G & G

[2004] FamCA 1179

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA11 of 2004

File No. ADF2373 of 2002

IN THE MATTER OF: G

Appellant/Wife

AND: G

Respondent/Husband

CORAM: KAY, WARNICK, O’RYAN JJ

DATE OF HEARING: 23 JUNE 2004

DATE OF JUDGMENT: 22 DECEMBER 2004

JUDGMENT OF THE COURT

Appearances: Ms Pyke of Counsel instructed by John G McGinn, Solicitors, Level 4, 22 Grenfell Street, Adelaide, South Australia, 5000 appeared on behalf of the Appellant

Mr Berman of Counsel instructed by Howe Martin & Associates, Solicitors, Level 20, 74 Pirie Street, Adelaide, South Australia, 5000 appeared for the Respondent

Name of Appeal	G and G
Appeal Number	SA11 of 2004
Date of Appeal Hearing	23 June 2004
Date of Judgment	22 December 2004
Coram	Kay, Warnick and O’Ryan JJ

Catchwords: PROPERTY SETTLEMENT – Marriage spanned 30 years - Trial Judge determined that a 60/40 division in the husband’s favour was appropriate – APPEALS – Majority decision – Essentially the appeal was a challenge to the weight that the trial Judge gave or failed to give to particular factors, it being asserted that his decision fell outside “the reasonably generous ambit of discretion” – APPEALS – PROPERTY SETTLEMENT – The trial Judge identified a number of imbalances in financial contributions including what was introduced by each party at the outset of cohabitation -–Adjustment to husband represented virtually a full “re-imbursement” to the husband of what he introduced (other than superannuation and long leave) – The trial Judge was careful in identifying all the non-financial contributions of each party – Once the trial Judge reached an assessment his Honour “stood back” and considered the justice and equity of the result – His Honour took each and every step the law asked of him – Full Court (Warnick and O’Ryan JJ – Kay J dissenting) – While a 20% differential between the parties is at the edge of the ambit, it cannot be said to be manifestly excessive (Warnick J) – In all the circumstances of this case the outcome was within “the generous ambit” of discretion (O’Ryan J) – Appeal dismissed

Appeal Dismissed. Appellant Wife to pay the Respondent Husband’s costs of and incidental to the appeal as agreed, and in default of agreement, as taxed.

KAY J:

In this matter I have had the opportunity to read the proposed reasons for judgment of Warnick J. I am in general agreement with all of the matters canvassed by Warnick J up to and including paragraph 99 of his Honour's reasons for judgment. Unlike his Honour, however, I am of the view that the assessment by the trial Judge of the contributions of the parties that evaluated the husband’s contributions as being one and a half times greater than the wife’s (6/10ths v 4/10ths) was manifestly outside the generous range of discretion afforded to the trial Judge.
This is a marriage that spanned 30 years. The wife was the primary caregiver for the four children of the marriage. Both parties worked hard in their respective roles. Although it was clear that some extra weight needed to be given to the husband's inheritance, the damages he received by way of workers compensation and the years of pre-marriage service in his superannuation scheme, that ought properly have been represented by a differential no greater than 55 per cent in favour of the husband and 45 per cent in favour of the wife. In a pool of $1.3 million that would have the effect of allowing the husband the first $130,000 and dividing the balance. Expressed in other terms, the husband would receive a share of the assets that was 22 per cent larger than the share received by the wife (11/20ths v 9/20ths).
As to whether any further adjustment would be appropriate having regard to the matters generally considered under s 79(4)(e), which incorporates s 75(2) of the Family Law Act, I note that my proposed capital provision gives the husband $130,000 more than the wife. The husband is five years older than the wife. The wife is capable of earning average earnings of $40,000 per year. The husband's health is poor. Each party has re-partnered. In all of those circumstances, in my view it would be inappropriate to make any further adjustment and accordingly I propose the pool of assets as determined by the trial Judge be divided between the parties as 55 per cent to the husband and 45 per cent to the wife and appropriate orders be made to give effect to that division.
The pool of assets available for division was valued at $1,295,526. On a 45/55 split the wife was entitled to receive $582,986.70. According to the trial Judge’s findings at para 154 she already owns assets worth $247,562. She needs to receive a further $335,424.70 less $8000 referred to by the trial Judge at para 157 of his reasons for judgment.
I would make the following orders
1.The appeal be allowed
2.Order 4 of the orders made by Strickland J on 23 January 2004 be varied by substituting the sum of $327,424.70 for the sum of $262,647.
3. The Court grants to the appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.The Court grants to the respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

WARNICK J:

The wife appeals against orders made by his Honour Justice Strickland, in determination of applications for property settlement. At trial, the husband had sought a division of net assets 60/40 in his favour and the wife was seeking an equal division. The trial Judge determined that a 60/40 division in the husband’s favour was appropriate.
The only order appealed against was that providing for the payment by the husband to the wife of a cash adjustment. On appeal, the wife seeks a re-exercise of the court’s discretion to the effect that assets be distributed equally. She seeks that this effect be achieved by an increase in the payment to be made by the husband.
As affirmed in the written summary of argument of the wife, the grounds of appeal do not challenge any findings of fact. One ground of appeal challenged a failure to include particular amounts in the asset pool, another challenged the adequacy of reasons, but essentially the appeal is a challenge to the weight which his Honour gave or failed to give to particular factors, it being asserted that his decision ultimately fell outside “…the reasonably generous ambit of discretion” (Ground 8.6).
I will consider the grounds of appeal after a review of the reasons for judgment.

The judgment of the trial Judge (including background facts set out therein)

The parties married in 1972. At that time the husband was a school teacher, as he had been since 10 years beforehand. The husband also farmed a leased property.
The wife was a vineyard hand. The wife had in her care a child, from a previous relationship, C, born in 1971
The trial Judge found that at the date of marriage the husband had assets, comprised of some cash, chattels and stock, of a total value of about $31,000.00, as well as unquantified interests in insurance policies and in superannuation and work related entitlements. The wife had only unvalued household furniture and effects.
The husband continued work as a school teacher until almost the end of the period of cohabitation. As well, he farmed on various properties that the parties acquired, worked as an electoral officer and for some years carting hay.
The wife ceased employment upon marriage. The husband adopted the child C when she was about 2½ years of age. As well, there are 3 children of the marriage, D born in 1973, N born in 1978 and S born in 1980.
The parties purchased their first rural property in February 1974. Following the death of the husband’s father in 1981, they moved to the rural property owned by the husband’s late father and the husband’s mother. They subsequently purchased that property, the husband foregoing his entitlement under his father’s estate, of about $20,000.00-$25,000.00, which he took as a reduction in the purchase price.
In 1989, the husband received compensation of $30,000.00 arising from a back injury suffered at his school workplace in late 1984. In that same year, land adjoining the farm upon which the parties lived was purchased, mostly for cash but with some borrowing.
In 1990 the wife returned to employment as a part-time casual vineyard hand. A second parcel of adjoining land was purchased in 1992. In 1993 the husband’s mother died and the husband received an inheritance of $50,000.00. A third parcel of land was purchased in that year.
Between 1993 and 1998 the wife worked 3 nights a week as a night filler at a supermarket and in 1997 her position with the winery at which she then worked became full-time and permanent.
In October 1999 the husband made a workcover claim for stress, anxiety and depression, for which he received medical treatment. He accepted a targeted, voluntary separation package from the Education Department, which also settled his workcover claims, in April 2001, in the amount of $495,000.00, which included superannuation.
Some either months later, the parties separated on 26 December 2001. Subsequent to separation the husband continued to farm the properties and the wife continued in employment, though she changed jobs at the beginning of 2003, becoming a casual laboratory assistant but nonetheless working 40 hours a week.
In July 2002, a consent order was made that, by way of interim or partial property settlement, the wife transfer her interest in the farm properties to the husband and the husband pay the wife $175,000.00. The wife has loaned some of this money to a friend and to some of the children. She purchased a residential property in which she resides.
In October 2002, the husband commenced cohabitation with a woman who is in employment and receives a modest salary. The husband was 58 years of age at trial and medical evidence, which established that he suffered depression, anxiety and lower back pain, was to the effect that he was unlikely to be employable. However, he could work on the properties at his own pace and with the assistance of contract labour.
The wife was 49 years of age at trial and in good health and continued in the position as laboratory assistant.
As to the issue of inclusion of particular amounts or not in the asset pool, the wife argued that the proceeds of wool shorn in 2001, sold not long after separation for $74,929.00 should be included in the asset pool. Similarly, she argued that sheep and lambs, on the property at separation, sold for $15,309.00 not long after separation and before a valuation was undertaken should also be included.
The trial Judge records the arguments of each of the parties on this issue as follows:
“72. The wife says that if the partnership business was closed down at the date of the separation when there were no liabilities, then this money would have then been available to the parties just the same as any other asset. Thus she says, the proceeds of sale should be included in the asset pool.
73. The husband says that the proceeds were deposited into the partnership bank account upon receipt and then used in the running of the farm business. He says that it is inappropriate to consider the position of the business at any one point in time, and it is necessary to at least look at the entire financial year. There are expenses that are incurred at one point which are then in effect offset by income received at another point. He says that the proceeds are income and they cannot be treated as discrete assets available to the parties.
75. The husband’s submission is persuasive and I do not consider it appropriate to add these proceeds to the pool of assets.
The trial Judge assessed the net assets of the parties to be $1,295,526.00.
Turning his attention to the assessment of contributions, his Honour recorded the husband’s full-time paid employment for almost the entirety of the period of cohabitation and his work on the farm properties held by the parties from time to time, as to which, as between he and the wife, he undertook the major responsibility for all aspects. His Honour noted however the diminution that had occurred in the capacity of the husband to personally attend to all of the tasks required for the running of the properties as a result of his back injury and his subsequent psychological difficulties. His Honour also noted the husband’s extra income in the early years of the marriage from contract hay carting and driving the school bus on weekends and working as an electoral official.
The trial Judge then recorded the lump sum financial contributions made by the husband, represented by the purchase of the parents’ farm property at a “discount” of $25,000.00 and tools and equipment inherited said by the husband to be valued at $14,400.00. Next, his Honour noted the $50,000.00 inheritance from the husband’s mother’s estate used to retire debt, the workers compensation payment of $30,000.00 also used for that purpose and the package received by the husband, only months before the final separation, the break up of which was as follows:
Workers compensation payment as a result of husband’s psychological difficulties             $126,699.00
Long Service Leave  30,976.00
Annual Leave  689.00
Superannuation  337,176.00
Those monies were largely applied to retiring debt, building a new home and funding a two month overseas holiday, as well as living expenses, as after their receipt the husband was not in paid employment.
His Honour then noted that various improvements had been made to the farm property over time and that both parties, but in particular the husband, contributed work and labour to these ventures.
The trial Judge then turned to consider the wife’s contributions. He noted her employment history and that the husband had been opposed to her working, preferring her to stay home and care for him and the children, but that the wife’s income was “extremely helpful to the parties finances”.
Strickland J resolved issues between the parties about the amount of work undertaken by the wife on the farm properties by finding that she did not do as much work as she asserted, but did more than the husband was prepared to concede:
“…I find that what she did was significant and was of great assistance to the operation of the farm.”
His Honour also found that the wife had contributed indirectly to the superannuation that the husband received in April 2001 and to his other work entitlements. In particular, as to the workers compensation received by the husband, the wife had made an indirect contribution insofar as she cared for the husband after his back injury and after his work stress. His Honour also found that the wife made appropriate contributions of work and labour to the improvements of the farm property and the building of the new home in 1997.
At this point his Honour noted and agreed with a submission on behalf of the wife that “…whilst the husband was out working and accumulating superannuation and other entitlements the wife was at home caring for the husband, the children and the home, and she was not able to do the same. Indeed this was the plan;…”.
At the end of his summary and findings about contributions, his Honour said:
“84. Despite the submissions of [Mr L] I find that overall the contributions of the husband pursuant to Section 79(4)(a) and (b) of the Family Law Act up to the separation of the parties clearly outweighs the contributions of the wife. The husband’s initial contributions and his direct financial and non-financial contributions during cohabitation were much greater than the wife’s, and it is only in the area of indirect contributions that there is any semblance of equality.”
Immediately following this paragraph is the heading “Section 79(4)(c)” and the following:
“85. There is no question here that the wife was the primary caregiver to the children and that she was the principal homemaker. Indeed, that was the arrangement that the parties had to enable the husband to go out to work in paid employment.”
In the following paragraphs, after noting that the husband assisted the wife in parenting tasks whenever he could, his Honour concluded:
“88. The wife’s contributions in this category are significant and far outweigh the husband’s.”
Strickland J. then turned to a discussion of post-separation contributions. He recorded that the husband had continued to operate the farm business, and had retained any profits, but noted the husband’s claim that the profitability was marginal. The wife had continued full time employment and generally supported herself. His Honour said that the husband had been quite generous to the wife immediately following the separation, meeting certain expenses to her benefit and providing her with $5,000.00. His Honour determined that the wife’s use of a credit card of the husband without his consent to the extent of $8,000.00 should be deducted from her share of property settlement. As to the interim property settlement, his Honour noted that the husband had borrowed to pay the sum of $175,000.00 to the wife, as well as to maintain the farm business and to support himself. His Honour concluded:
“96. In my view the husband’s contributions since the separation have been greater than the wife’s, but it is of marginal significance to the overall assessment of the contributions of the parties.”
His Honour then moved to his ultimate conclusion on contributions. He recorded certain submissions on behalf of each party and then said:
“99. This has been a long marriage and there have been many and varied contributions made by the parties over time. It is necessary to weigh each of these contributions in arriving at the result, and in my view, even according great weight to the wife’s contributions I consider that overall the husband’s contributions exceed the wife’s. His financial and non-financial contributions outweigh the wife’s parent and homemaker contributions, and I find that their respective contributions should be assessed at 60%/40% in the husband’s favour.
100. I should mention that in making this finding I am well aware that the effect of the same is that the first 20% of the net asset pool will be treated as having been contributed by the husband whilst the parties have contributed equally to the remaining 80% of that pool (THOMASETTI and THOMASETTI (2000) FLC 93-023). That is still an appropriate assessment here.”
Next, his Honour turned to a consideration of the application of section 75(2). His Honour discussed the ages and state of health of the parties, including that the husband’s health conditions “…had a severe impact on his ability to find and retain paid employment”. His Honour then noted the claim by the wife as to some restriction on her capacity for employment arising from an alleged shoulder injury, but his Honour did not accept that proposition.
After reviewing certain information about financial matters, his Honour accepted that the profitability of the farms operated by the husband was marginal.
Though the wife had moved from a full-time permanent position to casual employment, which offered less income and less security, his Honour found that the wife had the physical and mental capacity for appropriate gainful employment and the capacity to earn more income than the husband. He said:
“…This disparity is a relevant factor to be taken into account here.”

His Honour noted that as a result of his findings on contribution, the husband was entitled to a greater percentage of the net assets than the wife. He observed that, however, the husband would still have to borrow more money to make a further substantial payment to the wife, if he was to retain the farm properties. If the farm properties were sold, then the net proceeds would be used to pay to the wife the balance of her entitlement and provide the husband with part of his entitlement. His Honour then said:
“…Although there will be a disparity in favour of the husband that is not a disparity that warrants an adjustment in favour of the wife pursuant to this subparagraph.”
Having set out these matters, his Honour then moved to his conclusion on section 75(2) factors. He noted that the wife contended that there should be no adjustment in favour of either party, submitting that the husband was still able to work and if the farm was sold he would have sufficient money to provide for his future. His Honour said in response to this submission:
“…However, I do not accept this submission. The husband is unable to work outside of the farm and if the farm is sold then he will need his share of the proceeds to re-establish himself.”
Next, his Honour recorded that the husband’s counsel had submitted that, if the husband was able to retain the farm property, there should be no adjustment for the relevant section 75(2) factors. However, counsel said that if the farm was to be sold, then the husband’s incapacity for appropriate gainful employment and the greater income and earning capacity of the wife justified a 5% adjustment in the husband’s favour. His Honour agreed with that submission. Then, turning to a consideration of the terms of section 79(4)(d), (f) and (g), his Honour repeated that:
“…if the farm properties are sold then that will have a dramatic effect on the earning capacity of the husband. However, there will be no effect on that earning capacity if the farm is retained by the husband. Clearly then it is highly relevant as to what happens to the farm properties. However, it is equally clear from the authorities that if the only way to provide the wife with a just entitlement is for an income producing property to be sold then that is what should happen.…”
His Honour then turned to a consideration of the issue of whether the farm should, or would have to be, sold. During that consideration, his Honour said:
“ …it is obvious that unless there is a dramatic improvement in the profitability of the farm he will be hard pressed to keep it.
134. The husband’s difficulty in retaining the farm become apparent when the level of debt and what is required to service that debt is considered.”
His Honour then considered what would be required of the husband by way of borrowing and repayments if he was to retain the property, and concluded:
“137. This analysis indicates that even if the husband is able to carry through until the end of the initial two year term there must be considerable doubt that he will be able to obtain continuing finance at the level required, and even if he does, whether he can service such a substantial debt.”
Then, after referring to evidence from a bank manager called by the wife, his Honour said:
“140. This evidence highlights the difficulty that the husband will have in retaining the farm properties long-term and is evidence led by the wife to suggest that the husband is simply trying to hold onto the farm for the moment with a view to selling later and gaining an advantage through a higher sale price.”
His Honour then expressed the views that the husband had genuine reasons for wanting to retain the property and that the wife was motivated to some extent by vindictiveness in seeking a sale of the farm property, but that, in the end result, there was no basis for requiring the husband to sell the farm property now. However, his Honour said:
“…Although there is serious doubt as to the husband’s ability to retain the farm long-term, that cannot prejudice the wife. The wife will receive her entitlement based on the agreed value of the farm properties, and what happens to the properties can therefore be of no genuine concern to her.…”
Finally, his Honour turned to consider the requirement that the orders he make be just and equitable. He said:
“154. …Because I am allowing the husband to retain the farm properties that asset pool should be divided 60%/40% in favour of the husband on the basis that there is no adjustment for any relevant Section 75(2) factors.…”
His Honour then addressed the effect of his orders in terms of assets and values and said in respect of the husband:
“159.       …His future is insecure but he will still have substantial monies to re-establish himself from the net proceeds of sale of the farming properties if that is what ultimately occurs.
160.     The wife will finish up with a house property…subject to a mortgage which she is well able to service from her income…She will then have cash of $262,647.00 from the husband to pay off her mortgage and/or invest. Thus, she will have a comfortable and secure future.
161.     Having considered the result and revisited the history of the relationship between the parties, their respective contributions and the relevant section 75(2) factors I am satisfied that my proposed orders are just and equitable.”

Grounds of appeal

There are 14 grounds of appeal. The last ground challenges the adequacy of reasons. The second last ground relates to the exclusion of sheep and wool sale proceeds from the asset pool. Of the first 12 grounds, in my view, 10 grounds essentially break into component parts the basic challenge to the exercise of discretion by the trial Judge, which is expressed in grounds 12 and 6, namely:
“8.12The Order of His Honour, having regard to the totality of the evidence, was so unreasonable and manifestly unjust, that it may be properly inferred that there has been a failure to properly exercise the discretion reposed in His Honour.
8.6That the Orders made by His Honour were not just and equitable in that the Orders fell outside of the reasonably generous ambit of discretion.”
In these circumstances, I consider that there is little point in dwelling on individual grounds of appeal. For example, the first three grounds are:
“8.1His Honour failed to attach adequate or sufficient weight to contributions of the wife as homemaker and parent.
8.2His Honour failed to attach adequate or sufficient weight to financial contributions of the wife.
8.3His Honour failed to give weight to the contributions of the wife made during the husband’s periods of incapacity for work.”
The submissions in support of these grounds do little if anything more than revisit what the trial Judge found about the contributions of the wife, arguing that the net effect of his Honour’s findings:
“…was that the wife made substantial contribution as home-maker, parent and wife during a 30 year marriage. In addition, she earned income from part-time and full-time employment and also made a significant contribution to the work on the farm. The wife’s contributions were as a hard working dedicated mother, worker and farm worker.”
All this is true. However, all this must obviously be set against the findings as to the contributions by the husband. Ground 8.4, asserted that the trial Judge had attached too much weight to the contributions by the husband, which were then enumerated.
There seems to me no point in focussing on one set of contributions separately from other contributions, when really, it is the result of the comparison which is attacked.
The other grounds are as follows:
“8.5 His Honour found that the husband’s contributions outweighed the wife’s contributions.
…
8.7     His Honour erred as a matter of law in that the evaluation of the contributions as to 60% to the husband was manifestly inadequate and outside of a proper exercise of His Honour’s discretion.
8.8     His Honour erred in law in failing to apply a significant discount to the assessment of the husband’s contributions having regard to:-
(a)duration of the marriage;
(b)significant contributions of the wife.
8.9     His Honour failed to attach any or sufficient weight to the contributions by the wife to the husband’s mother prior to transfer to the parties of the property at less than market value.
8.10     His Honour failed to attach sufficient weight or significance to the transfer by the husband’s mother of the property to the parties jointly.
8.11     His Honour failed to have regard to the real impact in monetary terms of the percentage adjustment made in favour of the husband given the quantum of the pool of assets.”
In my view, most of the arguments put in support of the first 12 grounds of appeal can best be discussed globally, though some arguments were identified in submissions as going to particular grounds. I discuss those first before returning to the essence of the appeal.
In respect of ground 8.5, it was suggested that the finding of the trial Judge at paragraph 84 of his reasons, namely:
“84. …The husband’s initial contributions and his direct financial and non-financial contributions during cohabitation were much greater than the wife’s, and it is only in the area of indirect contributions that there is any semblance of equality.”
was not supported by the trial Judge’s (other) findings.
In written submissions, counsel for the wife conceded that the evidence supported a finding that the husband’s initial contributions exceeded those of the wife and that the husband made greater direct financial contribution, particularly in the area of his inheritances. However, it was argued that there was no basis for the finding that the husband’s non-financial contributions were much greater than those of the wife.
In considering the findings of the trial Judge in paragraph 84, it is important to recognise that (as seen from the full paragraph quoted in paragraph 29 of these reasons), those findings only related to contributions within the terms of paragraphs (a) and (b) of section 79 and did not include any consideration of the wife’s contribution as parent/home-maker.
No argument was developed that, leaving aside the wife’s parent/home-maker contribution, the trial Judge’s conclusions in paragraph 84 were not supported.
Therefore, standing alone, there is no merit in this ground.

Grounds 8.9, 8.10

These grounds refer to the transfer to the parties of the property of the husband’s father and mother, a transaction described in ground 8.9 as at less than market value. As conceded by counsel for the wife, this in fact is not what the evidence discloses. All that happened was that the inheritance due to the husband under his father’s will was used as part of the purchase price. In these circumstances, no inference about contributions is to be drawn from the mere fact that the purchase was made in joint names.
Furthermore, the trial Judge recognised and evaluated the contributions of the parties to this property, both before and after its transfer to them. There is no merit in these grounds viewed separately from the other grounds.

Ground 8.13

“His Honour erred in failing to include in the asset pool the sum of $90,238.00 on account of sheep and pool proceeds.”

In support of the argument that the proceeds of the sales should be added back to the asset pool, counsel for the wife submitted that “a balance sheet must be looked at, at a point in time.” While that may be true, I am of the view that what was sold in this case was clearly trading stock and product, namely wool, and that the financial statement of greater relevance is the profit and loss sheet, not the balance sheet. Taking parts of a trading account at a particular point but not recognising trading creditors and debtors and/or the anticipated length of time until the next income, can be grossly misleading. Proceeds of sale of farm produce and trading stock included at any particular point in time may well be offset by taking account of a following period without income, during which running costs are incurred.
I am not satisfied that the treatment by the trial Judge in respect of these matters was in error.

Ground 8.14

“His Honour failed to give sufficient and adequate reasons for his decision.”

It is in respect of paragraph 84 previously discussed that this ground was argued, as well as in respect of the global adjustment. I have indicated that I see no deficiency in what the trial Judge has said in paragraph 84.
In so far as the overall division is concerned, it was not contended that a relevant matter was not identified, or an irrelevant one included. The argument was just that the end result was not explicable, therefore there must have been a failure of reasons. In so far as this ground rests on such a proposition, it succeeds or fails according to whether or not it is accepted that the result was plainly unjust.

The essence of the appeal

I turn to a global approach to the grounds, and the essential submission that the division of property was plainly unjust. As to the approach of the trial Judge to weighing and comparing contributions, in the submissions on behalf of the wife, in respect of grounds 8.7, 8.8, 8.11 and 8.12 it was said:
“Looked at overall, leaving aside the issue of the husband’s inheritances, the contributions of the parties, whilst different were of an equal nature.” (emphasis added)
And later:
“The husband’s contributions from an inheritance in 1981 and 1993, whilst relevant considerations, do not of themselves justify an adjustment of 10% in favour of the husband.…”
It seems to me that, once it has been conceded that contributions were not equal (from which, in our view, it follows that some allowance was appropriate), it becomes a question (as it may well have been in this appeal even had the concession not been made) of simply whether the allowance made was manifestly unjust.
As to answering that question, and as to the reasons supporting the result at trial, words will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong. All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, “Yes, but why that figure and not another?” or “Why was that the range rather than some other parameters?”
The deficiency is unavoidable. When there are a number of “right” results available, the explanation for the choice of one over others can never be incontestable. Nor can the reasons for saying that a result is outside a range be beyond challenge. The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result.
This being so, one can legitimately ask “Why add more words to the discussion of the sufficiency of reasons in this area.
I do so because, though the “logic” for any individual result may not be incontestably explicable, discussion of the character of the review process in these circumstances, may assist at least me in carrying out that process.
Before I go to that discussion, I acknowledge that a reader of these remarks unfamiliar with the law, might well ask why the law should maintain a system incapable of unarguable explanation. The short answer is that the existence of a discretion is regarded by many, and in the case of the Family Law Act 1975, by the legislators, as the best way of doing justice in individual cases of the nature of family disputes.
And it is the fact that results are often fully accepted by the parties and lawyers as “right”, notwithstanding that, because of the individuality of cases, no template can be imposed on each one to identify with precision only one right result.
I am mindful of the discussion in Figgins & Figgins (2002) FLC 93-122 at 89-297 where Nicholson CJ and Buckley J disagreed with a statement by Finn J in Farmer & Bramley (2000) FLC 93-060 (at page 87,947) where, after her Honour referred to the difficulty of explaining a result under section 79, she said:
“Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s79.”

Of this, Nicholson CJ and Buckley J said:
“We think that this overstates the position. The obligation of giving reasons for judgment is an obligation that cannot be avoided because it is difficult to achieve.”
I do not see that anything I have so far said or later say affects well established requirements that decisions must be supported by adequate reasons. I merely say that in respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.
The statements of principle applicable to appeals from discretionary judgments are familiar. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:
“…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.” (emphasis added)
In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:
“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.” (emphasis added)
Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:
“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”

In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:
“…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”
Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:
“1. …The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)

While I think one must be careful not to lose the ordinary sense of a passage by focussing excessively on one or two words, I note that the passages refer to the ambit being wide enough, at a minimum, to contain reasonable disagreement. In other words, something more even than actual disagreement is required before interference is justified. Attention is then drawn to the strength of disagreement, to determine whether the appellate court may interfere or not.
It seems reasonable to imagine that, along the continuum of levels of disagreement, before a conclusion is reached that the result below was plainly wrong or manifestly excessive, the appellate Judge may pass through a stage of uncomfortable uncertainty about the result below, of which uncertainty that result is entitled to the “benefit of the doubt”.
Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.
In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.
In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]
“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)
In my view, the passage quoted supports acknowledgment of an advantage in a Family Court trial Judge over the Full Court of this court when evaluating and comparing identified contributions in the exercise of discretion under section 79 of the Family Law Act 1975, as amended.
Perhaps this advantage exists especially with regard to the assessment of non-financial contributions of which an appellate court may find it difficult, from limited and perhaps selective references to material in the appeal book, to appreciate their true dimensions. However, no doubt the degree of any advantage will vary according to the nature of the issues at trial, the grounds of the appeal and the conduct of the appeal.
In the instant case, the trial Judge identified a number of imbalances in financial contributions; in what was introduced by each party at the outset of cohabitation, in the inheritances of the husband, in the compensation monies received for the back injury and in the compensation component of the redundancy package.
Nonetheless, the 20% differential represented $259,105.00. The total of the husband’s initial contributions, inheritance from his father’s estate, compensation for the back injury, inheritance from his mother and separation package, totalled $631,000.00. Of course of that $368,000.00 approximately was superannuation and long leave. The trial Judge noted the wife’s indirect contributions to the husband’s superannuation and other work entitlements. Leaving aside the superannuation and long leave, the husband introduced about $263,000.00, but of course even in respect of some of these monies, the wife made some contributions by way of care of the husband when he was injured and ill.
The adjustment represented virtually a full “re-imbursement” to the husband of what he introduced (other than superannuation and long leave). One might ask then, how or whether the wife’s contributions were compared with the other monies the husband introduced. Why were those monies, in effect, credited to him “in full”? However, to ask that question is to some extent to isolate contributions rather than consider contributions globally.
There were non-financial contributions by both parties to be compared and taken into account. The trial Judge was careful in identifying all the non-financial contributions of each party.
As well, the dollar value of financial contributions made at various times over 30 years must be seen in historical context and to compare “current dollars” with “past dollars” is misleading.
Once he reached an assessment, his Honour “stood back” and considered the justice and equity of the result. He took each and every step the law asked of him.
Having regard to the number and nature of the differences in contribution and to what I have said of the process of review, I consider that, though a 20% differential between the parties is at the edge of the ambit, it cannot be said to be manifestly excessive.

Conclusion

As I consider that none of the grounds of appeal has merit, I would dismiss the appeal.

Costs

I consider that the wife should pay the husband’s costs of and incidental to the appeal as agreed, and in default of agreement, as taxed.

O’RYAN J:

I have read the Reasons for Judgment of Warnick J. and I agree with what he proposes namely, that the appeal be dismissed.
Notwithstanding the duration of the marriage and significant financial and non-financial contributions made by the wife, including and importantly, in the capacity of homemaker and parent, it was recognised the husband had made a greater contribution. Thus, appropriate weight had to be given to his initial contributions, inheritances, the damages he received by way of workers’ compensation and the years of pre-marriage service in his superannuation scheme.
The concept of discretion is difficult to explain and, in my opinion, it is often unwise to attempt to do so.
Aickin J. summed up the nature of judicial discretion in Gronow v Gronow (1979) FLC 90-716 at 78,859; (1979) 144 CLR 513 at 538, where he said “the exercise of a judicial discretion recognises that in many cases different minds may arrive at different conclusions”.
What it does is enable a just and equitable outcome to be achieved upon the application of the relevant statutory considerations to the circumstances of the case.
In this case, on one view it could be said that the outcome for the husband was at the upper end of the range of discretion. However, it does not follow that the decision of the trial Judge was wrong or manifestly unjust. I am of the view that in all the circumstances of this case the outcome was within “the generous ambit” of discretion (Norbis v Norbis (1986) FLC 91-712; (1986) 161 CLR 513) and thus the appeal must fail. I agree that what Warnick J. proposes namely, that the appeal be dismissed and that the wife pay the husband’s costs.

ORDERS

That the appeal be dismissed.
That the wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement as taxed.

I certify that the 108 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.

Sgnd: ……………………

Associate

[2004] FamCA 1179

22 December 2004