accuracy of all of the assertions emerging from annexure A. In the absence of all statements for the bank accounts we are also unaware of whether there are other transactions in those accounts, and, if there were, what their significance might be.
In submissions made on behalf of the husband, counsel sought to reconstruct the balance sheet used by the Federal Magistrate solely by reference to the four bank accounts owned and/or controlled by the husband by using the balances appearing on dates which were covered by the evidence which was before the learned Federal Magistrate. To that extent, the evidence of the bank accounts at separation is not further evidence within s 93A of the Act. No transactions not included in the documents before the learned Federal Magistrate were relied upon.
As noted earlier, by reference to the statements which were before the learned Federal Magistrate, counsel for the husband submitted that the highest figure reasonably open to the learned Federal Magistrate to find as the balance of the bank accounts owned or controlled by the husband was the figure of $149 244.10.
The further evidence sought to be relied upon by the husband could not advance the husband’s case on appeal. No submission made by counsel for the husband with respect to the reconstruction of the husband’s bank accounts depended upon any further evidence. In reality, the husband’s application is not to adduce further evidence with respect to his bank accounts, but rather, in reliance upon evidence which was before the learned Federal Magistrate, to make submissions as to the total balance of such accounts which were not made to his Honour. To the extent that the husband sought to adduce further evidence of bank accounts which were not before the learned Federal Magistrate, such application fails, on the basis that the statements upon which the husband actually relied were before his Honour whilst those which were not before his Honour were not sought to be relied upon to demonstrate appealable error.
It does not, however, follow that the rejection of the husband’s application to adduce further evidence precludes the husband from agitating the submission articulated in Annexure A to his affidavit. Whilst this submission was not raised at trial, the evidence upon which it is based clearly was.
The issues which the High Court considered in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, and subsequently, in the authorities referred to in Gray and Gray (2005) FLC 93-228, do not arise. In fairness, counsel for the wife did not assert that counsel for the husband ought not be permitted to agitate those complaints in any event.
The thrust of counsel for the husband’s contention in reliance upon Annexure A was that the learned Federal Magistrate included the total balance of the bank accounts owned or controlled by the husband in a sum at least $39 000 greater than the evidence before his Honour permitted him to. It was thus submitted that the exercise of his Honour’s discretion was based upon a material error of fact.
We have earlier referred to the unsatisfactory aspects of the husband’s financial disclosures. We have also referred to an answer given by him in cross-examination which reinforces the impression that the husband had consciously failed to make a full and frank disclosure of his finances in the period after the parties separated. The husband’s repeated failures to provide evidence of his bank balances in that period further reinforce that impression.
In the light of the demonstrated deficiencies in the husband’s financial disclosures, it cannot be safely concluded that the funds appearing in the four accounts to which we have been referred totalling $149 224.10 represented the totality of the funds owned or controlled by the husband on 20 March 2006 when the business operated by the company ceased. The husband’s own evidence in cross-examination suggested the possibility of there having been further funds owned or controlled by him which were neither revealed nor quantified at trial.
We are not persuaded that the learned Federal Magistrate erred in his quantification of the bank accounts owned or controlled by the husband in the sum of $188 203.55 subsequent to separation. We thus reject the husband’s challenge to the learned Federal Magistrate’s conclusion in that respect.
Post-separation expenditure
We perceive that there were only two other matters raised by the husband in his further evidence affidavit. Firstly there is the alleged expenditure related to the business of approximately $66 000.00 subsequent to the parties’ separation. In paragraph 20 and 21 of his affidavit sworn 24 February 2009, the husband set out the payments made:
20.After 20 March 2006 I made various payments from the company account to pay various expenses associated with the company. On occasions I transferred money from the other accounts into the company account to pay those expenses. In consultation with my accountant I have perused the bank statements in respect of each of the abovementioned bank accounts and have prepared a table setting out the expenses paid from the company account after 20 March 2006. Annexed hereto and marked with the letter “B” is that table.
21.Based on that table I say that the following amounts relating to the company were paid after the business shut down:
Date
Description
Amount
29.03.06
Workers Comp
$14,553.72
28.04.06
Tel Company
$1,044.48
28.04.06
Country Energy
$3,050.54
28.04.06
Fuel bill
$1,417.30
28.04.06
Driver Training
$1,500.00
02.05.06
Super
$4,454.00
03.05.06
Legal expenses –
$2,000.00
12.05.06
ATO – BAS
$23,822.00
23.05.06
ATO
$1,376.00
31.05.06
Wife’s personal Tax
$3,146.95
01.06.06
Husband’s personal Tax
$3,913.10
27.06.06
ATO – PAYG
$1,376.00
21.07.06
Super
$1,521.00
27.07.06
ATO – PAYG
$1,376.00
25.08.06
ATO – PAYG
$945.00
29.03.07
KTS
$1,331.00
Total:
$66,827.09
(original emphasis)
It is readily apparent that these alleged disbursements occurred at least 12 months prior to the hearing before the learned Federal Magistrate, and well prior to the husband ceasing to be represented. The husband’s affidavit provided no explanation for the failure to adduce evidence of the matters thus alleged at trial. It is difficult not to conclude that the attempt to now raise these allegations arises from the belief that, in light of the learned Federal Magistrate’s decision, so doing may prove advantageous.
We observe that no source documentation, whether by way of cheque butts, invoices, receipts or otherwise, has been presented in support of the allegations contained in this paragraph of the husband’s affidavit. The husband’s affidavit does not reveal any inability to have provided such evidence, or any evidence of due search and enquiry for such documents. In the absence of such documentation, the paragraph is in reality no more than a series of allegations that debits appearing in bank statements were for particular purposes. The husband had ample opportunity, whilst in receipt of competent legal advice, to have articulated these matters in an affidavit, and supported them by source documentation.
The unsatisfactory evidence of the husband in relation to his finances generally, and the specific instance of his particular intentions emerging during cross-examination are relevant to the exercise of discretion with respect to his further evidence. In CDJ v VAJ, the majority said at 203:
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Whilst it could not fairly be suggested that this evidence was deliberately withheld, the absence of an acceptable explanation for the failure to have adduced the evidence, either in a form that was admissible or otherwise at trial, the unsatisfactory evidence of the husband in relation to his bank accounts in the post separation period, and the specific instance of his particular intentions as they emerged during his cross-examination are all relevant to the exercise of discretion with respect to his further evidence, and factors which would not enhance his prospects of success in that regard.
The most significant matter however is the reality that, even if the husband had made the payments which he asserts, that would not of itself render erroneous the learned Federal Magistrate’s decision. As the evidence to which we have referred reveals, the husband chose not to make a full and frank disclosure of his finances in the post-separation period. Nor did he attempt to shed helpful light on the source documents presented by the wife with respect to accounts which were under his control at all material times. On the evidence, including the further evidence sought to be advanced by the husband, it could not in our view be concluded that making the payments referred to in this paragraph of his affidavit would, or should, have led the learned Federal Magistrate to a different conclusion in circumstances where the husband consciously chose to not fully reveal his finances and, having regard to his evidence in cross-examination, to prevent those opposing him from seeking to do so.
The second matter raised in the husband’s affidavit is to be found in paragraph 22, which provides as follows:
22.From the company account I also purchased two items of plant. The value of those items was included in the figure for plant and equipment of [Fadden] Pty Limited at the hearing before Scarlett FM. Those two items were as follows:
26.02.07 Purchase of slasher $5,500.00
13.03.07 Purchase of tractor $11,000.00
The husband here suggests that there has been a double-counting. He says that from the money in the Company account he purchased two items of plant, yet the Federal Magistrate has included in the asset pool both the balance in the account before these purchases were made and the value of the items purchased. However, the same comments apply to this issue as applied to the first issue. In other words:
(1)The purchases occurred before the hearing and no explanation is provided for the failure to adduce evidence of this at trial.
(2)No source documentation has been presented in support of the allegations contained in this paragraph, and there is no indication of any inability to provide that evidence.
(3)There is the unsatisfactory evidence of the husband in relation to his finances generally and the specific instance of his particular intention emerging during cross examination.
(4)Even if the husband was correct as to this issue that would not of itself render erroneous the Federal Magistrate’s decision. The husband chose not to make a full and frank disclosure of his finances, and having regard to his evidence in cross examination he sought to prevent those opposing him from seeking to do so.
In all the circumstances, and particularly given that, if accepted, the further evidence now sought to be relied upon by the husband would not of itself render erroneous the learned Federal Magistrate’s conclusion, we will not exercise our discretion to allow such further evidence.
Assessment of contributions
The second and third grounds in the husband’s Amended Notice of Appeal provided:
2.The learned Federal Magistrate erred in making a finding that the wife’s contributions during the marriage warranted a 5% adjustment in her favour.
3.The learned Federal Magistrate erred in not taking into account the contributions made by the husband during the marriage or the length of the parties’ relationship.
The husband challenged the learned Federal Magistrate’s finding that the contributions of the husband and wife should be assessed at 45 per cent and 55 per cent respectively. The submission made on behalf of the husband was that:
Whilst the weight to be accorded to such various contributions reposes with the trial judge there is nothing in the above reasons [of the learned Federal Magistrate] … to arrive at a conclusion of contribution based entitlement other than that of an equal contribution by both parties to the marriage.
On the wife’s behalf, it was submitted that the husband’s submissions ‘fail to mention the significant facts that justify the findings made by the Federal Magistrate.’ The wife’s counsel correctly drew attention to two such omissions. The first of these was that the wife made three lump sum contributions to the family between 1988 and 2001 totalling $63 000, whereas the husband made only one such lump sum contribution in 1983 of $12 000. All four lump sums were used for ‘joint purposes’.
The second omission was that it was ‘clear from the reasoning at paragraphs 37 and 39 that the Federal Magistrate took into account in coming to his conclusion the fact that in addition to being the primary care giver of four children, the mother also engaged in paid employment as well as working in the parties’ own business’. His Honour found that ‘the wife was clearly the primary caregiver of the parties’ four children … [and t]he wife also engaged in paid work during the marriage, both in the parties’ business and with the Bank, Credit Union and as a machinist at [K G] …’. Those findings have not been challenged.
It was not submitted that the learned Federal Magistrate’s conclusion with respect to the contribution based entitlements of the parties arose as a result of the learned Federal Magistrate having regard to any irrelevant or extraneous fact or circumstance. Nor was it submitted that his Honour failed to have regard to any relevant fact or circumstance. It was not suggested that his Honour applied erroneous principles. To the extent that the exercise of discretion was asserted to have been in reliance upon material errors of fact, for reasons which we have earlier advanced, such challenges fail. The exercise of discretion was not otherwise suggested to have been based upon material errors of fact. The submission made on behalf of the husband is essentially that the learned Federal Magistrate’s conclusion with respect to contributions was not reasonably open on the evidence before him. Why that was so was not specifically suggested.
The effect of the learned Federal Magistrate’s conclusion with respect to the parties’ contributions was that the wife’s contributions were assessed in dollar terms of approximately $88 000 more than were those of the husband. The findings of fact which led his Honour to so conclude have not been challenged in this appeal. The obstacles to successfully challenging the exercise of discretion in reliance upon ‘weight’ challenges are well known and substantial. We have earlier referred to some of the authorities which confirm that such is the case. The learned Federal Magistrate’s conclusion with respect to contributions can in our view be comfortably sustained by reference to the findings of fact which his Honour made and to which he referred in the context of his assessment of the parties’ contributions.
As the judgment of Brennan J in Norbis v Norbis to which we have earlier referred makes clear, the learned Federal Magistrate exercised a broad discretion. We are not persuaded that the learned Federal Magistrate’s exercise of discretion exceeded the ‘generous ambit’ to which Brennan J referred. Nor, howsoever expressed, has any complaint that the learned Federal Magistrate’s conclusion was ‘plainly wrong’ been established (see CDJ v VAJ per Kirby J at 230-231). These challenges accordingly fail.
Section 75(2) factors
The fourth and fifth grounds in the husband’s Amended Notice of Appeal provided:
4.The learned Federal Magistrate erred in making a finding that there should be an adjustment in the wife’s favour of 10% pursuant to Section 75(2).
5. In coming to his determination in respect of Section 75(2) the learned Federal Magistrate wrongly:
i. Assumed that the wife was not working when she was actually employed.
ii. Did not take into account that the husband had a lesser income earning capacity than the wife.
iii. Awarded a significant adjustment in the wife’s favour in relation to the care of [E] without any evidence of the cost of caring for [E] or the income received by her and despite the fact that [E] was 17 years of age at the time of the hearing.
It was asserted by the husband’s counsel that his Honour made the 10 per cent adjustment on the basis of the following s 75(2) factors:
a)Pursuant to s 75(2)(b), his Honour found that ‘[t]he wife has previously worked at a bank and a credit union and would presumably be able to obtain similar employment in the future’, notwithstanding the wife at trial stated (at [24] of her affidavit sworn 14 August 2007):
Since separation I worked as a teller at the Credit Union up until about 12 months ago. After a short period of unemployment I am presently employed as a clerical assistant earning between $300 and $400 per week.
Furthermore, in relation to the wife, it was found that she was in ‘good health’ and that E did not require ‘full time care’. In relation to the husband (written submissions of counsel for the husband at [50]):
At the trial the husband was unemployed…[w]ith some medical issues as to his leg.
It was asserted on behalf of the husband that the learned Federal Magistrate ‘made an error of fact as to the wife’s income (and hence earning capacity).’
b)Pursuant to s 75(2)(c), the then child E ‘was almost 17 years at the time of the trial… was a full time high school student… [and t]he husband apparently pays child support of approximately $20.00 per week.’
It was then submitted on behalf of the husband ‘Allied to this and additionally the 10% adjustment to the wife for the said child of the marriage’ would equate (on an asset pool of $888,130.00) to $88,813.00. That is, the husband’s complaint is ‘[E] would not complete school until late 2009… Adjustment to the Wife for [E] on the found balance sheet of $888,130.00 net was approximately $88,813.00 or from May 2008 to December 2009 for 20 months at $88,000.00 is approximately $4,400.00 per month… Which would be outside the usual range for such a factor.’ (original emphasis)
Counsel for the husband relied upon the decision of the Full Court in Clauson and Clauson (1995) FLC 92-595 at 81,911. The Full Court there said:
There is, we think, at times a tendency to assess s.75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s.75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue. (emphasis added)
With respect to counsel for the husband, that is precisely what the learned Federal Magistrate did in this case. So doing caused his Honour to reduce by 11 per cent the entitlement of the wife which he had concluded to be appropriate by reference to contributions and s 75(2) factors.
Counsel for the wife submitted that:
… Ten percent of the assets represents $88,000. That is a fund in absolute dollar terms that the judge considers is a reasonable adjustment in respect of Section 75(2) factors, subject to his view as to the justice and reasonableness of the outcome. It is submitted that such a sum of money as an adjustment is reasonable to cater for the final two years of high school for a child, the impact on a woman’s earning capacity by having been the primary care giver of four children in a lengthy marriage and in the circumstances where little meaningful contribution has been made by the husband in the three years post separation.
With all due respect, the submissions of counsel for the husband are somewhat academic in that they ignore what the learned Federal Magistrate ultimately decided, and ordered. It is to be remembered that when his Honour considered the outcome which he proposed in the light of his conclusions with respect to contributions and s 75(2), he retreated from the 65/35 division favouring the wife which he had thus concluded to be appropriate. Notwithstanding his Honour’s conclusions with respect to contributions and s 75(2), for the reasons which he clearly outlined, the entitlements of the parties were ultimately determined as 54 per cent to the wife and 46 per cent to the husband. In reality, notwithstanding the availability of s 75(2) factors warranting a significant adjustment in her favour, the wife’s entitlement was effectively reduced.
Adequacy of reasons
It is unnecessary to refer other than briefly to the adequacy of reasons challenge agitated on behalf of the husband. As our consideration of earlier challenges implies, the learned Federal Magistrate’s reasoning process with respect to the matters requiring determination was clearly revealed.
The submissions of counsel for the husband leave little scope for suggesting otherwise. The reality that this court has not detected error in his Honour’s judgment in relation to any of the issues to which those grounds were directed supports that conclusion. The ability of counsel for the husband to comprehensively and vigorously agitate the various challenges to the learned Federal Magistrate’s decision leave little scope for suggesting that the husband was ‘denied knowledge of why his or her case was rejected’ (see Bennett and Bennett (1991) FLC 92-191 at 78,266) with respect to each or any of the issues agitated by him before his Honour. Why his Honour concluded as he did with respect to the property of the parties to the marriage, the contribution based entitlements of the parties, s 75(2) and s 79(2) of the Act, are not in doubt.
No absence, deficiency, or other inadequacy in the learned Federal Magistrate’s reasons for judgment to which we have been referred persuades us that this challenge has substance.
Conclusion
No ground of appeal having been made out, and the husband’s application for leave to adduce further evidence being unsuccessful, his appeal should be dismissed. Although it is unnecessary to do so, we consider it appropriate to record that, even if the husband had made out his challenges to the learned Federal Magistrate’s determination of the value of the property of the parties, his appeal would not be entitled to succeed. Our reasons for so concluding can be briefly stated. As is not in doubt, the effect of the learned Federal Magistrate’s decision was that the wife received assets approximating $480 000.00 in value. That represented 54 per cent of the value of the property determined by the learned Federal Magistrate to be $888 128.55. As we have earlier recorded, the contention of counsel for the husband before us was that the property of the parties should have been found, or be found by this Court, to have been $798 772.10. It is apparent that $480 000.00 represents 60 per cent of property having a net value of $798 772.10.
The unchallenged findings of fact of the learned Federal Magistrate, and his undisturbed conclusions with respect to contributions, and an adjustment of 5 percent pursuant to s 75(2) would in our view comfortably accommodate orders being made in the re-exercise of discretion which resulted in substantially the same outcome as resulted from the hearing before the learned Federal Magistrate. Thus, even if, contrary to our conclusions, the husband’s complaints with respect to ‘pool issues’ and/or s 75(2) were successful, no different outcome would result if this Court re-exercised his Honour’s decision.
Costs
As requested by counsel for the husband, we shall reserve the question of costs to enable the parties to make written submissions in light of our reasons for judgment in the appeal.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 26 August 2009
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